Exhibit 10.1
President and Chief Executive Officer
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made effective as of
March 1, 2004, by and between TIB Financial Corp. (the "Holding Company"), TIB
Bank of the Keys (the "Bank"), and Xxxxxx X. Xxxx (the "Executive").
WITNESSETH:
WHEREAS, the Holding Company and the Bank (collectively the "Company")
desire to retain the services of and employ the Executive, and the Executive
desires to provide services to the Company, pursuant to the terms and conditions
of this Agreement.
NOW, THEREFORE, in consideration of the promises and of the covenants
and agreements herein contained, the Company and the Executive covenant and
agree as follows:
1. Employment. Pursuant to the terms and conditions of this
Agreement, the Company agrees to employ the Executive and the Executive agrees
to render services to the Company as set forth herein, all effective as of the
date set forth above. Notwithstanding any other provision in this Agreement, the
employment of the Executive in accordance with the terms of this Agreement shall
be subject to the prior approval, as and to the extent required by law, of the
applicable federal banking agencies having jurisdiction over the Holding Company
and the Bank. This Agreement supercedes any prior employment agreement entered
into between the Company and the Executive prior to the date hereof, and any
such prior employment agreement is hereby terminated.
2. Position and Duties; Records. During the term of this
Agreement, the Executive shall serve as President and Chief Executive Officer of
the Holding Company and the Bank, and shall undertake such duties, consistent
with such titles, as may be assigned to him from time to time by the Boards of
Directors of the Holding Company and the Bank (collectively referred to as the
"Board"), including management of all Company personnel, serving on Board
committees as appointed from time to time by the Board, keeping the Board
informed of industry and regulatory developments regarding the Company,
coordinating with Company personnel and third parties to the extent necessary to
further the profitability and business of the Company, and assisting in keeping
the Company in compliance with applicable laws and regulations. During the term
of this Agreement, the Executive also shall serve as a director of the Holding
Company and the Bank. In performing his duties pursuant to this Agreement, the
Executive shall devote his full business time, energy, skill and best efforts to
promote the Company and its business and affairs; provided that, subject to
Sections 10, 12 and 13 of this Agreement, the Executive shall have the right to
manage and pursue personal and family interests, and make passive investments in
securities, real estate, and other assets, and also to participate in charitable
and community activities and organizations, so long as such activities do not
adversely affect the performance by
1
Executive of his duties and obligations to the Company. Upon termination of the
Executive's employment for any reason, he shall resign as a director of the
Holding Company and the Bank. All files, records, documents, manuals, books,
forms, reports, memoranda, studies, data, calculations, recordings or
correspondence, in whatever form they may exist, and all copies, abstracts and
summaries of the foregoing, and all physical items related to the business of
the Company, its affiliates and their respective directors and officers, whether
of a public nature or not, and whether prepared by Executive or not, are and
shall remain the exclusive property of the Company, and shall not be removed
from their premises, except as required in the course of providing the services
pursuant to this Agreement, without the prior written consent of the Company.
Such items shall be promptly returned by the Executive on the termination of
this Agreement or at any earlier time upon the request of the Company.
3. Term. The term of employment pursuant to this Agreement shall
be for a period of three years, commencing with the date set forth in Section 1
and expiring (unless sooner terminated as otherwise provided in this Agreement
or unless otherwise renewed or extended as set forth herein) on the third
anniversary of this Agreement, which date, including any earlier date of
termination or any extended expiration date, shall be referred to as the
"Expiration Date". Subject to the provisions of Section 8 of this Agreement, the
term of this Agreement and the employment of the Executive by the Company
hereunder shall be deemed automatically renewed for successive periods of three
years on each anniversary date of this Agreement, until the Executive receives
written notice from the Company that the term of this Agreement will not be
automatically renewed. In the event of the Executive's receipt of such notice
from the Company that the term of this Agreement will not be renewed, the term
of this Agreement shall end on the anniversary of this Agreement occurring three
years after the anniversary date first occurring after the date such notice is
given. As an illustration of the foregoing, if such notice were given by the
Company to the Executive on a date in 2005 before the first anniversary date of
this Agreement, then term of this Agreement would end on the anniversary date of
this Agreement in 2008. If notice were given by the Company to the Executive on
a date in 2005 after the first anniversary date of this Agreement, then the term
of this Agreement would end on the anniversary date in 2009. After termination
of the employment of the Executive for any reason whatsoever, the Executive
shall continue to be subject to the provisions of Sections 10 through 17,
inclusive, of this Agreement; provided, however, that the Executive shall not be
subject to the provisions of Section 12 where the employment of the Executive is
terminated pursuant to Section 8(e), or where the term of employment is not
renewed pursuant to this Section 3.
4. Compensation. During the term of this Agreement, the Company
shall pay or provide to the Executive as compensation for the services of the
Executive set forth in Section 2 hereof:
(a) A base annual salary of $275,000 during the first
year of this Agreement, such base annual salary to be subject to increase
thereafter as the Board in its discretion shall determine. The foregoing base
salary shall be payable in such periodic installments consistent with other
employees of the Bank.
(b) An annual incentive bonus for each fiscal year
(commencing with the 2004 fiscal year) up to 34% of the base annual salary for
achieving or exceeding performance goals established by the Board. The incentive
bonus shall be prorated as determined by the Board for a partial year that
occurs within the calendar year.
5. Benefits and Insurance. The Bank shall provide to the
Executive such medical, health, and life insurance as well as any other benefits
as the Board shall determine from time to time. At a minimum, the Executive
shall be entitled to (i) participate in all employee benefit plans offered to
the Bank's employees generally, and (ii) life insurance coverage (payable to
such beneficiary as the Executive may designate from time to time). The
Executive also shall be entitled to participate in any group disability plan
maintained by the Bank, with the Bank paying to the Executive his base annual
salary during any waiting period imposed by such plan for the receipt of
disability benefits thereunder.
6. Vacation. The Executive may take up to four weeks of vacation
time at such periods during each year as the Board and the Executive shall
determine from time to time. The Executive shall be entitled to full
compensation during such vacation periods.
7. Reimbursement of Expenses. The Bank shall reimburse the
Executive for reasonable expenses incurred in connection with his employment
hereunder subject to guidelines issued from time to time by the Board and upon
submission of documentation in conformity with applicable requirements of
federal income tax laws and regulations supporting reimbursement of such
expenses.
8. Termination. The employment of the Executive may be terminated
as follows:
(a) By the Company, by action taken by its Board, at any
time and immediately upon written notice to the Executive if said termination is
for Cause. In the notice of termination furnished to the Executive under this
Section 8(a), the reason or reasons for said termination shall be given and, if
no reason or reasons are given for said termination, said termination shall be
deemed to be without Cause and therefore termination pursuant to Section 8(f).
Any one or more of the following conditions shall be deemed to be grounds for
termination of the employment of the Executive for Cause under this Section
8(a):
(i) If the Executive shall fail or refuse to
comply with the obligations required of him as set forth in this Agreement or
comply with the policies of the Company established by the Board from time to
time; provided, however, that for the first such failure or refusal, the
Executive shall be given written warning (providing at least a 10 day period for
an opportunity to cure), and the second failure or refusal shall be grounds for
termination for Cause;
(ii) If the Executive shall have engaged in
conduct involving fraud, deceit, personal dishonesty, or breach of fiduciary
duty;
(iii) If the Executive shall have violated any
banking law or regulation, memorandum of understanding, cease and desist order,
or other agreement with any banking agency having jurisdiction over the Company
which, in the judgment of the Board, has adversely
affected, or may adversely affect, the business or reputation of the Company as
determined by the Board;
(iv) If the Executive shall have become subject
to continuing intemperance in the use of alcohol or drugs which has adversely
affected, or may adversely affect, the business or reputation of the Company as
determined by the Board;
(v) If the Executive shall have filed, or had
filed against him, any petition under the federal bankruptcy laws or any state
insolvency laws; or
(vi) If any banking authority having supervisory
jurisdiction over the Holding Company or the Bank initiates any proceedings for
removal of the Executive.
In the event of termination for Cause, the Company
shall pay the Executive only salary and vacation amounts accrued and unpaid as
of the effective date of termination.
(b) By the Executive upon the lapse of 30 days following
written notice by the Executive to the Company of termination of his employment
hereunder for Good Reason (as defined below), which notice shall reasonably
describe the Good Reason for which the Executive's employment is being
terminated; provided, however, that if the Good Reason specified in such notice
is such that there is a reasonable prospect that it can be cured with diligent
effort within 30 days, the Company shall have the opportunity to cure such Good
Reason, for a period not to exceed 30 days from the date of such notice, and the
Executive's employment shall continue in effect during such time so long as the
Company makes diligent efforts during such time to cure such Good Reason. If
such Good Reason shall be cured by the Company during such time, the Executive's
employment and the obligations of the Company hereunder shall not terminate as a
result of the notice which has been given with respect to such Good Reason. Cure
of any Good Reason with or without notice from the Executive shall not relieve
the Company from any obligations to the Executive under this Agreement or
otherwise and shall not affect the Executive's rights upon the reoccurrence of
the same, or the occurrence of any other, Good Reason. For purposes of this
Agreement, the term "Good Reason" shall mean (i) any material breach by the
Company of any provision of this Agreement, or (ii) any significant reduction
(not pertaining to job performance issues), in the duties, responsibilities,
authority or title of the Executive as an officer of the Company.
If the Executive's employment is terminated by the Executive
for Good Reason, the Company shall (i) for a period of three years thereafter,
continue to pay to the Executive the base annual salary in effect under Section
4(a) on the date of said termination (or, if greater, the highest annual salary
in effect for the Executive within the 36 month period prior to said
termination) plus an annual amount equal to any bonus paid by the Company to the
Executive during the 12 month period prior to said termination, such salary and
bonus to be payable in such periodic installments (and not as a lump sum
payment) consistent with the payroll periods for the Company's payments to its
other employees; and (ii) for a period of 18 months, pay directly or
reimburse the Executive for continued coverage in accordance with the
Consolidated Omnibus Budget Reconciliation Act under the Bank's medical
insurance plan.
(c) By the Executive upon the lapse of 45 days following
written notice by the Executive to the Company of his resignation from the
Company for other than Good Reason; provided, however, that the Company, in its
discretion, may cause such termination to be effective at any time during such
45-day period. If the Executive's employment is terminated because of the
Executive's resignation, the Company shall be obligated to pay to the Executive
any salary and vacation amounts accrued and unpaid as of the effective date of
such resignation.
(d) If the Executive's employment is terminated by the
death of the Executive, this Agreement shall automatically terminate, and the
Company shall be obligated to pay to the Executive's estate any salary,
vacation, and bonus amounts accrued and unpaid at the date of death. If the
Executive is disabled (as such term is defined in the disability insurance plan
maintained by the Company), then the Company shall have the right to terminate
the Executive's employment, in which case the Company shall be obligated to pay
to the Executive (i) any salary, vacation and bonus amounts accrued and unpaid
at the date of such termination of employment, and (ii) continued salary
payments (not to exceed 30 days) until the Executive is eligible to receive
payments under the Company's disability insurance plan.
