EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made as of this 17th day of
January, 2000, by and between Old Florida Bank (the "Bank"), and Xxxxxxxx X.
Xxxxxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Bank desires to retain the services of and employ the Executive,
and the Executive desires to provide services to the Bank, pursuant to the terms
and conditions of this Agreement.
NOW, THEREFORE, in consideration of the promises and of the covenants
and agreements herein contained, the Bank and the Executive covenant and agree
as follows:
1. Employment. Pursuant to the terms and conditions of this Agreement,
the Bank agrees to employ the Executive and the Executive agrees to render
services to the Bank as set forth herein.
2. Position and Duties. During the term of this Agreement, the
Executive shall serve as Executive Vice President and Chief Financial Officer of
the Bank, and shall undertake such duties, consistent with such titles, as may
be assigned to him from time to time by the President and Chief Executive
Officer and Board of Directors of the Bank (referred to as the "Board"). In
performing his duties pursuant to this Agreement, the Executive shall devote his
full business time, energy, skill and best efforts to promote the Bank and its
business and affairs; provided that, subject to Sections 10, 12 and 13 of this
Agreement, the Executive shall have the right to manage and pursue personal and
family interests, and make passive investments in securities, real estate, and
other assets, and also to participate in charitable and community activities and
organizations, so long as such activities do not adversely affect the
performance by Executive of his duties and obligations to the Bank.
3. Term. The initial term of employment pursuant to this Agreement
shall be for a period of three years, commencing with the date hereof and
expiring (unless sooner terminated as otherwise provided in this Agreement or
unless otherwise renewed or extended as set forth herein) on the third
anniversary of this Agreement, which date, including any earlier date of
termination or any extended expiration date, shall be referred to as the
"Expiration Date". Subject to the provisions of Section 8 of this Agreement, the
term of this Agreement and the employment of the Executive by the Bank
hereunder shall be deemed automatically renewed for successive periods of one
year commencing on the third anniversary date of this Agreement, unless either
party gives the other written notice, at least 180 days prior to the end of the
then term of the Agreement. After termination of the employment of the
Executive for any reason whatsoever, the Executive shall continue to be subject
to the provisions of Sections 10 through 17, inclusive, of this Agreement;
provided, however, that the Executive shall not be subject to the provisions of
Sections 12 or 13 where the employment of the Executive is terminated by the
Executive for Good Reason (as defined in Section 8) or pursuant to Sections 8(e)
or 8(f), or where the term of employment is not renewed pursuant to this
Section 3.
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4. Compensation. During the term of this Agreement, the Bank shall pay
or provide to the Executive as compensation for the services of the Executive
set forth in Section 2 hereof:
(a) A base annual salary of at least $90,000 for the year
2000, $99,000 for the year 2001 and $108,900 for the year 2002 payable in such
periodic installments consistent with other employees of the Bank (such base
salary to be subject to increase by the President and Chief Executive Officer or
the Board in its discretion); and
(b) Such individual bonuses and other compensation to the
Executive as may be authorized by the President and Chief Executive Officer or
the Board from time to time.
5. Benefits and Insurance. The Bank shall provide to the Executive such
medical, health, and life insurance as well as any other benefits as the Board
shall determine from time to time. At a minimum, the Executive shall be entitled
to (i) participate in all employee benefit plans offered to the Bank's employees
generally, and (ii) life insurance coverage (payable to such beneficiary as the
Executive may designate from time to time). The Executive also shall be entitled
to participate in any group disability plan maintained by the Bank, with the
Bank paying to the Executive his base annual salary during any waiting period
imposed by such plan for the receipt of disability benefits thereunder. The Bank
shall undertake to provide for its employees generally (including the Executive)
a retirement plan and a plan qualified under Section 401 (k) of the Internal
Revenue Code of 1986, as amended. All benefits referred to herein shall be
provided at reasonable levels and within reasonable time after the commencement
of the Executive's employment pursuant to the terms of this Agreement.
6. Vacation. The Executive may take up to four weeks of vacation time
at such periods during each year as the Board and the Executive shall determine
from time to time. The Executive shall be entitled to full compensation during
such vacation periods. Any unused vacation time shall not accrue from year to
year.
7. Reimbursement of Expenses: Automobile Allowance. The Bank shall
reimburse the Executive for reasonable expenses incurred in connection with his
employment hereunder subject to guidelines issued from time to time by the Board
and upon submission of documentation in conformity with applicable requirements
of federal income tax laws and regulations supporting reimbursement of such
expenses. The Bank also shall provide to the Executive an automobile allowance
in an amount as shall be mutually agreed upon by the Executive and the Bank.
