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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of the _____ day of ____________________
1998, by and between Florida Banks, Inc., a Florida corporation (the "Company"
or "Employer") and Xxxx X. XxXxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company intends to seek
approval from the Board of Governors of the Federal Reserve System (the "Fed"),
the Comptroller of the Currency ("OCC") and the Federal Deposit Insurance
Corporation ("FDIC") to acquire a national bank in Tampa, Florida (the "Bank")
and to expand the Company's banking business throughout Florida; and
WHEREAS, the Board of Directors of the Company intends to approve the
sale in a firm underwritten public offering of an amount of Company common stock
requisite to expanding the Company's banking business (the "Initial Public
Offering"); and
WHEREAS, Executive is willing to become the President of the Tampa
Bay Market Area of the Bank subject to the successful completion of the Initial
Public Offering and in accordance with the terms and conditions hereinafter set
forth;
NOW, THEREFORE, for and in consideration of the mutual premises and
covenants herein contained, the parties hereto agree as follows:
1. EMPLOYMENT. Employer employs Executive and Executive accepts
employment upon the terms and conditions set forth in this Agreement; provided,
however, that the provisions of this Agreement shall become effective upon
commencement of the term of the Agreement set forth in Section 2 hereof.
Further, upon the commencement of the term of the Agreement, Executive cancels
and terminates any and all previous employment agreements entered into with the
First National Bank of Tampa and all provisions contained in any such employment
agreements are, as of the commencement of the term hereof, null and void and of
no further force or effect.
2. TERM. The term of employment of Executive under this Agreement
shall be the three year period commencing on the date of Closing of the Initial
Public Offering and ending on the last day of the thirty sixth (36th) month
thereafter.
3. COMPENSATION. The Company shall pay Executive a minimum annual
base salary of $135,000, payable in semi-monthly installments beginning the
first pay period immediately subsequent to the closing of the Initial Public
Offering. Salary payments shall be subject to withholding and other applicable
taxes.
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At the first Board of Directors Meeting subsequent to the
Closing of the Initial Public Offering Executive shall be granted options to
purchase 60,000 shares of common stock of the Company which options shall vest
on the following schedule: (i) options to purchase 20,000 shares shall vest and
become exercisable on the first anniversary of the date of grant; (ii) options
to purchase 20,000 shares shall vest and become exercisable on each of the
second and third anniversaries of the date of grant. All such options shall be
exercisable at a per share price equal to the per share price at which the
Company sold its shares of common stock in the Initial Public Offering, shall be
exercisable in whole or in part for a period of ten (10) years from the date of
grant and shall be subject to such other customary terms and conditions as set
forth in the option agreement which shall be delivered to Executive by the
Company as soon as practicable after the date of grant.
4. TITLE AND DUTIES. Executive shall be the President of the Tampa
Bay Market Area of the Bank and shall run the day-to-day activities of the Bank
in the Tampa Market and oversee the Bank in the Tampa Market within the
framework of the approved annual budget, and with the sound system of internal
controls and in compliance with the policies of the Board of Directors of the
Bank and all applicable laws and regulations.
5. EXTENT OF SERVICES. Executive shall devote his entire time,
attention and energies to the business of Employer and shall not during the term
of this Agreement be engaged in any other business activity which requires more
than nominal attention or participation of Executive during normal business
hours of Employer, recognition being given to the fact that Executive is
expected on occasion to participate in client development after normal business
hours. However, Executive may invest his assets in such form or manner as will
not require his active services in the operation of the affairs of the companies
in which such investments are made but which may require a nominal amount of
attention during business hours. Executive shall notify Employer of any
significant participation by him in any trade association or similar
organization and the Board of Directors shall approve in advance Executive's
service as a director of any entity or organization, other than service as
President and director of Andros Associates, Inc., which service is hereby
approved by the Board of Directors of the Company.
6. WORKING FACILITIES. Executive shall have such assistants,
perquisites, facilities and services as are suitable to his position and
appropriate for the performance of his duties, including membership in a country
club and business persons' luncheon club (including dues and assessments) as
mutually agreed upon by Executive and the Company.
7. EXPENSES. Executive may incur reasonable expenses for promoting
the business of the Employer, including expenses for entertainment, travel, and
similar items. Executive will be reimbursed for all such expenses upon
Executive's periodic presentation of an itemized account of such expenditures.
8. VACATIONS. Executive shall be entitled each year to a vacation in
accordance with the personnel policy established by the Company's Board of
Directors, during which time Executive's compensation shall be paid in full.
