EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of the 21st day of July, 2004
(the "Effective Date") by and between First National Bankshares of Florida,
Inc., a Florida corporation (the "Company"), First National Bank of Florida, a
national banking association and wholly owned subsidiary of the Company (the
"Bank") (the Company and the Bank are collectively referred to herein as
"Employer"), and X. X. Xxxxxxx (the "Executive").
WHEREAS, Executive is Executive Vice President of the Company and
Executive Vice President and Senior Loan Officer of the Bank;
WHEREAS, the parties hereto are parties to that certain Employment
Agreement dated December 16, 1996 (the "Existing Employment Agreement"); and
WHEREAS, the parties hereto desire to terminate the Existing Employment
Agreement and enter into this Agreement and that certain Change of Control
Agreement dated as of the date hereof (the "Change of Control Agreement").
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and intending to be legally bound hereby, the parties agree as
follows:
1. POSITION AND DUTIES. The Company hereby agrees to employ Executive as
Executive Vice President of the Company, with such powers and duties as may be
prescribed from time to time by the Board of Directors or the Chief Executive
Officer of the Company, and the Bank hereby agrees to employ Executive as
Executive Vice President and Senior Loan Officer of the Bank, with such powers
and duties as may be prescribed by the Board of Directors or the Chief Executive
Officer of the Bank, subject to the terms, conditions and provisions of this
Agreement. Executive hereby accepts such employment and agrees to serve without
additional compensation, if elected, in any other senior executive position of
the Company reasonably requested of him and as an officer and/or director of any
subsidiary of the Company in accordance with Section 7 hereof. Executive shall
devote his full-time best efforts to such employment and shall apply
substantially that degree of skill and diligence in rendering services to the
Company and its subsidiaries under this Agreement as would be applied by a
person of ordinary prudence and comparable experience under similar
circumstances. In connection therewith, Executive shall report to and be subject
to the direction of the Board of Directors and the Chief Executive Officer of
the Company and the Board of Directors of the Bank. Notwithstanding the
foregoing, Executive may devote a reasonable amount of his time to his personal
investments and business affairs (including service as a director of
unaffiliated companies) and to civic and charitable activities; provided,
however, Executive shall not accept any position as a director of any
unaffiliated for-profit business organization without advance approval of the
Company's Board of Directors, which approval shall not be unreasonably withheld.
2. COMPENSATION.
(a) Annual Salary. As compensation for services rendered under this
Agreement, Executive shall be entitled to receive from Employer an annual salary
of not less than $250,000 per year, (the "Annual Salary") payable in accordance
with Employer's normal payroll practice, prorated for any partial employment
period. The Annual Salary may be increased from time to time by Employer, but
shall not be decreased without the written consent of Executive.
(b) Compensatory Plan Participation. Executive will be eligible to
participate in any compensatory plans, including incentive compensation, stock
option, stock bonus, cash, profit-sharing or similar plans, which Employer may
make available to its other executives, subject to the terms and conditions of
such plans and, if applicable, the discretion of Employer in determining the
frequency and magnitude of awards under such plans.
3. FRINGE BENEFITS, VACATION TIME, EXPENSES AND PERQUISITES.
(a) Benefit Plan Participation. Executive shall be eligible to
participate in or receive benefits under all corporate employment benefit plans
made available by Employer to its executives and key management employees
including, but not limited to, any pension, savings, insurance, medical or
health-and-accident plan or arrangement, subject to and on a basis consistent
with terms, conditions and overall administration of such plans and
arrangements.
(b) Vacation Time Allowances. Executive shall be entitled each year
to vacation time in accordance with Employer's personnel policy, during which
time Executive's compensation shall be paid in full.
(c) Business Expense Reimbursement. During the term of his
employment hereunder, Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by him (in accordance with
the policies and procedures established by Employer) in performing services
hereunder, provided that Executive properly accounts therefor in accordance with
corporate policy.
