EMPLOYMENT AGREEMENT
THIS AGREEMENT between COMMERCIAL BANKSHARES, INC., a Florida
corporation with its principal place of business at 0000 X.X. 00xx
Xxxxxx, Xxxxx, Xxxxxxx (the "Company"), COMMERCIAL BANK OF FLORIDA,
a Florida banking corporation with its Main Office located at 0000
X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx (the "Bank") and XXXXXX X. XXXXXX
(the "Executive"), entered into as of this 18 day of March, 1994.
W I T N E S S E T H:
WHEREAS, the Company is a registered bank holding company and
owns and controls 100% of the capital stock of the Bank; and
WHEREAS, in order to continue to expand and prosper as a
significant member of the financial, business and civic community
of South Florida, the Company needs to retain capable, experienced
senior executive personnel both for itself, for the Bank and for
such other subsidiaries as the Company and the Bank should acquire;
and
WHEREAS, the Executive is encouraged to strive for the
profitability and success of the Company and the Bank and therefore
may be assigned appropriate duties and responsibilities at either
the Company or the Bank; and
WHEREAS, the Company wishes to assure both itself and the
Executive of continuity of management of the Company and the Bank
and the security and well-being of the Executive; and
WHEREAS, the Executive has provided strong and effective
leadership to the Company and the Bank during particularly
difficult periods experienced by the financial services industry
and therefore the Company wishes to provide for the security of the
Executive in order to allow for the Executive's attentions to be
devoted to the Company's and the Bank's best interests; and
WHEREAS, this Agreement has been amended and restated as of
December 18, 1998 to correct certain typographical errors, to
clarify and improve the textual rendering of certain provisions,
and to implement certain changes on approval of the Board of
Directors on this date.
NOW, THEREFORE, it is hereby agreed by and between the parties
as follows:
1. EMPLOYMENT.
The Company and the Bank hereby agree to continue to employ
the Executive, and the Executive hereby agrees to continue to serve
the Company and the Bank, on the terms and conditions set forth
herein. It is the intention of this Agreement that the Company and
the Bank shall jointly and severally be responsible for the
obligations determined herein of both the Company and the Bank,
notwithstanding the fact that the employment undertaking may, at
the outset, be undertaken by solely the Bank or the Company.
2. TERM.
The employment of the Executive by the Company as provided in
Section 1 of this Employment Agreement will commence on the initial
date hereof and end on March 31, 1997, unless further extended or
sooner terminated as hereinafter provided. On March 31, 1995, the
term of the Executive's employment shall be automatically extended
one additional year and shall end on March 31, 1998 unless
previously terminated hereunder. On each subsequent March 31
thereafter the term of the Executive's employment shall be
automatically extended one additional year such that on March 30 of
any given year, the remaining term of this Agreement shall be two
years and one day and on the following day, March 31, the remaining
term shall be three years.
3. POSITION AND DUTIES.
The Executive shall serve as President and Chief Operating
Officer of the Company, shall serve as President and Chief
Operating Officer of the Bank, shall have such responsibilities,
duties and authorities as may from time to time be assigned to the
Executive by the Board of Directors of the Company, and shall have
the duties, responsibilities and authorities of the Chief Operating
Officer of the Company and the Bank. The Executive shall devote
substantially all his working time and efforts to the business and
affairs of the Company and the Bank.
4. PLACE OF PERFORMANCE.
In connection with the Executive's employment by the Company,
the Executive shall be based at the principal executive offices of
the Company within Dade County Florida except for required travel
on the Company's business to an extent substantially consistent
with present business travel obligations.
5. COMPENSATION AND RELATED MATTERS.
(a) Salary. During the period of the Executive's
employment hereunder, the Company shall pay to the Executive an
annual "Salary" at a rate determined by the Board of Directors of
the Company. Such Salary may be paid by the Company, or the Bank
or any of their subsidiaries or such combination thereof as the
Board of Directors of the Company shall determine and shall be paid
in monthly or semi-monthly installments in arrears as shall be the
practice of the Company, the Bank or their subsidiaries. This
Salary may be increased from time to time in accordance with
normal business practices of the Company and, if so increased,
shall not thereafter during the term of this Agreement be
decreased. Compensation of the Executive by salary payments shall
not be deemed exclusive and shall not prevent the Executive from
participating in any other compensation or benefit plan of the
Company. The term "Salary" shall be deemed to include any and all
regular installment amounts received by the Executive from either
the Company, the Bank or any of their subsidiaries. Payment of
Salary (including any increased salary payments) whether or not
hereunder shall not in any way limit or reduce any other obligation
of the Company hereunder, and no other compensation, benefit or
payment hereunder, or otherwise, shall in any way limit or reduce
the obligation of the Company to pay the Executive's Salary
hereunder.
