Exhibit 10.1
BANK
EMPLOYMENT AGREEMENT
This agreement made and entered into this 11th day of December, 1997, between
the FIRST NATIONAL BANK OF MANATEE, Bradenton, Florida (the "Bank") and XXXXXXX
X. xxXXXX III ("employee") which is effective as of January 1, 1998;
WHEREAS, the Bank is a national bank, regulated by the Office of the Comptroller
of the Currency, insured by the Federal Deposit Insurance Corporation and
located in Bradenton, Florida; and
WHEREAS, the Bank wants to employ the employee as Chairman and CEO of the Bank
under the terms of this Agreement which supersedes and supplants all prior
agreements; and
WHEREAS, the parties desire to enter into this Agreement setting forth the terms
and conditions of the employment relationship of the Bank and the employees.
NOW THEREFORE, it is agreed as follows:
I. RELATIONSHIP ESTABLISHED AND DUTIES
1. The bank hereby will employ the employee as Chairman and CEO
to hold the title of Chairman and CEO and to perform such services
and duties as the Board of Directors may, from time to time,
designate during the term hereof. Subject to the terms and
conditions hereof, employee will perform such duties and exercise
such authority as are customarily performed and exercised by person
hold such office, subject to the general direction of the Board of
Directors of the Bank, exercised in good faith in accordance with
standards of reasonable business judgment.
2. Employee accepts such employment and shall devote his full
time, attention, and efforts to the diligent performance of his
duties herein specified and as an officer and director of the bank
and will not accept employment with any other individual,
corporation, partnership, governmental authority, or any other
entity, or engage any other venture for profit which the Board of
Directors of the Bank may consider to be in conflict with the Bank's
best interest or to be in competition with the Bank's business, or
which may interfere in any way with the employee's performance of
his duties hereunder. Any exception to this must be made by
notification and written approval of the Board of Directors.
II. TERMS OF EMPLOYMENT
1. The initial term of employment under this Agreement shall continue for
three (3) years unless such is terminated pursuant to the terms hereof or
by the first to occur of the conditions to be stated hereinafter. This
Agreement will be automatically renewed each year for an additional
three-year period unless either party gives written notice to the other to
the contrary at least ninety (90) days prior to December 31st of any year
in which this Agreement is in effect. The term previously stated,
notwithstanding this Agreement, shall be terminated by the earlier to
occur of any of the following:
a) The death of the employee;
b) The permanent disability of employee. "Permanent
disability" as used herein shall mean the inability of
employee, due to illness, accident or other physical or
mental incapacity to perform the services provided for
here in for the period as provided in our bank group
policy; provided, however, permanent disability shall
not constitute a basis for discharge for cause; in
addition, temporary disability shall not constitute a
basis for termination of the Agreement;
c) The discharge of employee by the Bank for cause. "Cause"
as used herein shall mean:
1) Such negligence or misconduct as shall constitute,
as a matter of law, a breach of the covenants and
obligations of employee hereunder;
2) Failure or refusal of employee to comply with the
provisions of this Agreement;
3) Conviction of a crime involving moral turpitude or
such other crime as shall, in the opinion of the
Board, result in a lack of confidence in the
honesty or moral character of employee;
4) Required by regulatory authority having
jurisdiction over the bank.
2. The employee may, at the discretion of the Board of Directors of the Bank,
cease to be employed as Chairman and CEO at age 65, but may continue as a
member of the Board of Directors even if he no longer holds that office
until the mandatory age for retirement for directors then in effect.
3. Termination by the bank of employee's employment for cause shall
constitute a tender by employee of his resignation as an officer and
director of the bank.
4. In the event of termination for reasons other than death, disability or
cause, the employee is entitled to the remaining compensation under this
Agreement and severance pay equal to one month's pay for each year
employed by the bank.
5. In the event the employment is terminated by death or disability in the
latter half of a calendar year, employee shall be entitled to any bonus to
which he would have been entitled had he been employed on the last day of
the year.
III. COMPENSATION
For all services which employee may render to the bank during the
term hereof, the Bank shall pay to employee, subject to such deductions as may
be required by law:
1. Base Salary. 1998 annual salary (but not less then the
1997 salary of $129,448), payable in equal bi-monthly
installments and subject to such deductions as may be required
by law, for the first twelve (12) months. Thereafter, annual
increase reviews will be done during the month of December for
a January 1 effective increase date during the term of this
Agreement so that for the twelve (12) months beginning on each
such anniversary date, the employee's salary increases will
take effect. The Board has sole discretion as to the amount of
the CEO's compensation, but not less than the prior calendar
year's salary.
