1
EXHIBIT 10.1
EMPLOYMENT AGREEMENT
BY AND AMONG
FLORIDA BUSINESS BANCGROUP, INC.
AND
BAY CITIES BANK (IN ORGANIZATION)
AND
XXXXXXX X. XXXXXXX
THIS EMPLOYMENT AGREEMENT ("Agreement") is being entered into this day
of , 1998, by and among Florida Business BancGroup, Inc., a Florida
corporation ("BancGroup"), Bay Cities Bank, in Organization ("Bank"), and
Xxxxxxx X. XxXxxxx ("Employes"). BancGroup and the Bank are collectively
referred to herein as the "Company", and the Company and Employee are
collectively referred to herein as the "Parties".
RECITALS
WHEREAS, the Company wishes to retain Employee as its President and as
Chief Executive Officer ("CEO") of Bank and President of BancGroup, to perform
the duties and responsibilities as are described in this Agreement and as the
Companys' Boards of Directors ("Board") may assign to Employee from time to
time; and
WHEREAS, Employee desires to be employed by the Company and to serve as the
President and Chief Executive Officer and President, as described above, in
accordance with the terms and provisions of this Agreement
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereto represent, warrant, undertake,
covenant and agree as follows:
ARTICLE I.
TERM OF EMPLOYMENT
Company shall employ Employee and Employee shall be employed pursuant to
the terms of this Agreement to perform the services specified in Section 2
herein. The term of employment shall be for one year, commencing on ,
1998 (the "Effective Date"), and terminating , 1999, unless extended or
terminated pursuant to the provisions set forth herein. The Board of Directors
of BancGroup shall review this Agreement and Employee's performance hereunder on
or before , 1999, and annually thereafter, in order to determine
whether to extend the Agreement for a one-year period. The decision to extend
the term of this Agreement for an additional year is within the sole discretion
of the Board, provided that in the absence of notification by either Party
hereto to the other Party of non-extension days prior to the annual
termination date, this Agreement and all of its terms and conditions including
this one shall be automatically renewed for an additional one-year term.
EMPLOYMENT AGREEMENT -- Page 1
November 20, 1998
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ARTICLE II.
POSITION, RESPONSIBILITIES AND DUTIES
During the term of this Agreement, Employee shall serve in the following
capacities and shall fulfill the following responsibilities and duties:
SECTION 2.1. BANCGROUP. Employee shall serve as President and President of
BancGroup, subject to selection by the Board. In such capacity, Employee shall
provide leadership, direction and guidance of BancGroup's activities to assure
short and long-range profitability. Initially, Employee shall work diligently
in the formation of the Bay Cities Bank, a new state-chartered commercial bank
to be located in Tampa, Florida.
SECTION 2.2. BANK. Employee shall also serve as the Bank's President and
Chief Executive Officer when the Bank commences operations, subject to selection
by its Board. In such capacity, Employee shall have the same powers, duties and
responsibilities of supervision and management of the Bank usually accorded to
the President and Chief Executive, Officer of similar financial institutions. In
addition, Employee shall use his best efforts to perform the duties and
responsibilities enumerated in this Agreement and any other duties assigned to
Employee by the Board and to utilize and develop contacts and customers to
enhance the business of the Bank. Specifically, Employee shall devote his full
business time and attention and use his best efforts to accomplish and fulfill
the following duties and responsibilities, as well as other duties assigned to
Employee from time to time by the Board:
(i) manage all personnel of the Bank;
(ii) serve as a member of the Board of Directors (if and when elected
to such a position);
(iii) serve on such committees of the Board as appointed to from time to
time;
(iv) keep the Board informed of important developments concerning the
Bank, industry developments and regulatory initiatives affecting
the Bank;
(v) maintain adequate expense records relating to Employee's
activities on the Bank's behalf;
(vi) establish and implement marketing efforts to increase the business
of the Bank;
(vii) supervise all loans and assist in their proper servicing and
resolution;
(viii) improve the profitability of the Bank in accordance with the
Annual Business Plan as prepared by management and adopted by the
Board; and
(ix) coordinate with the Bank's attorneys and accountants and other
service providers to the extent necessary to further the business
of the Bank, keeping in compliance with government laws and
regulations and otherwise keeping the Bank in as good a financial
and legal posture as possible.
