EMPLOYMENT AGREEMENT
Chief Executive
Officer
This Employment Agreement (the
“Agreement”) is made effective as of May 27, 2009, by and between TIB
Financial Corp. (the “Holding Company”), TIB Bank (the “Bank”), and Xxxxxx X.
Xxxxx (the “Executive”).
WITNESSETH:
WHEREAS, the Holding Company and the
Bank (collectively the “Company”) desire to retain the services of and employ
the Executive, and the Executive desires to provide services to the Company,
pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the promises and of the covenants and
agreements herein contained, the Company and the Executive covenant and agree as
follows:
1.
Employment . Pursuant to the terms and conditions
of this Agreement, the Company agrees to employ the Executive and the Executive
agrees to render services to the Company as set forth herein, all effective as
of the date set forth above. Notwithstanding any other provision in this
Agreement, the employment of the Executive in accordance with the terms of this
Agreement shall be subject to the prior approval, as and to the extent required
by law, of the applicable federal banking agencies having jurisdiction over the
Holding Company and the Bank. This Agreement supercedes any prior
employment agreement entered into between the Company and the Executive prior to
the date hereof, and any such prior employment agreement is hereby
terminated.
2.
Position and Duties; Records . During the term of
this Agreement, the Executive shall serve as Chief Executive Officer of the
Holding Company and Chairman of the Board of the Bank, and shall undertake such
duties, consistent with such titles, as may be assigned to him from time to time
by the Boards of Directors of the Holding Company and the Bank
(collectively referred to as the “Board”), including management of all Company
personnel, serving on Board committees as appointed from time to time by the
Board, keeping the Board informed of industry and regulatory developments
regarding the Company, coordinating with Company personnel and third parties to
the extent necessary to further the profitability and business of the Company,
and assisting in keeping the Company in compliance with applicable laws and
regulations. During the term of this Agreement, the Executive also shall
serve as a director of the Bank, and will be nominated to the board of TIB
Financial Corp. Subject to Sections 11, 12, 13 and 14 of this Agreement,
the Executive shall have the right to manage and pursue personal and family
interests, and make investments in securities, real estate, and other assets,
and also to participate in charitable and community activities and
organizations, so long as such activities do not adversely affect the
performance by Executive of his duties and obligations to the Company. All
files, records, documents, manuals, books, forms, reports, memoranda, studies,
data, calculations, recordings or correspondence, in whatever form they may
exist, and all copies, abstracts and summaries of the foregoing, and all
physical items related to the business of the Company, its affiliates and their
respective directors and officers, whether of a public nature or not, and
whether prepared by Executive or not, are and shall remain the exclusive
property of the Company, and shall not be removed from their premises, except as
required in the course of providing the services pursuant to this Agreement,
without the prior written consent of the Company. Such items shall be
promptly returned by the Executive on the termination of this Agreement or at
any earlier time upon the request of the Company.
3.
Term . The term of employment pursuant to this
Agreement shall be for a period of two years, commencing with the date set forth
in Section 1 and expiring (unless sooner terminated as otherwise provided in
this Agreement or unless otherwise renewed or extended as set forth herein) on
the second anniversary of this Agreement, which date, including any earlier date
of termination or any extended expiration date, shall be referred to as the
“Expiration Date”. Subject to the provisions of Section 8 of this
Agreement, the term of this Agreement and the employment of the Executive by the
Company hereunder shall be deemed automatically renewed for successive periods
of one year commencing on the second anniversary date of this Agreement, unless
either party gives the other written notice, at least 180 days prior to the end
of the then term of the Agreement. After termination of the employment of
the Executive for any reason whatsoever, the Executive shall continue to be
subject to the provisions of Sections 10 through 19, inclusive, of this
Agreement; provided,
however, that the Executive shall not be subject to the provisions of
Section 13 where the employment of the Executive is terminated following the
closing of a Change of Control, or where the term of employment is not renewed
pursuant to this Section 3.
4.
Compensation . During the term of this Agreement,
the Company shall pay or provide to the Executive as compensation for the
services of the Executive set forth in Section 2 hereof:
(a) A base annual salary of $250,000
during the first year of this Agreement, such base annual salary to be subject
to increase thereafter as the Board in its discretion shall determine. The
foregoing base salary shall be payable in such periodic installments consistent
with other employees of the Bank.
(b) Such incentive bonuses as may be
awarded by the Board from time to time. The incentive bonus shall be
prorated as determined by the Board for a partial year that occurs within the
calendar year.
5.
Benefits and Insurance . The Bank shall provide to
the Executive such medical, health, and life insurance as well as any other
benefits as the Board shall determine from time to time. At a minimum, the
Executive shall be entitled to (i) participate in all employee benefit plans
offered to the Bank’s employees generally, and (ii) life insurance coverage
(payable to such beneficiary as the Executive may designate from time to
time). The Executive also shall be entitled to participate in any group
disability plan maintained by the Bank, with the Bank paying to the Executive
his base annual salary during any waiting period imposed by such plan for the
receipt of disability benefits thereunder.
6.
Vacation . The Executive may take up to four weeks
of vacation time at such periods during each year as the Board and the Executive
shall determine from time to time. The Executive shall be entitled to full
compensation during such vacation periods.
7.
Reimbursement of Expenses . The Bank shall
reimburse the Executive for reasonable expenses incurred in connection with his
employment hereunder subject to guidelines issued from time to time by the Board
and upon submission of documentation in conformity with applicable requirements
of federal income tax laws and regulations supporting reimbursement of such
expenses.
8.
Termination . The employment of the Executive may
be terminated as follows:
(a) By
the Company, by action taken by its Board, at any time and immediately upon
written notice to the Executive if said termination is for Cause. In
the notice of termination furnished to the Executive under this Section 8(a),
the reason or reasons for said termination shall be given and, if no reason or
reasons are given for said termination, said termination shall be deemed to be
without Cause and therefore termination pursuant to Section 8(e). Any
one or more of the following conditions shall be deemed to be grounds for
termination of the employment of the Executive for Cause under this Section
8(a):
(i)
If the Executive shall fail or refuse to comply with the obligations required of
him as set forth in this Agreement or comply with the policies of the Company
established by the Board from time to time; provided, however, that for
the first such failure or refusal, the Executive shall be given written warning
(providing at least a 10 day period for an opportunity to cure), and the second
failure or refusal shall be grounds for termination for
Cause;
(ii)
If the Executive shall have engaged in conduct involving fraud, deceit, personal
dishonesty, or breach of fiduciary duty;
(iii)
If the Executive shall have violated any banking law or regulation, memorandum
of understanding, cease and desist order, or other agreement with any banking
agency having jurisdiction over the Company which, in the judgment of the Board,
has adversely affected, or may adversely affect, the business or reputation of
the Company as determined by the Board;
(iv)
If the Executive shall have become subject to continuing intemperance in the use
of alcohol or drugs which has adversely affected, or may adversely affect, the
business or reputation of the Company as determined by the Board;
(v)
If the Executive shall have filed, or had filed against him, any petition under
the federal bankruptcy laws or any state insolvency laws;
(vi)
If any banking authority having supervisory jurisdiction over the Holding
Company or the Bank initiates any proceedings for removal of the
Executive;
(vii)
If the Executive shall have failed to substantially perform the duties required
of the Executive, or if the Executive shall have engaged in business or
professional conduct that the Board determines is detrimental to the Company;
or
(viii)
If the Executive shall have failed to achieve performance standards or
objectives mutually agreed upon from time to time by the Executive and the
Company.
In the event of termination for Cause, the Company shall pay the Executive only
salary and vacation amounts accrued and unpaid as of the effective date of
termination.
(b)
By the Executive upon the lapse of 30 days following written notice by the
Executive to the Company of termination of his employment hereunder for Good
Reason (as defined below), which notice shall reasonably describe the Good
Reason for which the Executive’s employment is being terminated; provided, however, that if
the Good Reason specified in such notice is such that there is a reasonable
prospect that it can be cured with diligent effort within 30 days, the Company
shall have the opportunity to cure such Good Reason, for a period not to exceed
30 days from the date of such notice, and the Executive’s employment shall
continue in effect during such time so long as the Company makes diligent
efforts during such time to cure such Good Reason. If such Good Reason
shall be cured by the Company during such time, the Executive’s employment and
the obligations of the Company hereunder shall not terminate as a result of the
notice which has been given with respect to such Good Reason. Cure of any
Good Reason with or without notice from the Executive shall not relieve the
Company from any obligations to the Executive under this Agreement or otherwise
and shall not affect the Executive’s rights upon the reoccurrence of the same,
or the occurrence of any other, Good Reason. For purposes of this
Agreement, the term “Good Reason” shall mean (i) any material breach by the
Company of any provision of this Agreement, or (ii) any significant reduction
(not pertaining to job performance issues), in the duties, responsibilities,
authority or title of the Executive as an officer of the
Company.
If the Executive’s employment is terminated by the Executive for Good Reason,
the Company shall (i) for a period of one year thereafter, continue to pay to
the Executive the base annual salary in effect under Section 4(a) on the date of
said termination (or, if greater, the highest annual salary in effect for the
Executive within the 36 month period prior to said termination) plus an annual
amount equal to any bonus paid by the Company to the Executive during the 12
month period prior to said termination, such salary and bonus to be payable in
such periodic installments (and not as a lump sum payment) consistent with the
payroll periods for the Company’s payments to its other employees; and (ii) for
a period of 12 months, pay directly or reimburse the Executive for continued
coverage in accordance with the Consolidated Omnibus Budget Reconciliation Act
under the Bank’s medical insurance plan.
(c) By the Executive upon the lapse of
45 days following written notice by the Executive to the Company of his
resignation from the Company for other than Good Reason; provided, however, that the
Company, in its discretion, may cause such termination to be effective at any
time during such 45-day period. If the Executive’s employment is
terminated because of the Executive’s resignation, the Company shall only be
obligated to pay to the Executive any salary and vacation amounts accrued and
unpaid as of the effective date of such resignation.
(d) If the Executive’s employment is
terminated by the death of the Executive, this Agreement shall automatically
terminate, and the Company shall be obligated to pay to the Executive’s estate
any salary, vacation, and bonus amounts accrued and unpaid at the date of
death. If the Executive is disabled (as such term is defined in the
disability insurance plan maintained by the Company), then the Company shall
have the right to terminate the Executive’s employment, in which case the
Company shall be obligated to pay to the Executive (i) any salary, vacation and
bonus amounts accrued and unpaid at the date of such termination of employment,
and (ii) continued salary payments (not to exceed 30 days) until the Executive
is eligible to receive payments under the Company’s disability insurance
plan.
(e) By the Company, by action taken by
its Board, at any time if said termination is without Cause. If the
Executive’s employment is terminated by the Company without Cause, the Company
shall (i) for a period of one year thereafter, continue to pay to the Executive
the base annual salary in effect under Section 4(a) on the date of said
termination (or, if greater, the highest annual salary in effect for the
Executive within the 36 month period prior to said termination) plus an annual
amount equal to any bonus paid by the Company to the Executive during the 12
month period prior to said termination, such salary and bonus to be payable in
such periodic installments (and not as a lump sum payment) consistent with the
payroll periods for the Company’s payments to its other employees; and (ii) for
a period of 12 months, reimburse the Executive for continued coverage in
accordance with the Consolidated Omnibus Budget Reconciliation Act under the
Bank’s medical insurance plan.
9.
Change of Control .
(a) Upon the closing of a Change of
Control, the Executive shall be entitled to receive at the closing a lump sum
payment an amount equal to two times the sum of (i) the then base annual salary
received by the Executive, and (ii) any bonus paid to or earned by the Executive
within the prior twelve month period. For purposes of this Agreement, a
Change of Control shall mean a merger in which the Holding Company is not the
surviving entity, the acquisition of the Bank by means of a merger,
consolidation or purchase of 80% or more of its outstanding shares, or the
acquisition by any individual or group of beneficial ownership of more than 50%
of the outstanding shares of Holding Company common stock. The term
“group” and the concept of beneficial ownership shall have such meanings
ascribed thereto as set forth in the Securities Exchange Act of 1934, as amended
(the “1934 Act”), and the regulations and rules thereunder.
