EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into effective as of the 28th day of December,
1995, by and between XXXXXXXX, XXXXXX & XXXXXXXXXX, INC., a corporation
incorporated under the laws of the State of Florida ("EPW") and XXXX X.
XXXXXX (the "Employee").
WHEREAS, EPW has organized and operates an investment management and advisory
services business ("Advisory Services Business");
WHEREAS, EPW desires to enter into an employment relationship with the Employee
to obtain the services of the Employee for its Advisory Services Business, on
terms and conditions set forth herein; and
WHEREAS, the Employee is willing to accept such employment;
NOW, THEREFORE, the Parties hereto, in consideration of the mutual covenants and
promises hereinafter contained, do hereby agree as follows:
1. Employment. EPW hereby employs Employee in the capacity of President or
another position within EPW of the same or greater stature, as the CEO of
EPW may direct or desire from time tO time.
2. Duties. The Employee's principal duties and responsibilities shall be those
that are usual and customary for the Employee's position and as provided
from time to time by the Board of Directors or Chief Executive Officer of
EPW.
3. Acceptance. Employee hereby accepts the employment, on the terms and
conditions herein set forth. Employee agrees to perform such services and
duties and hold such offices as may be assigned to him from time to time by
EPW and to devote his full business time, energies and best efforts to the
performance thereof to the exclusion of all other business activities,
except such activities as EPW may consent to in writing. Employee further
agrees to maintain any and all necessary state and federal licenses that
may be required to provide investment management and advisory services.
4. Term. The term of employment shall begin on the date hereof, with the
Employee's commencing full-time work on that date and shall continue until
terminated as herein provided.
5. Facilities. EPW shall provide the Employee with an office, staff,
stenographic help, equipment and other services and facilities reasonably
required and suitable for the performance of the Employee's duties
hereunder.
6. Salary. For each calendar year of employment, commencing January 1, 1996,
the Employees shall be paid compensation in accordance with the following:
(a) The Employer shall establish an annual "Salary Pool," which shall be
equal to the lesser of the "Fixed Salary Pool" or the "Variable Salary
Pool."
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i) The Fixed Salary Pool shall be equal to $115,000 times three, or
if less, times the number of "Shareholders" employed by the
Employer for the particular year.
ii) The Variable Salary Pool shall be equal to 15.5% of "revenues"
times three, or if less, times the number of "Shareholders"
employed by the Employer for the particular year.
(b) For purposes of Salary Pool calculations:
i) "Shareholders" shall be Eicldaoff, Xxxxxx and Xxxxxxxxxx, or
whomever among them is then employed by the Employer.
ii) For any partial year of employment, the "number" of Shareholders
employed shall be adjusted to reflect the partial year. For
example, if in 1998, Xxxxxxxx resigns as of June 30, 1998, then
for that calendar year, the Fixed Salary Pool shall be $115,000
times 2.5. Also, for example, if in 1998, Xxxxxxxx resigns as of
March 31, 1998, then for that calendar year, the Variable Salary
Pool shall be 15.5% of revenues times 2.25.
iii) "Revenues" shall mean the gross receipts earned by EPW for
a'calendar year (with adjustments for returns, allowances and
sales taxes, if any) for which calculations are being made,
calculated in accordance with generally accepted accounting
principles consistently applied. Accrual accounting shall be
used, and compensation paid to EPW from United Bank and Trust
Company shall be included. In the event the Employee and Employer
do not agree upon the calculation of revenues for any annual
period, the disagreement shall be resolved by the regularly
employed independent accountant for the Employer, whose decision
shall, unless fraudulent or patently erroneous, bind the parties.
(c) The Employee shall participate in the Salary Pool only during the
portion of each calendar year he is employed under this Agreement.
(d) The Board of Directors shall allocate the entire Salary Pool for each
year among the Shareholders then employed by the Employer. The
allocation may be estimated prospectively for each calendar
quarter-annual period, upon the advice of the Compensation Committee
of the Employer. If no recommendation is made for a particular
quarter-annual period, the allocation then in effect shall continue
during the applicable period.