(e) If after a Change of Control, the Executive's
employment is terminated, his duties are materially reduced, his title is
changed from other than President and Chief Executive Officer, his base salary
is reduced, his employment is relocated more than 50 miles from the Bank's main
office or his participation in any employee benefit plan is materially reduced
or adversely affected, and the Executive does not consent to such change, then
the Executive shall be entitled to receive promptly thereafter in a lump sum
payment an amount equal to three times the average base annual salary received
by the Executive during the three year period prior to such termination. Any
termination by the Executive pursuant to this Section 8(e) shall be in lieu of
any other termination benefits that the Executive would have otherwise received
under any other provision of this Section 8. For purposes of this Agreement, a
Change of Control shall mean a merger in which the Holding Company is not the
surviving entity, the acquisition of the Bank by means of a merger,
consolidation or purchase of 80% or more of its outstanding shares, or the
acquisition by any individual or group of beneficial ownership of more than 50%
of the outstanding shares of Holding Company common stock. The term "group" and
the concept of beneficial ownership shall have such meanings ascribed thereto as
set forth in the Securities Exchange Act of 1934, as amended (the "1934 Act"),
and the regulations and rules thereunder.
(f) By the Company, by action taken by its Board, at any
time if said termination is without Cause. If the Executive's employment is
terminated by the Company without Cause, the Company shall (i) for a period of
three years thereafter, continue to pay to the Executive the base annual salary
in effect under Section 4(a) on the date of said termination (or, if greater,
the highest annual salary in effect for the Executive within the 36 month period
prior to said termination) plus an annual amount equal to any bonus paid by the
Company to the Executive during the 12 month period prior to said termination,
such salary and bonus to be
payable in such periodic installments (and not as a lump sum payment) consistent
with the payroll periods for the Company's payments to its other employees; and
(ii) for a period of 18 months, reimburse the Executive for continued coverage
in accordance with the Consolidated Omnibus Budget Reconciliation Act under the
Bank's medical insurance plan.
(g) Excise Tax. In the event that any consideration or
other amount paid or payable to Executive hereunder as well as any other
agreements between the Executive and the Company constitutes or is deemed to be
an "excess parachute payment" within the meaning of Section 280G(b) of the
Internal Revenue Code of 1986 (or any other amended or successor provision) that
is subject to the tax imposed pursuant to Section 4999 of the Internal Revenue
Code of 1986 (or any other amended or successor provisions) ("Excise Tax"), the
Company shall pay to Executive an amount ("Gross-Up Amount") that, after
reduction of the amount of such Gross-Up Amount for all federal, state and local
tax to which the Gross-Up Amount is subject (including the Excise Tax to which
the Gross-Up Amount is subject) is equal to the amount of the Excise Tax to
which such amount constituting an excess parachute payment is subject. For
purposes of determining the amount of any Gross-Up Amount, Executive shall be
deemed to pay federal income taxes at the highest marginal rate of federal
income taxation in the calendar year in which the Gross-Up Amount is to be made
and state and local income taxes at the highest marginal rate of taxation in the
state and locality of residence of Employee on the date the excess parachute
payment is made, net of the maximum reduction in federal income taxes that could
be obtained from the deduction of such state and local taxes.
9. Notice. All notices permitted or required to be given to
either party under this Agreement shall be in writing and shall be deemed to
have been given (a) in the case of delivery, when addressed to the other party
as set forth at the end of this Agreement and delivered to said address, (b) in
the case of mailing, three days after the same has been mailed by certified
mail, return receipt requested, and deposited postage prepaid in the U.S. Mails,
addressed to the other party at the address as set forth at the end of this
Agreement, and (c) in any other case, when actually received by the other party.
Either party may change the address at which said notice is to be given by
delivering notice of such to the other party to this Agreement in the manner set
forth herein.
10. Confidential Matters. The Executive is aware and acknowledges
that the Executive shall have access to confidential information by virtue of
his employment. The Executive agrees that, during the period of time the
Executive is retained to provide services to the Company, and thereafter
subsequent to the termination of Executive's services to the Company for any
reason whatsoever, the Executive will not release or divulge any confidential
information whatsoever relating to the Company or its business, to any other
person or entity without the prior written consent of the Company. Confidential
information does not include information that is available to the public or
which becomes available to the public other than through a breach of this
Agreement on the part of the Executive. Also, the Executive shall not be
precluded from disclosing confidential information in furtherance of the
performance of his services to the Company or to the extent required by any
legal proceeding.
