EMPLOYMENT AGREEMENT
Exhibit 10.9
This Employment Agreement (this “Agreement”) is made and entered into as of January
1, 2006 (the “Effective Date”), by and between Florida Choice Bank, a Florida banking
corporation (“Employer”); and Xxxx X. Xxxxxxxx (“Employee”).
Recitals
WHEREAS, pursuant to that certain Agreement and Plan of Merger (the “Merger Agreement”) dated
as of October 27, 2005, between Alabama National BanCorporation, a Delaware corporation (“ANB”) and
Florida Choice Bankshares, Inc., a Florida corporation (“FCB”), Employer will become a wholly-owned
subsidiary of ANB; and
WHEREAS, Employee has served as a valuable employee of Employer and, as a condition to the
consummation of the transactions provided for in the Merger Agreement, Employee and Employer have
agreed to enter into this Agreement.
Agreement
NOW THEREFORE, in consideration of the mutual recitals and covenants contained herein, and for
other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
1. Employment. Employer agrees to employ Employee and Employee agrees to be employed
by Employer, subject to the terms and provisions of this Agreement.
2. Employment Term. The employment of Employee by Employer as provided in Section 1
will be for a period of three (3) years commencing at the Effective Date, unless earlier terminated
in accordance with the provisions of Section 9 hereof; provided, however, that the obligations and
rights set forth in Sections 7 and 8 hereof shall in all cases survive the termination of
Employee’s employment, as more particularly described herein.
3. Duties; Extent of Services. Employee shall perform for Employer all duties
incident to the position of Senior Vice President, under the direction of the Board of Directors,
the Chief Executive Officer, and the President of Employer or their designee(s). In addition,
Employee shall engage in such other services for Employer or its affiliated companies as Employer
from time to time shall direct. The duties, services and reporting relationship of Employee and
the title of Employee’s position may be extended, reduced, re-assigned, curtailed or modified
unilaterally by Employer from time to time without breaching or affecting the enforceability of the
terms of this Agreement. Employee shall use his best efforts in, and devote his entire time,
attention and energy, to Employer’s business, and Executive shall not conduct any other activities
for pecuniary gain or that are or may be detrimental to Employer’s business.
4. Compensation. Subject to Section 9 below, for a period of three (3) years
commencing on the Effective Date:
(a) Base Salary. Employee’s total annual base salary shall be not less than $110,000,
payable with the same frequency as the salaries of other employees of Employer.
(b) Annual Bonus Opportunity. Employee shall be eligible to receive an annual bonus,
the amount of which, if any, shall be determined by the Employee’s Board of Directors or its
designee after an annual review of the performance of Employee and Employer for the prior calendar
year.
(c) Benefits. Employee shall be entitled to vacation days, paid holidays and sick
days, and to participate in Employer’s retirements plans, as provided in Employer’s Personnel
Policy and as such may be amended from time to time.
5. Compliance With Rules and Policies. Employee shall comply with all of the rules,
regulations, and policies of Employer now or hereinafter in effect. He shall promptly and
faithfully do and perform any and all other duties and responsibilities which he may, from time to
time, be directed to do by the Board of Directors of Employee, the Chief Executive Officer of
Employer, or the President of Employer, or their respective designee(s).
6. Representation of Employee. Employee represents to Employer that he is not subject
to any rule, regulation or agreement, including without limitation, any non-compete agreement, that
purports to, or which reasonably could, be expected to limit, restrict or interfere with Employee’s
ability to engage in the activities provided for in this Agreement.
7. Disclosure of Information. Employee acknowledges that any documents and
information, whether written or not, that came or come into Employee’s possession or knowledge
during Employee’s course of employment with Employer, including, without limitation the financial
and business conditions, business methods, sales, services, techniques, goals and operations of
Employer, ANB or any of their respective customers, prospective customers, affiliates or
subsidiaries as the same may exist from time to time (collectively, “Confidential Information”),
are valuable, special and unique assets of Employer’s and ANB’s business. Employee will not,
during or after the term of this Agreement: (i) disclose any Confidential Information to any
person, firm, corporation, association, or other entity not employed by or affiliated with Employer
for any reason or purpose whatsoever, or (ii) use any Confidential Information for any reason other
than to further the business of Employer. Employee agrees promptly to return any Confidential
Information (including without limitation any such information stored in electronic format), and
all copies thereof, upon the termination of Employee’s employment (whether hereunder or otherwise).
In the event of a breach or threatened breach by Employee of the provisions of this Section 7, in
addition to all other remedies available to Employer, Employer shall be entitled to an injunction
restraining Employee from disclosing any Confidential Information or from rendering any services to
any person, firm, corporation, association or other entity to whom any Confidential Information has
been disclosed or is threatened to be disclosed. In the event of any suit or arbitration with
respect to Employee’s obligations in this Section 7, Employee will pay all costs incurred by
Employer in securing an injunction (or other equitable remedy) and/or damages, including a
reasonable attorney’s fee.
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8. Competition.
(a) During the period beginning on the Effective Date and, subject to extension pursuant to
the terms of Section 9 below, ending on the third (3rd) anniversary thereof, Employee
shall not, individually or as an employee, agent, consultant, lender, officer, director or
shareholder of or otherwise through any corporation or other business organization (whether in
existence or in formation), directly or indirectly, other than on behalf of Employer: (i) carry on
or engage in the business of banking or any similar business in any Florida county in which
Employer has an office at such time (collectively, the “Territory”);1/ (ii) perform
services for, as an employee, consultant or otherwise, any bank, bank holding company, bank or bank
holding company in organization, corporation or other person or entity that has a branch or office
in, or conducts any banking or similar business in the Territory; (iii) during the period of his
employment, solicit or do banking or similar business with any person or entity who or that is or
has been an existing or prospective customer of Employer; (iv) following the termination of
employment, solicit or do banking or similar business with any person or entity who or that was an
existing or prospective customer of Employer at any time during the 24-month period immediately
prior to the termination of Executive’s employment; (v) solicit or do banking or similar business
with any existing or prospective customer of ANB or any of its other bank subsidiaries if Executive
learned about such customer, or had any contact with such customer, while an employee of Employer;
or (vi) solicit any director, officer or employee of Employer or ANB or any of their subsidiaries
or affiliates to leave his or her position or employment with Employer or ANB or any of their
subsidiaries or affiliates for any reason, or hire any such director, officer or employee, without
the prior written consent of Employer.
(b) Employee represents that his experience and capabilities are such that the provisions of
this Section 8 will not prevent him from earning a livelihood.
(c) If Employee violates the provisions of Section 8(a) above, the period during which the
covenants set forth therein shall apply shall be extended 1 day for each day in which a violation
of such covenants occurs. The purpose of this provision is to prevent Employee from profiting from
his own wrong if he violates such covenants.
(d) In the event of any conduct or threatened conduct by Employee violating any provision of
this Section 8, Employer shall be entitled, in addition to other available remedies, to injunctive
relief and/or specific performance of such provision. In the event of any suit or arbitration with
respect to Employee’s obligations in this Section 8, Employee will pay all costs incurred by
Employer in securing an injunction (or other equitable remedy) and/or damages, including a
reasonable attorney’s fee.
(e) Employee acknowledges that (i) Employee has occupied, and will continue to occupy, a
position of trust and confidence with Employer and has and will become familiar with Confidential
Information, including without limitation trade secrets, as that term is defined in Section
688.002(4) of the Florida Code; (ii) ANB has required that Employee make the covenants set forth in
Sections 7 and 8 of this Agreement as a material condition to ANB’s acquisition of the capital
stock
| 1/ | For the sake of clarity, upon the termination of Employee’s employment, the Territory shall consist of each Florida county in which Employer has an office at the time of such employment termination. |
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of Employer, including capital stock owned by Employee; (iii) the provisions of Sections 7
and 8 of this Agreement are reasonable in geographic scope and duration and are necessary to protect
and preserve Employer’s legitimate business interests, including, without limitation, its trade
secrets, valuable confidential business information, relationships with specific prospective and
existing customers, customer goodwill, and specialized training provided to Employee; and (iv)
Employer would be irreparably damaged if Employee were to breach the covenants set forth in
Sections 7 or 8 of this Agreement.
9. Termination of Employment.
(a) If Employer terminates Employee’s employment hereunder “For Cause” prior to the third
(3rd) anniversary of the Effective Date, all rights and obligations specified in Section
8(a) shall survive any such termination until the third (3rd) anniversary of the
Effective Date, and Employee shall not be entitled to any further compensation or benefits from
Employer. “For Cause” shall mean (i) abuse of or addiction to intoxicating drugs (including
alcohol), which has adversely affected or may adversely affect the business or reputation of
Employer; (ii) any act or omission on the part of Employee which constitutes fraud,
misrepresentation, embezzlement, misappropriation of corporate assets, breach of a duty owed to
Employer, or conduct grossly inappropriate to Employee’s office; (iii) a felony indictment of
Employee; (iv) the suspension or removal of Employee by federal or state banking regulatory
authorities; or (v) a material breach by Employee of any of the terms of this Agreement. In
addition, the services of Employee and the obligations of Employer under this Agreement may be
terminated For Cause by Employer due to the death or total disability of Employee. For purposes of
this Section 9, the term “total disability” shall mean Employee’s inability, as a result of illness
or injury, to perform the normal duties of his employment for a period of ninety (90) consecutive
days.
(b) Employer may terminate Employee’s employment at any time for any reason; provided,
however, if Employer terminates Employee other than For Cause prior to the third (3rd)
anniversary of the Effective Date, or if Employee terminates his employment for “Good Reason” prior
to the third (3rd) anniversary of the Effective Date, Employee shall continue to receive
the minimum cash compensation provided for in Section 4(a) until the third (3rd)
anniversary of the Effective Date (to be paid with the same frequency as Employee’s salary was paid
prior to termination), and all rights and obligations specified in Section 8(a) shall survive such
termination until the third (3rd) anniversary of the Effective Date. Other than the
payment provided for in this Section 9(b), Employee acknowledges that he shall not be entitled to
any other payments, benefits or damages from Employer in connection with a termination of
employment by Employer other than For Cause or a termination by Employee for Good Reason, and
Employee hereby waives all rights and claims with respect thereto. “Good Reason” means a material
breach of this Agreement by Employer, after Employee has provided a detailed written notice of such
breach to Employer, and Employer has been afforded at least a 30-day cure period after receipt of
such notice.
(c) If Employee resigns or terminates his employment hereunder for any reason (other than Good
Reason) prior to the third (3rd) anniversary of the Effective Date, (i) all rights and
obligations specified in Section 8(a) shall survive any such termination until the later of (A) the
third (3rd) anniversary of the Effective Date or (B) the first (1st)
anniversary of the effective date of such
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termination, (ii) Employee shall not be entitled to any
further compensation or benefits from
Employer, and (iii) Employer shall be entitled to all remedies available under this Agreement
and applicable law.
(d) If (i) Employee’s employment has not been earlier terminated in accordance with this
Section 9, and (ii) this Agreement has not been extended, renewed or replaced, then upon the third
(3rd) anniversary of the Effective Date, Employee’s employment will continue on an “at will” basis.
(e) The provisions of Section 7 and Section 8 shall in all cases survive the termination of
Employee’s employment, whether voluntary or involuntary.
10. Stay Bonus. If Employee remains an employee of Employer during the period
beginning on the Effective Date and ending on the date that transactions provided for in the Merger
Agreement are consummated, then Employer shall make a one-time cash payment to Employee in the
amount of $15,000 (the “Stay Bonus”). If Employee is thereafter terminated For Cause or resigns or
terminates his employment hereunder for any reason (other than Good Reason), in each case prior to
the second (2nd) anniversary of the Effective Date, Employee shall immediately pay to
Employer in cash that portion of the Stay Bonus equal to the product of the Stay Bonus multiplied
by a fraction, the numerator of which shall be equal to the number of days remaining in the period
beginning on the Effective Date and ending on the second (2nd) anniversary thereof, and
the denominator of which shall be equal to 730. Employer reserves the right to offset, at its
option, against any sums due Employer from Employee pursuant to this Section 10, any amounts which
may otherwise be due from Employer to Employee.
11. Notice. For the purposes of this Agreement, notices and demands shall be deemed
given when mailed by United States mail, addressed in the case of Employer to Florida Choice Bank,
00000 X.X. Xxxxxxx 000, Xxxxx Xxxx, Xxxxxxx 00000, Attention: CEO; or in the case of Employee, to
his last known address of record contained in the Employer’s personnel files.
12. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such modification, waiver or discharge is agreed to in writing. The validity,
interpretation, construction and performance of this Agreement shall be governed by the laws of the
State of Florida without regard to principles of conflicts of laws. The parties expressly intend
that ANB be a third-party beneficiary of this Agreement, and ANB is entitled to enforce and protect
the rights and benefits conferred on ANB herein, including without limitation those in Sections 7
and 8.
13. Validity. Should any court of competent jurisdiction, arbitrator or other
judicial body decide, hold, adjudge or decree that any provision, clause or term of this Agreement
is invalid, void or unenforceable, such determination shall not affect any other provision of this
Agreement, and all other provisions of this Agreement shall remain in full force and effect as if
such void or unenforceable provision, clause or term had not been included herein. Such
determination shall not be deemed to affect the validity or enforceability of this entire Agreement
in any other situation or circumstance, and the parties agree that the scope of this Agreement is
intended to extend to Employer the maximum protection permitted by law. The parties expressly deem
the scope, length of time and
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the size of the territory provided for in Section 7 and Section 8 of
this Agreement to be reasonable. If, however, any judicial body or arbitrator decides, holds,
adjudges or decrees that the
scope, length of time and/or the size of the territory provided for in Section 7 or Section 8
of this Agreement is/are unreasonable, then it is the express intent of the parties that such court
determine the scope, length of time and/or size of the territory that is/are reasonable and that
such court enforce the terms of this Agreement in accordance with such determination.
14. Arbitration.
(a) Except as may otherwise be herein provided, any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by binding arbitration in Orlando,
Florida, in accordance with the rules of the American Arbitration Association then in effect. The
agreement set forth herein to arbitrate shall be specifically enforceable under the prevailing
arbitration law. Notwithstanding the foregoing, Employer shall have the right to seek enforcement
by preliminary injunction, specific performance or other equitable relief of the provisions of
Section 7 and/or 8 hereof in any state or federal court of competent jurisdiction without regard to
whether any such claim has been or can be referred to arbitration.
(b) The parties hereto (i) acknowledge that they have read and understood the provisions of
this Section regarding arbitration and (ii) that performance of this Agreement will be interstate
commerce as that term is used in the Federal Arbitration Act, and the parties contemplate
substantial interstate activity in the performance of this Agreement including, but not limited to,
interstate travel, the use of interstate phone lines, the use of the U.S. mail services and other
interstate courier services.
(c) Notice of the demand for arbitration shall be filed in writing with the other party to
this Agreement and with the American Arbitration Association. The demand for arbitration shall be
made within a reasonable time after the claim, dispute or other matter in question has arisen, and
in no event shall it be made after the date when institution of legal or equitable proceedings
based on such claim, dispute or other matter in question would be barred by the applicable statute
of limitations. The award rendered by the arbitrator shall be final and judgment may be entered
upon it in accordance with applicable law in any court having jurisdiction thereof.
15. Parties. This Agreement shall be binding upon and shall inure to the benefit of
any successors or assigns to Employer or ANB. Employer may assign this Agreement without the
further consent of Executive, and Employer’s successors and assigns may enforce any and all terms
and conditions of this Agreement, including but not limited to the confidentiality, non-competition
and non-solicitation provisions contained in this Agreement. Executive may not assign any of his
rights or delegate any of his duties or obligations under this Agreement or any portion hereof.
16. Waiver of Claims. In consideration of the obligations of Employer hereunder,
Employee, except as otherwise provided in this Agreement, unconditionally releases Employer, its
directors, officers, employees and shareholders, from any and all claims, liabilities and
obligations of any nature pertaining to termination of Employee’s employment by Employer, including
but not limited to (a) any claims under federal, state or local laws prohibiting discrimination,
including
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without limitation the Age Discrimination in Employment Act of 1967, as amended, or (b)
any claims growing out of any alleged legal restrictions on Employer’s right to terminate
Employee’s employment, such as any alleged implied contract of employment or termination contrary
to public policy. Employee agrees to ratify and affirm the foregoing from time to time as may be
requested by Employer. Employee acknowledges that he has been advised to consult with an attorney
prior to signing this Agreement, that he has had no less than 21 days to consider this Agreement
prior to execution hereof, and that he may revoke this Agreement at any time within 7 days
following the execution hereof by written notice to Employer.
17. Tax Withholding. All compensation payable pursuant to this Agreement, including
without limitation severance compensation and any Stay Bonus, shall be subject to reduction by all
applicable withholding, social security and other federal, state and local taxes and deductions.
18. American Jobs Creation Act of 2004. To the extent the American Jobs Creation Act
of 2004, as amended, and the regulations thereunder (collectively, the “Act”) apply to any payment
to be made to Employee hereunder, the parties’ intent is that such payment, unless expressly
provided otherwise (such as in the case of severance payments) or unless deferred pursuant to the
terms of a written deferred compensation plan maintained by Employer or one of its affiliates, will
be paid no later than (a) March 15th of the calendar year following the end of
Employee’s first taxable year in which the amount is no longer subject to a “substantial risk of
forfeiture” or (b) March 15th of the calendar year after the end of Employer’s first
taxable year in which the amount is no longer subject to a “substantial risk of forfeiture.” The
purpose of this provision is reflect the parties’ desire and intent to comply with the Act, to the
extent applicable.
19. Entire Agreement; Reinstatement. This Agreement supersedes and cancels any prior
employment agreement, change in control agreement or understanding entered into between Employee
and Employer and/or FCB. Employee acknowledges and agrees that, except as provided for in Section
10 above, he is not eligible to receive any change in control or similar payment from either
Employer, FCB or ANB, and Employee waives all rights thereto. Notwithstanding the foregoing, the
parties acknowledge that this Agreement has been entered into as a condition to, but prior the
consummation of, the transactions provided for in the Merger Agreement. If the Merger Agreement is
terminated pursuant to the terms thereof, then this Agreement shall simultaneously and
automatically terminate as well, without any further action on the part of the parties hereto, both
parties shall be released of their respective obligations hereunder, and Employee’s employment by
Employer shall revert to the status in effect immediately prior to the execution of this Agreement.
[Signature page follows.]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by Employee and by a
duly authorized officer of Employer effective as of the date first above written.
| Witnesses: | “Employee”: | |||||||
| Xxxx X. Xxxxxxxx | ||||||||
| “Employer”: | ||||||||
| Florida Choice Bank | ||||||||
| By: | ||||||||
| Its: | ||||||||
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