EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT, is entered into this ___th day of December 1998,
("Effective Date") by and between First Federal Savings and Loan Association of
Florida (the "Savings Association") and Xxxxxxx X. Xxxxxx (the "Executive").
WITNESSETH
WHEREAS, the Executive has heretofore been employed by the Savings
Association as the President and is experienced in all phases of the business of
the Savings Association; and
WHEREAS, the Savings Association desires to be ensured of the
Executive's continued active participation in the business of the Savings
Association; and
WHEREAS, in order to induce the Executive to remain in the employ of
the Savings Association and in consideration of the Executive's agreeing to
remain in the employ of the Savings Association, the parties desire to specify
the continuing employment relationship between the Savings Association and the
Executive;
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereby agree as follows:
1. Employment. The Savings Association hereby employs the Executive in
the capacity of President. The Executive hereby accepts said employment and
agrees to render such administrative and management services to the Savings
Association and to any to-be-formed parent holding company ("Parent") as are
currently rendered and as are customarily performed by persons situated in a
similar executive capacity. The Executive shall promote the business of the
Savings Association and Parent. The Executive's other duties shall be such as
the Board of Directors for the Savings Association (the "Board of Directors" or
"Board") may from time to time reasonably direct, including normal duties as an
officer of the Savings Association.
2. Term of Employment. The term of employment of Executive under this
Agreement shall be for the period commencing on the Effective Date and ending
thirty-six (36) months thereafter ("Term"). Additionally, on, or before, each
annual anniversary date from the Effective Date, the Term of employment under
this Agreement shall be extended for up to an additional one year period beyond
the then effective expiration date upon a determination and resolution of the
Board of Directors that the performance of the Executive has met the
requirements and standards of the Board, and that the Term of such Agreement
shall be extended. References herein to the Term of this Agreement shall refer
both to the initial term and successive terms.
3. Compensation, Benefits and Expenses.
(a) Base Salary. The Savings Association shall compensate and pay
the Executive during the Term of this Agreement a minimum base salary at the
rate of $___________ per annum ("Base Salary"), payable in cash not less
frequently than monthly; provided, that the rate of such salary shall be
reviewed by the Board of Directors not less often than annually, and the
Executive shall be entitled to receive increases at such percentages or in such
amounts as determined by the Board of Directors. The base salary may not be
decreased without the Executive's express written consent.
(b) Discretionary Bonus. The Executive shall be entitled to
participate in an equitable manner with all other senior management employees of
the Savings Association in discretionary bonuses that may be authorized and
declared by the Board of Directors to its senior management executives from time
to time. No other compensation provided for in this Agreement shall be deemed a
substitute for the Executive's right to participate in such discretionary
bonuses when and as declared by the Board.
(c) Participation in Benefit and Retirement Plans. The Executive
shall be entitled to participate in and receive the benefits of any plan of the
Savings Association which may be or may become applicable to senior management
relating to pension or other retirement benefit plans, profit-sharing, stock
options or incentive plans, or other plans, benefits and privileges given to
employees and executives of the Savings Association, to the extent commensurate
with his then duties and responsibilities, as fixed by the Board of Directors of
the Savings Association.
(d) Participation in Medical Plans and Insurance Policies. The
Executive shall be entitled to participate in and receive the benefits of any
plan or policy of the Savings Association which may be or may become applicable
to senior management relating to life insurance, short and long term disability,
medical, dental, eye-care, prescription drugs or medical reimbursement plans.
Additionally, Executive's dependent family shall be eligible to participate in
medical and dental insurance plans sponsored by the Savings Association or
Parent with the cost of such premiums paid by the Savings Association.
