EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and
entered into as of January 10, 2000 by and between REPUBLIC SECURITY BANK, a
commercial bank organized and operating under the laws of the State of Florida
and having an office at 000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxx Xxxx Xxxxx, XX 00000
(the "Bank"), and XXXXXXX XXXXX, an individual residing at 00000 Xxxxx Xxx
Xxxxxx, Xxxxxxxx, Xxxxxxx 00000 (the "Executive").
W I T N E S S E T H :
WHEREAS, upon commencement of employment the Executive is
expected to be elected as Senior Vice President, SBA Director of the Bank; and
WHEREAS, the Bank desires to assure for itself the
availability of the Executive's services; and
WHEREAS, the Executive is willing to serve the Bank on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and conditions hereinafter set forth, the Bank and the
Executive hereby agree as follows:
SECTION 1. EMPLOYMENT.
The Bank agrees to employ the Executive, and the Executive
hereby agrees to such employment, during the period and upon the terms and
conditions set forth in this Agreement.
SECTION 2. EMPLOYMENT PERIOD; REMAINING UNEXPIRED EMPLOYMENT
PERIOD.
(a) The terms and conditions of this Agreement shall be and
remain in effect during the period of employment established under this section
2 ("Employment Period"). The Employment Period shall be for an initial term of
one year beginning on the date the Executive actually begins employment with the
Bank (the "Employment Date") and ending on the first anniversary of such
Employment Date, plus such extensions, if any, as are provided pursuant to
section 2(b).
(b) The Employment Period shall automatically be extended for
one (1) additional year on each anniversary of the Employment Date, unless
either the Bank or the Executive elects not to extend the Agreement further by
giving written notice to the other party at least 60 days prior to any
anniversary of the Employment Date, in
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which case the Employment Period shall end on such anniversary of the Employment
Date. Upon termination of the Executive's employment with the Bank for any
reason whatsoever, any renewals provided pursuant to this section 2(b), if not
theretofore discontinued, shall automatically cease.
(c) Nothing in this Agreement shall be deemed to prohibit the
Bank from terminating the Executive's employment at any time during the
Employment Period with or without notice for any reason; PROVIDED, HOWEVER, that
the relative rights and obligations of the Bank and the Executive in the event
of any such termination shall be determined under this Agreement.
SECTION 3. DUTIES.
The Executive shall serve as Senior Vice President, SBA Director of the
Bank, having such power, authority and responsibility and performing such duties
as are prescribed by or under the By-Laws of the Bank, or assigned by the Board
of Directors of the Bank, the Senior Executive Vice President and Chief Banking
Officer, or the senior corporate/commercial officer, and otherwise as are
customarily associated with such position. The Executive shall devote his full
business time and attention (other than during weekends, holidays, approved
vacation periods, and periods of illness or approved leaves of absence) to the
business and affairs of the Bank and shall use his best efforts to advance the
interests of the Bank.
SECTION 4. CASH COMPENSATION.
(a) In consideration for the services to be rendered by the Executive hereunder,
the Bank shall pay to Executive a salary at an initial annual rate of ONE
HUNDRED FIFTY THOUSAND DOLLARS ($150,000), payable in approximately equal
installments in accordance with the Bank's customary payroll practices for
senior officers. At least annually during the Employment Period, the Board of
Directors of the Bank, the Compensation Committee thereof, or the appropriate
management committee shall review the Executive's annual rate of salary and may,
in its discretion, approve an increase therein. In no event shall the
Executive's annual rate of salary under this Agreement in effect at a particular
time be reduced without his prior written consent. In addition to salary, the
Executive shall be paid incentive compensation as follows:
(i) For up to the first $20 million in aggregate SBA loan production
actually produced by the Executive and sold by the Bank (with both
parties recognizing that 75%, and in some circumstances 80%, of each
SBA loan is saleable) during the first year of the Employment Period,
and for up to the first $10 million in aggregate SBA loan production
actually produced by the Executive and sold by the Bank during the
second year of the Employment Period (if any), the Executive shall
receive incentive compensation equal to thirty percent (30%) of the
amount received by the Bank (not including accrued interest, if any) in
excess of the aggregate principal amount of the loan(s) sold (such
amount received by the Bank (not including accrued interest, if any) in
excess of the aggregate principal amount of the loan sold being
hereinafter referred to as the "Premium"); plus
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(ii) For SBA loans produced by loan officers in the SBA Department
other than Executive and sold by the Bank (with the proviso set forth
above with respect to the percentage of each SBA loan which is
saleable), the Executive shall receive incentive compensation equal to
fifteen percent (15%) of the Premium.
