EXHIBIT 10.1
EMPLOYMENT AGREEMENT
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THIS AGREEMENT (this "Agreement") is being entered into and effective
this 16th day of June, 2000, by, between and among FIRST COMMUNITY BANK
CORPORATION OF AMERICA, a Florida corporation (the "Company"), FIRST COMMUNITY
BANK OF AMERICA (the "Bank"), and XXXXXXX X. XXXXXXX ("Xxxxxxx").
SECTION 1. EMPLOYMENT OF EXECUTIVE
1.1 Executive Employment. The Company employs Xxxxxxx as President and
Chief Executive Officer of the Company, and the Bank hereby employs Xxxxxxx as
Chief Executive Officer of the Bank; and Xxxxxxx accepts such employment upon
the terms and conditions set forth within this Agreement. During the period of
his employment, Xxxxxxx agrees to devote his expertise, skills and his best and
undivided efforts for the exclusive benefit of the Company and the Bank in the
performance of his duties and responsibilities.
1.2 Term of Employment. The initial term of employment pursuant to this
Agreement shall begin on July 5, 2000, and end on July 3, 2005 (the "Term"). If
this Agreement has not been previously terminated, at the expiration of the
Term, this Agreement shall continue until terminated by either party on one
hundred eighty (180) days prior notice to the other.
1.3 Duties and Responsibilities. During the Term, Xxxxxxx shall be
responsible for the executive management of the Company and the Bank, including,
without limitation, the execution of such business plans as shall be approved by
the Board of Directors or the Executive Committee of the Board, the engagement,
termination and supervision of other executive officers and employees of the
Company and the Bank and such other duties and responsibilities as may be
reasonably assigned to him from time to time by the Board of Directors and/or
Executive Committee of the Board of the Company or the Bank, respectively. The
Company shall appoint Xxxxxxx as a Director of the Bank and shall nominate
Xxxxxxx as a Director of the Company and use its best efforts to elect him as a
Director during the Term. During the Term, Xxxxxxx shall not be required to
relocate his personal residence from Pinellas County, Florida, provided,
however, that Xxxxxxx may be required to travel, at the Company's expense, for
the business of the Company as reasonably necessary.
SECTION 2. TERMS OF EMPLOYMENT
2.1 Compensation
(a) Salary. During the first of the Term, the Company shall pay Xxxxxxx
as compensation for all services rendered hereunder, a base salary of
$140,000.00. Xxxxxxx'x salary shall be adjusted on an annual basis thereafter
following a performance review conducted by the Board of Directors. Salary
payments shall be made in the same manner as the Company routinely pays its
other executive employees, but in any event no less frequently than once per
calendar month. All applicable income, social security and other taxes and
charges which are require by law to be withheld by the Company or which are
requested to be withheld by
Xxxxxxx, shall be deducted form the base salary in accordance with the Company's
normal payroll practice for its salaried executives from time to time in effect.
(b) Minimum Annual Bonus. Xxxxxxx shall receive an annual bonus payable
within forty-five days (45) after the end of each year during the Term provided
that he satisfies the pre-determined performance goals. Such goals shall be
mutually agreed upon by the parties on an annual basis, with the expectation
that such goals shall be achievable and achieved during each year of the Term.
The minimum bonus for the first year for the Term shall be twenty percent (20%)
of the base salary.
(c) Annual Discretionary Bonus. Xxxxxxx shall be eligible for an
additional bonus during each year of the Term in the sole discretion of the
Board of Directors.
(d) Grant of Stock Options. Provided Xxxxxxx satisfactorily meets
performance standards as agreed upon from time to time by the Chief Executive
Officer of the Company, the Board of Directors of the Company and Xxxxxxx, the
Company hereby grants to Xxxxxxx options to purchase 100,000 shares of the
Company's Class B Common Stock, at an exercise price of $10.00 per share. Such
options shall be incentive stock options, as defined in Section 422 of the
Internal Revenue Code of 1986, as amended. The options shall vest in accordance
with the following schedule, and each option shall be exercisable upon vesting:
Options Vested for Numbers
Date Granted of Shares of Stock Date of Vesting
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July 5, 2000 20,000 July 5, 2000
February 15, 2001 10,000 July 5, 2001
February 15, 2002 10,000 July 5, 2002
February 15, 2003 10,000 July 5, 2003
February 15, 2004 10,000 July 5, 2004
February 15, 2005 10,000 July 5, 2005
February 15, 2006 10,000 July 5, 2006
February 15, 2007 10,000 July 5, 2007
February 15, 2008 10,000 July 5, 2008
Each of the above-described options shall expire on the sixth (6th) anniversary
of the date such option is granted (the "Date Granted"). Provided, should this
Agreement terminate for Good Cause, Good Reason or by mutual agreement of the
parties hereto, Xxxxxxx shall exercise all of the options described above within
six (6) months of such termination date; thereafter, all such options shall
espier and become null and void. The Company and Xxxxxxx shall enter into a
stock option agreement containing customary terms and provisions and
incorporating the provisions of the Company's incentive stock option plan.
2.2 Termination. During the Term, if the Company terminates Xxxxxxx'x
employment for other than Good Cause or if Xxxxxxx resigns for Good Reason, the
Company shall continue to pay compensation and benefits to Xxxxxxx at the same
rate and on the same dates as prior to such termination through the end of the
Term ("Severance Payment"). If the Company terminates Xxxxxxx'x employment for
Good Cause or if employment is terminated as a result of death, Disability or
voluntary resignation of employment prior to the end of the Term,
then the Company shall pay to Xxxxxxx only such compensation, vacations and
benefits as shall have accrued through the actual date of termination of
employment. In the event that Xxxxxxx is entitled to a Severance Payment
pursuant to this Section 2.2 and Xxxxxxx secures employment at any time during
the remaining term of this Agreement following termination (the "Severance
Period"), then the Company shall be entitled to a credit against its obligation
to make the Severance Payment in the amount of up to seventy-five percent (75%)
of Xxxxxxx'x cumulative salary during the Severance Period earned from or
otherwise paid to him by his new employer.
Should Company fail to pay any of the Severance Payment when due,
Xxxxxxx shall have the option of (a) seeking to enforcement payment of such
Severance Payment by Company with all terms of this Agreement remaining
enforceable by either party or (b) waiving his right to seek enforcement of such
Severance Payment in consideration for the automatic termination of Section
5.1(b) "Covenant Not to Compete".
2.3 Company Benefits. The Company agrees that Xxxxxxx will participate
in all fringe benefit programs of the company form the earliest date of
eligibility under such programs, including all group health, long term
disability, life insurance and retirement plans which may be in effect at the
time of , or from time to time during, his employment. The premiums for fully
paid medical benefits for Xxxxxxx and his family shall be paid by the company as
shall a $500,000.00 term life insurance policy payable to Xxxxxxx'x
beneficiaries under his estate plan. Xxxxxxx shall be eligible to participate in
the company's 401(k) plan on October 1, 2000 (provided Xxxxxxx'x start date is
on or before July 5, 2000).
2.4 Vacation. Xxxxxxx shall be entitled to three weeks of paid vacation
per year during his Term. In addition, he shall also attend the Florida Banker's
Association Annual Conference, and fulfill his commitment to teach at the
Florida School of Banking for one week each year for the next three years.
2.5 Automobile. The company shall provide Xxxxxxx with an automobile
allowance of $600.00 per month. Xxxxxxx shall be responsible for all insurance
and maintenance charges.
2.6 Country Club Membership. Xxxxxxx shall be reimbursed for the dues
and other membership assessments (but not initiation dues) for one country club
or tennis club.
2.7 Resources. Xxxxxxx shall be provided with an appropriate office and
secretary and support staff in order to carry out his duties and
responsibilities as President and Chief Executive Officer of the Company and
Chief Executive Officer of the Bank.
2.8 Expenses. Xxxxxxx shall be issued and authorized to use a corporate
credit card for all necessary and reasonable expenses, including travel and
entertainment expenses, incurred by him in furtherance of the performance of his
duties and responsibilities.
SECTION 3. DEFINITIONS
As used in this Agreement, the following terms have the following
meaning:
3.1 Disability means the inability, by reason of physical or mental
infirmity, or both, of Xxxxxxx to perform any of his duties hereunder in a
meaningful manner, for a period of six consecutive months beginning on the date
of the first physical or mental infirmity, or both. The determination of the
occurrence of such a Disability will be made in writing by a licensed physician
selected by Xxxxxxx and reasonably acceptable to the Company residing in or near
St. Petersburg, Florida.
3.2 Good Cause means the occurrence of any of the following: (i)
Xxxxxxx'x conviction of, or plea of guilty of nolo contendere to, a felony or a
crime of falsehood or involving moral turpitude; or (ii) refusal or inability of
Xxxxxxx to substantially perform such duties as may be assigned to him from time
to time by the Board of Directors and/or Executive Committee of the Board of
Directors, other than a failure resulting form Xxxxxxx'x incapacity as a result
of Disability, following notice from the Board of Directors of the Company or
the Bank, as the case may be, to perform such duties.
3.3 Good Reason means to Company or the Bank (i) demotes or otherwise
elects or appoints Xxxxxxx to a lesser officer or capacity than that specified
in his employment agreement or fails to elect or appoint him to such officers or
capacities; (ii) reduces Xxxxxxx'x base salary or minimum annual bonus; (iii)
materially reduces Xxxxxxx'x benefits under any employee benefit plan, program
or arrangement of the Company or the Bank (other than a change that affects all
employees similarly situated) from the level in effect upon Xxxxxxx'x
commencement or participation; (iv) requires Xxxxxxx to relocate from the
Pinellas County, Florida area or travel for extended periods or time; or (v)
commits any other material breach of the provisions of this Agreement and
Xxxxxxx provides at least 10 days' prior written notice to the Board of
Directors of the Company or the Bank, as the case may be, of the existence of
such breach and his intention to terminate this Agreement and such breach is not
cured within 20 days of the date of such notice.
SECTION 4. MISCELLANEOUS
4.1 Severability. If any provision of this Agreement is deemed to be
invalid or unenforceable or is prohibited by the laws of the state or place
where it is to be performed, this Agreement shall be considered divisible as to
such provision and such provision shall be inoperative in such state or place
and shall not be part of the consideration moving from either of the parties to
the other. The remaining provisions of this Agreement, however, shall be valid
and not binding and of like effect as though such provision were not included.
4.2 Binding Effect. The Agreement shall inure to the benefit of and be
binding upon the Company, its successors and assigns, including, without
limitation, any person, partnership, the Company or corporation which may
acquire substantially all of the Company's assets or business or with or into
which the Company may be liquidated, consolidated, merged or
otherwise combined. In addition, this Agreement shall inure to the benefit of
and be binding upon executive, his heirs, distributees and personal
representative.
4.3 Entire Agreement Amendment. This Agreement supersedes all pervious
agreements between Xxxxxxx and the Company. This Agreement cannot be amended,
modified or supplemented in any respect except by a subsequent written agreement
executed by both parties.
4.4 Waiver of Breach. The waiver by the Company or Bank of a breach of
any provision of the Agreement by Xxxxxxx shall not operate of be construed as a
waiver of any subsequent breach of the same or any other provision by Xxxxxxx.
4.5 No Breach of Existing Contracts. Xxxxxxx warrants and represents to
the Company and Bank that the execution of the Agreement, his employment with
the Company and 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 Xxxxxxx is or has been a
party.
4.6 Notices. Any notice given hereunder shall be in writing and
delivered personally or by mail, sent either by registered or certified mail,
return receipt requested:
To the Bank: First Community Bank Corporation of America
0000 0xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000 Attention:
Xxxxx X. Xxxxxxx, Xx. President
To the Company: First Community Bank of America
0000 0xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention:_______________________
To Xxxxxxx: Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxx.
Xxxxx, XX 00000
Notices sent by hand delivery shall be deemed effective on the date of
hand delivery. Notices sent by overnight carrier shall be deemed effective on
the next business day after being placed into the hands of the overnight
carrier. Notices sent by registered or certified mail shall be deemed effective
on the third business day after being deposited into the post office.
4.7 Headings. Headings in this Agreement are for convenience only and
shall not be used to interpret or construe its provisions.
4.8 Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Florida (other than the choice of law principles
thereof). 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.
4.9 Counterparts. The 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.
SECTION 5. EMPLOYEE COVENANTS
5.1 Restrictive Covenants.
(a) Anti-Piracy. Xxxxxxx hereby expressly covenants and agrees, which
covenants and agreements are of the essence of the Agreement, that he will not,
during the term of this Agreement and for a period of two (2) years immediately
following the termination of this Agreement, for any reason whatsoever, directly
of indirectly, for himself, or on behalf of, or in conjunction with, any other
person, persons, company, partnership or corporation:
(1) call upon any customer or customers of Company and/or Bank
solicited or contacted by Xxxxxxx while at the Company and/or Bank,
pursuant to his employment hereunder, for the purpose of soliciting,
selling or servicing any programs or services of the type sold and
serviced by Company and/or Bank during the term hereof;
(2) nor will Xxxxxxx divert, solicit or take away any customer or
customers of Company and/or Bank or the business or patronage or any
such customers of the company and/or Bank during the term hereof;
(3) nor will Xxxxxxx call upon Prospective Customer (as hereafter
defined) or customers of the Company and/or Bank, for the purpose of
soliciting, selling or servicing programs or services of the type sold
and serviced by Company and/or Bank during the term hereof within
thirty-five (35) miles of the Bank's office (the "Restrictive Area"),
whose address is set forth in the Notices provision of this Agreement.
For the purposes of this Agreement, prospective customers are defined
as those prospects that, during any part of the six (6) month period
next preceding his termination under this Agreement were:
(i) Called upon by Xxxxxxx or Xxxxxxx'x staff, two (2) or
more times, or
(ii) Listed by Xxxxxxx or Xxxxxxx'x staff, as active
potential prospects on Xxxxxxx'x sales call reports;
(4) nor upon termination of Xxxxxxx'x employment form Company and/or
Bank, whether by resignation, discharge, or otherwise, and for a period
of two (2) years from the date of termination, shall Xxxxxxx, directly
or indirectly, for himself or herself or on behalf of, or in
conjunction with, any other person, persons, Company and/or Bank,
partnership or corporation: solicit, approach, or call upon any Company
and/or Bank, partnership or corporation: solicit, approach, or call
upon any Company and/or Bank Xxxxxxx for the
purpose of retaining or hiring the company and/or Bank Xxxxxxx in any
capacity within the Restrictive Area.
(b) Covenant Not to Compete. Xxxxxxx hereby expressly covenant and
agrees, which covenants and agreements are the essence of this Agreement, that
Xxxxxxx will not, during the term of this Agreement and for a period of two (2)
years immediately following the termination of this Agreement, for any reason
whatsoever, directly or indirectly own, manage, operate, control, be employed
by, participate in, or be connected in any manner whatsoever whether as an
individual, partner, officer, director, employee, advisor, consultant, agent,
representative or a corporation, trustee or fiduciary with the ownership,
management, operation or control of any business any part of which is
competitive with the business conducted by the Company and/or Bank within the
Restrictive Area.
(c) Legal Remedies. In the event of a breach or threatened breach by
Xxxxxxx of the provisions of this Section 5, Company and/or Bank shall be
entitled to an injunction restraining Xxxxxxx from directly or indirectly
competing with the company and/or Bank or soliciting, approaching, or calling
upon any employee or customers or hiring the employee in any capacity; and, in
addition to obtaining and injunction, Company and/or Bank shall be entitled to
recover damages from Xxxxxxx. In the event any Court determines the specified
time period to be unreasonable, arbitrary, or against public policy, a lesser
time period to be unreasonable, arbitrary, or against public policy, a lesser
time period which is determined to be reasonable, non-arbitrary and not against
public policy may be enforced against Xxxxxxx by injunction, as well as by all
other legal remedies available to Company and/or Bank. In the event of any legal
action in connection with this Agreement, the prevailing party shall be entitled
to recover all of its legal expenses, including reasonable attorney's fees and
costs, whether the same are incurred in connection with trial or during an
appeal and to have the same awarded as part of the judgment in the proceeding in
which such legal expenses and attorney's fees were incurred.
(d) Nondisclosure. Xxxxxxx recognizes and acknowledges that the list of
the Company and/or Bank's customers, trade secrets, data processing systems,
computer software, computer programs, or other systems, data, methods, or
procedures developed or used by the Company and/or Bank, as they may exist from
time to time, are valuable, special and unique assets of the Company and/or
Banks' business. Xxxxxxx will not, during or after the term of his employment
without the prior written consent of the Company and/or Bank, which consent may
be withheld in Company and/or Bank's sole discretion, and except to the extent
necessary to accomplish assignments on behalf of the Company and/or bank in
which Xxxxxxx is, at any given time during the term of Xxxxxxx'x tenure with the
Company and/or Bank, currently and actively engaged, possess, transmit, copy,
reproduce, or disclose the list of the company and/or Bank's customers or any
part thereof or identify any of the loan officers for the Company and/or Bank or
any of the Company and/or Bank's present or future trade secret, or any data
processing systems, computer software, computer programs or other systems, data
methods, or procedures to any person, firm, corporation, association, or any
other entity for any reason or purpose whatsoever, nor will the undersigned
assist anyone else to do so. In the event of a breach or threatened breach by
Xxxxxxx of disclosing, in whole or in part, the list of the Company and/or
Bank's Customers or the Company and/or Bank's trade secrets, or from rendering
any services to any person, firm, corporation, association, or other entity to
whom such list or such trade secrets,
in whole or in part, has been disclosed or is threatened to be disclosed and
requiring the return to the Company and/or Bank of all copies of customer lists,
manuals, data, software, computer programs, or written procedures in the
possession of Xxxxxxx. Nothing herein shall be construed as prohibiting the
Company and/or Bank from pursuing any other remedies available to it for such
breach or threatened breach, including the recovery of damages from Xxxxxxx. The
existence of any claim or cause of action of Xxxxxxx against the Company and/or
Bank shall not constitute a defense to the enforcement by the Company and/or
bank of this Covenant. No failure of the company and/or Bank to exercise any
right given hereunder shall be taken or construed as a waiver of its right to
seek any remedies by reason of any past, present, or future breaches of the
Agreement on the part of Xxxxxxx.
5.2 Severability of Restrictive Covenants. Company, Bank and Xxxxxxx
agree that the restrictive covenants contained in this Section 5, or any of its
sub-paragraphs, are severable and separate and the unenforceability of any
specific covenant therein shall not affect the validity of any other covenants
set forth therein. These covenants on the part of the Xxxxxxx shall be construed
as an agreement independent of any other provision of this Agreement, and the
existence of any claim or cause of action of the Xxxxxxx against Company and/or
Bank, whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company and/or Bank of said covenants. Xxxxxxx
agrees and acknowledges that any violation by Xxxxxxx of the covenants set forth
in this Section 5 hereof would cause irreparable damages to Company and/or Bank,
and Xxxxxxx further agrees that upon proof of the existence of such a violation
of the covenants set forth in this Section 5 Company and/or Bank will be
entitled to injunctive relief against the Xxxxxxx by any Court of competent
jurisdiction. In the event any Court of competent jurisdiction should determine
that the territorial restrictions set forth in this Section 5 and/or their
duration, shall be limited to such territory and/or duration as may be
determined reasonable by a Court of Competent jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed by and through their duly authorized representative as
the day and year first above written.
FIRST COMMUNITY BANK
CORPORATION OF AMERICA
Attest:
By: /s/ Xxxxx X. Xxxxxxx
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, Secretary Xxxxx X. Xxxxxxx, Xx. President
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FIRST COMMUNITY BANK OF AMERICA
Attest:
By: /s/
----------------------------------- --------------------------------
, Secretary President
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Witness: /s/ /s/ XXXXXXX X. XXXXXXX
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XXXXXXX X. XXXXXXX
/s/
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