(d) Use of Company-Provided Automobile. Employer will either (i)
purchase or lease an appropriate luxury vehicle agreeable to Executive for the
Executive's use in business and personal travel or (ii) provide to Executive a
monthly cash car allowance, which shall not be less than the amount of any such
car allowance provided to Executive by Employer as of the date hereof. If
Employer elects to provide a vehicle for Executive's use, (i) Employer will
secure appropriate liability insurance on the vehicle and pay all normal and
reasonable operating expenses associated with the use of the vehicle, (ii)
Executive shall report personal use of the vehicle each year in compliance with
Internal Revenue Service requirements and will be liable for the payment of any
personal income taxes resulting from such personal use, and (iii) upon the
termination of Executive's employment for any reason, if the vehicle is then
owned by Employer or any of its affiliates, Executive shall be entitled to
purchase such vehicle from Employer at the vehicle's book value as reflected in
Employer's books and records, or the vehicle's wholesale value, whichever is
lower.
(e) Other Perquisites. Additionally, the Company shall provide to
Executive a membership at the Imperial Golf Club, or any other comparably priced
club, including dues, assessments and initiation fees. Additionally, Executive
shall be entitled to receive such other perquisites as Employer deems
appropriate.
(f) Basic Retirement Plan. Executive's "Credited Service" (as
defined in the Company's Basic Retirement Plan ("BRP")) shall be 13.42 years as
of July 1, 2004 and shall increase thereafter in accordance with the terms of
the BRP. Any Social Security or Medicare taxes (OASDHI) payable with respect to
BRP payments to Executive or Executive's beneficiary shall be paid by the
Company, including both Employer's share and the Executive's share.
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4. RESTRICTIVE COVENANTS. Executive acknowledges that he has performed
services or will perform services hereunder which directly affect Employer's
business. Accordingly, the parties deem it necessary to enter into the
protective agreement set forth below, the terms and conditions of which have
been negotiated by and between the parties hereto.
(a) Non-competition. Executive expressly covenants and agrees that
during the term of his employment hereunder and for a period of two years after
termination of his employment hereunder for any reason, Executive shall not
directly or indirectly, either as a principal, agent, employee, employer,
stockholder, co-partner or in any other individual or representative capacity
whatsoever, engage in the banking and financial services business, which
includes, but it is not limited to, the commercial banking, insurance agency,
wealth management, trust, savings and loan, and mortgage banking businesses, and
any other business in which the Company or any of its subsidiaries is engaged,
anywhere within 75 miles of the city limits of Naples in Xxxxxxx County,
Florida; provided, however, that Executive shall not be prohibited hereunder
from investing in a business similar to the business of Company or any of its
subsidiaries if such investment is limited to less than three percent of the
capital stock or other securities of any corporation or similar organization the
common stock of which is traded on a national securities exchange or the Nasdaq
National Market.
(b) Non-Solicitation of Employees. Executive agrees that he will,
for so long as he is employed by the Company and for a period of two years after
termination of his employment for any reason, (i) not solicit, entice, persuade,
or induce any other employee of the Company or any of its subsidiaries to leave
the employ of such entity, and (ii) refrain from recruiting or hiring, or
attempting to recruit or hire, directly or by assisting others, any individual
who is employed by the Company or any of its subsidiaries at the time of the
attempted recruiting or hiring.
(c) Non-Solicitation of Customers. Executive will, for so long as he
is employed by the Company and for a period of two years after termination of
his employment for any reason, refrain from soliciting, or attempting to
solicit, directly or by assisting others, any business from any of the customers
of the Company or its subsidiaries, or actively sought prospective customers of
the Company or its subsidiaries, for purposes of providing products or services
that are similar to or competitive with those provided by the Company or any of
its subsidiaries, if the Company or any of its subsidiaries is also then still
engaged in such business.
5. UNAUTHORIZED DISCLOSURE. During the period of his employment hereunder,
or at any later time, Executive shall not, without the written consent of the
Board of Directors of the Company or a person authorized thereby, knowingly
disclose to any person, other than an employee of the Company or a person to
whom disclosure is reasonably necessary or appropriate in connection with the
performance by Executive of his duties hereunder or as required by law, any
material confidential information obtained by him while in the employ of the
Company with respect to any of Employer's services, products, improvements,
formulas, designs or styles, processes, customers, methods of distribution or
any business practices the disclosure of which he knows will be materially
damaging to Employer; provided, however, that confidential information shall not
include any information known generally to the public (other than as a result of
unauthorized disclosure by Executive) or any information of a type not otherwise
considered confidential by persons engaged in the same business or a business
similar to that conducted by Employer.
