Exhibit 10.5
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SEPARATION AGREEMENT
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This is a Separation Agreement ("the Agreement") by and
between XXXXXX X. XXXXXXX ("the Employee"), on the one hand, and
COAST FINANCIAL HOLDINGS, INC. ("CFHI"), and COAST BANK OF
FLORIDA, a wholly-owned subsidiary of CFHI (the "Bank") (CFHI and
the Bank are referred to collectively herein as the
"Corporation"), on the other hand.
Preliminary Statement
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The Employee is currently (a) employed as President and
Chief Executive Officer of CFHI, and is currently serving as a
member of the board of directors of CFHI, (b) a member of the
board of directors of the Bank, and (c) employed as the Chief
Executive Officer and Treasurer of, and serves on the board of
directors of, Coast Financial Partners, Inc., a wholly-owned
subsidiary of the Bank ("CFP"). However, his business
relationship with the Corporation shall terminate in the near
future as a result of the Employee's resignation. The Employee
and the Corporation are parting on amicable terms, and the
Employee has requested severance pay from the Corporation. The
Corporation is willing to provide severance pay, even though it
has no legal obligation to do so in the event of the Employee's
resignation. The Corporation also has asked the Employee to
release any claims he might have against the Corporation. There
are other agreements regarding the Employee's separation from the
Corporation, and the parties have decided that it would be in
their mutual best interest if all of their agreements and
commitments were reduced to writing. Accordingly, in
consideration of the mutual promises in this Agreement, the
sufficiency of which are hereby acknowledged by both parties, it
is agreed as follows:
Terms and Conditions
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1. Employee's Resignation. The Employee agrees to resign his
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employment with CFHI, and from all of his Corporation positions,
including his membership on the Board of Directors of CFHI, his
membership on the board of directors of the Bank, and his officer
and director positions with CFP. The Corporation agrees to
accept his resignation, which will be effective as of the date it
is submitted to the Corporation. The Employee shall submit a
signed letter of resignation to the Corporation, in the form
attached as Exhibit "A" to this Agreement, thereby resigning his
Corporation employment and positions, on or promptly after the
Effective Date of this Agreement. The "Effective Date" of this
Agreement shall be the first day after the expiration of the
revocation period provided by Section 13 of this Agreement.
2. Severance Pay. Although there is no policy of the
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Corporation establishing a severance pay plan for its employees,
or otherwise making severance pay commitments to such employees,
CFHI agrees to pay the Employee his base salary and car allowance
through May 3, 2004, less all payroll taxes required to be
withheld by law (this payment shall be referred to collectively
hereinafter as "Severance Pay"). The Employee's Severance Pay
shall be paid at regular payroll intervals, and shall not include
any bonuses or compensation for club and organization
memberships, or the value of any other benefits associated with
employment. The Employee and the Corporation both acknowledge
that but for the Employee's execution of
the Agreement, CFHIwould not have paid the Employee any Severance
Pay whatsoever; the willingness to provide the Employee with
Severance Pay is in consideration of the Employee's release of
claims and any other promises set forth as part of the Agreement.
No monetary compensation shall be paid to the Employee by the
Corporation, after the Effective Date, except as provided by this
Agreement. No benefits shall be provided to the Employee by the
Corporation after the Effective Date, other than group insurance
benefits continued pursuant to COBRA, at the Employee's election
and expense except to the extent otherwise provided by Section 3
of this Agreement.
3. Reimbursement of COBRA Expenses. CFHI agrees to pay
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the Employee's costs associated with continuation of his group
health insurance benefits, through May 3, 2004, in the event that
the Employee elects COBRA insurance continuation.
4. Modification of Employee Stock Option Rights. The
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Employee has been granted certain stock option rights under four
separate stock option agreements pursuant to which he is entitled
to purchase shares of common stock of CFHI. The parties agree to
amend each of the Employee's stock option agreements to (a)
accelerate any existing vesting periods established in any such
agreement, and (b) to extend the expiration dates of each the
stock options agreements for the full time permitted under
Section 6.6 of the Coast Financial Holdings, Inc. 2003 Amended
and Restated Stock Option Plan.
5. Bank's Release of Employee from Non-Compete Commitment.
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The Corporation and the Employee expressly agree that the
Employee shall not be bound by the Agreement Not to Compete set
forth in Section 9.3 of the Employment Agreement by and between
Coast Bank of Florida and Xxxxxx X. Xxxxxxx, dated March 29,
2000, as modified by a contract entitled Modification of
Employment Agreement, dated March 31, 2003 ("the Modified
Employment Agreement").
6. Joint Press Release. The Employee and the Corporation
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both agree to issue, jointly, the Joint Press Release attached as
Exhibit "B." This Joint Press Release shall be issued to the
media on or promptly after the Effective Date of this Agreement.
7. Non-Disparagement Commitments. The Employee agrees
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that he will not disparage CFHI, the Bank, or CFP, in any manner
harmful to either of them, or to their business operations, or to
their reputation. CFHI, the Bank, and CFP agree that no member
of their Board of Directors shall disparage the Employee, in any
manner harmful to him, or to his reputation. Provided, however,
that nothing herein is intended in any way to limit any party's
right to provide information that might be regarded as
disparaging in connection with the Corporation reports, audits,
examinations, or financial statements, or where required pursuant
to subpoena or other due process of law.
8. Return of Bank Documents and Property; Employee's
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Commitment to Maintain Confidentiality of Proprietary
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Information. The Employee agrees to return to the Corporation
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all Corporation documents, equipment, materials and other
Corporation property, specifically including his Corporation
cellular telephone, credit cards, and keys, on or prior to the
Effective Date. The Employee has knowledge of information
relating to the Corporation which is confidential and proprietary
in nature; he agrees to maintain the confidentiality of all such
confidential and proprietary information of the Corporation.
9. Release of Claims by the Employee. In consideration of
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the promises made by CFHI and the Bank in this Agreement, the
Employee, on the Employee's own behalf, and on
behalf of theEmployee's relatives and heirs, executors,
administrators and assigns, irrevocably and unconditionally
releases, waives, acquits, and forever discharges CFHI, the Bank,
and CFP, their respective current and former officers, directors,
shareholders and employees, and their agents, officials,
representatives, attorneys, insurance carriers and any other entity
related to or affiliated with them (collectively, "the Bank
Releasees"), of and from any and all manner of actions, suits,
claims of any kind or nature whatsoever, known or unknown, in law
or equity, including, without limitation of the foregoing general
terms, any claims against any of the Bank Releasees arising from
any alleged violation by any of the Bank Releasees of any federal,
state or local statutes or ordinances, including, but not limited
to, Title VII of the Civil Rights Act of 1964, as amended, the Age
Discrimination in Employment Act, as amended, ERISA, the
Americans with Disabilities Act, the Civil Rights Act of 1991,
the Equal Pay Act, the Florida Civil Rights Act, and any
applicable municipal ordinance prohibiting employment
discrimination, and any other employment discrimination laws, as
well as any other claims based on constitutional, statutory,
common law or regulatory grounds, arising or accruing on or prior
to the Effective Date of this Agreement, including any claim
based on a theory that his resignation amounted to a constructive
or actual discharge, and any claim for breach of the Modified
Employment Agreement; provided, however, that nothing herein is
intended to waive or release any claim the Employee may have in
the future relating to any allegation of breach of this Agreement
by CFHI or the Bank.
10. Corporation's Release of Employee. In consideration of
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the promises made by the Employee in this Agreement, CFHI and the
Bank, on their own behalf, and on behalf of their successors and
assigns, irrevocably and unconditionally release, waive, acquit,
and forever discharge the Employee, his heirs, executors,
administrators and assigns (collectively, the "Employee
Releasees"), of and from any and all manner of actions, suits,
claims of any kind or nature whatsoever, in law or equity, that
are known to the Board of Directors of CFHI, or to the Board of
Directors of the Bank, including, without limitation of the
foregoing general terms, any claims against any of the Employee
Releasees based on constitutional, statutory, common law or
regulatory grounds, arising or accruing on or prior to the
Effective Date of this Agreement; provided, however, that nothing
herein is intended to waive or release any claim that CFHI or the
Bank may have in the future relating to any allegation of breach
of this Agreement by the Employee.
