AGREEMENT
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THIS AGREEMENT made and entered into as of the 9th day of November by and
among Intervest National Bank, (hereinafter "Bank") and Xxxxx X. Xxxxx,
(hereinafter "Executive");
WITNESSETH:
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WHEREAS, the Board of Directors of Bank recognizing the experience and
knowledge of Executive in the banking industry, desires to retain the valuable
services and business counsel of Executive, it being in the best interest of
Bank to arrange terms of employment for Executive so as to reasonably induce
Executive to remain in his capacities with Bank for Executive's term hereof; and
WHEREAS, Executive is willing to provide services to Bank in accordance
with the terms and conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants herein contained, the parties hereto agree as follows:
1. EMPLOYMENT. During Executive's Employment, Bank agrees to employ
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Executive and Executive agrees to accept such employment and to perform such
duties and functions as the Board of Directors of Bank may assign to Executive
from time to time, but only administrative and managerial functions commensurate
with Executive's past experience and performance level. As directed by the
Board of Directors, he shall perform such duties at the existing headquarters'
offices in Clearwater, or such headquarters' offices that may be established in
Pinellas or Hillsborough Counties.
Responsibility for the supervision of Executive shall rest with the Board
of Directors of Bank and its Executive Committee, which shall review Executive's
performance regularly. The Board of Directors of Bank shall have the authority
to terminate Executive, subject to the provisions outlined in Section 6 of this
Agreement.
2. TITLE. Executive shall serve as President Florida Division of
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the Bank.
3. TERM OF EMPLOYMENT. Executive's Employment referred to in
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Section 1 hereof shall commence on January 1, 2005, and, subject to the
termination provisions set forth below, shall end December 31, 2005, provided,
however, that if (a) Executive advises Bank in writing on or before September 1,
2005 of his desire to extend the term of the Agreement and (b) Bank communicates
its consent to such extension in writing to Executive on or before September 30,
2005, then the Agreement shall continue upon the same terms and conditions for a
further one-year period until December 31, 2006, renewable by the parties from
year to year thereafter pursuant to the same procedure described herein. If the
Bank shall decide not to extend this Agreement, the denial shall not be
construed as a termination pursuant to Paragraph 6 below.
4. ANNUAL COMPENSATION.
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4.1 Base Salary. During Executive's Employment, Executive shall be
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paid an annual base salary (hereinafter "Base Salary") which shall be paid in
equal installments in accordance with Bank's
/s/ LSD /s/ KAO
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normal pay practices, but not less frequently than monthly. Executive's annual
Base Salary shall be $180,000. Any increases to the Base Salary during
Executive's Employment are at the discretion of the Board of Directors of Bank.
4.2 Bonus. During Executive's Employment and in addition to
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Executive's Base Salary, Executive may receive a bonus payment payable prior to
the end of each applicable calendar year. The granting of any such bonus is at
the sole discretion of the Board of Directors of Bank.
4.3 Additional Benefits. During Executive's Employment, Executive
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shall be provided with such employee benefits and benefit levels, including
health and life insurance, etc. as may be provided by the Board of Directors of
Bank. The employee benefits shall be provided and maintained at a level of not
less than what is in effect at the time this Agreement is executed. Executive
shall be entitled to participate in any qualified or unqualified pension, profit
sharing or other employee benefit plan adopted by Bank hereinafter.
Throughout Executive's Employment, Executive shall also be entitled to
reimbursement for reasonable business expenses incurred by him in the
performance of his duties hereunder, as approved from time to time by the
Board of Directors of Bank.
5. CHANGE IN CONTROL OF BANK.
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(a) In the event of a "change in control" of Bank, as defined herein,
Executive shall be entitled, for a period of one (1) year from the date of
closing of the transaction effecting such change in control and at his election,
to give written notice to Bank of termination of this Agreement and to receive a
lump sum cash payment as follows:
In the event of a change of control during the first six (6) months of the
Agreement, Executive will be entitled to an amount equal to compensation, as
outlined in Section 4 of this Agreement, at Executive's then current
compensation level, for the balance of the Agreement through December 31, 2005
plus a bonus of six (6) months compensation and, in the event of change of
control following the first six (6) month period, Executive shall be entitled to
an amount equal to compensation for the balance of the Agreement through
December 31, 2005 plus a bonus of three (3) months compensation.
(b) The severance payments provided for in this Section 5 shall be paid
by Bank not later than ten (10) days after the date of notice of termination by
Executive under this Section 5 or ten (10) days after the date of closing of the
transaction effecting the change in control of Bank, whichever is later.
