Exhibit 10.2
AMENDED AND RESTATED
CONSULTING AGREEMENT
AMENDED AND RESTATED CONSULTING
AGREEMENT (this “Agreement”) dated as of June 18,
2008 among F.N.B. Corporation, a Florida corporation having its
principal place of business at One F.N.B. Boulevard, Hermitage,
Pennsylvania 16148 (“FNB”), First National Bank of
Pennsylvania, a national banking association having its principal
place of business at One F.N.B. Boulevard, Hermitage, Pennsylvania
16148 (“FNB Bank”), and Stephen J. Gurgovits, an
individual whose address is 591 Buhl Boulevard, Sharon,
Pennsylvania 16146 (the “Consultant”).
WITNESSETH:
WHEREAS, FNB Bank is a wholly owned
subsidiary of FNB;
WHEREAS, the Consultant has served
for many years as an executive officer of each of FNB and FNB Bank
(collectively, the “Companies”) and is currently
serving as Chairman of the Board of FNB pursuant to the terms and
conditions of an Amended and Restated Employment Agreement (the
“Employment Agreement”) dated as of June 18, 2008
between the Employers (as defined in the Employment Agreement) and
the Executive (as defined in the Employment Agreement);
WHEREAS, upon the earlier of the
scheduled retirement of the Executive on December 31, 2008 or
the date on which the Employers shall have terminated the
employment of the Executive under the Employment Agreement for
other than Cause (as defined in the Employment Agreement) or the
Death or Permanent Disability of the Executive ( as defined in the
Employment Agreement) or the Executive shall have terminated his
employment under the Employment Agreement for Good Reason (as
defined in the Employment Agreement), the Companies desire to
employ the Consultant to provide consulting services to the
Companies, and the Consultant desires to provide for his rendering
of consulting services to the Companies, all in accordance with the
terms and subject to the conditions set forth in this Agreement;
and
WHEREAS, the parties have previously
entered into a Consulting Agreement dated December 31, 2005;
and
WHEREAS, the parties are entering
into this Agreement to set forth and confirm their respective
rights and obligations with respect to the services to be provided
by the Consultant;
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NOW, THEREFORE, in consideration of
the premises and the mutual covenants contained in this Agreement,
the Companies and the Consultant, intending to be legally bound
hereby, mutually agree as follows:
1. Consulting Services and
Term .
(a)
(i) Effective on the earlier of January 1, 2009 or the
date on which the Employers shall have terminated the employment of
the Executive under the Employment Agreement for other than Cause
or the Death or Permanent Disability of the Executive or the date
on which the Executive shall have terminated his employment under
the Employment Agreement for Good Reason (the “Effective
Date”), and except as otherwise expressly provided in this
Agreement, this Agreement shall supersede and replace the
Employment Agreement and the Companies shall employ the Consultant
to provide consulting services to the Companies and the Consultant
shall provide consulting services to the Companies in accordance
with the terms and subject to the conditions set forth in this
Agreement for a term (the “Term”) that shall commence
on the Effective Date and, subject to paragraphs 1(b), 1(c) and
1(d), shall expire on the fifth anniversary of the Effective
Date.
(ii) FNB
and FNB Bank shall be jointly and severally liable to the
Consultant with respect to (i) all liabilities of FNB Bank to
the Consultant under this Agreement and (ii) all liabilities
of FNB to the Consultant under this Agreement; provided, however,
that FNB shall not be responsible for any liability of FNB Bank to
the Consultant to the extent that such liability has been
discharged by FNB Bank, and FNB Bank shall not be responsible for
any liability of FNB to the Consultant to the extent that such
liability has been discharged by FNB.
(b) Unless
otherwise provided in this Agreement or agreed by the Companies and
the Consultant, all of the terms and conditions of this Agreement
shall continue in full force and effect throughout the Term and,
with respect to those terms and conditions that apply after the
Term, after the Term.
(c) Notwithstanding
paragraph 1(a), the Companies, by action of their Boards of
Directors (the “Boards”) and effective as specified in
a written notice thereof to the Consultant in accordance with the
terms of this Agreement, shall have the right to terminate the
Consultant’s employment under this Agreement at any time
during the Term, for Cause (as defined in this Agreement) or other
than for Cause or on account of the Consultant’s death,
subject to the provisions of this paragraph 1. As used in this
Agreement, “Cause” shall mean (A) the commission
by the Consultant of any activities constituting a violation or
breach under any material federal, state or local law or regulation
applicable to the activities of FNB Bank or FNB, in each case,
after notice thereof from the Companies to the Consultant and a
reasonable opportunity for the Consultant to cease such failure,
breach or violation in all material respects, (B) fraud,
breach of fiduciary duty, dishonesty, misappropriation or other
actions that cause intentional material damage to the property or
business of FNB Bank
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or FNB
by the Consultant, (C) the Consultant’s inability to
perform his duties under this Agreement in all material respects
other than for physical or mental impairment or illness or (D) the
Consultant’s admission or conviction of, or plea of nolo
contendere to, any felony or any other crime referenced in
Section 19 of the Federal Deposit Insurance Act that, in the
reasonable judgment of the Boards, adversely affects FNB
Bank’s or FNB’s reputation or the Consultant’s
ability to carry out his obligations under this Agreement.
