EMPLOYMENT AGREEMENT
BY AND BETWEEN
BANK OF FLORIDA
AND
XXXXXX X. XXXXX
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into this 16/th/ day of
September, 2002, by and between Bank of Florida ("Bank" or "Employer") and
Xxxxxx X. Xxxxx ("Employee"). Employer and Employee are collectively referred to
herein as the "Parties."
RECITALS
WHEREAS, the Employer wishes to retain Employee as its Chief Operating
Officer to perform the duties and responsibilities as are described in this
Agreement and as the Employee's Chief Executive Officer and Board of Directors
("Board") may assign to Employee from time to time; and
WHEREAS, Employee desires to become employed by the Employer and to serve
as the Employer's Chief Operating Officer in accordance with the terms and
provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereto represent, warrant, undertake,
covenant and agree as follows:
OPERATIVE TERMS
1. Employment and Term. Employer shall employ Employee and Employee shall
be employed pursuant to the terms of this Agreement to perform the services
specified in Section 2 herein. The initial term of employment shall be for a
period of three years, commencing on September 1, 2002 (the "Effective Date").
On the third anniversary of the Effective Date and on each succeeding
anniversary thereafter until the Employee's 65/th/ birthday, the term of this
Agreement shall be automatically extended for one additional year. However,
either Party may terminate such renewals of this Agreement by giving the other
Party written notice of its intent not to renew at least 30 days prior to any
anniversary of the Effective Date.
The Board shall, prior to any renewal taking effect, review Employee's
performance and this Agreement to determine if the Agreement's renewals should
be continued. The Board's decision shall be included in its meeting minutes.
In the event the Employee gives notice of termination (as defined in
Section 11[a] herein), the Employer may elect, at its sole option, to have the
term of this Agreement expire immediately or upon the 30th day following the
delivery to the Employer of such notice of termination. A voluntary employment
termination by the Employee shall result in the termination of the rights and
obligations of the Parties under this Agreement; provided, however, that the
terms and provisions of Section 12, 13, 14, 15, 16, 17, 18 and 19 herein shall
continue to apply and Employer shall pay to employee all compensation accrued,
but not yet paid.
In the event the Employer desires to involuntarily terminate the Employee's
employment, the Employer shall deliver to the Employee a notice of termination,
and the following provisions shall apply:
(a) In the event the involuntary termination is for Cause, this
Agreement shall terminate immediately upon delivery to the Employee of a
notice of termination. Such a termination for Cause shall result in the
termination of all rights and obligations of the Parties under this
Agreement, with the exception of Sections 12, 13, 14, 15, 16, 17, 18 and 19
herein and Employer's obligations to pay to Employee all compensation
accrued, but not yet paid.
(b) In the event the involuntary termination is without Cause, the
Employee shall be entitled to receive the severance benefits set forth in
Section 9(e) and (f) herein and will remain subject to the provisions of
Sections 12, 13, 14, 15, 16, 17, 18 and 19 herein.
