EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement (the “Agreement”) is made effective as of April 30, 2007,
by and between TIB Financial Corp. (the “Holding Company”), The Bank of Venice
(the “Bank”), and Xxxxx X. Xxxxx (the “Executive”).
WITNESSETH:
WHEREAS,
the Holding Company and the Bank (collectively the “Company”) desire to retain
the services of and employ the Executive, and the Executive desires to provide
services to the Company, pursuant to the terms and conditions of this
Agreement.
NOW,
THEREFORE, in consideration of the promises and of the covenants and agreements
herein contained, the Company and the Executive covenant and agree as
follows:
1. Employment.
Pursuant to the terms and conditions of this Agreement, the Company agrees
to
employ the Executive and the Executive agrees to render services to the Company
as set forth herein, all effective as of the date set forth above.
Notwithstanding any other provision in this Agreement, the employment of the
Executive in accordance with the terms of this Agreement shall be subject to
the
prior approval, as and to the extent required by law, of the applicable federal
banking agencies having jurisdiction over the Holding Company and the Bank.
This
Agreement supercedes any prior employment and/or change in control agreements
entered into between the Bank and the Executive, prior to the date hereof,
and
each such prior agreement is hereby terminated.
2. Position
and Duties; Records.
During
the term of this Agreement, the Executive shall serve as Chief Executive Officer
of the Bank, and shall undertake such duties, consistent with such titles,
as
may be assigned to him from time to time by the President and Chief Executive
Officer and/or Boards of Directors of the Holding Company and the Bank
(collectively referred to as the “Board”), including serving on Board committees
as appointed from time to time by the Board, and assisting in keeping the
Company in compliance with applicable laws and regulations. In performing his
duties pursuant to this Agreement, the Executive shall devote his full business
time, energy, skill and best efforts to promote the Company and its business
and
affairs; provided that, subject to Sections 10, 12 and 13 of this Agreement,
the
Executive shall have the right to manage and pursue personal and family
interests, and make passive investments in securities, real estate, and other
assets, and also to participate in charitable and community activities and
organizations, so long as such activities do not adversely affect the
performance by Executive of his duties and obligations to the Company. Upon
termination of the Executive’s employment for any reason, he shall resign as a
director of the Holding Company and the Bank (if he is then serving in such
capacities). All files, records, documents, manuals, books, forms, reports,
memoranda, studies, data, calculations, recordings or correspondence, in
whatever form they may exist, and all copies, abstracts and summaries of the
foregoing, and all physical items related to the business of the Company, its
affiliates and their respective directors and officers, whether of a public
nature or not, and whether prepared by Executive or not, are and shall remain
the exclusive property of the Company, and shall not be removed from their
premises, except as required in the course of providing the services pursuant
to
this Agreement, without the prior written consent of the Company. Such items
shall be promptly returned by the Executive on the termination of this Agreement
or at any earlier time upon the request of the Company.
3. Term.
The
term of employment pursuant to this Agreement shall be for a period of two
years, commencing with the date set forth in Section 1 and expiring (unless
sooner terminated as otherwise provided in this Agreement or unless otherwise
renewed or extended as set forth herein) on the third anniversary of this
Agreement, which date, including any earlier date of termination or any extended
expiration date, shall be referred to as the “Expiration Date”. Subject to the
provisions of Section 8 of this Agreement, the term of this Agreement and the
employment of the Executive by the Company hereunder shall be deemed
automatically renewed for successive periods of two years on each anniversary
date of this Agreement, until the Executive receives written notice from the
Company that the term of this Agreement will not be automatically renewed.
In
the event of the Executive’s receipt of such notice from the Company that the
term of this Agreement will not be renewed, the term of this Agreement shall
end
on the anniversary of this Agreement occurring two years after the anniversary
date first occurring after the date such notice is given. As an illustration
of
the foregoing, if such notice were given by the Company to the Executive on
a
date in 2008 before the first anniversary date of this Agreement, then term
of
this Agreement would end on the anniversary date of this Agreement in 2010.
If
notice were given by the Company to the Executive on a date in 2008 after the
first anniversary date of this Agreement, then the term of this Agreement would
end on the anniversary date in 2011. After termination of the employment of
the
Executive for any reason whatsoever, the Executive shall continue to be subject
to the provisions of Sections 10 through 17, inclusive, of this Agreement.
4. Compensation.
During
the term of this Agreement, the Company shall pay or provide to the Executive
as
compensation for the services of the Executive set forth in Section 2
hereof:
(a) A
base
annual salary of $139,500 during the first year of this Agreement, such base
annual salary to be subject to increase thereafter as the Board in its
discretion shall determine. The foregoing base salary shall be payable in such
periodic installments consistent with other employees of the Bank.
(b) An
annual
incentive bonus for each fiscal year (commencing with the 2007 fiscal year)
as
determined by the Board. The incentive bonus shall be prorated as determined
by
the Board for a partial year that occurs within the calendar year.
(c) Upon
the
closing of a Change of Control, a cash payment equal to one times the
Executive’s base annual salary in effect under Section 4(a) on the date of such
Change of Control. For purposes of this Agreement, a Change of Control shall
mean a merger in which the Holding Company is not the surviving entity, the
acquisition of the Bank by means of a merger, consolidation or purchase of
80%
or more of its outstanding shares, or the acquisition by any individual or
group
of beneficial ownership of more than 50% of the outstanding shares of Holding
Company common stock. The term “group” and the concept of beneficial ownership
shall have such meanings ascribed thereto as set forth in the Securities
Exchange Act of 1934, as amended (the “1934 Act”), and the regulations and rules
thereunder.
5. Benefits
and Insurance.
The
Bank shall provide to the Executive such medical, health, and life insurance
as
well as any other benefits as the Board shall determine from time to time.
At a
minimum, the Executive shall be entitled to (i) participate in all employee
benefit plans offered to the Bank’s employees generally, and (ii) life insurance
coverage (payable to such beneficiary as the Executive may designate from time
to time). The Executive also shall be entitled to participate in any group
disability plan maintained by the Bank, with the Bank paying to the Executive
his base annual salary during any waiting period imposed by such plan for the
receipt of disability benefits thereunder.
6. Vacation.
The
Executive may take up to four weeks of vacation time at such periods during
each
year as the Board and the Executive shall determine from time to time. The
Executive shall be entitled to full compensation during such vacation
periods.
7. Reimbursement
of Expenses.
The
Bank shall reimburse the Executive for reasonable expenses incurred in
connection with his employment hereunder subject to guidelines issued from
time
to time by the Board and upon submission of documentation in conformity with
applicable requirements of federal income tax laws and regulations supporting
reimbursement of such expenses.
8. Termination.
The
employment of the Executive may be terminated as follows:
(a) By
the
Company, by action taken by its Board or its President and Chief Executive
Officer, at any time and immediately upon written notice to the Executive if
said termination is for Cause. In the notice of termination furnished to the
Executive under this Section 8(a), the reason or reasons for said termination
shall be given and, if no reason or reasons are given for said termination,
said
termination shall be deemed to be without Cause and therefore termination
pursuant to Section 8(d). Any one or more of the following conditions shall
be
deemed to be grounds for termination of the employment of the Executive for
Cause under this Section 8(a):
(i) If
the
Executive shall fail or refuse to comply with the obligations required of him
as
set forth in this Agreement or comply with the policies of the Company
established by the Board or its President and Chief Executive Officer from
time
to time; provided,
however,
that
for the first such failure or refusal, the Executive shall be given written
warning (providing at least a 10 day period for an opportunity to cure), and
the
second failure or refusal shall be grounds for termination for
Cause;
(ii) If
the
Executive shall have engaged in conduct involving fraud, deceit, personal
dishonesty, or breach of fiduciary duty;
(iii) If
the
Executive shall have violated any banking law or regulation, memorandum of
understanding, cease and desist order, or other agreement with any banking
agency having jurisdiction over the Company which, in the judgment of the Board
or its President and Chief Executive Officer, has adversely affected, or may
adversely affect, the business or reputation of the Company as determined by
the
Board or its President and Chief Executive Officer;
(iv) If
the
Executive shall have become subject to continuing intemperance in the use of
alcohol or drugs which has adversely affected, or may adversely affect, the
business or reputation of the Company as determined by the Board or its
President and Chief Executive Officer;
(v) If
the
Executive shall have filed, or had filed against him, any petition under the
federal bankruptcy laws or any state insolvency laws; or
(vi) If
any
banking authority having supervisory jurisdiction over the Holding Company
or
the Bank initiates any proceedings for removal of the Executive.