(b) Excise
Tax . In the event that any consideration or other amount paid
or payable to Executive hereunder as well as any other agreements between the
Executive and the Company constitutes or is deemed to be an “excess parachute
payment” within the meaning of Section 280G(b) of the Internal Revenue Code of
1986 (or any other amended or successor provision) that is subject to the tax
imposed pursuant to Section 4999 of the Internal Revenue Code of 1986 (or any
other amended or successor provisions) (“Excise Tax”), the Company shall pay to
Executive an amount (“Gross-Up Amount”) that, after reduction of the amount of
such Gross-Up Amount for all federal, state and local tax to which the Gross-Up
Amount is subject (including the Excise Tax to which the Gross-Up Amount is
subject) is equal to the amount of the Excise Tax to which such amount
constituting an excess parachute payment is subject. For purposes of determining
the amount of any Gross-Up Amount, Executive shall be deemed to pay federal
income taxes at the highest marginal rate of federal income taxation in the
calendar year in which the Gross-Up Amount is to be made and state and local
income taxes at the highest marginal rate of taxation in the state and locality
of residence of Employee on the date the excess parachute payment is made, net
of the maximum reduction in federal income taxes that could be obtained from the
deduction of such state and local taxes.
(c) Termination
of Employment . If the employment of the Executive is terminated
at any time following a Change of Control, then the benefits received by the
Executive pursuant to this Section 9 shall be in lieu of any other termination
benefits that the Executive would have otherwise received under any other
provision of Section 8, except that the Executive shall be entitled to receive
from the Company, any salary and vacation amounts accrued and unpaid as of the
effective date of such termination.
10.
Notice . All notices permitted or required to be
given to either party under this Agreement shall be in writing and shall be
deemed to have been given (a) in the case of delivery, when addressed to the
other party as set forth at the end of this Agreement and delivered to said
address, (b) in the case of mailing, three days after the same has been mailed
by certified mail, return receipt requested, and deposited postage prepaid in
the U.S. Mails, addressed to the other party at the address as set forth at the
end of this Agreement, and (c) in any other case, when actually received by the
other party. Either party may change the address at which said notice is
to be given by delivering notice of such to the other party to this Agreement in
the manner set forth herein.
11.
Confidential Matters . The Executive is aware and
acknowledges that the Executive shall have access to confidential information by
virtue of his employment. The Executive agrees that, during the period of
time the Executive is retained to provide services to the Company, and
thereafter subsequent to the termination of Executive’s services to the Company
for any reason whatsoever, the Executive will not release or divulge any
confidential information whatsoever relating to the Company or its business, to
any other person or entity without the prior written consent of the
Company. Confidential information does not include information that is
available to the public or which becomes available to the public other than
through a breach of this Agreement on the part of the Executive. Also, the
Executive shall not be precluded from disclosing confidential information in
furtherance of the performance of his services to the Company or to the extent
required by any legal proceeding.
12.
Injunction Without Bond . In the event there is a
breach or threatened breach by the Executive of the provisions of Sections 11,
13, or 14, the Company shall be entitled to an injunction without bond to
restrain such breach or threatened breach, and the prevailing party in any such
proceeding will be entitled to reimbursement for all costs and expenses,
including reasonable attorneys’ fees in connection therewith. Nothing
herein shall be construed as prohibiting the Company from pursuing such other
remedies available to it for any such breach or threatened breach including
recovery of damages from the Executive.
13.
