AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.3
Execution Copy
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”), dated as of January
24, 2011, amends and restates in its entirety the Employment Agreement, made as of June
28, 2010, between Premier American Bank, National Association (the “Company”), and
Xxxxxxx X. Xxxxxxx (“Executive”) (such June 28, 2010 Employment Agreement is
referred to herein as the “Prior Agreement”).
WHEREAS, the Company desires to employ Executive as its Executive Vice President and Chief
Financial Officer, and Executive desires to accept such employment on
the terms and conditions
hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and agreements hereinafter set
forth, the Company and Executive agree as follows:
1. Term of Employment. The term of employment under this Agreement shall commence as
of June 28, 2010 and, subject to earlier termination provided in Section 4 hereof, shall
end on June 30, 2013 the third anniversary thereof (as such
period may be extended, the “Term”).
The Term shall be automatically extended for additional one (1) year periods at the end of the
Term, unless the Company or Executive notifies the other in writing of its or his intention not to
extend the Term at least ninety (90) days prior to the then scheduled expiration of the Term.
2. Employment.
(a) Employment by the Company. Executive agrees to be employed
by the Company upon the terms and subject to the conditions set forth in this Agreement. Executive
shall serve as Executive Vice President and Chief Financial Officer of the Company and shall report
to the Chief Executive Officer of the Company.
(b) Performance of Duties. During his employment, Executive shall faithfully and
diligently perform Executive’s duties in conformity with the directions of the Chief Executive
Officer and serve the Company to the best of Executive’s ability. Subject to Section 5.1 hereof,
Executive shall devote his full business time and best efforts to the business and affairs of the
Company (except for vacation periods and periods of illness or other incapacity).
(c)
Place of Performance; No Relocation. Executive shall be based at the Company’s
principal offices in Miami, Florida, subject to such reasonable travel as may be required in the
performance of his duties. The Company represents to Executive that it intends to relocate the
principal offices of the Company to Fort Lauderdale, Florida, to where Executive shall be moving.
3. Compensation and Benefits.
(a) Base Salary. The Company agrees to pay to Executive a base salary
(“Base Salary”) at the annual rate of $400,000. The Compensation Committee of the
Board of Directors of the Company (the “Compensation Committee”) may determine in its sole
discretion to increase, but not decrease, the Base Salary. Payments of the Base Salary shall be
payable in equal installments in accordance with the Company’s standard payroll practices.
(b)
Sign On Bonus. Within five business days after the
commencement of the Term, the Company shall pay Executive a one-time cash bonus of $150,000. If
within one year of the commencement of the Term, Executive’s employment with the Company is
terminated by the Company for Cause (as defined below) or by Executive without Good Reason (as
defined below), Executive shall be required to repay the Company, within 30 days of such
termination of employment, the amount of the one-time bonus provided for in this Section 3(b).
(c) Annual Incentive Bonus Plan. Executive shall be eligible to
receive an annual cash incentive bonus (the “Annual Bonus”) as may be determined by the
Compensation Committee in its discretion pursuant to the terms of the Company’s annual incentive
plan, as it may be amended from time to time. The Annual Bonus, if any, shall be paid to Executive
when bonuses are paid by the Company to other senior executives of the Company.
(d) Option Award. As soon as reasonably practicable, Bond Street Holdings, LLC, a
Delaware limited liability company (“Holdings”) shall grant Executive an option to purchase
150,000 shares of Holdings Class A Interests (the “Shares”), which option shall be subject
to the provisions of Bond Street Holdings, LLC 2009 Option Plan, as it may be amended from time to
time (the “Option Plan”), and a stock option agreement from Holdings in favor of Executive
(the “Option Agreement”). The terms and conditions of the Option Agreement shall otherwise
be consistent with the terms contained in stock option agreements provided to the President and
Chief Operating Officer of the Company. The option with respect to 1/3 of the underlying Shares
shall vest on each of the first, second and third anniversaries of the option grant.
Notwithstanding the foregoing, 100% of the option shall become immediately vested upon a change of
control (as shall be defined in the Option Agreement) of either the Company or Holdings or upon a
termination of Executive’s employment with the Company as a result of his death or Disability (as
defined below). In the event that Executive’s employment with the Company is terminated by the
Company without Cause (as defined below) or by Executive for Good Reason (as defined below), the
portion of the options that would have become vested upon the next anniversary of the grant date
shall immediately become vested upon such termination of employment. The vested portion of the
option shall not be exercisable prior to January 25, 2013. The parties hereto acknowledge that the
grant of the option pursuant to this Section 3(d) and its terms are subject to applicable
regulatory approval/non-objection (including written non-objection under paragraphs 8 and 9 of the
FDIC Order of January 22, 2010 applicable to the Company and Holdings). Executive shall be eligible
to receive additional annual incentive option awards pursuant to the Option Plan as may be
determined by the Administrator of the Plan.
(e) Benefits and Perquisites. Executive shall be entitled to participate in, to the
extent Executive is otherwise eligible under the terms thereof, the benefit plans and programs, and
receive the benefits and perquisites, generally provided by the Company to executives of the
Company, including without limitation family medical insurance. Notwithstanding the
foregoing, Executive shall not be entitled to participate in any Company severance plan other than
as provided specifically herein. Executive shall be entitled to four (4) weeks annual paid vacation
in accordance with Company policy.
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(f) Business Expenses. The Company agrees to reimburse
Executive
for all reasonable and necessary travel, business entertainment and other business expenses
incurred by Executive in connection with the performance of his duties under this Agreement in
accordance with, and subject to, the Company’s standard policies. Such reimbursements shall be made
by the Company on a timely basis upon submission by Executive of vouchers in accordance with the
Company’s standard procedures. In addition, the Company shall provide Executive with either
an appropriate monthly automobile allowance or an appropriate automobile, and shall
cover the costs associated with the operation of the automobile, including insurance, maintenance
and fuel.