8. Termination. The employment of the Executive may be terminated as
follows:
(a) By the Bank, by action taken by its Board, at any time and
immediately upon written notice to the Executive if said discharge is for cause.
In the notice of termination furnished to the Executive under this Section 8(a),
the reason or reasons for said termination shall be given and, if no reason or
reasons are given for said termination, said termination shall be deemed to be
without cause and therefore termination pursuant to Section 8(f). Any one or
more of the following conditions shall be deemed to be grounds for termination
of the employment of the Executive for cause under this Section 8(a):
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(i) If the Executive shall fail or refuse to comply
with the obligations required of him as set forth in this Agreement or comply
with the policies of the Bank established by the Board, or directions received
from the President and Chief Executive Officer, from time to time; provided,
however, that for the first two such failures or refusals, the Executive shall
be given written warnings (each providing at least a 30 day period for an
opportunity to cure), and the third failure or refusal shall be grounds for
termination for cause;
(ii) If the Executive shall have engaged in conduct
involving fraud, deceit, personal dishonesty, or breach of fiduciary duty
involving personal profit, which in any such case has adversely affected, or may
adversely affect, the business or reputation of the Bank;
(iii) If the Executive shall have willfully violated
any banking law or regulation, memorandum of understanding, cease and desist
order, or other agreement with any banking agency having jurisdiction over the
Bank;
(iv) If the Executive shall have become subject to
continuing intemperance in the use of alcohol or drugs which has adversely
affected, or may adversely affect, the business or reputation of the Bank; or
(v) If the Executive shall have filed, or had filed
against him, any petition under the federal bankruptcy laws or any state
insolvency laws.
In the event of termination for cause, the Bank shall
pay the Executive only salary, vacation, and bonus amounts accrued and unpaid as
of the effective date of termination.
(b) By the Executive upon the lapse of 30 days following written notice
by the Executive to the Bank of termination of his employment hereunder for
Good Reason (as defined below), which notice shall reasonably describe the Good
Reason for which the Executive's employment is being terminated; provided,
however, that if the Good Reason specified in such notice is such that there is
a reasonable prospect that it can be cured with diligent effort within 30 days,
the Bank shall have a reasonable time (having regard for the nature of the Good
Reason) to cure such Good Reason, which time shall not in any event exceed 30
days from the date of such notice, and the Executive's employment shall continue
in effect during such reasonable time so long as the Bank makes diligent efforts
during such time to cure such Good Reason. If such Good Reason shall be cured by
the Bank during such reasonable time, the Executive's employment and the
obligations of the Bank hereunder shall not terminate as a result of the notice
which has been given with respect to such Good Reason. Cure of any Good Reason
with or without notice from the Executive shall not relieve the Bank from any
obligations to the Executive under this Agreement or otherwise and shall not
affect the Executive's rights upon the reoccurrence of the same, or the
occurrence of any other, Good Reason. For purposes of this Agreement, the term
"Good Reason" shall mean any material breach by the Bank of any provision of
this Agreement, any significant reduction, without the Executive's prior written
consent, in the duties, responsibilities, authority or title of the Executive as
an officer of the Bank, or if the Executive's employment is terminated by the
Bank for any reason other than cause.
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If the Executive's employment is terminated by the Executive
for Good Reason, the Bank shall, for a period of the greater of one year after
said termination or until the expiration of this Agreement:
(i) continue to pay to the Executive the base annual
salary in effect under Section 4(a) on the date of said termination (or, if
greater, the highest annual salary in effect for the Executive within the 36
month period prior to said termination) plus an annual amount equal to any bonus
paid by the Bank to the Executive during the 12 month period prior to said
termination;
(ii) continue to provide for the benefit of the
Executive the life insurance benefits provided to the Executive prior to
termination; and
(iii) reimburse the Executive for continued coverage
in accordance with the Consolidated Omnibus Budget Reconciliation Act under the
Bank's medical insurance plan.
(c) By the Executive upon the lapse of 30 days following
written notice by the Executive to the Bank of his resignation from the Bank for
other than Good Reason; provided, however, that the Bank, in its discretion, may
cause such termination to be effective at any time during such 30-day period. If
the Executive's employment is terminated because of the Executive's resignation,
the Bank shall be obligated to pay to the Executive any salary, vacation, and
bonus amounts accrued and unpaid as of the effective date of such resignation.
(d) If the Executive's employment is terminated by the death
of the Executive, this Agreement shall automatically terminate, and the Bank
shall be obligated to pay to the Executive's estate any salary, vacation, and
bonus amounts accrued and unpaid at the date of death.