9. ADDITIONAL COMPENSATION. As additional consideration paid to
Executive, Executive shall be provided with health, hospitalization, disability
and a minimum of $135,000 in term life
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insurance. In addition, Executive shall be provided with an automobile for his
use or an automobile allowance, in accordance with the automobile policy
established by the Company's Board of Directors.
10. CHANGE IN CONTROL OF THE COMPANY. (a) In the event of a "change
in control" of the Company, as defined herein, Executive shall be entitled, for
a period of thirty (30) days from the date of closing of the transaction
effecting such change in control and at his election, to give written notice to
Employer of termination of this Agreement and to receive a cash payment equal to
two hundred ninety-nine percent (299%) times the compensation, including bonus,
if any, received by Executive in the one-year period immediately preceding the
change in control. The severance payments provided for in this Section 10(a)
shall be paid in cash, commencing not later than ten (10) days after the date of
notice of termination by Executive under this Section 10 or ten (10) days after
the date of closing of the transaction effecting the change in control of the
Company, whichever is later.
(b) In addition, if Executive elects to terminate this
Agreement pursuant to this Section 10, Executive shall further be entitled, in
lieu of shares of Common Stock of the Company issuable upon exercise of options
to which Executive is entitled under this Agreement, an amount in cash or Common
Stock of the Company (or any combination thereof) as Executive shall in his
election designate equal to the excess of the fair market value of the Common
Stock as of the date of closing of the transaction effecting the change in
control over the per share exercise price of the warrants held by Executive,
times the number of shares of Common Stock subject to such warrants (whether or
not then fully exercisable). The fair market value of the Common Stock shall be
equal to the higher of (i) the value as determined by the Board of Directors of
the Company if there is no organized trading market for the shares at the time
such determination is made, or (ii) the closing price (or the average of the bid
and asked prices if no closing price is available) on any nationally recognized
securities exchange or association on which the Company's shares may be quoted
or listed, or (iii) the highest per share price actually paid for Common Stock
in connection with any change in control of the Company. The severance payments
provided for in this Section 10(b) shall be paid in full not later than ten (10)
days after the date of notice of termination by Executive under this Section 10
or ten (10) days after the date of closing of the transaction effecting the
change in control of the Company, whichever is later.
(c) For purposes of this Section 10, "change in control" of the
Company shall mean:
(i) any transaction, whether by merger, consolidation,
asset sale, tender offer, reverse stock split, or
otherwise, which results in the acquisition or
beneficial ownership (as such term is defined under
rules and regulations promulgated under the
Securities Exchange Act of 1934, as amended) by any
person or entity or any group of persons or entities
acting in concert, of 50% or more of the outstanding
shares of Common Stock of the Company;
(ii) the sale of all or substantially all of the assets of
the Company; or
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(iii) the liquidation of the Company.
11. TERMINATION. (a) For Cause. This Agreement may be terminated by
the Board of Directors of the Company without notice and without further
obligation than for monies already paid, for any of the following reasons:
(i) failure of Executive to follow reasonable written
instructions or policies of the Board of Directors of
the Company or the Bank;
(ii) receipt by the Company or the Bank of written notice
from any bank regulatory agency having jurisdiction
over the Company or the Bank that such agency has
criticized Executive's performance or his area of
responsibility;
(iii) gross negligence or willful misconduct of Executive
materially damaging to the business of the Company or
Bank during the term of this Agreement, or at any
time while he was employed by the Company prior to
the term of this Agreement, if not disclosed to the
Company prior to the commencement of the term of this
Agreement; or
(iv) conviction of Executive during the term of this
Agreement of a crime involving breach of trust or
moral turpitude.
In the event that the Bank discharges Executive alleging
"cause" under this Section 11(a) and it is subsequently determined judicially
that the termination was "without cause," then such discharge shall be deemed a
discharge without cause subject to the provisions of Section 11(b) hereof. In
the event that the Bank discharges Executive alleging "cause" under this Section
11(a), such notice of discharge shall be accompanied by a written and specific
description of the circumstances alleging such "cause." The termination of
Executive for "cause" shall not entitle the Bank to enforcement of the
non-competition and non-solicitation covenants contained in Section 13 hereof.
(b) Without Cause.
(i) The Bank may, upon thirty (30) days' written
notice to Executive, terminate this Agreement
without cause at any time during the term of this
Agreement upon the condition that Executive shall
be entitled, as liquidated damages in lieu of all
other claims, to the payment of Executive's
minimum annual base salary for one year. The
severance payments provided for in this Section
11(b) shall commence not later than thirty (30)
days after the actual date of termination of
employment of Executive. The termination of
Executive "without cause" shall not entitle the
Bank to enforcement of the non-competition and
non-solicitation covenants contained in Section
13 hereof.