(e) Vacations and Sick Leave. The Executive shall be entitled to
paid annual vacation leave in accordance with the policies as established from
time to time by the Board of Directors, which shall in no event be less than
four weeks per annum. The Executive shall also be entitled to an annual sick
leave benefit as established by the Board for senior management employees of the
Savings Association. The Executive shall not be entitled to receive any
additional compensation from the Savings Association for failure to take a
vacation or sick leave, nor shall he be able to accumulate unused vacation or
sick leave from one year to the next, except to the extent authorized by the
Board of Directors.
(f) Expenses. The Savings Association shall reimburse the
Executive or otherwise provide for or pay for all reasonable expenses incurred
by the Executive in furtherance
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of, or in connection with the business of the Savings Association, including,
but not by way of limitation, automobile and traveling expenses, and all
reasonable entertainment expenses, subject to such reasonable documentation and
other limitations as may be established by the Board of Directors of the Savings
Association. If such expenses are paid in the first instance by the Executive,
the Savings Association shall reimburse the Executive therefor.
(g) Changes in Benefits. The Savings Association shall not make
any changes in such plans, benefits or privileges previously described in
Section 3(c), (d) and (e) which would adversely affect the Executive's rights or
benefits thereunder, unless such change occurs pursuant to a program applicable
to all executive officers of the Savings Association and does not result in a
proportionately greater adverse change in the rights of, or benefits to, the
Executive as compared with any other executive officer of the Savings
Association. Nothing paid to 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 Executive pursuant to Section 3(a) hereof.
4. Loyalty; Noncompetition.
(a) The Executive shall devote his full time and attention to the
performance of his employment under this Agreement. During the term of the
Executive's employment under this Agreement, the Executive shall not engage in
any business or activity contrary to the business affairs or interests of the
Savings Association or Parent.
(b) Nothing contained in this Section 4 shall be deemed to
prevent or limit the right of Executive to invest in the capital stock or other
securities of any business dissimilar from that of the Savings Association or
Parent, or, solely as a passive or minority investor, in any business.
5. Standards. During the term of this Agreement, the Executive shall
perform his duties in accordance with such reasonable standards expected of
executives with comparable positions in comparable organizations and as may be
established from time to time by the Board of Directors.
6. Termination and Termination Pay. The Executive's employment under
this Agreement shall be terminated upon any of the following occurrences:
(a) The death of the Executive during the term of this Agreement,
in which event the Executive's estate shall be entitled to receive the
compensation due the Executive through the last day of the calendar month in
which Executive's death shall have occurred.
(b) The Board of Directors may terminate the Executive's employment
at any time, but any termination by the Board of Directors other than
termination for Just Cause, shall not prejudice the Executive's right to
compensation or other benefits under the Agreement. The
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Executive shall have no right to receive compensation or other benefits for any
period after termination for Just Cause. The Board may within its sole
discretion, acting in good faith, terminate the Executive for Just Cause and
shall notify such Executive accordingly. Termination for "Just Cause" shall
include termination because of the Executive's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule or regulation (other than traffic violations or similar offenses) or
final cease-and-desist order, or material breach of any provision of the
Agreement.
(c) Except as provided pursuant to Section 9 hereof, in the event
Executive's employment under this Agreement is terminated by the Board of
Directors without Just Cause, the Savings Association shall be obligated to
continue to pay the Executive the salary provided pursuant to Section 3(a)
herein, up to the date of termination of the remaining Term of this Agreement,
but in no event for a period of less than twelve months, and the cost of
Executive obtaining all health, life, disability, and other benefits which the
Executive would be eligible to participate in through such date based upon the
benefit levels substantially equal to those being provided Executive at the date
of termination of employment.
(d) The voluntary termination by the Executive during the term of
this Agreement with the delivery of no less than 60 days written notice to the
Board of Directors, other than pursuant to Section 9(b), in which case the
Executive shall be entitled to receive only the compensation, vested rights, and
all employee benefits up to the date of such termination.
