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EXHIBIT 10
EMPLOYMENT AGREEMENT BETWEEN XXXXX X. XXXXXX
AND COLONIAL BANK
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EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the ____
day of _________, 1997, by and between Colonial Bank, an Alabama banking
corporation and a subsidiary of The Colonial BancGroup, Inc., a Delaware
corporation ("BancGroup"), and Xxxxx X. Xxxxxx ("Executive"), a resident of the
State of Florida.
PREAMBLE
This Agreement is entered into pursuant to an Agreement and Plan of
Merger dated as of _______, 1997 (the "Merger Agreement") by and between
BancGroup and United American Holding Corporation ("Acquired Corporation") of
which United American Bank of Central Florida (the "Bank") is a subsidiary.
Executive currently serves as an officer of the Bank, which is located in
Orlando, Florida. Capitalized terms used herein that are not defined herein
shall have the same meanings given to such terms in the Merger Agreement.
In consideration of the mutual covenants and agreements contained
herein and in the Merger Agreement, and effective with the Effective Date,
Colonial Bank and Executive hereby agree as follows:
ARTICLE ONE
EMPLOYMENT
1.1 EMPLOYMENT OF EXECUTIVE. Commencing on the Effective Date, Colonial
Bank shall employ Executive as Chairman of the Central Florida Region and
Chairman of the loan committee for such region. Executive shall have such
duties, responsibilities and authority consistent with those
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normally attending such a position. Executive shall exercise all reasonable and
necessary care in the performance of such duties and shall undertake such other
tasks as may be required from time to time by the board of directors of Colonial
Bank. The title and responsibilities of Executive may be changed at the
discretion of Colonial Bank, but such changes shall not diminish Executive's
right to the compensation provided for in Section 1.2.
1.2 COMPENSATION AND BENEFITS. Executive shall receive an annual base
salary of not less than $250,000, paid bi-weekly. Executive shall also be
entitled to receive such adjustments in salary and such discretionary bonuses as
may be granted from time to time by Colonial Bank and to participate in Colonial
Bank's benefit plans that are available to executive officers of Colonial Bank
as provided in section 6.1(d) of the Merger Agreement.
1.3 AUTOMATIC TERMINATION. Executive's employment under this Agreement
shall be automatically terminated upon his death or Complete Disability (as
defined below), whichever shall occur first. Upon such termination, this
Agreement shall be of no further force and effect, except that Executive shall
receive the Cash Payment referenced in section 2.1 below. "Complete Disability"
as used herein shall mean the inability of Executive, due to illness, accident,
or any other physical or mental incapacity, to perform the services provided for
in this Agreement for an aggregate of one hundred (120) days within any period
of twelve (12) consecutive months during the term hereof.
1.4 CONFIDENTIALITY. Executive shall not, at any time during or after
his employment with Colonial Bank, use, disclose, confirm, furnish, or make
accessible to anyone, other than in the regular course of the business of
Colonial Bank and consistent with the best interests of Colonial Bank and its
affiliates, any knowledge or information of a confidential or secret nature with
respect to the business affairs, assets, operations, plans, or know-how of
Colonial Bank or its subsidiaries or affiliates, unless (and only to the extent)
such disclosure is required by applicable law or regulations.
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Section 1.5 shall be binding upon Executive, and shall inure to the benefit of
Colonial Bank, following any termination or expiration of this Agreement.
1.5 TERM. Subject to Article Two and section 1.3 hereof, the term of
this Agreement shall commence on the Effective Date and shall expire on the date
that is the first anniversary of the Effective Date, unless extended by the
mutual agreement of the parties.
ARTICLE TWO
SEVERANCE ARRANGEMENT
2.1 SEVERANCE AND PAYMENT. Colonial Bank may at any time terminate
Executive's employment by giving written notice (the "Notice") to Executive 15
days before such termination is to be effective. Upon the effective date of such
termination (which shall be stated in the Notice), Colonial Bank shall pay to
Executive in cash a lump-sum payment (the "Cash Payment") equal to the total
salary that would otherwise be paid to the Executive for the remainder of the
term stated in section 1.5 using the annual cash salary paid to Executive by
Colonial Bank at the time the Notice is given for purposes of calculating such
payment. Thereafter, BancGroup and Colonial Bank shall have no further
obligation to Executive, and Executive shall have no claim against BancGroup or
Colonial Bank for any further payment or benefit, including, but not limited to,
any claim for stock options that are not vested at the date of the Notice or any
other benefits not vested at such time, or any right to continued participation
in any benefit plan. In addition to such other consideration as may be stated in
this Agreement, one half of the Cash Payment made pursuant to this section shall
be deemed a severance payment and one half of such payment shall be deemed
consideration expressly for the covenant not to compete contained in Article
Three hereof.
2.2 TERMINATION FOR CAUSE OR VOLUNTARY TERMINATION. (a) The obligation
of
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BancGroup to make the Cash Payment specified in section 2.1 hereof shall not
apply if (1) Executive voluntarily terminates his employment with Colonial Bank
for any reason or (2) BancGroup terminates Executive's employment for cause. For
the purpose of this section 2.2, "cause" shall occur if Executive is suspended
by any bank regulatory agency from participating in the management of Colonial
Bank or if Executive commits any one or more of the following acts:
(i) Willful damage of Colonial Bank's or BancGroup's property,
business reputation or goodwill;
(ii) The commission of a felony;
(iii) Theft, fraud, embezzlement or any other act of moral
turpitude or deliberate neglect of duties with Colonial Bank; or
(iv) The use of alcohol or drugs if Executive is prevented
thereby from efficiently performing his duties as an employee of
Colonial Bank.
Cause, if any, shall be specified in the notice given under section 2.1 hereof.