2. Position, Responsibilities and Duties. During the term of this
Agreement, Employee shall serve in the following capacities and shall fulfill
the following responsibilities and duties:
(a) Specific Duties: Employee shall serve as the Chief Operating
Officer of the Bank, through election by the Board. In such capacity,
Employee shall have the same powers, duties and responsibilities of
supervision and management of the Bank usually accorded to a Chief
Operating Officer of similar financial institutions and shall report
directly to the Chief Executive Officer. In addition, Employee shall use
his best efforts to perform the duties and responsibilities enumerated in
this Agreement and any other duties assigned to Employee by the Chief
Executive Officer or the Board and to utilize and develop contacts and
customers to enhance the business of Employer. Specifically, Employee's
duties shall include, but not be limited to:
(i) building and maintaining a high quality employee team;
(ii) overseeing and supervising all of the Bank's operating
activities;
(iii) supervising the Bank's human resource and marketing
departments;
(iv) keeping the Bank's Chief Executive Officer informed of
important developments concerning the Bank, industry
developments and regulatory initiatives affecting the
Bank;
(v) establishing and implementing marketing efforts to
increase the business of the Bank, including increasing
the Bank's fee and interest income;
(vi) assisting the Bank's Chief Executive Officer with the
preparation of the Bank's annual business plan and budget;
Page 2 of 15
(vii) implementing and monitoring the Bank's annual business
plan and budget;
(viii) recommending to the Bank's Chief Executive Officer any
necessary revisions to the Bank's three-year business
plan;
(ix) coordinating with the Bank's attorneys, accountants and
other service providers to the extent necessary to further
the business of the Bank, keeping in compliance with
government laws and regulations and otherwise keeping the
Bank in as good a financial and legal posture as possible;
(x) being responsible for the oversight of the Bank's branch
network, as branches open;
(xi) maintaining adequate expense records relating to
Employee's activities on behalf of the Bank; and
(xii) conducting and undertaking all other activities,
responsibilities, and duties normally expected to be
undertaken and accomplished by the Chief Operating Officer
of a financial institution similar in size and operation
to the Bank's business.
(b) General Duties: During the term of this Agreement, Employee shall
devote all of his working time, attention, skill and best efforts to
accomplish and faithfully perform all of the duties assigned to Employee on
a full-time basis. Employee shall, at all times, conduct himself in a
manner that will reflect positively upon the Employer. Employee shall
obtain such licenses, certificates, accreditations and professional
memberships and designations as the Employer may reasonably require.
Employee shall join and maintain memberships in such social and civic
organizations as the Employer's Board may deem appropriate to xxxxxx the
Employer's contacts and business network in the community. Employee may,
however, invest his assets in such form or manner as Employee so desires,
so long as such investments do not require his services during normal
business hours in the operation of the affairs of the companies in which
such investments are made. Employee shall notify Employer prior to any
significant participation by him in any trade association or similar
organization.
3. Compensation. During the term of this Agreement, Employee shall be
compensated as follows:
(a) Base Salary: Employee shall receive an annual salary of $150,000
(the "Base Salary") payable in accordance with the Employer's standard
payroll practices. Employer may adjust the Base Salary from time to time
based upon the Board's evaluation of Employee's performance. In no event,
however, will the Base Salary be reduced without Employee's written
concurrence.
Page 3 of 15
(b) Relocation Bonus: Within 10 days of the Effective Date, Employee
shall receive a $50,000 relocation bonus. In the event Employee leaves the
employment of Employer (for any reason) within six months of the Effective
Date, Employee shall repay such bonus to Employer within 60 days of the
date of the termination of Employee's employment. Such repayment obligation
shall thereafter continue, but shall be reduced by $10,000 for each
subsequent month. Employer may, at its election, set off and collect any
sums so due out of any amounts which the Employer may owe Employee pursuant
to the terms of this Agreement.
(c) Performance Bonus: Beginning December 31, 2002, and at the end of
each fiscal year of the Employer, in addition to Employee's Base Salary,
Employee shall be paid performance bonuses ("Performance Bonuses") based
upon good faith written annual goals for Employee established with
Employee's input by the Board of Directors and given to the Employee at
least 30 days before January 1/st/ of the year for which the goals apply
("Performance Goals"). The payment of Performance Bonuses pursuant to this
Section shall be contingent upon the following:
(i) As of the calendar year end in question, the overall
condition of the Bank must be "satisfactory" in the
opinion of the Florida Department of Banking and Finance
and Federal Deposit Insurance Corporation ("FDIC") as set
forth in the most current Report of Examination provided
to the Board of Directors of the Bank and the Uniform
Financial Institution Rating of the Employer shall not be
less than a "2"; and
(ii) As of the fiscal year end in question, the Employer shall
be "adequately capitalized" as defined under regulations
promulgated by the FDIC pursuant to the Federal Deposit
Insurance Corporation Improvement Act of 1991; and
(iii) The Employer shall have positive Net Income (as reported
to the FDIC on Schedule RI, Consolidated Report of Income
for the Period January 1 to December 31 of that year); and
(iv) No bonus shall exceed 40% of the Employee's Base Salary.