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6. INJUNCTIVE RELIEF. It is understood and agreed by and among the parties
hereto that the services to be rendered by Executive hereunder are of a special,
unique, extraordinary and intellectual character, which gives them a peculiar
value, the loss of which may not be reasonably or adequately compensated in
damages, and additionally that a breach by Executive of the covenants set out in
Sections 4 or 5 of this Agreement will cause the Company great and irreparable
injury and damage. Executive hereby expressly agrees that the Company shall be
entitled to the remedies of injunction, specific performance and other equitable
relief to prevent a breach of Sections 4 or 5 of this Agreement by Executive.
This provision shall not, however, be construed as a waiver of any of the
remedies which the Company may have for damages or otherwise.
7. SUBSIDIARIES. It is understood and agreed by the parties hereto that,
at the election and direction of Employer and without modification of the terms
and provisions hereof, Executive shall also serve as an executive officer and/or
director of any one or more subsidiaries of the Company, when and as so
determined by Employer.
8. TERMINATION OF EMPLOYMENT. Upon termination of Executive's employment
for any reason, Executive or, in the event of death, Executive's estate, shall
be entitled to Executive's Annual Salary prorated through the date of
termination. Any other payments or benefits earned by or owed to Executive
hereunder at the time of termination of employment, but not yet paid to
Executive, shall be paid to Executive or his estate at such time as is provided
by the terms of the applicable Employer plan or policy. Executive's right to any
additional payments and benefits for periods after the date of termination of
employment shall be determined in accordance with the following provisions of
this Section 8.
(a) Disability of Executive. In the event of the termination of
Executive's employment by reason of Executive's disability, as hereinafter
defined, Employer shall pay to Executive, in addition to any amounts payable
under any disability insurance policies or plans, an amount equal to 25% of
Executive's Annual Salary as in effect at the date of termination of employment.
Such amount shall be paid in equal installments throughout the three-month
period commencing on the date of the termination of the employment of Executive.
Employer shall also pay to Executive, not later than ten days following the date
of termination of Executive's employment, a prorated bonus equal to the product
of the Executive's target bonus under the Company's Executive Incentive
Compensation Plan (or any successor plan) for the year in which Executive's
employment is terminated multiplied by a fraction, the numerator of which is
twelve less the number of full months remaining in the fiscal year following the
date of the termination of Executive's employment, and the denominator of which
is twelve. In addition, in the event of the termination of Executive's
employment by reason of Executive's disability, all equity compensation awards
granted to Executive by the Company (e.g., stock options and shares of
restricted stock) shall immediately become fully vested and fully exercisable.
Executive shall be entitled to the disability benefits provided by this
Section if, by reason of physical or mental impairment, he is incapable of
performing his duties hereunder for a period of six consecutive months or a
total of nine months in any twelve-month period. Any dispute regarding the
existence, the extent or the continuance of Executive's disability shall be
resolved by the determination of a duly licensed and practicing physician
selected by and mutually agreeable to both the Company and Executive.
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(b) Death of Executive. In the event of the termination of
Executive's employment by reason of the death of Executive, Employer shall pay,
within ten days of Executive's death, to Executive's designated beneficiary, or,
if Executive has failed to designate a beneficiary, to his estate, an amount
equal to (x) 25% of the Executive's Annual Salary as in effect at the time of
Executive's death and (y) a prorated bonus equal to the product of the
Executive's target bonus under the Company's Executive Incentive Compensation
Plan (or any successor plan) for the year in which Executive dies multiplied by
a fraction, the numerator of which is twelve less the number of full months
remaining in the fiscal year following the date of Executive's death, and the
denominator of which is twelve. Such payment shall be in addition to any other
payments or benefits to which Executive may be entitled under the terms of any
benefit plans of Employer, including, but not limited to, the BRP. In addition,
in the event of the termination of Executive's employment by reason of the death
of Executive, all equity compensation awards granted to Executive by the Company
(e.g., stock options and shares of restricted stock) shall immediately become
fully vested and fully exercisable.
(c) Termination by the Company for Proper Cause. The occurrence of
any of the following events or circumstances shall constitute "Cause" for the
termination, at the election of Employer, of the employment of Executive under
this Agreement:
(i) the perpetration of defalcations by Executive involving
the Company or any of its subsidiaries, as established by certified
public accountants employed by the Company, or willful, reckless or
grossly negligent conduct of Executive entailing a substantial
violation of any material provision of the laws, rules, regulations
or orders of any governmental agency applicable to the Company or
any of its subsidiaries;
(ii) the repeated and deliberate failure by Executive, after
advance written notice to him, to comply with reasonable policies or
directives of the Board of Directors of Employer;
(iii) the breach of this Agreement by Executive in any other
material respect and failure to cure such breach within 30 calendar
days after Executive receives written notice of such breach from the
Board of Directors of Employer; or
(iv) conduct that results in the Executive being disqualified
or barred by banking or securities law regulators from serving in
the capacity contemplated by this Agreement.
