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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into effective the 1st day of January, 1994, by
and between West Coast Bancorp, Inc., a Florida Corporation, (the Company),
First National Bank of Southwest Florida (the Bank), (a national banking
association organized and existing under the laws of the United States of
America), hereinafter referred to as the "Employer", and Xxxxxxx X. Xxxx,
hereinafter referred to as the "Executive".
WITNESSETH
Whereas, the Company owns 100% of the outstanding stock of the Bank, and;
Whereas, the Board of Directors of the Company and the Bank recognize the
experience and knowledge of the Executive in the Banking industry and desire to
retain the valuable services and business counsel of Executive, it being in the
best interest of the Company and the Bank to arrange terms of employment for
Executive so as to reasonably induce Executive to remain in the capacities with
the Company and the Bank for the term hereof; and
Whereas, Executive is willing to provide services to the Company and the Bank,
in accordance with the terms and conditions hereinafter set forth:
Now Therefore, for and in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. EMPLOYMENT. For the Term of Employment, as hereinafter defined, the Company
and the Bank agree to employ the Executive and Executive agrees to accept
employment as President of the Bank and the Company and to perform such duties
and functions as the Board of Directors of the Company or the Bank may assign to
Executive from time to time, during the term hereof. Subject to the terms and
conditions hereof, Executive will perform such duties and exercise such
authority as are customarily performed and exercised by persons holding such
office, including such duties which are more clearly defined in the Executive's
job description, subject to the direction of the Board of Directors. Unless
otherwise agreed to by Executive, he shall perform such duties primarily from
the Bank's offices in Xxx County, Florida. Executive accepts such employment and
shall devote his full time, attention and best efforts to the diligent
performance of his duties herein specified, and as an officer and director of
the Bank and Holding Company and will not directly, or indirectly, accept
employment with any other individual, corporation, partnership, government
authority or other entity or engage in any other venture for profit which
employer or the Board of Directors may consider to be in conflict with the
Bank's best interest or to be in competition with the Bank, or which may
interfere in any way with the employee's performance of his duties hereunder,
whether as an employee, director, officer, stockholder, owner, partner or
otherwise; provided, however, that
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the employee's ownership of less than five percent (5%) of the issued and
outstanding stock of a publicly traded corporation shall not by itself be deemed
to constitute such competition.
2. TITLE. Executive shall serve as the President and Chief Executive Officer of
the Company and President and Chief Executive Officer of the Bank.
3. TERM OF EMPLOYMENT. The term of employment shall be thirty-six (36) calendar
months, unless earlier terminated pursuant to this agreement, commencing as of
January 1, 1994 and ending on December 31, 1996. Executive's employment pursuant
to this agreement shall be terminated by the first to occur of any of the
following:
i. the death of Executive.
ii. the complete disability of Executive. Disability shall be as
defined in the First National Bank of Southwest Florida's
employee personnel manual and as defined by the insurance
carrier that administrates such insurance benefits at the time
of disability.
iii. the discharge of Executive by employer for cause. Cause, as
used herein shall include, without limitation: dishonesty,
theft, conviction of a crime, unethical business conduct,
activity which is contrary to the Company's or the Bank's
interest, gross or repeated negligence in carrying out
Executive's duties, or violation of Executive's obligations
hereunder. Discharge for cause will require a majority vote of
the entire Board of Directors, or
iiii. sixty (60) days after Executive has given written notice to
employer of his intent to terminate his employment hereunder.
Termination of Executive's employment shall constitute both a tender by
Executive of his resignation as an employee, officer and director of Employer,
and acceptance by Employer of that tender.
4. COMPENSATION.
4.1 BASE PAY. During the term of employment, Executive shall be paid an annual
base salary which shall be paid in equal installments in accordance with the
Company's and the Bank's normal pay practice. Executive's base annual salary
shall be $106,000. The parties hereto agree that the base salary shall be paid
by the Bank, and shall be applied against the obligation of the Company to pay
all or any portion of such base salary hereunder. Executive shall receive an
annual review of his performance, and at the discretion of the Board,
adjustments to the base salary shall be addressed in said evaluation.