(b) Incentive compensation shall be paid as soon as reasonably practicable
following the closing of the sale of each SBA loan. The Executive understands
that such closing must occur, and all information concerning such closing must
be verified by the Bank's accounting department, at least one week prior to the
end of each pay period for incentive compensation to be paid in that pay period.
For SBA loans which are saleable but which the Bank in its sole discretion
chooses not to sell, incentive compensation determined in accordance with the
formula set forth above and subparagraph (c), below, shall be due and payable as
soon as reasonably practicable following the later of (x) the closing of the SBA
loan and (y) the Bank's notifying the Executive of its decision not to sell the
SBA loan.
(c) The Bank shall use its best efforts to determine whether or not to sell any
SBA loan within thirty (30) days of the closing of such SBA loan. For loans
which the Bank determines not to sell, incentive compensation payable to the
Executive hereunder shall be based upon the highest written bid received from a
third party prior to the Bank's making its decision not to sell the SBA loan.
SECTION 5. EMPLOYEE BENEFIT PLANS AND PROGRAMS.
(a) During the Employment Period, the Executive shall be treated as an
employee of the Bank and shall be entitled to participate in and receive
benefits under any and all qualified or non-qualified retirement, pension,
savings, profit-sharing or stock bonus plans, any and all group life, health
(including hospitalization, medical and major medical), dental, accident and
long term disability insurance plans, and any other employee benefit and
compensation plans (including, but not limited to, any incentive compensation
plans or programs, stock option and appreciation rights plans and restricted
stock plans) as may from time to time be maintained by, or cover employees of,
the Bank, in accordance with the terms and conditions of such employee benefit
plans and programs and compensation plans and programs and consistent with the
Bank's customary practices. In addition, Executive shall receive a car allowance
of $750 per month, subject to applicable withholding, which shall be paid with
the first payroll paid in each month, and Executive shall be authorized to
charge gasoline used for business purposes to a Company credit card.
(b) The Bank will reimburse the Executive for his COBRA expenses
actually incurred with respect to his first three months of employment.
(c) The Bank will provide the Executive with a cellular phone to be
used for business purposes. The Executive will reimburse the Bank for expenses
incurred in connection with personal phone calls. Costs for the use of a pager
for business purposes shall be reimbursed by the Bank upon presentation of
appropriate documentation. The Bank will provide the Executive with a Bank
credit card which he may use in accordance with established Bank policies and
procedures for business expenses only.
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SECTION 6. OTHER ACTIVITIES.
The Executive may serve as a member of the boards of directors
of such business, community and charitable organizations as he may disclose to
and as may be approved by the President or Senior Executive Vice President and
Chief Banking Officer of the Bank (which approval shall not be unreasonably
withheld); PROVIDED, HOWEVER, that such service shall not materially interfere
with the performance of his duties under this Agreement. The Executive may also
engage in personal business and investment activities which do not materially
interfere with the performance of his duties hereunder; PROVIDED, HOWEVER, that
such activities are not prohibited under any code of conduct or investment or
securities trading policy established by the Bank and generally applicable to
all similarly situated executives.
SECTION 7. WORKING FACILITIES AND EXPENSES.
The Executive's principal place of employment shall be at the
Bank's executive offices at the address first above written, or at the Bank's
offices on Palm Beach Lakes Blvd. in West Palm Beach, or at such other location
within Palm Beach County, Florida at which the Bank shall maintain its principal
executive offices, or at such other location as the Bank and the Executive may
mutually agree upon. The Bank shall provide the Executive at his principal place
of employment with a private office and other support services and facilities
suitable to his position with the Bank and necessary or appropriate in
connection with the performance of his assigned duties under this Agreement. The
Bank shall reimburse the Executive for his ordinary and necessary business
expenses incurred in connection with the performance of his duties under this
Agreement upon presentation to the Bank of an itemized account of such expenses
in such form as the Bank may reasonably require.
SECTION 8. TERMINATION OF EMPLOYMENT WITH SEVERANCE BENEFITS.
(a) The Executive shall be entitled to the severance benefits
described herein in the event that his employment with the Bank terminates
during the Employment Period under any of the following circumstances:
(i) the Executive's voluntary resignation from employment with
the Bank within ninety (90) days following:
(A) the failure of the Board of Directors of the Bank
to appoint or re-appoint or elect or re-elect the Executive to
the offices of Senior Vice President, SBA Director (or a more
senior office) of the Bank;
(B) the expiration of a thirty (30) day period
following the date on which the Executive gives written notice
to the Bank of its material failure, whether by amendment of
the Bank's Articles of Incorporation or By-laws, action of the
Bank's Board of Directors or the Bank's stockholders or
otherwise, to vest in the Executive the functions, duties, or
responsibilities prescribed in
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section 3 of this Agreement as of the date hereof, unless,
during such thirty (30) day period, the Bank cures such
failure;
(C) the relocation of the Executive's principal place of
employment, without his written consent, to a location outside
of Palm Beach County, Florida; or
(D) the sale of the Bank and the purchasing entity's decision
to discontinue the SBA loan program at the Bank;
(ii) the determination by the Bank to materially discontinue
its SBA program;
(iii) the termination of the Executive's employment with the
Bank for any other reason not described in section 9(a).
In such event, the Bank shall provide the benefits and pay to the Executive the
amounts described in section 8(b).
(b) Upon the termination of the Executive's employment with
the Bank under circumstances described in section 8(a) of this Agreement, the
Bank shall pay and provide to the Executive (or, in the event of his death
following such termination, to his estate):
(i) his earned but unpaid compensation as of the date of the
termination of his employment with the Bank, such payment to be made at
the time and in the manner prescribed by law applicable to the payment
of wages but in no event later than thirty (30) days after termination
of employment;
(ii) the benefits, if any, to which he is entitled as a former
employee under the employee benefit plans and programs and compensation
plans and programs maintained for the benefit of the Bank's officers
and employees;
(iii) continued group life, health (including hospitalization,
medical and major medical), dental, accident and long term disability
insurance benefits, in addition to that provided pursuant to section
8(b)(ii), and after taking into account the coverage provided by any
subsequent employer, if and to the extent necessary to provide for the
Executive, for a period of one year from the date his employment
terminates, coverage equivalent to the coverage to which he would have
been entitled under such plans as in effect on the date of his
termination of employment if he had continued working for the Bank for
one year at the highest annual rate of compensation achieved during
that portion of the Employment Period which is prior to the Executive's
termination of employment with the Bank;
(iv) within thirty (30) days following his termination of
employment with the Bank, a lump sum payment in an amount equal to the
base salary that the Executive would have earned if he had continued
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working for the Bank for a period of one year from the date his
employment terminates at the highest annual rate of base salary
achieved during that portion of the Employment Period which is prior to
the Executive's termination of employment with the Bank, such lump sum
to be paid in lieu of all other payments of salary provided for under
this Agreement in respect of the period following any such termination;
and
(v) the amount of incentive compensation which Executive would
have been entitled to under Section 4 hereof with respect to SBA loans
which were approved, but not closed and sold, prior to the termination
of Executive's employment hereunder, but only during a period beginning
on the date of Executive's termination of employment and ending on the
date which is six (6) months after such termination date, and only as
soon as reasonably practicable after such SBA loans are sold.
The Bank and the Executive hereby stipulate that the damages which may be
incurred by the Executive following any such termination of employment are not
capable of accurate measurement as of the date first above written and that the
payments and benefits contemplated by this section 8(b) constitute reasonable
damages under the circumstances and shall be payable without any requirement of
proof of actual damage and without regard to the Executive's efforts, if any, to
mitigate damages. The Bank and the Executive further agree that the Bank may
condition the payments and benefits (if any) due under sections 8(b)(iii) and
(iv) on the receipt of the Executive's resignation from any and all positions
which he holds as an officer, director or committee member with respect to the
Bank or any subsidiary or affiliate of either of them.
SECTION 9. TERMINATION WITHOUT ADDITIONAL BANK LIABILITY.
(a) In the event that the Executive's employment with the Bank
shall terminate during the Employment Period on account of:
(i) the discharge of the Executive for "cause," which, for
purposes of this Agreement shall mean: (A) gross negligence or willful
misconduct by the Executive in connection with his employment hereunder
or the business of the Bank; (B) the Executive's misappropriation of
the Bank's assets or property; (C) the Executive willfully fails or
refuses to perform his duties under this Agreement, or fails to comply
with any material term, covenant or condition contained herein, which
failure or refusal shall not be cured to the Bank's reasonable
satisfaction within five (5) business days of Executive's receipt of
written notice concerning such failure or refusal from the Bank; (D)
the Executive breaches his fiduciary duties to the Bank for personal
profit; or (E) the Executive's willful breach or violation of any law,
rule or regulation (other than traffic violations or similar offenses),
or final cease and desist order in connection with his performance of
services for the Bank;
(ii) the Executive's voluntary resignation from employment
with the Bank for reasons other than those specified in section 8(a);
(iii) the Executive's death; or
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(iv) a determination that the Executive is eligible for
long-term disability benefits under the Bank's long-term disability
insurance program or, if there is no such program, under the federal
Social Security Act;
then the Bank shall have no further obligations under this Agreement, other than
the payment to the Executive (or, in the event of his death, to his estate) of
his earned but unpaid compensation as of the date of the termination of his
employment, and the provision of such other benefits, if any, to which he is
entitled as a former employee under the employee benefit plans and programs and
compensation plans and programs maintained by, or covering employees of, the
Bank.
SECTION 10. TAX LIMITATIONS.
(a) Notwithstanding any other provision of this Agreement, in the event
that any payment or benefit received or to be received by the Executive (whether
pursuant to the terms of this Agreement or any other plan, arrangement or
agreement with the Bank (all such payments and benefits, including the payments
and benefits provided under this Agreement (the "Severance Payments"), being
hereinafter called "Total Payments") would not be deductible (in whole or in
part) by the Bank, its parent, an affiliate or a person making such payment or
providing such benefit as a result of Section 280G of the Internal Revenue Code
of 1986, as amended (the "Code"), then, to the extent necessary to make such
portion of the Total Payments deductible (and after taking into account any
reduction in the Total Payments provided in such other plan, arrangement or
agreement), the cash Severance Payments shall first be reduced (if necessary, to
zero); provided, however, that the Executive may elect (at any time prior to the
payment of amounts payable hereunder) to have the noncash severance payments
reduced (or eliminated) prior to any reduction of the cash Severance Payments.
(b) For purposes of the limitation contained in subsection (a) of this
section 10, (i) no portion of the Total Payments the receipt or enjoyment of
which Executive shall have effectively waived in writing prior to the delivery
of a notice of termination of employment shall be taken into account, (ii) no
portion of the Total Payments shall be taken into account which, in the opinion
of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and
selected by the accounting firm which was, immediately prior to the event
triggering the payment, the Company's independent auditor (the "Auditor"), does
not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of
the Code, including by reason of Section 280G(b)(4)(A) of the Code, (iii) the
Severance Payments shall be reduced only to the extent necessary so that the
Total Payments (other than those referred to in clauses (i) or (ii)) in their
entirety constitute reasonable compensation for services actually rendered
within the meaning of Section 280(G)(b)(4)(B) of the Code or are otherwise not
subject to disallowance as deductions by reason of Section 280G of the Code, in
the opinion of Tax Counsel, and (iv) the value of any noncash benefit or any
deferred payment or benefit included in the Total Payments shall be determined
by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4)
of the Code.
(c) If it is established pursuant to a final determination of a court
or an Internal Revenue Service proceeding that, notwithstanding the good faith
of the Executive and the Bank in applying the terms of this section 10, the
aggregate "parachute payments"
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paid to of for the Executive's benefit are in an amount that would result in any
portion of such "parachute payments" not being deductible by reason of Section
280G of the Code, then the Executive shall have an obligation to pay the Bank
upon demand an amount equal to the sum of (i) the excess of the aggregate
"parachute payments" paid to or for the Executive's benefit over the aggregate
"parachute payments" that could have been paid to or for the Executive's benefit
without any portion of such "parachute payments" not being deductible by reason
of Section 280G of the Code; and (ii) interest on the amount set forth in clause
(i) of this sentence at 120% of the rate provided in Section 1274(b)(2)(B) of
the Code from the date of Executive's receipt of such excess until the date of
such payment. If the Severance Payments shall be decreased pursuant to section
(a) hereof, and the benefits under section 8(b)(iii) which remain payable after
the application of this section 10 are thereafter reduced pursuant thereto
because of the receipt by the Executive of substantially similar benefits, the
Bank shall, at the time of such reduction, pay to the Executive the lowest of
(a) the amount of the decrease made in the Severance Payments pursuant to this
section 10, (b) the amount of the subsequent reduction in such benefits, or (c)
the maximum amount which can be paid to the Executive without being, or causing
any other payment to be, nondeductible by reason of Section 280G of the Code.
SECTION 11. CONFIDENTIALITY.
(a) Unless he obtains the prior written consent of the Bank,
the Executive shall keep confidential and shall refrain from using for the
benefit of himself, or any person or entity other than the Bank or any entity
which is a subsidiary of the Bank or of which the Bank is a subsidiary, any
material document or information obtained from the Bank, or from its parent or
subsidiaries, in the course of his employment with any of them concerning their
properties, operations or business (unless such document or information is
readily ascertainable from public or published information or trade sources or
has otherwise been made available to the public through no fault of his own),
including without limitation trade secrets and the confidential or proprietary
information of the Bank (including the names and circumstances of loan and
deposit customers of the Bank) until the same ceases to be material (or becomes
so ascertainable or available); PROVIDED, HOWEVER, that nothing in this section
11 shall prevent the Executive, with or without the Bank's consent, from
participating in or disclosing documents or information in connection with any
judicial or administrative investigation, inquiry or proceeding to the extent
that such participation or disclosure is required under applicable law. The Bank
acknowledges that the Executive claims a proprietary interest in his program for
setting up and running a bank SBA department, as set forth in Exhibit A hereto.
The Bank agrees that it shall not make a claim of proprietary interest or trade
secret in such program for itself at the end of the Employment Period. The
Executive shall use such program solely for the benefit of the Bank during the
Employment Period.
(b) The Executive shall be liable for damages incurred by the
Bank as a result of disclosure of any information described in section 11(a) by
the Executive without the prior written consent of the Bank (except if such
disclosure is made in accordance with the proviso set forth at the end of
section 11(a)), for any purpose other than the business of the Bank, either
during his employment or at any time after termination of his employment with
the Bank for any reason whatsoever (including without Cause).
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SECTION 12. NO EFFECT ON EMPLOYEE BENEFIT PLANS OR PROGRAMS.
The termination of the Executive's employment during the term
of this Agreement or thereafter, whether by the Bank or by the Executive, shall
have no effect on the rights and obligations of the parties hereto under the
Bank's qualified or non-qualified retirement, pension, savings, thrift,
profit-sharing or stock bonus plans, group life, health (including
hospitalization, medical and major medical), dental, accident and long term
disability insurance plans or such other employee benefit plans or programs, or
compensation plans or programs, as may be maintained by, or cover employees of,
the Bank from time to time.
SECTION 13. NON-COMPETITION AND NON-SOLICITATION.
(a) NON-COMPETITION. During the Employment Period, the Executive agrees
not to engage, directly or indirectly, in any aspect of the financial
institutions business, including without limitation engaging in business
activities for or on behalf of state, national or foreign banks, state or
federal savings associations or savings banks, credit unions, mortgage or loan
companies or any other entity which makes or acquires loans or takes deposits or
engages in any other business engaged in by the Bank on the date hereof,
including without limitation, the Small Business Administration ("SBA") lending
business (the "Banking Business"), other than for the Bank, whether as
stockholder (except for immaterial interests in publicly-traded institutions),
partner, director, officer, employee, agent, consultant or otherwise. In the
event of termination of the Executive's employment with the Bank for any reason
other than (A) those set forth in Sections 8(a)(i) or 8(a)(ii) or (B)
termination of Executive's employment by the Bank without cause, the Executive,
until two (2) years after the date of such termination, agrees not to engage,
directly or indirectly, in the Banking Business in any capacity in the state of
Florida.
(b) NON-SOLICITATION. The Executive hereby covenants and agrees that,
for a period of two (2) years following his termination of employment with the
Bank, he shall not, without the written consent of the Bank, either directly or
indirectly:
(i) solicit, offer employment to, or take any other action
intended, or that a reasonable person acting in like circumstances
would expect, to have the effect of causing any officer or employee of
the Bank or any affiliate, as of the date of this Agreement, of the
Bank, to terminate his or her employment and accept employment or
become affiliated with, or provide services for compensation in any
capacity whatsoever to, any savings bank, savings and loan association,
bank, bank holding company, savings and loan holding company, credit
union, mortgage or loan company or any other entity or other
institution or organization engaged in the Banking Business in the
state of Florida;
(ii) provide any information, advice or recommendation with
respect to any such officer or employee to any savings bank, savings
and loan association, bank, bank holding company, savings and loan
holding company, credit union, mortgage or loan company or any other
entity or other institution engaged in the Banking Business, that is
intended, or that a reasonable person acting in like circumstances
would expect, to have the effect of causing any officer or employee of
the Bank, or any affiliate, as of the date of this Agreement,
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of the Bank, to terminate his or her employment and accept employment
or become affiliated with, or provide services for compensation in any
capacity whatsoever to, any such savings bank, savings and loan
association, bank, bank holding company, savings and loan holding
company, credit union, mortgage or loan company or any other entity or
other institution engaged in the Banking Business in the state of
Florida; or
(iii) solicit, provide any information, advice or
recommendation or take any other action intended, or that a reasonable
person acting in like circumstances would expect, to have the effect of
causing any customer of the Bank to terminate an existing business or
commercial relationship with the Bank.
Sections 13(b)(i) and 13(b)(ii) shall not apply if the Executive's employment
terminates due to the Bank's or any successor's decision to discontinue making
SBA loans, or if the Executive's employment terminates (A) for the reasons set
forth in Sections 8(a)(i) or 8(a)(ii), or (B) by the Bank without cause.
SECTION 14. SUCCESSORS AND ASSIGNS.
This Agreement will inure to the benefit of and be binding
upon the Executive, his legal representatives and testate or intestate
distributees, and the Bank and its successors and assigns, including any
successor by merger or consolidation or a statutory receiver or any other person
or firm or corporation to which all or substantially all of the assets and
business of the Bank may be sold or otherwise transferred.
SECTION 15. NOTICES.
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five (5) days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, or one (1) day after it is sent by reputable overnight delivery
service, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
If to the Executive:
Xxxxxxx Xxxxx
00000 Xxxxx Xxx Xxxxxx
Xxxxxxxx, XX 00000
If to the Bank:
Republic Security Bank
000 X. Xxxxxxxxxx Xxxxxx
Xxxx Xxxx Xxxxx, XX 00000
Attention: R. Xxxxxxx Xxxxxxxxxx, SEVP and CBO
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SECTION 16. ATTORNEYS' FEES.
In the event that any litigation or other dispute arises to
enforce or interpret any term or terms of this Agreement, the prevailing party
shall be entitled, in addition to any other damages or remedy, to receive from
the other party its reasonable attorneys' fees and costs.
SECTION 17. SEVERABILITY.
A determination that any provision of this Agreement is
invalid or unenforceable shall not affect the validity or enforceability of any
other provision hereof.
SECTION 18. WAIVER.
Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
SECTION 19. COUNTERPARTS.
This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
SECTION 20. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Florida applicable to contracts
entered into and to be performed entirely within the State of Florida.
SECTION 21. HEADINGS AND CONSTRUCTION.
The headings of sections in this Agreement are for convenience
of reference only and are not intended to qualify the meaning of any section.
Any reference to a section number shall refer to a section of this Agreement,
unless otherwise stated.
SECTION 22. ENTIRE AGREEMENT; MODIFICATIONS.
This instrument contains the entire agreement of the parties
relating to the subject matter hereof, and supersedes in its entirety any and
all prior agreements, understandings or representations relating to the subject
matter hereof. No
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modifications of this Agreement shall be valid unless made in writing and signed
by the parties hereto.
SECTION 23. SURVIVAL.
The provisions of sections 8, 9, 10, 11, 12, 13, 16, 18, 20,
24, 25 and 26 shall survive the expiration of the Employment Period or
termination of this Agreement.
SECTION 24. EQUITABLE REMEDIES.