When the above contingencies have been met, but in no instance beyond
45 days from each calendar year-end, the Employer shall set the
Performance Bonus amounts based upon the following criteria:
(i) Goals set by the Board of Directors and goals met; and
(ii) Expense control goals set by the Board of Directors and
goals met. The Performance Goals shall be part of the
annual business plans prior to the expiration of each
calendar year for the next ensuing calendar year. In each
business plan, each of the above criteria will be
Page 4 of 15
assigned a specific percentage bonus (in relation to the
Employee's Base Salary) and each percentage (or, such
portion of each percentage if a specific criteria has not
been fully met) shall be paid to Employee annually, but in
no event beyond fifty (50) days from each calendar year
end.
4. Payment of Business Expenses. Employee is authorized to incur
reasonable expenses in performing his duties hereunder. Employer will reimburse
Employee for authorized expenses, according to the Employer's established
policies, promptly after Employee's presentation of an itemized account of such
expenditures.
5. Vacation. Employee is entitled to three weeks paid vacation time per
year on a non-cumulative basis.
6. Fringe Benefits.
(a) Medical and Other Benefits: Employee is entitled to participate
in all medical and health care benefits, life and long-term disability
insurance plans and retirement plans provided by the Employer to its
officers.
(b) Club Memberships and Education: Employer will reimburse Employee
for any club membership dues that are pre-approved by the Board of
Directors, as well as pre-approved dues and expenses related to joining
service organizations such as the Rotary Club or Kiwanis Club. Employer
will also reimburse Employee for admission or attendance fees for
pre-approved educational meetings or seminars offered by such organizations
as the Florida Bankers Association.
(c) Automobile Allowance: Employee shall be entitled to receive an
automobile allowance commensurate with his position, in accordance with the
Bank's policies.
7. Disability/Illness.
(a) Illness: Employee shall be paid his full Base Salary for any
period of his illness or incapacity: provided that such illness or
incapacity does not render Employee unable to perform his duties under this
Agreement for a period longer than three consecutive months. At the end of
such three-month period, Employer may terminate Employee's employment and
this Agreement.
(b) Disability: If the Employer terminates this Agreement pursuant to
Employee's illness or incapacity as determined under Section 7(a) herein,
Employer shall pay to Employee all compensation accrued, but not yet paid.
Page 5 of 15
(c) Continuation of Coverages: During any period of illness or
disability, the Employer will continue any other life, health and
disability coverages for Employee substantially identical to the coverages
maintained prior to Employee's termination for disability. Such coverages
shall cease upon the earlier of:
(i) Employee's full time employment by another Person;
(ii) one year after the date of such termination (with the
exception of disability insurance coverage); or
(iii) the date of Employee's death.
(d) No Reduction in Base Salary: During the period in which Employee
is disabled or subject to illness or incapacity, unless Employee is
terminated pursuant to Section 7(b) herein, there shall be no reduction in
Employee's Base Salary.
8. Death During Employment. In the event of Employee's death during the
term of this Agreement, Employer's obligation to Employee shall be limited to
the portion of Employee's compensation which was accrued, but not yet paid.
9. Termination.
(a) Illness, Incapacity or Death: This Agreement shall terminate upon
Employee's illness, incapacity or death in accordance with the provisions
of Sections 7 and 8 herein.
