EMPLOYMENT AGREEMENT
Senior
Officer
This
Employment Agreement (the “Agreement”) is made effective as of
______September 27______, 2006 by and between TIB Financial Corp. (the
“Holding Company”), TIB Bank of the Keys (the “Bank”), and Xxxxxxx X. Xxxxxxxx
(the “Executive”).
WITNESSETH:
WHEREAS,
the Holding Company and the Bank (collectively the “Company”) desire to retain
the services of and employ the Executive, and the Executive desires to provide
services to the Company, pursuant to the terms and conditions of this
Agreement.
NOW,
THEREFORE, in consideration of the promises and of the covenants and agreements
herein contained, the Company and the Executive covenant and agree as
follows:
1. Employment.
Pursuant to the terms and conditions of this Agreement, the Company agrees
to
employ the Executive and the Executive agrees to render services to the Company
as set forth herein, all effective as of the date set forth above.
Notwithstanding any other provision in this Agreement, the employment of the
Executive in accordance with the terms of this Agreement shall be subject to
the
prior approval, as and to the extent required by law, of the applicable federal
banking agencies having jurisdiction over the Holding Company and the Bank.
This
Agreement supercedes any prior employment agreement entered into between the
Company and the Executive prior to the date hereof, and any such prior
employment agreement is hereby terminated.
2. Position
and Duties; Records.
During
the term of this Agreement, the Executive shall serve as Executive
Vice President & Chief Financial Officer of the Holding Company
and
shall undertake such duties, consistent with such titles, as may be assigned
to
him from time to time by the President and Chief Executive Officer and/or Boards
of Directors of the Holding Company and the Bank (collectively referred to
as
the “Board”), including serving on Board committees as appointed from time to
time by the Board, and assisting in keeping the Company in compliance with
applicable laws and regulations. In performing his duties pursuant to this
Agreement, the Executive shall devote his full business time, energy, skill
and
best efforts to promote the Company and its business and affairs; provided
that,
subject to Sections 10, 12 and 13 of this Agreement, the Executive shall have
the right to manage and pursue personal and family interests, and make passive
investments in securities, real estate, and other assets, and also to
participate in charitable and community activities and organizations, so long
as
such activities do not adversely affect the performance by Executive of his
duties and obligations to the Company. Upon termination of the Executive’s
employment for any reason, he shall resign as a director of the Holding Company
and the Bank (if he is then serving in such capacity). All files, records,
documents, manuals, books, forms, reports, memoranda, studies, data,
calculations, recordings or correspondence, in whatever form they may exist,
and
all copies, abstracts and summaries of the foregoing, and all physical items
related to the business of the Company, its affiliates and their respective
directors and officers, whether of a public nature or not, and whether prepared
by Executive or not, are and shall remain the exclusive property of the Company,
and shall not be removed from their premises, except as required in the course
of providing the services pursuant to this Agreement, without the prior written
consent of the Company. Such items shall be promptly returned by the Executive
on the termination of this Agreement or at any earlier time upon the request
of
the Company.
3. Term.
The
initial term of employment pursuant to this Agreement shall be for a period
of
two years, commencing with the date set forth in Section 1 and expiring (unless
sooner terminated as otherwise provided in this Agreement or unless otherwise
renewed or extended as set forth herein) on the second anniversary of this
Agreement, which date, including any earlier date of termination or any extended
expiration date, shall be referred to as the “Expiration Date”. Subject to the
provisions of Section 8 of this Agreement, the term of this Agreement and the
employment of the Executive by the Company hereunder shall be deemed
automatically renewed for successive periods of two years each commencing on
the
second anniversary date of this Agreement and on each anniversary date
thereafter, unless either party gives the other written notice, at least 180
days prior to the end of the then term of the Agreement, that such party does
not desire to renew this Agreement. After termination of the employment of
the
Executive for any reason whatsoever, the Executive shall continue to be subject
to the provisions of Sections 10 through 17, inclusive, of this Agreement;
provided,
however,
that
the Executive shall not be subject to the provisions of Section 12 where the
employment of the Executive is terminated pursuant to Section 8(e), or where
the
term of employment is not renewed pursuant to this Section 3.