In the event that Employer discharges Executive for Cause, such notice of
discharge shall be accompanied by a written and specific description of the
circumstances constituting Cause.
Upon the termination of Executive's employment hereunder by Employer for
Cause, no additional benefits or monies shall be due Executive other than those
accrued hereunder or under any benefit plans of Employer as of the date of
termination. In addition, in the event that Employer discharges Executive for
Cause pursuant to clause (i) or (iv) of this Section 8(c) and the acts or
omissions of Executive constituting Cause result in material economic harm to
the Company or in reputational harm causing quantifiable material injury to the
Company, then, notwithstanding anything to the contrary herein or the terms of
any Company plan or program, as of the date of
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termination (i) Employer shall have no further obligations to make any payments
or provide any benefits to Executive or his dependents hereunder or under any
compensatory or benefit plan or arrangement of Employer (including, but not
limited to, the BRP) and (ii) any outstanding options to purchase shares of the
Company's common stock shall immediately expire to the extent not previously
exercised.
In the event that Employer discharges Executive alleging Cause and it is
subsequently determined pursuant to Section 12(f) that the termination was
without proper cause, then such discharge shall be deemed a discharge without
Cause subject to the provisions of Section 8(d) hereof.
(d) Termination by Employer Without Cause. Employer may terminate
Executive's employment hereunder at any time without Cause by written notice to
Executive, in which event:
(i) Employer shall continue to pay Executive his Annual
Salary, as in effect on the date of the termination of Executive's
employment, for a period of months equal to the Severance Period
(the term "Severance Period," as used herein, shall mean the lesser
of 24 or the number of months in the period from the date of the
termination of Executive's employment hereunder to the date
Executive attains the age 65);
(ii) Employer shall pay to Executive, in equal installments
over a period of months equal to the Severance Period, an amount
equal to one-twelfth of the Severance Period multiplied by the
greater of (x) the average annual incentive payment earned by
Executive under the Company's Executive Incentive Compensation Plan
(or any successor plan) in respect of the three most recent complete
fiscal years of the Company prior to the date of the termination of
Executive's employment or (y) the target incentive bonus award under
the Company's Executive Incentive Compensation Plan (or any
successor plan) for the year in which the termination of Executive's
employment occurs;
(iii) Employer shall provide to Executive and his eligible
dependents medical, long-term disability, dental and life insurance
coverage, to the extent such coverage was in effect immediately
prior to such termination, until the earlier to occur of the second
anniversary of the date of termination or the date Executive attains
the age 65; provided, however, that in the event that medical,
long-term disability, dental and life insurance benefits cannot be
provided under appropriate group insurance policies of Employer, an
amount equal to the premium necessary for Executive to purchase
directly the same level of coverage in effect immediately prior to
the termination of employment shall be added to Employer's payments
to Executive pursuant to this Section 8.