(b) Cash Incentive Compensation. The Company shall pay
or cause to be paid by the Bank to the Executive such additional
amount as it shall determine over and above the Salary to which he
is entitled, for all periods during which this Agreement shall be
in effect. Such additional amount shall be determined by the Board
of Directors of the Company or an authorized committee thereof,
shall be declared in the form of a bonus or otherwise and shall be
determined upon such measures of performance as shall be in the
sole discretion of the Board of Directors or authorized committee
hereof.
(c) Expenses. During the term of the Executive's
employment hereunder, the Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by the
Executive in performing services hereunder, including all expenses
of travel and living expenses while away from home on business or
at the request of and in the service of the Company or the Bank,
provided that such expenses are incurred and accounted for in
accordance with the policies and procedures then presently
established by the Company or the Bank.
(d) Other Benefits. The Company shall maintain or cause
to be maintained by the Bank in full force and effect during the
term of this Agreement, and the Executive shall be entitled to
continue to participate in, all of the employee benefit plans and
arrangements in which the Executive participates as of the date
hereof. The Company may, in its discretion, replace such plans and
arrangements only with any other plans or arrangements which shall
provide the Executive with benefits equivalent to those in which
the Executive participates as of the date hereof, unless the
replacement of such plans or arrangements occurs pursuant to a
program applicable to all employees of the Company and does not
result in a proportionately greater reduction in the rights of or
benefits to the Executive as compared with any executive of the
Company. Such plans and arrangements may include without
limitation any pension and retirement plan and arrangement,
supplemental pension and retirement plan and arrangement, stock
option plan, employee stock ownership plan, life insurance and
health-and-accident plan and arrangement, medical insurance plan,
disability plan, survivor income plan, relocation plan and vacation
plan. The Company shall not make nor allow any changes in such
plans or arrangements which would adversely affect the Executive's
rights or benefits thereunder, unless such change occurs pursuant
to a program applicable to all employees of the Company and does
not result in a proportionately greater reduction in the rights of
or benefits to the Executive as compared with any other executive
of the Company. The Executive shall be entitled to participate in
or receive benefits under any employee benefit plan or arrangement
made available by the Company or the Bank in the future to its
executives and key management employees, subject to and on a basis
consistent with the terms, conditions and overall administration of
such plans and arrangements. Nothing paid to the Executive under
any plan or arrangement presently in effect or made available in
the future shall be deemed to be in lieu of the Salary payable to
the Executive pursuant to paragraph (a) of this Section or the Cash
Incentive Compensation payable pursuant to paragraph (b) of this
Section. Any payments or benefits payable to the Executive
hereunder in respect of any calendar year during which the
Executive is employed by the Company for less than the entire such
year shall, unless otherwise provided in the applicable plan or
arrangement, be prorated in accordance with the number of days in
such calendar year during which he is so employed.
(e) Vacations. The executive shall be entitled to the
number of vacation days in each calendar year, and to compensation
in respect thereof, determined in accordance with the Company's or
the Bank's vacation plan. The Executive shall also be entitled to
all paid holidays given by the Company or the Bank to their
executives.
(f) Automobile. The Company shall furnish or cause to
be furnished by the Bank to the Executive the use of an automobile
at the Company's expense for the performance of his duties on
behalf of the Company or the Bank and Executive shall use such
automobile for that purpose. All costs of operation, maintenance
and insurance shall be paid by the Company. The Executive shall be
an additional named insured on the liability insurance coverage
maintained by the Company and the Bank. The Executive shall
account for the use and expenses of the automobile in accordance
with the policies and procedures of the Company.
(g) Group Medical Coverage. The Company shall provide
group medical insurance coverage to the Executive and his family
under a plan for Employees of the Company, the Bank and their
subsidiaries and such plan shall include reasonable coverage for
medical, hospital, surgical and major medical expenses.
(h) Term Life Insurance. The Company shall own and pay
the costs of premiums on guaranteed renewable straight term life
insurance, or the equivalent, insuring the life of the Executive in
an amount no less than the then current annual salary of the
Executive, and the Company shall designate the Beneficiary as such
person or persons named by the Executive from time to time.
(i) Disability Policy. The Company shall provide and
pay the costs of a disability income policy to compensate the
Executive in the event of his incapacity due to physical or mental
illness in an amount no less than 60% of Executive's then current
annual salary (subject to a maximum benefit of $10,000 per month).
(j) Services Furnished. The Company shall furnish the
Executive with office space, secretarial assistance and such other
facilities and services as shall be suitable to the Executive's
position and adequate for the performance of his duties as set
forth in Section 3 hereof.
(k) Subsidiaries. When used in this section the term
"Company" shall be deemed to include any and all subsidiaries .
6. LEGAL REQUIREMENTS.
Both the Executive and the Company agree that all legal
requirements shall be met with respect to Federal withholding tax
requirements, compensation income and the like.
7. PROPER TERMINATION.
The Executive's employment hereunder may be properly
terminated without any breach of this Agreement only under the
following circumstances:
(a) Death. The Executive's death.
(b) Disability. If, as a result of the Executive's
incapacity due to physical or mental illness, the Executive shall
have been absent from his full time duties as described hereunder
for the entire period of four (4) consecutive months, the Company
may terminate the Executive's employment hereunder. In the event
that payments under the disability policy provided to the Executive
by the Company pursuant to subsection 5(i) hereunder commence prior
to the expiration of said four-month period, then upon commencement
of such disability payments, this Agreement shall terminate and the
Company shall cease all Salary payments hereunder.
(c) Cause. The Company may terminate the Executive's
employment hereunder for Cause. For purposes of this Agreement,
the Company shall have "Cause" to terminate the Executive's
employment hereunder: (i) upon the failure by the Executive to
comply with any material provision of this Agreement which has not
been cured within thirty (30) days after notice of such
non-compliance has been given by the Company to the Executive; or
(ii) upon the willful commission by the Executive of repeated acts
of dishonesty or fraud, breach of fiduciary duty involving personal
profit or intentional repeated failures to perform his duties
hereunder, any which acts or failures to act relate to the Company
or any of its subsidiaries and cause a material adverse impact on
the Company or any of its subsidiaries. For purposes of this
paragraph, no act, or failure to act, on the Executive's part shall
be considered "willful" unless done, or omitted to be done, by him
not in good faith and without reasonable belief that his action or
omission was in the best interests of the Company.
Notwithstanding the foregoing, the Executive shall not be
deemed to have been terminated for Cause without: (i) reasonable
notice to the Executive setting forth the reasons for the Company's
intention to terminate for Cause; (ii) an opportunity for the
Executive, together with his counsel, to be heard before the Board
of Directors of the Company; and (iii) delivery to the Executive of
a Notice of Termination as provided for in Section 9 hereof from
the Board of Directors of the Company finding that in the good
faith opinion of the Board of Directors of the Company the
Executive was guilty of conduct set forth above in the preceding
sentence, and specifying the particulars thereof in detail.
(d) Without Cause. The following circumstances shall
specifically be deemed a termination of the Executive's employment
by the Company "Without Cause" and thus shall not constitute a
proper termination: (i) upon a vote to terminate the Executive
without Cause (as defined in Section 7(c) hereof) by any officer or
member(s) of the Board of Directors of the Company; (ii) an
assignment to the Executive of any duties inconsistent with, or a
significant change in the nature or scope of the Executive's
authorities, duties or responsibilities from, those authorities,
duties and responsibilities held by the Executive as of the date
hereof and as increased from time to time; (iii) a reduction in
total remuneration (by reduction of Salary, reduction of rate of
Cash Incentive Compensation or reduction of fringe benefits, unless
any such fringe benefit is withdrawn from all other executives as
a class); or (iv) the performance of any other act by the Company
which is designed to prevent and does prevent the Executive from
properly performing the authorities, duties and responsibilities of
his employment hereunder.
8. TERMINATION BY THE EXECUTIVE.
The Executive may terminate his employment hereunder for Good
Reason.
(a) For purposes of this Agreement, "Good Reason" shall
mean: (i) a failure by the Company to comply with any material
provision of this Agreement which has not been cured within ten
(10) days after notice of such non-compliance has been given by the
Executive to the Company; (ii) any purported termination of the
Executive's employment which is not effected pursuant to a Notice
of Termination satisfying the requirements of Section 8 hereof (and
for purposes of this Agreement no such purported termination shall
be effective); (iii) an assignment to the Executive of any duties
inconsistent with, or a significant change in the nature or scope
of the Executive's authorities, duties or responsibilities from,
those authorities, duties and responsibilities held by the
Executive as of the date hereof and as increased from time to time;
(iv) a reduction in total remuneration (by reduction of Base
Salary, reduction of rate of Cash Incentive Compensation or
reduction of fringe benefits, unless any such fringe benefits are
withdrawn from all other executives as a class); (v) the
performance of any other act by the Company which is designed to
prevent and does prevent the Executive from properly performing the
authorities, duties and responsibilities of his employment
hereunder; or (vi) the occurrence of a change in control of the
Company (as defined below).
(b) For purposes of this Agreement, a "change in control
of the Company" shall be deemed to have occurred if such a change
in control would be required to be reported in response to Item
5(f) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); provided
that, without limitation, such a change in control shall be deemed
to have occurred if any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act), other than the Company, is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 25% or more of the combined voting power of the
Company's then outstanding securities.
9. NOTICE OF TERMINATION AND EFFECTIVE DATE.
(a) Any proper termination of the Executive's employment
by the Company or by the Executive (other than termination pursuant
to subsection 7(a) above) shall be communicated by written Notice
of Termination to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated.
(b) "Date of Termination" shall mean: (i) if the
Executive's employment is terminated by his death, the date of his
death; (ii) if the Executive's employment is terminated pursuant to
subsection 7(b) above, the earlier of: (x) the date on which
payments commence pursuant to the disability policy provided by the
Company under subsection 6(i); or (y) the expiration of four (4)
consecutive months of the Executive's incapacity due to physical or
mental illness, as set forth in subsection 7(b) above (provided
that the Executive shall not have returned to the performance of
his duties on a full-time basis during such four (4) month period);
(iii) if the Executive's employment is terminated pursuant to
subsection 7(c) above, the date specified in the Notice of
Termination (which date may not be less than ninety (90) days after
the date of the Notice; or (iv) if the Executive's employment is
terminated pursuant to Section 7(d) above or Section 8 above, the
date on which a Notice of Termination is given, or the date
specified therein, whichever shall be later.
10. COMPENSATION UPON TERMINATION.
(a)(i) If the Executive's employment is terminated
pursuant to Section 7(a)(Death), the Company shall be obligated to
pay to the Executive all amounts payable under Sections 5(a)-(d),
through and including the last day of the third month following the
date of his death.
(ii) If the Executive's employment is properly
terminated pursuant to Section 7(b) or 7(c) (Disability or Cause),
the Company shall be obligated to pay to the Executive all amounts
payable hereunder and otherwise, through and including the Date of
Termination, as provided in subsection 9(b) above.
(b) If this Agreement is terminated pursuant to Section
7(d) or any of Subsections 8(a)(i) through 8(a)(vi) hereof, the
Company shall pay, in cash, to the Executive, within twenty (20)
days of the receipt of the Notice of Termination, an amount equal
to 300% of the Executive's Salary and Cash Incentive Compensation,
such amounts to be determined by reference to the Executive's then
current Salary and the aggregate Cash Incentive Compensation last
paid to or earned by the Executive in the twelve months immediately
preceding such termination. In addition, at the sole discretion of
the Executive, the Company shall either:
(i) continue to provide, for a period of 36 months
immediately following termination, the benefits described in
subsection 5(d), 5(g) and 5(h) hereof; or
(ii) pay to the Executive, in a lump sum
payment, an amount equal to 60% of the Executive's Salary and Cash
Incentive Compensation, such amounts to be determined by reference
to the Executive's then current Salary and aggregate Cash Incentive
Compensation last paid to or earned by the Executive in the twelve
months immediately preceding termination. Such payment shall be
deemed to be a payment in lieu of the benefits described in (i)
above.
