EMPLOYMENT AGREEMENT
Exhibit
10.1
This Employment Agreement (this “Agreement”) is made and entered into effective as of
[ ], 2006 (the “Effective Date”), by and among Florida Choice Bank, a
Florida banking corporation (“Employer”); and Xxxxxxx X. XxXxx, a resident of the State of
Florida (“Executive”).
Recitals
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
Employer’s parent holding company, Employer has become a wholly-owned subsidiary of ANB; and
WHEREAS, Executive has served as a valuable member of Employer’s management team for a number
of years, and, as a condition to the consummation of the transactions provided for in the Merger
Agreement, Executive and Employer have agreed to enter into this Agreement.
Agreement
NOW THEREFORE, in consideration of the mutual recitals and covenants contained herein, and for
other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
1. Employment. Employer agrees to employ Executive and Executive agrees to be
employed by Employer, subject to the terms and provisions of this Agreement. The period of
Executive’s employment by Employer under the terms of this Agreement will be for a period of two
(2) years commencing on the Effective Date, unless such employment terminates earlier in accordance
with the provisions of Section 9 hereof (the “Employment Period”).
2. Agreement Term. The term of this Agreement (the “Agreement Term”) shall be for a
period of three (3) years, commencing on the Effective Date. The termination of Executive’s
employment upon or prior to the expiration of the Employment Period shall be independent from, and
shall not serve to terminate or shorten, the Agreement Term.
3. Duties; Extent of Services. Executive shall perform for Employer all duties
incident to the position of Chairman of the Board of Directors, under the direction of the board of
directors of Employer or its designee(s). In addition, Executive shall engage in such other
services for Employer or its affiliated banks and companies as Employer from time to time shall
direct. The precise services of Executive and the title of Executive’s position may be extended,
curtailed or modified from time to time without breaching or affecting the enforceability of the
terms of this Agreement. Executive shall devote an appropriate amount of time, attention and
energy, to the business of the Employer.
4. Compensation. From the Effective Date until the termination of Executive’s
employment:
(a) Base Salary. Executive’s total annual base salary shall be $100,000, payable with
the same frequency as the salaries of other employees of Employer.
(b) Benefits. Executive shall be entitled to vacation days, paid holidays and sick
days, and to participate in Employer’s health and retirement plans, as provided in Employer’s
Personnel Policy, as such may be amended from time to time.
(c) Automobile Allowance. Executive shall be entitled to a $800 monthly automobile
allowance or, at the option of Employer, to the use of an automobile owned by Employer.
(d) Equity Incentives. Executive shall be eligible to receive awards under any stock
option, stock purchase or equity-based incentive compensation plan or arrangement adopted by
Employer or ANB from time to time for which senior executives of ANB’s other bank subsidiaries are
eligible to participate. Executive’s participation in, and awards under, such plans and
arrangements, if any, will be determined from time to time by, and will be in the sole discretion
of, ANB’s board of directors or its designee, as the case may be.
5. Compliance With Rules and Policies. Executive shall comply with all of the rules,
regulations, and policies of Employer now or hereinafter in effect. He shall promptly and
faithfully do and perform any and all other duties and responsibilities which he may, from time to
time, be directed to do by the board of directors of Employer or its designee(s).
6. Representation of Executive. Executive represents to Employer that he is not
subject to any rule, regulation or agreement, including without limitation, any non-compete
agreement, that purports to, or which reasonably could be expected to, limit, restrict or interfere
with Executive’s ability to engage in the activities provided for in this Agreement.
7. Disclosure of Information. Executive acknowledges that any documents and
information, whether written or not, that come or have come into Executive’s possession or
knowledge during Executive’s course of employment with Employer, including, without limitation
information about customers and potential customers and the business methods, sales, services,
techniques, financial and business conditions, goals and operations of Employer, ANB or any of
their respective affiliates or subsidiaries as the same may exist from time to time (collectively,
“Confidential Information”), are valuable, special and unique assets of Employer’s business.
Executive will not, during or after the Employment Period: (a) disclose any Confidential
Information to any person, firm, corporation, association, or other entity not employed by or
affiliated with Employer for any reason or purpose whatsoever, or (b) use any Confidential
Information for any reason other than to further the business of Employer. Executive agrees to
return any written Confidential Information (including without limitation all Confidential
Information stored in electronic format), and all copies thereof, immediately upon the termination
of Executive’s employment for any reason (whether hereunder or otherwise). In the event of a
breach or threatened breach by Executive of the provisions of this Section 7, in addition to all
other remedies available to Employer, Employer shall be entitled to an injunction restraining
Executive from disclosing any Confidential Information.
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8. Competition.
(a) During the Agreement Term (including any unexpired portion of the Agreement Term that
remains following the termination of Executive’s employment for any reason, whether voluntary or
involuntary, but subject to the Change in Control provisions of Section 14 below), Executive 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 (including credit unions), mortgage banking, the securities industry or any
other lending related business or other business conducted by Employer or its affiliates anywhere
in the Florida counties of Xxxx, Xxxxxx, Orange, Seminole, Osceola and/or Sumter (collectively, the
“Territory”); (ii) perform any services for any bank or bank holding company (whether in existence
or in formation) that has a branch or office anywhere in, or conducts any banking or similar
business anywhere 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. Notwithstanding the foregoing, Executive may hold up to (but not more
than) two percent of any class of securities of any enterprise (but without otherwise participating
in the activities of such enterprise) if such securities are listed on any national or regional
securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of
1934.
(b) Executive represents that his experience and capabilities, together with the compensation
paid by Employer and payable under this Agreement, are such that the provisions of this Section 8
will not impose an undue hardship on Executive or prevent him from earning a livelihood.
(c) If Executive 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 Executive from profiting
from his own wrong if he violates such covenants.
(d) In the event of any conduct or threatened conduct by Executive 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.
(e) Executive acknowledges that (i) Executive has occupied, and will continue to occupy, a
position of trust and confidence with Employer prior to the date hereof and has and will become
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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 Executive make
the covenants set forth in Sections 7 and 8 of this Agreement as a material condition to Employer’s
employment of Executive and ANB’s acquisition of the capital stock of Employer’s parent holding
company, including the capital stock owned by Executive; (iii) the provisions of Sections 7 and 8
of this Agreement are reasonable in geographic scope, duration, and scope 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 Executive; and (iv)
Employer would be irreparably damaged if Executive were to breach the covenants set forth in
Sections 7 or 8 of this Agreement.
9. Termination of Employment Prior to Expiration of Employment Period.
(a) Employer may terminate Executive’s employment prior to the expiration of the Employment
Period “For Cause.” In such event, all rights and obligations specified in Section 8(a) shall
survive any such termination until the expiration of the Agreement Term, and Executive shall not be
entitled to any further compensation or benefits from Employer under this Agreement or otherwise.
“For Cause” means (i) abuse of or addiction to intoxicating drugs (including alcohol); (ii) any act
or omission on the part of Executive which constitutes fraud, malfeasance of duty or conduct
inappropriate to Executive’s office and is reasonably likely to lead to material injury to Bank,
ANB, or a successor or affiliate of Bank or ANB; (iii) indictment or conviction of a felony or a
crime of moral turpitude; (iv) the suspension or removal of Executive by federal or state banking
regulatory authorities; or (v) a breach by Executive of any of the material terms of this
Agreement. In addition, the services of Executive and the obligations of Employer under this
Agreement may be terminated For Cause by Employer due to the death or total disability of
Executive. For purposes of this Section 9, the term “total disability” means Executive’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 Executive’s employment at any time prior to the expiration of the
Employment Period for any reason other than “For Cause”; provided, however, if Employer terminates
Executive other than For Cause, or if Executive terminates his employment for “Good Reason” (as
defined below): (i) Executive shall continue to receive the amount of his then current base salary
until the expiration of the Employment Period (to be paid with the same frequency as Executive’s
salary was paid prior to termination) as if Executive’s employment had continued during such
period; (ii) if Executive continues to participate in Employer’s group medical plan by electing
COBRA continuation coverage, then Employer, until the expiration of the Employment Period, will pay
the premiums of any such COBRA coverage (on a taxable basis to Executive); provided, however, that
Employer’s responsibility to make such COBRA payments will immediately cease if Executive becomes
eligible for any health benefits pursuant to the Medicare program or a subsequent employer’s plan,
or as otherwise permitted or required under COBRA regulations; and (iii) all rights and obligations
specified in Section 8(a) shall survive such termination until the expiration of the Agreement
Term. Other than the payments and benefits provided for in this Section 9(b), Executive
acknowledges that he shall not be entitled to any other payments, benefits or damages from Employer
under this Agreement or otherwise in connection with a termination of Executive by Employer other
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than For Cause or a termination by Executive for Good Reason, and Executive hereby waives all
rights and claims with respect thereto. “Good Reason” means a material breach of
this Agreement by Employer, after Executive has provided written notice of such breach to
Employer within 30 days, and Employer has been afforded at least 30 days to remedy such breach from
the date such notice is received by Employer.