11. Injunction Without Bond. In the event there is a breach or
threatened breach by the Executive of the provisions of Sections 10, 12, or 13,
the Company shall be entitled to an injunction without bond to restrain such
breach or threatened breach, and the prevailing party in any such proceeding
will be entitled to reimbursement for all costs and expenses, including
reasonable attorneys' fees in connection therewith. Nothing herein shall be
construed as prohibiting the Company from pursuing such other remedies available
to it for any such breach or threatened breach including recovery of damages
from the Executive.
12. Noncompetition. The Executive agrees that during the period of
time the Executive is retained to provide services to the Company, and
thereafter for a period of two years subsequent to the termination of
Executive's services to the Company for any reason whatsoever (except where the
employment of the Executive is terminated pursuant to Section 8(e), or where the
term of employment is not renewed pursuant to Section 3), Executive will not
enter the employ of, or have any interest in, directly or indirectly (either as
executive, partner, director, officer, consultant, principal, agent or
employee), any other bank or financial institution or any entity which either
accepts deposits or makes loans (whether presently existing or subsequently
established) and which has an office located within a radius of 50 miles of any
office of the Bank (a "Competitive Activity"); provided, however, that the
foregoing shall not preclude any ownership by the Executive of an amount not to
exceed 5% of the equity securities of any entity which is subject to the
periodic reporting requirements of the 1934 Act and the shares of Company common
stock owned by the Executive at the time of termination of employment.
Notwithstanding any other provision in this Agreement, if the Executive is
receiving severance payments from the Company pursuant to Sections 8(b) or (f),
then the Executive shall not be entitled to receive any such severance payments
which are after two years subsequent to the termination of the Executive's
services to the Company if the Executive following such two-year period engages
in any Competitive Activity.
13. Nonsolicitation; Noninterference; Nondisparagement. The
Executive agrees that during the period of time the Executive is retained to
provide services to the Company, and thereafter for a period of two years
subsequent to the termination of Executive's services to the Company for any
reason whatsoever, the Executive will not (a) solicit for employment by
Executive, or anyone else, or employ any employee of the Company or any person
who was an employee of the Company within 12 months prior to such solicitation
of employment; (b) induce, or attempt to induce, any employee of the Company to
terminate such employee's employment; (c) induce, or attempt to induce, anyone
having a business relationship with the Company to terminate or curtail such
relationship or, on behalf of himself or anyone else, to compete with the
Company; or (d) permit anyone controlled by the Executive, or any person acting
on behalf of the Executive or anyone controlled by an employee of the Executive
to do any of the foregoing. The Executive also agrees that during the term of
this Agreement and thereafter, the Executive will not disparage, denigrate or
comment negatively upon, either orally or in writing, the Company, any of its
affiliates, or any of their respective officers or directors, to or in the
presence of any person or entity, unless compelled to act by subpoena or other
legal mandate.
14. Remedies. The Executive agrees that the restrictions set forth
in this Agreement are fair and reasonable. The covenants set forth in this
Agreement are not dependent covenants and any claim against the Company, whether
arising out of this Agreement or any other agreement or contract between the
Company and Executive, shall not be a defense to a claim against Executive for a
breach or alleged breach of any of the covenants of Executive contained in this
Agreement. It is expressly understood by and between the parties hereto that the
covenants contained in this Agreement shall be deemed to be a series of separate
covenants. The Executive understands and agrees that if any of the separate
covenants are judicially held invalid or unenforceable, such holding shall not
release him from his obligations under the remaining covenants of this
Agreement. If in any judicial proceedings, a court shall refuse to enforce any
or all of the separate covenants because taken together they are more extensive
(whether as to geographic area, duration, scope of business or otherwise) than
necessary to protect the business and goodwill of the Bank, it is expressly
understood and agreed between the parties hereto that those separate covenants
which, if eliminated or restricted, would permit the remaining separate
covenants or the restricted separate covenant to be enforced in such proceeding
shall, for the purposes of such proceeding, be eliminated from the provisions of
this Agreement or restriction, as the case may be.
15. Invalid Provision. In the event any provision should be or
become invalid or unenforceable, such facts shall not affect the validity and
enforceability of any other provision of this Agreement. Similarly, if the scope
of any restriction or covenant contained herein should be or become too broad or
extensive to permit enforcement thereof to its full extent, then any such
restriction or covenant shall be enforced to the maximum extent permitted by
law, and Executive hereby consents and agrees that the scope of any such
restriction or covenant may be modified accordingly in any judicial proceeding
brought to enforce such restriction or covenant.
16. Governing Law. This Agreement shall be construed in accordance
with and shall be governed by the laws of the State of Florida.
17. Arbitration. Except for injunctive relief as provided in
Section 11 above, all disputes between the parties hereto concerning the
performance, breach, construction or interpretation of this Agreement, or in any
manner arising out of this Agreement, shall be submitted to binding arbitration
in accordance with the rules of the American Arbitration Association, which
arbitration shall be carried out in the manner set forth below:
(a) Within fifteen (15) days after written notice by one
party to the other party of its demand for arbitration, which demand shall set
forth the name and address of its designated arbitrator, the other party shall
select its designated arbitrator and so notify the demanding party. Within
fifteen (15) days thereafter, the two arbitrators so selected shall select the
third arbitrator. The dispute shall be heard by the arbitrators within sixty
(60) days after selection of the third arbitrator. The decision of any two
arbitrators shall be binding upon the parties. Should any party or arbitrator
fail to make a selection, the American Arbitration Association shall designate
such arbitrator upon the application of either party. The decision of the
arbitrators shall be final and binding upon the Company, its successors and
assigns, and upon Executive, his successors and representatives, as the case may
be.
(b) Unless the Parties agree otherwise, the arbitration
proceedings shall take place in the city where the headquarters of the Holding
Company is located. The judgment and determination of such proceedings shall be
binding on all parties thereto. Judgment upon any award rendered by the
arbitrators may be entered into any court having competent jurisdiction without
any right of appeal.
(c) Each party shall bear its or his own expenses of
arbitration, and the expenses of the arbitrators and the arbitration proceeding
shall be shared equally. However, if in the opinion of a majority of the
arbitrators, any claim or defense was unreasonable, the arbitrators may assess,
as part of their award, all or any part of the arbitration expenses of the other
party (including reasonable attorneys' fees) and of the arbitrators and the
arbitration proceeding against the party raising such unreasonable claim or
defense.
18. Binding Effect. This Agreement shall be binding on and inure
to the benefit of the parties hereto and their respective successors and legal
representatives and beneficiaries.
19. Effect on Other Agreements. This Agreement and the termination
thereof shall not affect any other agreement between the Executive and the
Company, and the receipt by the Executive of benefits thereunder.
20. Miscellaneous. The rights and duties of the parties hereunder
are personal and may not be assigned or delegated without the prior written
consent of the other party to this Agreement. The captions used herein are
solely for the convenience of the parties and are not used in construing this
Agreement. Time is of the essence of this Agreement and the performance by each
party of its or his duties and obligations hereunder.
21. Complete Agreement. This Agreement constitutes the complete
agreement between the parties hereto with respect to the subject matter hereof
and incorporates all prior discussions, agreements and representations made in
regard to the matters set forth herein. This Agreement may not be amended,
modified or changed except by a writing signed by the party to be charged by
said amendment, change or modification.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TIB FINANCIAL CORP. TIB BANK OF THE KEYS
By: _______________________________ By: ___________________________
Xxxxx X. Xxxxxx, III Xxxxx X. Xxxxxx, III
Chairman of the Board Chairman of the Board
"EXECUTIVE"
____________________________________
Xxxxxx X. Xxxx, individually
Address: ___________________________
___________________________