(c) If the Executive's employment hereunder is termi-
nated by the Executive other than pursuant to Subsection 8(a)(i)
through 8(a)(vi) above, the Company shall pay, in cash, to the
Executive, within twenty (20) days of the receipt of the Notice of
Termination, an amount equal to 120% of the Executive's Salary and
Cash Incentive Compensation, such amounts to be determined by
reference to the Executive's then current Salary and the aggregate
Cash Incentive Compensation last paid to or earned by the Executive
in the immediately preceding twelve months previous to such
termination.
(d) In the event that the total amount of payments
made under this Agreement on account of termination under
Subsections 7(d) or 8(a) above or the total amount of payments made
under any other agreement or arrangement between the Executive and
the Company, whether written or oral, including any combination of
payments made pursuant to different agreements, arrangements or
plans equals or exceeds the aggregate present value of three times
the "base amount," the Company shall indemnify the Executive for
the amount of any surtax imposed pursuant to Section 280G and
Section 4999 of the Internal Revenue Code of 1986 as amended along
with an amount intended to reimburse the Executive for income tax
imposed on such payment (together , the "Gross-up payment"). The
Company intends, by the payment of such indemnification, to make
the Executive whole and to put the Executive in the same position
as if the payments provided for under Section 10(b) hereof, this
Section 10(d) and otherwise, were made, and no additional surtaxes
or other income taxes of any kind were required to be paid with
respect to such payments. The total amount due to the Executive
pursuant to this section shall be calculated using the following
formula:
G= (0.2P-0.2B)/(0.8-R)
where :
G is the Gross-up Payment
P is the amount of the Parachute
Payment
B is the Base Amount
R is the aggregate applicable income tax rate
"Base amount" means the average annualized compensation income
from the Company includible in the Executive's gross income for
Federal income tax purposes over the five-year period preceding the
year in which the Executive's employment is terminated. This
paragraph, and the language therein, shall be interpreted
consistently with Section 280G of the Internal Revenue Code of
1986, as amended, and any regulations thereunder.
11. SUCCESSORS; BINDING AGREEMENT.
(a) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or
assets of the Company, by agreement in form and substance
satisfactory to the Executive, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such
agreement prior to a date which is thirty (30) days prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the
Company in the same amount and on the same terms as he would be
entitled to hereunder if he terminated his employment for Good
Reason pursuant to any of Subsections 8(a)(1) through 8(a)(vi),
except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the
Date of Termination. As used in this Agreement, "Company" shall
mean the Company as hereinbefore defined and any successor to its
business and/or assets as aforesaid which executes and delivers the
agreement provided for in this Subsection 11(a) or which otherwise
become bound by all the terms and provisions of this Agreement by
operation of law.
(b) This Agreement and all rights of the Executive
hereunder shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If the Executive should die while any amounts would
still be payable to him hereunder if he had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's
devisee, legatee, or other designee or, if there be no such
designee, to the Executive's estate.
12. NOTICE.
For the purpose of this Agreement, notices, demands and all
other communications provided for in the Agreement shall be in
writing and shall be deemed to have been duly given when delivered
or (unless otherwise specified) mailed by United States registered
mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive: Xxxxxx X. Xxxxxx
0000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
If to the Company
and the Bank: Commercial Bankshares, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
13. MISCELLANEOUS.
No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed
to in writing signed by the Executive and by such officer of the
Company as may be specifically designated by the Board of Directors
of the Company. No waiver by either party hereto at any time of
any breach by the other party hereto, or compliance with, any
condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent
time. No agreements or representations, oral or otherwise, express
or implied, with respect to the subject matter hereof have been
made by either party which are not set forth expressly in this
Agreement. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the
State of Florida.
14. VALIDITY.
The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement, which
shall remain in full force and effect.
15. COUNTERPARTS.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
16. ARBITRATION.
Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by binding arbitration,
conducted before a panel of three arbitrators, in Miami, Florida,
in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. The expense
of such arbitration shall be borne by the Company.
17. SUCCESSION.
This Agreement is intended to supersede, in their entirety,
any and all employment agreements, and all amendments thereto,
between the Executive and the Company and between the Executive and
the Bank.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
Attest: COMMERCIAL BANKSHARES INC.
By:
By:
Name:
Title:
Attest: COMMERCIAL BANK OF FLORIDA
By: By:
Name:
Title:
WITNESS: EXECUTIVE:
XXXXXX X. XXXXXX