4.2 PERFORMANCE BONUS PLAN. During the term of employment and in
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addition to the Executive's base salary, Executive shall be entitled to receive
such additional bonus payments as follows:
For each of the annual periods of this agreement, employer shall pay to the
Executive, a performance bonus, which may be taxed deferred, should Executive
choose to defer via any existing deferred compensation agreement, in accordance
with the following:
PERCENTAGE
OF BUDGETED PRETAX
RETURN ON BONUS
ASSETS(ROA) AMOUNT
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100% $ 2,500
101% to 110% $ 5,000
111% to 120% $10,000
121% to 130% $15,000
131% to 140% $25,000
141% to 150% $35,000
ROA means, the ratio determined by the employer's net income for the calendar
year then ended divided by its year end total assets, as determined by the
Employer's independent accounting firm, in accordance with generally accepted
accounting principles.
Budgeted ROA means the original projected ROA adopted by the Board of Directors
at the beginning of the calendar year.
4.3 EXECUTIVE DEFERRED COMPENSATION PROGRAM. Employer agrees to enter into an
agreement with Executive, whereby Executive reduces current compensation in
exchange for future payments. The deferred amounts shall be invested in a plan
designated by Executive and approved by the Board of Directors.
4.4 ADDITIONAL BENEFITS. During the term of Employment, Executive shall be
provided with such employee benefits and benefit levels, including health and
life insurance, club membership, as may be provided by the Board of Directors of
the Company or the Bank from time to time to other executive officers. Executive
shall be entitled to participate in any qualified or unqualified pension, profit
sharing or other employee benefit plans adopted by the Company or the Bank
hereafter and covering executive officers generally.
4.5 VACATION. Executive shall be entitled to four weeks vacation, per the
personnel policy of the First National Bank of Southwest Florida. Any change in
vacation policy, shall be dictated by the Bank's personnel policy.
4.6 EXPENSES. Upon Executive's presentment to Employer of expense reports
acceptable to Employer and which are in sufficiently detailed form to comply
with standards for deduction of business expenses established from time to time
by the Internal Revenue Service, Employer will reimburse Executive for such
expenses approved by Employer and incurred by Executive in connection with
performance with his duties hereunder.
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5. CHANGE IN CONTROL OF THE COMPANY. The Company, the Bank and the Executive
agree to be bound by that certain Severance Pay Agreement, approved and adopted
by the Board of Directors at the meeting held on May 20, 1993.
6. TERMINATION,
6.1 FOR CAUSE. In the event of termination of Executive's employment for cause,
only that compensation accruing to the date of such termination shall be
payable, including any unused vacation or sick pay. Compensation accruing to the
executive after such date of termination shall xxxxx.
In the event that the Company or the Bank discharges Executive alleging "cause"
under this section #6.1, and it is subsequently determined that the termination
was "without cause" then such discharge shall be deemed a discharge without
cause subject to the provisions of section 6.2 hereof. In the event that the
Company or the Bank discharges Executive alleging "cause" under this section,
such notice of discharge shall be accompanied by a written and specific
description of the circumstances alleging such "cause".
If Executive is terminated "for cause, as herein defined" and it is eventually
proven that Executive was terminated "not for cause" then Company and Bank agree
to reimburse Executive for all expenses incurred to defend such reversal and
compensate Executive under the terms of section 6.2.
6.2 WITHOUT CAUSE. The Company or the Bank may terminate this agreement without
cause at any time during the term of employment upon the condition that
Executive shall be entitled, as liquidation damages in lieu of all other claims,
to monies equal to compensation of one (1) years salary, excluding any and all
other benefits. One years salary shall be paid on a regular payroll basis and
shall cease upon reemployment, or the term of one year, or the scheduled
termination of this agreement, whichever shall first occur.
If termination is due to a change in control of the Company, benefits are
payable under the Severance Agreement, with no additional benefits payable under
this agreement.