7. Regulatory Exclusions.
(a) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Savings Association's affairs by a notice
served under Section 8(e)(3) or (g)(1) of the FDIA (12 U.S.C. 1818(e)(3) and
(g)(1)), the Savings Association's obligations under the Agreement shall be
suspended as of the date of service, unless stayed by appropriate proceedings.
If the charges in the notice are dismissed, the Savings Association may within
its discretion (i) pay the Executive all or part of the compensation withheld
while its contract obligations were suspended and (ii) reinstate any of its
obligations which were suspended.
(b) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Savings Association's affairs by an order
issued under Sections 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act
("FDIA") (12 U.S.C. 1818(e)(4) and (g)(1)), all obligations of the Savings
Association under this Agreement shall terminate, as of the effective date of
the order, but the vested rights of the parties shall not be affected.
(c) If the Savings Association is in default (as defined in Section
3(x)(1) of FDIA) all obligations under this Agreement shall terminate as of the
date of default, but this paragraph shall not affect any vested rights of the
contracting parties.
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(d) All obligations under this Agreement shall be terminated, except to
the extent determined that continuation of this Agreement is necessary for the
continued operation of the Savings Association: (i) by the Director of the
Office of Thrift Supervision ("Director of OTS"), or his or her designee, at the
time that the Federal Deposit Insurance Corporation ("FDIC") enters into an
agreement to provide assistance to or on behalf of the Savings Association under
the authority contained in Section 13(c) of FDIA; or (ii) by the Director of the
OTS, or his or her designee, at the time that the Director of the OTS, or his or
her designee approves a supervisory merger to resolve problems related to
operation of the Savings Association or when the Savings Association is
determined by the Director of the OTS to be in an unsafe or unsound condition.
Any rights of the parties that have already vested, however, shall not be
affected by such action.
(e) Notwithstanding anything herein to the contrary, any payments made
to the Executive pursuant to the Agreement, or otherwise, shall be subject to
and conditioned upon compliance with 12 USC ss.1828(k) and any regulations
promulgated thereunder.
8. Disability. If the Executive shall become disabled or incapacitated
to the extent that he is unable to perform his duties hereunder, by reason of
medically determinable physical or mental impairment, as determined by a doctor
engaged by the Board of Directors, Executive shall nevertheless continue to
receive the compensation and benefits provided under the terms of this Agreement
as follows: 100% of such compensation and benefits for a period of 12 months,
but not exceeding the remaining term of the Agreement, and 65% thereafter for
the remainder of the term of the Agreement. Such benefits noted herein shall be
reduced by any benefits otherwise provided to the Executive during such period
under the provisions of disability insurance coverage in effect for Savings
Association employees or benefit payments under any government sponsored
programs. Thereafter, Executive shall be eligible to receive benefits provided
by the Savings Association under the provisions of disability insurance coverage
in effect for Savings Association employees. Upon returning to active full-time
employment, the Executive's full compensation as set forth in this Agreement
shall be reinstated as of the date of commencement of such activities. In the
event that the Executive returns to active employment on other than a full-time
basis, then his compensation (as set forth in Section 3(a) of this Agreement)
shall be reduced in proportion to the time spent in said employment, or as shall
otherwise be agreed to by the parties.
