EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and
entered into as of January 10, 2000 by and between REPUBLIC SECURITY BANK, a
commercial bank organized and operating under the laws of the State of Florida
and having an office at 000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxx Xxxx Xxxxx, XX 00000
(the "Bank"), and W. XXXXXX XXXXXXX, an individual residing at 000 Xxxxxxx Xxx
Xxx. #0000, Xxxxx, Xxxxxxx 00000 (the "Executive").
W I T N E S S E T H :
WHEREAS, the Bank desires to employ the Executive as Market
President--Central Florida of the Bank on the condition that Executive agrees to
enter into the non-competition and non-solicitation covenants contained herein;
and
WHEREAS, the Executive is willing to serve the Bank on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and conditions hereinafter set forth, the Bank and the
Executive hereby agree as follows:
SECTION 1. EMPLOYMENT.
The Bank agrees to employ the Executive, and the Executive
hereby agrees to such employment, during the period and upon the terms and
conditions set forth in this Agreement.
SECTION 2. EMPLOYMENT PERIOD; REMAINING UNEXPIRED EMPLOYMENT
PERIOD.
(a) The terms and conditions of this Agreement shall be and
remain in effect during the period of employment established under this section
2 ("Employment Period"). The Employment Period shall be for an initial term
beginning on January 10, 2000 and ending on December 31, 2000 (the "First
Anniversary Date"), plus such extensions, if any, as are provided pursuant to
section 2(b).
(b) The Employment Period shall automatically be extended for
one (1) additional year on the First Anniversary Date and on each anniversary of
the First Anniversary Date, unless either the Bank or the Executive elects not
to extend the Agreement further by giving written notice to the other party at
least 60 days prior to the First Anniversary Date or any subsequent anniversary
of the First Anniversary Date, in which case the Employment Period shall end on
the First Anniversary Date or any subsequent anniversary of the First
Anniversary Date. Upon termination of the Executive's employment with the Bank
for any reason whatsoever, any renewals provided pursuant to this section 2(b),
if not theretofore discontinued, shall automatically cease.
(c) Nothing in this Agreement shall be deemed to prohibit the
Bank from terminating the Executive's employment at any time during the
Employment Period with or without notice for any reason; PROVIDED, HOWEVER, that
the relative rights and obligations of the
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Bank and the Executive in the event of any such termination shall be determined
under this Agreement.
SECTION 3. DUTIES.
The Executive shall serve as Market President--Central Florida
of the Bank, having such power, authority and responsibility and performing such
duties as are prescribed by or under the By-Laws of the Bank, or assigned by the
Board of Directors of the Bank or the Chief Banking Officer of the Bank (or
other officer of equal or senior rank) and otherwise as are customarily
associated with such position. Except as otherwise provided herein, the
Executive shall devote his full business time and attention (other than during
weekends, holidays, approved vacation periods, and periods of illness or
approved leaves of absence) to the business and affairs of the Bank and shall
use his best efforts to advance the interests of the Bank.
SECTION 4. CASH COMPENSATION.
In consideration for the services to be rendered by the Executive
hereunder, the Bank shall pay to Executive a base salary at an initial annual
rate of ONE HUNDRED TWENTY THOUSAND DOLLARS ($120,000), payable in approximately
equal installments in accordance with the Bank's customary payroll practices for
senior officers. The Board of Directors of the Bank (or such committee or person
to whom the Board shall delegate this authority) shall from time to time review
the Executive's annual rate of salary and may, in its discretion, approve an
increase therein. In no event shall the Executive's annual rate of salary under
this Agreement in effect at a particular time be reduced without his prior
written consent. In addition to salary, the Executive shall be eligible to
receive incentive compensation from the Bank in accordance with the schedule
attached hereto as Exhibit A, which schedule may be amended annually by the
Bank.
SECTION 5. EMPLOYEE BENEFIT PLANS AND PROGRAMS.
During the Employment Period, the Executive shall be treated as an
employee of the Bank and shall be entitled to participate in and receive
benefits under any and all qualified or non-qualified retirement, savings,
profit-sharing or stock bonus plans, any and all group life, health (including
hospitalization, medical and major medical), dental, accident and long term
disability insurance plans, and any other employee benefit and compensation
plans (including, but not limited to, any incentive compensation plans or
programs, stock option and appreciation rights plans and restricted stock plans)
as may from time to time be maintained by, or cover employees of, the Bank, in
accordance with the terms and conditions of such employee benefit plans and
programs and compensation plans and programs and consistent with the the Bank's
customary practices.
SECTION 6. OTHER ACTIVITIES.
The Executive may serve as a member of the boards of directors
of such business, community and charitable organizations as he may disclose to
and as may be approved by the Board of Directors of the Bank (which approval
shall not be unreasonably withheld); PROVIDED, HOWEVER, that such service shall
not materially interfere with the performance of his duties under this
Agreement. The Executive may also engage in personal business and investment
activities which do not materially interfere with the performance of his duties
hereunder; PROVIDED, HOWEVER, that such activities are not prohibited under any
code of
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conduct or investment or securities trading policy established by the Bank or
Republic Security Financial Corporation and generally applicable to all
similarly situated executives.
SECTION 7. WORKING FACILITIES AND EXPENSES.
The Executive's principal place of employment shall be at
Tampa, Florida, or at such other location as the Bank and the Executive may
mutually agree upon. The Bank shall reimburse the Executive for his ordinary and
necessary business expenses, and his travel and entertainment expenses incurred
in connection with the performance of his duties under this Agreement, in each
case upon presentation to the Bank of an itemized account of such expenses in
such form as the Bank may reasonably require.
SECTION 8. TERMINATION OF EMPLOYMENT WITH SEVERANCE BENEFITS.
(a) The Executive shall be entitled to the severance benefits
described herein in the event that his employment with the Bank terminates
during the Employment Period under any of the following circumstances:
(i) the Executive's voluntary resignation from employment with
the Bank within ninety (90) days following:
(A) the failure to appoint or re-appoint or elect or
re-elect the Executive to the office of Market
President--Central Florida (or a more senior office) of the
Bank;
(B) the relocation of the Executive's principal place
of employment, without his written consent, to a location
outside of Hillsborough County (or adjacent counties in the
greater Tampa metropolitan area), Florida, Broward County,
Florida, Dade County, Florida or Palm Beach County, Florida;
(ii) the termination of the Executive's employment with the
Bank for any other reason not described in section 9.
In such event, the Bank shall provide the benefits and pay to the Executive the
amounts described in section 8(b).
(b) Upon the termination of the Executive's employment with
the Bank under circumstances described in section 8(a) of this Agreement, the
Bank shall pay and provide to the Executive (or, in the event of his death
following such termination, to his estate):
(i) his earned but unpaid compensation as of the date of the
termination of his employment with the Bank, such payment to be made at
the time and in the manner prescribed by law applicable to the payment
of wages but in no event later than thirty (30) days after termination
of employment;
(ii) the benefits, if any, to which he is entitled as a former
employee under the employee benefit plans and programs and compensation
plans and programs maintained for the benefit of the Bank's officers
and employees;
(iii) continued group life, health (including hospitalization,
medical and major medical), and dental insurance benefits, in addition
to that provided pursuant to section 8(b)(ii), and after taking into
account the coverage provided
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by any subsequent employer, if and to the extent necessary to provide
for the Executive, for a period beginning on the date his employment
terminates and ending on the last day of the Employment Period,
coverage equivalent to the coverage to which he would have been
entitled under such plans, if he had continued working for the Bank
during the Employment Period at the highest annual rate of compensation
achieved during that portion of the Employment Period which is prior to
the Executive's termination of employment with the Bank;
(iv) within thirty (30) days following his termination of
employment with the Bank, a lump sum payment in an amount equal to the
salary that the Executive would have earned if he had continued working
for the Bank for the remainder of the Employment Period at the highest
annual rate of salary achieved during that portion of the Employment
Period which is prior to the Executive's termination of employment with
the Bank, such lump sum to be paid in lieu of all other payments of
salary provided for under this Agreement in respect of the period
following any such termination;
(v) within thirty (30) days following his termination of
employment with the Bank, a lump sum payment in an amount equal to the
average annual cash incentive compensation or bonus paid to the
Executive with respect to the two complete calendar years immediately
preceding the year in which Executive's employment with the Bank
terminates, multiplied by a fraction, the numerator of which is the
amount of lump sum payment described in section 8(b)(iv) and the
denominator of which is the highest annual rate of base salary achieved
during the portion of the Employment Period that is prior to the
Executive's termination of employment.
The Bank and the Executive hereby stipulate that the damages which may be
incurred by the Executive following any such termination of employment are not
capable of accurate measurement as of the date first above written and that the
payments and benefits contemplated by this section 8(b) constitute reasonable
damages under the circumstances and shall be payable without any requirement of
proof of actual damage and without regard to the Executive's efforts, if any, to
mitigate damages. The Bank and the Executive further agree that the Bank may
condition the payments and benefits (if any) due under sections 8(b)(iii), (iv)
and (v) on the receipt of the Executive's resignation from any and all positions
which he holds as an officer, director or committee member with respect to the
Bank or any parent or affiliate of the Bank.
SECTION 9. TERMINATION WITHOUT ADDITIONAL BANK LIABILITY.
In the event that the Executive's employment with the Bank
shall terminate during the Employment Period on account of:
(i) the discharge of the Executive for "cause," which, for
purposes of this Agreement shall mean: (A) gross negligence or willful
misconduct by the Executive in connection with his employment hereunder
or the business of the Bank; (B) the Executive's misappropriation of
the Bank's assets or property; (C) the Executive willfully fails or
refuses to perform his duties under this Agreement, or fails to comply
with any material term, covenant or condition contained herein; (D) the
Executive breaches his fiduciary duties to the Bank for personal
profit; or (E) the Executive's willful breach or violation of any law,
rule or regulation (other than traffic violations or similar offenses),
or final cease and desist order in connection with his performance of
services for the Bank;
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(ii) the Executive's voluntary resignation from employment
with the Bank for reasons other than those specified in section 8(a);
(iii) the Executive's death; or
(iv) a determination that the Executive is eligible for
long-term disability benefits under the Bank's long-term disability
insurance program or, if there is no such program, under the federal
Social Security Act;
then the Bank shall have no further obligations under this Agreement, other than
the payment to the Executive (or, in the event of his death, to his estate) of
his earned but unpaid compensation (including incentive compensation) as of the
date of the termination of his employment, and the provision of such other
benefits, if any, to which he is entitled as a former employee under the
employee benefit plans and programs and compensation plans and programs
maintained by, or covering employees of, the Bank.
SECTION 10. CONFIDENTIALITY.
Unless he obtains the prior written consent of the Bank, the
Executive shall keep confidential and shall refrain from using for the benefit
of himself, or any person or entity other than the Bank or any entity which is a
subsidiary of the Bank or of which the Bank is a subsidiary, any material
document or information obtained from the Bank, or from its parent, parent's
parent, affiliates or subsidiaries, in the course of his employment with any of
them concerning their properties, operations or business (unless such document
or information is readily ascertainable from public or published information or
trade sources or has otherwise been made available to the public through no
fault of his own) until the same ceases to be material (or becomes so
ascertainable or available); PROVIDED, HOWEVER, that nothing in this section 10
shall prevent the Executive, with or without the Bank's consent, from
participating in or disclosing documents or information in connection with any
judicial or administrative investigation, inquiry or proceeding to the extent
that such participation or disclosure is required under applicable law.
SECTION 11. NO EFFECT ON EMPLOYEE BENEFIT PLANS OR PROGRAMS.
The termination of the Executive's employment during the term
of this Agreement or thereafter, whether by the Bank or by the Executive, shall
have no effect on the rights and obligations of the parties hereto under the
Bank's qualified or non-qualified retirement, pension, savings, thrift,
profit-sharing or stock bonus plans, group life, health (including
hospitalization, medical and major medical), dental, accident and long term
disability insurance plans or such other employee benefit plans or programs, or
compensation plans or programs, as may be maintained by, or cover employees of,
the Bank from time to time.
SECTION 12. NON-COMPETITION AND NON-SOLICITATION.
(a) NON-COMPETITION. During the Employment Period, the Executive agrees not to
engage, directly or indirectly, in any aspect of the financial institutions
business, including without limitation engaging in business activities for or on
behalf of state, national or foreign banks, state or federal savings
associations or savings banks, credit unions, mortgage or loan companies or any
other entity which makes or acquires loans or takes deposits or engages in any
other business engaged in by the Bank on the date hereof (the "Banking
Business"), other than for the Bank, whether as stockholder (except for
immaterial interests in publicly-traded institutions), partner, director,
officer, employee, agent, consultant or otherwise. In the event of termination
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of the Executive's employment hereunder by the Bank with cause or voluntarily by
the Executive other than pursuant to Section 8(a)(i), until twelve (12) months
after the date of such termination, the Executive agrees not to engage, directly
or indirectly, in the Banking Business in any capacity in any city, town or
county in which the Bank has an office, determined as of the date of such
termination.
(b) NON-SOLICITATION. The Executive hereby covenants and agrees that, following
his termination of employment with the Bank for any reason whatsoever, he shall
not, without the written consent of the Bank, either directly or indirectly:
(i) for a period of twelve (12) months after such termination,
solicit, offer employment to, or take any other action intended, or
that a reasonable person acting in like circumstances would expect, to
have the effect of causing any officer or employee of the Bank or any
affiliate, as of the date of this Agreement, of either of them, to
terminate his or her employment and accept employment or become
affiliated with, or provide services for compensation in any capacity
whatsoever to, any Bank engaged in the Banking Business doing business
in any city, town or county in which the Bank has an office, determined
as of the date of such termination;
(ii) for a period of twelve (12) months after such
termination, provide any information, advice or recommendation with
respect to any such officer or employee to any Bank engaged in the
Banking Business doing business in any city, town or county in which
the Bank has an office, determined as of the date of such termination,
that is intended, or that a reasonable person acting in like
circumstances would expect, to have the effect of causing any officer
or employee of the Bank or any affiliate, as of the date of this
Agreement, of either of them, to terminate his or her employment and
accept employment or become affiliated with, or provide services for
compensation in any capacity whatsoever to, any such Bank engaged in
the Banking Business; or
(iii) solicit, provide any information, advice or
recommendation or take any other action intended, or that a reasonable
person acting in like circumstances would expect, to have the effect of
causing any customer of the Bank to terminate an existing business or
commercial relationship with the Bank.
SECTION 13. SUCCESSORS AND ASSIGNS.
This Agreement will inure to the benefit of and be binding
upon the Executive, his legal representatives and testate or intestate
distributees, and the Bank and its respective successors and assigns, including
any successor by merger or consolidation or a statutory receiver or any other
person or firm or corporation to which all or substantially all of the assets
and business of the Bank may be sold or otherwise transferred.
SECTION 14. NOTICES.
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five (5) days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, or one (1) day after it is sent by reputable overnight delivery
service, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
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If to the Executive:
W. Xxxxxx Xxxxxxx
If to the Bank:
Republic Security Bank
000 X. Xxxxxxxxxx Xxxxxx
Xxxx Xxxx Xxxxx, XX 00000
Attention: R. Xxxxxxx Xxxxxxxxxx,
Chief Banking Officer
SECTION 15. INDEMNIFICATION FOR ATTORNEYS' FEES.
The Bank shall indemnify, hold harmless and defend the
Executive against reasonable costs, including legal fees, incurred by him in
connection with or arising out of any action, suit or proceeding in which he may
be involved, as a result of his efforts, in good faith, to defend or enforce the
terms of this Agreement.
SECTION 16. SEVERABILITY.
A determination that any provision of this Agreement is
invalid or unenforceable shall not affect the validity or enforceability of any
other provision hereof.
SECTION 17. WAIVER.
Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
SECTION 18. COUNTERPARTS.
This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
SECTION 19. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Florida applicable to contracts
entered into and to be performed entirely within the State of Florida.
SECTION 20. HEADINGS AND CONSTRUCTION.
The headings of sections in this Agreement are for convenience
of reference only and are not intended to qualify the meaning of any section.
Any reference to a section number shall refer to a section of this Agreement,
unless otherwise stated.
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SECTION 21. ENTIRE AGREEMENT; MODIFICATIONS.
This instrument contains the entire agreement of the parties
relating to the subject matter hereof, and supersedes in its entirety any and
all prior agreements, understandings or representations relating to the subject
matter hereof. The parties acknowledge and agree, however, that that certain
Change of Control Agreement dated January __, 1999 by and among the parties
hereto and Republic Security Financial Corporation shall supersede this
Employment Agreement from and after the occurrence of a Change of Control (as
defined in such Change of Control Agreement). No modifications of this Agreement
shall be valid unless made in writing and signed by the parties hereto.
SECTION 22. SURVIVAL.
The provisions of sections 6, 8, 9, 10, 11, 12, 15, 17, 19,
23, 24 and 25 shall survive the expiration of the Employment Period or
termination of this Agreement.
SECTION 23. EQUITABLE REMEDIES.
The Bank and the Executive hereby stipulate that money damages
are an inadequate remedy for violations of sections 6, 10 or 12 of this
Agreement and agree that equitable remedies, including, without limitations, the
remedies of specific performance and injunctive relief, shall be available with
respect to the enforcement of such provisions.
SECTION 24. REQUIRED REGULATORY PROVISION.
Notwithstanding anything herein contained to the contrary, any payments to the
Executive by the Bank, whether pursuant to this Agreement or otherwise, are
subject to and conditioned upon their compliance with section 18(k) of the
Federal Deposit Insurance Act, 12 U.S.C. ss.1828(k), and any regulations
promulgated thereunder.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed and the
Executive has hereunto set his hand, all as of the day and year first above
written.
REPUBLIC SECURITY BANK
By: /s/ Xxxx X. Xxxxxx
-----------------------------
NAME: Xxxx X. Xxxxxx
TITLE: President
/s/ Xxxxxx Xxxxxxx
---------------------------------
W. Xxxxxx Xxxxxxx
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