(b) Termination for Cause: The Employer shall have the right, at any
time, upon prior written notice of termination satisfying the requirements
of Section 11 herein, to terminate Employee's employment hereunder,
including termination for Cause. For the purpose of this Agreement,
termination for "Cause" shall mean termination for personal dishonesty,
incompetence, misconduct or conduct which negatively reflects upon the
Employer (as determined by its Board of Directors), breach of fiduciary
duty, failure to perform the duties stated in this Agreement, violation of
any law, rule or regulation (other than minor traffic violations or similar
offenses), violation of a final cease-and-desist order, or personal default
on indebtedness which is not corrected within 30 days from the date of
default. Cause shall also include failure of the Bank to obtain the
necessary regulatory approvals for Employee to serve as a senior executive
officer of the Bank by December 31, 2002. In the event Employee is
terminated for Cause, Employee shall have no right to compensation or other
benefits for any period after such date of termination, other than
compensation which was accrued, but not yet paid.
(c) Involuntary Termination: If the Employee is terminated by
Employer other than for Cause, Employee's right to compensation and other
benefits under this Agreement shall be as set forth in Section 9 (e) and
(f) herein.
Page 6 of 15
(d) Change-in-Control: A "Change-in-Control" of the Employer shall
mean the first to occur of any one or more of the following:
(i) any transaction, whether by merger, consolidation, asset
sale, recapitalization, reorganization, combination, stock
purchase, tender offer, reverse stock split, or otherwise,
which results in the acquisition of, or beneficial
ownership (as such term is defined under rules and
regulations promulgated under the Securities Exchange Act
of 1934, as amended) by, any person or entity or any group
of persons or entities acting in concert, of 50% or more
of the outstanding shares of common stock of the Employer
or of Employer's parent holding company, Bancshares of
Florida, Inc., or
(ii) the sale of all or substantially all of the assets of the
Employer; or
(iii) the liquidation of the Employer or a material amount of
Employer's assets or of Employer's parent holding company,
Bancshares of Florida, Inc.; or
(iv) the takeover or control of all or substantially all of the
operations of Employer or of Employer's parent holding
company, Bancshares of Florida, Inc., through any of the
means specified above.
In the event of an anticipated "Change-in-Control," Employee shall be
entitled at any time up to thirty (30) days prior to the date of closing of
the transaction which will effect such Change-in-Control (the
"Change-in-Control Date") and at his election, to give written notice to
Employer of termination of this Agreement as of the Change-in-Control Date,
and Employee shall be paid, in addition to all accrued but unpaid Base
Salary (which is to be paid as earned) and Performance Bonuses (which are
to be paid as provided in this Agreement), a lump sum cash payment defined
in Section 9(e) (the "Change-in-Control Payment"). The Change-in Control
Payment shall be unconditional and without setoff of any kind and paid in
cash, not later than ten (10) days after the Change-in-Control Date.
Additionally, the Change-in-Control Payment shall be made to Employee as a
condition to the closing of the transaction which will effect the change in
control, and prior to the Change-in-Control Date, Employer shall notify
representatives of the acquiring or successor entity, as the case may be,
of Employee's rights and Employer's obligation xxxxxx this Agreement,
including without limitation this paragraph, and without effecting
Employer's obligations to pay Employee hereunder, any such acquiring or
successor entity shall become obligated to forthwith pay to Employee for
such part of the Change-in-Control Payment as has not been paid by the
Employer as of the Change-in-Control Date.
(e) Severance Payment: If Employee is terminated by the Employer for
reason other than Cause, Employee shall be paid, as severance, the total
Base Salary due for the remaining term of this Agreement. Notwithstanding
the foregoing, the amount of the Change-in-Control Payment shall be two and
one-half years' base salary.
Page 7 of 15
Any payment under this Section 9(e) shall be made in substantially
equal semi-monthly installments on the 15th and last days of each month
until paid in full and shall only be paid subject to Employee's execution
of a full release in favor of the Employer for any potential claims related
to this Agreement or to Employee's employment with the Employer.