SECTION 2.3. POLICIES AND MANUAL. Employee agrees to comply with the
policies and procedures that are adopted by the Company and implemented from
time to time as will be described in the Employee Manual, including and policies
relating to a "drug free work place". In that regard Employee agrees to submit
to the same testing procedures, if any, which apply to all employees of the
Company. Employee has read and understands the contents of the
EMPLOYMENT AGREEMENT -- Page 2
November 20, 1998
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Employee manual and acknowledges that the Employee Manual may be modified,
amended, supplemented and updated from time to time as may be deemed
appropriate.
ARTICLE III.
COMPENSATION AND STOCK OPTIONS
During the term of this Agreement, Employee shall be compensated as
follows:
SECTION 3.1. BASE SALARY. Until the Bank commences operations, Employee
shall be compensated by BancGroup. Employee shall receive an annual salary of
Eighty Thousand Dollar ($80,000) (the "Base Salary") in bimonthly
installments, in accordance with standard payroll practices, reduced
appropriately by deductions for federal income withholding taxes, social
security taxes and other deductions required by applicable laws. Upon
commencement of the Bank's operations, the annual Base Salary shall be increased
to One Hundred and Twenty Thousand Dollars ($120,000). Such Base Salary shall
then be the minimum Base Salary hereunder and shall be reviewed annually by the
Board of Directors.
SECTION 3.2. OTHER BENEFIT PLANS. During the term of this Agreement, the
Employee will be entitled to participate in and receive the benefits of any
profit-sharing plans, 401(k) plans, deferred compensation plans, or other plans,
benefits and privileges given to employees and executives of the Company which
are currently in effect at the execution of this Agreement or which may come
into existence thereafter to the extent the Employee is otherwise eligible and
qualifies to so participate in and receive such benefits or privileges. Nothing
paid to the Employee under any plan or arrangement presently in effect or made
available in the future shall be deemed to be in lieu of the Base Salary payable
to the Employee pursuant to Section 3.1. herein.
SECTION 3.3. INCENTIVE STOCK OPTIONS. The Company will, designate Employee
as a key employee eligible for the grant of incentive stock options under the
Florida Business BancGroup, Inc. Stock Option Plan ("Stock Option Plan"). In
that connection, the Company will grant to Employee under the terms of the Stock
Option Plan, an option to acquire up to 50,000 shares of BancGroup common stock,
over a five-year period ranging from 30,000 shares if 7 million dollars in
capital is raised to 50,000 shares if 15 million dollars in capital is raised,
all in accordance with the detailed Stock Option Plan provided for officers and
directors of the BancGroup. The grant of the stock options shall be made
strictly in accordance with the terms of the Stock Option Plan and in accordance
with the Company's standard form of Stock Option Agreement. The options will
contain an exercise price of $10.00 per share. As part of the consideration for
the Stock Options. Employee agrees that for a period of one year following any
event of termination defined herein, Employee will not accept employment with
any existing or proposed business organization which then competes or intends to
compete with the Company in Hillsborough County.
This incentive Stock Option is exclusive of the 4,000 shares granted to
Employee as a Founding Director.
SECTION 3.4. VACATION. Employee shall be entitled each year to a vacation
in accordance with the personnel policy established by the Bank's Board of
directors, during which time Employee's compensation shall be paid in full.
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November 20, 1998
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ARTICLE IV.
MEDICAL, LIFE & DISABILITY COVERAGES
SECTION 4.1. MEDICAL BENEFITS. Employee is entitled to Participate in all
medical and health care benefit plans through health insurance, corporate
funds, medical reimbursement plans or other plans, if any, provided by the Bank
for its employees. Additionally, from date of employment, Company shall
reimburse Employee or pay for his current family health and dental insurance
coverage derived from his prior employment (under COBRA). This shall terminate
as soon as coverage is available through a comparable plan provided by Company.