(g) Relocation Benefits. The Company shall provide Executive with a relocation package
as reasonably determined by the Board and shall include (i) a loan at market terms and rate for
the purchase of a primary residence in the Fort Lauderdale, Florida metropolitan area, in the
principal amount of up to 90% of the loan to value ratio of the property, with a 30-year fixed rate
of interest, (ii) up to six (6) months’ temporary housing assistance, (iii) up to six (6) months’
of mortgage carrying costs on Executive’s current principal residence, (iv) up to two family house
hunting trips to South Florida, (v) assistance with the sale of Executive’s current principal
residence including payment of broker’s commission, and (vi) payment for the reasonable
costs of moving of furniture and personal effects as reasonably determined by the Board. Prior to
Executive’s relocation, the Company shall reimburse Executive for all reasonable out-of-town
travel and other reasonable expenses. The Company shall provide Executive with a full tax gross-up
with respect to any payments or reimbursements under this Section 3(g) which is taxable to
Executive. Requests for reimbursement must be submitted in accordance with the Company’s
reimbursement policies, as in effect from time to time. Reimbursements will be made as soon as
administratively practicable following approval
of the reimbursement, but in no event later than March 15th of the year following
Executive’s taxable year in which the expenses are incurred. If within one year of the
commencement of the Term, Executive’s employment with the Company is terminated by the Company for
Cause or by Executive without Good Reason, Executive shall be required to repay the Company,
within 30 days of such termination of employment, the
Company’s costs (i.e., services
provided and reimbursements) related to Executive’s relocation.
(h) Payment. Payment of all compensation and benefits to Executive specified in this
Section 3 and in Section 4 of this Agreement (i) shall be made in accordance with the relevant
Company policies in effect from time to time to the extent the same are consistently applied,
including normal payroll practices, and (ii) shall be subject to all legally required and
customary withholdings.
(i) Cessation of Employment. In the event Executive shall cease to be employed by the
Company for any reason, then Executive’s compensation and benefits shall cease on the date of such
event, except as otherwise specifically provided herein or in any applicable employee benefit plan
or program or as required by law.
4. Compensation Following Termination. Executive shall be entitled only to the
following compensation and benefits upon termination of his employment:
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(a) General. On any termination of Executive’s employment, he shall be
entitled to:
(i) any accrued but unpaid Base Salary and unused vacation
through the date of termination, which amount shall be payable within ten (10) working days
of the date of termination;
(ii) any accrued but unpaid expenses required to be reimbursed in accordance with
Sections 3(f) and 3(g) of this Agreement;
(iii) receive any benefits to which he may be entitled upon
termination of his employment pursuant to the plans and programs referred to in Section 3(e)
hereof (other than severance plans and programs) or as may be required by applicable law; and
(iv) receive any amounts or benefits to which he may be
entitled upon termination of his employment pursuant to the plans and agreement referred to in
Sections 3(c) and 3(d) hereof in accordance with the terms of such plans and agreement.
(b) Termination by the Company for Cause; Termination by Executive
Without Good Reason. In the event that Executive’s employment is terminated prior to the
expiration of the Term (i) by the Company for Cause (as defined below) or (ii) by Executive without
Good Reason (as defined below), Executive (or his estate, as the case may be) shall be entitled
only to those items identified in Section 4(a).
(c) Termination by Reason of Disability. In the event that Executive’s employment is
terminated prior to the expiration of the Term by reason of Executive’s Disability (as defined
below), Executive shall be entitled only to the following:
(i) those items identified in Section 4(a);
(ii) if Executive timely elects COBRA continuation coverage,
the Company will pay through the COBRA Payment End Date (as defined below) the monthly premiums
for the level of coverage Executive maintained on the date of termination. The “COBRA Payment
End Date” shall be the earlier of (A) eighteen months following the date of termination and
(B) the date Executive becomes employed by a third party and is eligible for coverage under the
group benefits plan of the new employer. If during the period Executive is receiving this benefit,
Executive obtains new employment and becomes eligible for coverage under the group benefits plan
of the new employer, Executive must promptly notify the Company in writing of such eligibility;
and
(iii) the continued payment of Base Salary through the end of
the Term (determined immediately prior to the termination of Executive’s employment), less any
disability benefits provided to Executive by the Company or under any disability insurance paid for
or for which premiums paid by Executive were reimbursed by the Company.
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(d) Termination by Reason of Death. In the event that Executive’s employment is
terminated prior to the expiration of the Term by reason of Executive’s death, Executive shall be
entitled only to the following:
(i) those items identified in Section 4(a);
(ii) if Executive’s spouse timely elects COBRA continuation
coverage, the Company will pay the monthly premiums during the COBRA continuation coverage period
for the level of coverage Executive maintained prior to his death; and
(iii) the continued payment of Base Salary to Executive’s estate through the end of the
Term (determined immediately prior to Executive’s death).
(e) Termination by the Company Without Cause or by Executive for Good Reason. In the
event that Executive’s employment is terminated prior to the expiration of the Term (x) by the
Company without Cause or (y) by Executive for Good Reason, Executive shall be entitled only to the
following:
(i) those items identified in Section 4(a);
(ii) if Executive timely elects COBRA continuation coverage,
the Company will pay through the COBRA Payment End Date the monthly premiums for the level of
coverage Executive maintained on the date of termination, provided that if during the period
Executive is receiving this benefit, Executive obtains new employment and becomes eligible for
coverage under the group benefits plan of the new employer, Executive must promptly notify the
Company in writing of such eligibility; and
(iii) the payment of an amount equal to the product of one (1)
times the sum of (A) Executive’s Base Salary (as determined immediately prior to Executive’s
termination of employment) and (B) an amount equal to the annual bonus paid or payable by Company
to Executive for the annual bonus period ended immediately prior to year in which his employment
was terminated, which amount shall be payable in equal installments during the twelve (12) months
following the date of termination in accordance with the Company’s normal payroll practices (the
“Severance Pay”).