6.3 POST TERMINATION COVENANTS. Executive agrees that for one (1) year
following any termination of employment, before the expiration of this
agreement, not to participate, directly or indirectly, engage as an employee,
director, or officer, of any entity in competition with the Company or the Bank,
within Xxx County Florida or any county contiguous to Xxx County, Florida;
provided, however, that the Executive's ownership of less that five percent of
the issued and outstanding stock of a publicly traded corporation shall not by
itself be deemed to constitute such competition. Furthermore, following such
termination, Executive agrees that he will not, without the prior written
consent of Employer: i. furnish anyone with the name of or any list or lists
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which identify, any customers or stockholders of the Employer or utilize such
list or information himself; ii. furnish, use or divulge to anyone any
confidential information of Employer acquired by him from Employer and relating
to Employer's business activities; iii. contact directly or indirectly any
customer of Employer for the purpose of soliciting such person's business for
any competing entity; iv. hire for any other employer (including himself) any
employee of Employer or directly of indirectly cause such employee to leave his
or her employment to work for another; (v) pursue an actual or potential
business opportunity of interest to and which could be pursued by Employer which
came to the attention of Executive in connection with his employment with
Employer and which Executive had not previously offered in writing to Employer
with sufficient advance notice to allow Employer to examine and pursue or reject
such opportunity.
7. ENTIRE AGREEMENT. This agreement constitutes the entire agreement between
the parties hereto regarding employment of Executive, and supersedes and
replaces any prior agreement relating hereto.
8. ASSIGNMENT. Neither of the parties hereto may assign this agreement without
the prior written consent of the other party hereto.
9. SEVERABILITY. Each section and subsection of this agreement constitutes a
separate and distinct understanding, covenant and provision hereof. In the event
that any provision of this agreement shall finally be determined to be unlawful,
such provision shall be deemed to be severed from this agreement, but every
other provision of this agreement shall remain in full force and effect.
10. GOVERNING LAW. This agreement shall in all respects be interpreted,
construed and governed by and in accordance with the laws of the State of
Florida.
11. RIGHTS OF THIRD PARTIES. Nothing herein expressed or implied is intended to
or shall be construed to confer upon or give to any person, firm or other
entity, other than the parties hereto and their permitted assigns, any rights of
remedies under or by reason of this agreement.
12. AMENDMENT. This agreement may not be amended orally but only by an
instrument in writing, duly executed by the parties hereto.
13. NOTICES. Any notice or other document or communication permitted or required
to be given to Executive pursuant to the terms hereof shall be deemed given if
personally delivered to Executive or sent to him postage prepaid, by registered
mail or certified mail, at the main office of the Company at 0000 Xxx Xxxxx
Xxxx, Xxxx Xxxxx, Xxxxxxx, 00000, or any such address as Executive shall have
notified the Company in writing. Any notice or other document or other
communication permitted or required to be given to the Company pursuant to the
terms hereof shall be deemed given if personally delivered to the Chairman of
the Company and of the Bank.
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14. WAIVER. The waiver by either party hereto of a breach of any provision of
this agreement by the other shall not operate or be construed as a waiver of any
subsection breach of the same or any other provision of this agreement by the
breaching party.
15. COSTS OF LITIGATION. Should any litigation occur because of an alleged
breach of this agreement, the prevailing party shall be entitled to recover
reasonable attorney's fees and costs.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement this 18 day of
January 1994.
By: /s/ Xxxxxx Xxxxxx Chairman
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Xxxxxx X. Xxxxxx Chairman
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, Executive
Attest: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx,
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Return on assets (ROA) means the ratio determined by the Bank's net income for
the year divided by its total assets, determined by the bank's independent
accounting firm in accordance with generally accepted accounting principles.
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EMPLOYMENT EXTENSION AGREEMENT
THIS EXTENSION AGREEMENT, made and entered into effective the 17th day of
October, 1996, by and between WEST COAST BANCORP, INC, a Florida Corporation,
(the Company), FIRST NATIONAL BANK OF SOUTHWEST FLORIDA, (The Bank),
herein-after referred to as the "EMPLOYER" and Xxxxxxx X. Xxxx, herein-after
referred to as the "EXECUTIVE".
Reference is made to the original agreement dated January 18, 1994, that calls
for any changes extensions or modifications to be in writing. Said Original
EMPLOYMENT AGREEMENT called for a term of employment to begin on January 1, 1994
and terminate on December 31, 1996. It is the intent of this agreement to extend
said employment agreement for an addition 36 months, from the date of the
original expiration. Said new TERM OF EMPLOYMENT, shall begin on January 1, 1997
and end on December 31, 1999.
No other modifications, amendments or extensions to the original EMPLOYMENT
AGREEMENT are addressed in this agreement. Dated this 7th Day of November, 1996.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Chairman
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, Executive
Attest: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Secretary