(c) If Executive resigns or terminates his employment hereunder for any reason (other than
Good Reason) prior to the expiration of the Employment Period, (i) he must provide at least 30 days
prior written notice of such resignation or termination, (ii) all rights and obligations specified
in Section 8(a) shall survive any such termination until the expiration of the Agreement Term,
(iii) Executive shall not be entitled to any further compensation or benefits from Employer under
this Agreement or otherwise, and (iv) Employer shall be entitled to all remedies available under
this Agreement and applicable law. Upon receipt of any such notice of termination, Employer may
elect, at its sole option, to have Executive’s resignation or termination effective immediately.
(d) Upon the natural expiration of Executive’s employment pursuant to the expiration of the
Employment Period, (i) Executive shall not be entitled to any further compensation or benefits from
Employer under this Agreement or otherwise, and (ii) the rights and obligations of Section 8(a)
shall survive until the expiration of the Agreement Term.
10. 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, with a copy to ANB at Alabama
National BanCorporation, 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Chief
Executive Officer; or in the case of Executive, to his last known address of record contained in
Employer’s personnel files, or to such other address as instructed by Executive by written notice
to Employer.
11. 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.
12. Validity. Should any court of competent jurisdiction or other judicial body
decide, hold, adjudge or decree that any provision, clause or term of this Agreement is invalid,
void or unenforceable, such determination shall not affect any other provision of this Agreement,
and all other provisions of this Agreement shall remain in full force and effect as if such void or
unenforceable provision, clause or term had not been included herein. Such determination shall not
be deemed to affect the validity or enforceability of this entire Agreement in any other situation
or circumstance, and the parties agree that the scope of this Agreement is intended to extend to
Employer the maximum protection permitted by law. The parties expressly deem the scope, length of
time and the size of the Territory provided for in Sections 7 and 8 of this Agreement to be
reasonable. If, however, any judicial body decides, holds, adjudges or decrees that the scope,
length of time and/or the size of the Territory provided for in Section 7 and/or 8 of this
Agreement is/are unreasonable, then it is the express intent of the parties that such court
determine the scope, length of
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time and/or size of the territory that is/are reasonable and that
such court enforce the terms of this Agreement in accordance with such determination.
13. Attorney’s Fees; Venue. In the event of any litigation arising from, or to
enforce, this Agreement by either party hereunder, including without limitation any action by
Employer to secure an injunction (or other equitable remedy) and/or damages under Sections 7 or 8
hereof, the prevailing party shall be entitled to recovery of all costs and reasonable attorney’s
fees incurred and paid by such party. The exclusive venue for any legal action concerning, arising
out of or relating to this Agreement or any of its provisions shall be the state or federal court
located in Orlando, Florida. The parties agree and consent to the jurisdiction of such court and
waive any objection as to personal jurisdiction or venue therein.
14. Parties. This Agreement shall be binding upon and shall inure to the benefit of
any successors or assigns of Employer and/or ANB. Employer may assign this Agreement to another
wholly-owned bank subsidiary of ANB without the consent of Employee, and Employer’s successors and
assigns that are wholly-owned bank subsidiaries of ANB may enforce any and all terms and conditions
of this Agreement, including but not limited to the confidentiality, non-competition and
non-solicitation provisions contained in this Agreement. This Agreement shall be binding upon
Employee’s heirs, estate and personal representative, and Employee may not assign any of his rights
or delegate any of his duties or obligations under this Agreement or any portion hereof. Provided,
however, notwithstanding anything to the contrary herein, if after the occurrence of a Change in
Control (as defined below), (A) Executive is assigned duties materially inconsistent with
Executive’s authorities, duties and responsibilities as in effect immediately prior to such Change
in Control, and (B) Executive thereafter voluntarily terminates his employment hereunder, the
rights and obligations specified in Section 8(a) shall terminate and shall not survive any such
termination of employment, and Executive shall not be entitled to any further payments, benefits or
damages from Employer under this Agreement or otherwise, and Executive hereby waives all rights and
claims with respect thereto. “Change in Control” means (1) any transaction, whether by merger,
consolidation, tender offer or otherwise, which results in the acquisition of beneficial ownership
(as such term is defined under rules and regulations promulgated under the Securities Exchange Act
of 1934, as amended) by any person or entity or any group of persons or entities acting in concert,
of 50% or more of the outstanding shares of common stock of ANB; or (2) the sale of all or
substantially all of the assets of ANB.
15. Waiver of Claims. In consideration of the obligations of Employer hereunder,
Executive acknowledges that, at the request and election of Employer, as a condition precedent to
receiving any severance payments or benefits from Employer otherwise payable hereunder, he will be
required to execute and deliver a release whereby he unconditionally releases Employer, its
directors, officers, employees, agents and shareholders, from any and all claims, liabilities and
obligations of any nature pertaining to the termination of Executive’s employment by Employer,
including but not limited to (a) any claims under federal, state or local laws prohibiting
discrimination, including without limitation the Age Discrimination in Employment Act of 1967, as
amended, or (b) any claims growing out of any alleged legal restrictions on Employer’s right to
terminate Executive’s employment, such as any alleged implied contract of employment or termination
contrary to public policy.
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16. Taxes; Withholding. Executive shall be solely responsible for the payment of all
income and other taxes in connection with any and all payments received from Employer or made by
Employer on Executive’s behalf. All compensation payable pursuant to this Agreement, including
without limitation severance compensation and COBRA payments, shall be subject to reduction by
all applicable withholding, social security and other federal, state and local taxes and
deductions.
17. Survival. The rights, obligations, agreements and provisions contained in
Sections 7 through 17 of this Agreement shall survive the termination of Executive’s employment for
any reason and/or the expiration of the Agreement Term.
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 Executive 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) 21/2 months after the end of Executive’s first taxable year in which the
amount is no longer subject to a “substantial risk of forfeiture” or (b) 21/2 months after the end of
Executive’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; Waiver. The parties’ intent is that this Agreement shall become
effective immediately prior to the consummation of the transactions provided for in the Merger
Agreement. Once effective, this Agreement supersedes and cancels any and all prior employment
agreements or understandings entered into between Executive, Employer and/or ANB, including without
limitation that certain Executive Employment Agreement dated as of February 28, 2005, between
Executive and Employer (the “Prior Agreement”). Under the terms of the Prior Agreement, Executive
would have been entitled to a change in control payment (“Change in Control Payment”) in connection
with the consummation of the transactions provided for in the Merger Agreement if the Prior
Agreement had remained in effect. As a material inducement for Employer to enter into this
Agreement, Executive acknowledges and agrees that, notwithstanding anything to the contrary in the
Prior Agreement or otherwise, he is not entitled to, and he will not claim or seek, any payment(s)
from Employer or ANB under or in connection with the Prior Agreement, including without limitation
any Change in Control Payment or any related payment, and Executive hereby irrevocably waives and
releases any and all rights thereto.
[Signature pages follow.]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by Executive and by a
duly authorized officer of Employer as of the date first above written.
| “Employer”: | ||||||||
| Florida Choice Bank | ||||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||||
| Name: | Xxxxxx X. Xxxxxx | |||||||
| Its: | COO | |||||||
| “Executive”: | ||||||||
| /s/ Xxxxxxxx X. Xxxxxxxxx | /s/ Xxxxxxx X. XxXxx | |||||||
| Witness | Xxxxxxx X. XxXxx | |||||||
| /s/ Xxxxxxx X. Xxxxx | ||||||||
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