EXHIBIT 10.1
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RETENTION AGREEMENT
AGREEMENT, dated as of August 29, 2002, by and between Admiralty Bancorp,
Inc., a Delaware corporation ("COMPANY"), and ______________ ("EMPLOYEE").
WHEREAS, the Employee currently serves as an employee of the Company;
WHEREAS, Royal Bank of Canada, a Canadian chartered bank ("RBC"), RBC
Centura Banks, Inc. ("RBC CENTURA") and Admiralty Bancorp, Inc. (the "SELLER"),
have entered into an Agreement and Plan of Merger, dated as of August 29, 2002
(the "MERGER AGREEMENT"), pursuant to which the Seller will merge with and into
a subsidiary of RBC Centura;
WHEREAS, the Company recognizes the Employee's contribution to the growth
and success of the Company and desires to provide for the continued employment
of the Employee after the "CLOSING DATE" (as defined in the Merger Agreement)
and to make certain changes in the Employee's employment arrangements with the
Company, which the Company has determined will reinforce and encourage the
continued attention and dedication to the Company of the Employee as an employee
of the Company in the best interests of the Company and its shareholders;
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. EMPLOYMENT PERIOD. The Company hereby agrees to employ the Employee,
and the Employee hereby agrees to work in the employ of the Company, subject to
the terms and conditions of this Agreement and the consummation of the "Merger"
(as defined in the Merger Agreement), for the period commencing on the Closing
Date and expiring on the second anniversary of the Closing Date (the "EMPLOYMENT
PERIOD"). Prior to the expiration of the Employment Period, the Company and the
Employee may consider terms of the Employee's continued employment following the
Employment Period.
2. TERMS OF EMPLOYMENT.
(a) POSITION AND DUTIES.
(i) During the Employment Period, the Employee shall serve as
______________________ with the appropriate authority, duties and
responsibilities attendant to such position and any other duties that may
be assigned by the Company.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Employee is entitled, the Employee
agrees to devote substantially all of the Employee's business attention and
time to the business and affairs of the Company and to use the Employee's
reasonable best efforts to perform such responsibilities. During the
Employment Period, it shall not be a violation of this Agreement for the
Employee to (A) serve, with prior approval of the Board, on corporate,
civic or charitable boards or committees, (B) deliver lectures, fulfill
speaking engagements and (C) manage personal investments, so long as such
activities do not interfere with the performance of the Employee's
responsibilities as an employee of the Company in accordance with this
Agreement.
(b) COMPENSATION.
(i) Annual Base Salary. During the Employment Period, the
Employee shall receive an annual base salary of at least $________ ("ANNUAL
BASE SALARY") payable in accordance with the Company's payroll practices.
(ii) Cash Bonus. During the Employment Period, the Employee shall
be eligible to receive a cash bonus ("BONUS") in connection with the
Employee's participation in the [annual short term incentive/sales
tracking] bonus program of RBC Centura, as in effect from time to time, on
terms consistent with similarly situated employees of RBC Centura.
(iii) [Long Term Incentive Plan. During the Employment Period,
the Employee shall be eligible to participate in the long term incentive
plan of RBC Centura ("LONG TERM INCENTIVE PLAN") on terms consistent with
similarly situated employees of RBC Centura.]
(iv) Retention Bonus. As soon as practicable following the second
anniversary of the Closing Date, the Employee shall receive a retention
bonus ("RETENTION BONUS") of $________; provided that the Employee remains
employed by the Company until such second anniversary.
(c) BENEFITS.
(i) Employee Benefit Plans. During the Employment Period, except
as otherwise expressly provided herein, the Employee shall be entitled to
participate in all employee benefit and other plans, practices, policies
and programs and fringe benefits on a basis no less favorable than that
provided to other similarly situated employees of RBC Centura.
(ii) [Car Allowance. During the Employment Period, the Employee
shall be entitled to receive an automobile allowance of $____ per month;
provided that the Employee agrees to comply with all reporting requirements
of the Company, which will not require the submission of mileage reports.]
3. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. The Employee's employment shall terminate
automatically upon the Employee's death during the Employment Period. If the
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Company determines in good faith that the Disability of the Employee has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Employee written notice in accordance with
Section 8(b) of its intention to terminate the Employee's employment. In such
event, the Employee's employment with the Company shall terminate effective on
the 30th day after receipt of such notice by the Employee (the "DISABILITY
EFFECTIVE DATE"), provided that, within the 30 days after such receipt, the
Employee shall not have returned to full-time performance of the Employee's
duties. For purposes of this Agreement, "DISABILITY" shall have the meaning
ascribed under the long term disability plan of RBC Centura.
(b) CAUSE. The Company may terminate the Employee's employment during
the Employment Period with or without Cause. For purposes of this Agreement,
"CAUSE" shall mean:
(i) the failure by the Employee to substantially perform the
Employee's responsibilities, after written demand for substantial
performance has been given by the Company that specifically identifies how
the Employee has not performed such responsibilities, the requirements for
correcting such deficiency and a reasonable period to correct such
deficiency;
(ii) the engaging by the Employee in illegal conduct or gross
misconduct which causes financial or reputational harm to the Company or
its affiliates;
(iii) the conviction of a misdemeanor involving theft or
dishonesty or any felony or a guilty or nolo contendere plea by the
Employee with respect thereto;
(iv) the breach by the Employee of any written policies of the
Company or its affiliates, including the breach of the guiding principles
and code of conduct of the RBC Financial Group ("CODE OF CONDUCT");
(v) the breach by the Employee of Section 5(a), 5(b) or 5(c); or
(vi) the engaging by the Employee in fraud or misappropriation of
the funds or property of the Company or its affiliates.
(c) GOOD REASON. The Employee's employment may be terminated by the
Employee with or without Good Reason. For purposes of this Agreement, "GOOD
REASON" shall mean in the absence of a written consent of the Employee:
(i) any reduction in Annual Base Salary as set forth in Section
2(b)(i), other than an isolated, insubstantial and inadvertent failure not
occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Employee; or
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(ii) any requirement that the Employee shall be based anywhere
more than 40 miles from the office where the Employee is located
immediately prior to the Closing Date.
Notwithstanding the foregoing, placing the Employee on a paid leave, pending the
determination of whether there is a basis to terminate the Employee for Cause,
shall not constitute a "Good Reason" event; provided, further, that, if the
Employee is subsequently terminated for Cause, then the Employee shall repay any
amounts paid by the Company to the Employee during such paid leave period.
(d) NOTICE OF TERMINATION. Any termination by the Company or by the
Employee shall be communicated by Notice of Termination to the other party
hereto given in accordance with Section 8(b). For purposes of this Agreement, a
"NOTICE OF TERMINATION" means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Employee's employment under the
provision so indicated and (iii) if the Date of Termination (as defined below)
is other than the date of receipt of such notice, specifies the Date of
Termination.
(e) DATE OF TERMINATION. "DATE OF TERMINATION" means (i) if the
Employee's employment is terminated by the Company other than for Disability,
the date of receipt of the Notice of Termination or any later date specified
therein within 30 days of such notice, (ii) if the Employee's employment is
terminated by the Employee, 30 days after receipt of the Notice of Termination
(provided, that, the Company may accelerate the Date of Termination to an
earlier date by providing the Employee with notice of such action placing the
Employee on paid leave during such period) and (iii) if the Employee's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Employee or the Disability
Effective Date, as the case may be.
4. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) OTHER THAN FOR CAUSE; FOR GOOD REASON. If, during the Employment
Period, the Company shall terminate the Employee's employment other than for
Cause or Disability, or the Employee shall terminate employment for Good Reason,
the Company shall have no further obligations to the Employee other than:
(i) the Company shall pay to the Employee ratably over the three
(3) months following the Date of Termination (with payments being made at
the beginning of each such month) an amount equal to the sum of (A) the
amount equal to the Employee's Annual Base Salary through the Date of
Termination to the extent theretofore unpaid plus (B) the amount equal to
three (3) months of the Employee's Annual Base Salary as in effect on the
Date of Termination plus (C) the pro-rata portion of the Retention Bonus
calculated for the period from the Closing Date through the Date of
Termination; and
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(ii) to the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Employee any other amounts or benefits
required to be paid or provided or which the Employee is eligible to
receive under any plan, program, policy or practice or other contract or
agreement of the Company and its affiliated companies through the Date of
Termination, (such other amounts and benefits shall be hereinafter referred
to as the "OTHER BENEFITS").