2. Performance Bonuses. Each year a performance bonus will
be awarded in accordance with
the bonus plan then in effect as adopted by the Board of
Directors of the Bank.
IV. OTHER BENEFITS
1. The employee shall be entitled to participate in any plan of the Bank
relating to stock options, stock purchases, profit sharing, group life
insurance, medical coverage, education, or other retirement or employee
benefits that the Bank may adopt for the benefit of its employees.
2. The employee shall be eligible to participate in other benefits which may
be or become applicable to the Bank's executive employees, and shall be
furnished a car with all expenses of maintenance to cover all automobile
use, a reasonable expense account (including club dues and membership
fees), the payment of reasonable expenses for attending annual and
periodic meetings of trade associations and any other benefits which are
commensurate with the responsibilities and functions to be performed by
the employee under this Agreement. The Bank also agrees to pay all
reasonable expenses in connection with the attendance and participation at
said trade association meetings by employee's spouse.
3. At such reasonable times as the Board of Directors shall in its discretion
permit, the employee shall be entitled, without loss of pay, to absent
himself voluntarily from the performance of his employment under this
Agreement, all such voluntary absences to count as vacation time provided
that:
a) The employee shall be entitled to an annual vacation of
four (4) weeks per year. The employee shall schedule at
least two consecutive weeks of vacation each year.
b) The timing of the vacations shall be scheduled in a
reasonable manner by the employee. The employee shall
not be entitled to receive any additional compensation
from the Bank on account of his failure to take a
vacation; not shall he be entitled to accumulate unused
vacation time from one calendar year to the next without
permission of the Board of Directors.
c) In additional to the aforesaid paid vacation, the
employee shall be entitled without loss of pay, to
absent himself voluntarily from the performance of his
employment with the Bank for such additional period of
time and for such valid and legitimate reasons as the
Board of Directors in its discretion may determine.
Further, the Board of Directors shall been entitled to
grant to the employee a leave or leaves of absence with
or without pay at such time or times and upon such terms
and conditions as the Board, in its discretion, may
determine.
4. Bank shall reimburse employee the medical bills and associated costs of an
annual physical examination, up to $1,500.00 per year.
V. CHANGE OF CONTROL
1. If during the term of this Agreement there is a change of control ("COC")
of the bank, and the employee is terminated or resigns during the first
120 days following the COC, the employee shall immediately be entitled to
an amount equal to three times his then existing salary. If after 120 days
the employee is terminated, he shall immediately be entitled to the
remaining compensation due under the Agreement including severance pay.
Either amount due under this paragraph shall be in addition to any amounts
otherwise owed to the employee pursuant to this Agreement. The term
"control" shall refer to the acquisition of twenty-five (25%) or more of
the voting securities of the Bank by any person or persons acting as a
group within the meaning of Section 13(d) of the Securities Exchange Act
of 1934 or to such acquisition of a percentage between ten percent (10%)
and twenty-five percent (25%) if the Board of Directors of the Bank or the
Comptroller of the Currency, the FDIC of the Federal Reserve Bank have
made a determination that such acquisition constitutes or will constitute
control of the Bank. The term "person" refers to an individual,
corporation, bank, bank holding company or other entity.
2. The following items are automatically considered due and payable in the
event that COC occurs:
a) Non-forfeitable deferred compensation shall be
distributed as directed by the employee.
b) All performance bonus payments as described in Section
III.2 shall be declared accomplished and earned for the
full year based upon performance up to date for the year
in which the COC occurs.
c) In the event that the employee is a participant in a
stock plan or share option plan and such plan is
terminated involuntarily as a result of the COC, all
stock and options shall be declared 100% vested and
distributed.
VI. POST TERMINATION COVENANTS
1. If during the term hereof employee shall be terminated for cause
hereunder, then employee agrees that for six (6) months or if employee
resigns from employment then for one (1) year, he will not be employed in
the banking business or any related field thereto in Bradenton, Florida or
Manatee County, Florida. Furthermore, following such termination, employee
agrees that he will not, without the prior written consent of the Bank:
a) Furnish anyone with the name of, or any list or lists
of, customers of the Bank or utilize such list or
information himself for banking purposes; or
b) Furnish, use or divulge to anyone any information
acquired by him from the Bank relating to the Bank's
methods of doing business; or
c) Contact directly or indirectly any customer of the Bank
for banking solicitation purposes, or
d) Hire for any other Bank or employer (including himself)
any employee of the Bank or directly or indirectly cause
such employee to leave his or her employment to work for
another.