Noncompetition . The Executive agrees that during
the period of time the Executive is retained to provide services to the Company,
and thereafter for a period of one year subsequent to the termination of
Executive’s services to the Company for any reason whatsoever (except where the
employment of the Executive is terminated following the closing of a Change of
Control, or where the term of employment is not renewed pursuant to Section 3),
Executive will not enter the employ of, or have any interest in, directly or
indirectly (either as executive, partner, director, officer, consultant,
principal, agent or employee), any other bank or financial institution or any
entity which either accepts deposits or makes loans (whether presently existing
or subsequently established) and which has an office located within a radius of
50 miles of any office of the Bank (a “Competitive Activity”); provided, however, that the
foregoing shall not preclude any ownership by the Executive of an amount not to
exceed 5% of the equity securities of any entity which is subject to the
periodic reporting requirements of the 1934 Act. Notwithstanding the
foregoing, the Executive agrees that the Executive will be bound by the
provisions of this Section 13 for a period of one year where the term of
employment is not renewed pursuant to Section 3 provided that during such
one-year period the Company continues to pay to the Executive the base annual
salary in effect under Section 4(a) on the date of termination of employment
plus an amount equal to any bonus paid by the Company to the Executive during
the 12-month period prior to said termination, such salary and bonus to be
payable in such periodic installments (and not as a lump sum payment) consistent
with the payroll periods for the Company’s payments to its other
employees.
14.
Nonsolicitation; Noninterference;
Nondisparagement . The Executive agrees that during the period
of time the Executive is retained to provide services to the Company, and
thereafter for a period of one year subsequent to the termination of Executive’s
services to the Company for any reason whatsoever, the Executive will not (a)
solicit for employment by Executive, or anyone else, or employ any employee of
the Company or any person who was an employee of the Company within 12 months
prior to such solicitation of employment; (b) induce, or attempt to induce, any
employee of the Company to terminate such employee’s employment; (c) induce, or
attempt to induce, anyone having a business relationship with the Company to
terminate or curtail such relationship or, on behalf of himself or anyone else,
to compete with the Company; or (d) permit anyone controlled by the Executive,
or any person acting on behalf of the Executive or anyone controlled by an
employee of the Executive to do any of the foregoing. Notwithstanding the
foregoing, the Executive agrees that the Executive will be bound by the
provisions of this Section 14 for a period of one year where the term of
employment is not renewed pursuant to Section 3 provided that during such
one-year period the Company continues to pay to the Executive the base annual
salary in effect under Section 4(a) on the date of termination of employment
plus an amount equal to any bonus paid by the Company to the Executive during
the 12-month period prior to said termination, such salary and bonus to be
payable in such periodic installments (and not as a lump sum payment) consistent
with the payroll periods for the Company’s payments to its other
employees. The Executive also agrees that during the term of this
Agreement and thereafter, the Executive will not disparage, denigrate or comment
negatively upon, either orally or in writing, the Company, any of its
affiliates, or any of their respective officers or directors, to or in the
presence of any person or entity, unless compelled to act by subpoena or other
legal mandate.
15.
Remedies . The Executive agrees that the
restrictions set forth in this Agreement are fair and reasonable. The
covenants set forth in this Agreement are not dependent covenants and any claim
against the Company, whether arising out of this Agreement or any other
agreement or contract between the Company and Executive, shall not be a defense
to a claim against Executive for a breach or alleged breach of any of the
covenants of Executive contained in this Agreement. It is expressly
understood by and between the parties hereto that the covenants contained in
this Agreement shall be deemed to be a series of separate covenants. The
Executive understands and agrees that if any of the separate covenants are
judicially held invalid or unenforceable, such holding shall not release him
from his obligations under the remaining covenants of this Agreement. If
in any judicial proceedings, a court shall refuse to enforce any or all of the
separate covenants because taken together they are more extensive (whether as to
geographic area, duration, scope of business or otherwise) than necessary to
protect the business and goodwill of the Bank, it is expressly understood and
agreed between the parties hereto that those separate covenants which, if
eliminated or restricted, would permit the remaining separate covenants or the
restricted separate covenant to be enforced in such proceeding shall, for the
purposes of such proceeding, be eliminated from the provisions of this Agreement
or restriction, as the case may be.
16.
Invalid Provision . In the event any provision
should be or become invalid or unenforceable, such facts shall not affect the
validity and enforceability of any other provision of this Agreement.
Similarly, if the scope of any restriction or covenant contained herein should
be or become too broad or extensive to permit enforcement thereof to its full
extent, then any such restriction or covenant shall be enforced to the maximum
extent permitted by law, and Executive hereby consents and agrees that the scope
of any such restriction or covenant may be modified accordingly in any judicial
proceeding brought to enforce such restriction or covenant.