(iv) Employer shall continue to provide to Executive the
benefits described under Sections 3(d) and 3(e) hereof until the
earlier to occur of the second anniversary of the date of
termination or the date Executive attains the age 65; and
(v) Employer shall contribute to Executive's account under the
Company's defined contribution retirement plans (currently, the
Company's Salary
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Savings Plan and ERISA Excess Profit Sharing and Lost Match Plan) an
amount of cash equal to the amount that Employer would have
contributed to such plans (including both profit-sharing
contributions and Company matching contributions in respect of
Executive's contributions to the plan) had Executive continued to be
employed by Employer for a number of months equal to the Severance
Period, at an annual compensation equal to the sum of Executive's
Annual Salary immediately prior to the termination of Executive's
employment and the greater of (x) the average annual incentive bonus
earned by Executive under the Company's Executive Incentive
Compensation Plan (or any successor plan) in respect of the three
most recent complete fiscal years of the Company prior to the date
of the termination of Executive's employment or (y) the target
incentive bonus award under the Company's Executive Incentive
Compensation Plan (or any successor plan) for the year in which the
termination of Executive's employment occurs (and assuming for this
purpose that Executive made the maximum permissible contributions to
such plans during such period), such contributions being deemed to
be made immediately prior to the termination of Executive's
employment;
(vi) all equity compensation awards granted to Executive by
the Company (e.g., stock options and shares of restricted stock)
shall immediately become fully vested and fully exercisable; and
(vii) notwithstanding anything to the contrary contained in
the BRP, Executive's "Credited Service" under the BRP shall be
deemed for all purposes to be increased by an amount equal to
one-twelfth of the Severance Period, and Executive's "Compensation"
under the BRP for each such additional year of Credited Service
shall be deemed to be an amount equal to the sum of (x) Executive's
Annual Salary in effect immediately prior to the date of the
termination of Executive's employment and (y) the greater of (A) the
average annual incentive bonus payment earned by Executive under the
Company's Executive Incentive Compensation Plan (or any successor
plan) in respect of the three most recent complete fiscal years of
the Company preceding the date of the termination of Executive's
employment or (B) the target incentive bonus award under the
Company's Executive Incentive Compensation Plan (or any successor
plan) for the year in which the termination of Executive's
employment occurs.
If Executive is required to pay income or other taxes on any
medical, long-term disability, dental or life insurance benefits provided
or paid to Executive pursuant to this Section 8, then Employer shall pay
to Executive an amount of cash sufficient to "gross-up" such benefits or
payments so that Executive's "net" benefits received under this Section 8
are not diminished by any such taxes that are imposed with respect to the
same or Employer's gross-up hereunder with respect to such taxes.
(e) Termination by Executive For Good Reason In the Event Executive
terminates his employment for Good Reason, Employer shall provide to Executive
all of the payments and benefits to which Executive would have been entitled
pursuant to Section 8(d) had Employer terminated Executive's employment without
Cause. For purposes of this Agreement, the term "Good Reason" shall mean:
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(i) a substantial alteration in the nature or status of
Executive's responsibilities which renders Executive's position to
be of less dignity, responsibility or scope;
(ii) a substantial reduction in compensation such as, for
example, a reduction in target incentive bonus award that is not
offset by an increase in other compensation or benefits (in which
case the payments and benefits in Section 8(d) shall be determined
as if such reduction did not occur);
(iii) Employer requiring Executive to be based anywhere other
than the Company's principal executive offices; or
(iv) any material breach by Employer of its obligations
contained in this Agreement.
(f) Termination by Executive Without Good Reason. In the event
Executive terminates his employment with Employer for any reason (including
retirement) other than Good Reason, death or Disability, no additional benefits
or monies shall be due Executive other than those accrued hereunder or under any
benefit plans of Employer as of the date of termination; provided, that, with
respect to any shares of restricted stock awarded to Executive and designated by
the Board of Directors of the Company as a multi-year award with vesting subject
to the attainment of specified performance criteria (the parties acknowledge and
agree that the shares of restricted stock granted to Executive on April 19, 2004
were granted as a three-year award with vesting subject to attainment of
specified performance criteria), (x) any and all shares subject to vesting in
respect of attainment of performance criteria in any year following the year in
which Executive's employment is terminated shall be forfeited, and (y) if the
performance criteria applicable to any shares subject to vesting in respect of
the attainment of performance criteria in the year in which Executive's
employment is terminated by reason of Executive's retirement under a plan or
policy of Employer are satisfied, a prorated portion of such shares, based on
the number of full months Executive was employed in the fiscal year in which he
retired, shall become fully vested.
(g) Termination at Age 65. On the date Executive attains age 65,
this Agreement shall terminate and cease to be of any force or effect, except
(i) for the provisions of Sections 4 (Restrictive Covenants), 5 (Unauthorized
Disclosure), 6 (Injunctive Relief) and 12 (Miscellaneous) hereof and (ii) with
respect to any payments or benefits to which Executive is entitled hereunder as
of such date.
(h) Notice of Termination of Agreement. Either Executive or Employer
may give written notice to the other of such party's election to terminate this
Agreement on the third anniversary (the "Termination Date") of the date such
notice is delivered to such other party. In such event, this Agreement will
continue in effect until the Termination Date, and shall thereafter be of no
force or effect, except (i) for the provisions of Sections 4 (Restrictive
Covenants), 5 (Unauthorized Disclosure), 6 (Injunctive Relief) and 12
(Miscellaneous) hereof, and (ii) with respect to any payments or benefits to
which Executive is entitled hereunder as of the Termination Date.