2. It is understood and agreed by the parties hereto that the provisions of
this section are independent of each other and the invalidity of any such
provision or portion thereof shall not affect the validity or
enforceability of another provisions of this Agreement.
VII. WAIVER OF PROVISIONS
Failure of any of the parties to insist, in one of more instances,
on performance by the others in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or
relinquishment of any right granted hereunder of the future performance of
any such term or condition or of any other term or condition of this
Agreement, unless such waiver is contained in a writing signed by or on
behalf of all the parties.
VIII. GOVERNING LAW
This agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Florida. If for any reason any
provision of this Agreement shall be held by a court of competent
jurisdiction to be void or unenforceable, the same shall not affect the
remaining provisions thereof.
IX. MODIFICATION AND AMENDMENT
The agreement contains the sole and entire agreement among the
parties hereto and supersedes all prior discussions and agreements among
the parties and any such prior agreements shall, from and after the date
hereof, be null and void. This agreement shall not be modified or amended
except by an instrument in writing signed by or on behalf of the parties
hereto.
X. COUNTERPARTS AND HEADINGS
This agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument. The headings set out herein
are for convenience of reference and shall not be deemed a part of this
Agreement.
XI. AGREEMENT NONASSIGNABLE
This agreement may not be assigned or transferred by any party
hereto, in whole or in part, without the prior written consent of the
other.
XII. ATTORNEYS' FEES
In the event of litigation, the non-prevailing party shall pay the
legal fees, expenses and costs incurred by the prevailing party through
appeal.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
month, day and year first above written.
FIRST NATIONAL BANK OF MANATEE
/s/ Xxxxx Lawn By: /s/ Xxxx X. Xxxxxxx
--------------------------- -------------------------------
Signature - Witness Its: President
Representing the Full Board
Dated: December 11, 1997
/s/ Xxxxx Lawn /s/ Xxxxxxx X. xxXxxx, III
--------------------------- -------------------------------
Signature - Witness XXXXXXX X. xxXXXX III
Dated: December 11, 1997
FIRST AMENDMENT TO
BANK
EMPLOYMENT AGREEMENT
This First Amendment to Bank Employment Agreement made and entered into
this 17th day of March, 1999, between the FIRST NATIONAL BANK OF MANATEE,
Bradenton, Florida (the "Bank"), and XXXXXXX X. xxXXXX, III ("Employee") which
is effective as of January 1, 1999;
WHEREAS, the Bank is now a wholly owned subsidiary of First National
Bancshares, Inc. ("Holding Company");
WHEREAS, the Bank and Employee entered into a Bank Employment Agreement on
December 11, 1997, which Agreement was effective January 1, 1998 ("Agreement");
WHEREAS, the Bank and Employee have agreed to amend the Agreement and
Holding Company joins herein to acknowledge its obligations under paragraphs 2
and 3 below;
NOW THEREFORE, the parties have agreed to amend the Agreement as follows:
1. Any language contained in the Agreement to the contrary
notwithstanding, Employee' employment by First National Bancshares, Inc. shall
not be deemed a violation of the Agreement.
2. Paragraphs 1 and 2 of Section IV of the Agreement entitles the
Employee to certain benefits including participation in "any plan of the Bank
relating to stock options, stock purchases, profit sharing, group life
insurance, medical coverage, education or other retirement or employee
benefits". Said paragraphs are hereby amended to state that the Employee is
entitled to any such benefits from the Holding Company as well as the Bank.
3. Section V of the Agreement is amended to include on the same basis a
"change in control" of the Holding Company as well as control of the Bank and to
provide that in the event of a "change of control" as defined in that paragraph,
the Employee shall be entitled to the remedies and benefits provided.
4. The Agreement is amended to recognize the fact that at the present
time, the Bank has a "discretionary bonus" plan in effect, and further in the
event of "change of control" as defined in said Agreement, occurs other than at
the end of a year, such a bonus is declared earned for a full year based upon
performance up to the date upon which any such change of control is accomplished
and that such bonus shall in no event be less than the prior full year's bonus.
5. Section IV, Paragraph 4, of the Agreement is amended to provide as
follows: Bank shall reimburse Employee the medical bills and associated costs of
an annual physical examination up to $1,500 per year; in the event the Employee
does not utilize all of the $1,500 in any one year, such benefits not utilized
shall be added to the amount which is to be reimbursed for such purposes in the
following year.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
to Bank Employment Agreement as of the month, day and year first above written.
FIRST NATIONAL BANK OF MANATEE
/s/ Xxxxxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
----------------------------- -------------------------------
Signature - Witness Xxxx X. Xxxxxxx
Its: President
Representing the Full Board
DATED: MARCH 17, 1999
/s/ Xxxxxxxxx Xxxxxxx /s/ Xxxxxxx X. xxXxxx, III
----------------------------- --------------------------------
Signature - Witness XXXXXXX X. xxXXXX, III, Employee
DATED: MARCH 17, 1999
JOINDER
FIRST NATIONAL BANCSHARES, INC., pursuant to authorization by its Board of
Directors, joins in this Agreement to acknowledge its obligations to Employee
under the provisions of Paragraphs 2 and 3 above and, to the extent necessary to
the enforcement of these obligations, under the Agreement as well.
FIRST NATIONAL BANCSHARES, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
Its: President
AMENDMENT TO EMPLOYMENT CONTRACT
This amendment to the Employment Agreement by and between 1st National
Bank & Trust (the "Bank") and Xxxxxxx X. xxXxxx, III. (the "Executive") dated
March 17, 1999 (the "Employment Agreement") is made this 22nd day of December
2004.
For good and valuable consideration, the sufficiency of which is
acknowledged by the parties hereto, the Bank and the Executive make hereby amend
the Employment Agreement as follows:
1. Notwithstanding any other provision of this Agreement or of any other
agreement, contract or understanding heretofore or hereafter entered into by you
and the Company, you shall not have any right to receive any payment or other
benefit under this Agreement if such payment or benefit, taking into account all
other payments to or benefits received by you, would cause any payment to you
under this Agreement to be considered a "parachute payment" within the meaning
of Section 280G(b)(2) of the Internal Revenue Code (a "Parachute Payment"). In
the event that the receipt of any such payment or benefit under this Agreement
would cause you to be considered to have received a Parachute Payment under this
Agreement, then you shall have the right, in your sole discretion, to designate
those payments or benefits under this Agreement which should be reduced or
eliminated so as to avoid having the payment to you under this Agreement be
deemed to be a Parachute Payment.
Unless the Bank and the Executive otherwise agree in writing, any
determination of the value the severance and other benefits provided for
Executive under the terms of this Agreement or otherwise includable in the
calculation of the Parachute Payment, shall be made in writing by the Bank's
independent public accountants (the "Accountants"), whose determination shall be
conclusive and binding upon the Executive and the Bank for all purposes. For
purposes of making the calculations required by this Paragraph 1, the
Accountants may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Code. The Bank and
the Executive shall furnish to the Accountants such information and documents as
the Accountants may reasonably request in order to make a determination under
this Paragraph 1. The Bank shall bear all costs the Accountants may reasonably
incur in connection with any calculations contemplated by this Paragraph 1.
2. The Bank is a wholly owned subsidiary of First National Bancshares, Inc.
(the "Company") and the Company has agreed to join in and be bound by the terms
of the Employment Agreement as amended hereby and to guarantee all amounts due
Executive under the terms of the Employment Agreement as amended hereby whether
the Employment Agreement is enforceable against the Bank or not as though the
Employment Agreement were entered into directly by the Company with Executive.
In every instance in which the term "Bank" appears in the Employment Agreement
or herein, such shall be read as, and shall mean "Bank" and/or "Company."
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the month, day and year first above written.
1st NATIONAL BANK & TRUST
/s/ Xxxxxx X'Xxxxxx By: /s/ Xxxx X. Xxxxxxx
---------------------------- ------------------------------
Signature - Witness Its: President
Representing the Full Board
Dated: November 23, 2004
/s/ Xxxxxx X'Xxxxxx /s/ Xxxxxxx X. xxXxxx, III
---------------------------- -----------------------------------
Signature - Witness XXXXXXX X. xxXXXX, III
Dated: November 23, 2004
FIRST NATIONAL BANCSHARES, INC.
/s/ Xxxxxx X'Xxxxxx By: /s/ Xxxx X. Xxxxxxx
---------------------------- -----------------------------------
Signature - Witness Its: President
Representing the Full Board
Dated: November 23, 2004