(f)
Termination by Executive in Connection With a Change of
Control. In the event that Executive’s employment is terminated prior to the expiration of
the Term within three (3) months before or twelve (12) months following a Change of Control (i) by
the Company without Cause or (ii) by Executive for Good Reason or in the event Executive terminates
his employment for any reason during the seventh calendar month following a Change of Control that
occurs prior to the expiration of the Term, Executive shall be entitled to the payments and
benefits provided in Section 4(e) except that the Severance Pay shall be an amount equal to product
of two (2) times the sum of (A) Executive’s Base Salary (as determined immediately prior to
Executive’s termination of employment) and (B) an amount equal to the annual bonus paid or payable
by Company to Executive for the annual bonus period ended immediately prior to year in which his
employment was terminated, which amount shall be payable in equal installments during the
twenty-four (24) months following the date of termination in accordance with the Company’s normal
payroll practices.
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(g)
Definitions of Cause, Good Reason, Disability, and Change of
Control.
(i) For purposes of this Agreement, the term “Cause” shall
mean any of the following: (A) Executive has misappropriated any funds or property of the Company
or its affiliates, or has willfully destroyed property of the Company or its affiliates; (B)
Executive has been convicted of (1) a felony or (2) any crime (x) involving fraud, dishonesty or
moral turpitude or (y) that materially impairs Executive’s ability to perform his duties and
responsibilities with the Company or that causes material damage to the Company or its affiliates
or their operations or reputation; (C) Executive has violated any banking law or regulation,
memorandum of understanding, cease and desist order, or other agreement with any banking agency
having jurisdiction over the Company which has resulted or is reasonably likely to result in
damage to the Company or its affiliates; (D) Executive has engaged in any other willful misconduct
which constitutes a breach of fiduciary duty or the duty of loyalty to the Company or its
affiliates and which has resulted or is reasonably likely to result in material damage to the
Company or its affiliates; (E) Executive’s willful and material failure to perform his duties with
the Company (other than as a result of total or partial incapacity due to physical or mental
illness), provided, however, that, if susceptible of cure, a termination by the Company for Cause
under this Section 4(g)(i)(E) shall be effective only if, within 15 days following delivery of a
written notice by the Company to Executive that Executive has materially failed to perform his
duties and that reasonably identifies the reason(s) for such determination, Executive has failed
to cure such failure to perform; (F) Executive (1) has willfully violated the Company’s material
policies or rules, which violation has resulted or is reasonably likely to result in material
damage to the Company or its affiliates, or (2) is guilty of gross negligence or willful
misconduct in the performance of his duties with the Company, which has resulted or is reasonably
likely to result in material damage to the Company or its affiliates, provided, however,
that, if susceptible of cure, a termination by the Company for Cause under this Section 4(g)(i)(F)
shall be effective only if, within 15 days following delivery of a written notice by the Company
specifying the nature of the breach, Executive has materially failed to correct the same; or (G)
Executive has materially breached any material provisions of this Agreement, provided, however,
that if susceptible of cure, a termination by the Company for Cause under this Section 4(g)(i)(G)
shall be effective only if, within 15 days following delivery to Executive that Executive has
materially breached a material provision of this Agreement and reasonably identifies the reason(s)
for such determination, Executive has failed to cure such breach.
(ii) For purposes of this Agreement, the term “Good
Reason”
shall mean any of the following: (A) Executive ceases to be a senior executive of the Company;
(B) the relocation of Executive’s principal work location more than 50 miles from the greater
Miami or Fort Lauderdale, Florida metropolitan area; (C) the failure of the Company to indemnify
the Executive (including the prompt advancement of expenses), or to maintain directors’ and
officers’ liability insurance coverage for the Executive, as required hereunder; or (D) the
Company decreases or materially fails to pay the compensation described in Section 3 of this
Agreement (in accordance with, and subject to, such provisions); provided, however, that a
termination by Executive for Good Reason under this Section 4(g)(ii) shall be effective only if,
within 30 days following delivery of a written notice by Executive to the Company that Executive
is terminating his employment for Good Reason and that reasonably identified the reason(s) for
such determination, such notice to be given not later than 90 days after the
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occurrence of the event(s) claimed to constitute Good Reason, the Company has failed to cure the
circumstances giving rise to Good Reason.
(iii) For purposes of this Agreement, a “Disability” shall occur
in the event Executive is unable to perform the duties and responsibilities contemplated under this
Agreement for a period of either (A) 90 consecutive days or (B) 6 months in any 12-month period due
to physical or mental incapacity or impairment. During any period that Executive fails to perform
Executive’s duties hereunder as a result of incapacity or
impairment due to physical or mental
illness (the “Disability Period”), Executive shall continue to receive the compensation and
benefits provided by Section 3 of this Agreement until Executive’s employment hereunder is
terminated; provided, however, that the amount of Base Salary and benefits received by Executive
during the Disability Period shall be reduced by the aggregate amounts, if any, payable to
Executive under any disability benefit plan or program provided to Executive by the Company in
respect of such period.
(iv) For purposes of this Agreement, a “Change of Control”shall be
deemed to have occurred if:
(A) any “person” (together with any other persons
acting as a group) is or becomes a “beneficial owner” (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, (the “Act”)) directly or indirectly, of securities of the Company
representing more than 50% of the total voting power represented by then outstanding voting
securities of the Company (calculated in accordance with Rule 13d-3 of the Act); provided, that the
term “persons” is defined in Sections 13(d) and 14(d) of the Act shall not include a trustee or
other fiduciary holding securities under any employee benefit plan of the Company; or
(B) there shall be consummated a merger of the
Company, the sale or disposition by the Company of all or substantially all of its assets, or any
other business combination of the Company with any other corporation, other than any such merger or
business combination which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least 50% of the total voting power
represented by the voting securities of the Company or such surviving entity outstanding
immediately after such merger or business combination; or
(C) a majority of the directors who constituted the
Board of Directors of the Company at the beginning of any 12-month period are replaced by
directors whose appointment or election is not endorsed by a majority of the members of the Board
of Directors before the date of the appointment or election.
(h) Effect of Material Breach of Section 5 on Compensation Following Termination of
Employment. If, at the time of termination of Executive’s employment or any time thereafter,
Executive is in material breach of any covenant contained in Section 5 hereof (which breach, if
susceptible to cure, continues unremedied following 15 days written notice from the Company to
Executive), except as otherwise required by law, Executive shall not be entitled to any payments
(or if payments have commenced, any continued payment) under this Section 4.
