EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.20
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the “Agreement”), is entered into and made effective as
of this 18th day of October, 2005 by and among O. Xxxx Xxxxxxxxxx (“Executive”) and First
National Bank and Trust Company of the Treasure Coast (the “Bank”) and the Bank’s parent
corporation Seacoast Banking Corporation of Florida (the “Company”).
WHEREAS, the Bank and the Company desire to employ Executive as President and Senior Executive
Vice President, respectively, and Executive desires to serve in such positions; and
WHEREAS, in order to provide assurances to Executive as an inducement to continue her
employment with the Bank and the Company, the Bank and the Company desires to enter into this
Agreement to set forth the terms of her employment, and to provide for certain payments contingent
upon a change in control of the Bank or the Company as hereinafter provided (“Change in
Control”); and
WHEREAS, Executive desires to enter into the Agreement and to devote her full time business
efforts to the Bank and the Company.
NOW, THEREFORE, in consideration of the mutual covenants and conditions herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the
parties, intending to be legally bound, agree as follows:
1. EMPLOYMENT.
| (a) | Bank. | The Bank shall employ Executive as President with the duties, responsibilities
and powers of such office as provided in the Bank’s By-Laws, as assigned to her as of the date
set forth above and as customarily associated with such office, and Executive shall serve the
Bank in such capacities during the term of this Agreement. Executive acknowledges that such
duties, responsibilities and powers may be increased from time to time by the Board of
Directors of the Bank, that the position held by Executive may be changed or Executive’s
employment may be terminated pursuant to Section 4(c) hereof by action of the Board of
Directors of the Bank prior to a Change in Control and that such a change in position, duties,
responsibilities, powers or a termination of employment pursuant to Section 4(c) hereof,
whether prior to or following a Change in Control shall not entitle Executive to the benefits
provided for in Section 5(c), unless such change or termination is not made in good faith. |
||
| (b) | Company. | The Company shall employ Executive as Senior Executive Vice President of the
Company with duties, responsibilities and powers of such office as assigned to her as of the
date set forth above and as customarily associated with such office, and |
1
Executive shall serve the Company in such capacities during the term of this
Agreement. Executive acknowledges that such duties, responsibilities and powers may
be increased from time to time by the Board of Directors of the Company, that the
position held by Executive may be changed or Executive’s employment may be
terminated pursuant to Section 4(c) hereof by action of the Board of Directors of
the Company prior to a Change in Control and that such a change in position, duties,
responsibilities, powers or a termination of employment pursuant to Section 4(c)
hereof whether prior to or following a Change in Control shall not entitle Executive
to the benefits provided for in Section 5(c), unless such change or termination is
not made in good faith. |
||||
| (c) | Executive represents, warrants and covenants to the Bank and the Company that she is
available immediately to commence her duties hereunder and that this Agreement and her
performance of services hereunder does not breach or conflict with any other agreements or
instruments to which Executive is a party or may be bound, and that she shall faithfully and
diligently discharge her duties and responsibilities under this Agreement, and shall use her
full time best efforts to implement the policies established by the Board of Directors and the
Chief Executive Officer of the Bank and the Company, respectively. |
|||
| (d) | During the term of this Agreement, Executive shall devote her full and exclusive business
time, energy and skill to the business of the Bank and the Company, to the promotion of the
interests of the Bank and the Company and to the fulfillment of Executive’s obligations
hereunder. |
2. TERM.
The initial term of this Agreement shall be three (3) years from the date hereof, unless
further extended by mutual consent of the Bank and Company and Executive or sooner terminated as
herein provided. Unless 90 days prior notice of non-renewal is given by the Executive, or the Bank
or the Company prior to the end of the initial term hereof and any subsequent term hereof, this
Agreement shall automatically be renewed on the expiration of the initial term for a new one year
term and thereafter shall be renewed annually for a one year term expiring on the next succeeding
anniversary of the Agreement.
3. COMPENSATION AND BENEFITS.
The Bank shall pay or provide to Executive the following items as compensation for her service
hereunder:
| (i) | A base salary of $278,125 per year, payable in monthly installments, which base salary may be increased from time to time in accordance with normal business practices of the Bank; and | ||
| (ii) | Hospitalization insurance (including major medical), long-term disability insurance, and life insurance in accordance with the Bank’s and the Company’s insurance plans |
2
| for their executive officers (“Senior Management”) as such plans may be modified from time to time; and | |||
| (iii) | Reasonable club dues. |
The above-stated terms of compensation shall not be deemed exclusive or prevent Executive from
receiving any other compensation, including, without limitation, bonuses and equity incentives,
provided by the Bank and/or the Company. Executive shall be entitled to participate in all current
and future employee benefit plans and arrangements in which the Senior Management of the Bank or
the Company is permitted to participate. The Company does not separately compensate its officers
who are also officers of the Bank and no additional compensation will be payable by the Company
hereunder.
4. TERMINATION.
Executives’ employment under this Agreement shall terminate:
| (a) | Death. | Upon Executive’s death; or |
||
| (b) | Disability. | Upon notice from the Bank to Executive in the event Executive becomes
“permanently disabled”. For purposes of this Agreement, Executive shall be deemed
“permanently disabled” if she has been disabled by bodily or mental illness, disease, or
injury, to the extent that, in the opinion of the Board of Directors, she is prevented from
performing her material and substantial duties of employment, and provided further that such
disability has continued substantially for six (6) months preceding such notice. If requested
by the Bank, Executive shall submit to an examination by a physician selected by the Bank for
the purpose of determining or confirming the existence or extent of any disability; or |
||
| (c) | Cause. | Upon notice from the Bank to Executive for cause. For purposes of this
Agreement, “cause” shall be (i) a willful and continued failure by Executive to perform her
duties as provided in Section 1 above, as established by their respective Board of Directors
(other than due to disability), or (ii) a breach by Executive of her fiduciary duties of
loyalty or care to the Bank, or (iii) a willful violation by Executive of any provision of
this Agreement; or (iv) a conviction or the entering of a plea of nolo contendere by Executive
for any felony or any crime involving fraud, dishonesty or a breach of trust, or (v) a breach
of the Bank’s Code of Ethics, or (vi) commission by Executive of a willful or negligent act
which causes material harm to the Bank, or (vii) habitual absenteeism, alcoholism or other
form of drug or other addiction, or (viii) any violation of laws or regulations such that
Executive ceases to be eligible to serve as an executive officer of a depository institution
or a depository institution holding company or (ix) Executive becomes ineligible to be bonded
at costs consistent with the Bank and/or the Company’s other senior officers. In |
3
addition, if Executive shall terminate her employment for a breach of this
Agreement by the Bank and/or the Company in accordance with Section 4(e), and
it is ultimately determined that no reasonable basis existed for Executive’s
termination on account of the alleged default of the Bank and/or the Company,
such event shall be deemed cause for termination by the Bank. |
||||
Any notice of termination of Executive’s employment with the Bank for cause
shall set forth, in reasonable detail, the facts and circumstances claimed to
provide the basis for termination of her employment under the provisions
contained herein and the effective date of termination (“Termination
Date”); or |
||||
| (d) | Change | |||
| in Control. | Upon notice by Executive to the Bank following a “Change in Control” ( as
defined in this Section 4(d)), provided Executive terminates her employment within one (1)
year following the effective date of such “Change in Control”. For purposes of
this Agreement, a “Change in Control” shall be deemed to have occurred if (i) the Bank or
Company shall become a direct or indirect subsidiary of, or shall be merged or
consolidated with or into another entity, which entity is neither controlled by the
Company nor the Bank or if 51% or more of the voting power of shares of capital stock of
the Company or the Bank or any successor to the Company or the Bank are not held by
persons who were shareholders of the Bank or Company immediately before the transaction,
subject to the limitations of subparagraph (iii) below, or (ii) all or substantially all
of the assets of the Bank or Company shall be sold or transferred to a person or entity,
which person or entity is neither controlled by the Bank or Company, or if 51% or more of
the voting power of shares of capital stock of the Company or the Bank or any successor to
the Company or the Bank are not held by persons who were shareholders of the Bank or
Company immediately prior to the asset sale, subject to the limitations of subparagraph
(iii) below; or (iii) and “person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934), or persons acting together or in concert
(including any “group”), and who are not, at the date hereof, beneficial owners
(individually or collectively) of 10% or more of the common stock of the Company or the
bank of any class or series become the “beneficial owner” (as defined in Rule
13(d) of the Securities Exchange Act of 1934 as amended) of securities of the Bank or the
Company representing 45% or more of the voting power of either any individual class of
securities or of any classes which vote together of the Bank’s or Company’s then
outstanding securities, other than a trustee or other fiduciary holding securities under
an employee benefit plan of the Company or Bank, or |
|||
| (e) | Breach. | Upon notice from Executive to the Bank and/or the Company of the Bank’s
and/or the Company’s failure to comply with any material provision of this Agreement, provided
that the Bank or the Company, as the case may be, shall have thirty (30) days from the receipt
of such notice to cure any such failure under this Agreement. If such failure shall be cured,
Executive shall have no |
4
right to terminate her employment under the provisions of this Section 4(e); or |
||||
| (f) | Change in | |||
| Position or Duties. | Upon notice from Executive to the Bank and/or the Company, in the
event that Executive is not elected President of the Bank and Senior Executive Vice
President of the Company with the duties and powers which are customarily associated with such
offices; or |
|||
| (g) | Improper | |||
| Termination | ||||
| by Company. | Upon notice from Executive to the Bank and/or the Company, as applicable,
upon a purported termination of Executive’s employment by the Bank and or the Company for
cause if it is ultimately determined that cause did not exist; or |
|||
| (h) | Expiration of | |||
| Term. | Upon the expiration of the initial or any subsequent term of this Agreement as set
forth in Section 2. |
5. COMPENSATION AND BENEFITS PAYABLE UPON TERMINATION
| (a) | Death. | Upon Executive’s death, the Bank and the Company shall pay Executive’s full
base salary in accordance with Section 5(c) below. In addition, the Bank shall continue to
pay for and provide to Executive’s spouse and eligible dependents hospitalization insurance
(including major medical), and any such other health insurance benefits comparable to that
coverage that would have been provided under the Bank’s group health insurance plan to
Executive’s spouse and eligible dependents at the date of Executive’s death in accordance with
the terms set forth in Section 5(c). |
||
| (b) | Permanent | |||
| Disability. | In the event Executive becomes permanently disabled and is terminated
pursuant to Section 4(b) above, the Bank and the Company shall pay to Executive the
compensation and benefits provided in Section 5(c) below, provided that Executive’s base
salary shall be reduced by any amounts received by Executive under the Bank’s long term
disability plan or from any other collateral source payable due to disability including,
without limitation, social security benefits. If Executive shall remain permanently
disabled beyond the period set forth in Section 5(c) below, Executive shall receive only
such amounts, if any, as are payable under the Bank’s long term disability plan or under
any other employee benefit or welfare plan in which Executive participated and is entitled
to benefits. |
|||
| (c) | Termination. | If Executive’s employment shall be terminated by Executive pursuant to
Sections 4(d), (e), (f) or (g), or by the Bank and/or the Company for any reason including
non-renewal, other than for cause as set forth in Section 4(c), the Bank shall continue to pay
to Executive or her estate or beneficiaries, her full base salary (including any other cash
compensation) to which Executive would be entitled at the |
5
Termination Date or on the date of a Change in Control, whichever date will result
in the greater base salary, for a period of two (2) years following the Termination
Date. In addition, the Bank shall continue to pay her or her spouse and eligible
beneficiares, hospitalization insurance premiums (including major medical), long
term disability premiums and life insurance premiums for a period of two (2) years
or until her earlier death. The compensation and benefits payable under this
Section 5(c) are hereinafter referred to as “Severance Benefits”. |
||||
The payment of Severance Benefits is in recognition and consideration of the value
of continued services by Executive to the Bank and is not in any way to be construed
as a penalty or damages. Executive shall not be required to mitigate the amount of
any payment of Severance Benefits by seeking other employment or otherwise. The
payment of Severance Benefits shall not affect any other sums or benefits otherwise
payable to Executive under any other employment compensation or benefit or welfare
plan of the Bank. |
||||
| (d) | Other | |||
| Termination. | In the event termination is, for any reason other than as described in
Section 5(a), (b), or (c) above, the Bank shall pay Executive her full salary through the
date of termination and no other compensation or benefits shall be paid to Executive
hereunder; provided, however, that nothing herein shall be deemed to limit her vested rights
under any other benefit, retirement, stock option or pension plan of the Bank, and the terms
of those plans, programs or arrangements shall govern. |
6. NON-COMPETITION AND NON-DISCLOSURE.
| (a) | To induce the Bank and the Company to enter into this Agreement, Executive agrees that during
the term of this Agreement and for a period of two (2) years after the termination of
employment or service of Executive hereunder, Executive will not, within Xxxxxx, Indian River,
Brevard, Orange, Osceola, Palm Beach, Seminole, or St. Lucie Counties, Florida, or any other
county wherein the Bank, the Company and/or their affiliates conducts business at the date her
employment is terminated, as principal, agent, trustee or through the agency or on behalf of
any corporation, partnership, association, trust or agent or agency, (i) engage in the
business of banking, fiduciary services, securities or insurance brokerage, investment
management or services, lending or deposit taking, (ii) control or beneficially own (directly
or indirectly) 5% or more of the outstanding capital stock or other ownership interest (a
“Principal Stockholder”) of any person or entity engaged in or controlling any such
business other than the Company or Bank, or (iii) serve as an officer, director, trustee,
agent or employee of any corporation, or as a member, partner, employee or agent of any
limited liability company or partnership, or as an owner, trustee, employee or agent of any
other business or entity, which directly or indirectly conducts such business within Xxxxxx,
Indian River, Brevard, Orange, Palm Beach, or St. Lucie Counties, Florida, or any other county
wherein the Bank, the Company and/or their affiliates conducts business at the date her
employment is terminated. Executive further agrees that she will not solicit any employee to
leave |
6
their employment with the Bank or the Company or any Company or Bank subsidiaries
for any reason or otherwise interfere with the employment relationship of the
Company, the Bank, or their subsidiaries if Executive serves as an officer,
director, trustee, member, manager or agent or as a Principal Stockholder of any
person or entity which hires or seeks or negotiates the employment or hiring of any
such employee. In the event that the provisions of this Section 6(a) should be
deemed to exceed the time or geographic limitations permitted by applicable law,
then such provisions shall be reformed automatically to the maximum time or
geographic limitations so permitted. |
||||
| (b) | Executive recognizes and acknowledges that she will have access to certain
confidential information of the Company, the Bank and their respective subsidiaries and
affiliates, including, without limitation, customer lists, credit information,
organization, pricing, xxxx-ups, commissions, and other information and that all such
information constitutes valuable, special and unique property of the Company, the Bank
and their subsidiaries and affiliates. Such information is herein referred to as
“Trade Secrets”. Executive will not disclose or directly or indirectly
utilize, in any manner, any such Trade Secrets for her own benefit or the benefit of
anyone other than the Company, Bank and their subsidiaries and affiliates during the
term of this Agreement or disclose Trade Secrets to anyone other than bank regulatory
agencies or to a court. In the event of a breach or threatened breach by Executive of
the provisions of this Section 6(b), the Company, the Bank, or any subsidiary or
affiliate of the Company or
the Bank shall be entitled to an injunction or temporary
restraining order preventing Executive and any others from disclosing or utilizing, in
whole or in part, such Trade Secrets. Nothing herein shall be construed as prohibiting
or limiting the Company, Bank, or any subsidiary or affiliate of the Company or the
Bank from also exercising any other available rights or remedies for such breach or
threatened breach, including, without limitation, the recovery of damages from
Executive or others. |
7. ARBITRATION.
Any dispute or controversy arising under or in connection with this Agreement other than as
a result of the provisions of Section 6 hereof, shall be settled exclusively by arbitration.
Each party shall appoint one arbitrator and shall notify, in writing, the other party of
such appointment and request the other party to appoint one arbitrator within thirty (30)
days of receipt of such request. If the party so requested fails to appoint an arbitrator,
the party making the request shall be entitled to designate two arbitrators. The two
arbitrators shall select a third. The written decision of a majority of the arbitrators
shall be binding upon the Bank, the Company and Executive and enforceable by law. The
arbitrators shall, by majority vote, determine the place for hearing, the rules of
procedure, and allocation of the expenses of the arbitration. Absent any written agreement
to the contrary, the rules of the American Arbitration Association shall apply to any
arbitration proceedings.
8. APPLICATION OF CODE SECTION 280G.
If any payment of Severance Benefits hereunder shall be determined to be an “excess
parachute payment”, as defined by Section 280G of the Internal Revenue Code of 1986, as
amended (the “Code” ), which subjects Executive to an excise tax under Section 4999(a) of
the Code,
7
the Bank shall pay a supplemental benefit equal to the excise tax and all state
and federal income taxes on the supplemental benefit. Executive agrees to fully cooperate
with the Bank should the Bank determine to challenge, for whatever reason, any determination
by the Internal Revenue Service that Severance Benefits paid hereunder constitute “excess
parachute payments” as defined by Section 280G of the Code.
9. SUCCESSORS: BINDING AGREEMENT.
| (a) | This Agreement shall be binding upon any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise), to all or substantially all of the business and/or assets of the Bank and/or the Company regardless of whether such occurrence constitutes a Change in Control hereunder and the Bank and the Company shall require any such successor to expressly assume and agree to perform this Agreement. As used in this Agreement, “Company” and “Bank” shall mean the Company and Bank as herein respectively defined and any successors or assignees to their respective business and/or assets as aforesaid, which is required by this Agreement to assume and perform this Agreement, whether by operation of law or otherwise. In the event any successor to the Company has total assets in excess of [$8 billion?] and does not maintain a Florida-based holding company, then the term “successor” shall only include the bank resulting from such transaction. | ||
| (b) | This Agreement shall inure to the benefit of and be enforceable by Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If Executive should die while any amount would still be payable hereunder, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to Executive’s devisee, legatee or other designee or, if there is no such designee, to Executive’s estate. |
10. MISCELLANEOUS.
| (a) | All notices required or permitted hereunder shall be given in writing by actual delivery or by Registered or Certified Mail (postage prepaid), at the following addresses or at such other places as shall be designated in writing: |
| Executive: | 0000 X.X. Xxxx Xxx Xxx | |||
| Xxxx Xxxx, XX 00000 | ||||
| Bank or the Company: | 000 Xxxxxxxx Xxxxxx | |||
| Xxxxxx, Xxxxxxx 00000 | ||||
| Attn: Xx. Xxxxxx X. Xxxxxx, III |
| (b) | If any provision of this Agreement shall be determined to be void by any court or arbitrium of competent jurisdiction, then such determination shall not affect any provisions of this Agreement, all of which shall remain in full force and effect. |
8
| (c) | The failure of the parties to complain of any act or omission on the part of either party, no matter how long the same may continue, shall not be deemed to be a waiver of any of its rights hereunder. | ||
| (d) | This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. It may be modified or terminated only by a writing signed by the party against whom enforcement of any waiver, change, modification, extension, discharge or termination is sought. | ||
| (e) | The recitals contained in this Agreement are expressly made a part hereof. | ||
| (f) | This Agreement represents the entire understanding and agreement among the parties and supersedes any prior agreements or understandings with respect to the subject matter hereof. It is intended and agreed that the Company, the Bank and its direct and indirect subsidiaries are express beneficiaries of this Agreement and may enforce the provisions hereof to the same extent as the Bank. | ||
| (g) | This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida. |
(Signatures on following page)
9
IN WITNESS WHEREOF, Executive has executed this Agreement and the Bank and the Company have caused
this Agreement to be executed under seal by their respective undersigned officers, thereunto duly
authorized as of the day and year first above written.
| EXECUTIVE |
||||
| /s/ O. Xxxx Xxxxxxxxxx (SEAL) | ||||
| O. Xxxx Xxxxxxxxxx | ||||
| FIRST NATIONAL BANK & TRUST COMPANY OF THE TREASURE COAST |
||||
| By: | /s/ Xxxxxx X. Xxxxxx, III | |||
| Xxxxxx X. Xxxxxx, III | ||||
| Chairman and Chief Executive Officer | ||||
| SEACOAST BANKING CORPORATION OF FLORIDA |
||||
| By: | /s/ Xxxxxx X. Xxxxxx, III | |||
| Xxxxxx X. Xxxxxx, III | ||||
| Chairman and Chief Executive Officer | ||||
10