17.
Governing Law . This Agreement shall be construed
in accordance with and shall be governed by the laws of the State of Florida.
18.
Arbitration . Except for injunctive relief as
provided in Section 12 above, all disputes between the parties hereto concerning
the performance, breach, construction or interpretation of this Agreement, or in
any manner arising out of this Agreement, shall be submitted to binding
arbitration in accordance with the rules of the American Arbitration
Association, which arbitration shall be carried out in the manner set forth
below:
(a) Within fifteen (15) days after
written notice by one party to the other party of its demand for arbitration,
which demand shall set forth the name and address of its designated arbitrator,
the other party shall select its designated arbitrator and so notify the
demanding party. Within fifteen (15) days thereafter, the two arbitrators so
selected shall select the third arbitrator. The dispute shall be heard by the
arbitrators within sixty (60) days after selection of the third arbitrator. The
decision of any two arbitrators shall be binding upon the parties. Should any
party or arbitrator fail to make a selection, the American Arbitration
Association shall designate such arbitrator upon the application of either
party. The decision of the arbitrators shall be final and binding upon the
Company, its successors and assigns, and upon Executive, his successors and
representatives, as the case may be.
(b) Unless the Parties agree
otherwise, the arbitration proceedings shall take place in the city where the
headquarters of the Holding Company is located. The judgment and
determination of such proceedings shall be binding on all parties thereto.
Judgment upon any award rendered by the arbitrators may be entered into any
court having competent jurisdiction without any right of
appeal.
(c) Each party shall bear its or his
own expenses of arbitration, and the expenses of the arbitrators and the
arbitration proceeding shall be shared equally. However, if in the opinion of a
majority of the arbitrators, any claim or defense was unreasonable, the
arbitrators may assess, as part of their award, all or any part of the
arbitration expenses of the other party (including reasonable attorneys’ fees)
and of the arbitrators and the arbitration proceeding against the party raising
such unreasonable claim or defense.
19.
Binding Effect . This Agreement shall be binding
on and inure to the benefit of the parties hereto and their respective
successors and legal representatives and beneficiaries.
20.
Effect on Other Agreements . This Agreement and
the termination thereof shall not affect any other agreement between the
Executive and the Company, and the receipt by the Executive of benefits
thereunder.
21.
Compliance with Section 409A . Notwithstanding
anything herein to the contrary, if it is determined by the Bank or the
Executive, in good faith, at the time of the Executive’s termination of
employment that the Executive is a “specified employee” within the meaning of
Section 409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended (the
“Code”) and that payments to be made to the Executive hereunder, if made earlier
than as required under Section 409A(a)(2)(B)(i) of the Code would result in the
requirement for the Executive to pay additional interest and taxes to be imposed
in accordance with Section 409A(a)(1)(B) of the Code, then any payments to be
made in accordance with this Agreement shall be made as of the date that is 184
calendar days from the date of the Executive’s termination of employment, or
immediately upon the death of the Executive, if earlier. The provisions of
this Section 21 shall survive the expiration of this
Agreement.
22.
Miscellaneous . The rights and duties of the
parties hereunder are personal and may not be assigned or delegated without the
prior written consent of the other party to this Agreement. The captions
used herein are solely for the convenience of the parties and are not used in
construing this Agreement. Time is of the essence of this Agreement and
the performance by each party of its or his duties and obligations
hereunder.
23.
Complete Agreement . This Agreement constitutes
the complete agreement between the parties hereto with respect to the subject
matter hereof and incorporates all prior discussions, agreements and
representations made in regard to the matters set forth herein. This
Agreement may not be amended, modified or changed except by a writing signed by
the party to be charged by said amendment, change or
modification.
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date first above written.
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TIB BANK
|
By: /s/
Xxxxxxx X. Xxxxxxx,
Xx. By:
/s/ Xxxxxxx X. Xxxxxxx, Xx.
Xxxxxxx
X. Xxxxxxx,
Xx.
Xxxxxxx X. Xxxxxxx, Xx.
Chairman
of the
Board
Director
|
|
“EXECUTIVE”
|
/s/
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, individually
Address:
____________________________