4. Compensation.
During
the term of this Agreement, the Company shall pay or provide to the Executive
as
compensation for the services of the Executive set forth in Section 2
hereof:
(a) A
base
annual salary of $ 210,000.00 during the first year of this Agreement, such
base
annual salary to be subject to increase thereafter as the Board in its
discretion shall determine. The foregoing base salary shall be payable in such
periodic installments consistent with other employees of the Bank.
(b) Such
annual incentive bonuses as may be established by the President and Chief
Executive Officer from time to time.
5. Benefits
and Insurance.
The
Bank shall provide to the Executive such medical, health, and life insurance
as
well as any other benefits as the Board shall determine from time to time.
At a
minimum, the Executive shall be entitled to (i) participate in all employee
benefit plans offered to the Bank’s employees generally, and (ii) life insurance
coverage (payable to such beneficiary as the Executive may designate from time
to time). The Executive also shall be entitled to participate in any group
disability plan maintained by the Bank, with the Bank paying to the Executive
his base annual salary during any waiting period imposed by such plan for the
receipt of disability benefits thereunder.
6. Vacation.
The
Executive may take up to four weeks of vacation time at such periods during
each
year as the Board and the Executive shall determine from time to time. The
Executive shall be entitled to full compensation during such vacation
periods.
7. Reimbursement
of Expenses.
The
Bank shall reimburse the Executive for reasonable expenses incurred in
connection with his employment hereunder subject to guidelines issued from
time
to time by the Board and upon submission of documentation in conformity with
applicable requirements of federal income tax laws and regulations supporting
reimbursement of such expenses.
8. Termination.
The
employment of the Executive may be terminated as follows:
(a) By
the
Company, by action taken by its Board or its President and Chief Executive
Officer, at any time and immediately upon written notice to the Executive if
said termination is for Cause. In the notice of termination furnished to the
Executive under this Section 8(a), the reason or reasons for said termination
shall be given and, if no reason or reasons are given for said termination,
said
termination shall be deemed to be without Cause and therefore termination
pursuant to Section 8(f). Any one or more of the following conditions shall
be
deemed to be grounds for termination of the employment of the Executive for
Cause under this Section 8(a):
(i) If
the
Executive shall fail or refuse to comply with the obligations required of him
as
set forth in this Agreement or comply with the policies of the Company
established by the Board or its President and Chief Executive Officer from
time
to time; provided,
however,
that
for the first such failure or refusal, the Executive shall be given written
warning (providing at least a 10 day period for an opportunity to cure), and
the
second failure or refusal shall be grounds for termination for
Cause;
(ii) If
the
Executive shall have engaged in conduct involving fraud, deceit, personal
dishonesty, breach of fiduciary duty or illegal conduct in your business and
personal life.
(iii) If
the
Executive shall have violated any banking law or regulation, memorandum of
understanding, cease and desist order, or other agreement with any banking
agency having jurisdiction over the Company which, in the judgment of the Board
or its President and Chief Executive Officer, has adversely affected, or may
adversely affect, the business or reputation of the Company as determined by
the
Board or its President and Chief Executive Officer;
(iv) If
the
Executive shall have become subject to continuing intemperance in the use of
alcohol or drugs which has adversely affected, or may adversely affect, the
business or reputation of the Company as determined by the Board or its
President and Chief Executive Officer;
(v) If
the
Executive shall have filed, or had filed against him, any petition under the
federal bankruptcy laws or any state insolvency laws; or
(vi) If
any
banking authority having supervisory jurisdiction over the Holding Company
or
the Bank initiates any proceedings for removal of the Executive.
In
the
event of termination for Cause, the Company shall pay the Executive only salary
and vacation amounts accrued and unpaid as of the effective date of
termination.