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(i) No Further Liability: Release. Other than providing the compensation and benefits
provided for in accordance with this Section 4, the Company shall have no further obligation or
liability to Executive or any other person under this Agreement. The payment of any amounts pursuant
to this Section 4 (other than payments required by law) is expressly conditioned upon the delivery
by Executive to the Company, within 45 days after the date of the termination of Executive’s
employment (and the revocation period for the release lapsing without revocation within such 45 day
period), of a general release in form and substance reasonably
satisfactory to the Company of any
and all claims Executive may have against the Company and its directors, officers, employees,
subsidiaries, affiliates, stockholders, successors, assigns, agents and representatives. At the
time Executive delivers his general release to the Company, the Company shall deliver a release of
its claims against Executive other than those claims which would arise from Executive’s fraudulent,
criminal or otherwise intentional wrongful misconduct or from Executive’s knowing violation of
federal or state laws or regulations. The payments to Executive subject to receipt of the release
shall be made to Executive at the later of (A) such times as specified in the applicable provisions
of this Section 4, (B) after the end of the revocation period for the release has lapsed without
revocation, and (C) if the fifty-fifth (55th) calendar day following the date of
termination is in a different calendar year than the date of termination, then on the fifty-fifth
(55th) calendar day.
5. Exclusive Employment; Noncompetition; Nonsolicitation; Nondisclosure
of Proprietary Information; Surrender of Records; Inventions and Patents.
5.1. No Conflict; No Other Employment. During the period of Executive’s
employment with the Company, Executive shall not: (i) engage in any activity which conflicts or
interferes with or derogates from the performance of Executive’s duties hereunder nor shall
Executive engage in any other business activity, whether or not such business activity is pursued
for gain or profit, except as approved in advance in writing by the Company; provided,
however, Executive shall be entitled to manage his personal investments (including holding up to 5%
of the outstanding voting securities of any public company) and otherwise attend to his personal
affairs (including providing services as an officer, director or trustee of any charitable or
non-profit entity) in a manner that does not unreasonably interfere with his responsibilities
hereunder, or (ii) accept or engage in any other employment, whether as an employee or consultant
or in any other capacity, and whether or not compensated therefor.
5.2.
Noncompetition; Nonsolicitation.
(a) Executive acknowledges and recognizes the highly competitive
nature of the Company’s business and that access to the Company’s confidential records and
proprietary information and exposure to customers of the Company renders him special and unique
within the Company’s industry. In consideration of the payment by the Company to Executive of
amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without
limitation, pursuant to Sections 3 and 4 hereof) and other obligations undertaken by the Company
hereunder, Executive agrees that during (i) his employment with the Company, and (ii) the period
beginning on the date of termination of employment and ending on the first anniversary of the date
of termination of employment (the “Covered Time”), Executive shall not, directly or
indirectly, engage (as owner, investor, partner, stockholder, employer, employee, consultant,
advisor, director or otherwise) in any Competing Business in any
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Restricted Area (each as defined below), provided that the provisions of this Section 5.2(a) will
not be deemed breached merely because Executive owns less than 5% of the outstanding common stock
of a publicly-traded company. For purposes of this Agreement, “Competing Business” shall
mean any community or regional commercial bank, and “Restricted Area” shall mean the State
of Florida.
(b) In further consideration of the payment by the Company to Executive of amounts that may
hereafter be paid to Executive pursuant to this Agreement (including, without limitation, pursuant
to Sections 3 and 4 hereof) and other obligations undertaken by the Company hereunder, Executive
agrees that during his employment and the Covered Time, he shall not, directly or indirectly, (i)
solicit, encourage or attempt to solicit or encourage any of the employees, agents, consultants or
representatives of the Company or any of its affiliates to terminate his, her, or its relationship
with the Company or such affiliate; (ii) solicit, encourage or attempt to solicit or encourage any
of the employees, agents, consultants or representatives of the Company or any of its affiliates to
become employees, agents, representatives or consultants of any other person or entity; (iii)
solicit or attempt to solicit any customer, vendor or distributor of the Company or any of its
affiliates in connection with a Competing Business with respect to any product or service being
furnished, made, sold, rented or leased by the Company or such affiliate; or (iv) persuade or seek
to persuade any customer, vendor or distributor of the Company or any affiliate to cease to do
business or to reduce the amount of business which such customer, vendor or distributor has
customarily done or contemplates doing with the Company or such affiliate, whether or not the
relationship between the Company or its affiliate and such customer, vendor or distributor was
originally established in whole or in part through Executive’s efforts. For purposes of this
Section 5.2(b) only, during the Covered Time, the terms “customer,” “Vendor” and
“distributor” shall mean a customer, vendor or distributor who has done business with the
Company or any of its affiliates within twelve months preceding the termination of Executive’s
employment.
(c) Executive understands that the provisions of this Section 5.2 may
limit his ability to earn a livelihood in a business similar to the business of the Company or its
affiliates but nevertheless agrees and hereby acknowledges that the consideration provided under
this Agreement, including any amounts or benefits provided under Sections 3 and 4 hereof and other
obligations undertaken by the Company hereunder, is sufficient to justify the restrictions
contained in such provisions. In consideration thereof and in light of Executive’s education,
skills and abilities, Executive agrees that he will not assert in any forum that such provisions
prevent him from earning a living or otherwise are void or unenforceable or should be held void or
unenforceable.
