EMPLOYMENT AGREEMENT
EXHIBIT
10.2
THIS
AGREEMENT between COMMERCIAL
BANK OF FLORIDA,
a
Florida banking corporation, having its main office at 0000 X.X. 00xx Xxxxxx,
Xxxxx, Xxxxxxx (the "Bank") and XXXXXXX
X. XXXX
(the
"Employee"), is entered into as of this 16th
day of
October, 2006.
R
E C I T A L S
WHEREAS,
in order to continue to expand and prosper as a significant member of the
financial, business and civic community of South Florida, the Bank needs to
retain capable, experienced senior executive personnel; and
WHEREAS,
the Employee has been and continues to be a valued senior executive of the
Bank,
and is now serving the Bank as its Senior Vice President and Chief Financial
Officer; and
WHEREAS,
it is the consensus of the Board of Directors that the experience of the
Employee, her knowledge of the affairs of the Bank and her reputation and
contacts in the industry are so valuable that assurance of her continued
services are essential for the future growth and profit of the Bank;
and
WHEREAS,
it is the desire of the Bank to retain the services of the Employee and provide
for the security of the Employee in order to allow the Employee's attentions
to
be devoted to the Bank's best interests; and
WHEREAS,
the Bank and the Employee desire to enter into this Agreement for the purpose
of
setting forth the terms and conditions under which the Bank desires to retain
the services of the Employee as Executive Vice President and Chief Financial
Officer and the Employee desires to continue in such capacity with the Bank;
and
WHEREAS,
this Agreement is intended to supersede and replace the prior Employment
Agreement between the Bank and the Employee dated February 5, 1997.
TERMS
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. EMPLOYMENT.
The
Bank hereby agrees to continue to employ the Employee, and the Employee hereby
agrees to continue to serve the Bank, on the terms and conditions set forth
herein.
2. TERMS.
The
term of this Agreement shall commence on October 16, 2006 ("Commencement Date"),
and shall terminate on October 15, 2007 ("Scheduled Termination Date"), unless
sooner terminated or further extended as hereinafter provided. On the Scheduled
Termination Date, and annually thereafter on each October 15th, the term of
the
Employee's employment shall be automatically extended for one (1) additional
year unless either party shall deliver to the other, not later than September
15th of each year, written notice of its intent not to extend this Agreement
or
this Agreement is otherwise terminated pursuant to Sections 10 or 11 hereunder.
In no event, however, shall the term of the Employee's Agreement extend beyond
the end of the calendar month in which the Employee's sixty-fifth (65th)
birthday occurs.
3. POSITION.
The
Employee shall serve as Executive Vice President and Chief Financial Officer
of
the Bank and shall have such responsibilities, duties and authority as may
from
time to time be assigned to the Employee by the Board of Directors of the Bank.
4. PLACE
OF PERFORMANCE.
In
connection with the Employee's employment by the Bank, the Employee shall be
based at the principal executive offices of the Bank in Miami-Dade County,
Florida, subject to required travel relating to the Bank's business
activities.
5. FULL
TIME LOYALTY.
The
Employee shall devote her entire time, attention and energies to the business
and affairs of the Bank, and shall not, during the term of this Agreement,
be
engaged in any other business activity, whether or not such business activity
is
pursued for gain, profit, or other pecuniary advantage, which might tend to
interfere with her duties and responsibilities as an Employee of the
Bank.
6. COMPETITIVE
ACTIVITIES.
(a) Competitive
Services.
Employee agrees that during the term of her employment hereunder, except (i)
with the express consent of the Bank's Board of Directors or (ii) in the event
of a change in control of the Bank, she will not, directly or indirectly, engage
or participate in, become a director of, or render advisory or other services
for, or in connection with, or become interested in, or make any financial
investment in any firm, corporation, business entity or business enterprise
competitive with or to any business of the Bank; provided, however, that
Employee shall not thereby be precluded or prohibited from owning passive
investments, including investment in the securities of other financial
institutions, so long as such ownership does not require her to devote any
time
to management or control of the business or activities in which she has
invested.
(b) Confidential
Information.
Employee agrees and acknowledges that by virtue of her employment hereunder,
she
will maintain an intimate knowledge of the activities and affairs of the Bank,
including trade secrets and other confidential matters. Employee shall not
at
any time, whether during the term of this Agreement or at any time thereafter,
divulge any matter pertaining to the activities and affairs of the Bank,
including without limitation, trade secrets and other confidential matters
except as may be required by law.
(c) Injunctive
Relief.
Employee agrees that breach of the covenant contained in subsections 6(a) -
6(b)
above by Employee shall constitute irreparable harm to the Bank for which Bank
does not have an adequate remedy at law, and that Bank is therefor entitled
to
immediate injunctive or other equitable relief to restrain Employee from
violating the provisions of this Agreement. The right to such injunctive and
equitable relief shall survive the termination for Cause (as hereinafter
defined) of Employee by the Bank or the voluntary termination of this Agreement
by Employee.
7. COMPENSATION.
(a) Base
Salary.
The
Bank shall pay to the Employee an annual "Base Salary" at a rate determined
by
the Board of Directors of the Bank. Such Base Salary may be paid by the Bank
in
monthly or semi-monthly installments in arrears as shall be the practice of
the
Bank. The Base Salary may be modified from time to time in accordance with
normal business practices of the Bank.
(b) Cash
Incentive Compensation.
The
Employee may be eligible for a bonus or any additional compensation as
determined by the Board of Directors of the Bank or an authorized committee
thereof, which compensation may be determined upon such measures of performance
as shall be in the sole discretion of the Board of Directors or an authorized
committee thereof.
(c) Other
Compensation.
Payment
of the Base Salary (as set forth in subsection 7(a) hereof) shall not in any
way
limit or reduce any other obligation of the Bank hereunder, and no other
compensation, benefit, or payment hereunder shall in any way limit or reduce
the
obligation of the Bank to pay the Employee's Base Salary hereunder.
8. EXPENSES.
During
the term of the Employee's employment hereunder, the Employee shall be entitled
to receive prompt reimbursement for all reasonable expenses incurred by the
Employee in performing services hereunder, including all expenses of travel
and
living expenses while away on business at the request of and in the service
of
the Bank, provided that such expenses are incurred and accounted for in
accordance with the policies and procedures of the Bank then in effect, as
modified from time to time.
9. BENEFITS.
(a) Vacations.
The
Employee shall be entitled each year to three (3) weeks paid vacation, and
normally accepted Bank holidays.
(b) Group
Medical Coverage.
The
Bank shall provide group medical insurance coverage to the Employee and her
family under a plan for Employee of the Bank, and such plan shall include
reasonable coverage for medical, hospital, surgical and major medical expenses.
(c) Other
Benefits.
The
Employee shall have the right to participate in any pension and retirement
plans
and arrangements, supplemental pension and retirement plans and arrangements,
life insurance and health-and-accident plans and arrangements, medical insurance
plans, disability plans, survivor income plans, relocation plans and vacation
plans which are now or may in the future become available to employees of the
Bank, subject to and on the basis consistent with the terms, conditions and
overall administration of such plans and arrangements. The Employee may, in
the
sole discretion of the Board of Directors, participate in any stock option
plans, employee stock ownership plans or other similar plans and arrangements
of
the Bank on the basis consistent with the terms, conditions and overall
administration of such plans and arrangements. Nothing paid under any such
plan
or arrangement presently in effect or available in the future shall be deemed
to
be in lieu of the Employee's Base Salary and/or Cash Incentive Compensation,
to
be paid hereunder.
10. PROPER
TERMINATION.
The
Employee's employment hereunder may be properly terminated without any breach
of
this Agreement only under the following circumstances.
(a) Death.
This
Agreement shall be terminated upon the Employee's death.
(b) Disability.
If, as
a result of the Employee's incapacity due to physical or mental illness, the
Employee shall have been absent from her full-time duties as described hereunder
for the entire period of three (3) consecutive months, the Bank may terminate
the Employee's employment hereunder. In the event the Employee shall receive
any
disability benefits, under any disability policy provided to the Employee by
the
Bank in accordance with any Bank policy then in effect, prior to the expiration
of said three-month period, the amount of such disability payments shall be
deducted from any amounts due to the Employee hereunder.
(c) Cause.
(i) Definition
of "Cause."
The
Bank may terminate the Employee's employment hereunder for "Cause." "Cause"
shall consist, by way of illustration and not limitation, of one or more of
the
following:
(1) conviction
of a felony;
(2) drunkenness;
(3) drug
or
substance abuse;
(4) theft
or
embezzlement;
(5) a
willful
commission by the Employee of an act of dishonesty or fraud;
(6) a
breach
of fiduciary duty involving personal profit or intentional failure to perform
her duties hereunder;
(7) or
willful violation of any law, rule or regulation (other than traffic violations
or similar offenses); or
(8) failure
by the Employee to comply with any material provision of this Agreement, which
failure has not been cured within ten (10) days after notice of such
non-compliance has been given by the Bank to the Employee.
(ii) Definition
of "Willful."
For
purposes of this subsection, an act, or failure to act, on the Employee's
part
shall be considered "willful" if done, or omitted to be done, by her not
in good
faith and without reasonable belief that her action or omission was in the
best
interests of the Bank.
(iii) Procedures
to be Followed.
Notwithstanding the foregoing, the Employee shall not be deemed to have been
terminated for Cause without: (i) reasonable notice to the Employee setting
forth the reasons for the Bank's intention to terminate for Cause; (ii) an
opportunity for the Employee to be heard before the Board of Directors of the
Bank; and
(iii)
delivery to the Employee of a Notice of Termination as provided for in Section
12 hereof from the Board of Directors of the Bank finding that in the opinion
of
the Board of Directors of the Bank, the Employee was guilty of conduct set
forth
above in the preceding sentence, and specifying the particulars thereof in
detail.
11. TERMINATION
BY THE EMPLOYEE.
(a) Good
Reason.
The
Employee may terminate her employment hereunder for Good Reason. For purposes
of
this Agreement, "Good Reason" shall mean:
(i) a
failure
by the Bank to comply with any material provision of this Agreement, which
failure has not been cured within thirty (30) days after notice of such
non-compliance has been given by the Employee to the Bank;
(ii) an
assignment to the Employee of any duties inconsistent with, or a significant
reduction in the nature or scope of the Employee's authorities, duties or
responsibilities from, those authorities, duties and responsibilities held
by
the Employee as of the date hereof and as increased from time to time;
(iii) a
reduction in total remuneration of ten percent (10%) or more (by reduction
of
Base Salary, reduction of rate of Cash Incentive Compensation or reduction
of
fringe benefits, unless any such fringe benefits are withdrawn from all other
executives as a class);
(iv) the
performance of any other act by the Bank which is designed to prevent and does
prevent the Employee from properly performing the authorities, duties and
responsibilities of her employment hereunder; or
(v) the
occurrence of a change in control of the Bank (as defined below).
(b) Change
in Control.
For
purposes of this Agreement, a "change in control of the Bank" shall be deemed
to
have occurred if such a change in control would be required to be reported
in
response to Item 5(f) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); provided that, without
limitation, such a change in control shall be deemed to have occurred if any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act),
other than the Bank, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Bank
representing 25% or more of the combined voting power of the Bank's then
outstanding securities.
12. NOTICE
OF TERMINATION AND EFFECTIVE DATE.
Any
proper termination of the Employee's employment by the Bank or by the Employee
(other than termination pursuant to subsection 10(a) (Death) above) shall be
communicated by written Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the reason for termination and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for such
termination.
13. COMPENSATION
UPON TERMINATION; EFFECTIVE DATE.
(a) Death
of Employee.
If the
Employee's employment is terminated pursuant to Section 10(a) (Death), the
Employee's employment shall be deemed terminated as of the date of her death
and
the Bank shall be obligated to pay to the Employee's estate all amounts payable
under Sections 7(a)-(b), through and including the date of her
death.