11. Employee Acknowledgements. The Employee acknowledges
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being advised by the Corporation in writing, before signing the
Agreement, that he should consult with counsel regarding this
Agreement. The Employee acknowledges being given a period of at
least 21 days within which to consider the Agreement, and that
the Employee has knowingly and voluntarily entered into the
Agreement in consideration of the Severance Pay provided by the
Corporation.
12. Irrevocable Termination of Employment Relationship.
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The Employee agrees and recognizes that the Employee's
relationship with the Corporation will be permanently and
irrevocably severed by the Employee's resignation, and that
neither CFHI nor the Bank nor any of their subsidiaries,
successors will have any obligation, contractual or otherwise, to
rehire, recall, or re-employ the Employee in the future.
13. Employee's Revocation Right and Effective Date of the
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Agreement. For a period of seven days following the execution of
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the Agreement, the Employee may revoke or cancel the Agreement,
and the Agreement shall not become effective or enforceable until
this revocation period has expired. In other words, the Agreement
shall automatically become effective in seven
days following execution unless the Employee revokes it first.
The Employee should provide the Corporation with a signed, written
notice of revocation if the Employee desires to exercise this right,
so there will be appropriate documentation of revocation.
14. Disclaimer of Liability. The Agreement does not
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constitute and shall not be construed as an admission of
liability or wrongdoing by CFHI or the Bank, or by the Bank
Releasees, and the Corporation expressly denies that it has done
anything wrong or unlawful in connection with the Employee's
employment.
15. Entire Agreement. This Agreement contains the entire
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agreement between or among the parties with regard to the matters
set forth herein, and supersedes any and all prior negotiations,
correspondence, understandings, and agreements between or among
the parties with respect to termination of the Employee's
employment, specifically including the Modified Employment
Agreement, which is hereby declared null and void to the extent
it conflicts in any respect with this Agreement. There shall be
no modifications or amendments to this Agreement, except by
instrument in writing executed by authorized representatives of
the parties hereto.
16. Agreement Inures to the Benefit. This Agreement shall
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be binding upon and shall inure to the benefit of the parties
hereto and their respective officers, directors, agents,
representatives, employees, servants, affiliates, attorneys,
heirs, successors, assigns, or other representatives, if any, of
each of the parties hereto.
17. Execution of Counterparts; Governing Law. This
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Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together
shall constitute one and the same instrument. To the extent that
the law of any State may he applicable to construction of the
Agreement, it shall be governed by the law of the State of
Florida.
18. Full Knowledge and Volition. The Employee acknowledges
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executing this Agreement freely and voluntarily and knowingly and
without coercion or threats of any kind. The Employee also
acknowledges and confirms that the only considerations for
signing the Agreement are the terms and conditions stated in the
Agreement, that no other promise or agreement of any kind, except
those set forth in the Agreement, has been made by any person to
cause the Employee to sign the Agreement, and that the Employee
fully understands its meaning and intent. Employee also
acknowledges being informed that various federal, state and local
laws prohibit employment discrimination based on age, sex, race,
color, national origin, religion, disability, and marital status,
and that these laws are enforced by the Equal Employment
Opportunity Commission and/or other federal, state and local
agencies. The Employee also acknowledges being advised to discuss
the Agreement with the Employee's counsel and being told that in
any event the Employee should thoroughly review and understand
the Agreement before signing it.
WHEREFORE, the parties agree and stipulate to the preceding
terms and conditions of separation.
THE EMPLOYEE COAST FINANCIAL HOLDINGS, INC.
/s/ Xxxxxx Xxxxxxx By:/s/ Xxxxx X. Xxxxxx
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XXXXX X. XXXXXXX
Its Chairman of the Board
Dated: February 17, 2004 Dated: February 17, 2004
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COAST BANK OF FLORIDA
By:/s/ Xxxxx X. Xxxxxx
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Its Chairman of the Board
Dated: February 17, 2004
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