(c) For purposes of this Section 5, "change in control" of Bank shall
mean:
(i) any transaction, whether by merger, consolidation, asset sale,
tender offer, reverse stock split or otherwise, which results in
a reduction in the combined ownership of the Dansker and Xxxxxxx
families to less than 10% of the aggregate outstanding shares of
all classes of stock and warrants of Bank's Holding Company; or
(ii) if none of Xxxxxxxx X. Xxxxxxx, Xxxxxx Xxxxxxx or Xxxxxx X.
Xxxxxxx is a member of the Board of Directors of Bank or of
Bank's Holding Company; or
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(iii) the sale of all or substantially all of the assets of Bank, or
of Bank's Holding Company; or
(iv) the liquidation of Bank or Bank's Holding Company.
6. TERMINATION.
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6.1 For Cause. This Agreement may be terminated by the Board of
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Directors of Bank without notice and without further obligation other than for
accrued and unpaid compensation, for any of the following reasons:
(a) failure of Executive to follow reasonable directions or policies of
the Board of Directors of Bank or its Executive Committee; or
(b) gross negligence or willful misconduct of Executive materially
damaging to the business of Bank during the Executive's Employment; or
(c) conviction of the Executive during the Executive's Employment of a
crime involving breach of trust or moral turpitude.
In the event that Bank discharges Executive alleging "cause" under this
Section 6.1 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 6.2 hereof.
6.2 Without Cause. Bank may, upon thirty (30) days written notice
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to Executive, terminate this Agreement without cause at any time during the
Executive's Employment upon the condition that Executive shall be entitled, as
liquidated damages in lieu of all other claims, to a severance payment as
follows:
In the event of termination without cause during the first six (6) months
of the Agreement, Executive will be entitled to an amount equal to compensation,
as outlined in Section 4 of this Agreement, at Executive's then current
compensation level, for the balance of the Agreement through December 31, 2005
plus a bonus of six (6) months compensation and, in the event of termination
without cause following the first six (6) month period, Executive shall be
entitled to an amount equal to compensation for the balance of the Agreement
through December 31, 2005 plus a bonus of three (3) months compensation. The
severance payment provided for in this Section 6.2 shall be paid by Bank not
later than thirty (30) days after the actual date of termination of employment
of Executive.
7. ENTIRE AGREEMENT. This Agreement constitutes the entire
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agreement between the parties hereto regarding the employment of Executive, and
supersedes and replaces all prior agreements and understandings, whether written
or unwritten, relating thereto.
8. ASSIGNMENT. Neither of the parties hereto may assign this
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Agreement without the prior written consent of the other party hereto.
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9. SEVERABILITY. Each section and subsection of this Agreement
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constitutes a separate and distinct understanding, covenant and provision
hereof. In the event that any provision of this Agreement shall finally be
determined to be unlawful, such provision shall be deemed to be severed from
this Agreement, but every other provision of this Agreement shall remain in full
force and effect.
10. GOVERNING LAW. This Agreement shall in all respects be
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interpreted, construed and governed by and in accordance with the laws of the
State of Florida.
11. RIGHTS OF THIRD PARTIES. Nothing herein expressed or implied is
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intended to or shall be construed to confer upon or give to any person, firm or
other entity, other than the parties hereto and their permitted assigns, any
rights or remedies under or by reason by this Agreement.
12. AMENDMENT. This Agreement may not be amended orally but only by
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an instrument in writing duly executed by the parties hereto.
13. NOTICES. Any notice or other document or communication
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permitted or required to be given to Executive pursuant to the terms hereof
shall be deemed given if personally delivered to Executive or sent to him
postage prepaid, by registered or certified mail, at Clearwater, Florida or any
such other address as Executive shall have notified Bank in writing. Any notice
or other document or other communication permitted or required to be given to
Bank pursuant to the terms hereof shall be deemed given if personally delivered
or sent to Chairman of the Board, 0 Xxxxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, Xxx
Xxxx 00000-0000, postage prepaid, by registered or certified mail or at such
other address as Bank shall have notified Executive in writing.
14. WAIVER. The waiver by either party hereto of a breach of any
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provision of this Agreement by the other shall not operate or be construed as a
waiver of any subsequent breach of the same or any other provision of this
Agreement by the breaching party.
INTERVEST NATIONAL BANK
/s/ Xxxxx Xxxx By: /s/ Xxxxxx X. Xxxxxxx
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Attest Xxxxxx X. Xxxxxxx, CEO
Xxxxx Xxxx
EXECUTIVE
/s/ Xxxxx Xxxx /s/ Xxxxx X. Xxxxx
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Attest Xxxxx X. Xxxxx
Xxxxx Xxxx
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