EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of February 11, 2002
(the "Effective Date"), by and between Madison Bank, a Florida chartered
commercial bank (the "Bank"), and X.X. Xxxxx, III (the "Employee").
WITNESSETH:
WHEREAS, the Bank desires to employ Employee as Executive Vice
President/Customer Service of the Bank to perform the duties and
responsibilities as are described in this Agreement; and
WHEREAS, the Bank wishes to assure itself of the services of Employee for
the period provided in this Agreement and Employee is willing to serve in the
employ of the Bank for such period upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants, premises, and
agreements of the parties hereto and the mutual benefits to be gained by the
performance thereof and for other good and valuable consideration, the receipt
and sufficiency of which hereby are acknowledged, and as a condition of
Employee's employment by the Bank, the parties hereto for themselves and their
respective heirs, personal representatives, successors and assigns covenant and
agree as follows:
1. DEFINITIONS.
(a) The term "Bank Documentation" shall mean notes, memoranda,
reports, lists, records, drawings, sketches, specifications, software programs,
books, files, forms, papers, accounts, data, documentation or other materials of
any nature and in any form, whether written, printed, or in digital format or
otherwise, whether prepared or paid for by Employee or anyone else, relating to
any matter within the scope of the Bank's business affairs or concerning any of
its dealings or affairs.
(b) The term "Confidential Information" shall mean any information
concerning the organization, business or finances of the Bank or of any third
party which the Bank is under an obligation to keep confidential that is
maintained by the Bank as confidential. Such Confidential Information shall
include, but is not limited to, trade secrets or confidential information
respecting inventions, products, designs, market research data or analyses,
development, technical information, pricing policies, methods of operation,
marketing activities and procedures, methods, know-how, techniques, systems,
processes, software programs, works of authorship, customer lists, projects,
plans, proposals, and corporate strategies, credit and financial and other data
concerning the Bank or the Bank's Customers (as defined below). The term
"Confidential Information" does not include information which (i) is or becomes
generally available to the public other than as a result of a disclosure by
Employee, (ii) was within Employee's possession prior to its being furnished to
Employee by or on behalf of the Bank pursuant hereto, provided that the source
of such information was not known by Employee to be bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the Bank or any other party with respect to such information
or (iii) becomes available to Employee on a non-confidential basis from a source
other than the Bank, provided that such source is not bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the Bank to such information.
(c) The term "Customers" shall mean any natural persons,
partnerships, corporations, limited liability companies, professional
associations or other organizations or entities for which the Bank (i) performs
banking or related services during the Term (as hereinafter defined); or (ii)
anytime during the twelve (12) months preceding the expiration or termination of
Employee's employment has prepared and presented a specific proposal to provide
banking or related services.
(d) The term "Development" shall mean any invention, modification,
discovery, design, development, improvement, process, software program, work of
authorship, documentation, formula, data, technique, know-how, trade secret or
intellectual property right whatsoever or any interest therein (whether or not
patentable or registrable under copyright, trademark or similar statutes) that
(a) relates to the business of the Bank or any Customer of or supplier to the
Bank or any of the products or services being developed, manufactured or sold by
the Bank or which may be used in relation therewith; or (b) results from tasks
assigned to Employee by the Bank; or (c) results from the use of premises or
personal property (whether tangible or intangible) owned, leased or contracted
for by the Bank.
(e) The term "earned and unused vacation pay accrued through date of
termination" shall mean the prorated amount of vacation benefit to which
Employee is entitled (either by agreement or, if no agreement, pursuant to the
Bank's personnel manual) for the current year, through the last full day worked.
Vacation days used but not earned will be deducted from the Employee's final
paycheck. If adequate funds for such deduction are not available, the Employee
shall be obligated to reimburse the Bank.
(f) The term "Change in Control" shall mean an event where a person:
(i) directly or indirectly, or acting through one or more other persons, owns,
controls or has power to vote more than 50% of any class of the then outstanding
voting securities of the Bank; or (ii) controls in any manner the election of
the directors of the Bank. For purposes of this Agreement, a "Change in Control"
shall be deemed not to have occurred in connection with a reorganization,
consolidation, or merger of the Bank where the stockholders of the Bank,
immediately before the consummation of the transaction, will own over 50% of the
total combined voting power of all classes of stock entitled to vote of the
surviving entity immediately after the transaction.
2. EMPLOYMENT; DUTIES
The Bank hereby agrees to employ Employee upon the terms and conditions
herein contained, and Employee hereby agrees to accept such employment for the
term described below. Employee agrees to serve as the Bank's Executive Vice
President/Customer Service. In such capacity, Employee shall have such powers
and responsibilities that are of the type and nature normally assigned to an
Executive Vice President of a financial institution the size, stature, and
nature, and with the growth plans, of the Bank and which the Board of Directors,
the President or the Chief Executive Officer may reasonably assign to him.
Throughout the term of this Agreement, Employee shall devote his best efforts
and substantially all of his business time and services to the business and
affairs of the Bank and to utilize and develop contacts and customers to enhance
the business of the Bank, subject to vacation periods and personal and sick
leave in accordance with the Bank's personnel manual and this Agreement (in the
event of a conflict, this Agreement will supersede the Bank's personnel manual),
the Bank's policies, and applicable law. Employee shall, at all times, conduct
himself in a manner that will reflect positively upon the Bank. Employee shall
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obtain such licenses, certificates, accreditation and professional memberships
and designations as the Bank may reasonably require. Employee shall join and
maintain membership in such social and civic organizations as Employee or the
Board deems appropriate to xxxxxx the Bank's contacts and business network in
the community.
Specifically, Employee shall devote his full business time and attention
and use his best efforts to accomplish and fulfill the following duties and
responsibilities, as well as other duties assigned to Employee from time to time
by the Board: Participate in overall planning and management of Bank.
Responsible for/oversee all aspects of retail - Branches, Branch Personnel,
Marketing and Compliance.
Notwithstanding the foregoing, during Employee's employment with the Bank
he may serve on the boards of directors of other entities that do not compete
with the Bank, charitable organizations and not-for-profit corporations, and may
pursue passive investments, provided that such activities do not unreasonably
interfere with Employee's duties and responsibilities hereunder or create a
conflict of interest with the Bank. To the extent that Employee (or any relative
or family member of the Employee) establishes, forms, or maintains a
relationship (business, personal or otherwise), with any vendor, Customer, or
affiliate of the Bank, or their agent, employee, or representative, or with any
person or entity that could be construed, in any manner, to create a conflict of
interest with the Bank, Employee shall promptly (within 7 days of the formation
or establishment of the relationship) disclose the same, in writing, to the
Board of Directors.
3. TERM OF AGREEMENT
The initial term of employment for Employee under this Agreement shall
commence as of the "Effective Date" and continue for one (1) full year (the
"Initial Term"). Upon each new day of the twelve (12) month period of employment
from the Effective Date until the employee's 65th birthday, the term of this
Agreement shall be automatically extended for one (1) additional day, to be
added to the end of the then-existing twelve (12) month term. Accordingly, at
all times prior to (i) the Employee's attaining age 65, or (ii) a notice of
employment termination (or an actual termination), the term of this Agreement
shall be twelve (12) full months. However, either party may terminate this
Agreement by giving the other party written notice of intent not to renew.
Notice is to be provided as set forth in Paragraph 25, hereafter.
Notwithstanding the foregoing, the Bank shall be entitled to terminate this
Agreement immediately, subject to a continuing obligation to make any payments
required under Section 6 below, if Employee (i) becomes disabled as described in
Section 6(a), (ii) is terminated for Cause, as defined in Section 6(b), (iii)
voluntarily terminates his employment before the current term of this Agreement
expires, as described in Section 6(c), (iv) is terminated without Cause, as
described in Section 6(d), or (v) terminates his employment, or is terminated by
the Bank, due to a Change in Control of the Bank, as described in Section 6(e).
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4. COMPENSATION
(a) Salary. The Bank shall pay Employee a base salary at a rate of not less
than $100,000.00 per annum (the "Base Salary"), payable in installments
consistent with the Bank's normal payroll schedule, reduced appropriately by
deductions for federal income withholding taxes, social security taxes and other
deductions required by applicable laws. The Board of Directors shall review
Employee's Base Salary at annual intervals and may adjust Employee's annual Base
Salary from time to time as the Board deems to be appropriate; which may
include, but not be limited to, Employee's performance.
(b) Signing Bonus. Employee shall further receive, in addition to
Employee's Base Salary, a signing bonus of $30,000.00 which shall serve as lump
sum prepaid compensation, due and payable on the Effective Date, for services
rendered during the Initial Term (first twelve (12) months) of this Agreement.
Such payment shall be made to Employee by tendering such sum to Wood, Lake,
Young & Associates. Should Employee's employment terminate prior to the
expiration of the Initial Term, for any reason other than pursuant to
subparagraphs 6(a), (d), or (e), herein, Employee shall be obligated to repay,
to the Bank, the prorated (daily) amount of any unearned portion of the prepaid
compensation.
(c) Bonus. In addition to Employee's annual Base Salary and signing bonus,
during the term of the Employee's employment hereunder, Employee shall be
entitled to such bonuses as may be granted to Employee by the Board of
Directors, the President or Chief Executive Officer of the Bank, in their sole
discretion, and may be entitled to participate in any incentive compensation
plans adopted by the Bank. In addition, Employee may be paid an annual bonus up
to 25% of the aggregate of Employee's Base Salary and signing bonus upon
Employee achieving certain performance goals. The initial performance goals
shall be mutually agreed upon within ninety (90) days of Effective Date of this
Agreement. Thereafter, such performance goals and percentage of Base Salary
shall be mutually agreed upon by the Bank and Employee at the beginning of each
fiscal year (presently, the bank's fiscal year begins on December 31) during
each successive Term following the expiration of the Initial Term.
(d) Stock Options. Employee is entitled to non-qualified options to
purchase 20,000 shares of the Bank's Common Stock, par value at the market price
on the Effective Date of this Agreement, on the terms and subject to the
conditions set forth in the Option Agreement pursuant to Madison Bank Amended
and Restated 1998 Key Employee Stock Compensation Program by and between the
Bank and Employee, dated as of the Effective Date.
(e) Relocation Expenses. The Bank shall advance to Employee packing, moving
and out-of-pocket expenses fee up to $20,000.00 ("Moving Expenses"). In the
event Employee leaves the employ of the Bank within six months of the Effective
Date for any reason, Employee shall refund the advanced Moving Expenses to the
Bank within 30 days of termination. For each month thereafter that Employee
remains employed by the Bank the amount of required repayment shall be reduced
by $3,333.33 per month. (20/6)
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5. ADDITIONAL COMPENSATION AND BENEFITS
Employee shall receive the following additional compensation and welfare
and fringe benefits:
(a) Medical Benefits. Employee is entitled to participate in all medical
and health care benefit plans through health insurance, corporate funds, medical
reimbursement plans or other plans, if any, as offered from time to time by the
Bank for its employees, subject to cancellation at the Bank's discretion. Such
health insurance entitlement of Employee shall be subject to and conditioned
upon Employee's qualification for same in accordance with the terms and
conditions of the applicable policy as existing from time to time.
(b) Sick Leave. Employee is entitled to sick leave consistent with the
Bank's normal corporate policy.
(c) Vacation. Employee is entitled to up to three (3) weeks of vacation,
each of which shall be paid, during the period of time for one year following
the Effective Date, and for each successive one year term following the
anniversary of the Effective Date. Such vacation is non-cumulative, and Employee
must be employed by the Bank for six (6) months before being eligible to take
any vacation time. All vacation time must be scheduled with advance notice to
and coordination with the President of the Bank.
(d) Business Expenses. The Bank shall reimburse Employee for all reasonable
expenses he incurs in promoting the Bank's business, including expenses for
travel, entertainment of business associates and similar items, upon
presentation by Employee from time to time of an itemized account of such
expenditures.
(e) Club Memberships and Education. The Bank will reimburse Employee for
membership dues for joining service organizations such as the Rotary Club or
Kiwanis Club. The Bank will also reimburse Employee for reasonable admission or
attendance fees for educational meetings or seminars offered by such
organizations as BAI or FBA.
In addition to the benefits provided pursuant to the preceding
subparagraphs of this Section 5, Employee shall be eligible to participate in
such other executive compensation and retirement plans of the Bank as are
applicable generally to other officers, and in such welfare benefit plans,
programs, practices and policies of the Bank as are generally applicable to
other key employees, to the extent Employee is otherwise eligible and qualifies
to so participate in and receive such benefits or privileges.
6. TERMINATION; PAYMENTS UPON TERMINATION
(a) Disability. The Bank shall be entitled to terminate this Agreement, if
the Board determines that Employee has been unable to attend to his duties for
at least ninety (90) days because of a medically diagnosable physical or mental
condition, and has received a written opinion from a physician reasonably
acceptable to the Board that such condition prevents Employee from resuming full
performance of his duties and is likely to continue for an indefinite period.
Upon such termination, the Employee shall be entitled to receive his Base Salary
accrued through the date of termination, earned and unused vacation pay accrued
through the date of termination, earned but
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unpaid bonuses from fiscal years prior to the year in which such termination for
disability occurs, and unreimbursed business expenses through the date of
termination. Upon such termination, the Bank shall also pay Employee a
disability payment as severance equal to Employee's monthly Base Salary, payable
in accordance with the Bank's standard payroll practices, commencing on the
effective date of Employee's termination and ending on the earlier of:
(i) the date Employee returns to full time employment in his
capacity as the Bank's Executive Vice President/Customer Service;
(ii) Employee's compensation for services from another employer
(including services performed as a consultant, independent contractor,
partner or self-employed sole proprietor);
(iii) three (3) months after the date of such termination, after
which Employee may be entitled to receive benefits under any disability
insurance plan provided to Employee by the Bank; or
(iv) the date of Employee's death.
Any amounts payable to Employee as severance while he is disabled as set
forth in this Section 6(a) shall be reduced by any amounts paid to Employee
under any long-term disability plan or other disability program or insurance
policies maintained or provided by the Bank.
(b) Termination for Cause. The Bank may, for Cause, terminate Employee's
employment under this Agreement upon written notice to Employee, such notice to
be effective immediately after receipt by Employee (subject to Paragraph 6(e)).
Except as otherwise provided by applicable law, if Employee's employment is
terminated by the Bank for Cause, the amount Employee shall be entitled to
receive from the Bank shall be limited to his Base Salary accrued through the
date of termination, earned but unpaid bonuses from fiscal years prior to the
year in which such termination by Cause occurs and reimbursement for all
unreimbursed business expenses through the date of termination.
For purposes of this Agreement, the term "Cause" shall be limited to (i)
any action by Employee involving disloyalty or dishonesty to the Bank, such as
embezzlement, fraud or misappropriation of corporate assets (the term
"dishonesty" shall include, but not be limited to, intentionally, or through
gross negligence, providing false information to the Bank, or its officers or
agents, as to any material matter) or (ii) Employee's conviction of, or plea of
guilty or nolo contendere to, a felony or a crime of falsehood or involving
moral turpitude, or any administrative or regulatory determination, the grounds
for which Employee would be subject to removal or prohibition from participating
in the affairs of the Bank; or (iii) Employee being convicted of any lesser
crime or offense committed in connection with the performance of his duties
hereunder; or (iv) the failure by Employee to substantially perform his duties
hereunder as directed by the Board, the President or the Chief Executive Officer
(other than any such failure resulting from Employee's incapacity due to
physical or mental disability); or (v) Employee's attendance at work while under
the influence of alcohol or any controlled substance; or (vi) excessive
tardiness or absenteeism, as determined by the Board of Directors, the President
or the Chief Executive Officer; or (vii) poor work performance or incompetence
of Employee as determined by the Board of Directors, the President or the Chief
Executive Officer; or (viii) the breach by Employee of any agreement, promise or
covenant made by him to the Bank in this Agreement.
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(c) Voluntary Termination by Employee. If Employee resigns or otherwise
voluntarily terminates his employment before the end of the Initial Term or the
Renewal Term, as the case may be, the amount Employee shall be entitled to
receive from the Bank shall be limited to his Base Salary accrued through the
date of termination, earned and unused vacation pay accrued through the date of
termination, earned but unpaid bonuses from fiscal years prior to the years in
which such voluntary termination occurs and reimbursement for all unreimbursed
business expenses through the date of termination.
(d) Involuntary Termination. The Bank may, without Cause, terminate
Employee's employment under this Agreement upon thirty (30) days written notice
to Employee. Except as otherwise provided by applicable law, if Employee's
employment is terminated by the Bank without Cause, the amount Employee shall be
entitled to receive from the Bank shall be limited to his Base Salary accrued
through the date of termination, earned but unpaid bonuses from fiscal years
prior to the year in which such termination without Cause occurs, reimbursement
for all unreimbursed business expenses through the date of termination,
reimbursement for earned and unused vacation pay accrued through the date of
termination, and severance equal to the Employee's annual Base Salary (in effect
on the date of termination) for the unexpired term of the Contract. The Bank's
payment of severance set forth above shall be subject to Employee's
post-termination cooperation. Such cooperation shall include the following:
(i) Employee shall furnish such information and assistance as may
be reasonably required by the Bank in connection with any litigation or
settlement of any dispute between the Bank, a borrower and/or any other
third parties (including without limitation serving as a witness in court
or other proceedings);
(ii) Employee shall provide such information or assistance to the
Bank in connection with any regulatory examination by any state or federal
regulatory agency; and
(iii) Employee shall not be in default of the terms of Paragraphs 9
through 12 below.
Upon submission of proper receipts, the Bank shall promptly reimburse
Employee for any reasonable expense in current by Employee in complying with the
provisions of this Paragraph.
(e) Termination Based Upon a Change in Control of Bank. Employee may
terminate his employment subsequent to a Change in Control, as defined in
Paragraph 1(f), herein. For ninety (90) days following such Change in Control,
neither Employee nor the Bank (nor any of its successors, assigns, or subsequent
entities) may terminate Employee's employment with the Bank. Upon ninety (90)
days following such Change in Control (the "ninety (90) day period"), either
Employee or the Bank shall be entitled to terminate Employee's employment for
any reason, with or without cause. Should either Employee or the Bank elect, at
the conclusion of the ninety (90) day period, to terminate Employee's
employment, each shall notify the other, as set forth in Paragraph 25, herein,
of his or its election to terminate Employee's employment pursuant to this
subparagraph. In such event, the Employee shall be subject to the same rights
and obligations set forth in subparagraph 6(d), above, relating to involuntary
termination unless such termination is for cause, as set forth in Paragraph
6(b), in which case such termination shall be effective at the conclusion of the
ninety (90) day period. If neither the Bank nor Employee make such election, by
the conclusion of the ninety (90) day period, then the terms of Employee's
employment shall be governed by the remaining provisions of this Agreement. In
the event the Employee's employment
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is terminated pursuant to this subsection, then any unexpired stock options held
by the Employee, pursuant to this Agreement (or a Stock Option Agreement), shall
be considered fully vested and immediately exercisable by Employee.
(f) Any written Notice, as referenced in this section, shall be provided as
set forth in Paragraph 25, hereafter. Any such written notice shall also satisfy
any requirement to provide written notice pursuant to Paragraph 3, hereunder.
7. DEATH
If Employee dies during the Term, the Bank shall pay to Employee's estate a
lump sum payment equal to Employee's Base Salary accrued and not yet paid
through the date of death, earned and unused vacation pay through the date of
death, earned but unpaid bonuses from fiscal years prior to the year in which
the death occurs and reimbursement for all unreimbursed business expenses
through the date of termination. In addition, the death benefits payable by
reason of Employee's death under any retirement, deferred compensation or other
employee benefit plan maintained by the Bank shall be paid to the beneficiary
designated by Employee in accordance with the terms of the applicable plan or
plans.
8. WITHHOLDING
The Bank shall, to the extent permitted by law, have the right to withhold
and deduct from any payment hereunder any federal, state or local taxes of any
kind required by law to be withheld with respect to any such payment.
9. NONDISCLOSURE
Employee acknowledges that the Bank's Confidential Information is valuable,
special and a unique asset of the Bank, access to and knowledge of which is
essential to the performance of Employee hereunder. In light of the highly
competitive nature of the industry in which the Bank's business is conducted,
Employee shall not at any time, whether during or after the termination or
expiration of his employment, reveal to any person, firm, corporation,
association or other entity any Confidential Information, except to employees of
the Bank who need to know such Confidential Information for the purposes of
their employment, or as otherwise authorized by the Bank in writing, and
Employee shall keep secret all matters entrusted to Employee and shall not use
or attempt to use any Confidential Information except as may be required in the
ordinary course of performing his duties as an employee of the Bank, nor shall
Employee use any Confidential Information in any manner which may injure or
cause loss or may be calculated to injure or cause loss to the Bank, whether
directly or indirectly.
Furthermore, Employee agrees that during his employment Employee shall not
make, use or permit to be used any Bank Documentation otherwise than for the
benefit of the Bank. Employee further agrees that he shall not, after the
expiration or termination of his employment, use or permit others to use any
such Bank Documentation, it being agreed that all Bank Documentation shall be
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and remain the sole and exclusive property of the Bank. Immediately upon the
termination of Employee's employment Employee shall deliver all Bank
Documentation in his possession, and all copies thereof, to the Bank, at its
main office.
Employee recognizes that because his work for the Bank will bring him into
contact with confidential and proprietary information of the Bank, the
restrictions of this Section 9 are required for the reasonable protection of the
Bank and its investments and for the Bank's reliance on and confidence in the
Employee.
10. COVENANT NOT TO COMPETE; NONSOLICITATION
Employee acknowledges and recognizes the highly competitive nature of the
Bank's business. Employee agrees that some restrictions on his activities during
and after the term of his employment by the Bank are necessary to protect the
goodwill, Confidential Information and other legitimate interests of the Bank.
Accordingly, in consideration of the compensation offered by the Bank herein,
during the Term and for a period of one (1) year after this Agreement with the
Bank is terminated (for any reason) or expires, Employee shall not, individually
or with others, directly or indirectly: (i) engage in any Business Activities
(as hereinafter defined) in Pinellas, Hillsborough, Pasco, Polk, Sarasota,
Manatee, or any other counties in the State of Florida in which the Bank is
doing business as of the Effective Date or does business in during the Term (the
"Restricted Area"); (ii) engage in any Business Activities (as hereinafter
defined), whether or not in the Restricted Area, with any of the Bank's
Customers, employees, agents or strategic partners, including, but not limited
to, accepting a position of employment or entering into a consulting
relationship with any of the same; (iii) solicit, induce or influence any of the
Bank's Customers or strategic partners to discontinue or reduce the extent of
their business relationship with the Bank or to conduct business, directly or
indirectly, with Employee, or (iv) recruit, solicit or otherwise influence any
employee, consultant or agent of the Bank (including, but not being limited to
any employee, consultant or agent of the Bank with which Employee had met, or
became associated with, while Employee was employed with the Bank) to
discontinue such employment, consulting or agency relationship with the Bank. A
former employee of the Bank shall be considered an employee for purposes of the
preceding sentence for one (1) year after such employee's employment with the
Bank has ceased. "Business Activities" shall be deemed to include any business
activities concerning banking services or any other services provided by the
Bank.
11. DEVELOPMENTS
If at any time or times during Employee's employment, Employee shall,
individually or with others, make, conceive, create, discover, invent or reduce
to practice any Development, then all such Developments and the benefits thereof
are and shall immediately become the sole and absolute property of the Bank and
its assigns, as works made for hire or otherwise. Employee shall promptly
disclose to the Bank (or any persons designated by it) each such Development.
Employee hereby assigns all rights (including, but not limited to, rights to
inventions, patentable subject matter, copyrights and trademarks) Employee may
have or may acquire in the Developments and all benefits and/or rights resulting
therefrom to the Bank and its assigns without further compensation
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and shall communicate, without cost or delay, and without disclosing to others
the same, all available information relating thereto (with all necessary plans
and models) to the Bank.
12. PROTECTION OF DEVELOPMENTS
Employee shall, during his employment and at any time thereafter, at the
request and cost of the Bank, promptly sign, execute, make and do all such
deeds, documents, acts and things as the Bank and its duly authorized officers
may reasonably require:
(a) to apply for, obtain, register and vest in the name of the Bank
alone (unless the Bank otherwise directs) patents, copyrights, trademarks or
other analogous protection in any country throughout the world relating to a
Development and when so obtained or vested to renew and restore the same; and
(b) to defend any judicial, opposition or other proceedings in
respect of such applications and any judicial, opposition or other proceeding,
petition or application for revocation of any such patent, copyright, trademark
or other analogous protection.
(c)
13. POWER OF ATTORNEY
If the Bank is unable, after reasonable effort, to secure Employee's
signature on any application for patent, copyright, trademark or other analogous
registration or other documents regarding any legal protection relating to a
Development, whether because of Employee's physical or mental incapacity or for
any other reason whatsoever, Employee hereby irrevocably designates and appoints
the Bank and its duly authorized officers and agents as Employee's agent and
attorney-in-fact, to act for and in his behalf and stead to execute and file any
such application or applications or other documents and to do all other lawfully
permitted acts to further the prosecution and issuance of patent, copyright or
trademark registrations or any other legal protection thereon with the same
legal force and effect as if executed by Employee.
14. INJUNCTIVE RELIEF
Employee acknowledges and agrees that the Bank's remedy at law for a breach
or threatened breach of any of the provisions of Paragraphs 9 through 12 herein
would be inadequate and the breach shall be per se deemed as causing irreparable
harm to the Bank. Therefore, in the event of a breach by Employee of any of the
provisions of Paragraphs 9 through 12, Employee agrees that, in addition to any
remedy at law available to the Bank, including, but not limited to monetary
damages, the Bank, without posting any bond, shall be entitled to obtain
equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction or any other equitable remedy which may
then be available to the Bank. Nothing herein contained shall be construed as
prohibiting the Bank from pursuing any other remedies available to it for such
breach or threatened breach.
It is expressly understood and agreed that although the parties consider
the restrictions contained in this Agreement to be reasonable, if a court or
arbitrator determines that the time,
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territory or any other restriction contained in Paragraphs 9 through12 are
unenforceable restriction(s) on the activities of the Employee, then this
Agreement shall be continued as set forth in Paragraph 18.
15. REQUIRED PROVISIONS BY REGULATION
The Bank 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 Employee is suspended and/or
temporarily prohibited from participating in the conduct of the Bank's affairs
by a notice served under section 655.037 Florida Statutes or 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 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 Employee is removed and/or permanently
prohibited from participating in the conduct of the Bank's affairs by an order
issued under section 655.037 Florida Statutes or 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 Employee's vested rights, if any shall not be affected.
(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
Federal Deposit Insurance Corporation ("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 Department or the Director or his or her designee, at
the time the Department or the Director or his or her designee approves a
supervisory merger to resolve problems related to operation of the Bank or
when the Bank determined by the Director to be in unsafe or unsound
condition.
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Any of the Employee's rights that have already vested, however, shall not be
affected by such action. For purposes of this subsection of this Agreement, the
term "Director" shall mean the Director of the FDIC.
16. MEDIATION
Except as otherwise provided in Paragraphs 14 and 17, if a dispute arises
out of or relates to this Agreement, or the breach thereof, and if said dispute
cannot be settled through negotiation, the parties agree first to try in good
faith to settle the dispute by mediation under the Commercial Mediation Rules of
the American Arbitration Association, before resorting to arbitration,
litigation or some other dispute resolution procedure.
17. ARBITRATION
All controversies, claims, disputes, and matters in question arising out
of, or related to, this Agreement or the breach of this Agreement, or the
relations between the signatories to this Agreement, shall be decided by
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. The signatories agree that the arbitration shall take
place exclusively in Pinellas County, Florida, and shall be governed by the
substantive law of the State of Florida. Any award rendered by the arbitrator
shall be final, and final judgment may be entered upon it in accordance with
applicable law in any court having jurisdiction thereof, including a federal
district court, pursuant to the Federal Arbitration Act. The arbitrator may
grant the Bank injunctive relief, including mandatory injunctive relief, to
protect the rights of the Bank, but the arbitrator shall not be limited to such
relief. This arbitration provision shall not preclude the Bank from seeking
temporary or preliminary injunctive relief in a court of law to protect its
rights, nor shall the filing of such an action constitute any waiver by the Bank
of its right to arbitrate.
18. SEVERABILITY
Whenever possible, each provision (or restriction, as the case may be) of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision, or part thereof, of this Agreement
is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision (or restriction, as the
case may be), in this Agreement, or the enforceability of such provision (or
restriction, as the case may be) in any other jurisdiction, but this Agreement
will be reformed, construed and enforced as if such invalid, illegal or
unenforceable provision (or restriction, as the case may be) had never been
contained herein. If any court or arbitrator determines that any provision
hereof is unenforceable because of the duration or scope of such provision, such
court or arbitrator shall have the power to reduce the scope or duration of such
provision (or restriction), as the case may be, and, in its reduced form, the
remainder of such provision (or restriction) shall then be enforceable.
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19. COVENANT NOT TO RAISE CERTAIN DEFENSES
Employee acknowledges the reasonableness of the term of the covenants and
agreements set forth in Paragraphs 9 through 12 above and Employee agrees that
he shall not, in any action suit or other proceeding, deny the reasonableness
of, or assert the unreasonableness of, the premises or considerations of the
covenants as set forth herein.
20. INDEBTEDNESS
If during the term of this Agreement, Employee becomes indebted to the Bank
for any reason, the Bank may, at its election, set off and collect any sums due
Employee out of any amounts which the Bank may owe Employee from his Base Salary
or other compensation. Furthermore, upon the termination of this Agreement, for
any reason, all sums owed by Employee shall become immediately due and payable.
Employee shall pay all expenses and attorney's fees actually or necessarily
incurred by the Bank in connection with any collection proceeding for Employee's
indebtedness to the Bank. Notwithstanding any of the foregoing, any indebtedness
to us secured by a mortgage on Employee's residence shall not be subject to the
foregoing provisions, and shall be governed by the loan documents evidencing
such indebtedness.
21. BINDING EFFECT
This Agreement shall inure to the benefit of and be binding upon Employee,
and to the extent applicable, his heirs, assigns, executors, and personal
representatives, and to the Bank, and to the extent applicable, its successors,
and assigns, including, without limitation, any person, partnership, or
corporation which may acquire all or substantially all of the Bank's assets and
business, or with or into which the Bank may be consolidated or merged, and this
provision shall apply in the event of any subsequent merger, consolidation, or
transfer.
22. ENTIRE AGREEMENT
This Agreement represents the entire agreement of the parties and shall
supersede any and all previous contracts, arrangements or understandings between
the Bank and Employee. The Agreement may be amended at any time by mutual
written agreement of the parties hereto.
23. WAIVER OF BREACH
The waiver by either party of a breach of any provision of this Agreement
by the other party shall not operate or be construed as a waiver of any
subsequent breach of the same or any other provision by such other party.
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24. NO BREACH OF EXISTING CONTRACTS
Employee warrants and represents to the Bank that the execution of this
Agreement, his employment with the Bank, and the performance of the duties
herein described, does not and will not result in the breach or violation of any
employment agreement or any other agreement, written or oral, to which Employee
is or has been a party.
25. NOTICES
Any notice or other communication which is required or permitted under this
Agreement shall be in writing and shall be deemed to have been given, delivered,
or made, as the case may be (notwithstanding lack of actual receipt by the
addressee) (i) on the date sent if delivered personally or by cable, telecopy,
telegram, telex, or facsimile (which is confirmed) or (ii) three (3) business
days after having been deposited in the United States mail, certified or
registered, return receipt requested, sufficient postage affixed and prepaid, or
(iii) one (1) business day after having been deposited with a nationally
recognized overnight courier service (such as by way of example, but not
limitation, U.S. Express Mail, Federal Express, or Airborne), to the parties at
the following addresses (or at such other address for a party as shall be
specified by like notice):
If to Bank:
Xxxxxx X. XxXxxxxx, President/CEO
Madison Bank
35388 XX 00 Xxxxx
Xxxx Xxxxxx, Xxxxxxx 00000
With a copy to:
Xxxxxxx X. Xxxxxxx, Esquire
Xxxxx, Xxxxxx & Xxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
If to Employee:
X.X. Xxxxx, Xx.
Madison Bank
35388 XX 00 Xxxxx
Xxxx Xxxxxx, Xxxxxxx 00000
26. HEADINGS
Headings in this Agreement are for convenience only and shall not be used
to interpret or construe provisions.
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27. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.
28. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida and shall in all respects be interpreted, enforced
and governed under the internal and domestic laws of such state, without giving
effect to the principles of conflicts of laws of such state. Any claims or legal
actions by one party against the other arising out of the relationship between
the parties contemplated herein (whether or not arising under this Agreement)
shall be governed by the laws of the State of Florida and, notwithstanding the
provision of Paragraph 17, above, to the extent that any such dispute is deemed
to be not subject to arbitration under such paragraph (or if the Bank elects not
to arbitrate), then both parties submit to the jurisdiction of the U.S. District
Court for the Middle District of Florida, and the Circuit Court in and for
Pinellas County, Florida, as the exclusive proper forum in which to adjudicate
any case or controversy arising hereunder.
29. NO PRESUMPTION FROM DRAFTING
The parties to this Contract further agree that both parties are
sophisticated business people who have had the opportunity to retain counsel for
the purpose of reviewing this Agreement. The parties further agree that this
Agreement shall not be deemed to be construed more strongly against one party
rather than the other by virtue of its drafting or draftsmanship.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be duly executed,
and the Employee has hereunto set his hand, as of the day and year first above
written.
MADISON BANK "EMPLOYEE"
/s/ Xxxxxx X. XxXxxxxx /s/ X.X. Xxxxx, III
By:
------------------------------- ------------------------------
Xxxxxx X. XxXxxxxx X.X. Xxxxx, III
President/CEO
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