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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of this 1st day
of July, 1998, by and between South Florida Bank Holding Corporation (the
"Holding Corporation") and South Florida Bank, both of whose addresses are at
0000 XxXxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000 (collectively, the
"Employer"), and Xxxxxx X. Xxxxxx, Xx., whose address is set forth below his
signature to this Agreement (the "Executive").
WITNESSETH:
WHEREAS, the Employer desires to retain the services of and employ the
Executive 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 Employer and Executive covenant and agree
as follows:
1. Employment. Pursuant to the terms and conditions of this
Agreement, the Employer agrees to employ the Executive and the Executive agrees
to render services to the Employer as set forth herein.
2. Position and Duties. During the term of this Agreement, the
Executive shall:
(a) Serve as Executive Vice President and Senior Loan
Officer of South Florida Bank (the "Bank"); and
(b) Undertake such duties as may be assigned to him from
time to time by the the Employer's President and Chief Executive
Officer; and
(c) Devote his full business time, energy, skill and best
efforts to promote the Holding Corporation's and the Bank's business
and affairs.
3. Term. The term of this Agreement shall be for a period of
eighteen months, commencing on July 1, 1998 and expiring (unless sooner
terminated as otherwise provided in this Agreement or unless otherwise renewed
as set forth herein) on December 31, 1999 (which date, including any earlier
date of termination or any extended expiration date, shall be referred to as the
"Expiration Date"). After the expiration of the initial term (and any renewal
term as set forth herein), if not previously cancelled as set forth herein, this
Agreement and the then existing term of employment shall be extended on a yearly
basis from year to year thereafter unless either party gives the other written
notice, at least thirty (30) days prior to the end of the then existing term.
After termination of the employment of Executive, the Executive shall continue
to be subject to the provisions of Paragraphs 11 through 21 inclusive, of this
Agreement; provided, however, that the
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Executive shall not be subject to the provisions of such sections where (i) the
employment of the Executive is terminated by the Executive or the Employer
following a Change in Control, (ii) the term of employment is not renewed
pursuant to this Paragraph 3, or (iii) the employment of the Executive is
terminated without cause.
4. Compensation. During the term of this Agreement, the Employer
shall pay or provide to the Executive as compensation for the services of the
Executive set forth in paragraph 2 hereof:
(a) A base annual salary of $85,000, payable in such
periodic installments consistent with other employees of the Employer
(such base salary to be reviewed by the President and Chief Executive
Officer of the Employer on an annual basis for possible adjustment
upwards);
(b) Such individual bonuses to the Executive as may be
authorized by the Boards of Directors of the Employer (the "Board")
from time to time taking into account the Bank's CAMEL rating and
earnings, and other factors; and
(c) A term life insurance policy in the face amount of
$250,000.
5. Stock Options. The Executive previously has received options
to purchase shares of Holding Corporation common stock in accordance with a
Stock Option Agreement between the Executive and the Holding Corporation, which
agreement shall continue in accordance with its terms.
6. Vacation. The Executive shall take vacation time in such
amounts and at such period or periods during each year as shall be designated by
the Employer's President and Chief Executive Officer. The Executive shall be
entitled to a minimum vacation period of four weeks per year; with no continuous
vacation period exceeding two weeks, except with the Employer's President and
Chief Executive Officer's approval. The Executive shall be entitled to full
compensation during his vacation period.
7. Reimbursement of Expenses. Upon submission of proper
documentation, the Employer shall reimburse the Executive for his reasonable
expenses incurred in connection with his employment hereunder. The Executive
shall also be entitled to reimbursement for expenses customarily paid by the
Employer as the Board may from time to time approve in writing as a policy of
the Employer, and the Executive agrees to comply with said policy or policies.
The Executive shall not receive reimbursement of expenses unless the same are
specifically approved by the Employer or set forth as the policy of the Employer
as provided above.
8. Disability. If the Executive is determined to be "disabled"
pursuant to the terms of the long-term disability insurance program maintained
by the Employer for the benefit of its employees, then the Executive shall be
entitled to receive the long-term disability payments provided by such insurance
program, and if there is an initial exclusion period, then the Employer shall
pay
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to the Executive during such exclusion period after the Executive utilizes
all accrued and unused sick and vacation pay an amount equal to 66 2/3% of the
Executive's base annual salary (less any payments received by the Executive
under any short-term disability insurance programs maintained by the Employer
for the benefit of its employees and any payments received by the Executive
under any other disability insurance program paid for by the Employer for the
benefit of the Executive).
9. Termination. The Employer, by action taken by its Board, may
terminate the employment of the Executive as follows:
(a) At any time and immediately upon written notice to
the Executive if said discharge is for cause. In the notice of
termination furnished to the Executive under this subparagraph (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 not permitted under this subparagraph
(a). By way of illustration and not limitation, 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 subparagraph (a):
(i) In the event the Executive shall expressly
fail or refuse to comply with the policies, standards and
regulations of the Holding Corporation or the Bank applicable
to all employees from time to time established or conducts
himself in an unprofessional manner; provided, however, that
for the first two such failures or refusals, the Executive
shall be given written warnings, and the third failure or
refusal shall be grounds for termination for cause.
(ii) In the event that the Board finds that the
Executive has been involved in any fraudulent conduct or an
activity involving theft or that the Executive's conduct
discredits the Holding Corporation or the Bank or is
detrimental to the reputation, character and standing of the
Holding Corporation or the Bank or that the Executive's
conduct involves a breach of fiduciary duty relating to
personal profit or an intentional failure to perform the
stated duties described above; provided, however, the
Executive shall be given written warnings, and the third
occurrence shall be grounds for termination for cause (except
that in the case of theft or fraudulent conduct no such
written warning need be given and the employment may be
terminated on the first such occurrence).
(iii) In the event the Holding Corporation or the
Bank receives written notification from its chartering
authority or authorities that (a) there is a mismanagement of
the Holding Corporation or the Bank by the Executive, or that
(b) as a result of conditions or circumstances arising from
the Executive's actions after January 18, 1993, the Holding
Corporation or the Bank's operations, conditions or soundness
are marginal, significantly below average or unsatisfactory,
or are not in compliance with any federal or state law, or any
rule or regulation issued thereunder under the control of the
Executive.
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In the event of termination for cause, the Employer
shall pay the Executive only the salary, vacation time accrued
but unused, and bonus amounts accrued and unpaid as of the
date of termination, and all outstanding and unexercised
options shall immediately terminate.
(b) In the event the Executive's employment is terminated
without cause, the Employer shall, for a period of the greater of 18
months after said termination or until the expiration of this
Agreement, (i) continue to pay to the Executive the base wage or salary
in effect under paragraph 4(a) on the date of said termination, (ii)
continue to provide for the benefit of Executive the life insurance
benefits set forth in paragraph 4(c) of this Agreement, and (iii)
reimburse the Executive for continued coverage under the Consolidated
Omnibus Budget Reconciliation Act ("COBRA") by the Employer's current
medical insurance plan. Any stock options shall remain subject to the
stock option plan. The Executive also shall be entitled to receive
vacation time accrued but unused as of the date of the termination of
employment. The foregoing shall be exclusive of fringes and other
benefits, except as required by law. The Executive shall be deemed to
have been terminated without cause if (i) there is a significant
reduction in the authority of the Executive as set forth in paragraph
2(a) or a reduction of the Executive's title, in each case without
cause as defined in paragraph 9(a), (ii) the Executive's office is
relocated outside of Xxx County, Florida or (iii) the Employer
terminates the employment of the Executive and no reason or reasons are
given to the Executive for said termination as contemplated by
paragraph 9(a). The Executive also shall be deemed to have been
terminated without cause if there is a Change in Control and, following
such Change in Control, there is a significant reduction in the
authority of the Executive as set forth under paragraph 2(a), a
reduction of the Executive's title, a reduction of the Executive's
compensation as set forth under paragraph 4, or a termination of the
Executive's employment (except for death, resignation, or disability).
(i) Change in Control. For purposes of this
Agreement, a "Change in Control" shall be deemed to have taken
place if (i) a person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934 (the
1934 Act"), becomes the beneficial owner (as defined in Rule
13d-3 promulgated pursuant to the 0000 Xxx) of shares of the
Company having 45% or more of the total number of votes that
may be cast for the election of directors of the Employer;
(ii) at any time those persons who were directors of the
Employer as of the date of this Agreement shall cease to
constitute a majority of the Board or any successor to the
Employer; or (iii) any spin-off, split-off, split-up or
similar corporate division occurs that results in the
distribution to stockholders of the Employer of a business or
businesses whose assets represent 20% or more of the fair
market value of the total assets of the Employer immediately
before the division.
(c) In the event the Executive's employment is terminated
because of the Executive's resignation, the Employer shall be obligated
to pay to the Executive any salary which is accrued and unpaid at the
date of said resignation pursuant to paragraph 4(a) and
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also any bonuses payable to Executive solely pursuant and subject to
paragraph 4(b). The Executive also shall be entitled to receive
vacation time accrued but unused as of the date of the termination of
employment. Any stock options shall remain subject to the stock option
plan.
(d) If the Executive's employment is terminated by the
death of the Executive, this Agreement shall automatically terminate,
and the Employer shall be obligated to pay to the Executive any salary
which is accrued and unpaid at the date of death pursuant to paragraph
4(a) and also any bonuses payable to Executive solely pursuant and
subject to paragraph 4(b). The Executive also shall be entitled to
receive vacation time accrued but unused as of the date of death. Any
stock options shall remain subject to the stock option plan.
10. 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 in the preamble to 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 in the
preamble to 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 giving notice of such to all other parties to this Agreement in the
manner set forth herein.
11. Confidential Matters. The Executive agrees that during his
employment by the Employer and thereafter subsequent to the termination of his
employment by the Employer for any reason whatsoever and with or without cause,
the Executive will not release or divulge any confidential information
whatsoever relating to the Employer to any other person or persons whomsoever
without the prior express written consent of the Employer. The Executive is
aware and acknowledges that the Executive shall have access to confidential
information by virtue of his employment and the Executive agrees to keep such
information confidential at all times. The type of confidential information
covered by this paragraph shall include, but is not limited to, lists of the
customers and deposits of the Employer, financial information, marketing and
other information relating to the operations of the Employer.
12. Injunction Without Bond. In the event there is a breach or
threatened breach by the Executive of the provisions of paragraph 11, the
Employer shall be entitled to an injunction without bond to restrain the
Executive from disclosing in whole or in part any confidential matters or from
rendering a service to any person, firm, corporation, association or other
entity, in the course of which service such information has been disclosed or is
threatened to be disclosed, and the Employer 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 Employer from
pursuing such other remedies available to it for such breach or threatened
breach including recovery of damages from the Executive.
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13. Noncompetition. The Executive agrees that during the period of
time the Executive is retained by the Employer to provide services to the
Employer, and for a period of two years thereafter (except where (i) the
employment of the Executive is terminated by the Executive or the Employer
following a Change in Control, (ii) the term of employment is not renewed
pursuant to Paragraph 3, or (iii) the employment of the Executive is terminated
without cause), 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 firm, corporation or other
entity (including a bank, a state or federal savings and loan association or
credit-union), whether presently existing or subsequently established, which is
engaged as of the date of this Agreement, or becomes engaged during the period
of the noncompetition set forth in this paragraph, in the business of providing
any service similar or equivalent to that provided by the Holding Corporation or
the Bank at any time. The covenant of the Executive set forth in this paragraph
shall be limited to Xxx County, Florida.
14. Nonsolicitation; Noninterference. The Executive agrees that
during the period of time the Executive is retained by the Employer to provide
services to the Employer, and for a period of two years thereafter (except where
(i) the employment of the Executive is terminated by the Executive or the
Employer following a Change in Control, (ii) the term of employment is not
renewed pursuant to Paragraph 3, or (iii) the employment of the Executive is
terminated without cause), the Executive will not (a) solicit for employment by
Executive, or anyone else, or employ any employee of the Holding Corporation or
the Bank or any person who was an employee of the Holding Corporation or the
Bank within twelve months prior to such solicitation of employment; (b) induce,
or attempt to induce, any employee of the Holding Corporation or the Bank to
terminate such employee's employment; (c) induce, or attempt to induce, anyone
having a business relationship with the Holding Corporation or the Bank to
terminate or curtail such relationship or, on behalf of himself or anyone else,
compete with the Holding Corporation or the Bank; (d) to make any untrue
statement concerning the Holding Corporation or the Bank to anyone; or (e)
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. This covenant shall be limited to the Executive being employed by a
business providing any service similar or equivalent to that provided by the
Holding Corporation or the Bank.
15. 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 Holding
Corporation or the Bank, whether arising out of this Agreement or any other
agreement or contract between Employer and/or the Bank, 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. Executive
acknowledges that a breach by Executive of any of the covenants contained in
this Agreement may result in irreparable and continuing damage to the Holding
Corporation and the Bank and their successors and assigns and agrees that, in
the event of any actual or threatened breach of any of the covenants of
Executive contained in this Agreement, the Employer and its respective
successors and assigns shall be entitled to injunctive relief without bond or
such other relief as may be proper or provided for in this Agreement. It is
expressly
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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 Holding Corporation and 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.
16. 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.
17. Governing Law. This Agreement shall be construed in accordance
with and shall be governed by the laws of the State of Florida.
18. Attorneys' Fees and Costs. In the event a dispute arises
between the parties under this Agreement and suit is instituted, the prevailing
party shall be entitled to recover his costs and attorneys' fees from the
non-prevailing party. As used herein, costs and attorneys' fees include any
costs and attorneys' fees in any appellate proceeding.
19. No Third Party Beneficiary. This Agreement is solely between
the parties hereto and the Employer, and no person not a party to this Agreement
(other than the Bank) shall have any rights hereunder, either as a third party
beneficiary or otherwise. The rights and obligations of the parties under this
Agreement shall inure to the benefit of and shall be binding upon their
successors and legal representatives.
20. Miscellaneous. The rights and duties of the parties hereunder
are personal and may not be assigned or delegated without the express written
consent of all other parties 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 and incorporates all prior discussions,
agreements and representations made in
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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.
"EMPLOYER"
SOUTH FLORIDA BANK HOLDING CORPORATION
By: /s/ Xxxxxx Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx Xxxxxx
Its: Chairman of the Board
SOUTH FLORIDA BANK
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Its: President and Chief Executive Officer
"EXECUTIVE"
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Xx., Individually
Address: 0000-00 Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
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