EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of ___________, 1999 by and between RS MARITIME CORPORATION (D/B/A FIRST NEW
ENGLAND FINANCIAL), a business corporation organized and operating under the
laws of the State of Delaware and having an office at 000 Xxxxx Xxxxxxxxxx
Xxxxxx, Xxxx Xxxx Xxxxx, XX 00000 (the "Company"), and _____________, an
individual residing at _____________________________ (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company desires to employ the Executive as _______ of the
Company on the condition that Executive agrees to enter into the non-competition
and non-solicitation covenants contained herein; and
WHEREAS, the Company desires to assure for itself the continued
availability of the Executive's services and the ability of the Executive to
perform such services with a minimum of personal distraction in the event of a
pending or threatened Change of Control (as hereinafter defined); and
WHEREAS, the Executive is willing to serve the Company 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 Company and the Executive
hereby agree as follows:
SECTION 1. EMPLOYMENT.
The Company 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 _______ and ending on ________ (the "First Anniversary 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 the First Anniversary Date and on each anniversary of the
First Anniversary Date, unless either the Company or the Executive elects not to
extend the Agreement further by giving written notice to the other party at
least 60 days prior to the First Anniversary Date or any subsequent anniversary
of the First Anniversary Date, in which case the Employment Period shall end on
the First Anniversary Date or any subsequent anniversary of the First
Anniversary Date. Upon termination of the Executive's employment with the
Company for any reason whatsoever, any renewals provided pursuant to this
section 2(b), if not theretofore discontinued, shall automatically cease.
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(c) Nothing in this Agreement shall be deemed to prohibit the Company
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 Company and the Executive in the event of
any such termination shall be determined under this Agreement.
SECTION 3. DUTIES.
The Executive shall serve as _______ of the Company, having such power,
authority and responsibility and performing such duties as are prescribed by or
under the By-Laws of the Company, or assigned by the Board of Directors of the
Company or the Chief Banking Officer of the Company's parent, Republic Security
Bank, and otherwise as are customarily associated with such position. Except as
otherwise provided herein, 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 Company and shall use his best efforts to advance the interests of the
Company.
SECTION 4. CASH COMPENSATION.
In consideration for the services to be rendered by the Executive
hereunder, the Company shall pay to Executive a base salary at an initial annual
rate of __________ ($______), payable in approximately equal installments in
accordance with the Company's customary payroll practices for senior officers.
The Board of Directors of the Company shall from time to time 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 eligible to
receive incentive compensation from the Company in accordance with the schedule
attached hereto as Exhibit A, which schedule may be amended annually by the
Company.
SECTION 5. EMPLOYEE BENEFIT PLANS AND PROGRAMS.
During the Employment Period, the Executive shall be treated as an
employee of the Company and shall be entitled to participate in and receive
benefits under any and all qualified or non-qualified retirement, 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 Company,
in accordance with the terms and conditions of such employee benefit plans and
programs and compensation plans and programs and consistent with the the
Company's customary practices.
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 Board of Directors of the Company (which approval shall
not be unreasonably withheld); PROVIDED, HOWEVER, that such service shall not
materially interfere with the
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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 Company or Republic Security 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
_________________, or at such other location as the Company and the Executive
may mutually agree upon. The Company shall reimburse the Executive for his
ordinary and necessary business expenses, and his travel and entertainment
expenses incurred in connection with the performance of his duties under this
Agreement, in each case upon presentation to the Company of an itemized account
of such expenses in such form as the Company 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 Company terminates during the
Employment Period under any of the following circumstances:
(i) the Executive's voluntary resignation from employment with
the Company within ninety (90) days following:
(A) the failure to appoint or re-appoint or elect or re-elect
the Executive to the office of President (or a more senior office) of
the Company;
(B) the relocation of the Executive's principal place of
employment, without his written consent, to a location outside of
_____________;
(ii) the termination of the Executive's employment with the
Company for any other reason not described in section 9.
In such event, the Company 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 Company
under circumstances described in section 8(a) of this Agreement, the Company
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 Company, 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 Company's officers
and employees;
(iii) continued group life, health (including hospitalization,
medical and major medical), and dental insurance benefits, in addition
to that provided
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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 beginning on the
date his employment terminates and ending on the last day of the
Employment Period, coverage equivalent to the coverage to which he
would have been entitled under such plans, if he had continued working
for the Company during the Employment Period 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
Company;
(iv) within thirty (30) days following his termination of
employment with the Company, a lump sum payment in an amount equal to
the salary that the Executive would have earned if he had continued
working for the Company for the remainder of the Employment Period at
the highest annual rate of salary achieved during that portion of the
Employment Period which is prior to the Executive's termination of
employment with the Company, 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;
(v) within thirty (30) days following his termination of
employment with the Company, a lump sum payment in an amount equal to
the average annual cash incentive compensation or bonus paid to the
Executive with respect to the two complete calendar years immediately
preceding the year in which Executive's employment with the Company
terminates, multiplied by a fraction, the numerator of which is the
amount of lump sum payment described in section 8(b)(iv) and the
denominator of which is the highest annual rate of base salary achieved
during the portion of the Employment Period that is prior to the
Executive's termination of employment. For purposes of this section
8(b)(v), incentive compensation paid to the Executive while employed by
Xxxx Deere Credit, Inc. d/b/a First New England Financial shall be
deemed incentive compensation paid to the Executive by the Company.