5.3. Proprietary Information. Executive acknowledges that during the course of his
employment with the Company he will necessarily have access to and make use of proprietary
information and confidential records of the Company and its affiliates. Executive covenants that
he shall not during his employment or at any time thereafter, directly or indirectly, use for his
own purpose or for the benefit of any person or entity other than the Company, nor otherwise
disclose to any individual or entity, any proprietary information, unless such disclosure is made
in the good faith performance of Executive’s duties hereunder, has been authorized in writing by
the Company, or is otherwise required by law. Executive acknowledges and understands that the term
“proprietary information” includes, but is not limited to: (a) the
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software products, programs, applications, and processes utilized by the Company or any of its
affiliates; (b) the name and/or address of any customer or vendor of the Company or any of its
affiliates or any information concerning the transactions or relations of any customer or vendor of
the Company or any of its affiliates with the Company or such affiliate or any of its or their
partners, principals, directors, officers or agents; (c) any information concerning any product,
technology, or procedure employed by the Company or any of its affiliates but not generally known
to its or their customers, vendors or competitors, or under development by or being tested by the
Company or any of its affiliates but not at the time offered generally to customers or vendors; (d)
any information relating to the computer software, computer systems, pricing or marketing methods,
sales margins, cost of goods, cost of material, capital structure, operating results, borrowing
arrangements or business plans of the Company or any of its affiliates; (e) any information which
is generally regarded as confidential or proprietary in any line of business engaged in by the
Company or any of its affiliates; (f) any business plans, budgets, advertising or marketing plans;
(g) any information contained in any of the written or oral policies and procedures or manuals of
the Company or any of its affiliates; (h) any information belonging to customers or vendors of the
Company or any of its affiliates or any other person or entity which the Company or any of its
affiliates has agreed to hold in confidence; (i) any inventions, innovations or improvements
covered by this Agreement; and (j) all written, graphic and other material relating to any of the
foregoing. Executive acknowledges and understands that information that is not novel or copyrighted
or patented may nonetheless be proprietary information. The term “proprietary information” shall
not include information that is or becomes generally available to and known by the public or
information that is or becomes available to Executive on a non-confidential basis from a source
other than the Company, any of its affiliates, or the directors, officers, employees, partners,
principals or agents of the Company or any of its affiliates (other than as a result of a breach of
any obligation of confidentiality).
5.4. Confidentiality and Surrender of Records. Executive shall not during his
employment or at any time thereafter (irrespective of the circumstances under which Executive’s
employment by the Company terminates), except as required by law, directly or indirectly publish,
make known or in any fashion disclose any confidential records to, or permit any inspection or
copying of confidential records by, any individual or entity other than in the course of such
individual’s or entity’s employment or retention by the Company. Upon termination of employment
for any reason or request by the Company, Executive shall deliver promptly to the Company all
property and records of the Company or any of its affiliates, including, without limitation, all
confidential records, or if then acceptable to the Company, certify to the Company in writing as to
their destruction. For purposes hereof, “confidential records” means all correspondence,
reports, memoranda, files, manuals, books, lists, financial, operating or marketing records,
magnetic tape, or electronic or other media or equipment of any kind which may be in Executive’s
possession or under his control or accessible to him which contain any proprietary information.
All property and records of the Company and any of its affiliates (including, without limitation,
all confidential records) shall be and remain the sole property of the Company or such affiliate
during Executive’s employment with the Company and thereafter.
5.5. Inventions and Patents. All inventions, innovations or
improvements (including policies, procedures, products, improvements, software, ideas and
discoveries, whether patent, copyright, trademark, service xxxx, or otherwise) conceived or
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made by Executive, either alone or jointly with others, in the course of his employment by the
Company, belong to the Company. Executive will promptly disclose in writing such inventions,
innovations or improvements to the Company and perform all actions reasonably requested by the
Company to establish and confirm such ownership by the Company, including, but not limited to,
cooperating with and assisting the Company in obtaining patents, copyrights, trademarks, or service
marks for the Company in the United States and in foreign countries.
5.6. Mutual Non-Disparagement. Executive shall not, at any time during or after his
employment with the Company, make or publish any derogatory, unfavorable, negative, disparaging,
false, damaging or deleterious written or oral statements or remarks regarding the Company or any
of its affiliates or any members of their respective boards of directors or managements, or any of
their respective business affairs or performance. The Company, members of its Board and its senior
executives shall not, at any time during or after Executive’s employment with the Company, make or
publish any derogatory, unfavorable, negative, disparaging, false, damaging or deleterious written
or oral statements or remarks regarding Executive.
5.7.
Enforcement. Executive acknowledges and agrees that, by virtue of his
position, his services and access to and use of confidential records
and proprietary information,
any violation by him of any of the undertakings contained in this Section 5 would cause the Company
and/or its affiliates immediate, substantial and irreparable injury for which it or they have no
adequate remedy at law, Accordingly, Executive agrees and consents to the entry of an injunction
or other equitable relief by a court of competent jurisdiction restraining any violation or
threatened violation of any undertaking contained in this Section 5. Executive waives posting by
the Company or its affiliates of any bond otherwise necessary to secure such injunction or other
equitable relief. Rights and remedies provided for in this Section 5 are cumulative and shall be
in addition to rights and remedies otherwise available to the parties hereunder or under any other
agreement or applicable law.
6. Assignment and Transfer.
(a) Company. This Agreement shall inure to the benefit of and be enforceable by, and
may be assigned by the Company without Executive’s consent to, any purchaser of all or
substantially all of the Company’s business or assets, any successor to the Company or any assignee
thereof (whether direct or indirect, by purchase, merger, consolidation
or otherwise).
(b) Executive. The parties hereto agree that Executive is obligated
under this Agreement to render personal services of a special, unique, unusual, extraordinary and
intellectual character, thereby giving this Agreement special value. Executive’s rights and
obligations under this Agreement shall not be transferable by Executive by assignment or otherwise,
and any purported assignment, transfer or delegation thereof shall be void; provided, however, that
if Executive shall die, all amounts then payable to Executive hereunder shall be paid in accordance
with the terms of this Agreement to Executive’s estate.
11
7. Miscellaneous.
(a) Other Obligations. Executive represents and warrants that
neither
Executive’s employment with the Company nor Executive’s performance of Executive’s obligations
hereunder will conflict with or violate or otherwise are inconsistent with any other obligations,
legal or otherwise, which Executive may have. Executive covenants that he shall perform his
duties hereunder in a professional manner and not in conflict or violation, or otherwise
inconsistent with other obligations legal or otherwise, which Executive may have.
(b) Nondisclosure. Executive will not disclose to the Company, use, or induce the
Company to use, any proprietary information, trade secrets or confidential business information of
others.