(b) By
the
Executive upon the lapse of 30 days following written notice by the Executive
to
the Company of termination of his employment hereunder for Good Reason (as
defined below), which notice shall reasonably describe the Good Reason for
which
the Executive’s employment is being terminated; provided,
however,
that if
the Good Reason specified in such notice is such that there is a reasonable
prospect that it can be cured with diligent effort within 30 days, the Company
shall have the opportunity to cure such Good Reason, for a period not to exceed
30 days from the date of such notice, and the Executive’s employment shall
continue in effect during such time so long as the Company makes diligent
efforts during such time to cure such Good Reason. If such Good Reason shall
be
cured by the Company during such time, the Executive’s employment and the
obligations of the Company hereunder shall not terminate as a result of the
notice which has been given with respect to such Good Reason. Cure of any Good
Reason with or without notice from the Executive shall not relieve the Company
from any obligations to the Executive under this Agreement or otherwise and
shall not affect the Executive’s rights upon the reoccurrence of the same, or
the occurrence of any other, Good Reason. For purposes of this Agreement, the
term “Good Reason” shall mean (i) any material breach by the Company of any
provision of this Agreement, or (ii) any significant reduction (not pertaining
to job performance issues), in the duties, responsibilities, authority or title
of the Executive as an officer of the Company.
(c) By
the
Executive upon the lapse of 45 days following written notice by the Executive
to
the Company of his resignation from the Company for other than Good Reason;
provided,
however,
that
the Company, in its discretion, may cause such termination to be effective
at
any time during such 45-day period. If the Executive’s employment is terminated
because of the Executive’s resignation, the Company shall be obligated to pay to
the Executive any salary and vacation amounts accrued and unpaid as of the
effective date of such resignation.
(d) By
the
Company, by action taken by its Board or its President and Chief Executive
Officer, at any time if said termination is without Cause.
(e) Upon
the
termination of the Executive’s employment for any reason, the Executive shall be
entitled to receive a lump sum payment equal to two times the Executive’s base
annual salary in effect under Section 4(a) on the date of such termination
of
employment (which base annual salary shall be no less than the base annual
salary being received by the Executive on January 1, 2007). In the event that
the employment of the Executive is terminated as a result of the Executive’s
death or disability, then any amounts payable to the Executive pursuant to
this
Section 8(e) shall be payable by the Company to the Executive’s successors,
assigns, or estate, as the case may be.
9. Notice.
All
notices permitted or required to be given to either party under this Agreement
shall be in writing and shall be deemed to have been given (a) in the case
of
delivery, when addressed to the other party as set forth at the end of this
Agreement and delivered to said address, (b) in the case of mailing, three
days
after the same has been mailed by certified mail, return receipt requested,
and
deposited postage prepaid in the U.S. Mails, addressed to the other party at
the
address as set forth at the end of this Agreement, and (c) in any other case,
when actually received by the other party. Either party may change the address
at which said notice is to be given by delivering notice of such to the other
party to this Agreement in the manner set forth herein.
10. Confidential
Matters.