(d) The
Consultant shall have the right to terminate his employment under
this Agreement at any time during the Term hereof for Good Reason
or without Good Reason. As used in this Agreement, “Good
Reason” shall mean a material breach by either Company of its
respective obligations to the Consultant under this Agreement,
which breach is not cured in all material respects to the
reasonable satisfaction of the Consultant within 30 days, in
each case following written notice thereof from the Consultant to
the Companies, which notice shall be provided within 90 days
of the initial existence of the breach.
(e) Termination
Obligations.
(i) If
(A) the Companies terminate the employment of the Consultant
under this Agreement for any reason other than Cause or the death
of the Consultant or (B) the Consultant terminates his
employment under this Agreement for Good Reason, the Companies
shall pay the Consultant’s annual fee for the remainder of
the Term.
(ii) If
(A) the Companies terminate the employment of the Consultant
under this Agreement for Cause or (B) the Consultant
terminates his employment under this Agreement for any reason other
than Good Reason, the sole obligation of the Companies shall be to
pay any accrued obligations under this Agreement to the
Consultant.
(iii)
The parties intend that this Agreement be drafted and administered
in compliance with section 409A of the Internal Revenue Code of
1986, as amended (the “Code”), including, but not
limited to, any future amendments to Code section 409A, and any
other Internal Revenue Service (“IRS”) or other
governmental rulings or interpretations (together,
“Section 409A”) issued pursuant to
Section 409A so as not to subject the Consultant to payment of
interest or any additional tax under Code section 409A. The parties
intend for any payments under subsection (i) above to either
satisfy the requirements of Section 409A or to be exempt from
the application of Section 409A, and this Agreement shall be
construed and interpreted accordingly. In furtherance thereof, if
payment or provision of any amount or benefit hereunder that is
subject to Section 409A at the time specified herein would
subject such amount or benefit to any additional tax under
Section 409A, the payment or provision of such amount or
benefit shall be postponed to the earliest commencement date on
which the payment or provision of such amount or benefit could be
made without incurring such additional tax. In addition, to the
extent that any IRS guidance issued under Section 409A would
result in the Consultant being subject to the payment of interest
or any additional tax under Section 409A, the parties agree,
to the extent reasonably
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possible, to amend this Agreement in order to avoid the imposition
of any such interest or additional tax under Section 409A,
which amendment shall have the minimum economic effect necessary
and be reasonably determined in good faith by the Companies and the
Consultant.
(iv) If
a payment under paragraph 1(e)(i) above does not qualify as a
short-term deferral under Section 409A or any similar or
successor provisions, and the Consultant is a Specified Employee
(as defined herein) as of his termination date, distributions to
the Consultant may not be made before the date that is six months
after the date of the termination date or, if earlier, the date of
the Consultant’s death (the “Six-Month Delay”).
Payments to which the Consultant would otherwise be entitled during
the first six months following the termination date (the
“Six-Month Delay Date”) will be accumulated and paid on
the first day of the seventh month following the termination date.
Notwithstanding the Six-Month Delay set forth in this paragraph
1(b)(vi):
(A) To the maximum extent permitted
under Section 409A or any similar or successor provisions,
during each month until the occurrence of the Six-Month Delay Date,
the Companies will pay the Consultant an amount equal to the lesser
of (I) the total monthly severance provided under paragraph
1(e)(i) above or (II) one-sixth of the lesser of (1) the
maximum amount that may be taken into account under a qualified
plan pursuant to Code Section 401(a)(17) for the year in which
the Consultant’s date of termination occurs, and (2) the
sum of the Consultant’s annualized compensation based upon
the annual rate of pay for services provided to the Companies for
the taxable year of the Consultant preceding the taxable year of
the Consultant in which his termination date occurs, adjusted for
any increase during that year that was expected to continue
indefinitely if the Consultant had not had a termination date;
provided that amounts paid under this sentence will count toward,
and will not be in addition to, the total payment amount required
to be made to the Consultant by the Companies under paragraphs
1(e)(i) and (ii); and
(B) To the maximum extent permitted
under Section 409A or any similar or successor provisions,
within ten days of the termination date, the Companies will pay the
Consultant an amount equal to the applicable dollar amount under
Code Section 402(g)(1)(B) for the year of the
Consultant’s termination date; provided that the amount paid
under this sentence will be inclusive of, and will not be in
addition to, the total payment amount required to be made to the
Consultant by the Companies under paragraph 1(b).
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For purposes of this Agreement,
“Specified Employee” has the meaning given that term in
Section 409A or any similar or successor provisions. The
Companies’ “specified employee identification
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