(f) Additional Severance Benefits: Unless the Employee is terminated:
(i) for Cause; (ii) pursuant to Sections 7, 8 or 10(b) herein; or (iii)
pursuant to a termination of employment by the Employee, the Employer shall
maintain in full force and effect, for the continued benefit of the
Employee any Employee benefit plans and programs in which the Employee was
entitled to participate immediately prior to the date of termination for
the shorter of: (i) the remaining term of this Agreement; (ii) 12 months;
or (iii) the period of time ending on the date Employee becomes eligible
for participation in a comparable plan; provided, however, that the
Employee's continued participation is possible under the general terms and
provisions of such plans and programs. Further, the Employer shall pay for
the same or similar benefits if such benefits are available to the Employee
on an individual or group basis as a result of contractual or statutory
provisions requiring or permitting such availability including, but not
limited to, health insurance covered under COBRA.
10. Required Provisions by Regulation. Employer and Employee acknowledge
that the laws and regulations governing the Parties require that certain
provisions be provided in each employment agreement with officers and employees
of the Bank. The Parties agree to be bound by the following provisions:
(a) Suspension/Temporary Prohibition: If the Employee is suspended
and/or temporarily prohibited from participating in the conduct of the
Bank's affairs by a notice served under Section 8(e) or (g)(1) of the
Federal Deposit Insurance Act (12 U.S.C. (S)1818[e][3] and [g][1]) the
Bank's obligations under this Agreement shall be suspended as of the date
of such service unless stayed by appropriate proceedings. If the charges
and the notice are dismissed, the Bank may in its discretion:
(i) pay the Employee all or part of his compensation withheld
while the obligations under this Agreement are suspended;
and
(ii) reinstate (in whole or part) any of the Bank's obligations
which were suspended.
(b) Permanent Prohibition: If the Employee is removed and/or
permanently prohibited from participating in the conduct of the Bank's
affairs by an order issued under Section 8(e)(4) or (g)(1) of the Federal
Deposit Insurance Act (12 U.S.C. (S)1818[e][4] or [g][1]), all of the
Bank's obligations under this Agreement shall terminate as of the effective
date of the order, but the Employee's vested rights, if any shall not be
affected.
Page 8 of 15
(c) Default Under FDIA: If the Bank is in default (as defined in
Section 3[x][1] of the Federal Deposit Insurance Act), all obligations
under this Agreement shall terminate as of the date of default, but this
subsection of this Agreement shall not affect the Employee's vested rights
if any.
(d) Regulatory Termination: All obligations under this Agreement
shall be terminated, except to the extent that a determination has been
made that continuation of this Agreement is necessary for continued
operation of the Bank:
(i) by the Director or his or her designee, at the time the FDIC
enters into an agreement to provide assistance to or on
behalf of the Bank under the authority contained in Section
13(c) of the Federal Deposit Insurance Act; or
(ii) by the Director or his or her designee, at the time the
Director or his or her designee approves a supervisory
merger to resolve problems related to operation of the Bank
or when the Bank's determined by the Director to be in
unsafe or unsound condition.
Any of the Employee's rights that have already vested, however, shall
not be affected by such action. For purposes of this subsection of the
Agreement, the term "Director" shall mean the Director of the FDIC.
11. Notice of Termination.
(a) Employee's Notice: Employee shall have the right, upon prior
written notice of termination of not less than 30 days, to terminate his
employment hereunder. In such event, Employee shall have no right after the
date of termination to compensation or other benefits as provided in this
Agreement, except for compensation which was accrued, but unpaid.
(b) Specificity: Any termination of the Employee's employment by the
Employer or by Employee shall be communicated by written notice of
termination to the other Parties hereto. For purposes of this Agreement, a
"notice of termination" shall mean a dated notice which shall: (i) indicate
the specific termination provision in the Agreement relied upon; (ii) set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Employee's employment under the provision so
indicated; and (iii) set forth the date of termination, which shall be not
less than 30 days nor more than 45 days after such notice of termination is
given, unless another Section of the Agreement requires or permits a
different effective date.