(i) Change of Control. In the event of the occurrence of a
Triggering Event (as defined in the Change of Control Agreement), this Agreement
shall cease to be of any force or effect, except (i) for the provisions of
Sections 4 (Restrictive Covenants), 5 (Unauthorized Disclosure), 6
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(Injunctive Relief) and 12 (Miscellaneous), and (ii) with respect to any
payments or benefits to which Executive is entitled hereunder as of the date of
occurrence of such Triggering Event.
(j) Effect of Termination on Other Positions. If, on the date of his
termination of employment with Employer, the Executive is a member of the Board
of Directors of the Company or any of its subsidiaries, or holds any other
position with the Company or any of its subsidiaries, the Executive shall be
deemed to have resigned from all such positions as of the date of his
termination of employment with Employer. Executive agrees to execute such
documents and take such other actions as Employer may request to reflect such
resignation.
9. RELEASE. Executive hereby acknowledges and agrees that prior to
Executive's or his dependents' right to receive from Employer any compensation
or benefits to be paid or provided to him or his dependents hereunder following
the termination of his employment for any reason, Executive may be required by
the Company, in its sole discretion, to execute a release in the form of Exhibit
A hereto.
10. INDEMNIFICATION. The Company shall indemnify Executive, to the fullest
extent permitted by Florida law, with respect to any threatened, pending or
completed action, suit or proceeding, brought against him by reason of the fact
that he is or was a director, officer, employee or agent of the Company or is or
was serving at the request of the Company as a director, officer, employee or
agent of another person or entity. To the fullest extent permitted by Florida
law, the Company shall, in advance of final disposition, pay any and all
expenses incurred by Executive in connection with any threatened, pending or
completed action, suit or proceeding with respect to which Executive may be
entitled to indemnification hereunder. Executive's right to indemnification
provided herein shall survive the termination of Executive's employment
hereunder.
11. RETURN OF MATERIALS. Upon termination of employment hereunder,
Executive shall promptly deliver to Employer all correspondence, manuals,
letters, notes, notebooks, reports and any other documents or tangible items
containing or constituting confidential information about the business of
Employer.
12. MISCELLANEOUS.
(a) Notices. Any notices required or permitted to be given under
this Agreement shall be sufficient if in writing, and if personally delivered or
when sent by first class certified or registered mail, postage prepaid, return
receipt requested -- in the case of Executive, to his residence address as set
forth in the books and records of Employer, and in the case of Employer, to the
address of the Company's principal place of business, in care of the Chairman of
the Compensation Committee of the Board of Directors of the Company -- or to
such other person or at such other address with respect to each party as such
party shall notify the other in writing.
(b) Successors. This Agreement shall inure to the benefit of and be
binding upon Executive, Employer and any successor to Employer.
(c) Severability. Except as noted below, should any provision of
this Agreement be declared or determined by any court of competent jurisdiction
or arbitrator to be unenforceable or invalid for any reason, the validity of the
remaining parts, terms, or provisions of this Agreement shall not be affected
thereby and the invalid or unenforceable part, term, or provision shall be
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deemed not to be a part of this Agreement. The covenants set forth in this
Agreement are to be reformed pursuant to subsection (d) of this Section 12 if
held to be unreasonable or unenforceable, in whole or in part, and, as written
and as reformed, shall be deemed to be part of this Agreement.
(d) Reformation. If any of the covenants or promises of this
Agreement are determined by any court of law or equity or arbitrator, with
jurisdiction over this matter, to be unreasonable or unenforceable, in whole or
in part, as written, Employee hereby consents to and affirmatively requests that
said court or arbitrator, to the extent legally permissible, reform the covenant
or promise so as to be reasonable and enforceable and that said court or
arbitrator enforce the covenant or promise as so reformed.
(e) Amendment. This Agreement may be amended or cancelled only by
mutual agreement of the parties in writing without the consent of any other
person and, so long as Executive lives, no person other than the parties hereto
shall have any rights under or interest in this Agreement or the subject matter
hereof.