The
Executive is aware and acknowledges that the Executive shall have access to
confidential information by virtue of his employment. The Executive agrees
that,
during the period of time the Executive is retained to provide services to
the
Company, and thereafter subsequent to the termination of Executive’s services to
the Company for any reason whatsoever, the Executive will not release or divulge
any confidential information whatsoever relating to the Company or its business,
to any other person or entity without the prior written consent of the Company.
Confidential information does not include information that is available to
the
public or which becomes available to the public other than through a breach
of
this Agreement on the part of the Executive. Also, the Executive shall not
be
precluded from disclosing confidential information in furtherance of the
performance of his services to the Company or to the extent required by any
legal proceeding.
11. Injunction
Without Bond.
In the
event there is a breach or threatened breach by the Executive of the provisions
of Sections 10, 12, or 13, the Company shall be entitled to an injunction
without bond to restrain such breach or threatened breach, and the prevailing
party in any such proceeding will be entitled to reimbursement for all costs
and
expenses, including reasonable attorneys’ fees in connection therewith. Nothing
herein shall be construed as prohibiting the Company from pursuing such other
remedies available to it for any such breach or threatened breach including
recovery of damages from the Executive.
12. Noncompetition.
The
Executive agrees that during the period of time the Executive is retained to
provide services to the Company, and thereafter for a period of two years
subsequent to the termination of Executive’s services to the Company for any
reason whatsoever, Executive will not enter the employ of, or have any interest
in, directly or indirectly (either as executive, partner, director, officer,
consultant, principal, agent or employee), any other bank or financial
institution or any entity which either accepts deposits or makes loans (whether
presently existing or subsequently established) and which has an office located
within a radius of 50 miles of any office of the Bank (a “Competitive
Activity”); provided,
however,
that the
foregoing shall not preclude any ownership by the Executive of an amount not
to
exceed 5% of the equity securities of any entity which is subject to the
periodic reporting requirements of the 1934 Act and the shares of Company common
stock owned by the Executive at the time of termination of employment.
13. Nonsolicitation;
Noninterference; Nondisparagement.
The
Executive agrees that during the period of time the Executive is retained to
provide services to the Company, and thereafter for a period of two years
subsequent to the termination of Executive’s services to the Company for any
reason whatsoever, the Executive will not (a) solicit for employment by
Executive, or anyone else, or employ any employee of the Company or any person
who was an employee of the Company within 12 months prior to such solicitation
of employment; (b) induce, or attempt to induce, any employee of the Company
to
terminate such employee’s employment; (c) induce, or attempt to induce, anyone
having a business relationship with the Company to terminate or curtail such
relationship or, on behalf of himself or anyone else, to compete with the
Company; or (d) permit anyone controlled by the Executive, or any person acting
on behalf of the Executive or anyone controlled by an employee of the Executive
to do any of the foregoing. The Executive also agrees that during the term
of
this Agreement and thereafter, the Executive will not disparage, denigrate
or
comment negatively upon, either orally or in writing, the Company, any of its
affiliates, or any of their respective officers or directors, to or in the
presence of any person or entity, unless compelled to act by subpoena or other
legal mandate.
14. Remedies.
The
Executive agrees that the restrictions set forth in this Agreement are fair
and
reasonable. The covenants set forth in this Agreement are not dependent
covenants and any claim against the Company, whether arising out of this
Agreement or any other agreement or contract between the Company and Executive,
shall not be a defense to a claim against Executive for a breach or alleged
breach of any of the covenants of Executive contained in this Agreement. It
is
expressly understood by and between the parties hereto that the covenants
contained in this Agreement shall be deemed to be a series of separate
covenants. The Executive understands and agrees that if any of the separate
covenants are judicially held invalid or unenforceable, such holding shall
not
release him from his obligations under the remaining covenants of this
Agreement. If in any judicial proceedings, a court shall refuse to enforce
any
or all of the separate covenants because taken together they are more extensive
(whether as to geographic area, duration, scope of business or otherwise) than
necessary to protect the business and goodwill of the Bank, it is expressly
understood and agreed between the parties hereto that those separate covenants
which, if eliminated or restricted, would permit the remaining separate
covenants or the restricted separate covenant to be enforced in such proceeding
shall, for the purposes of such proceeding, be eliminated from the provisions
of
this Agreement or restriction, as the case may be.
15. Invalid
Provision.
In the
event any provision should be or become invalid or unenforceable, such facts
shall not affect the validity and enforceability of any other provision of
this
Agreement. Similarly, if the scope of any restriction or covenant contained
herein should be or become too broad or extensive to permit enforcement thereof
to its full extent, then any such restriction or covenant shall be enforced
to
the maximum extent permitted by law, and Executive hereby consents and agrees
that the scope of any such restriction or covenant may be modified accordingly
in any judicial proceeding brought to enforce such restriction or
covenant.
16. Governing
Law.
This
Agreement shall be construed in accordance with and shall be governed by the
laws of the State of Florida.
17. Arbitration.
Except
for injunctive relief as provided in Section 11 above, all disputes between
the
parties hereto concerning the performance, breach, construction or
interpretation of this Agreement, or in any manner arising out of this
Agreement, shall be submitted to binding arbitration in accordance with the
rules of the American Arbitration Association, which arbitration shall be
carried out in the manner set forth below:
(a) Within
fifteen (15) days after written notice by one party to the other party of its
demand for arbitration, which demand shall set forth the name and address of
its
designated arbitrator, the other party shall select its designated arbitrator
and so notify the demanding party. Within fifteen (15) days thereafter, the
two
arbitrators so selected shall select the third arbitrator. The dispute shall
be
heard by the arbitrators within sixty (60) days after selection of the third
arbitrator. The decision of any two arbitrators shall be binding upon the
parties. Should any party or arbitrator fail to make a selection, the American
Arbitration Association shall designate such arbitrator upon the application
of
either party. The decision of the arbitrators shall be final and binding upon
the Company, its successors and assigns, and upon Executive, his successors
and
representatives, as the case may be.
(b) Unless
the Parties agree otherwise, the arbitration proceedings shall take place in
the
city where the headquarters of the Holding Company is located, and the judgment
and determination of such proceedings shall be binding on all parties thereto.
Judgment upon any award rendered by the arbitrators may be entered into any
court having competent jurisdiction without any right of appeal.
(c) Each
party shall bear its or his own expenses of arbitration, and the expenses of
the
arbitrators and the arbitration proceeding shall be shared equally. However,
if
in the opinion of a majority of the arbitrators, any claim or defense was
unreasonable, the arbitrators may assess, as part of their award, all or any
part of the arbitration expenses of the other party (including reasonable
attorneys’ fees) and of the arbitrators and the arbitration proceeding against
the party raising such unreasonable claim or defense.
18. Binding
Effect.
This
Agreement shall be binding on and inure to the benefit of the parties hereto
and
their respective successors and legal representatives and
beneficiaries.
19. Effect
on Other Agreements.
This
Agreement and the termination thereof shall not affect any other agreement
between the Executive and the Company, and the receipt by the Executive of
benefits thereunder.
20. Miscellaneous.
The
rights and duties of the parties hereunder are personal and may not be assigned
or delegated without the prior written consent of the other party to this
Agreement. The captions used herein are solely for the convenience of the
parties and are not used in construing this Agreement. Time is of the essence
of
this Agreement and the performance by each party of its or his duties and
obligations hereunder.
21. Complete
Agreement.
This
Agreement constitutes the complete agreement between the parties hereto with
respect to the subject matter hereof and incorporates all prior discussions,
agreements and representations made in regard to the matters set forth herein.
This Agreement may not be amended, modified or changed except by a writing
signed by the party to be charged by said amendment, change or
modification.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
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THE
BANK OF VENICE
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By:
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By:
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Xxxxxx
X. Xxxx
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Name:
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President
and Chief Executive Officer
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As
Its:
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“EXECUTIVE”
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Xxxxx
X. Xxxxx, individually
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Address:
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