(c) Delivery of Notices: All notices given or required to be given
herein shall be in writing, sent by United States first-class certified or
registered mail, postage prepaid, by way of overnight carrier, or by hand
delivery. If to the Employee (or to the Employee's spouse or estate upon
the Employee's death) notice shall be sent to
Page 9 of 15
Employee's last-known address, and if to Employer, notice shall be sent to
the Employer's corporate headquarters. All such notices shall be effective
five days after having been deposited in the mail if sent via first-class
certified or registered mail, or upon delivery if by hand delivery or if
sent via overnight carrier. Either Party, by notice in writing, may change
or designate the place for receipt of all such notices.
12. Post-Termination Obligations. Employer shall pay to Employee such
compensation as is required pursuant to this Agreement; provided, however, any
such payment shall be subject to Employee's post-termination cooperation. Such
cooperation shall include the following:
(a) Employee shall furnish such information and assistance as may be
reasonably required by Employer in connection with any litigation or
settlement of any dispute between Employer, a customer and/or any other
third parties (including without limitation serving as a witness in court
or other proceedings);
(b) Employee shall provide such information or assistance to Employer
in connection with any regulatory examination by any state or federal
regulatory agency;
(c) Employee shall keep the Employer's trade secrets and other
proprietary or confidential information secret to the fullest extent
practicable, subject to compliance with all applicable laws;
(d) Employee shall return all Employer's property, including, but not
limited to, keys, credit cards, manuals and other written materials.
(e) Employee shall execute a full release of all potential claims
related to this Agreement or to Employee's employment with the Employer in
favor of the Employer.
Upon submission of proper receipts, Employer shall promptly reimburse
Employee for any reasonable expenses incurred by Employee in complying with the
provisions of this Section.
13. Indebtedness. If during the term of this Agreement, Employee becomes
indebted to the Employer for any reason, the Employer may, at its election, set
off and collect any sums due Employee out of any amounts which the Employer may
owe Employee pursuant to the terms of this Agreement. Furthermore, upon the
termination of this Agreement, all sums owed to the Employer by Employee shall
become immediately due and payable. Employee shall pay all expenses and
Attorneys' Fees actually or necessarily incurred by the Employer in connection
with any collection proceeding for Employee's indebtedness. Notwithstanding any
of the foregoing, any indebtedness to the Employer secured by a mortgage on
Employee's residence shall not be subject to the foregoing provisions, but shall
be governed by the loan documents evidencing such indebtedness.
14. Maintenance of Trade Secrets and Confidential Information. Employee
shall use his best efforts and utmost diligence to guard and protect all of the
Employer's trade secrets and confidential information. Employee shall not,
either during the term or after termination of this Agreement, for whatever
reason, use in any capacity, or divulge or disclose in any manner, to any
Person, the identity of the Employer's customers, methods of operation,
marketing or promotional methods, processes, techniques, systems, formulas,
programs, trade secrets or other confidential
Page 10 of 15
information relating to the Employer's business. Upon termination of this
Agreement or Employee's employment, for any reason, Employee shall immediately
return and deliver to the Employer all records and papers and all materials of
whatever nature which bear trade secrets or confidential information relating to
the Employer.
15. Competitive Activities.
(a) Limitation on Outside Activities: Employee agrees that during the
term of this Agreement, except with the express consent of the Board,
Employee will not, directly or indirectly, engage in, participate in,
become a director of, render advisory or other services to, become
interested in, or make any financial investment in any firm, corporation,
business entity or business enterprise competitive with or to any business
of the Employer; provided, however, that Employee shall not be precluded or
prohibited from owning passive investments, including investments in the
securities of other financial institutions. Employee, however, shall be
prohibited from making any investments or commitments of time, accepting
any positions or participating in any activities which cause Employee to
devote time to such investments, commitments, positions or activities which
interfere with Employee's position with and obligations to the Bank.
(b) Agreement Not to Compete: Employee acknowledges that by virtue of
his employment with the Employer, Employee will acquire an intimate
knowledge of the activities and affairs of the Employer, including trade
secrets and other confidential matters. Employee, therefore, agrees that
during the term of this Agreement, and for a period of 12 months following
the termination of Employee's employment hereunder, Employee shall not
become employed, directly or indirectly, whether as an employee,
independent contractor, consultant, or otherwise, with any
federally-insured financial institution, financial holding company, bank
holding company, or other financial services provider located in Broward,
Palm Beach or Xxxxxxx Counties, Florida that offers similar products or
services as those offered by the Employer, or with any Person whose intent
it is to organize another such company or entity located in Broward, Palm
Beach or Xxxxxxx Counties, Florida.