The Company 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 Company and the Executive further agree that the Company
may condition the payments and benefits (if any) due under sections 8(b)(iii),
(iv) and (v) 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 Company or any parent or affiliate of the Company.
SECTION 9. TERMINATION WITHOUT ADDITIONAL COMPANY LIABILITY.
In the event that the Executive's employment with the Company shall
terminate during the Employment Period on account of:
(i) the discharge of the Executive for "cause," which, for
purposes of this Agreement (I) prior to a Change of Control (as
hereinafter defined) shall mean: (A) gross negligence or willful
misconduct by the Executive in connection with his employment hereunder
or the business of the Company; (B) the Executive's misappropriation of
the Company's assets or property; (C) the Executive willfully fails or
refuses to perform his duties under this Agreement, or
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fails to comply with any material term, covenant or condition contained
herein; (D) the Executive breaches his fiduciary duties to the Company
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 Company; and (II) upon and after a
Change of Control, shall mean (A) the Executive intentionally engages
in dishonest conduct in connection with his performance of services for
the Company resulting in his conviction of a felony; (B) the Executive
is convicted of, or pleads guilty or nolo contendere to, a felony or
any crime involving moral turpitude; (C) the Executive willfully fails
or refuses to perform his duties under this Agreement and fails to cure
such breach within sixty (60) days following written notice thereof
from the Company; (D) the Executive breaches his fiduciary duties to
the Company 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 Company;
(ii) the Executive's voluntary resignation from employment
with the Company for reasons other than those specified in section 8(a)
or 10(b);
(iii) the Executive's death; or
(iv) a determination that the Executive is eligible for
long-term disability benefits under the Company's long-term disability
insurance program or, if there is no such program, under the federal
Social Security Act;
then the Company 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 (including incentive 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 Company.
SECTION 10. TERMINATION UPON OR FOLLOWING A CHANGE OF CONTROL
(a) A Change of Control ("Change of Control") shall be deemed to have
occurred upon the happening of any of the following events:
(i) approval by the stockholder of the Company of a
transaction that would result in the reorganization, merger or
consolidation of the Company with one or more other persons, other than
a transaction following which:
(A) at least 50.1% of the common stock or equity
ownership interests of the entity resulting from such
transaction are beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) in substantially the
same relative proportions by persons who, immediately prior to
such transaction, beneficially owned (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) at least 50.1%
of the outstanding common stock or equity ownership interests
in the Company; and
(B) At least 50.1% of the combined voting power of
the securities entitled to vote generally in the election of
directors of the entity resulting from such transaction are
beneficially owned (within the
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meaning of Rule 13d-3 promulgated under the Exchange Act) in
substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) at least 50.1% of the combined voting power of
the securities entitled to vote generally in the election of
directors of the Company; and
(C) No person, or persons acting in concert, other
than Republic Security Bank or any affiliate thereof,
beneficially own (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) 25% or more of the outstanding common
stock or equity ownership interests in, or 25% or more of the
combined voting power of the securities entitled to vote
generally in the election of directors of, the entity
resulting from such transaction; and
(D) At least a majority of the members of the board
of directors of the entity resulting from such transaction are
individuals who were described in sections 10(a)(iv)(A) or (B)
of this Agreement as of the date of execution of the initial
definitive agreement providing for such transaction (or, if
earlier, as of the date on which the Board of Directors of the
Company authorized such transaction).
(ii) the acquisition of all or substantially all of the assets
of the Company or beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of the
outstanding securities or of the combined voting power of the
outstanding securities of the Company entitled to vote generally in the
election of directors by any person or by any persons acting in concert
(other than Republic Security Bank or any affiliate thereof), or
approval by the stockholders of the Company of any transaction which
would result in such an acquisition;
(iii) a complete liquidation or dissolution of the Company, or
approval by the stockholders of the Company of a plan for such
liquidation or dissolution, other than a liquidation or dissolution
which results in the business of the Company being run as a division or
department of Republic Security Bank or any affiliate thereof; or
(iv) the occurrence of any event if, immediately following
such event, at least 50% of the members of the board of directors of
the Company do not belong to any of the following groups:
(A) individuals who were members of the Board of the
Company on the date of this Agreement; or
(B) individuals who first became members of the Board
of the Company after the date of this Agreement either:
(I) upon election to serve as a member of
the Board of directors of the Company by affirmative
vote of three-quarters of the members of such Board,
or of a nominating committee thereof, in office at
the time of such first election; or
(II) upon election by the stockholders of
the Company to serve as a member of the Board of the
Company, but only if nominated for election by
affirmative vote of three-quarters of the
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members of the board of directors of the Company, or
of a nominating committee thereof, in office at the
time of such first nomination;
PROVIDED, HOWEVER, that such individual's election or nomination did
not result from an actual or threatened election contest (within the
meaning of Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies or consents
(within the meaning of Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act) other than by or on behalf of the Board of the
Company.
In no event, however, shall a Change of Control be deemed to have occurred as a
result of any acquisition of securities or assets of the Company or a subsidiary
of the Company, by the Company, Republic Security Bank, Republic Security
Financial Corporation or a subsidiary of any of them, or by any employee benefit
plan maintained by any of them. For purposes of this section 10(a), the
acquisition of beneficial ownership of securities or other equity interests
issued by Republic Security Bank, by Republic Security Financial Corporation or
by any other person who is a stockholder of the Company, shall in no event be
considered the acquisition of beneficial ownership of any stock, equity
interests or assets of the Company and the term "person" shall have the meaning
assigned to it under sections 13(d)(3) or 14(d)(2) of the Exchange Act.
(b) In the event of a Change of Control, the Executive shall be
entitled to the payments and benefits contemplated by section 10(c) in the event
of his termination of employment with the Bank under any of the circumstances
described in section 8(a) of this Agreement or under any of the following
circumstances:
(i) resignation, voluntary or otherwise, by the Executive at
any time during the Employment Period following his demotion, loss of
title, office or significant authority or responsibility, or following
any material reduction in any element of his package of compensation
and benefits;
(ii) resignation, voluntary or otherwise, by the Executive at
any time during the Employment Period following any relocation of his
principal place of employment or any change in working conditions at
such principal place of employment which the Executive, in his
reasonable discretion, determines to be embarrassing, derogatory or
otherwise adverse; or
(iii) resignation, voluntary or otherwise, by the Executive at
any time during the Employment Period following the failure of any
successor to the Company in the Change of Control to include the
Executive in any compensation or benefit program maintained by it or
covering any of its executive officers, unless the Executive is already
covered by a substantially similar plan of the Company which is at
least as favorable to him.
(c) Upon the termination of the Executive's employment with the Company
under circumstances described in section 10(b) of this Agreement, the Company
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 Company, 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;
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(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 Company's officers
and employees;
(iii) continued group life, health (including hospitalization,
medical and major medical) and dental insurance benefits, in addition
to that provided pursuant to section 10(c)(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 beginning
on the date his employment terminates and ending on the last day of the
Employment Period (or, if later, the first anniversary of termination
of employment), coverage equivalent to the coverage to which he would
have been entitled under such plans, if he had continued working for
the Company during such period 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
Company;
(iv) within thirty (30) days following his termination of
employment with the Company, a lump sum payment in an amount equal to
the salary that the Executive would have earned if he had continued
working for the Company for the remainder of the Employment Period (or,
if longer, for a period of one year following the date termination of
employment) at the highest annual rate of salary achieved during that
portion of the Employment Period which is prior to the Executive's
termination of employment with the Company, 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;
(v) within thirty (30) days following his termination of
employment with the Company, a lump sum payment in an amount equal to
the average annual cash incentive compensation or bonus paid to the
Executive with respect to the two complete calendar years immediately
preceding the year in which Executive's employment with the Company
terminates, multiplied by a fraction, the numerator of which is the
lump sum payment described in section 10(c)(iv) and the denominator of
which is the highest annual rate of salary achieved during that portion
of the Employment Period which is prior to the Executive's termination
of employment with the Company . For purposes of this Section 10(c)(v),
incentive compensation paid to the Executive while employed by Deere
Credit, Inc. d/b/a First New England Financial shall be deemed
incentive compensation paid to the Executive by the Company.
The Company 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 10(c) 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 Company and the Executive further agree that the Company
may condition the payments and benefits (if any) due under sections 10(c)(iii),
(iv) and (v) 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 Company or any parent, subsidiary or affiliate of the Company.