(b) By
the
Executive upon the lapse of 30 days following written notice by the Executive
to
the Company of termination of his employment hereunder for Good Reason (as
defined below), which notice shall reasonably describe the Good Reason for
which
the Executive’s employment is being terminated; provided,
however,
that if
the Good Reason specified in such notice is such that there is a reasonable
prospect that it can be cured with diligent effort within 30 days, the Company
shall have the opportunity to cure such Good Reason, for a period not to exceed
30 days from the date of such notice, and the Executive’s employment shall
continue in effect during such time so long as the Company makes diligent
efforts during such time to cure such Good Reason. If such Good Reason shall
be
cured by the Company during such time, the Executive’s employment and the
obligations of the Company hereunder shall not terminate as a result of the
notice which has been given with respect to such Good Reason. Cure of any Good
Reason with or without notice from the Executive shall not relieve the Company
from any obligations to the Executive under this Agreement or otherwise and
shall not affect the Executive’s rights upon the reoccurrence of the same, or
the occurrence of any other, Good Reason. For purposes of this Agreement, the
term “Good Reason” shall mean (i) any material breach by the Company of any
provision of this Agreement, or (ii) any significant reduction (not pertaining
to job performance issues), in the duties, responsibilities, authority or title
of the Executive as an officer of the Company.
If
the
Executive’s employment is terminated by the Executive for Good Reason, the
Company shall for a period of two years thereafter (i) continue to pay to the
Executive the base annual salary in effect under Section 4(a) on the date of
said termination (or, if greater, the highest annual salary in effect for the
Executive within the 36 month period prior to said termination) plus an annual
amount equal to any bonus paid by the Company to the Executive during the 12
month period prior to said termination, such salary and bonus to be payable
in
such periodic installments (and not as a lump sum payment) consistent with
the
payroll periods for the Company’s payments to its other employees; and (ii) pay
directly or reimburse the Executive for continued coverage in accordance with
the Consolidated Omnibus Budget Reconciliation Act under the Bank’s medical
insurance plan.
(c) By
the
Executive upon the lapse of 45 days following written notice by the Executive
to
the Company of his resignation from the Company for other than Good Reason;
provided,
however,
that
the Company, in its discretion, may cause such termination to be effective
at
any time during such 45-day period. If the Executive’s employment is terminated
because of the Executive’s resignation, the Company shall be obligated to pay to
the Executive any salary and vacation amounts accrued and unpaid as of the
effective date of such resignation.
(d) If
the
Executive’s employment is terminated by the death of the Executive, this
Agreement shall automatically terminate, and the Company shall be obligated
to
pay to the Executive’s estate any salary, vacation, and bonus amounts accrued
and unpaid at the date of death. If the Executive is disabled (as such term
is
defined in the disability insurance plan maintained by the Company), then the
Company shall have the right to terminate the Executive’s employment, in which
case the Company shall be obligated to pay to the Executive (i) any salary,
vacation and bonus amounts accrued and unpaid at the date of such termination
of
employment, and (ii) continued salary payments (not to exceed 30 days) until
the
Executive is eligible to receive payments under the Company’s disability
insurance plan.
(e) If
after
a Change of Control, the Executive’s employment is terminated, his duties are
materially reduced, his base salary is reduced, his employment is relocated
more
than 50 miles from his residence or his participation in any employee benefit
plan is materially reduced or adversely affected, and the Executive does not
consent to such change, then the Executive shall be entitled to receive promptly
thereafter in a lump sum payment an amount equal to two times the average base
annual salary received by the Executive during the three year period prior
to
such termination. Any termination by the Executive pursuant to this Section
8(e)
shall be in lieu of any other termination benefits that the Executive would
have
otherwise received under any other provision of this Section 8. For purposes
of
this Agreement, a Change of Control shall mean a merger in which the Holding
Company is not the surviving entity, the acquisition of the Bank by means of
a
merger, consolidation or purchase of 80% or more of its outstanding shares,
or
the acquisition by any individual or group of beneficial ownership of more
than
50% of the outstanding shares of Holding Company common stock. The term “group”
and the concept of beneficial ownership shall have such meanings ascribed
thereto as set forth in the Securities Exchange Act of 1934, as amended (the
“1934 Act”), and the regulations and rules thereunder.