(b) DEATH; DISABILITY. If, during the Employment Period, the
Employee's employment shall terminate on account of death or Disability, the
Company shall have no further obligations to the Employee other than to provide
the Employee (or the Employee's estate) (i) the Annual Base Salary through the
Date of Termination to the extent theretofore unpaid and (ii) the Other
Benefits.
(c) FOR CAUSE. If, during the Employment Period, the Company shall
terminate the Employee's employment for Cause or the Employee terminates the
Employee's employment without Good Reason, the Company shall have no further
obligations to the Employee other than the obligation to pay to the Employee (i)
the Annual Base Salary through the Date of Termination to the extent theretofore
unpaid and (ii) the Other Benefits.
(d) CONDITION. The Company shall not be required to make the payments
and provide the benefits specified in this Section 4 unless the Employee
executes and delivers to the Company an agreement releasing the Company, its
affiliates and its officers, directors and employees from all liability (other
than the payments and benefits due under this Agreement) in a form reasonably
satisfactory to the Company.
5. COVENANTS NOT TO COMPETE OR SOLICIT COMPANY CLIENTS AND EMPLOYEES;
CONFIDENTIAL INFORMATION.
(a) NON-COMPETE. During the Employee's employment with the Company
and during the Protected Period, the Employee shall not directly or indirectly
(without the prior written consent of the Company):
(i) hold a 5% or greater equity (including stock options whether
or not exercisable), voting or profit participation interest in a
Competitive Enterprise, or
(ii) associate (including as a director, officer, employee,
members, partner, consultant, agent or advisor) with a Competitive
Enterprise and in connection with the Employee's association engage, or
directly or indirectly manage or supervise personnel engaged, in any
activity:
(A) that is substantially related to any activity in which
the Employee was engaged with the Company or its affiliates during the 12
months prior to the Date of Termination,
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(B) that is substantially related to any activity for which
the Employee had direct or indirect managerial or supervisory
responsibility with the Company or its affiliates during the 12 months
prior to the Date of Termination, or
(C) that calls for the application of specialized knowledge
or skills substantially related to those used by the Employee in the
Employee's activities with the Company or its affiliates during the 12
months prior to the Date of Termination.
For purposes of this Agreement, "PROTECTED PERIOD" means (i) if the Employee's
employment is terminated by the Employee for any reason that does not constitute
Good Reason or if the Employee's employment is terminated by the Company for
Cause, the remainder of the Employment Period and (ii) if the Employee's
employment is terminated by the Company for any reason except for Cause, a six
(6) month period after the date the Employee's employment is terminated or the
remainder of the Employment Period, whichever is less.
For purposes of this Agreement, "COMPETITIVE ENTERPRISE" means any business or
enterprise that (A) is involved, directly or indirectly, in the business of
banking or other financial services in the State of Florida or (B) holds a 5% or
greater equity, voting or profit participation interest in any enterprise that
engages in such a competitive activity.
(b) NON-SOLICIT. During the Employee's employment with the Company
and during the Protected Period, the Employee shall not, in any manner, directly
or indirectly (without the prior written consent of the Company): (i) Solicit
any Client to transact business with a Competitive Enterprise or to reduce or
refrain from doing any business with the Company, (ii) transact business with
any Client that would cause the Employee to be a Competitive Enterprise, (iii)
interfere with or damage any relationship between the Company and a Client or
(iv) Solicit anyone who is then an employee of the Company (or who was an
employee of the Company within the prior 12 months and a party to a retention
agreement with the Company dated as of the date hereof) to resign from the
Company or to apply for or accept employment with any other business or
enterprise.