SECTION 4.2. DISABILITY/ILLNESS. Employee shall be paid his full Base
Salary for any period of his illness or incapacity provided that such illness
or incapacity does not render Employee unable to perform his duties under this
Agreement for a period longer than three consecutive months. At the end of such
three-month period, the Bank may terminate Employee's employment and this
Agreement. If the Bank terminates this Agreement, due to Employee's disability,
the Bank shall pay to Employee as a disability payment, an amount equal to 100%
of Employee's monthly Base Salary for the first three months and 70% thereafter
for the remainder of the term of this Agreement. The disability payment shall
be payable in accordance with the Bank's standard payroll practices, commencing
on the effective date of Employee's termination for the disability and ending
on the earlier of: (i) the date of Employee returns to full time employment in
his capacity as the Bank's President; (ii) Employee's full time employment by
another financial institution; or (iii) the date of Employee's death.
The Company may satisfy its obligations under this Section, at its option,
through the purchase of disability insurance. The provisions of such policy
will control the amounts paid to Employee.
SECTION 4.3. CONTINUATION OF COVERAGES. During any period of illness or
disability, the Bank will continue any other life, health and disability
coverages for Employee substantially identical to the coverages maintained
prior to Employee's termination for disability. Such coverages shall cease upon
the earlier of: (i) Employee's full time employment by another financial
institution; (ii) one year after the date of such termination (with the
exception of disability insurance coverage); or (iii) the date of Employee's
death.
SECTION 4.4. DEATH DURING EMPLOYMENT. In the event of Employee's
death during the term of this Agreement, the Company's obligation to Employee
shall be limited to the portion of Employee's compensation which would be
payable up to the first working day of the first month after Employee's death,
except that any compensation payable to Employee under any benefit plan
maintained by the Company will be paid pursuant to its terms.
ARTICLE V.
EXPENSES
SECTION 5.1. GENERAL. Employee is authorized to incur reasonable expenses
in performing his duties. The Company will reimburse Employee for authorized
expenses, according to the Company's established policies, promptly after
Employee's presentation of an itemized account of such expenditures.
SECTION 5.2. AUTOMOBILE. The Bank will provide Employee with an automobile
for transportation and use during Employee's term of employment. The make and
model will be one that is mutually agreeable to the Board and Employee. All
expenses, insurance and upkeep of the automobile will be borne by the Bank.
Employee shall be responsible for
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November 20, 1998
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apportioning the time allocated for personal use for purposes of compliance
with the Internal Revenue Code of 1986, as amended.
SECTION 5.3. CLUB AND ORGANIZATION MEMBERSHIPS. The Bank will pay an
annual membership fee for the Employee to be a member at a business club and a
country club located in Tampa, Florida, as approved by the Board of Directors.
Employee shall comply with all applicable federal income tax laws and
regulations governing Employee's personal use of these memberships. Any
personal charges incurred will be paid direct to club by Employee. The Bank
will also pay Employee's membership costs in other clubs or organizations when
such membership will benefit the Bank as determined in advance by the Board of
Directors. Employee shall maintain records of both business and personal use of
such facilities and shall submit those records to the Bank monthly.
ARTICLE VI.
TERMINATION
SECTION 6.1. FAILURE OF BANK TO COMMENCE OPERATIONS. In the event the Bank
fails to commence operations for any reason on or before March 31, 1999, this
Agreement may be terminated by BancGroup upon 30 days written notice to
Employee.
SECTION 6.2. ILLNESS, INCAPACITY OR DEATH. This Agreement shall terminate
upon Employee's illness, incapacity or death in accordance with the provisions
of Article IV herein.
SECTION 6.3. TERMINATION FOR JUST CAUSE. The Company shall have the right,
at any time, upon prior written notice of termination satisfying the
requirements of Article VII herein, to terminate the Employee's employment
hereunder, including termination for just cause. For the purpose of this
Agreement, termination for just cause shall mean any of the following acts
committed by Employee:
(i) Personal dishonesty;
(ii) Incompetence;
(iii) A pattern of socially unacceptable behavior;
(iv) Willful misconduct;
(v) Breach of fiduciary duty involving personal profit;
(vi) Intentional failure to perform stated duties;
(vii) Willful violation of any law, rule or regulation (other than
traffic violations or similar offenses) or any final
cease-and-desist order; or
(viii) Material breach of any provision of this Agreement.
For purposes of this Section, no act, or failure to act, on the Employee's
part shall be considered "willful" unless done, or omitted to be done, by him
not in good faith and without reasonable belief that his action or omission was
in the best interest of the Company; provided that any act or omission to act
by the Employee in reasonable reliance upon an opinion of counsel to the
Company shall no be deemed to be willful. In the event Employee is terminated
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November 20, 1998
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for just cause. Employee shall have no right to compensation or other benefits
for any period after such date of termination.
SECTION 6.4. EFFECTIVE DATE OF TERMINATION. The termination of this
Agreement and Employee's employment shall be effective upon the delivery to
Employee of written notice or at such later time as may be specified in such
notice, and Employee shall immediately vacate the Bank premises on or before
such effective date.
SECTION 6.5. INVOLUNTARY TERMINATION. If the Employee is terminated by the
Company, other than for just cause, Employee's right to compensation and other
benefits under this Agreement shall be as set forth in Sections 6.8(i) and 6.9
herein. In the event the Employee is terminated in connection with a change in
control of the Company, Employee's right to compensation and other benefits
under this Agreement shall be as set forth in Sections 6.8(ii) and 6.9 herein.
SECTION 6.6. TERMINATION FOR GOOD REASON. Employee may terminate his
employment hereunder for good reason by giving written notice to the Board of
Directors or the Chairman thereof. For purposes of this Agreement, "good reason"
shall mean (i) a failure by the Company to comply with any material provision of
this Agreement, which failure has not been cured within 30 days after a notice
of such noncompliance has been given by the Employee to BancGroup or the
Company; or (ii) subsequent to a change in control as defined in Section 6.7
herein and without the Employee's express written consent, any of the following
shall occur: the assignment to the Employee of any duties inconsistent with the
Employee's positions, duties, responsibilities and status with BancGroup and the
Bank immediately prior to a change in control; a change in the Employee's
reporting responsibilities, titles or offices as in effect immediately prior to
a change in control of BancGroup or the Bank; any removal of the Employee from,
or any failure to re-elect the Employee to, any of such positions, except in
connection with a termination of employment for just cause, disability, death,
or removal pursuant to Sections 6.3 or 6.2 herein; a reduction in the Employee's
annual salary as in effect immediately prior to a change in control; the failure
of the Bank to continue in effect any bonus, benefit or compensation plan, life
insurance plan, health and accident plan or disability plan in which the
Employee is participating at the time of a change in control of BancGroup or the
Bank, or the taking of any action by BancGroup or the Bank which would adversely
affect the Employee's participation in or materially reduce the Employee's
benefits under any of such plans, or the transfer of the Employee to any
location outside of Hillsborough County, Florida or the assignment of
substantial duties to the Employee to be completed outside Hillsborough County,
Florida.
SECTION 6.7. CHANGE IN CONTROL. For purposes of this Agreement, a "change
in control" shall mean a change in ownership of stock in BancGroup or the Bank
whereby a person;
(i) Acquires more than 25% of any class of voting stock of BancGroup or
the Bank through direct or indirect ownership or proxy; or
(ii) Controls in any manner the election of a majority of the directors of
the Company.
SECTION 6.8. SEVERANCE PAYMENT.
(i) If the Employee shall terminate his employment for good reason as
defined Section 6.6 herein, or if the Employee is terminated by the
Company for other than just cause as defined in Section 6.3 herein,
then in lieu of any further salary payments to the Employee for
periods subsequent to the date of termination.
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November 20, 1998
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Employee shall be paid, as severance, an amount which would equal
Employee's total annual compensation for the remainder of the term
of the Agreement.
(ii) In the event Employee's employment is terminated as a result of a
change in control of BancGroup or the Bank, the Agreement Not to
Compete, Section 9.3. herein shall be limited to six months in the
event of such termination; and
(iii) Any payment under Section 6.8(i) and 6.8(ii) shall be made in one
lump sum payment or in substantially equal semi-monthly
installments on the fifteenth and last days of each month for the
remaining term of this Agreement as agreed to by the parties
hereto.
SECTION 6.9. ADDITIONAL SEVERANCE BENEFITS. Unless Employee is terminated
for just cause pursuant to Section 6.3 herein or because of illness, incapacity
or death pursuant to Section 6.2 herein, the Company shall maintain in full
force and effect, for the continued benefit of the Employee for the remaining
term of this Agreement, or one year (whichever is longer), all employee benefit
plans and programs in which the Employee was entitled to participate immediately
prior to the date of termination, provided, however, that the Employee's
continued participation is possible under the general terms and provisions of
such plans and programs. Further, the Company shall pay for the same or similar
benefits if such benefits are available to the employee on an individual or
group basis as a result of contractual or statutory provisions requiring or
permitting such availability including, but not limited to, health insurance
covered under COBRA.
SECTION 6.10. MITIGATION. Employee shall not be required to mitigate the
amount of any payment provided for in Sections 6.8(i) and 6.8(ii) of this
Agreement by seeking other employment.
ARTICLE VII.
SUSPENSION/TERMINATION PURSUANT TO REGULATORY ACTION
SECTION 7.1. SUSPENSION. If the Employee is suspended from office and/or
temporarily prohibited from participating in the conduct of the Banks affairs
pursuant to actions taken by the Florida Department of Banking and Finance,
("DOBF") or by notice served under Section 8(e)(3) or Section 8(g)(1) of the
Federal Deposit Insurance Act ("FDIA") (12 U.S.C. Section 1818[e][3] and Section
1818[g][1], the Bank's obligations under this Agreement shall be suspended as of
the date of service, unless stayed by appropriate proceedings. If the charges in
the notice are dismissed, the Bank may, in its discretion; (i) pay the Employee
all or part of the compensation withheld while its obligations under this
Agreement were suspended, and (ii) reinstate (in whole or in part) any of its
obligations which were suspended.
SECTION 7.2. PERMANENT PROHIBITION. If the Employee is removed from office
and/or permanently prohibited from participating in the conduct of BancGroup and
the Bank's affairs by an order issued by the DOBF or by an order issued under
Section 8(e)(4) or Section 8(g)(1) of the FDIA (12 U.S.C. Sections 1818[e][4]
and [g][1], all obligations of BancGroup and the Bank under this Agreement shall
terminate as of the effective date of the order, but vested rights of the
Employee as of the date of termination shall not be affected.
SECTION 7.3. DEFAULT UNDER FDIA. If the Bank is in default, as defined in
Section 3(x)(1) of the FDIA (12 U.S.C. Section 1813[x][1] to mean an,
adjudication or other official determination by an court of competent
jurisdiction, the appropriate federal banking agency or
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November 20, 1998
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other public authority pursuant to which a conservator, receiver or other legal
custodian is appointed for the Bank, all obligations; under this Agreement shall
terminate as of the date of default, but vested rights of the Employee and the
Bank as of the date of termination shall not be affected.
SECTION 7.4. GOLDEN PARACHUTE. Any payments made to the Employee pursuant
to this Agreement, or otherwise, are subject to and conditioned upon their
compliance with (12 U.S.C. Section 1828(k) and any regulations promulgated
thereunder.
ARTICLE VIII.
NOTICES
SECTION 8.1. GENERAL. Employee shall have the right, upon prior written
notice of termination of not less than 30 days, to terminate his employment
hereunder. In such event, Employee shall have no right after the date of
termination to compensation or other benefits as provided in this Agreement,
unless such termination is for "good reason", as defined in Section 6.6 herein.
If the Employee provides a notice of termination for good reason, the date of
termination shall be the date on which the notice of termination is given.
SECTION 8.2. SPECIFICITY. Any termination of the Employee's employment by
the Company or by Employee shall be communicated by written notice of
termination to the other party hereto. For purposes of this Agreement, a "notice
of termination" shall mean a dated notice which shall: (i) indicate the specific
termination provision in the Agreement relied upon; (ii) set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
Employee's employment under the provision so indicated; and (iii) set forth the
date of termination, which shall be not less than 30 days nor more than 45 days
after such notice of termination is given, except in the case of termination of
the Employee's employment for just cause, in which case date of termination
shall be the date such notice of termination is given.
SECTION 8.3. DELIVERY OF NOTICES. All notices given or required to be given
herein shall be in writing, sent by United States first-class certified or
registered mail, postage, prepaid, by way of overnight carrier or by hand
delivery. If to the Employee (or to the Employee's spouse or estate upon the
Employee's death) notice shall be sent to Employee's last-known address, and if
to Employer, notice shall be sent to the Chairman of the Board at the main
office of BancGroup. All such notices shall be effective when deposited in the
mail if sent via first-class certified or registered mail, or upon delivery if
by hand delivery or sent via overnight carrier. The Parties, by notice in
writing, may change or designate the place for receipt of all such notices.
ARTICLE IX.
COMPETITIVE ACTIVITIES
SECTION 9.1. LIMITATION ON OUTSIDE ACTIVITIES. Employee agrees that during
the term of this Agreement except with the express consent of the Company's
Board(s), Employee will not, directly or indirectly, engage or participate in,
become a director of, or render advisory or other services for, or in connection
with, or become interested in, or make any financial investment in any firm,
corporation, business entity or business enterprise competitive with or to any
business of the Company; provided, however, that Employee shall not be precluded
or prohibited from owning passive investments, including investments in the
securities of other financial institutions, so long as such ownership does not
require Employee to devote other than minimal time to management or control of
the business or activities in which Employee has invested.
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November 20, 1998
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SECTION 9.2. MAINTENANCE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION.
Employee shall use his best efforts and utmost diligence to guard and protect
all of the Company's trade secrets and confidential information. Employee shall
not, either during the term or after termination of this Agreement, for
whatever reason, use, in any capacity, or divulge or disclose in any manner, to
any Person, the identity of the Company's customers, or its customer lists,
methods of operation, marketing and promotional methods, processes, techniques,
system, formulas, programs or other trade secrets or confidential information
relating to the Company's business. Upon termination of this Agreement or
Employee's employment, for any reason, Employee shall immediately return and
deliver to the Company all records and papers and all matters of whatever
nature which bear trade secrets or confidential information relating to the
Company.
SECTION 9.3. AGREEMENT NOT TO COMPETE. Employee acknowledges that by
virtue of his employment with the Company, Employee will acquire an intimate
knowledge of the activities and affairs of the Company, including trade secrets
and other confidential matters. Employee, therefore, agrees that during the
term of this Agreement, and for a period of one year following the termination
of Employee's employment hereunder, Employee shall not become employed,
directly or indirectly, whether as an employee, independent contractor,
consultant, or otherwise, in the financial services industry with any business
enterprise or business entity, or person who competes or intends to compete
directly or indirectly with any office of the Company located in Hillsborough
County, Florida, or in any other Florida County where the Bank may have full
service branch office. Employee hereby agrees that the duration of the
anti-competitive covenant set forth herein is reasonable, and its geographic
scope is not unduly restrictive.
ARTICLE X.
REMEDIES FOR BREACH
SECTION 10.1. ARBITRATION. The Parties agree that, except for the specific
remedies for injunctive relief and other equitable relief contained in Sections
10.2 and 10.3 herein, any controversy or claim arising out of or relating to
this Agreement or any breach thereof, including, without limitation, any claim
that this Agreement or any portion thereof is invalid, illegal or otherwise
voidable, shall be submitted to binding arbitration before and in accordance
with the rules of the American Arbitration Association and judgment upon the
determination and/or award of such arbitrator may be entered in any court
having jurisdiction thereof; provided, however, that this clause shall not be
construed to permit the award of punitive damages to either party. The
prevailing party to said arbitration shall be entitled to an award of
reasonable attorney's fees. The venue of arbitration shall be in Hillsborough
County, Florida.