(b) Disability.
If the
Employee's employment is properly terminated pursuant to Section 10(b)
(Disability), the Employer's employment shall be deemed terminated as of the
earlier of (1) the date on which payments commence pursuant to any disability
policy provided by the Bank; or (2) the expiration of three (3) consecutive
months of the Employee's incapacity due to physical or mental illness, as set
forth in subsection 10(b) above (provided that the Employee shall not have
returned to the performance of duties on a full-time basis during such three
(3)
month period). In such event, the Bank shall be obligated to pay to the Employee
all amounts payable under Sections 7(a) - (b), through and including such date
of termination.
(c) Termination
for Cause.
If the
Employee's employment is properly terminated pursuant to Section 10(c) (Cause),
the Employee's employment shall be deemed terminated as of the date specified
in
the Notice of Termination and the Bank shall be obligated to pay to the Employee
all amounts payable under Sections 7(a) - (b), through and including such date
of termination.
(d) Good
Reason.
If this
Agreement is terminated by the Employee pursuant to Subsections 11(a)(i) through
11(a)(iv) hereof, the Employee's employment shall be deemed terminated as of
the
date on which a Notice of Termination is given, or the date specified therein,
whichever shall be later, and the Bank shall pay, in cash, to the Employee,
within twenty (20) days of the receipt of the Notice of Termination, an amount
equal to all amounts payable to Employee under Sections 7(a) - (b) hereof
through and including the Scheduled Termination Date of this Agreement, as
extended, regardless of the early termination of the Employee. Such payment,
when received, shall be in lieu of fringe benefits, including insurance and
similar benefits, but shall not affect any rights which the Employee may have
pursuant to any 401(k) plan or stock option plan.
(e) Change
in Control.
If this
Agreement is terminated by the Employee pursuant to Subsection 11(a)(v) above,
the Employee's employment shall be deemed terminated as of the date on which
a
Notice of Termination is given, or the date specified therein, whichever shall
be later, and the Bank shall pay, in cash, to the Employee, within twenty (20)
days of receipt of the Notice of Termination, an amount equal to 150% of the
Employee's Salary and Cash Incentive Compensation (pursuant to Sections 7(a)
-
(b)), such amounts to be determined by reference to the Employee's then current
Salary and the aggregate Cash Incentive Compensation last paid to or earned
by
the Employee in the twelve months immediately preceding such termination. In
addition, at the sole discretion of the Employee, the Company shall either:
(i) continue
to provide, for a period of 18 months immediately following termination, the
benefits described in subsections 9(b) and 9(c) hereof; or
(ii) pay
to
the Employee, in a lump sum payment, an amount equal to 30% of the Employee's
Salary and Cash Incentive Compensation, such amounts to be determined by
reference to the Employee's then current Salary and aggregate Cash Incentive
Compensation last paid to or earned by the Employee in the twelve months
immediately preceding termination. Such payment shall be deemed to be a payment
in lieu of the benefits described in (i) above.
(f) Other.
If the
Employee's employment hereunder is terminated by the Employee other than
pursuant to Subsections 11(a)(i) through 11(a)(vi) above, the Employee's
employment shall be deemed terminated as of the date on which a Notice of
Termination is given, or the date specified therein, whichever shall be later,
and the Bank shall be obligated to pay to the Employee all amounts payable
under
Sections 7(a)-(b), through and including such date of termination. From and
after such date of termination, the Employee shall not be entitled to any
further compensation benefits, including insurance and similar benefits
hereunder or otherwise.
(g) Gross-up
Provisions.
In the
event that the total amount of payments made under this Agreement on account
of
termination under Subsection 11(a)(v) above or the total amount of payments
made
under any other agreement or arrangement between the Employee and the Company,
whether written or oral, including any combination of payments made pursuant
to
different agreements, arrangements or plans equals or exceeds the aggregate
present value of three times the "base amount," the Company shall indemnify
the
Employee for the amount of any surtax imposed pursuant to Section 280G and
Section 4999 of the Internal Revenue Code of 1986 as amended along with an
amount intended to reimburse the Employee for income tax imposed on such payment
(together, the "Gross-up payment"). The Company intends, by the payment of
such
indemnification, to make the Employee whole and to put the Employee in the
same
position as if the payments provided for under Section 13(e) hereof, this
Section 13(g) and otherwise, were made, and no additional surtaxes or other
income taxes of any kind were required to be paid with respect to such payments.
