EXHIBIT 10.3
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AMENDED AND RESTATED
CONTRACT OF EMPLOYMENT
This AMENDED AND RESTATED CONTRACT OF EMPLOYMENT ("Agreement"), made and
entered into this 16th day of November, 2001, by and between Mercantile Bank and
Gulf West Banks, Inc., both corporations duly organized and existing under the
laws of the State of Florida (hereinafter collectively referred to as "Banks"),
and Xxxxxx X. Xxxxxxxx, as Chairman and Chief Executive Officer ("CEO") of the
Banks (hereinafter referred to as "Executive").
WHEREAS, the Banks and Executive have seen fit to establish matters
normally dealt with in an employment contract such as salary, vehicle allowance,
expenses, and hospitalization by separate determinations, and
WHEREAS, it is not the intent of the parties to attempt to incorporate in
this Agreement any such separate determinations, nor is the exclusion of said
items from this Agreement in any way intended to nullify said determinations or
to modify them in any way, and
WHEREAS, Mercantile Bank and Executive entered into a Contract of
Employment ("Contract") on November 5, 1992 said contract having been amended on
May 30, 2000; and
WHEREAS, the Banks and Executive now desire to further amend the Contract
in certain respects by this Agreement.
NOW, THEREFORE, in consideration of Executive's past services and those to
be performed in the future, and based upon their mutual covenants and good and
valuable consideration, the Banks and Executive do agree as follows:
TERM; COMPENSATION
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The Executive is hereby employed by the Banks for a period of twelve (12)
years, commencing the 30th day of May, 2000, with an annual salary of $260,000,
plus incentive bonuses. Such salary and bonuses are subject to increase or
decrease as determined by the Boards of Directors of the Banks ("Boards").
ALLOWANCES AND BENEFITS
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The Executive shall be entitled to receive reimbursements and benefits of
all types commensurate with, and at least equal to, the benefits of the other
corporate officers, excepting only benefits which are given to a specific
officer for a specific and separate banking purpose.
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DUTIES OF THE OFFICE
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The Executive hereby commits to the Banks to carry out, to the best of his
ability, the duties set forth in the respective Bylaws and Charter of each
corporation for his position as CEO, Chairman, or such office or offices in a
corporation or corporations, or any subsidiary corporation, to which he may be
elected and appointed by the respective Boards, subject to such reasonable
requirements and allowances as the Executive shall request. The Executive shall
perform such other reasonable duties as shall from time to time be prescribed by
the Directors of the Banks. The Executive shall devote his time and attention
to the business and affairs of the Banks, and shall use his best efforts to
promote the best interest of the Banks.
The Banks understand that the Executive has business interests outside of
the Banks, and there is no intent by this Agreement to restrict those business
interests or to prohibit the Executive from holding office in other corporations
or owning interest in other corporations, so long as said corporations do not
have an interest which substantially conflicts with the interests of the Banks,
and so long as the carrying out of the duties of such other offices do not by
the requirements of time, talent, or knowledge interfere in any way with the
Executive's ability to fully perform the duties assigned to him by the Boards.
SEPARATION
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A. Discharge for Cause. The Banks may, at any time, terminate this
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Agreement for "Cause," which term is hereby defined as any activity of the
Executive which is: 1) clearly inconsistent with his fiduciary duties to the
Banks; 2) in violation of the laws of the State of Florida or the United States
of America and which constitutes a felony; 3) morally reprehensible and of such
a nature as to clearly have a substantial adverse effect upon the business of
the Banks; or 4) conduct of a financial nature, either in the Executive's
personal life or in the conduct of the business of the Banks, which could pose a
substantial risk of either loss to the Banks or severe criticism by those in
regulatory authority over the Banks. The Banks shall have the sole discretion to
determine whether Cause exists.
B. Resignation and Termination Not For Cause. In the event the Executive's
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duties as Chairman or CEO of either Bank are terminated, whether by Executive or
by the Banks, for any reason other than for Cause, as above defined, the
Executive shall be retained as a consultant to the Banks with a salary set by
the Boards, but in no event less than $100,000 per year for the remaining term
of the Agreement. As such consultant, the Executive shall make himself available
to the Banks, at their request, for an aggregate total of no less than 330 hours
per year (on average, approximately thirty (30) hours per month during eleven
(11) months of the year).
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In the event the Executive is discharged because of physical or mental
inability to perform his duties, the discharge will be considered a termination
not for Cause and the requirement that the Executive make himself available to
the Banks for consulting shall be reduced in such manner as the physical or
mental inability necessitates.
C. Successors. The Banks shall use their best efforts to require any
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successor or assignee, whether direct or indirect, by purchase, merger,
consolidation or otherwise, to all or substantially all the business or assets
of either Bank, expressly and unconditionally, to assume and agree to perform
the Bank's obligations under this Agreement, in the same manner and to the same
extent that the Banks would be required to perform if no such succession or
assignment had taken place. In such event, the term "Banks," as used in this
Agreement, shall mean the Banks as hereinbefore defined and any successor or
assignee to the business or assets which by reason hereof becomes bound by the
terms and provisions of this Agreement.
D. Benefits After Separation. In the event of (i) separation not for Cause,
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as above specified, (ii) retirement at any time after the term of the Agreement,
or (iii) retirement during the term of the Agreement if such retirement is
agreed to by the Banks and the Executive, the Banks agree to make available to
the Executive and his spouse (if such spouse was covered by the Banks' health
benefits program before the separation or retirement) health benefits which are
substantially similar to the health benefits provided to the Executive and his
spouse (if applicable) prior to the termination or retirement. The Executive
shall pay the same portion of the cost of such benefits as is paid by any other
active officer of the Banks.
MISCELLANEOUS
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A. Applicable Law and Binding Effect. This Agreement shall be interpreted
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and construed in accordance with the laws of the State of Florida.
B. Amendment. This Agreement may not be modified orally, and may only be
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modified by a writing signed by all parties to this Agreement.
C. Attorneys' Fees. If either party initiates proceedings for the other's
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breach of this Agreement, the prevailing party shall recover attorneys' fees and
costs, including such fees and costs on any enforcement or appeal proceedings.
D. Severability. If one or more provisions of this Agreement are ruled
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invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision of the Agreement, which shall remain in full force and
effect.
X. Xxxxx. All parties understand that although Executive is employed by
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both Banks, for purposes of this Agreement, the Banks have agreed to act in
concert with respect to the employment of the Executive.
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F. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall constitute an original, but all of which
together shall constitute one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first above written.
MERCANTILE BANK
GULF WEST BANKS, INC.
By:______________________________________
Xxxx Xxxxxx
Compensation Committee Chair
_________________________________________
XXXXXX X. XXXXXXXX
ATTESTED BY:
_________________________________________
Xxxxx X. Xxxxxx
Secretary of the Board
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