Employee further agrees that for a period of 12 months following the
termination of Employee's employment hereunder for any reason, Employee
shall not directly or indirectly solicit the business of any then current
customer of the Employer, regardless of whether or not Employee was
responsible for generating such customer's business for the Employer. This
restriction shall apply to both loan customers and depositors of the
Employer.
Employee hereby agrees that the duration of the anti-competitive
covenant set forth herein is reasonable, and that its geographic scope is
not unduly restrictive.
16. Remedies for Breach.
(a) Arbitration: The Parties agree that, except for the specific
remedies for Injunctive Relief as contained in Section 16(b), herein, any
controversy or claim arising out of or relating to this Agreement, or any
breach thereof, including, without limitation, any claim that this
Agreement or any portion thereof is invalid, illegal or otherwise voidable,
Page 11 of 15
shall be submitted to binding arbitration before and in accordance with the
Rules of the American Arbitration Association. Judgment upon the
determination and/or award of such arbitrator may be entered in any court
having jurisdiction thereof; provided, however, that this clause shall not
be construed to permit the award of punitive damages to either Party. The
prevailing party to said arbitration shall be entitled to an award of
reasonable Attorneys' Fees. The venue for arbitration shall be in Broward
County, Florida.
(b) Injunctive Relief: The Parties acknowledge and agree that the
services to be performed by Employee are special and unique and that money
damages cannot fully compensate Employer in the event of Employee's
violation of the provisions of Sections 14 and 15 of this Agreement. Thus,
in the event of a breach of any of the provisions of such Section, Employee
agrees that Employer, upon application to a court of competent
jurisdiction, shall be entitled to an injunction restraining Employee from
any further breach of the terms and provision of such Section. Should
Employer prevail in an action seeking such an injunction, Employee shall
pay all costs and Attorneys' Fees incurred by Employer in and relating to
obtaining such injunction. Such injunctive relief may be obtained without
bond and Employee's sole remedy, in the event of the wrongful entry of such
injunction, shall be the dissolution of such injunction. Employee hereby
waives any and all claims for damages by reason of the wrongful issuance of
any such injunction.
(c) Cumulative Remedies: Notwithstanding any other provision of this
Agreement, the injunctive relief described in Section 16(b) herein and all
other remedies provided for in this Agreement which are available to
Employer as a result of Employee's breach of this Agreement, are in
addition to and shall not limit any and all remedies existing at law or in
equity which may also be available to Employer.
17. Assignment. This Agreement shall inure to the benefit of and be
binding upon the Employee, and to the extent applicable, his heirs, assigns,
executors, and personal representatives, and to the Employer, and to the extent
applicable, its successors, and assigns, including, without limitation, any
Person which may acquire all or substantially all of the Employer's assets and
business, or with or into which the Employer may be consolidated or merged, and
this provision shall apply in the event of any subsequent merger, consolidation,
or transfer, unless such merger or consolidation or subsequent merger or
consolidation is a transaction of the type which would result in termination
under Sections 10(c) and 10(d) herein.
18. Attorneys' Fees. In the event that any claim or controversy hereunder
is the subject of any litigation or arbitration between the Parties, the
prevailing Party shall be entitled to an award of all reasonable costs,
including Attorneys' Fees.
19. Miscellaneous.
(a) Amendment of Agreement: Unless as otherwise provided herein, this
Agreement may not be modified or amended except in writing signed by the
Parties.
(b) Certain Definitions: For purposes of this Agreement, the
following terms whenever capitalized herein shall have the following
meanings:
Page 12 of 15
(i) "Person" shall mean any natural person, corporation,
partnership (general or limited), trust, association or any
other business entity.