(f) Arbitration. Except as otherwise provided herein, in the event
of any controversy, dispute or claim arising out of, or relating to this
Agreement, or the breach thereof, or arising out of any other matter relating to
Executive's employment with Employer or the termination of such employment, the
parties may seek recourse only for temporary or preliminary injunctive relief to
the courts having jurisdiction thereof and if any relief other than injunctive
relief is sought, Employer and Executive agree that such underlying controversy,
dispute or claim shall be settled by arbitration conducted in Naples, Florida in
accordance with this Section 12(f) of this Agreement and the Commercial
Arbitration Rules of the American Arbitration Association ("AAA"). The matter
shall be heard and decided, and awards rendered by a panel of three arbitrators
(the "Arbitration Panel"). The Company and Executive shall each select one
arbitrator from the AAA National Panel of Commercial Arbitrators (the
"Commercial Panel") and those two arbitrators shall select a third arbitrator;
provided, however, that in the event the two arbitrators cannot agree on a third
arbitrator, the AAA shall select a third arbitrator from the Commercial Panel.
The award rendered by the Arbitration Panel shall be final and binding as
between the parties hereto and their heirs, executors, administrators,
successors and assigns, and judgment on the award may be entered by any court
having jurisdiction thereof. The Company and Executive will each bear their own
costs for legal representation in any arbitration, except that the Arbitration
Panel will have the authority to award all remedies provided by applicable law,
including recovery of attorney fees when so provided by applicable law. The
Company will pay all arbitrators' fees and other administrative fees in
connection with any arbitration hereunder; provided, however, that the
Arbitration Panel may require all or a portion of such fees and expenses to be
paid by Executive in the event the Arbitration Panel determines that Executive's
position in the arbitration proceeding was without merit.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida.
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(h) Entire Agreement. This Agreement and the Change of Control
Agreement contain the entire agreement of the parties concerning the matters set
forth herein and therein, and all promises, representations, understandings,
arrangements and prior agreements regarding the subject matter hereof, other
than those set forth herein and the Change of Control Agreement, are superseded
hereby. The parties agree that the Existing Employment Agreement is hereby
terminated and shall be of no further force or effect.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
"COMPANY"
FIRST NATIONAL BANKSHARES OF FLORIDA, INC.
By: /s/ Xxxx X. Xxxx
----------------------------------------
Xxxx X. Xxxx
Chairman and Chief Executive Officer
"BANK"
FIRST NATIONAL BANK OF FLORIDA
By: /s/ Xxxxx X Xxxx
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Name: Xxxxx X. Xxxx
Title: Vice Chairman
"EXECUTIVE"
/s/ X.X. Xxxxxxx
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X.X. Xxxxxxx
12
EXHIBIT A
FORM OF RELEASE
THIS RELEASE is made by the undersigned ("Executive") in favor of First
National Bankshares of Florida, Inc. (the "Company") this ____ day of _____,
_____.
WHEREAS, Executive and the Company are parties to that certain Employment
Agreement, dated as of _________, 2004 (the "Employment Agreement"); and
WHEREAS, pursuant to Section 9 of the Employment Agreement, it is a
condition to the Company's obligation to make certain payments and provide
certain benefits to Executive following the termination of Executive's
employment that Executive execute and deliver to the Company a release in the
form hereof
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, subject to the following sentence, Executive hereby releases the
Company and any affiliated entities and their respective officers, directors,
shareholders, executives and agents, from any and all claims, demands, suits,
causes of action, damages or expenses which Executive has had or may have in the
future, arising out of Executive's employment as an executive of the Company and
Executive's separation from the Company, including, without limitation:
(a) claims under any and all federal, state or local laws or
regulations, including, but not limited to any labor, employment or
benefit laws prohibiting any form of discrimination such as the Fair
Labor Standards Act, the Age Discrimination in Employment Act, as
amended by the Older Workers Benefit Protection Act, Title VII of
the Civil Rights Act of 1964, as amended, the Americans with
Disabilities Act, and the Civil Rights Act of 1991;
(b) any right to recover under any claim that may be filed by the Equal
Employment Opportunity Commission, or state or local human relations
commission, or any other federal, state or local governmental
agency; and
(c) any claim that Executive is entitled to any payments or benefits
other than as expressly set forth in the Employment Agreement.
Notwithstanding anything to the contrary herein, Executive does not waive
any rights of Executive arising under Section 10 of the Employment Agreement.
IN WITNESS WHEREOF, intending to be legally bound, Executive has executed
this Release on the date first set forth above.
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Print Name:
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