The Company, the Bank and the Executive hereby stipulate that
money damages are an inadequate remedy for violations of sections 11 and 13 of
this Agreement and agree that equitable remedies, including, without
limitations, the remedies of specific performance and injunctive relief, shall
be available with respect to the enforcement of such provisions.
SECTION 25. REQUIRED REGULATORY PROVISION.
Notwithstanding anything herein contained to the contrary, any
payments to the Executive by the Bank, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with section
18(k) of the Federal Deposit Insurance Act, 12 U.S.C. ss.1828(k), and any
regulations promulgated thereunder.
SECTION 26. SIGNING BONUS.
(a) Attached hereto as Exhibit B is a list of all loans originated by the
Executive during his employment at Palm Beach National Bank on which commissions
have not yet been paid to the Executive but on which commissions are owed to the
Executive by Palm Beach National Bank. The Executive believes, due to his
termination of employment with Palm Beach National Bank and his commencement of
employment with the Bank, that these commissions may not be paid to him. Exhibit
B sets forth the Premium on each loan listed, as well as the percentage of such
Premium owed to the Executive as commission. The Bank agrees to pay, as a
signing bonus, the amount of the commissions due to Executive listed in Exhibit
B; PROVIDED, HOWEVER, that each such commission shall become due and payable
from the Bank only under the following circumstances:
(i) The Executive shall provide the Bank with proof reasonably
satisfactory to the Bank that the loan actually closed;
(ii) The Executive shall use his best efforts to have the commission
paid by Palm Beach National Bank and shall provide the Bank with
reasonable proof of his efforts, which proof shall consist of a
copy of the letter sent to Palm Beach National Bank demanding
payment, along with the return receipt indicating that such
letter was received by Palm Beach National Bank; and
(iii) The Executive shall provide the Bank with an affidavit that he
has not received the commission from Palm Beach National Bank.
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Provided that the conditions set forth above are met, the signing bonus with
respect to any particular loan shall be paid by the Bank within thirty (30) days
after such conditions are met. If any amount paid by the Bank hereunder shall
thereafter be paid to the Executive by Palm Beach National Bank, the Executive
shall promptly reimburse the Bank for the entire amount paid to him by Palm
Beach National Bank. Failure to do so shall constitute "Cause" under section
9(a)(i) hereof.
SECTION 27. EXECUTIVE REPRESENTATIONS.
The Executive hereby represents and warrants that he is not subject to any
non-competition or non-solicitation covenants, or covenants of similar impact,
in connection with his employment with Palm Beach National Bank or the
termination of such employment. The Executive hereby agrees to indemnify and
hold the Bank harmless from and against any claims or liabilities (including
reasonable attorneys fees) arising from or in connection with the breach of the
foregoing representations and warranties.
SECTION 28. BANK REPRESENTATIONS.
(a) The Bank agrees to use its best efforts to ensure that all credit decisions
necessary with respect to SBA loans are made within fourteen (14) business
days of the credit department's receipt of all items necessary for such
department to make its credit decision. The parties understand and agree
that isolated or intermittent failures by the Bank to meet this schedule
shall not constitute a breach of this Agreement by the Bank.
(b) The Bank shall promote SBA loans at such times and on such schedule as may
be deemed most appropriate by the Bank. Notwithstanding the foregoing, the
Bank hereby agrees to allocate $50,000 for SBA loan promotion in the
calendar year 2000.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed and the
Executive has hereunto set his hand, all as of the day and year first above
written.
REPUBLIC SECURITY BANK
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
NAME: Xxxx X. Xxxxxx
-------------------------------------
TITLE: Chairman/CEO
------------------------------------
/s/ Xxxxxxx Xxxxx
------------------------------------------
Xxxxxxx Xxxxx
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EXHIBIT A:
PROGRAM FOR SBA DEPARTMENT:
none
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EXHIBIT B:
LOANS IN PROCESS AT PALM BEACH NATIONAL:
As more specifically set forth in the attached, there are five loans fitting the
requirements of Section 26(a) of the Agreement, with a total aggregate principal
of $1,560,000 and expected premiums of $65,850. Executive's compensation, if not
paid by Palm Beach National Bank, would be 31.75% of such premiums.
Therefore, the maximum amount of the signing bonus which may become payable
under Section 26 is $20,907.38.
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