(c) Cooperation. Following termination of employment with the Company for any
reason, Executive shall cooperate with the Company, as reasonably requested by the Company, to
effect a transition of Executive’s responsibilities and to ensure that the Company is aware of all
matters being handled by Executive. The Company shall reimburse Executive’s reasonable expenses
incurred in connection with such pre-approved work.
(d) Assistance in Proceedings, Etc. Executive shall, during and after his
employment, upon reasonable notice, furnish such information and proper assistance to the Company
as may reasonably be required by the Company in connection with any legal or quasi-legal
proceeding, including any external or internal investigation, involving the Company or any of its
affiliates. The Company shall reimburse Executive’s reasonable expenses incurred in connection
with the foregoing obligations.
(e) Mitigation. Executive shall not be required to mitigate damages
or
the amount of any payment provided to him under Section 4 of this Agreement by seeking other
employment or otherwise, nor shall the amount of any payments provided to Executive under Section 4
be reduced by any compensation earned by Executive as the result of employment by another employer
after the termination of Executive’s employment or otherwise.
(f) No Right of Set-off Etc. The obligation of the Company to make
the payments provided for in this Agreement and otherwise to perform its obligations hereunder
shall not be affected by any circumstances, including without limitation, set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have against Executive or
others.
(g) Protection of Reputation. During Executive’s employment with
the Company and thereafter, Executive agrees that he will take no action which is intended, or
would reasonably be expected, to harm the reputation of the Company or any of its affiliates or
which would reasonably be expected to lead to unwanted or unfavorable publicity to the Company or
its affiliates. Nothing herein shall prevent Executive from making any truthful statement in
connection with any investigation by the Company or any governmental authority or in any legal
proceeding.
(h) Governing Law. This Agreement shall be governed by and construed
(both as to validity and performance) and enforced in accordance with the internal
12
laws of the State of Florida applicable to agreements made and to be performed wholly
within such jurisdiction, without regard to the principles of conflicts of law or where the
parties are located at the time a dispute arises.
(i) Arbitration.
(i) General. Executive and the Company
specifically,
knowingly, and voluntarily agree that they shall use final and binding arbitration to resolve any
dispute (an “Arbitrable Dispute”) between Executive, on the one hand, and the Company (or
any affiliate of the Company), on the other hand. This arbitration agreement applies to all
matters arising out of or related to this Agreement, any other agreement between Executive and the
Company, or Executive’s employment with the Company or the termination thereof, including without
limitation disputes about the validity, interpretation, or effect of this Agreement, or alleged
violations of it, any payments due hereunder and all claims arising out of any alleged
discrimination, harassment or retaliation, including, but not limited to, those covered by Title
VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967,
as amended, and the Americans With Disabilities Act or any other federal, state or local law
relating to discrimination in employment, provided, however, that disputes under the
Indemnification Agreement shall not be arbitrable pursuant to this provision.
(ii) Injunctive Relief. Notwithstanding anything to the
contrary
contained herein, the Company and any affiliate of the Company (if applicable) shall have the
right to seek injunctive or other equitable relief from a court of competent jurisdiction to
enforce Section 5 of this Agreement. For purposes of seeking enforcement of Section 5, the
Company and Executive hereby consent to the jurisdiction of any state or federal court sitting in
the county of Xxxxxxx, State of Florida.
(iii) The Arbitration. Any arbitration pursuant to
this Section
7(i) will take place in Miami, Florida, under the auspices of the American Arbitration
Association, in accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association then in effect, and before a panel of three arbitrators
selected in accordance with such rules. Judgment upon the award rendered by the arbitrators may
be entered in any state or federal court sitting in the County of Miami-Dade, State of Florida.
(iv) Fees and Expenses. In any arbitration pursuant
to this
Section 7(i), except as otherwise required by law, the non-prevailing party shall reimburse the
prevailing party for the reasonable fees and expenses (including those of attorneys, witnesses, and the arbitrators) incurred by the prevailing party.
(v) Exclusive Forum. Except as permitted by Section
7(i)(ii)
hereof, arbitration in the manner described in this Section 7(i) shall be the exclusive forum for
any Arbitrable Dispute. Except as permitted by Section 7(i)(ii), should Executive or the Company
attempt to resolve an Arbitrable Dispute by any method other than arbitration pursuant to this
Section 7(i), the responding party shall be entitled to recover from the initiating party all
damages, expenses, and attorneys’ fees incurred as a result of that breach.
13
(j) Compliance with Section 409A, The Company makes no representations regarding
the tax implications of the compensation and benefits to be paid to Executive under this Agreement,
including without limit, under Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”). All references in this Agreement to Executive’s termination of employment shall mean his
“separation from service” within the meaning of Section 409A and Treasury regulations promulgated
thereunder. In the event the terms of this Agreement would subject the Executive to the imposition
of taxes and penalties (“409A Penalties”) under Section 409A, the Company and Executive shall
cooperate diligently to amend the terms of this Agreement to avoid such 409A Penalties, to the
extent possible. Notwithstanding any other provision in this Agreement, if as of the date on which
Executive’s employment terminates, Executive is a “specified employee” within the meaning
of Section 409A and the regulations as determined by the Company, then to the extent any amount
payable or benefit provided under this Agreement that the Company reasonably determines would be
nonqualified deferred compensation within the meaning of Section 409A, that under the terms of this
Agreement would be payable prior to the six-month anniversary of Executive’s effective date of
termination, such payment or benefit shall be delayed until the earlier to occur of (a) the
six-month anniversary of such termination date or (b) the date of Executive’s death. In the case of
taxable benefits that constitute deferred compensation, the Company, in lieu of a delay in payment,
may require Executive to pay the full costs of such benefits during the period described in the
preceding sentence and reimburse that Executive for said costs within thirty (30) calendar days
after the end of such period. With respect to any reimbursements under this Agreement, such
reimbursement shall be made on or before the last day of Executive’s taxable year following the
taxable year in which the expense was incurred by Executive. The amount of any expenses eligible
for reimbursement or the amount of any in-kind benefits provided, as the case may be, under this
Agreement during any calendar year shall not affect the amount of expenses eligible for
reimbursement or the amount of any inkind benefits provided during any other calendar year. The
right to reimbursement or to any inkind benefit pursuant to this Agreement shall not be subject to
liquidation or exchange for any other benefit. Each payment made under this Agreement shall be
designated a “separate payment” within the meaning of Section 409A.