(ii) Executive may upon thirty (30) days' written
notice to Employer terminate this Agreement
without cause at any time during the term of this
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Agreement. In the event of termination of this
Agreement by Executive, the Bank shall have no
further obligation to Executive than for monies
paid and the Bank shall be entitled to
enforcement of the non-competition and
non-solicitation covenants contained in Section
13 hereof.
12. DEATH OR DISABILITY. In the event of Executive's death, Employer
shall pay to Executive's designated beneficiary, or, if Executive has failed to
designate a beneficiary, to his estate, an amount equal to Executive's base
salary pursuant to Section 3(b) hereof through the end of the month in which
Executive's death occurred. Such compensation shall be in lieu of any other
benefits provided hereunder, except that (i) in the event of a change in control
of the Company as defined herein, Executive's designated beneficiary or his
estate, as the case may be, shall be entitled to the benefits of Section 10(b)
hereof, and (ii) any benefit payable pursuant to Section 3(b) shall be prorated
and made available to Executive in respect of any period prior to his death. The
Bank may maintain insurance on its behalf to satisfy in whole or in part the
obligations of this Section 12.
In the event of Executive's disability, as hereinafter defined,
Employer shall pay to Executive the base salary then in effect until such time
as benefits are paid under the disability insurance policy to be maintained by
the Company covering Executive. Executive shall be deemed disabled if, by reason
of physical or mental impairment, he is incapable of performing his duties
hereunder for a period of 180 consecutive days.
13. NON-COMPETITION AND NON-SOLICITATION. (a) Executive acknowledges
that he has performed services or will perform services hereunder which directly
affect Employer's business. Accordingly, the parties deem it necessary to enter
into the protective agreement set forth below, the terms and condition of which
have been negotiated by and between the parties hereto.
(b) In the event of termination of employment under this
Agreement by action of Executive pursuant to 11(b)(ii) prior to the expiration
of the term of this Agreement, Executive agrees with Employer that through the
actual date of termination of the Agreement, and for a period of twelve (12)
months after such termination date, Executive shall not, without the prior
written consent of Employer, within Hillsborough and Pinellas Counties, Florida
either directly or indirectly, serve as an executive officer of any bank, bank
holding company or other financial institution.
(c) The covenants of Executive set forth in this Section 13 are
separate and independent covenants for which valuable consideration has been
paid, the receipt, adequacy and sufficiency of which are acknowledged by
Executive, and have also been made by Executive to induce Employer to enter into
this Agreement. Each of the aforesaid covenants may be availed of or relied upon
by Employer in any court of competent jurisdiction, and shall form the basis of
injunctive relief and damages including expenses of litigation (including but
not limited to reasonable attorney's fees) suffered by Employer arising out of
any breach of the aforesaid covenants by Executive. The covenants of Executive
set forth in this Section 13 are cumulative to each other and to all other
covenants of Executive in favor of Employer contained in this Agreement and
shall survive the termination of this Agreement for the purposes intended.
Should any covenant, term, or condition contained in this Section 13 become or
be declared invalid or unenforceable by a court of competent jurisdiction, then
the parties may request that such court
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judicially modify such unenforceable provision consistent with the intent of
this Section 13 so that it shall be enforceable as modified, and in any event
the invalidity of any provision of this Section 13 shall not affect the validity
of any other provision in this Section 13 or elsewhere in this Agreement.
14. NOTICES. Any notice required or desired to be given under this
Agreement shall be deemed given if in writing sent by certified mail to his
residence in the case of Executive, or to its principal office in the case of
Employer.
15. WAIVER OF BREACH. The waiver by Employer of a breach of any
provision of this Agreement by Executive shall not operate or be construed as a
waiver of any subsequent breach by Executive. No waiver shall be valid unless in
writing and signed by an authorized officer of Employer.
16. ASSIGNMENT. Executive acknowledges that the services to be
rendered by him are unique and personal. Accordingly, Executive may not assign
any of his rights or delegate any of his duties or obligations under this
Agreement. The rights and obligations of Executive under this Agreement shall
inure to the benefit of and shall be binding upon the successors and assigns of
Employer.
17. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida.
18. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto regarding employment of Executive, and
supersedes and replaces any prior agreement relating thereto. It may not be
changed orally but only by an agreement in writing signed by the party against
whom enforcement of any waiver, change, modification, extension, or discharge is
sought.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
"COMPANY"
FLORIDA BANKS, INC.
By:
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Name:
Title:
"EXECUTIVE"
--------------------------------------(L.S.)
Xxxx X. XxXxxxxx
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