EXHIBIT 10.5
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made as of this 28th day of
February, 2005, by and between Florida Choice Bank (the "Bank"), and XXXX XXXXXX
(the "Executive").
WITNESSETH:
WHEREAS, the Bank desires to retain the services of and employ the
Executive, and the Executive desires to provide services to the Bank, 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 Bank and the Executive covenant and agree as
follows:
1. Employment. Pursuant to the terms and conditions of this Agreement, the
Bank agrees to employ the Executive and the Executive agrees to render services
to the Bank as set forth herein.
2. Position and Duties. During the term of this Agreement, the Executive
shall serve as PRESIDENT OF THE BANK, PRESIDENT OF THE HOLDING COMPANY FLORIDA
CHOICE BANKSHARES, AND OFFICER of the Bank and Bank Holding company, and shall
undertake such duties, consistent with such titles, as may be assigned to him
from time to time by the Board of Directors of the Bank (referred to as the
"Board"), including management of all Bank 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 Bank,
coordinating with Bank personnel and third parties to the extent necessary to
further the profitability and business of the Bank, and assisting in keeping the
Bank in compliance with applicable laws and regulations. In performing his
duties pursuant to this Agreement, the Executive shall devote his full business
time, energy, skill and best efforts to promote the Bank and its business and
affairs; provided that, subject to Sections 10, 12 and 13 of this Agreement, the
Executive shall have the right to manage and pursue personal and family
interests, and make passive 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 Bank.
3. Term. The initial term of employment pursuant to this Agreement shall
be for a period of three years, commencing with the date hereof and expiring
(unless sooner terminated as otherwise provided in this Agreement or unless
otherwise renewed or extended as set forth herein) on the third 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 Bank hereunder shall be deemed
automatically renewed for successive periods of one year commencing on the third
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 17, inclusive, of this Agreement; provided, however, that
the Executive shall not be subject to the provisions of Sections 12 or 13 where
the employment of the Executive is terminated by the Executive for Good Reason
(as defined in Section 8) or pursuant to Sections 8(e) or 8(f), or where the
term of employment is not renewed pursuant to this Section 3.
4. Compensation. During the term of this Agreement, the Bank 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 at least $165,000 PER YEAR payable in
such periodic installments consistent with other employees of the Bank (such
base salary to be subject to increase by the Board in its discretion); and
(b) Such individual bonuses and other compensation to the Executive
as may be authorized by the Board from time to time.
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. The Bank
shall undertake to provide for its employees generally (including the Executive)
a retirement plan and a plan qualified under Section 401(k) of the Internal
Revenue Code of 1986, as amended. All benefits referred to herein shall be
provided at reasonable levels and within reasonable time after the commencement
of the Executive's employment pursuant to the terms of this Agreement.
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. The Bank
also shall provide to the Executive an automobile allowance in an amount as
shall be mutually agreed upon by the Executive and the Bank.
8. Termination. The employment of the Executive may be terminated as
follows:
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(a) By the Bank, by action taken by its Board, at any time and
immediately upon written notice to the Executive if said discharge 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(f). 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 Bank established by the Board from time to time; provided,
however, that for the first two such failures or refusals, the Executive shall
be given written warnings (each providing at least a 10 day period for an
opportunity to cure), and the third 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, which in any
such case has materially and substantially adversely affected, or may materially
and substantially adversely affect, the business or reputation of the Bank;
(iii) If the Executive shall have willfully violated any
banking law or regulation, memorandum of understanding, cease and desist order,
or other agreement with any banking agency having jurisdiction over the Bank;
(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 Bank; or
(v) If the Executive shall have filed, or had filed against
him, any petition under the federal bankruptcy laws or any state insolvency
laws.
In the event of termination for cause, the Bank shall pay the
Executive only salary, vacation, and bonus amounts accrued and unpaid as of the
effective date of termination.
(b) By the Executive upon the lapse of 10 days following written
notice by the Executive to the Bank 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 10 days,
the Bank shall have a reasonable time (having regard for the nature of the Good
Reason) to cure such Good Reason, which time shall not in any event exceed 10
days from the date of such notice, and the Executive's employment shall continue
in effect during such reasonable time so
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long as the Bank makes diligent efforts during such time to cure such Good
Reason. If such Good Reason shall be cured by the Bank during such reasonable
time, the Executive's employment and the obligations of the Bank 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 Bank 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 any material
breach by the Bank of any provision of this Agreement, any significant
reduction, without the Executive's prior written consent, in the duties,
responsibilities, authority or title of the Executive as an officer of the Bank,
or if the Executive's employment is terminated by the Bank for any reason other
than cause.
