RETENTION AND SEVERANCE AGREEMENT
Exhibit
10.1
RETENTION AND SEVERANCE AGREEMENT
This
Retention and Severance Agreement (this “Agreement”) is entered into this 18th
day of April, 2008, between Bimini Capital Management, Inc. (the “Company”) and
G. Xxxxxx Xxxx, IV (the “Executive”) (collectively, the
“Parties”).
WHEREAS,
Executive currently serves as Executive Vice President, Chief Investment
Officer, Interim Chief Financial Officer and Treasurer of the Company;
and
WHEREAS,
the retention of Executive during the term of this Agreement is critical to
fulfilling the objectives of the Company and ensuring the ongoing continuity of
other key personnel; and
WHEREAS,
the Parties mutually desire to enter into this Agreement for the mutual benefit
of the Parties so as to incentivize the Executive to remain in the employ of the
Company throughout the term of this Agreement.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
promises hereinafter set forth, it is agreed by the Parties as
follows:
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1.
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Provided
that (i) Executive has not voluntarily resigned his employment with the
Company prior to December 15, 2008, and (ii) the Company has not
terminated Executive’s employment with the Company prior to December 15,
2008, for Cause (as defined below) or due to Executive’s death or
incapacitation, the Company shall pay Executive a lump-sum cash bonus on
December 15, 2008, in an amount not less than $100,000, less applicable
withholding taxes (such lump-sum cash bonus being referred to herein as,
the “December Bonus”).
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2.
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Provided
that (i) Executive has not voluntarily resigned his employment with the
Company prior to January 15, 2009, and (ii) the Company has not terminated
Executive’s employment with the Company prior to January 15, 2009, for
Cause (as defined below) or due to Executive’s death or incapacitation,
the Company shall pay Executive a lump-sum cash bonus on January 15, 2009,
in an amount not less than $100,000, less applicable withholding taxes
(such lump-sum cash bonus being referred to herein as, the “January
Bonus,” and together with the December Bonus, collectively, the “Minimum
Retention Bonus”).
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3.
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The
Minimum Retention Bonus may be increased, but not decreased, in the
discretion of the Compensation Committee of the Board of Directors of the
Company. Except as otherwise explicitly set forth herein, any
unpaid portion of the Minimum Retention Bonus shall become immediately due
and payable if the Company terminates Executive’s employment with the
Company for any reason other than for Cause (as defined
below). For purposes of this Agreement, “Cause” shall mean any
(i) fraud, gross negligence, or willful or criminal misconduct by
Executive involving the Company or any of its subsidiaries or affiliates,
(ii) failure by Executive to substantially perform within a reasonable
time frame the duties properly assigned to Executive, or (iii) repeated
failure by Executive to adhere to the Company’s policies and
practices.
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4.
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Upon
a termination of Executive’s employment by the Company for Cause or due to
Executive’s death or incapacitation, Executive shall be deemed to have
forfeited any unpaid portion of the Minimum Retention
Bonus. The foregoing notwithstanding, the Company expressly
reserves its rights to pursue any remedies available at law or in equity
upon a termination of Executive’s employment for
Cause.
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5.
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If
the Company terminates Executive’s employment for any reason other than
Cause prior to January 15, 2009, any unpaid portion of the Minimum
Retention Bonus shall only be payable if Executive executes a general
release of all claims that Executive has or may have against the Company
relating to events occurring at or prior to the termination of Executive’s
employment, and such general release has become effective and irrevocable
following the expiration of any statutory waiting
periods.
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6.
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This
Agreement shall be governed by and construed in accordance with the
internal substantive laws, without reference to the choice of law rules,
of the State of Florida.
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7.
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EACH
PARTY HEREBY IRREVOCABLY WAIVES ITS RIGHTS TO A TRIAL BY JURY IN
CONNECTION WITH ANY DISPUTE ARISING BETWEEN THE PARTIES CONCERNING THE
ENFORCEMENT OR INTERPRETATION OF THIS
AGREEMENT.
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8.
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This
Agreement constitutes the entire agreement between the Parties concerning
the subject matter hereof and supersedes any and all prior or
contemporaneous oral or written agreements between the Parties relating to
such subject matter. This Agreement may be amended or modified only by an
agreement in writing signed by both
Parties.
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IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date
first written above.
/s/ G. Xxxxxx Xxxx, IV
G. Xxxxxx
Xxxx, IV
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title: President
& Chief Executive Officer