(f) By
the
Company, by action taken by its Board or its President and Chief Executive
Officer, at any time if said termination is without Cause. If the Executive’s
employment is terminated by the Company without Cause, the Company shall for
a
period of two years thereafter, (i) continue to pay to the Executive the base
annual salary in effect under Section 4(a) on the date of said termination
(or,
if greater, the highest annual salary in effect for the Executive within the
36
month period prior to said termination) plus an annual amount equal to any
bonus
paid by the Company to the Executive during the 12 month period prior to said
termination, such salary and bonus to be payable in such periodic installments
(and not as a lump sum payment) consistent with the payroll periods for the
Company’s payments to its other employees; and (ii) reimburse the Executive for
continued coverage in accordance with the Consolidated Omnibus Budget
Reconciliation Act under the Bank’s medical insurance plan.
(g) Excise
Tax.
In the
event that any consideration or other amount paid or payable to Executive
hereunder as well as any other agreements between the Executive and the Company
constitutes or is deemed to be an “excess parachute payment” within the meaning
of Section 280G(b) of the Internal Revenue Code of 1986 (or any other amended
or
successor provision) that is subject to the tax imposed pursuant to Section
4999
of the Internal Revenue Code of 1986 (or any other amended or successor
provisions) (“Excise Tax”), the Company shall pay to Executive an amount
(“Gross-Up Amount”) that, after reduction of the amount of such Gross-Up Amount
for all federal, state and local tax to which the Gross-Up Amount is subject
(including the Excise Tax to which the Gross-Up Amount is subject) is equal
to
the amount of the Excise Tax to which such amount constituting an excess
parachute payment is subject. For purposes of determining the amount of any
Gross-Up Amount, Executive shall be deemed to pay federal income taxes at the
highest marginal rate of federal income taxation in the calendar year in which
the Gross-Up Amount is to be made and state and local income taxes at the
highest marginal rate of taxation in the state and locality of residence of
Employee on the date the excess parachute payment is made, net of the maximum
reduction in federal income taxes that could be obtained from the deduction
of
such state and local taxes.
9. Notice.
All
notices permitted or required to be given to either party under this Agreement
shall be in writing and shall be deemed to have been given (a) in the case
of
delivery, when addressed to the other party as set forth at the end of this
Agreement and delivered to said address, (b) in the case of mailing, three
days
after the same has been mailed by certified mail, return receipt requested,
and
deposited postage prepaid in the U.S. Mails, addressed to the other party at
the
address as set forth at the end of this Agreement, and (c) in any other case,
when actually received by the other party. Either party may change the address
at which said notice is to be given by delivering notice of such to the other
party to this Agreement in the manner set forth herein.
10. Confidential
Matters.
The
Executive is aware and acknowledges that the Executive shall have access to
confidential information by virtue of his employment. The Executive agrees
that,
during the period of time the Executive is retained to provide services to
the
Company, and thereafter subsequent to the termination of Executive’s services to
the Company for any reason whatsoever, the Executive will not release or divulge
any confidential information whatsoever relating to the Company or its business,
to any other person or entity without the prior written consent of the Company.
Confidential information does not include information that is available to
the
public or which becomes available to the public other than through a breach
of
this Agreement on the part of the Executive. Also, the Executive shall not
be
precluded from disclosing confidential information in furtherance of the
performance of his services to the Company or to the extent required by any
legal proceeding.
11. Injunction
Without Bond.
In the
event there is a breach or threatened breach by the Executive of the provisions
of Sections 10, 12, or 13, the Company shall be entitled to an injunction
without bond to restrain such breach or threatened breach, and the prevailing
party in any such proceeding will be entitled to reimbursement for all costs
and
expenses, including reasonable attorneys’ fees in connection therewith. Nothing
herein shall be construed as prohibiting the Company from pursuing such other
remedies available to it for any such breach or threatened breach including
recovery of damages from the Executive.
12. Noncompetition.
The
Executive agrees that during the period of time the Executive is retained to
provide services to the Company, and thereafter for a period of two years
subsequent to the termination of Executive’s services to the Company for any
reason whatsoever (except where the employment of the Executive is terminated
pursuant to Section 8(e), or where the term of employment is not renewed
pursuant to Section 3), Executive will not enter the employ of, or have any
interest in, directly or indirectly (either as executive, partner, director,
officer, consultant, principal, agent or employee), any other bank or financial
institution or any entity which either accepts deposits or makes loans (whether
presently existing or subsequently established) and which has an office located
within a radius of 50 miles of any office of the Bank (a “Competitive
Activity”); provided, however, that the foregoing shall not preclude any
ownership by the Executive of an amount not to exceed 5% of the equity
securities of any entity which is subject to the periodic reporting requirements
of the 1934 Act and the shares of Company common stock owned by the Executive
at
the time of termination of employment. Notwithstanding any other provision
in
this Agreement, if the Executive is receiving severance payments from the
Company pursuant to Sections 8(b) or (f), then the Executive shall not be
entitled to receive any such severance payments which are after two year
subsequent to the termination of the Executive’s services to the Company if the
Executive following such two-year period engages in any Competitive Activity.
Notwithstanding
any other provision in this Agreement, if the Executive's employment is
terminated pursuant to Section 8(b) or (f), then the Executive shall be subject
to the noncompetition provisions of this Section only for such period of time
as
the Executive is receiving from the Company the compensation contemplated by
Sections 8(b) or (f), as the case may be.
13. Nonsolicitation;
Noninterference; Nondisparagement.
The
Executive agrees that during the period of time the Executive is retained to
provide services to the Company, and thereafter for a period of one year
subsequent to the termination of Executive’s services to the Company for any
reason whatsoever, the Executive will not (a) solicit for employment by
Executive, or anyone else, or employ any employee of the Company or any person
who was an employee of the Company within 12 months prior to such solicitation
of employment; (b) induce, or attempt to induce, any employee of the Company
to
terminate such employee’s employment; (c) induce, or attempt to induce, anyone
having a business relationship with the Company to terminate or curtail such
relationship or, on behalf of himself or anyone else, to compete with the
Company; or (d) permit anyone controlled by the Executive, or any person acting
on behalf of the Executive or anyone controlled by an employee of the Executive
to do any of the foregoing. The Executive and the Company also agrees that
during the term of this Agreement and thereafter, the parties will not
disparage, denigrate or comment negatively upon, either orally or in writing,
either party, any of its affiliates, or any of their respective officers or
directors, to or in the presence of any person or entity, unless compelled
to
act by subpoena or other legal mandate.
14. Remedies.
The
Executive agrees that the restrictions set forth in this Agreement are fair
and
reasonable. The covenants set forth in this Agreement are not dependent
covenants and any claim against the Company, whether arising out of this
Agreement or any other agreement or contract between the Company and Executive,
shall not be a defense to a claim against Executive for a breach or alleged
breach of any of the covenants of Executive contained in this Agreement. It
is
expressly understood by and between the parties hereto that the covenants
contained in this Agreement shall be deemed to be a series of separate
covenants. The Executive understands and agrees that if any of the separate
covenants are judicially held invalid or unenforceable, such holding shall
not
release him from his obligations under the remaining covenants of this
Agreement. If in any judicial proceedings, a court shall refuse to enforce
any
or all of the separate covenants because taken together they are more extensive
(whether as to geographic area, duration, scope of business or otherwise) than
necessary to protect the business and goodwill of the Bank, it is expressly
understood and agreed between the parties hereto that those separate covenants
which, if eliminated or restricted, would permit the remaining separate
covenants or the restricted separate covenant to be enforced in such proceeding
shall, for the purposes of such proceeding, be eliminated from the provisions
of
this Agreement or restriction, as the case may be.
15. Invalid
Provision.
In the
event any provision should be or become invalid or unenforceable, such facts
shall not affect the validity and enforceability of any other provision of
this
Agreement. Similarly, if the scope of any restriction or covenant contained
herein should be or become too broad or extensive to permit enforcement thereof
to its full extent, then any such restriction or covenant shall be enforced
to
the maximum extent permitted by law, and Executive hereby consents and agrees
that the scope of any such restriction or covenant may be modified accordingly
in any judicial proceeding brought to enforce such restriction or
covenant.
16. Governing
Law.
This
Agreement shall be construed in accordance with and shall be governed by the
laws of the State of Florida.
17. Arbitration.
Except
for injunctive relief as provided in Section 11 above, all disputes between
the
parties hereto concerning the performance, breach, construction or
interpretation of this Agreement, or in any manner arising out of this
Agreement, shall be submitted to binding arbitration in accordance with the
rules of the American Arbitration Association, which arbitration shall be
carried out in the manner set forth below:
(a) Within
fifteen (15) days after written notice by one party to the other party of its
demand for arbitration, which demand shall set forth the name and address of
its
designated arbitrator, the other party shall select its designated arbitrator
and so notify the demanding party. Within fifteen (15) days thereafter, the
two
arbitrators so selected shall select the third arbitrator. The dispute shall
be
heard by the arbitrators within sixty (60) days after selection of the third
arbitrator. The decision of any two arbitrators shall be binding upon the
parties. Should any party or arbitrator fail to make a selection, the American
Arbitration Association shall designate such arbitrator upon the application
of
either party. The decision of the arbitrators shall be final and binding upon
the Company, its successors and assigns, and upon Executive, his successors
and
representatives, as the case may be.
(b) Unless
the Parties agree otherwise, the arbitration proceedings shall take place in
the
city where the headquarters of the Holding Company is located, and the judgment
and determination of such proceedings shall be binding on all parties thereto.
Judgment upon any award rendered by the arbitrators may be entered into any
court having competent jurisdiction without any right of appeal.
(c) Each
party shall bear its or his own expenses of arbitration, and the expenses of
the
arbitrators and the arbitration proceeding shall be shared equally. However,
if
in the opinion of a majority of the arbitrators, any claim or defense was
unreasonable, the arbitrators may assess, as part of their award, all or any
part of the arbitration expenses of the other party (including reasonable
attorneys’ fees) and of the arbitrators and the arbitration proceeding against
the party raising such unreasonable claim or defense.
18. Binding
Effect.
This
Agreement shall be binding on and inure to the benefit of the parties hereto
and
their respective successors and legal representatives and
beneficiaries.
19. Effect
on Other Agreements.
This
Agreement and the termination thereof shall not affect any other agreement
between the Executive and the Company, and the receipt by the Executive of
benefits thereunder.
20. Miscellaneous.
The
rights and duties of the parties hereunder are personal and may not be assigned
or delegated without the prior written consent of the other party to this
Agreement. The captions used herein are solely for the convenience of the
parties and are not used in construing this Agreement. Time is of the essence
of
this Agreement and the performance by each party of its or his duties and
obligations hereunder.
21. Complete
Agreement.
This
Agreement constitutes the complete agreement between the parties hereto with
respect to the subject matter hereof and incorporates all prior discussions,
agreements and representations made in regard to the matters set forth herein.
This Agreement may not be amended, modified or changed except by a writing
signed by the party to be charged by said amendment, change or
modification.
22. Compliance
With Section 409A.
Notwithstanding anything xxxxx to the contrary if it is determined by the
Company or the Executive, in good faith, at the time of the Executive’s
termination of employment that the Executive is a “specified employee” within
the meaning of Section 409A(a)(2)(B)(i) of the Code and that payments to be
made
to the Executive hereunder, if made earlier than as required under Section
409A(a)(2)(B)(i) of the Code would result in the requirement for the Executive
to pay additional interest and taxes to be imposed in accordance with Section
409A(a)(1)(B) of the Code, then any payments to be made in accordance with
this
Agreement shall be made as of date that is 184 calendar days from the date
of
the Executive’s termination of employment, or immediately upon the death of the
Executive, if earlier. The provisions of this Section 22 shall survive the
expiration of this Agreement.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
| TIB FINANCIAL CORP. | TIB BANK OF THE KEYS | ||||
|
|
|||||
| By: | /s/ Xxxxxx X. Xxxx | By: | /s/ Xxxxxx X. Xxxx | ||
| Xxxxxx X. Xxxx | Xxxxxx X. Xxxx | ||||
| President and Chief Executive Officer | President and Chief Executive Officer | ||||
| “EXECUTIVE” | |||||
|
|
/s/
Xxxxxxx X. Xxxxxxxx
|
||||
|
Xxxxxxx
X. Xxxxxxxx,
individually
|
|||||
| Address: | |||||
