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EXHIBIT 10.5
TIB BANK OF THE KEYS
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 24th day of September,
1996, between TIB BANK OF THE KEYS, a Florida Banking corporation ("Bank"), and
Xxxxxxx X. Xxxxxxxx, Xx. ("Employee").
RECITALS
A. Employee is an at-will management executive with the Bank.
B. The Bank desires to ensure continuity of management stability of the
Bank currently and in the event that ownership control of the Bank is
transferred.
C. Employee desires a measure of employment security in the event that
ownership control of the Bank is transferred.
D. The Board of Directors of the Bank has determined that it is in the
best interests of the shareholders of the Bank to promote executive employees'
loyalty by providing them with a measure of security and to ensure a continuity
of management stability of the Bank in the event that ownership control of the
Bank is transferred.
NOW, THEREFORE, in consideration of the covenants set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by both parties, Bank and Employee hereby agree as follows:
AGREEMENTS
1. Continuation of At-Will Employment.
a. The Bank agrees to continue Employee's employment
in the capacity of Executive Vice President 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 is customarily performed and exercised by
persons holding such office, subject to the general direction of the Board of
Directors of the Bank.
b. Employee agrees to continue such at-will
employment and shall devote his or her full-time attention and efforts to the
diligent performance of his or her duties herein specified and as an officer of
the Bank. Employee will not accept employment
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with any other individual, corporation, partnership, governmental authority, or
any other entity, or engage in any other venture for profit that the Bank may
consider to be in conflict with its best interests or to be in competition with
the Bank's business, or that might interfere in any with the Employee's
performance of his or her duties hereunder. Employee will not accept any outside
employment or participate directly or indirectly in any outside venture without
first notifying Bank in writing of his or her intent to do so, supplying all
information the Bank requests in connection with such notification, and
obtaining prior written approval from the Bank. Employee agrees that he or she
will, at all times, refrain from conduct that is likely to harm the image or
reputation of the Bank.
2. Compensation. In payment for the services of Employee
rendered to Bank pursuant to this Agreement, Bank shall pay to Employee the sum
of $ 95,000.00 per Year ("Base Salary"). Employee's Base Salary is payable in
arrears in equal semi-monthly installments and is subject to such deductions as
are required by law. Bank shall review and evaluate Employee's performance in
December of each year that Employee is employed with Bank. Following such
review, Employee may receive, in the sole and absolute discretion of the Board
of Directors, an increase in pay over and above Employee's Base Salary.
3. Benefits. Employee shall be entitled to participate in any
plan adopted by the Bank providing stock options, stock purchase, profit
sharing, vacations, group life insurance, medical coverage, education and any
other retirement or employee benefit plan adopted by the Bank for the benefit of
its employees. Employee's participation in such plan or plans shall be in
accordance with the documents controlling such employee benefit plan and in
accordance with the policies of the Bank as established by the Board of
Directors.
4. Change of Ownership Control.
a. In the event of a change of ownership control of
the Bank, this Employee shall no longer remain an at-will employee and this
Agreement shall become an employment agreement for a term of twenty four months
on the effective date of such change of ownership control. Employee's salary
shall not be reduced for any reason during the twenty four month term of
employment, except as provided under Paragraph 5(b), below.
b. Following a change of ownership control, the
Employee shall be entitled to credit for all years of service with Bank (i.e.,
all years prior to change of ownership control, plus the greater of 24 months or
the actual period of employment after change of ownership control) in
determining eligibility for and benefits from any and all retirement,
disability, profit-sharing and other employee benefit programs offered by the
Bank.
c. For the purposes of this Agreement, a change of
ownership control shall have occurred upon the acquisition by a person, or
persons acting as a group within the meaning of Section 13(d) of the Securities,
Exchange Act of 1934, of fifty-one
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percent or more of the voting securities of the Bank, or of any lesser
percentage of the voting securities of the Bank if the Board of Directors of the
Bank, the Comptroller of Florida, the FDIC, or the Federal Reserve Bank makes a
determination that such acquisition constitutes or will constitute control of
the Bank. The term "person" as used herein includes an individual, corporation,
bank holding company or any other legal entity.
5. Termination of Employment.
a. Prior to any change of ownership control of the
Bank, and while Employee is an at-will employee of the Bank, Employee's
employment may be terminated by either party as permitted under the laws of the
State of Florida and the United States of America.
b. Following a change of ownership control of the
Bank, this Agreement shall terminate upon the death or incapacity of Employee or
upon discharge of Employee by Bank for cause. "Cause" shall mean:
(1) Employee's willful and deliberate
violation of any law or governmental
regulation applicable to the conduct of
Bank's business;
(2) Employee's failure or refusal to comply
with the provisions of this Agreement;
(3) Employee' s conviction of a felony;
(4) Employee's failure to perform his or her
duties at acceptable levels and to
conformity with Bank's performance standards
as reasonably determined by the Board of
Directors, utilizing performance standards
applicable to comparable branches of the
acquiring entity.
(5) Employee's physical or mental disability
rendering Employee physically or mentally
unable to perform his or her duties for a
period of at least 180 consecutive days.
6. Post-Termination Covenants. Employee acknowledges that
certain information acquired while employed by Bank constitutes trade secrets
and proprietary information which are the exclusive property of the Bank and
that unauthorized use or disclosure of the same will irreparably harm Bank.
Therefore, during any period during which Employee is receiving compensation
pursuant to this Agreement, Employee shall not, without the prior written
consent of the Bank:
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(1) Furnish any person with the name of any
customer of the Bank, or any list or list of
customers of the Bank or otherwise use such
customer names and lists in connection with
any banking business, provided, that this
prohibition shall not prevent compliance
with a Court Order or subpoena directed to
Employee in his/her official capacity with
Bank;
(2) Furnish, use or divulge to any person
any information acquired by Employee
concerning the Bank's manner and methods of
doing business;
(3) Solicit, directly or indirectly, for any
purpose, the customers of the Bank;
(4) Hire, directly or indirectly, for
himself or any other employer, any employee
of Bank, or otherwise cause or encourage any
employee of Bank to leave his or her
employment to become employed by another.
The parties agree that the restrictions and prohibitions set forth in this
Section 6 are separate, discrete and independent. In the event that any single
restriction or prohibition, or portion thereof, set forth in this Section 6 is
determined by a court of competent jurisdiction to be invalid or unenforceable
for any reason, such finding shall not affect the remaining restrictions and
prohibitions which shall remain valid, binding and subsisting.
7. Waiver. Waiver of any default by any party shall not be
deemed to be a continuing waiver and shall not bar a party from enforcing this
Agreement in strict accordance with its terms and conditions.
8. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Florida.
9. Severability. 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 be considered severable and the remaining
provisions of this Agreement shall remain valid, binding and subsisting.
10. Entire Agreement. This Agreement contains the entire
agreement between the parties and supersedes all prior discussions and
agreements between them.
11. Modification. This Agreement may not be modified except by
an instrument in writing signed by the parties.
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12. 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.
13. No Assignment. 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 party.
14. Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by binding
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the year and date first above written.
EMPLOYEE:
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Witness
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Witness
TIB BANK OF THE KEYS:
By:
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Witness
Its:
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Witness
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