For purposes of this Agreement, a "CLIENT" means any client or prospective
client of the Company or its affiliates to whom the Employee provided services,
or for whom the Employee transacted business, or whose identity became known to
the Employee in connection with the Employee's relationship with or employment
by the Company or its affiliates, and "SOLICIT" means any direct or indirect
communication of any kind, regardless of who initiates it, that in any way
invites, advises, encourages or requests any person to take or refrain from
taking any action.
(c) CONFIDENTIAL INFORMATION. The Employee hereby acknowledges that,
as an employee of the Company, the Employee will be making use of, acquiring and
adding to Confidential Information of a special and unique nature and value
relating to the Company and its strategic plan and financial operations. The
Employee further recognizes and acknowledges that all Confidential Information
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is the exclusive property of the Company, is material and confidential, and is
critical to the successful conduct of the business of the Company. Accordingly,
the Employee hereby covenants and agrees that the Employee will use Confidential
Information for the benefit of the Company only and shall not at any time,
directly or indirectly, during the term of this Agreement and thereafter,
divulge, reveal or communicate any confidential information to any person, firm,
corporation or entity whatsoever, or use any Confidential Information for the
Employee's own benefit or for the benefit of others.
For purposes of this agreement, "Confidential Information" includes, but is not
limited to, the following: financial and compensation information, business
strategies, plans, methodologies, client records, client lists, proposals,
training materials, computer software, operations and organizational and
personnel matters (including information regarding any aspect of the Employee's
tenure as an employee of the Company or of the termination of such employment).
(d) SURVIVAL. Any termination of the Employee's employment or of this
Agreement (or breach of this Agreement by the Employee or the Company) shall
have no effect on the continuing operation of this Section 5.
(e) VALIDITY. The terms and provisions of this Section 5 are intended
to be separate and divisible provisions and if, for any reason, any one or more
of them is held to be invalid or unenforceable, neither the validity nor the
enforceability of any other provision of this Agreement shall thereby be
affected; provided, that, if Section 5(a) is finally determined not to be
enforceable as written, the Company's obligation to make or provide any future
payments or benefits under Section 4(a) shall cease. The parties hereto
acknowledge that the potential restrictions on the Employee's future employment
imposed by this Section 5 are reasonable in both duration and geographic scope
and in all other respects. If for any reason any court of competent jurisdiction
shall find any provisions of this Section 5 unreasonable in duration or
geographic scope or otherwise, the Employee and the Company agree that the
restrictions and prohibitions contained herein shall be effective to the fullest
extent allowed under applicable law in such jurisdiction.
(f) CONSIDERATION. The parties acknowledge that this Agreement would
not have been entered into and the benefits described in Section 2 or 4 would
not have been promised in the absence of the Employee's promises under this
Section 5.
(g) CEASE PAYMENTS. In the event that the Employee breaches Section
5(a), 5(b) or 5(c), the Company's obligation to make or provide payments or
benefits under Section 4 shall cease and any payments made thereunder shall be
repaid by the Employee.
(h) NOTICE TO NEW EMPLOYERS. Before the Employee commences employment
with any other person or entity while any of Section 5(a), 5(b), or 5(c) is in
effect, the Employee will provide the prospective employer with written notice
of the provisions of this Section 5 and will deliver a copy of the notice to the
Company.
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6. SUCCESSORS.
(a) This Agreement is personal to the Employee and without the prior
written consent of the Company shall not be assignable by the Employee otherwise
than by will or the laws of descent and distribution, and any purported or
attempted assignment shall be null and void. This Agreement shall inure to the
benefit of and be enforceable by the Employee's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid.
7. DISPUTES.
(a) MANDATORY ARBITRATION. Subject to the provisions of this Section
7, any controversy or claim between the Employee and the Company arising out of
or relating to or concerning this Agreement (including the covenants contained
in Section 5) or any aspect of the Employee's employment with the Company or the
termination of that employment (together, an "EMPLOYMENT MATTER") will be
finally determined by arbitration in Palm Beach County, Florida administered by
the American Arbitration Association (the "AAA") under its Commercial
Arbitration Rules then in effect. However, the AAA's Commercial Arbitration
Rules will be modified in the following ways: (i) each arbitrator will agree to
treat as confidential evidence and other information presented to them, (ii)
there will be no authority to award punitive damages (and the Employee and the
Company agree not to request any such award), (iii) subject to 7(b) below, the
optional Rules for Emergency Measures of Protections will apply, (iv) there will
be no authority to amend or modify the terms of this Agreement except as
provided in Section 8(a) (and the Employee and the Company agree not to request
any such amendment or modification) and (v) a decision must be rendered within
ten business days of the parties' closing statements or submission of
post-hearing briefs.
(b) INJUNCTIONS AND ENFORCEMENT OF ARBITRATION AWARDS. The Employee
or the Company may bring an action or special proceeding in a state or federal
court of competent jurisdiction sitting in Palm Beach County, Florida to
confirm, modify or vacate any arbitration award under Section 7(a). Also, the
Company may bring such an action or proceeding, in addition to its rights under
Section 7(a) and whether or not an arbitration proceeding has been or is ever
initiated, to temporarily, preliminarily or permanently enforce any part of
Section 5 or obtain any other interim, extraordinary or preliminary injunctive
relief available under governing law.
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(c) JURISDICTION AND CHOICE OF FORUM. THE EMPLOYEE AND THE COMPANY
IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED IN PALM BEACH COUNTY, FLORIDA OVER ANY EMPLOYMENT MATTER THAT IS NOT
OTHERWISE ARBITRATED OR RESOLVED ACCORDING TO SECTION 7(A). This includes any
action or proceeding to compel arbitration or to confirm, modify or vacate an
arbitration award. Both the Employee and the Company (i) acknowledge that the
forum stated in this Section 7(c) has a reasonable relation to this Agreement
and to the relationship between the Employee and the Company and that the
submission to the forum will apply even if the forum chooses to apply non-forum
law, (ii) waive, to the extent permitted by law, any objection to personal
jurisdiction or to the laying of venue of any action or proceeding covered by
this Section 7(c) in the forum stated in this Section 7(c), (iii) agree not to
commence any such action or proceeding in any forum other than the stated in
this Section 7(c) and (iv) agree that, to the extent permitted by law, a final
and non-appealable judgment in any such action or proceeding in any such court
will be conclusive and binding on the Employee and the Company. However, nothing
in this Agreement precludes the Employee or the Company from bringing any action
or proceeding in any court for the purpose of enforcing the provisions of
Section 7(a) and this Section 7(c).
(d) WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY LAW, THE
EMPLOYEE AND THE COMPANY WAIVE ANY AND ALL RIGHTS TO A JURY TRIAL WITH RESPECT
TO ANY EMPLOYMENT MATTER.
(e) GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN THAT STATE.
8. MISCELLANEOUS.
(a) The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement may not be amended or
modified otherwise than by a written agreement executed by the parties hereto or
their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, or by facsimile if
to the Company, addressed as follows:
If to the Employee:
at the Employee's primary residential address
as shown on the records of the Company
If to the Company:
RBC Centura
0000 Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, XX 00000
Telecopy Number: (000) 000-0000
Attention: General Counsel
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or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Employee's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Employee or the Company may have hereunder, including, without
limitation, the right of the Employee to terminate employment for Good Reason
pursuant to Section 3(c) or the Company's right to terminate the Employee for
Cause pursuant to Section 3(b) shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Agreement.
(f) It is the parties' intention that this Agreement not be construed
more strictly with regard to the Employee or the Company.
(g) From and after the Closing Date, this Agreement shall supersede
any other employment or severance agreement or arrangements between the parties
(and the Employee shall not be eligible for severance benefits under any plan,
program or policy of the Company).
(h) Any reference to a Section herein is a reference to a section of
this Agreement unless otherwise stated.
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IN WITNESS WHEREOF, the Employee has hereunto set the Employee's hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
EMPLOYEE
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Print Name:
ADMIRALTY BANCORP, INC.
By:
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Name:
Title:
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