(e) If after a Change of Control and before the end of the
initial term (or, if applicable, the renewal term), the Executive's employment
is terminated, his duties are materially reduced, his base salary is reduced,
his employment is relocated more than 50 miles from the Bank's main office or
his participation in any employee benefit plan is materially reduced or
adversely affected, and the Executive does not consent to such change, then the
Executive shall be entitled to receive promptly thereafter an amount equal to
two times the average base annual salary plus annual bonus received by the
Executive during the three year period prior to such termination. The Employee
may voluntarily terminate his employment under this Agreement within twelve
months following a Change of Control, and the Employee shall thereupon be
entitled to receive the amounts described in the preceding sentence upon
effectiveness of such voluntary termination of employment. For purposes of this
Agreement, a Change of Control shall mean a merger or acquisition in which the
Bank is not the surviving entity, or the acquisition by any individual or group
of beneficial ownership of more than 50% of the outstanding shares of Bank
common stock (excluding any transaction which results in the formation for the
Bank of a bank holding company owned by substantially all of the former
shareholders of the Bank). The term "group" and the concept of beneficial
ownership shall have
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such meanings ascribed thereto as set forth in the Securities Exchange Act of
1934, as amended (the "1934 Act"), and the regulations and rules thereunder.
(f) By the Bank, by action taken by its Board, at any time if
said discharge is without cause. If the Executive's employment is terminated by
the Bank without cause, the Bank shall, for a period of the greater of one year
after said termination or until the expiration of this Agreement:
(i) continue to pay to the Executive the base annual
salary in effect under Section 4(a) on the date of said termination (or, if
greater, the highest annual salary in effect for the Executive within the 36
month period prior to said termination) plus an annual amount equal to any bonus
paid by the Bank to the Executive during the 12 month period prior to said
termination:
(ii) continue to provide for the benefit of the
Executive the life insurance benefits provided to the Executive prior to
termination; and
(iii) reimburse the Executive for continued coverage
in accordance with the Consolidated Omnibus Budget Reconciliation Act under the
Bank's medical insurance plan.
9. Notice. All notices permitted or required to be given to either
party under this Notice. Agreement shall be in writing and shall be deemed to
have been given (a) in the case of delivery, when addressed to the other party
as set forth at the end of this Agreement and delivered to said address, (b) in
the case of mailing, three days after the same has been mailed by certified
mail, return receipt requested, and deposited postage prepaid in the U.S. Mails,
addressed to the other party at the address as set forth at the end of this
Agreement, and (c) in any other case, when actually received by the other party.
Either party may change the address at which said notice is to be given by
delivering notice of such to the other party to this Agreement in the manner set
forth herein.
10. Confidential Matters. The Executive is aware and acknowledges that
the Executive shall have access to confidential information by virtue of his
employment. The Executive agrees that, during the period of time the Executive
is retained to provide services to the Bank, and thereafter subsequent to the
termination of Executive's services to the Bank for any reason whatsoever, the
Executive will not release or divulge any confidential information whatsoever
relating to the Bank or its business, to any other person or entity without the
prior written consent of the Bank. Confidential information does not include
information that is available to the public or which becomes available to the
public other than through a breach of this Agreement on the part of the
Executive. Also, the Executive shall not be precluded from disclosing
confidential information in furtherance of the performance of his services to
the Bank or to the extent required by any legal proceeding.
11. Injunction Without Bond. In the event there is a breach or threatened breach
by the Executive of the provisions of Sections 10, 12, or 13, the Bank shall be
entitled to an injunction without bond to restrain such breach or threatened
breach, and the prevailing party in any such proceeding will be entitled to
reimbursement for all costs and expenses, including
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reasonable attorneys' fees in connection therewith. Nothing herein shall be
construed as prohibiting the Bank from pursuing such other remedies available to
it for any such breach or threatened breach including recovery of damages from
the Executive.
12. Noncompetition. The Executive agrees that during the period of time
the Executive is retained to provide services to the Bank, and thereafter for a
period of one year subsequent to the termination of Executive's services to the
Bank for any reason whatsoever (except where the employment of the Executive is
terminated by the Executive for Good Reason or pursuant to Sections 8(e) or
8(f), or where the term of employment is not renewed pursuant to Section 3),
Executive will not enter the employ of, or have any interest in, directly or
indirectly (either as executive, partner, director, officer, consultant,
principal, agent or employee), any other bank or financial institution or any
entity which either accepts deposits or makes loans (whether presently existing
or subsequently established) and which has an office located within a radius of
50 miles of any office of the Bank; provided, however, that the foregoing shall
not preclude any ownership by the Executive of an amount not to exceed 5% of the
equity securities of any entity which is subject to the periodic reporting
requirements of the 1934 Act and the shares of Bank common stock owned by the
Executive at the time of termination of employment.