The total amount due to the Employee pursuant to this section shall be
calculated using the following formula:
G=
(0.2P-0.2B)/(0.8-R) where :
G
is the
Gross-up Payment
P
is the
amount of the Parachute Payment
B
is the
Base Amount
R
is the
aggregate applicable income tax rate
"Base
amount" means the average annualized compensation income from the Company
includible in the Employee's gross income for Federal income tax purposes over
the five-year period preceding the year in which the Employee's employment
is
terminated. This paragraph, and the language therein, shall be interpreted
consistently with Section 280G of the Internal Revenue Code of 1986, as amended,
and any regulations thereunder.
14. SUCCESSORS;
BINDING AGREEMENT.
(a) The
Bank
will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Bank, by agreement in form and substance satisfactory to the
Employee, to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Bank would be required to perform it
if
no such succession had taken place. Failure of the Bank to obtain such agreement
prior to a date which is thirty (30) days prior to the effectiveness of any
such
succession shall be a breach of this Agreement and shall entitle the Employee
to
compensation from the Bank in the same amount and on the same terms as she
would
be entitled to hereunder if she terminated her employment for Good Reason
pursuant to any of Subsections 11(a)(i) through 11(a)(v), except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination. As used in this
Agreement, "Bank" shall mean the Bank as hereinbefore defined and any successor
to its business and/or assets as aforesaid which executes and delivers the
agreement provided for in this Subsection 14(a) or which otherwise become bound
by all the terms and provisions of this Agreement by operation of
law.
(b) This
Agreement and all rights of the Employee hereunder shall inure to the benefit
of
and be enforceable by the Employee's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If the Employee should die while any amounts would still be payable
to
her hereunder if she had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement
to
the Employee's devisee, legatee, or other designee or, if there be no such
designee, to the Employee's estate.
15. NOTICE.
For the
purpose of this Agreement, notices, demands and all other communications
provided for in the Agreement shall be in writing and shall be deemed to have
been duly given when delivered by private or public courier or (unless otherwise
specified) mailed by United States registered mail, return receipt requested,
postage prepaid, addressed as follows:
If
to the
Employee: Xxxxxxx
X. Xxxx
_________________________
_________________________
If
to the
Bank: Commercial
Bank of Florida
0000
X.X.
00xx Xxxxxx
Xxxxx,
Xxxxxxx 00000
16. MISCELLANEOUS.
No
provisions of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing signed by the Employee
and by such officer of the Bank as may be specifically designated by the Board
of Directors of the Bank. No waiver by either party hereto at any time of any
breach by the other party hereto, or compliance with, any condition or provision
of this Agreement to be performed by such other party shall be deemed a waiver
of similar or dissimilar provisions or conditions at the same or at any prior
or
subsequent time. No agreements or representations, oral or otherwise, express
or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Florida.
17. VALIDITY.
The
invalidity or unenforceability of any provision or provisions of this Agreement
shall not affect the validity or enforceability of any other provisions of
this
Agreement, which shall remain in full force and effect.
18. COUNTERPARTS.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together will constitute one and
the
same instrument.
19. ARBITRATION.
Any
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by binding arbitration, conducted before a panel of
three
arbitrators, in Miami, Florida, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
20. LEGAL
FEES AND COSTS.
The
prevailing party in any dispute or controversy arising under or in connection
with this Agreement shall be entitled to recover from the other party all
attorney's fees (including paralegal fees) and arbitration and/or court costs
incurred by the prevailing party in connection with such dispute or
controversy.
21. SUCCESSION.
This
Agreement is intended to supersede, in their entirety, any and all employment
agreements, and all amendments thereto, between the Employee and the Bank and
between the Employee and the Bank.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