If the Executive's employment is terminated by the Executive for
Good Reason, the Bank shall, for a period of one year after said termination:
(i) 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
Bank to the Executive during the 12 month period prior to said termination; and
(ii) 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 30 days following written
notice by the Executive to the Bank of his resignation from the Bank for other
than Good Reason; provided, however, that the Bank, in its discretion, may cause
such termination to be effective at any time during such 30-day period. If the
Executive's employment is terminated because of the Executive's resignation, the
Bank shall be obligated to pay to the Executive any salary, vacation, and bonus
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 Bank shall
be obligated to pay to the Executive's estate any salary, vacation, and bonus
amounts accrued and unpaid at the date of death.
(e) Upon Change of Control the Executive shall be entitled to
receive promptly thereafter an amount equal to two times the average base annual
salary plus two times the annual bonus received by the Executive during the
three year period prior to such termination. This payment will be made in a lump
sum to the Executive within five days of the Change of Control. For purposes of
this Agreement, a Change of Control shall mean a merger or acquisition in which
the Bank Holding Company is not the surviving entity, or the acquisition by any
individual or group of beneficial ownership of more than 50% of the outstanding
shares of
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Bank 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.
(f) By the Bank, by action taken by its Board, at any time if said
discharge is without cause. If the Executive's employment is terminated by the
Bank without cause, the Bank shall, for a period of two years after said
termination:
(i) 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
Bank to the Executive during the 12 month period prior to said termination; and
(ii) reimburse the Executive for continued coverage in
accordance with the Consolidated Omnibus Budget Reconciliation Act under the
Bank's medical insurance plan.
9. 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.
10. 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 Bank, and thereafter subsequent to the
termination of Executive's services to the Bank for any reason whatsoever, the
Executive will not release or divulge any confidential information whatsoever
relating to the Bank or its business, to any other person or entity without the
prior written consent of the Bank. 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 Bank or to the extent required by any legal proceeding.
11. Injunction Without Bond. In the event there is a breach or
threatened breach by the Executive of the provisions of Sections 10, 12, or 13,
the Bank 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
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prohibiting the Bank from pursuing such other remedies available to it for any
such breach or threatened breach including recovery of damages from the
Executive.
12. Non-competition. The Executive agrees that during the period of time
the Executive is retained to provide services to the Bank, and thereafter for a
period of one year subsequent to the termination of Executive's services to the
Bank for any reason whatsoever (except where the employment of the Executive is
terminated by the Executive for Good Reason or pursuant to Sections 8(e) or
8(f), 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 or any Bank associated with the Bank through
joint charter or holding company; 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 and the shares of Bank common stock owned by the
Executive at the time of termination of employment.
13. Non-solicitation; Non-interference. The Executive agrees that during
the period of time the Executive is retained to provide services to the Bank,
and thereafter for a period of one year subsequent to the termination of
Executive's services to the Bank for any reason whatsoever (except where such
termination is by the Executive for Good Reason or pursuant to Sections 8(e) or
8(f), or where the term of employment is not renewed pursuant to Section 3), the
Executive will not (a) solicit for employment by Executive, or anyone else, or
employ any employee of the Bank or any person who was an employee of the Bank
within 12 months prior to such solicitation of employment; (b) induce, or
attempt to induce, any employee of the Bank to terminate such employee's
employment; (c) induce, or attempt to induce, anyone having a business
relationship with the Bank to terminate or curtail such relationship or, on
behalf of himself or anyone else, compete with the Bank; (d) knowingly make any
untrue statement concerning the Bank or its directors or officers to anyone; or
(e) 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.
14. 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 Bank, whether
arising out of this Agreement or any other agreement or contract between the
Bank 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
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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.
15. 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.
16. Governing Law; Venue. This Agreement shall be construed in
accordance with and shall be governed by the laws of the State of Florida. The
sole and exclusive venue for any action arising out of this Agreement shall be a
federal or state court situated in Lake County, Florida, and the parties to this
Agreement agree to be subject to the personal jurisdiction of such Court and
that service on each party shall be valid if served by certified mail, return
receipt requested or hand delivery.
17. Attorneys' Fees and Costs. In the event a dispute arises between the
parties under this Agreement and suit is instituted, the prevailing party shall
be entitled to recover his or its costs and attorneys' fees from the
non-prevailing party. As used herein, costs and attorneys' fees include any
costs and attorneys' fees in any appellate proceeding.
18. Binding Effect. This Agreement shall inure to the benefit of and
shall be binding upon the parties hereto and their respective successors and
legal representatives.
19. Effect on Other Agreements. This Agreement and the termination
thereof shall not affect any other agreement between the Executive and the Bank,
and the receipt by the Executive of benefits thereunder.
20. 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.
21. Complete Agreement. This Agreement constitutes the complete
agreement between the parties hereto 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
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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.
FLORIDA CHOICE BANK
By: /s/ Xxx XxXxx
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"EXECUTIVE"
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, individually
Address:
