EMPLOYMENT AGREEMENT
Exhibit 10.9
THIS Employment Agreement (this “Agreement”), dated July 18, 2014, between Florida Community Bank, National Association (the “Company”), and Xxxx Xxxxxx (“Executive”). This Agreement supersedes the Amended and Restated Employment Agreement between the Company and Executive dated as of January 21, 2011, as amended on January 25, 2013 and October 11, 2013 (the “Prior Agreement”).
WHEREAS, the Company desires to continue to employ Executive as its President and Chief Executive Officer, and Executive desires to continue such employment on the terms and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and agreements hereinafter set forth, the Company and Executive agree as follows:
1. Term of Employment. The term of employment under this Agreement shall commence as of May 1, 2014 (the “Effective Date”) and, subject to earlier termination provided in Section 4 hereof, shall end on April 30, 2017 (the “Term”). For purposes of clarity, if Executive’s employment continues after the expiration of the Term, his employment shall be at-will.
2. Employment.
(a) Employment by the Company. Executive agrees to be employed by the Company upon the terms and subject to the conditions set forth in this Agreement. Executive shall serve as President and Chief Executive Officer of the Company and shall report to the Board of Directors of the Company (the “Board”).
(b) Performance of Duties. During his employment, Executive shall faithfully and diligently perform Executive’s duties in conformity with the directions of the Board and serve the Company to the best of Executive’s ability. Executive shall devote his full business time and best efforts to the business and affairs of the Company (except for vacation periods and periods of illness or incapacity).
(c) Place of Performance. Executive shall be based at the Company’s principal offices in Weston, Florida, subject to such reasonable travel as may be required in the performance of his duties.
3. Compensation and Benefits.
(a) Base Salary. The Company agrees to pay to Executive a base salary (“Base Salary”) at the annual rate of $650,000 with effect from May 1, 2014. The Compensation Committee of the Board of Directors of the Company (the “Compensation Committee”) may determine in its sole discretion to increase, but not decrease, the Base Salary. Payments of the Base Salary shall be payable in equal installments in accordance with the Company’s standard payroll practices.
(b) Annual Incentive Bonus Plan. Executive shall be eligible to receive an annual cash incentive bonus (the “Annual Bonus”) as may be determined by the Compensation Committee in its discretion pursuant to the terms of the Company’s annual incentive plan, as it may be amended from time to time. The Annual Bonus, if any, shall be paid to Executive when bonuses are paid by the Company to other senior executives of the Company.
(c) Benefits and Perquisites. Executive shall be entitled to participate in, to the extent Executive is otherwise eligible under the terms thereof, the benefit plans and programs, and receive the benefits and perquisites, generally provided by the Company to executives of the Company, including without limitation family medical insurance. Notwithstanding the foregoing, Executive shall not be entitled to participate in any Company severance plan other than as provided specifically herein. Executive shall be entitled to annual vacation in accordance with Company policy.
(d) Business Expenses. The Company agrees to reimburse Executive for all reasonable and necessary travel, business entertainment and other business expenses incurred by Executive in connection with the performance of his duties under this Agreement in accordance with, and subject to, the Company’s standard policies. Such reimbursements shall be made by the Company on a timely basis upon submission by Executive of vouchers in accordance with the Company’s standard procedures. In addition, the Company shall provide Executive with either an appropriate monthly automobile allowance or an appropriate automobile, and shall cover the costs associated with the operation of the automobile, including insurance, maintenance and fuel.
(e) No Other Compensation or Benefits; Payment. The compensation and benefits specified in this Section 3 and in Section 4 of this Agreement shall be in lieu of any and all other compensation and benefits. Payment of all compensation and benefits to Executive specified in this Section 3 and in Section 4 of this Agreement (i) shall be made in accordance with the relevant Company policies in effect from time to time to the extent the same are consistently applied, including normal payroll practices, and (ii) shall be subject to all legally required and customary withholdings.
(f) Cessation of Employment. In the event Executive shall cease to be employed by the Company for any reason, then Executive’s compensation and benefits shall cease on the date of such event, except as otherwise specifically provided herein or in any applicable employee benefit plan or program or as required by law.
4. Compensation Following Termination. Executive shall be entitled only to the following compensation and benefits upon termination of his employment:
(a) General. On any termination of Executive’s employment, he shall be entitled to:
(i) any accrued but unpaid Base Salary and unused vacation through the date of termination, which amount shall be payable within ten (10) working days of the date of termination;
(ii) any accrued but unpaid expenses required to be reimbursed in accordance with Section 3(e) of this Agreement;
(iii) receive any benefits to which he may be entitled upon termination of his employment pursuant to the plans and programs referred to in Section 3(d) hereof or as may be required by applicable law; and
(iv) receive any amounts or benefits to which he may be entitled upon termination of his employment pursuant to the plans and agreement referred to in Sections 3(b) and 3(c) hereof in accordance with the terms of such plans and agreement.
(b) Termination by the Company for Cause; Termination by Executive Without Good Reason. In the event that Executive’s employment is terminated prior to the expiration of the Term (i) by the Company for Cause (as defined below) or (ii) by Executive without Good Reason (as defined below), Executive (or his estate, as the case may be) shall be entitled only to those items identified in Section 4(a).
(c) Termination by Reason of Disability. In the event that Executive’s employment is terminated prior to the expiration of the Term by reason of Executive’s Disability (as defined below), Executive shall be entitled only to the following:
(i) those items identified in Section 4(a);
(ii) if Executive timely elects COBRA continuation coverage, the Company will pay through the COBRA Payment End Date (as defined below) the monthly premiums for the level of coverage Executive maintained on the date of termination. The “COBRA Payment End Date” shall be the earlier of (A) eighteen months following the date of termination and (B) the date Executive becomes employed by a third party and is eligible for coverage under the group benefits plan of the new employer. If during the period Executive is receiving this benefit, Executive obtains new employment and becomes eligible for coverage under the group benefits plan of the new employer, Executive must promptly notify the Company in writing of such eligibility; and
(iii) the continued payment of Base Salary through the end of the Term (determined immediately prior to the termination of Executive’s employment), less any disability benefits provided to Executive by the Company or under any disability insurance paid for or for which premiums paid by Executive were reimbursed by the Company.
(d) Termination by Reason of Death. In the event that Executive’s employment is terminated prior to the expiration of the Term by reason of Executive’s death, Executive shall be entitled only to the following:
(i) those items identified in Section 4(a);
(ii) if Executive’s spouse timely elects COBRA continuation coverage, the Company will pay the monthly premiums during the COBRA continuation coverage period for the level of coverage Executive maintained prior to his death; and
(iii) the continued payment of Base Salary (determined immediately prior to Executive’s death) to Executive’s estate during the thirty-six month period following Executive’s death.
(e) Termination by the Company Without Cause or by Executive for Good Reason. In the event that Executive’s employment is terminated prior to the expiration of the Term (x) by the Company without Cause or (y) by Executive for Good Reason, Executive shall be entitled only to the following:
(i) those items identified in Section 4(a);
(ii) if Executive timely elects COBRA continuation coverage, the Company will pay through the COBRA Payment End Date the monthly premiums for the level of coverage Executive maintained on the date of termination, provided that if during the period Executive is receiving this benefit, Executive obtains new employment and becomes eligible for coverage under the group benefits plan of the new employer, Executive must promptly notify the Company in writing of such eligibility; and
(iii) the payment of an amount equal to the product of one (1) times the sum of (A) Executive’s Base Salary (as determined immediately prior to Executive’s termination of employment) and (B) an amount equal to the average of the annual bonuses paid or payable by Company to Executive for the two annual bonus periods ended immediately prior to year in which his employment was terminated (the “Average Bonus”), which amount shall be payable in equal installments during the twelve (12) months following the date of termination in accordance with the Company’s normal payroll practices (the “Severance Pay”).
(f) Termination by Executive in Connection With a Change of Control. In the event that Executive’s employment is terminated prior to the expiration of the Term within six (6) months before or twelve (12) months following a Change of Control (i) by the Company without Cause or (ii) by Executive for Good Reason, Executive shall be entitled to the payments and benefits provided in Section 4(e) except that the Severance Pay shall be an amount equal to product of two (2) times the sum of (A) Executive’s Base Salary (as determined immediately prior to Executive’s termination of employment) and (B) the Average Bonus, which amount shall be payable in equal installments during the twenty-four (24) months following the date of termination in accordance with the Company’s normal payroll practices.
(g) Definitions of Cause, Good Reason, Disability, and Change of Control.
(i) For purposes of this Agreement, the term “Cause” shall mean any of the following: (A) Executive has misappropriated any funds or property of the Company or its affiliates, or has willfully destroyed property of the Company or its affiliates; (B) Executive has been convicted of (1) a felony or (2) any crime (x) involving fraud, dishonesty or moral turpitude or (y) that materially impairs Executive’s ability to perform his duties and responsibilities with the Company or that causes material damage to the Company or its affiliates or their operations or reputation; (C) Executive has 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 has resulted or is reasonably likely to result in damage to the Company or its affiliates; (D) Executive has engaged in any other willful misconduct which constitutes a breach of fiduciary duty or the duty of loyalty to the Company or its affiliates and which has resulted or is reasonably likely to result in material damage to the Company or its affiliates; (E) Executive’s willful and material failure to perform his duties with the Company (other than as a result of total or partial incapacity due to physical or mental illness), provided, however, that, if susceptible of cure, a termination by the Company for Cause under this Section 4(g)(i)(E) shall be effective only if, within 15 days following delivery of a written notice by the Company to Executive that Executive has materially failed to perform his duties and that reasonably identifies the reason(s) for such determination, Executive has failed to cure such failure to perform; (F) Executive (1) has willfully violated the Company’s material policies or rules, which violation has resulted or is reasonably likely to result in material damage to the Company or its affiliates, or (2) is guilty of gross negligence or willful misconduct in the performance of his duties with the Company, which has resulted or is reasonably likely to result in material damage to the Company or its affiliates, provided, however, that if susceptible of cure, a termination under this Section 4(g)(i)(F) shall be effective only if within 15 days following delivery of a written notice by the Company specifying the nature of the breach, Executive has materially failed to correct the same; or (G) Executive has materially breached any material provisions of this Agreement, provided, however, that, if susceptible of cure, a termination by the Company for Cause under this Section 4(g)(i)(G) shall be effective only if, within 15 days following delivery to Executive that Executive has materially breached a material provision of this Agreement and reasonably identifies the reason(s) for such determination, Executive has failed to cure such breach.
(ii) For purposes of this Agreement, the term “Good Reason” shall mean any of the following: (A) Executive ceases to be President and Chief Executive Officer of the Company or a failure to appoint him to, or any removal of him from, the Board of Directors of the Company or FCB Financial Holdings, Inc. (formerly known as Bond Street Holdings, Inc.) (“Holdings”); (B) Executive ceases to be the most senior executive officer (other than Xxxxxxx Xxxx and Xxx Xxxxxxxxx) of any affiliated group that includes the Company; (C) after the public offering of shares of Holdings, Executive ceases to be the most senior executive officer (other than Xxxxxxx Xxxx and Xxx Xxxxxxxxx) of a public corporation; (D) the relocation of Executive’s principal work location more than 50 miles from the greater Miami or Fort Lauderdale, Florida metropolitan area; (E) the failure of the Company to indemnify Executive (including the prompt advancement of expenses), or to maintain directors’ and officers’ liability insurance coverage for Executive, as required hereunder, or (F) the Company decreases or materially fails to pay the compensation described in Section 3 of this Agreement (in accordance with, and subject to, such provisions); provided, however, that a termination by Executive for Good Reason under this Section 4(g)(ii) shall be effective only if, within 30 days following delivery of a written notice by Executive to the Company that Executive is terminating his employment for Good Reason and that reasonably identified the reason(s) for such determination, such notice to be given not later than 90 days after the occurrence of the event(s) claimed to constitute Good Reason, the Company has failed to cure the circumstances giving rise to Good Reason.
(iii) For purposes of this Agreement, a “Disability” shall occur in the event Executive is unable to perform the duties and responsibilities contemplated under this Agreement for a period of either (A) 90 consecutive days or (B) 6 months in any 12-month period due to physical or mental incapacity or impairment. During any period that Executive fails to perform Executive’s duties hereunder as a result of incapacity or impairment due to physical or mental illness (the “Disability Period”), Executive shall continue to receive the compensation and benefits provided by Section 3 of this Agreement until Executive’s employment hereunder is terminated; provided, however, that the amount of Base Salary and benefits received by Executive during the Disability Period shall be reduced by the aggregate amounts, if any, payable to Executive under any disability benefit plan or program provided to Executive by the Company in respect of such period.
(iv) For purposes of this Agreement, a “Change of Control” shall be deemed to have occurred if:
(A) any “person” (together with any other persons acting as a group) is or becomes a “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, (the “Act”)) directly or indirectly, of securities of the Company or Holdings representing more than 50% of the total voting power represented by then outstanding voting securities of the Company or Holdings (calculated in accordance with Rule 13d-3 of the Act); provided, that the term “persons” is defined in Sections 13(d) and 14(d) of the Act shall not include a trustee or other fiduciary holding securities under any employee benefit plan of the Company or Holdings; or
(B) there shall be consummated a merger of the Company or Holdings, the sale or disposition by the Company or Holdings of all or substantially all of its assets, or any other business combination of the Company or Holdings with any other corporation, other than any such merger or business combination which would result in the voting securities of the Company or Holdings outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 50% of the total voting power represented by the voting securities of the Company or Holdings or such surviving entity outstanding immediately after such merger or business combination; or
(C) a majority of the directors who constituted the Board of Directors of the Company or Holdings at the beginning of any 12-month period are replaced by directors whose appointment or election is not endorsed by a majority of the members of the Board of Directors before the date of the appointment or election.
(h) Effect of Material Breach of Section 5 on Compensation Following Termination of Employment. If, at the time of termination of Executive’s employment or any time thereafter, Executive is in material breach of any covenant contained in Section 5 hereof (which breach, if susceptible to cure, continues unremedied 15 days following the delivery of written notice by the Company of such material breach to Executive), except as otherwise required by law, Executive shall not be entitled to any payments (or if payments have commenced, any continued payment) under this Section 4.
(i) No Further Liability; Release. Other than providing the compensation and benefits provided for in accordance with this Section 4, the Company shall have no further obligation or liability to Executive or any other person under this Agreement. The payment of any amounts pursuant to this Section 4 (other than payments required by law) is expressly conditioned upon the delivery by Executive to the Company, within 45 days after the date of the termination of Executive’s employment (and the revocation period for the release lapsing without revocation within such 45 day period), of a general release in form and substance reasonably satisfactory to the Company of any and all claims Executive may have against the Company and its directors, officers, employees, subsidiaries, affiliates, stockholders, successors, assigns, agents and representatives. At the time Executive delivers his general release to the Company, the Company shall deliver a release of its claims against Executive other than those claims which would arise from Executive’s fraudulent, criminal or otherwise intentional wrongful misconduct or from Executive’s knowing violation of federal or state laws or regulations. If any payment or benefit provided pursuant to this Section 4 that is subject to the receipt of the release constitutes nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and could potentially be made or provided in two different calendar years based on when Executive signs and delivers the release, such payment or benefit shall be made or provided no earlier than the first business day of the second of such calendar years.
5. Exclusive Employment; Noncompetition; Nonsolicitation; Nondisclosure of Proprietary Information; Surrender of Records; Inventions and Patents.
(a) No Conflict; No Other Employment. During the period of Executive’s employment with the Company, Executive shall not: (i) engage in any activity which conflicts or interferes with or derogates from the performance of Executive’s duties hereunder nor shall Executive engage in any other business activity, whether or not such business activity is pursued for gain or profit, except as approved in advance in writing by the Company; provided, however, that Executive shall be entitled to manage his personal investments and otherwise attend to personal affairs, including charitable, social and political activities, in a manner that does not unreasonably interfere with his responsibilities hereunder, or (ii) accept or engage in any other employment, whether as an employee or consultant or in any other capacity, and whether or not compensated therefor.
(b) Noncompetition; Nonsolicitation.
(i) Executive acknowledges and recognizes the highly competitive nature of the businesses of Holdings, the Company and each of their respective affiliates (collectively, the “Company Group”) and that access to the Company Group’s confidential records and proprietary information and exposure to customers of the Company Group renders him special and unique within the Company Group’s industry. In consideration of the payment by the Company to Executive of amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, pursuant to Sections 3 and 4 hereof) and other obligations undertaken by the Company hereunder, Executive agrees that during (1) his employment with the Company, and (2) the period beginning on the date of termination of employment and ending on the first anniversary of the date of termination of employment (the “Covered Time”), Executive shall not, directly or indirectly, engage (as owner, investor, partner, stockholder, employer, employee, consultant, advisor, director or otherwise) in any Competing Business in any Restricted Area (each as defined below), provided that the provisions of this Section 5(b)(i) will not be deemed breached merely because Executive owns less than 5% of the outstanding common stock of a publicly-traded company. For purposes of this Agreement, “Competing Business” shall mean any community or regional commercial bank, and “Restricted Area” shall mean the State of Florida.
(ii) In further consideration of the payment by the Company to Executive of amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, pursuant to Sections 3 and 4 hereof) and other obligations undertaken by the Company hereunder, Executive agrees that during his employment and the Covered Time, he shall not, directly or indirectly, (1) solicit, encourage or attempt to solicit or encourage any of the employees, agents, consultants or representatives of the Company Group to terminate his, her, or its relationship with the Company Group; (2) solicit, encourage or attempt to solicit or encourage any of the employees, agents, consultants or representatives of the Company Group to become employees, agents, representatives or consultants of any other person or entity; (3) solicit or attempt to solicit any customer, vendor or distributor of the Company Group in connection with a Competing Business with respect to any product or service being furnished, made, sold, rented or leased by the Company Group; or (4) persuade or seek to persuade any customer, vendor or distributor of the Company Group to cease to do business or to reduce the amount of business which such customer, vendor or distributor has customarily done or contemplates doing with the Company Group, whether or not the relationship between the Company Group and such customer, vendor or distributor was originally established in whole or in part through Executive’s efforts. For purposes of this Section 5(b)(ii) only, during the Covered Time, the terms “customer,” “vendor” and “distributor” shall mean a customer, vendor or distributor who has done business with the Company Group within twelve months preceding the termination of Executive’s employment.
(iii) Executive understands that the provisions of this Section 5(b) may limit his ability to earn a livelihood in a business similar to the business of the Company Group but nevertheless agrees and hereby acknowledges that the consideration provided under this Agreement, including any amounts or benefits provided under Sections 3 and 4 hereof and other obligations undertaken by the Company hereunder, is sufficient to justify the restrictions contained in such provisions. In consideration thereof and in light of Executive’s education, skills and abilities, Executive agrees that he will not assert in any forum that such provisions prevent him from earning a living or otherwise are void or unenforceable or should be held void or unenforceable.
(c) Proprietary Information. Executive acknowledges that during the course of his employment with the Company he will necessarily have access to and make use of proprietary information and confidential records of the Company Group. Executive covenants that he shall not during his employment or at any time thereafter, directly or indirectly, use for his own purpose or for the benefit of any person or entity other than the Company Group, nor otherwise disclose to any individual or entity, any proprietary information, unless such disclosure is made in the good faith performance of Executive’s duties hereunder, has been authorized in writing by the Company, or is otherwise required by law. Executive acknowledges and understands that the term “proprietary information” includes, but is not limited to: (i) the software products, programs, applications, and processes utilized by the Company Group; (ii) the name and/or address of any customer or vendor of the Company Group or any information concerning the transactions or relations of any customer or vendor of the Company Group with the Company Group or any of its or their partners, principals, directors, officers or agents; (iii) any information concerning any product, technology, or procedure employed by the Company Group but not generally known to its or their customers, vendors or competitors, or under development by or being tested by the Company Group but not at the time offered generally to customers or vendors; (iv) any information relating to the computer software, computer systems, pricing or marketing methods, sales margins, cost of goods, cost of material, capital structure, operating results, borrowing arrangements or business plans of the Company Group; (v) any information which is generally regarded as confidential or proprietary in any line of business engaged in by the Company Group; (vi) any business plans, budgets, advertising or marketing plans; (vii) any information contained in any of the written or oral policies and procedures or manuals of the Company Group; (viii) any information belonging to customers or vendors of the Company Group or any other person or entity which the Company Group has agreed to hold in confidence; (ix) any inventions, innovations or improvements covered by this Agreement; and (x) all written, graphic and other material relating to any of the foregoing. Executive acknowledges and understands that information that is not novel or copyrighted or patented may nonetheless be proprietary information. The term “proprietary information” shall not include information that is or becomes generally available to and known by the public or information that is or becomes available to Executive on a non-confidential basis from a source other than the Company Group or the directors, officers, employees, partners, principals or agents of the Company Group (other than as a result of a breach of any obligation of confidentiality).
(d) Confidentiality and Surrender of Records. Executive shall not during his employment or at any time thereafter (irrespective of the circumstances under which Executive’s employment by the Company terminates), except as required by law, directly or indirectly publish, make known or in any fashion disclose any confidential records to, or permit any inspection or copying of confidential records by, any individual or entity other than in the course of such individual’s or entity’s employment or retention by the Company. Upon termination of employment for any reason or request by the Company, Executive shall deliver promptly to the Company all property and records of the Company Group, including, without limitation, all confidential records. For purposes hereof, “confidential records” means all correspondence, reports, memoranda, files, manuals, books, lists, financial, operating or marketing records, magnetic tape, or electronic or other media or equipment of any kind which may be in Executive’s possession or under his control or accessible to him which contain any proprietary information. All property and records of the Company Group (including, without limitation, all confidential records) shall be and remain the sole property of the Company Group during Executive’s employment with the Company and thereafter.
(e) Inventions and Patents. All inventions, innovations or improvements (including policies, procedures, products, improvements, software, ideas and discoveries, whether patent, copyright, trademark, service xxxx, or otherwise) conceived or made by Executive, either alone or jointly with others, in the course of his employment by the Company, belong to the Company. Executive will promptly disclose in writing such inventions, innovations or improvements to the Company and perform all actions reasonably requested by the Company to establish and confirm such ownership by the Company, including, but not limited to, cooperating with and assisting the Company in obtaining patents, copyrights, trademarks, or service marks for the Company in the United States and in foreign countries.
(f) Mutual Non-Disparagement. Executive shall not, at any time during or after his employment with the Company, make or publish any derogatory, unfavorable, negative, disparaging, false, damaging or deleterious written or oral statements or remarks regarding the Company Group or any members of its boards of directors or managements, or any of their respective business affairs or performance. The Company Group, members of its Boards and its senior executives shall not, at any time during or after Executive's employment with the Company, make or publish any derogatory, unfavorable, negative, disparaging, false, damaging or deleterious written or oral statements or remarks regarding Executive.
(g) Enforcement. Executive acknowledges and agrees that, by virtue of his position, his services and access to and use of confidential records and proprietary information, any violation by him of any of the undertakings contained in this Section 5 would cause the Company Group immediate, substantial and irreparable injury for which it or they have no adequate remedy at law. Accordingly, Executive agrees and consents to the entry of an injunction or other equitable relief by a court of competent jurisdiction restraining any violation or threatened violation of any undertaking contained in this Section 5. Executive waives posting by the Company Group of any bond otherwise necessary to secure such injunction or other equitable relief. Rights and remedies provided for in this Section 5 are cumulative and shall be in addition to rights and remedies otherwise available to the parties hereunder or under any other agreement or applicable law.
6. Assignment and Transfer.
(a) Company. This Agreement shall inure to the benefit of and be enforceable by, and may be assigned by the Company without Executive’s consent to, any purchaser of all or substantially all of the Company’s business or assets, any successor to the Company or any assignee thereof (whether direct or indirect, by purchase, merger, consolidation or otherwise).
(b) Executive. The parties hereto agree that Executive is obligated under this Agreement to render personal services of a special, unique, unusual, extraordinary and intellectual character, thereby giving this Agreement special value. Executive’s rights and obligations under this Agreement shall not be transferable by Executive by assignment or otherwise, and any purported assignment, transfer or delegation thereof shall be void; provided, however, that if Executive shall die, all amounts then payable to Executive hereunder shall be paid in accordance with the terms of this Agreement to Executive’s estate.
7. Miscellaneous.
(a) Other Obligations. Executive represents and warrants that neither Executive’s employment with the Company nor Executive’s performance of Executive’s obligations hereunder will conflict with or violate or otherwise are inconsistent with any other obligations, legal or otherwise, which Executive may have. Executive covenants that he shall perform his duties hereunder in a professional manner and not in conflict or violation, or otherwise inconsistent with other obligations legal or otherwise, which Executive may have.
(b) Nondisclosure. Executive will not disclose to the Company, use, or induce the Company to use, any proprietary information, trade secrets or confidential business information of others.
(c) Cooperation. Following termination of employment with the Company for any reason, Executive shall cooperate with the Company, as reasonably requested by the Company, to effect a transition of Executive’s responsibilities and to ensure that the Company is aware of all matters being handled by Executive. The Company shall reimburse Executive’s reasonable expenses incurred in connection with such pre-approved work.
(d) Assistance in Proceedings, Etc. Executive shall, during and after his employment, upon reasonable notice, furnish such information and proper assistance to the Company as may reasonably be required by the Company in connection with any legal or quasi-legal proceeding, including any external or internal investigation, involving the Company or any of its affiliates. The Company shall reimburse Executive’s reasonable expenses incurred in connection with the foregoing obligations.
(e) Mitigation. Executive shall not be required to mitigate damages or the amount of any payment provided to him under Section 4 of this Agreement by seeking other employment or otherwise, nor shall the amount of any payments provided to Executive under Section 4 be reduced by any compensation earned by Executive as the result of employment by another employer after the termination of Executive’s employment or otherwise.
(f) No Right of Set-off, Etc. The obligation of the Company to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances, including without limitation, set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against Executive or others.
(g) Protection of Reputation. During Executive’s employment with the Company and thereafter, Executive agrees that he will take no action which is intended, or would reasonably be expected, to harm the reputation of the Company or any of its affiliates or which would reasonably be expected to lead to unwanted or unfavorable publicity to the Company or its affiliates. Nothing herein shall prevent Executive from making any truthful statement in connection with any investigation by the Company or any governmental authority or in any legal proceeding.
(h) Governing Law. This Agreement shall be governed by and construed (both as to validity and performance) and enforced in accordance with the internal laws of the State of Florida applicable to agreements made and to be performed wholly within such jurisdiction, without regard to the principles of conflicts of law or where the parties are located at the time a dispute arises.
(i) Arbitration.
(i) General. Executive and the Company specifically, knowingly, and voluntarily agree that they shall use final and binding arbitration to resolve any dispute (an “Arbitrable Dispute”) between Executive, on the one hand, and the Company (or any affiliate of the Company), on the other hand. This arbitration agreement applies to all matters arising out of or related to this Agreement, any other agreement between Executive and the Company, or Executive’s employment with the Company or the termination thereof, including without limitation disputes about the validity, interpretation, or effect of this Agreement, or alleged violations of it, any payments due hereunder and all claims arising out of any alleged discrimination, harassment or retaliation, including, but not limited to, those covered by Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, and the Americans With Disabilities Act or any other federal, state or local law relating to discrimination in employment, provided, however, that disputes under the Indemnification Agreement shall not be arbitrable pursuant to this provision.
(ii) Injunctive Relief. Notwithstanding anything to the contrary contained herein, the Company and any affiliate of the Company (if applicable) shall have the right to seek injunctive or other equitable relief from a court of competent jurisdiction to enforce Section 5 of this Agreement. For purposes of seeking enforcement of Section 5, the Company and Executive hereby consent to the jurisdiction of any state or federal court sitting in the County of Xxxxxxx, State of Florida.
(iii) The Arbitration. Any arbitration pursuant to this Section 7(i) will take place in Naples, Florida, under the auspices of the American Arbitration Association, in accordance with the National Rules for the Resolution of Employment Disputes of the American Arbitration Association then in effect, and before a panel of three arbitrators selected in accordance with such rules. Judgment upon the award rendered by the arbitrators may be entered in any state or federal court sitting in the County of Xxxxxxx, State of Florida.
(iv) Fees and Expenses. In any arbitration pursuant to this Section 7(i), except as otherwise required by law, each party shall be responsible for the fees and expenses of its own attorneys and witnesses, and the fees and expenses of the arbitrators shall be divided equally between the Company, on the one hand, and Executive, on the other hand.
(v) Exclusive Forum. Except as permitted by Section 7(i)(ii) hereof, arbitration in the manner described in this Section 7(i) shall be the exclusive forum for any Arbitrable Dispute. Except as permitted by Section 7(i)(ii), should Executive or the Company attempt to resolve an Arbitrable Dispute by any method other than arbitration pursuant to this Section 7(i), the responding party shall be entitled to recover from the initiating party all damages, expenses, and attorneys’ fees incurred as a result of that breach.
(j) Compliance with Section 409A. The Company makes no representations regarding the tax implications of the compensation and benefits to be paid to Executive under this Agreement, including without limit, under Section 409A of the Code. It is the intention of the parties hereto that payments and benefits under this Agreement be exempt from, or in compliance with, Section 409A and accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be exempt from or in compliance with Section 409A. To the extent any payments of money or other benefits due to Executive under this Agreement could cause the application of an acceleration or additional tax under Section 409A, such payments or other benefits shall be deferred if deferral will make such payments or other benefits compliant under Section 409A, or otherwise such payments or other benefits shall be restructured, to the extent possible, in a manner determined by the Company that does not cause such acceleration or additional tax. With respect to any amount payable or benefit provided that the Company reasonably determines would be nonqualified deferred compensation subject to Section 409A, all references in this Agreement to Executive's termination of employment shall mean his “separation from service” within the meaning of Section 409A and Treasury regulations promulgated thereunder. Notwithstanding any other provision in this Agreement, if as of the date on which Executive's employment terminates, Executive is a "specified employee" within the meaning of Section 409A and the regulations as determined by the Company, then to the extent any amount payable or benefit provided under this Agreement that the Company reasonably determines would be nonqualified deferred compensation subject to Section 409A, that under the terms of this Agreement would be payable prior to the six-month anniversary of Executive's effective date of termination, such payment or benefit shall be delayed until the earlier to occur of (a) the six-month anniversary of such termination date or (b) the date of Executive's death. In the case of taxable benefits that constitute deferred compensation, the Company, in lieu of a delay in payment, may require Executive to pay the full costs of such benefits during the period described in the preceding sentence and reimburse that Executive for said costs within thirty (30) calendar days after the end of such period. With respect to any reimbursements under this Agreement, such reimbursement shall be made on or before the last day of Executive's taxable year following the taxable year in which the expense was incurred by Executive. The amount of any expenses eligible for reimbursement or the amount of any in-kind benefits provided, as the case may be, under this Agreement during any calendar year shall not affect the amount of expenses eligible for reimbursement or the amount of any in-kind benefits provided during any other calendar year. The right to reimbursement or to any in-kind benefit pursuant to this Agreement shall not be subject to liquidation or exchange for any other benefit. Each payment made under this Agreement shall be designated a “separate payment” within the meaning of Section 409A.
(k) Section 280G Gross-up. If Holdings or the Company incurs a change in ownership or a change in effective control (as each is defined in Regulation Section 1.280G-1, Qs&As 27 and 28) (either a “Change in Ownership”) prior to the first anniversary of a public offering of the shares of Holdings raising at least $100,000,000 in proceeds and to the extent permitted by applicable law, then:
(i) In the event it is determined that as a result of such Change in Ownership any payment or distribution by the Company to or for the benefit of Executive pursuant to the terms of this Agreement or otherwise (including without limitation any deferred compensation plans), determined without regard to any additional payments required under this Section 7(k)(i) (a "Payment"), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect thereto are incurred by Executive with respect to any such tax (any such tax, together with any such interest or penalties, are hereinafter collectively referred to as the "Additional Tax"), then the Executive shall be entitled to receive from the Company an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Additional Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Additional Tax imposed upon the Payments; provided, however, that notwithstanding the foregoing provisions of this Section 7(k)(i), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the amount of the aggregate Payments is less than 110% of the product of (A) three (3) times (B) the Executive's Base Amount (as such term is defined in Section 280G of the Code), then no Gross-Up Payment shall be made to the Executive and the Company shall reduce the Payments until no amount of the Payments shall be subject to the exercise tax under Section 4999 of the Code in the following order (unless Executive, to the extent permitted by Section 409A of the Code, elect another method of reduction by written notice to the Company prior to the Section 280G event): (i) any cash severance payments (starting with the last payments due), (ii) any other cash amounts payable to Executive (starting with the last payments due), (iii) any benefits valued as parachute payments, (iv) acceleration of the vesting of any stock options for which the exercise price exceeds the then fair market value of the underlying stock (starting with the last vesting tranches), (v) acceleration of the vesting of any equity award that is not a stock option (starting with the last vesting tranches) and (vi) acceleration of the vesting of any stock options for which the exercise price is less than the fair market value of the underlying stock (starting with the last vesting tranches).
(ii) Subject to the provisions of Section 7(k)(iii), all other determinations required to be made under this Section 7(k), including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Company's public accounting firm (the "Accounting Firm"). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 7(k), shall be paid by the Company to Executive within the earlier of five (5) business days after the Company's receipt of the Accounting Firm's determination and the end of Executive's taxable year next following the taxable year in which Executive pays the Additional Taxes to which such Gross-Up Payment relates to the applicable taxing authority. Any determination by the Accounting Firm shall be binding upon the Company and Executive.
(iii) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-calendar-day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Additional Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Any amount the Company is obligated to pay or indemnify under this Section 7(k)(iii) shall be paid or indemnified on or before the last day of the calendar year following the calendar year in which the expense, cost or Additional Tax was incurred. Without limitation on the foregoing provisions of this Section 7(k)(iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided further, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive and shall indemnify and hold Executive harmless, on an after-tax basis, from any Additional Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance. The Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.
(iv) As a result of the uncertainty in the application of Code Section 4999 at the time of the initial determination by the Accounting Firm hereunder, it is possible that the Internal Revenue Service ("IRS") or other agency will claim that a greater or lesser Additional Tax is due. In the event that the Additional Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, at the time that the amount of such reduction in Additional Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Additional Tax and taxes imposed on the Gross-Up Payment being repaid by the Executive) plus interest on the amount of such repayment at 120% of the rate provided in Code Section 1274(b)(2)(B). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such excess) at the time that the amount of such excess is finally determined. Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Additional Tax with respect to the total Payments. The Company shall pay all fees and expenses of Executive relating to a claim by the IRS or other agency.
(l) Limitation on Benefits. If Holdings or the Company incurs a Change in Ownership) on and after the first anniversary of a public offering of the shares of Holdings raising at least $100,000,000 in proceeds, notwithstanding anything to the contrary contained in this Agreement, to the extent that any of the payments and benefits provided for under this Agreement or any other agreement or arrangement between the Company and Executive (collectively, the “Parachute Payments”) (i) constitute a “parachute payment” within the meaning of Section 280G of the Code as a result of such Change of Ownership and (ii) but for this Section 7(l), would be subject to the excise tax imposed by Section 4999 of the Code, then the Parachute Payments shall be payable either (i) in full or (ii) as to such lesser amount which would result in no portion of such Parachute Payments being subject to excise tax under Section 4999; whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in Executive’s receipt on an after-tax basis, of the greatest amount of benefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under Section 4999. Unless Executive and the Company otherwise agree in writing, any determination required under this Section 7(l) shall be made in writing by the Accounting Firm, whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 7(l), the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely in reasonable, good faith interpretations concerning the application of Sections 280G and 4999. The Company and Executive shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably request in order to make a determination under this Section 7(l). The Company shall bear all costs the Accounting Firm may reasonably incur in connection with any calculations contemplated by this Section 7(l). If the limitation set forth in this Section 7(l) is applied to reduce an amount payable to Executive, and the Internal Revenue Service successfully asserts that, despite the reduction, Executive has nonetheless received payments which are in excess of the maximum amount that could have been paid to Executive without being subjected to any excise tax, then, unless it would be unlawful for the Company to make such a loan or similar extension of credit to Executive, Executive may repay such excess amount to the Company as though such amount constitutes a loan to Executive made at the date of payment of such excess amount, bearing interest at 120% of the applicable federal rate (as determined under Section 1274(d) of the Code in respect of such loan). The reduction of Company payments, if applicable, shall be effected in the following order (unless Executive, to the extent permitted by Section 409A of the Code, elects another method of reduction by written notice to the Company prior to the Section 280G event): (i) any cash severance payments (starting with the last payments due), (ii) any other cash amounts payable to Executive (starting with the last payments due), (iii) any benefits valued as parachute payments, (iv) acceleration of the vesting of any stock options for which the exercise price exceeds the then fair market value of the underlying stock (starting with the last vesting tranches), (v) acceleration of the vesting of any equity award that is not a stock option (starting with the last vesting tranches) and (vi) acceleration of the vesting of any stock options for which the exercise price is less than the fair market value of the underlying stock (starting with the last vesting tranches).
(m) Entire Agreement. This Agreement contain the entire agreement and understanding between the parties hereto in respect of Executive’s employment and supersedes, cancels and annuls the Prior Agreement and any prior or contemporaneous written or oral agreements, understandings, commitments and practices between them respecting Executive’s employment.
(n) Amendment. This Agreement may be amended only by a writing which makes express reference to this Agreement as the subject of such amendment and which is signed by Executive and, on behalf of the Company, by its duly authorized officer.
(o) Severability. If any provision of this Agreement or the application of any such provision to any party or circumstances shall be determined by any court of competent jurisdiction or arbitration panel to be invalid or unenforceable to any extent, the remainder of this Agreement, or the application of such provision to such person or circumstances other than those to which it is so determined to be invalid or unenforceable, shall not be affected thereby, and each provision hereof shall be enforced to the fullest extent permitted by law. If any provision of this Agreement, or any part thereof, is held to be invalid or unenforceable because of the scope or duration of or the area covered by such provision, the parties hereto agree that the court or arbitration panel making such determination shall reduce the scope, duration and/or area of such provision (and shall substitute appropriate provisions for any such invalid or unenforceable provisions) in order to make such provision enforceable to the fullest extent permitted by law and/or shall delete specific words and phrases, and such modified provision shall then be enforceable and shall be enforced. The parties hereto recognize that if, in any judicial or arbitral proceeding, a court or arbitration panel shall refuse to enforce any of the separate covenants contained in this Agreement, then that invalid or unenforceable covenant contained in this Agreement shall be deemed eliminated from these provisions to the extent necessary to permit the remaining separate covenants to be enforced. In the event that any court or arbitration panel determines that the time period or the area, or both, are unreasonable and that any of the covenants is to that extent invalid or unenforceable, the parties hereto agree that such covenants will remain in full force and effect, first, for the greatest time period, and second, in the greatest geographical area that would not render them unenforceable.
(p) Construction. The headings and captions of this Agreement are provided for convenience only and are intended to have no effect in construing or interpreting this Agreement. The language in all parts of this Agreement shall be in all cases construed according to its fair meaning and not strictly for or against the Company or Executive. As used herein, the words “day” or “days” shall mean a calendar day or days.
(q) Nonwaiver. Neither any course of dealing nor any failure or neglect of either party hereto in any instance to exercise any right, power or privilege hereunder or under law shall constitute a waiver of any other right, power or privilege or of the same right, power or privilege in any other instance. All waivers by either party hereto must be contained in a written instrument signed by the party to be charged and, in the case of the Company, by its duly authorized officer.
(r) Notices. Any notice required or permitted hereunder shall be in writing and shall be sufficiently given if personally delivered or if sent by registered or certified mail, postage prepaid, with return receipt requested, addressed: (i) in the case of the Company, to Florida Community Bank, National Association, 0000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxx 00000, Attn: Xxxxxxx Xxxx, Executive Chairman of the Company; and (ii) in the case of Executive, to Executive’s last known address as reflected in the Company’s records, or to such other address as Executive shall designate by written notice to the Company. Any notice given hereunder shall be deemed to have been given at the time of receipt thereof by the person to whom such notice is given if personally delivered, on the date following delivery to an overnight delivery service for next day delivery prior to such service’s deadline for such delivery, or on the date that is three days after the date of mailing if sent by registered or certified mail.
(s) Survival. Cessation or termination of Executive’s employment with the Company shall not result in termination of this Agreement. The respective obligations of Executive and the Company as provided in Sections 4, 5, 6 and 7 of this Agreement shall survive the expiration or early termination of the Term of this Agreement.
(t) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall be deemed to be one and the same instrument. Signatures delivered by facsimile shall be effective for all purposes.
(u) D&O Insurance; Indemnification. The Company shall maintain, for the benefit of Executive, director and officer liability insurance in such form and with such limits and coverages as are reasonably acceptable to Executive, or at least as comprehensive as, and in an amount that is at least equal to, that maintained by the Company on the date hereof. In addition, Executive shall be indemnified by the Company against liability as an officer and director of the Company and any subsidiary or affiliate of the Company to the maximum extent permitted by the Company’s Charter and/or By-Laws. Executive’s rights under this Section 7(u) shall continue so long as he may be subject to such liability, whether or not this Agreement may have terminated prior thereto.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed on its behalf by an officer thereunto duly authorized and Executive has duly executed this Agreement, all as of the date and year first written above.
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FLORIDA COMMUNITY BANK, NATIONAL ASSOCIATION |
EXECUTIVE |
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| By: | /s/ Xxxxxxx Xxxx |
/s/ Xxxx Xxxxxx |
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Name: Xxxxxxx Xxxx |
Xxxx Xxxxxx |
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Title: Executive Chairman |
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