(k) Section 280G Gross-up. To the extent permitted by applicable law:
(i) in the event it is determined that any payment or
distribution by the Company to or for the benefit of Executive after the date hereof pursuant to
the terms of this Agreement or otherwise (including without limitation any deferred compensation
plans), determined without regard to any additional payments required under this Section 7(k)(i)
(a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code or
any interest or penalties with respect thereto are incurred by Executive with respect to any such
tax (any such tax, together with any such interest or penalties, are hereinafter collectively
referred to as the “Additional Tax”), then the Executive shall be entitled to receive from
the Company or Holdings an additional payment (a “Gross-Up Payment”) in an amount such
that after payment by the Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including, without limitation, any income taxes (and any interest and
penalties imposed with respect thereto) and Additional Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Additional Tax imposed upon the
Payments; provided, however, that notwithstanding the foregoing provisions
14
of this Section 7(k)(i), if it shall be determined that Executive is entitled to a Gross-Up
Payment, but that the amount of the aggregate Payments is less than 110% of the product of (A)
three (3) times (B) the Executive’s Base Amount (as such term is defined in Section 280G of the
Code), then no Gross-Up Payment shall be made to the Executive and the Company shall reduced the
Payments until no amount of the Payments shall be subject to the exercise tax under Section 4999 of
the Code in the following order (unless Executive, to the extent permitted by Section 409A of the
Code, elect another method of reduction by written notice to the Company prior to the Section 280G
event): (i) any cash severance payments (starting with the last payments due), (ii) any other cash
amounts payable to Executive (starting with the last payments due), (iii) any benefits valued as
parachute payments, (iv) acceleration of the vesting of any stock options for which the exercise
price exceeds the then fair market value of the underlying stock (starting with the last vesting
tranches), (v) acceleration of the vesting of any equity award that is not a stock option (starting
with the last vesting tranches) and (vi) acceleration of the vesting of any stock options for which
the exercise price is less then the fair market value of the underlying stock (starting with the
last vesting tranches);
(ii) Subject
to the provisions of Section 7(k)(iii), all other
determinations required to be made under this Section 7(k)(ii), including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by the Company’s public accounting firm
(the “Accounting Firm”). All fees and expenses of the Accounting Firm shall be borne
solely by the Company or Holdings. Any Gross-Up Payment, as determined pursuant to this Section
7(k)(ii), shall be paid by the Company or Holdings to Executive within the earlier of five (5)
business days after the Company’s or Holdings’ receipt of the Accounting Firm’s determination and
the end of Executive’s taxable year next following the taxable year in which Executive pays the
Additional Taxes to which such Gross-Up Payment relates to the applicable taxing authority. Any
determination by the Accounting Firm shall be binding upon the Company or Holdings and Executive;
(iii) Executive shall notify the Company and Holdings in
writing of any claim by the Internal Revenue Service that, if successful, would require the
payment by the Company or Holdings of a Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten (10) business days after Executive is informed in writing of
such claim and shall apprise the Company and Holdings of the nature of such claim and the date on
which such claim is requested to be paid. Executive shall not pay such claim prior to the
expiration of the 30-calendar-day period following the date on which Executive gives such notice
to the Company and Holdings (or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Company or Holdings notifies Executive in writing prior
to the expiration of such period that it desires to contest such claim, Executive shall: (i) give
the Company any information reasonably requested by the Company or Holdings relating to such
claim; (ii) take such action in connection with contesting such claim as the Company or Holdings
shall reasonably request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably selected by the Company
or Holdings; (iii) cooperate with the Company and Holdings in good faith in order effectively to
contest such claim, and (iv) permit the Company and Holdings to participate in any proceedings
relating to such claim; provided, however, that the Company and Holdings shall bear and pay
directly all costs and expenses (including
15
additional interest and penalties) incurred in connection with such contest and shall
indemnify and hold Executive harmless, on an after-tax basis, for any Additional Tax or income tax
(including interest and penalties with respect thereto) imposed as a result of such representation
and payment of costs and expenses. Any amount the Company or Holdings is obligated to pay or
indemnify under this Section 7(k)(iii) shall be paid or indemnified on or before the last day of
the calendar year following the calendar year in which the expense, cost or Additional Tax was
incurred. Without limitation on the foregoing provisions of this Section 7(k)(iii), the Company or
Holdings shall control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its sole option, either
direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any
permissible manner, and Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as
the Company shall determine; provided further, that if the Company or Holdings directs Executive to
pay such claim and xxx for a refund, the Company or Holdings shall advance the amount of such
payment to Executive and shall indemnify and hold Executive harmless, on an after-tax basis, from
any Additional Tax or income tax (including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed income with respect to such advance.
The Company’s or Holdings’ control of the contest shall be limited to issues with respect to which
a Gross-Up Payment would be payable hereunder, and Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue Service or any other
taxing authority; and
(iv) as a result of the uncertainty in the application of Code
Section 4999 at the time of the initial determination by the Accounting Firm hereunder, it is
possible that the Internal Revenue Service (“IRS”) or other agency will claim that a greater or
lesser Additional Tax is due, In the event that the Additional Tax is finally determined to be
less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive
shall repay to the Company or Holdings, at the time that the amount of such reduction in
Additional Tax is finally determined, the portion of the Gross-Up Payment attributable to such
reduction (plus that portion of the Gross-Up Payment attributable to the Additional Tax and taxes
imposed on the Gross-Up Payment being repaid by the Executive) plus interest on the amount of such
repayment at 120% of the rate provided in Code Section l274(b)(2)(B). In the event that the Excise
Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up
Payment (including by reason of any payment the existence or amount of which cannot be determined
at the time of the Gross-Up Payment), the Company or Holdings shall make an additional Gross Up
Payment in respect of such excess (plus any interest, penalties or additions payable by Executive
with respect to such excess) at the time that the amount of such excess is finally determined.
Executive and the Company or Holdings shall each reasonably cooperate with the other in connection
with any administrative or judicial proceedings concerning the existence or amount of liability
for Additional Tax with respect to the total Payments. The Company or Holdings shall pay all fees
and expenses of Executive relating to a claim by the IRS or other agency.
(l) Entire Agreement. This Agreement (including the plans and
agreements referenced in Section 3) contain the entire agreement and understanding between
the parties hereto in respect of Executive’s employment and supersedes, cancels and annuls the
Prior
16
Agreement and any prior or contemporaneous written or oral agreements, understandings,
commitments and practices between them respecting Executive’s employment.
(m) Amendment. This Agreement may be amended only by a writing which makes express
reference to this Agreement as the subject of such amendment and which is signed by Executive and,
on behalf of the Company, by its duly authorized officer.
(n) Severability. If any provision of this Agreement or the application
of any such provision to any party or circumstances shall be determined by any court of competent
jurisdiction or arbitration panel to be invalid or unenforceable to any extent, the remainder of
this Agreement, or the application of such provision to such person or circumstances other than
those to which it is so determined to be invalid or unenforceable, shall not be affected thereby,
and each provision hereof shall be enforced to the fullest extent permitted by law. If any
provision of this Agreement, or any part thereof, is held to be invalid or unenforceable because of
the scope or duration of or the area covered by such provision, the parties hereto agree that the
court or arbitration panel making such determination shall reduce the scope, duration and/or area
of such provision (and shall substitute appropriate provisions for any such invalid or
unenforceable provisions) in order to make such provision enforceable to the fullest extent
permitted by law and/or shall delete specific words and phrases, and such modified provision shall
then be enforceable and shall be enforced. The parties hereto recognize that if, in any judicial or
arbitral proceeding, a court or arbitration panel shall refuse to enforce any of the separate
covenants contained in this Agreement, then that invalid or unenforceable covenant contained in
this Agreement shall be deemed eliminated from these provisions to the extent necessary to permit
the remaining separate covenants to be enforced. In the event that any court or arbitration panel
determines that the time period or the area, or both, are unreasonable and that any of the
covenants is to that extent invalid or unenforceable, the parties hereto agree that such covenants
will remain in full force and effect, first, for the greatest time period, and second, in the
greatest geographical area that would not render them unenforceable.
(o) Construction. The headings and captions of this Agreement are
provided for convenience only and are intended to have no effect in construing or
interpreting this Agreement. The language in all parts of this Agreement shall be in all cases
construed according to its fair meaning and not strictly for or against the Company or Executive.
As used herein, the words “day” or “days” shall mean a calendar day or days.
(p) Nonwaiver. Neither any course of dealing nor any failure or neglect of either
party hereto in any instance to exercise any right, power or
privilege hereunder or under law
shall constitute a waiver of any other right, power or privilege or of the same right, power or
privilege in any other instance. All waivers by either party hereto must be contained in a written
instrument signed by the party to be charged and, in the case of the Company, by its duly
authorized officer.
(q) Notices. Any notice required or permitted hereander shall
be in writing and shall be sufficiently given if personally delivered or if sent by registered or
certified mail, postage prepaid, with return receipt requested, addressed: (i) in the case of the
Company, to Premier American Bank, National Association, 0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxx, Xxxxxxx 00000, attn: Xxxxxx X. Xxxxx, Chief Executive Officer; and (ii) in the case of
Executive,
17
to Executive’s last known address as reflected in the Company’s records, or to such other address
as Executive shall designate by written notice to the Company. Any notice given hereunder shall be
deemed to have been given at the time of receipt thereof by the person to whom such notice is given
if personally delivered, on the date following delivery to an overnight delivery service for next
day delivery prior to such service’s deadline for such delivery, or on the date that is three days
after the date of mailing if sent by registered or certified mail.
(r) Survival. Cessation or termination of Executive’s employment with the Company
shall not result in termination of this Agreement. The respective obligations of Executive and the
Company as provided in Sections 4, 5, 6 and 7 of this Agreement shall survive the expiration or
early termination of the Term of this Agreement.
(s) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall be deemed to be one and the same
instrument. Signatures delivered by facsimile shall be effective for all purposes.
(t) D&O Insurance; Indemnification. The Company shall maintain, for the benefit of
Executive, director and officer liability insurance in such form and with such limits and
coverages as are reasonably acceptable to Executive, or at least as comprehensive as, and in an
amount that is at least equal to, that maintained by the Company on the date hereof. In addition,
Executive shall be indemnified by the Company against liability as an officer and director of the
Company and any subsidiary or affiliate of the Company to the maximum extent permitted by the
Company’s Charter and/or By-Laws. Executive’s rights under this Section 7(t) shall continue so
long as he may be subject to such liability, whether or not this Agreement may have terminated
prior thereto.
(u) Reimbursement of Legal Expenses. The Company shall reimburse Executive up to
$7,000 for his reasonable legal fees and expenses incurred in connection with the review and
negotiation of this Agreement, the Option Agreement and any other transaction documents in
connection with the transactions contemplated hereby and thereby.
(v) Subject to Regulatory Approval. The parties hereto acknowledge that the
provisions of this Agreement are subject to the approval of the Comptroller of the Currency and
the Federal Deposit Insurance Corporation.
[Signatures on following page]
18
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed on its behalf by
an officer thereunto duly authorized and Executive has duly executed this Agreement, all as of the
date and year first written above.
| PREMIER AMERICAN BANK, | EXECUTIVE: | |||||||
| NATIONAL ASSOCIATION: | ||||||||
By:
|
/s/ Xxxxxxx Xxxx
|
/s/ Xxxxxxx X. Xxxxxxx
|
||||||
| Title: | ||||||||
| ACCEPTED AND AGREED | ||||||||
| With respect only to Sections 3(d) and 7(k): | ||||||||
| BOND STREET HOLDINGS, LLC: | ||||||||
By:
|
/s/ Xxxxxxx Xxxx
|
|||||||
| Title: | ||||||||
19