9. Change in Control.
(a) Notwithstanding any provision herein to the contrary, in the
event of the involuntary termination of Executive's employment during the term
of this Agreement following any Change in Control of the Savings Association or
Parent, or within 24 months thereafter of such Change in Control, absent Just
Cause, Executive shall be paid an amount equal to the product of 2.999 times the
Executive's "base amount" as defined in Section 280G(b)(3) of the Internal
Revenue Code of 1986, as amended (the "Code") and regulations promulgated
thereunder. Said sum shall be paid, at the option of Executive, either in one
(1) lump sum within thirty (30) days of such termination of service or in
periodic payments over the next 36
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months or the remaining term of this Agreement, whichever is less, as if
Executive's employment had not been terminated, and such payments shall be in
lieu of any other future payments which the Executive would be otherwise
entitled to receive under Section 6 of this Agreement. Notwithstanding the
forgoing, all sums payable hereunder shall be reduced in such manner and to such
extent so that no such payments made hereunder when aggregated with all other
payments to be made to the Executive by the Savings Association or the Parent
shall be deemed an "excess parachute payment" in accordance with Section 280G of
the Code and be subject to the excise tax provided at Section 4999(a) of the
Code. The term "Change in Control" shall refer to (i) the control of voting
proxies whether related to stockholders or mutual members by any person, other
than the Board of Directors of the Savings Association, to direct more than 25%
of the outstanding votes of the Savings Association, the control of the election
of a majority of the Savings Association's directors, or the exercise of a
controlling influence over the management or policies of the Savings Association
by any person or by persons acting as a group within the meaning of Section
13(d) of the Exchange Act, (ii) an event whereby the OTS, FDIC or any other
department, agency or quasi-agency of the federal government cause or bring
about, without the consent of the Savings Association, a change in the corporate
structure or organization of the Savings Association; (iii) an event whereby the
OTS, FDIC or any other agency or quasi-agency of the federal government cause or
bring about, without the consent of the Savings Association, a taxation or
involuntary distribution of retained earnings or proceeds from the sale of
securities to depositors, borrowers, any government agency or organization or
civic or charitable organization; or (iv) a merger or other business combination
between the Savings Association and another corporate entity whereby the Savings
Association is not the surviving entity. In the event that the Savings
Association shall convert in the future from mutual-to-stock form, the term
"Change in Control" shall also refer to: (i) the sale of all, or a material
portion, of the assets of the Savings Association or the Parent; (ii) the merger
or recapitalization of the Savings Association or the Parent whereby the Savings
Association or the Parent is not the surviving entity; (iii) a change in control
of the Savings Association or the Parent, as otherwise defined or determined by
the Office of Thrift Supervision or regulations promulgated by it; or (iv) the
acquisition, directly or indirectly, of the beneficial ownership (within the
meaning of that term as it is used in Section 13(d) of the Securities Exchange
Act of 1934 and the rules and regulations promulgated thereunder) of twenty-five
percent (25%) or more of the outstanding voting securities of the Savings
Association or the Parent by any person, trust, entity or group. The term
"person" means an individual other than the Executive, or a corporation,
partnership, trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization or any other form of entity not
specifically listed herein.
(b) Notwithstanding any other provision of this Agreement to the
contrary, Executive may voluntarily terminate his employment during the term of
this Agreement following a Change in Control of the Savings Association or
Parent, or within twenty-four months following such Change in Control, and
Executive shall thereupon be entitled to receive the payment described in
Section 9(a) of this Agreement, upon the occurrence, or within 120 days
thereafter, of any of the following events, which have not been consented to in
advance by the Executive in writing: (i) if Executive would be required to move
his personal residence or perform his principal executive functions more than
thirty-five (35) miles from the Executive's primary office as of the signing of
this Agreement; (ii) if in the organizational structure of the
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Savings Association, Executive would be required to report to a person or
persons other than the Board of Directors of the Savings Association; (iii) if
the Savings Association should fail to maintain Executive's base compensation in
effect as of the date of the Change in Control and the existing employee
benefits plans, including material fringe benefit, stock option and retirement
plans; (iv) if Executive would be assigned duties and responsibilities other
than those normally associated with his position as referenced at Section 1,
herein; (v) if Executive's responsibilities or authority have in any way been
materially diminished or reduced; or (vi) if Executive would not be reelected to
the Board of Directors of the Savings Association.
10. Withholding. All payments required to be made by the Savings
Association hereunder to the Executive shall be subject to the withholding of
such amounts, if any, relating to tax and other payroll deductions as the
Savings Association may reasonably determine should be withheld pursuant to any
applicable law or regulation.
11. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and be binding
upon any corporate or other successor of the Savings Association or Parent which
shall acquire, directly or indirectly, by merger, consolidation, purchase or
otherwise, all or substantially all of the assets or stock of the Savings
Association or Parent.
(b) Since the Savings Association is contracting for the unique
and personal skills of the Executive, the Executive shall be precluded from
assigning or delegating his rights or duties hereunder without first obtaining
the written consent of the Savings Association.
12. Amendment; Waiver. 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 such officer or officers as may be
specifically designated by the Board of Directors of the Savings Association to
sign on its behalf. No waiver by any party hereto at any time of any breach by
any other party hereto of, 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.
13. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United States
where applicable and otherwise by the substantive laws of the State of Florida.
14. Nature of Obligations. Nothing contained herein shall create or
require the Savings Association to create a trust of any kind to fund any
benefits which may be payable hereunder, and to the extent that the Executive
acquires a right to receive benefits from the Savings Association hereunder,
such right shall be no greater than the right of any unsecured general creditor
of the Savings Association.
15. Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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16. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of the other
provisions of this Agreement, which shall remain in full force and effect.
17. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the rules then in effect of the district office of the American
Arbitration Association ("AAA") nearest to the home office of the Savings
Association, and judgment upon the award rendered may be entered in any court
having jurisdiction thereof, except to the extent that the parties may otherwise
reach a mutual settlement of such issue. Further, the settlement of the dispute
to be approved by the Board of the Savings Association may include a provision
for the reimbursement by the Savings Association to the Executive for all
reasonable costs and expenses, including reasonable attorneys' fees, arising
from such dispute, proceedings or actions, or the Board of the Savings
Association or the Parent may authorize such reimbursement of such reasonable
costs and expenses by separate action upon a written action and determination of
the Board following settlement of the dispute. Such reimbursement shall be paid
within ten (10) days of Executive furnishing to the Savings Association or
Parent evidence, which may be in the form, among other things, of a canceled
check or receipt, of any costs or expenses incurred by Executive.
18. Confidential Information. The Executive acknowledges that during his
or her employment he or she will learn and have access to confidential
information regarding the Savings Association and the Parent and its customers
and businesses ("Confidential Information"). The Executive agrees and covenants
not to disclose or use for his or her own benefit, or the benefit of any other
person or entity, any such Confidential Information, unless or until the Savings
Association or the Parent consents to such disclosure or use or such information
becomes common knowledge in the industry or is otherwise legally in the public
domain. The Executive shall not knowingly disclose or reveal to any unauthorized
person any Confidential Information relating to the Savings Association, the
Parent, or any subsidiaries or affiliates, or to any of the businesses operated
by them, and the Executive confirms that such information constitutes the
exclusive property of the Savings Association and the Parent. The Executive
shall not otherwise knowingly act or conduct himself (a) to the material
detriment of the Savings Association or the Parent, or its subsidiaries, or
affiliates, or (b) in a manner which is inimical or contrary to the interests of
the Savings Association or the Parent. Executive acknowledges and agrees that
the existence of this Agreement and its terms and conditions constitutes
Confidential Information of the Savings Association, and the Executive agrees
not to disclose the Agreement or its contents without the prior written consent
of the Savings Association. Notwithstanding the foregoing, the Savings
Association reserves the right in its sole discretion to make disclosure of this
Agreement as it deems necessary or appropriate in compliance with its regulatory
reporting requirements. Notwithstanding anything herein to the contrary, failure
by the Executive to comply with the provisions of this Section may result in the
immediate termination of the Agreement within the sole discretion of the Savings
Association, disciplinary action against the Executive taken by the Savings
Association, including but not limited to the termination of employment of the
Executive for breach of the Agreement and the provisions of this Section, and
other remedies that may be available in law or in equity.
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19. Entire Agreement. This Agreement together with any understanding or
modifications thereof as agreed to in writing by the parties, shall constitute
the entire agreement between the parties hereto.
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