13. Nonsolicitation: Noninterference. The Executive agrees that during
the period of time the Executive is retained to provide services to the Bank,
and thereafter for a period of one year subsequent to the termination of
Executive's services to the Bank for any reason whatsoever (except where such
termination is by the Executive for Good Reason or pursuant to Sections 8(e) or
8(f), or where the term of employment is not renewed pursuant to Section 3), the
Executive will not (a) solicit for employment by Executive, or anyone else, or
employ any employee of the Bank or any person who was an employee of the Bank
within 12 months prior to such solicitation of employment; (b) induce, or
attempt to induce, any employee of the Bank to terminate such employee's
employment; (c) induce, or attempt to induce, anyone having a business
relationship with the Bank to terminate or curtail such relationship or, on
behalf of himself or anyone else, compete with the Bank; (d) knowingly make any
untrue statement concerning the Bank or its directors or officers to anyone; or
(e) permit anyone controlled by the Executive, or any person acting on behalf of
the Executive or anyone controlled by an employee of the Executive to do any of
the foregoing.
14. Remedies. The Executive agrees that the restrictions set forth in this
Agreement are fair and reasonable. The covenants set forth in this Agreement are
not dependent covenants and any claim against the Bank, whether arising out of
this Agreement or any other agreement or contract between the Bank and
Executive, shall not be a defense to a claim against Executive for a breach or
alleged breach of any of the covenants of Executive contained in this Agreement.
It is expressly understood by and between the parties hereto that the covenants
contained in this Agreement shall be deemed to be a series of separate
covenants. The Executive understands and agrees that if any of the separate
covenants are judicially held invalid or unenforceable, such holding shall not
release him from his obligations under the remaining covenants of this
Agreement. If in any judicial proceedings, a court shall refuse to enforce any
or all of the separate covenants because taken together they are more extensive
(whether as to geographic area, duration, scope of business or otherwise) than
necessary to protect the business and goodwill of the Bank, it is expressly
understood and agreed between the parties hereto that those
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separate covenants which, if eliminated or restricted, would permit the
remaining separate covenants or the restricted separate covenant to be enforced
in such proceeding shall, for the purposes of such proceeding, be eliminated
from the provisions of this Agreement or restriction, as the case may be.
15. Invalid Provision. In the event any provision should be or become
invalid or unenforceable, such facts shall not affect the validity and
enforceability of any other provision of this Agreement. Similarly, if the scope
of any restriction or covenant contained herein should be or become too broad or
extensive to permit enforcement thereof to its full extent, then any such
restriction or covenant shall be enforced to the maximum extent permitted by
law, and Executive hereby consents and agrees that the scope of any such
restriction or covenant may be modified accordingly in any judicial proceeding
brought to enforce such restriction or covenant.
16. Governing Law: Venue. This Agreement shall be construed in
accordance with and shall be governed by the laws of the State of Florida. The
sole and exclusive venue for any action arising out of this Agreement shall be a
federal or state court situated in Xxx County, Florida, and the parties to this
Agreement agree to be subject to the personal jurisdiction of such Court and
that service on each party shall be valid if served by certified mail, return
receipt requested or hand delivery.
17. Attorneys' Fees and Costs. In the event a dispute arises between
the parties under this Agreement and suit is instituted, the prevailing party
shall be entitled to recover his or its costs and attorneys' fees from the
nonprevailing party. As used herein, costs and attorneys' fees include any costs
and attorneys' fees in any appellate proceeding.
18. No Third Party Beneficiary. This Agreement is solely between the
parties hereto, and no person not a party to this Agreement shall have any
rights hereunder, either as a third party beneficiary or otherwise. The rights
and obligations of the parties under this Agreement shall inure to the benefit
of and shall be binding upon their respective successors and legal
representatives.
19. Effect on Other Agreements. This Agreement and the termination
thereof shall not affect any other agreement between the Executive and the Bank,
and the receipt by the Executive of benefits thereunder.
20. Miscellaneous. The rights and duties of the parties hereunder are
personal and may not be assigned or delegated without the prior written consent
of the other party to this Agreement. The captions used herein are solely for
the convenience of the parties and are not used in construing this Agreement.
Time is of the essence of this Agreement and the performance by each party of
its or his duties and obligations hereunder.
21. Complete Agreement. This Agreement constitutes the complete
agreement between the parties hereto and incorporates all prior discussions,
agreements and representations made in regard to the matters set forth herein.
This Agreement may not be amended, modified or changed except by a writing
signed by the party to be charged by said amendment, change or modification.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
OLD FLORIDA BANK
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx - Chairman
"EXECUTIVE"
/s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxxx X. Xxxxxxxx
0000 XX 0xx Xxxxx
Xxxx Xxxxx, XX 00000
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