EMPLOYMENT AGREEMENT
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 XXXXX XXXXXXXXXXX (the
"Employee"), is entered into as of this 18th day of December, 1998.
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;
WHEREAS, the Employee has been and continues to be a valued
senior executive of the Bank, and is now serving the Bank as its
Executive Vice President; and
WHEREAS, it is the consensus of the Board of Directors that
the experience of the Employee, his knowledge of the affairs of the
Bank and his reputation and contacts in the industry are so
valuable that assurance of his 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 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 March 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
December 18, 1998 ("Commencement Date"), and shall terminate on
December 17, 1999 ("Scheduled Termination Date"), unless sooner
terminated or further extended as hereinafter provided. On the
Scheduled Termination Date, and annually thereafter on each
December 18th, 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 November 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 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 his 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 his duties and responsibilities
as an Employee of the Bank.
6. COMPETITIVE ACTIVITIES.
(a) Competitive Services. Employee agrees that during
the term of his 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, he 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 him to
devote any time to management or control of the business or
activities in which he has invested.
(b) Confidential Information. Employee agrees and
acknowledges that by virtue of his employment hereunder, he 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 his 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 his 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 his 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 him not
in good faith and without reasonable belief that his 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 his
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
his 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 his 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 his 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 his 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 200% of the Employee's Salary
and Cash Incentive Compensation, 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 24 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 40% 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 he would be entitled to hereunder if he terminated his
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 him hereunder if he 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: Xxxxx Xxxxxxxxxxx
_________________________
_________________________
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.
Attest: BANK:
COMMERCIAL BANK OF FLORIDA,
a Florida banking corporation
By: By:
Name: Name:
Title:
WITNESS: EMPLOYEE:
Name: XXXXX XXXXXXXXXXX
Name:
