EMPLOYMENT AGREEMENT
Exhibit
10.6
This Employment Agreement (this “Agreement”) is made and entered into as of January
1, 2006 (the “Effective Date”), by and between Florida Choice Bank, a Florida banking
corporation (“Employer”); and Xxxxxxx X. Xxxxx (“Employee”).
WHEREAS, pursuant to that certain Agreement and Plan of Merger (the “Merger Agreement”) dated
as of October 27, 2005, between Alabama National BanCorporation, a Delaware corporation (“ANB”) and
Florida Choice Bankshares, Inc., a Florida corporation (“FCB”), Employer will become a wholly-owned
subsidiary of ANB; and
(a) Base Salary. Employee’s total annual base salary shall be not less than $115,000,
payable with the same frequency as the salaries of other employees of Employer.
(b) Annual Bonus Opportunity. Employee shall be eligible to receive an annual bonus,
the amount of which, if any, shall be determined by the Employee’s Board of Directors or its
designee after an annual review of the performance of Employee and Employer for the prior calendar
year.
(c) Benefits. Employee shall be entitled to vacation days, paid holidays and sick
days, and to participate in Employer’s retirements plans, as provided in Employer’s Personnel
Policy and as such may be amended from time to time.
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(a) During the period beginning on the Effective Date and, subject to extension pursuant to
the terms of Section 9 below, ending on the third (3rd) anniversary thereof, Employee
shall not, individually or as an employee, agent, consultant, lender, officer, director or
shareholder of or otherwise through any corporation or other business organization (whether in
existence or in formation), directly or indirectly, other than on behalf of Employer: (i) carry on
or engage in the business of banking or any similar business in any Florida county in which
Employer has an office at such time (collectively, the “Territory”);1/ (ii) perform
services for, as an employee, consultant or otherwise, any bank, bank holding company, bank or bank
holding company in organization, corporation or other person or entity that has a branch or office
in, or conducts any banking or similar business in the Territory; (iii) during the period of his
employment, solicit or do banking or similar business with any person or entity who or that is or
has been an existing or prospective customer of Employer; (iv) following the termination of
employment, solicit or do banking or similar business with any person or entity who or that was an
existing or prospective customer of Employer at any time during the 24-month period immediately
prior to the termination of Executive’s employment; (v) solicit or do banking or similar business
with any existing or prospective customer of ANB or any of its other bank subsidiaries if Executive
learned about such customer, or had any contact with such customer, while an employee of Employer;
or (vi) solicit any director, officer or employee of Employer or ANB or any of their subsidiaries
or affiliates to leave his or her position or employment with Employer or ANB or any of their
subsidiaries or affiliates for any reason, or hire any such director, officer or employee, without
the prior written consent of Employer.
(b) Employee represents that his experience and capabilities are such that the provisions of
this Section 8 will not prevent him from earning a livelihood.
(c) If Employee violates the provisions of Section 8(a) above, the period during which the
covenants set forth therein shall apply shall be extended 1 day for each day in which a violation
of such covenants occurs. The purpose of this provision is to prevent Employee from profiting from
his own wrong if he violates such covenants.
(d) In the event of any conduct or threatened conduct by Employee violating any provision of
this Section 8, Employer shall be entitled, in addition to other available remedies, to injunctive
relief and/or specific performance of such provision. In the event of any suit or arbitration with
respect to Employee’s obligations in this Section 8, Employee will pay all costs incurred by
Employer in securing an injunction (or other equitable remedy) and/or damages, including a
reasonable attorney’s fee.