SECTION 10.2. INJUNCTIVE RELIEF. The Parties acknowledge and agree that the
services to be performed by Employee are special and unique and that money
damages cannot fully compensate the Company in the event of Employee's violation
of the provisions of Article IX of this Agreement. Thus, in the event of a
breach of any of the provisions of Article IX, Employee agrees that the Company,
upon application to a court of competent jurisdiction, shall be entitled to an
injunction restraining Employee from any further breach of the terms and
provision of Article IX. Should the Company prevail in an action seeking an
injunction restraining Employee, Employee shall pay all costs and reasonable
attorneys' fees incurred by the Company in and relating to obtaining such
injunction. Such injunctive relief may be obtained without bond and Employee's
sole remedy, in the event of the entry of such injunction, shall be the
dissolution of such injunction. Employee hereby waives any and all claims for
damages by reason of wrongful issuance of any such injunction.
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November 20, 1998
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SECTION 10.3. CUMULATIVE REMEDIES. Notwithstanding, any other provision of
this Agreement, the injunctive relief described in Section 10.2 herein and all
other remedies, provided for in this Agreement which are available to the
Company as a result of Employee's breach of this Agreement, are in addition to
and shall not limit any and all remedies existing at or in equity which may also
be available to the Company.
SECTION 10.4. GOVERNING LAW/VENUE. This Agreement shall be construed in
accordance with and governed by the laws of the State of Florida. Venue for any
litigation involving the Parties and their rights and obligations hereunder
shall be brought in any appropriate court in Hillsborough County, Florida.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.1. ASSIGNMENT. This Agreement shall inure to the benefit of and
be binding upon the Employee, and to the extent applicable, his heirs, assigns,
executors, and personal representatives, and to the Company, and to the extent
applicable, its successors, and assigns, including, without limitation, any
person, partnership, or corporation which may acquire all or substantially all
of the Company's assets and business, or with or into which the Company may be
consolidated or merged, and this provision shall apply in the event of any
subsequent merger, consolidation, or transfer, unless such merger or
consolidation or subsequent merger or consolidation is a transaction of the type
which would result in termination under Sections 6.5 and 6.6 herein.
SECTION 11.2. AMENDMENT OF AGREEMENT. Unless as otherwise provided herein,
this Agreement may not be modified or amended except in writing signed by the
Parties.
SECTION 11.3. HEADINGS FOR REFERENCE ONLY. The headings of the Articles and
the Sections herein are included solely for convenient reference and shall not
control the meaning of the interpretation of any of the provisions of this
Agreement.
SECTION 11.4. SEVERABILITY. If any of the provisions of this Agreement
shall be held invalid for any reason, the remainder of this Agreement shall not
be affected thereby and shall remain in full force and effect in accordance
with the remainder of its terms.
SECTION 11.5. ENTIRE AGREEMENT. This Agreement and all other documents
incorporated or referred to herein, contain the entire agreement of the Parties
and there are no representations, inducements or other provisions other than,
those expressed in writing herein. This Agreement amends, supplants and
supersedes any and all prior agreements between the Parties. No modification,
waiver or discharge of any provision or any breach of this Agreement shall be
effective unless it is in writing signed by both Parties. A Party's waiver of
the other Party's breach of any provision of this Agreement, shall not operate,
or be construed, as a waiver of any subsequent breach of that provision or of
any other provision of this Agreement.
SECTION 11.6. WAIVER. No course of conduct by the Company or Employee and
no delay or omission of the Company or Employee to exercise any right or power
given under this Agreement shall: (i) impair the subsequent exercise of any
right or power; or (ii) be construed to be a waiver of any default or any
acquiescence in or consent to the curing of any default while any other default
shall continue to exist, or be construed to be a waiver of such continuing
EMPLOYMENT AGREEMENT -- Page 10
November 20, 1998
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default or of any other right or power that shall theretofore have arisen. Any
power and/or remedy granted by law and by this Agreement to any party hereto may
be exercised from time to time, and as often as may be deemed expedient. All
such rights and powers shall be cumulative to the fullest extent permitted by
law.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first written above.
FLORIDA BUSINESS BANCGROUP, INC. BAY CITIES BANK, IN ORGANIZATION
By: By:
----------------------------- ------------------------------
On behalf of the Board of Directors On behalf of the Board of Directors
-------------------------------- ---------------------------------
Witness Witness
EMPLOYEE
--------------------------------
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Witness
EMPLOYMENT AGREEMENT -- Page 11
November 20, 1998