(e) However, the allocations for any calendar year from the Salary Pool to
the Employee may be in any amount, from zero to the maximum amount in
the Salary Pool for the year. The allocations to the Employee are
within the sole and absolute discretion of the Board of Directors of
the Employer, after it has the advice and counsel of the Compensation
Committee.
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(f) Compensation advances shall be paid monthly in arrears, and shall be
adjusted as of the end of each calendar year, or as of the date
employment terminates if earlier. Any reductions or increases in
compensation shall be settled as of the year end, or if earlier, as of
the date of employment terminates. Revenues shall be calculated for
each year (or applicable shorter period) as soon as practicable, and
may be estimated, subject to adjustment upon completion of the annual
audit of the Employer's books and records by its independent
accountant.
7. Bonus.
(a) "The Employee shall participate each calendar year of employment after
1995 in the Employer's Bonus Pool. The Bonus Pool, and the Employee's
participation, shall be in accordance with the following:
i) The total amount of the Bonus Pool for each calendar year shall
be allocated by the Employer among the Shareholders (as defmed
above in this Agreement) then employed by the Employer. The
amount of the Bonus Pool shall not be reduced when one or more of
the Shareholders is no longer employed by the Employer. However,
the allocations for any calendar year from the Bonus Pool to the
Employee may be, unless the Employee is the sole Shareholder then
employed by Employer, in any amount, from zero to the maximum
amount in the Bonus Pool for the year. The allocations to the
Employee are within the sole and absolute discretion of the Board
of Directors of the Employer, after it has the advice and counsel
of the Compensation Committee.
ii) Allocations shall be made as of the end of each calendar year, as
soon as practicable, but in any event by April 30th of each
subsequent year.
iii) The Bonus Pool is deemed earned for a calendar year on December
31st of the year. The Employee shall not be eligible to
participate in the Bonus Pool for a year unless he has been
employed under this Agreement for the entire calendar year.
iv) The Bonus Pool shall be calculated each calendar year in
accorctance with the following:
If Annual Pre-tax Profit of Employer is: Bonus Pool % of Pre-tax
Profits
$100,000 to $150,000 25%
$150,001 to $250,000 35%
$250,001 to more 40%
v) The annual pre-tax profit for the Employer for each year shall be
calculated on the accrual basis by application of generally
accepted accounting principles consistently applied. For purposes
of this calculation, the Employer's net profits shall not be
consolidated with those of the Trust Department of United Bank
and Trust Company, but otherwise, pre-tax net profits of the
Employer shall bear appropriate allocations of affiliated charges
and expenses, using the principals provided in the EPW Stock
Option Plan between the Employer and Pinellas Bancshares Corp.
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vi) In the event the Employee and Employer do not agree upon the
calculation of the Bonus Pool, or aaaua! pre-tax net profits, for
any annual period, the disagreement shall be resolved by the
regularly employed independent accountant for the Employer, whose
decision shall, unless fraudulent or patently erroneous, bind the
parties.
vii) The Bonus Pool for a calendar year shall not be less than
$5,000.00 times the number of Shareholders employed on the last
day of such year.
8. Expenses. EPW shall pay or reimburse the Employee for the reasonable and
necessary business expenses of the Employee, provided that the same have
been approved by EPW in accordance with its policies from time to time
established.
9. Employee Benefit Plans. The Employee shall be eligible to participate, to
the extent he may be eligible, in any profit sharing, retirement, group
insurance or other employee benefit plan maintained by EPW or Pinelias
Bancshares Corp. ('PBC"). EPW reserves the fight to amend or cancel such
benefit plans from time to time, provided that all eligible personnel are
similarly treated.
10. Stock Options. The Employee shall participate ia the EPW Stock Option Plan,
a copy of which is annexed hereto as Exhibit 10.
11. Vacations and Leave. The Employee shall be entitled to 4 weeks vacation and
leave time annually and any such additional vacation and leave time as may
be approved by the Board of Directors of EPW.
12. Non-Disclosure of Confidential Information. The Employee acknowledges that
in and as a result of his employment by EPW, he will be making use of,
acquiring, and/or adding to confidential information of a special and
unique nature and value relating to such matters as the EPW's and United
Bank and Trust Company's ("United") proprietary information, trade secrets,
systems, procedures, manuals, confidential reports, lists of customers and
data about customer (which are deemed for all purposes confidential and
proprietary), as well as the nature and type of services rendered by the
EPW and United, the methods used and preferred by EPW's and United's
customers, and the fees paid by them. As a material inducement to EPW to
enter into this Agreement and to pay to Employee the compensation stated in
this Agreement, Employee covenants and agrees that the Employee shall not,
at any time during or following the term of his employment, directly or
indirectly divulge or disclose for any purpose whatsoever any confidential
information that has been obtained by, or disclosed to, Employee as a
result of employment by EPW. In the event of a breach or threatened breach
by Employee of any of the provisions of this Paragraph, EPW, in addition to
and not in limitation of, any other rights, remedies, or damages available
to EPW at law or in equity, shall be entitled to a permanent injunction ia
order to prevent or restrain any such breach by the Employee or by
Employee's partners, agents, representatives, servants, employers,
employees, family members and/or any and all persons directly or indirectly
acting for or with Employee.
13. Covenants Against Competition. Employee, in consideration of his employment
by EPW and other good and valuable consideration, hereby covenants (the
"Covenant") not to compete with EPW pursuant to the following terms:
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(a) Covenant. Employee covenants and agrees with EPW that Employee will
not, directly or indirectly, for himself or in connection with any
person, firm or entity:
i) For a period running during his employment by EPW and from the
date after his employment by EPW terminates until the earlier of
2 years from the date of termination or January 1, 2000 (the
"Non-Compete Term") (the term shall be extended for any period in
which Employee is in violation of the Covenant) come into
competition with EPW by participating in or in connection with or
being employed by any business which engages in a similar line of
business (the "Line of Business") of EPW, predominantly within
EPW's trade area (the "Trade Area").
ii) For a period furming during his employment by EPW and from the
date after his employment by EPW terminates until the earlier of
three (3) years from the date of termination or January 1, 2000
(the term shall be extended from any period in which Employee is
in violation of the Covenant) solicit, sell, or handle any
investment advisory transactions or business for any customers or
clients of EPW (the "Customers or Clients of EPW") or any
subsidiary of EPW; or solicit or persuade any employee of EPW or
the Trust Department of United Bank and Trust Company (the "Trust
Department") to leave the employment of EPW' or Trust Department
or hire any such employee.
(b) Customers or Clients Defined. As used in subsection 13(a)(ii), above,
the phrase "Customers or Clients of EPW" shall mean any customer or
client with which EPW has previously provided goods or services or
otherwise engaged in business association and shall additionally
include all customers and accounts serviced by Employee during the
term of employment of Employee by EPW. "Customers or Clients of EPW"
shall also mean all previous and current customers and clients of the
Trust Department and all persons for whom EPW or Employee has provided
services within the Line of Business.
(e) Line of Business Defined. As used in subsection 13(a), above, the
phrase "Line of Business" shall be defined as the sale of investment
advisory and management services.
(d) Trade Area Defined. As used in subsection 13(a), above, the phrase
"Trade Area" shall encompass Pinelias and Hillsborough Counties,
Florida.
(e) Breach of Covenant. Employee agrees that any breach of this Covenant
will result in irreparable injury to EPW, for which EPW will have no
adequate remedy at law, and Employee consents to an injunction in
favor of EPW, enjoining any breach of this Covenant by any court of
competent jurisdiction, without prejudice, to any other right or
remedy to which EPW may be entitled. In the event that this Covenant
shall be determined by any court of competent jurisdiction to be
unenforceable by reason of its being extended over too great a period
of time, or too large a geographical area, or over too great a range
of activities, the parties agree that this Covenant shall be
interpreted to extend only over the maximum period of time,
geographical area, or range of activities as to which it may be
enforceable. Employee hereby waives any bond requirement pending any
proceeding by EPW to enforce this Covenant. o
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(f) Purchase of EPW. The Covenant shall not apply to a Employee after the
Employee, alone or with others, purchases EPW or after there has been
a "change of control" in accordance with the First Right of Refusal
Agreement between Employee and Pinelias Bancshares Corporation
executed and dated contemporaneously herewith.
(g) Termination of Employee. If Employee is terminated from Employment by
EPW as a result of a material breach pursuant to subsection 14(e)(iii)
of employment agreement, then subsection 13(a)(i) of the Covenant
shall not apply to Employee.
14. Termination. Employment of the Employee under this Agreement will be
terminated:
(a) By the Employee's death.
(b) If the Employee is Totally Disabled.
i) For the purpose of this Agreement, the Employee will be Totally
Disabled if the Employee (1) has been declared legally
incompetent by a final court decree (the date of such decree
being deemed to be the date on which the disability occurred),
(2) receives disability insurance benefits from any disability
income insurance policy maintained by EPW for a period of six (6)
consecutive months, or (3) has been found to be disabled pursuant
to a Disability Determination.
ii) A Disability Determination means a finding that the Employee,
because of a medically determinable disease, injury, or other
mental or physical disability, is unable to perform substantially
all of his regular duties to EPW and that such disability has
lasted at least, six (6) months. The Disability Determination
shall be based on the written opinion of the physician regular
attending the Employee whose disability is in question.
(iii)If EPW disagrees with the opinion of this physician (the "First
Physician"), it may engage at its own expense another physician
(the "Second Physician") to examine the Employee. If the First
and Second Physicians agree in writing that the Employee is or is
not disabled, their written opinion shall, 'except as otherwise
set forth in this subsection, be conclusive on the issue of
disability.
iv) If the First and Second Physicians disagree on the disability of
the Employee, is not Totally Disabled, EPW shall have the right
to request additional Disability Determinations provided it
agrees to pay all the expenses of the Disability Determinations
and does not request an additional Disability Determination more
frequently than once every six (6) months.
v) If there is a conclusive finding that the Employee is not Totally
Disabled, EPW shall have the right to request additional
Disability Determinations provided it agrees to pay all the
expenses of the Disability Determinations and does not request an
additional Disability Determination more frequently than once
every six (6) months.
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vi) In conjunction with a Disability Determination, the Employee
hereby consents to any required medical examination, and agrees
to furnish any medical information requested by any examining
physician and to waive any applicable physician-patient privilege
that may arise because of such examination.
vii) All physicians except the First Physician must be board-certified
in the specialty most closely related to the nature of the
disability alleged to exist.
(c) At the election of the Employee upon six (6) months advance notice.
(d) By mutual agreement of the Employee and EPW.
(e) By EPW for Just Cause. For purposes of this Agreement, "Just Cause"
shall mean only the following:
i) a final non-appealable conviction of or a plea of guilty or nolo
contendere by the Employee to a felony or misdemeanor involving fraud,
embezzlement, theft, or dishonesty or other such criminal conduct
against EPW or others,
ii) habitual neglect of the Employee's duties or failure by the Employee
to perform or observe any substantial lawful obligation of such
employment that is not remedied within thirty (3) days after written
notice thereof from EPW or its Board of Directors, or
iii) any material breach by the Employee of this Agreement that is not
remedied within thirty (30) days after written notice thereof from EPW
or its Board of Directors.