(e) Employee acknowledges that (i) Employee has occupied, and will continue to occupy, a
position of trust and confidence with Employer and has and will become familiar with Confidential
Information, including without limitation trade secrets, as that term is defined in Section
688.002(4) of the Florida Code; (ii) ANB has required that Employee make the covenants set forth in
Sections 7 and 8 of this Agreement as a material condition to ANB’s acquisition of the capital
stock
| 1/ | For the sake of clarity, upon the termination of Employee’s employment, the Territory shall consist of each Florida county in which Employer has an office at the time of such employment termination. |
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of Employer, including capital stock owned by Employee; (iii) the provisions of
Sections 7 and 8 of this Agreement are reasonable in geographic scope and duration and are
necessary to protect and preserve Employer’s legitimate business interests, including, without
limitation, its trade secrets, valuable confidential business information, relationships with
specific prospective and existing customers, customer goodwill, and specialized training provided
to Employee; and (iv) Employer would be irreparably damaged if Employee were to breach the
covenants set forth in Sections 7 or 8 of this Agreement.
(a) If Employer terminates Employee’s employment hereunder “For Cause” prior to the third
(3rd) anniversary of the Effective Date, all rights and obligations specified in Section
8(a) shall survive any such termination until the third (3rd) anniversary of the
Effective Date, and Employee shall not be entitled to any further compensation or benefits from
Employer. “For Cause” shall mean (i) abuse of or addiction to intoxicating drugs (including
alcohol), which has adversely affected or may adversely affect the business or reputation of
Employer; (ii) any act or omission on the part of Employee which constitutes fraud,
misrepresentation, embezzlement, misappropriation of corporate assets, breach of a duty owed to
Employer, or conduct grossly inappropriate to Employee’s office; (iii) a felony indictment of
Employee; (iv) the suspension or removal of Employee by federal or state banking regulatory
authorities; or (v) a material breach by Employee of any of the terms of this Agreement. In
addition, the services of Employee and the obligations of Employer under this Agreement may be
terminated For Cause by Employer due to the death or total disability of Employee. For purposes of
this Section 9, the term “total disability” shall mean Employee’s inability, as a result of illness
or injury, to perform the normal duties of his employment for a period of ninety (90) consecutive
days.
(b) Employer may terminate Employee’s employment at any time for any reason; provided,
however, if Employer terminates Employee other than For Cause prior to the third (3rd)
anniversary of the Effective Date, or if Employee terminates his employment for “Good Reason” prior
to the third (3rd) anniversary of the Effective Date, Employee shall continue to receive
the minimum cash compensation provided for in Section 4(a) until the third (3rd)
anniversary of the Effective Date (to be paid with the same frequency as Employee’s salary was paid
prior to termination), and all rights and obligations specified in Section 8(a) shall survive such
termination until the third (3rd) anniversary of the Effective Date. Other than the
payment provided for in this Section 9(b), Employee acknowledges that he shall not be entitled to
any other payments, benefits or damages from Employer in connection with a termination of
employment by Employer other than For Cause or a termination by Employee for Good Reason, and
Employee hereby waives all rights and claims with respect thereto. “Good Reason” means a material
breach of this Agreement by Employer, after Employee has provided a detailed written notice of such
breach to Employer, and Employer has been afforded at least a 30-day cure period after receipt of
such notice.
(c) If Employee resigns or terminates his employment hereunder for any reason (other than Good
Reason) prior to the third (3rd) anniversary of the Effective Date, (i) all rights and
obligations specified in Section 8(a) shall survive any such termination until the later of (A) the
third (3rd) anniversary of the Effective Date or (B) the first (1st)
anniversary of the effective date of such
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termination, (ii) Employee shall not be entitled to any
further compensation or benefits from
Employer, and (iii) Employer shall be entitled to all remedies available under this Agreement
and applicable law.
(d) If (i) Employee’s employment has not been earlier terminated in accordance with this
Section 9, and (ii) this Agreement has not been extended, renewed or replaced, then upon the third
(3rd) anniversary of the Effective Date, Employee’s employment will continue on an “at will” basis.
(e) The provisions of Section 7 and Section 8 shall in all cases survive the termination of
Employee’s employment, whether voluntary or involuntary.
11. Notice. For the purposes of this Agreement, notices and demands shall be deemed
given when mailed by United States mail, addressed in the case of Employer to Florida Choice Bank,
00000 X.X. Xxxxxxx 000, Xxxxx Xxxx, Xxxxxxx 00000, Attention: CEO; or in the case of Employee, to
his last known address of record contained in the Employer’s personnel files.
12. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such modification, waiver or discharge is agreed to in writing. The validity,
interpretation, construction and performance of this Agreement shall be governed by the laws of the
State of Florida without regard to principles of conflicts of laws. The parties expressly intend
that ANB be a third-party beneficiary of this Agreement, and ANB is entitled to enforce and protect
the rights and benefits conferred on ANB herein, including without limitation those in Sections 7
and 8.
(a) Except as may otherwise be herein provided, any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by binding arbitration in Orlando,
Florida, in accordance with the rules of the American Arbitration Association then in effect.
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The
agreement set forth herein to arbitrate shall be specifically enforceable under the
prevailing arbitration law. Notwithstanding the foregoing, Employer shall have the right to
seek enforcement by preliminary injunction, specific performance or other equitable relief of the
provisions of Section 7 and/or 8 hereof in any state or federal court of competent jurisdiction
without regard to whether any such claim has been or can be referred to arbitration.
(b) The parties hereto (i) acknowledge that they have read and understood the provisions of
this Section regarding arbitration and (ii) that performance of this Agreement will be interstate
commerce as that term is used in the Federal Arbitration Act, and the parties contemplate
substantial interstate activity in the performance of this Agreement including, but not limited to,
interstate travel, the use of interstate phone lines, the use of the U.S. mail services and other
interstate courier services.
(c) Notice of the demand for arbitration shall be filed in writing with the other party to
this Agreement and with the American Arbitration Association. The demand for arbitration shall be
made within a reasonable time after the claim, dispute or other matter in question has arisen, and
in no event shall it be made after the date when institution of legal or equitable proceedings
based on such claim, dispute or other matter in question would be barred by the applicable statute
of limitations. The award rendered by the arbitrator shall be final and judgment may be entered
upon it in accordance with applicable law in any court having jurisdiction thereof.
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18. American Jobs Creation Act of 2004. To the extent the American Jobs Creation Act
of 2004, as amended, and the regulations thereunder (collectively, the “Act”) apply to any payment
to be made to Employee hereunder, the parties’ intent is that such payment, unless expressly
provided otherwise (such as in the case of severance payments) or unless deferred pursuant to the
terms of a written deferred compensation plan maintained by Employer or one of its affiliates, will
be paid no later than (a) March 15th of the calendar year following the end of
Employee’s first taxable year in which the amount is no longer subject to a “substantial risk of
forfeiture” or (b) March 15th of the calendar year after the end of Employer’s first
taxable year in which the amount is no longer subject to a “substantial risk of forfeiture.” The
purpose of this provision is reflect the parties’ desire and intent to comply with the Act, to the
extent applicable.
19. Entire Agreement; Reinstatement. This Agreement supersedes and cancels any prior
employment agreement, change in control agreement or understanding entered into between Employee
and Employer and/or FCB, including but not limited to that certain Employment Agreement dated
October 18, 2004 (the “Prior Agreement”). Employee acknowledges and agrees that he is not entitled
to any further payments under the Prior Agreement, including without limitation any Change in
Control or related payment, and Employee waives all rights thereto. Notwithstanding the foregoing,
the parties acknowledge that this Agreement has been entered into as a condition to, but prior the
consummation of, the transactions provided for in the Merger Agreement. If the Merger Agreement is
terminated pursuant to the terms thereof, then this Agreement shall simultaneously and
automatically terminate as well, without any further action on the part of the parties hereto, and
the Prior Agreement shall be reinstated as if it had continued in full force and effect.
[Signature page follows.]
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| Witnesses: | “Employee”: | |||||||
| Xxxxxxxx X. Xxxxxxxxx | /s/ Xxxxxxx X. Xxxxx | |||||||
| Xxxxxxx X. Xxxxx | ||||||||
Xxxxxx
X. Xxxxxx
|
||||||||
| “Employer”: | ||||||||
| Florida Choice Bank | ||||||||
| By: | ||||||||
| Xxxx X. Xxxxxx | ||||||||
| Its: | ||||||||
| President | ||||||||
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