(ii) "Attorneys' Fees" shall include the legal fees and
disbursements charged by attorneys and their related travel
and lodging expenses, court costs, paralegal fees, etc.
incurred in arbitration, mediation, settlement negotiations,
discovery, trial, appeal or bankruptcy proceedings.
(c) Headings for Reference Only: The headings of the Sections and the
Subsections herein are included solely for convenient reference and shall
not control the meaning of the interpretation of any of the provisions of
this Agreement.
(d) Governing Law/Jurisdiction: This Agreement shall be construed in
accordance with and governed by the laws of the State of Florida. Any
litigation involving the Parties and their rights and obligations hereunder
shall be brought in the appropriate court in Broward County, Florida.
(e) Severability: If any of the provisions of this Agreement shall be
held invalid for any reason, the remainder of this Agreement shall not be
affected thereby and shall remain in full force and effect in accordance
with the remainder of its terms.
(f) Entire Agreement: This Agreement and all other documents
incorporated or referred to herein, contain the entire agreement of the
Parties and there are no representations, inducements or other provisions
other than those expressed in writing herein. No modification, waiver or
discharge of any provision or any breach of this Agreement shall be
effective unless it is in writing signed by both Parties. A Party's waiver
of the other Party's breach of any provision of this Agreement, shall not
operate, or be construed, as a waiver of any subsequent breach of that
provision or of any other provision of this Agreement.
(g) Waiver: No course of conduct by Employer or Employee and no delay
or omission of Employer or Employee to exercise any right or power given
under this Agreement shall: (i) impair the subsequent exercise of any right
or power, or (ii) be construed to be a waiver of any default or any
acquiescence in or consent to the curing of any default while any other
default shall continue to exist, or be construed to be a waiver of such
continuing default or of any other right or power that shall theretofore
have arisen. Any power and/or remedy granted by law and by this Agreement
to any Party hereto may be exercised from time to time, and as often as may
be deemed expedient. All such rights and powers shall be cumulative to the
fullest extent permitted by law.
(h) Pronouns: As used herein, words in the singular include the
plural, and the masculine include the feminine and neuter gender, as
appropriate.
Page 13 of 15
(i) Recitals: The Recitals set forth at the beginning of this
Agreement shall be deemed to be incorporated into this Agreement by this
reference as if fully set forth herein, and this Agreement shall be
interpreted with reference to and in light of such Recitals.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first written above.
EMPLOYEE BANK OF FLORIDA
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. XxXxxxxx
Xxxxxx X. Xxxxx Xxxxxxx X. XxXxxxxx,
President and Chief Executive Officer
Page 14 of 15
SPECIFIC JOINDER BY BANCSHARES OF FLORIDA, INC.
Bancshares of Florida, Inc. ("Bancshares"), the parent holding company of
the Bank, desires to make certain specific commitments to Employee. In that
regard, Bancshares and Employee agree as follows:
1. Stock Options. Subject to availability of shares under Bancshares'
1999 Stock Option Plan and all terms thereof, Bancshares shall grant
an option to purchase 20,000 shares of Bancshares common stock. Such
option shall be granted pursuant to a separate Stock Option Agreement
and shall be governed pursuant to such agreement's terms.
2. Employment by Bancshares. Within 30 days of each anniversary date of
the Agreement, or at the Board's discretion, Bancshares' Board of
Directors shall review and consider Employee's performance under the
Agreement and determine whether to offer Employee employment as
Bancshares' Chief Operating Officer.
3. Termination. This Specific Joinder shall terminate upon any
termination of the Agreement.
IN WITNESS WHEREOF, Employee and Bancshares have executed this Specific
Joinder as of the day and year first written above.
EMPLOYEE BANCSHARES OF FLORIDA, INC.
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. XxXxxxxx
Xxxxxx X. Xxxxx Xxxxxxx X. XxXxxxxx,
President and Chief Executive Officer
Page 15 of 15