(f) On December 31, 1999 if the Employee has not renewed the Employment
Agreement in writing by July 1, 1999. Employee may renew this
Agreement for a 3 year term from December 31, 1999 if Employee
affirmatively states (prior to or on July 1, 1999), in writing, to the
Board of EPW that Employee wishes to renew this Agreement. In the
event of such renewal, Employee will no longer participate in the EPW
Stock Option Plan or the cash bonus provided in Section 7 of this
Agreement but shall participate in any bonus plan for the Trust
Department of United Bank and Trust Company and EPW will be treated as
part of the Trust Department for these purposes.
(g) On or after December 31, 2002, by either party upon three (3) months
notice to the other.
15. Life Insurance. EPW shall provide a minimum of $900,000.00 (WAE), $900,000
(JHP), $675,000.00 (JPW) in life insurance which shall include the
(convertible) whole life policy issued by Massachusetts Mutual, policy
number 7041723 (WAE), policy number 7041733 (JHP), and policy number
9754602 (JPW) with a current death benefit of $265,061.00 (WAE),
$267,938.00 (JHP) and $200,756.00 (JPW). Upon termination of employment,
employee, at its option, may require EPW to assign the life insurance
policies to suc~ployee provided any such policies are assignable at no cost
to EPW. & 1~~ ~
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16. Resignation From Offices Upon Termination. In the event of termination of
this Agreement other than for death, the Employee hereby agrees to resign
from all positions held in EPW. Positions to be resigned include without
limitations, any position as officer, agent, trustee or consultant of EPW
or any affiliate of EPW (excluding PBC). If at the time of termination the
Employee is a member of the Board of Directors of PBC the Employee shall
remain as director thereof.
17. Waiver. A Party's failure to insist on compliance or enforcement of any
provision of this Agreement, shall not affect the validity or
enforceability or constitute a waiver of future enforcement of that
provision or of any other provision of this Agreement by that party or any
other party.
18. Governing Law. This Agreement shall in all respects be subject to, and
governed by, the laws of the State of Florida.
19. Severability. The invalidity or enforceability of any provision in the
Agreement shall not in any way affect the validity or enforceability of any
other provision and this Agreement shall be construed in all respects as if
such invalid or enforceable provision had never been in the Agreement.
20. Notice. Any and all notices required or permitted herein shall be deemed
delivered if delivered personally or if mailed by registered or certified
mail to EPW at its principal place of business and to the Employee at the
address hereinafter set forth following the Employee's signature, or at
such other address or addresses as either party may hereafter designate in
writing to the other.
21. Assignment. The rights and benefits of either of the parties under this
Agreement may not be assigned, nor the burdens delegated, without the prior
written consent of the other party.
22. Amendments. This Agreement may be amended at any time by mutual consent of
the parties hereto, with any such amendment to be invalid unless in
writing, signed by EPW and the Employee.
23. Entire Agreement. This Agreement contains the entire agreement and
understanding by and between the Employee and EPW with respect to the
employment of Employee, and no representations, promises, agreements, or
understandings, written or oral, relating to the employment of the Employee
by EPW not contained herein shall be of any force or effect. The terms and
provisions of any employee manual or handbook are not a part of this
Agreement.
24. Burden and Benefit. This Agreement shall be binding upon, and shall inure
to the benefit of, EPW and Employee, and their respective heirs, personal
and legal representatives, successors, and assigns.
25. References to Gender and Number Terms. In construing this Agreement,
feminine or number pronouns shall be substituted for those masculine in
form and vice versa, and plural terms shall be substituted for singular and
singular for plural in any place in which the context so requires.
26. Headings. The various headings !n this Agreement are inserted for
convenience only and are not part of the Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate
at St. Petersburg, Florida, effective the day and year first above written.
/s/Xxxxxxx X. Xxxxxxxx
_________________________________________________
Xxxxxxxx, Xxxxxx and Xxxxxxxxxx, Inc.
Xxxxxxx X. Xxxxxxxx, as its Chairman and CEO
(Corporate Seal)
Address of EPW for notice purposes:
Xxxx X. Xxxxxx
Address
Employee for notice purposes:
(Seal)
Exhibits:
10 - EPW Stock Option Plan