(b) In consideration for the covenant not to compete made by Executive
in Article Three of this Agreement, and in addition to such other consideration
as may be stated in this Agreement, upon the effective date of any termination
occurring as provided in this section 2.2, Colonial Bank may, in its sole
discretion, pay to Executive the Cash Payment specified in section 2.1 and
Executive shall accept such payment. Such payment shall be made on the effective
date of such termination, if the termination is made by BancGroup for cause, or
within 7 days after Executive gives notice to BancGroup or Colonial Bank of his
intention to terminate his employment.
ARTICLE THREE
COVENANT NOT TO COMPETE
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Executive covenants and agrees with BancGroup that, subject to the
following sentence and assuming the Cash Payment has been paid to Executive in
case of termination under section 2.1 or 2.2, Executive shall not, without the
prior written consent of BancGroup, directly or indirectly, serve as a
consultant to, serve as a management official of, or be or become a major
stockholder of any financial institution (other than BancGroup) then having an
office in _______________ Counties, Florida. The prohibition in the foregoing
sentence shall apply during the remainder of the term of this Agreement as
specified in section 1.5. For the purposes of the covenants contained in this
Article Three, the following terms shall have the following respective meanings:
(a) The term "management official" shall refer to service of
any type which gives the undersigned the authority to participate,
directly or indirectly, in policy-making functions of the financial
institution. This includes, but is not limited to, service as an
officer, director or advisory director of the financial institution. It
is expressly understood that Executive may be deemed a management
official of the financial institution whether or not he holds any
official, elected or appointed position with such financial
institution.
(b) The term "financial institution" shall refer to any bank,
bank holding company, savings and loan association, savings and loan
holding company, banking related company or any other similar financial
institution which engages in the business of accepting deposits or
making loans or which owns or controls a company which engages in the
business of accepting deposits or making loans. It is expressly
understood that the term financial institution shall include the
organizers of any financial institution as defined herein who, before
or after the date of this agreement, make application to an appropriate
federal or state regulatory authority, for approval to organize but
whose application has not been finally approved as of the date hereof.
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(c) The term "major stockholder" shall refer to the beneficial
ownership of four percent (4%) or more of any class of voting
securities of such company or the ownership of four percent (4%) or
more of the total equity interest in such company, however denominated.
(d) The time within which this covenant not to compete is
applicable shall be tolled if and while Executive is in breach thereof.
ARTICLE FOUR
REASONABLENESS, SEVERABILITY AND REMEDIES
The restrictions contained in Article Three are considered by the
parties to be fair and reasonable and necessary for the protection of the
legitimate business interests of BancGroup and Colonial Bank, and enforceable in
accordance with their terms. The provisions of Article Three as to scope of
activities, time and territory shall be construed or limited by the court so as
to make them enforceable, if otherwise they were not. Executive agrees that
BancGroup and Colonial Bank will or would suffer irreparable injury if Executive
were to violate any of the provisions of Article Three, and that in the event of
a breach by him of those provisions, Colonial Bank shall (in addition to all
other rights and remedies available to it, including, without limitation,
recovery of damages) be entitled to an injunction restraining him from such
breach and to no longer be obligated to make the payments otherwise due and
payable to him under this Agreement.
ARTICLE FIVE
MISCELLANEOUS
5.1 MODIFICATION AND WAIVER. Any term or condition of this Agreement
may be waived
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at any time by the party hereto that is entitled to the benefit thereof;
provided, however, that no such waiver of any breach or default hereunder is to
be implied from the omission of the other party to take any action on account
thereof. A waiver on one occasion shall not be deemed to be a waiver of the same
or of any other breach or default on a subsequent occasion. This Agreement may
be modified or amended only by a writing signed by both Colonial Bank and
Executive.
5.2 GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the law of the State of Florida.
5.3 SUCCESSORS AND ASSIGNS. This Agreement requires the personal
services of, and shall not be assignable by, Executive. This Agreement shall be
binding upon, and shall inure to the benefit of, Colonial Bank and its
successors and assigns.
5.4 SECTION CAPTIONS. Section captions contained in this Agreement are
for reference purposes only and are not intended to describe, interpret, define,
or limit the scope of this Agreement or any provision hereof.
5.5 SEVERABILITY. Every provision of this Agreement is intended to be
severable. If any term of provision is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity of the
remainder of this Agreement.
5.6 INTEGRATED AGREEMENT. This Agreement constitutes the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof, and there are no agreements, understandings,
restrictions, representations, or warranties between the parties other than
those set forth or provided for herein.
5.7 ATTORNEY'S FEES. In the event of any litigation between the parties
to enforce the terms of this Agreement, the prevailing party shall be entitled
to recover, from the other party, any and all reasonable attorney's fees and
court costs incurred in enforcing such terms.
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5.8 INTERPRETATION. No provision of this Agreement is to be interpreted
for or against any party because that party or that party's legal representative
drafted such provision.
5.9 NOTICES. Any notices required to be given hereunder shall be in
writing and shall be deemed to have been duly given when personally delivered or
deposited in the United States mail, certified or registered, return receipt
requested, postage prepaid, addressed to the parties and their counsel at their
respective addresses listed below:
If to Colonial Bank: Colonial Bank
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxx, XX 00000
Attention: X. Xxxxx Oakley, Chief Financial Officer
If to Executive:
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IN WITNESS WHEREOF, this Agreement has been duly executed under seal
and delivered by the respective parties as of the day and year first above
written.
AS TO THE UNDERSIGNED,
SIGNED IN THE PRESENCE OF:
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Xxxxx X. Xxxxxx
ATTEST: COLONIAL BANK
By: By:
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Secretary X. Xxxxx Oakley
Chief Financial Officer
[Corporate Seal]
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