SECTION 11. 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 in
connection with a Change of Control of
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the Company or the termination of the Executive's employment (whether pursuant
to the terms of this Agreement or any other plan, arrangement or agreement with
the Company, any person whose actions result in a Change of Control of the
Company or any person affiliated with the Company or such person) (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 Company, Republic Security
Bank, 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 11, (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 Change of
Control of the Company, the Company's or Republic Security Bank'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 Company in applying the terms of this section 11, the
aggregate "parachute payments" 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 Company 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 11 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 11, (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.
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SECTION 12. CONFIDENTIALITY.
Unless he obtains the prior written consent of the Company, the
Executive shall keep confidential and shall refrain from using for the benefit
of himself, or any person or entity other than the Company or any entity which
is a subsidiary of the Company or of which the Company is a subsidiary, any
material document or information obtained from the Company, or from its parent,
parent's parent, affiliates 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) until the same ceases to be material (or becomes so
ascertainable or available); PROVIDED, HOWEVER, that nothing in this section 12
shall prevent the Executive, with or without the Company'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.
SECTION 13. 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 Company or by the Executive, shall have
no effect on the rights and obligations of the parties hereto under the
Company'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 Company from time to time.
SECTION 14. 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 yacht or marine loan
production or marine loan brokerage business (the "Marine Loan Business"), other
than for the Company, 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 hereunder with cause as defined in Section 9 hereof, or voluntarily
by the Executive prior to (i) a Change of Control, (ii) Republic Security Bank's
decision to exit the Marine Loan Business or (iii) a material breach of this
Agreement by the Company, the Executive, until twelve (12) months after the date
of such termination, agrees not to engage, directly or indirectly, in the Marine
Loan Business in any capacity in any city, town or county in which the Company
has an office, determined as of the date of such termination.
(b) Non-solicitation. The Executive hereby covenants and agrees that, for a
period of twelve (12) months following his termination of employment with the
Company, he shall not, without the written consent of the Company, 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 Company or any affiliate, as of the date of this Agreement, of
either of them, to terminate his or her employment and accept
employment or become affiliated with, or provide services for
compensation in any capacity whatsoever to, any company engaged in the
Marine Loan Business doing business in any city, town or county in
which the Company has an office, determined as of the date of such
termination;
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(ii) provide any information, advice or recommendation with
respect to any such officer or employee to any company engaged in the
Marine Loan Business doing business in any city, town or county in
which the Company has an office, determined as of the date of such
termination, 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 Company or any affiliate, as of the date of
this Agreement, of either of them, 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 company
engaged in the Marine Loan Business; 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 Company to terminate an existing business
or commercial relationship with the Company.
SECTION 15. 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 Company and its respective 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 Company may be sold or otherwise transferred.
SECTION 16. 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:
If to the Company:
RS Maritime Corporation
000 X. Xxxxxxxxxx Xxxxxx
Xxxx Xxxx Xxxxx, XX 00000
Attention: R. Xxxxxxx Xxxxxxxxxx
SECTION 17. INDEMNIFICATION FOR ATTORNEYS' FEES.
The Company shall indemnify, hold harmless and defend the Executive
against reasonable costs, including legal fees, incurred by him in connection
with or arising out of any action, suit or proceeding in which he may be
involved, as a result of his efforts, in good faith, to defend or enforce the
terms of this Agreement.
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SECTION 18. 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 19. 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 20. 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 21. 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 22. 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 23. 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 modifications of this Agreement shall be valid unless made in writing
and signed by the parties hereto.
SECTION 24. SURVIVAL.
The provisions of sections 6, 8, 9, 10, 11, 12, 13, 14, 17, 19, 21, 25,
26 and 27 shall survive the expiration of the Employment Period or termination
of this Agreement.
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SECTION 25. EQUITABLE REMEDIES.
The Company and the Executive hereby stipulate that money damages are
an inadequate remedy for violations of sections 6, 12 or 14 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 26. GUARANTEE.
Republic Security Financial Corporation hereby irrevocably and unconditionally
guarantees to the Executive the payment of all amounts, and the performance of
all other obligations, due from the Bank in accordance with the terms of this
Agreement as and when due without any requirement of presentment, demand of
payment, protest or notice of dishonor or nonpayment.
SECTION 27. REQUIRED REGULATORY PROVISION.
Notwithstanding anything herein contained to the contrary, any payments to the
Executive by the Company, 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. 1828(k), and any regulations
promulgated thereunder.
IN WITNESS WHEREOF, the Company 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.
RS MARITIME CORPORATION
By:
------------------------------------------------
NAME: R. Xxxxxxx Xxxxxxxxxx
TITLE: President
---------------------------------------------------
As to the guarantee set forth in Section 26, above:
REPUBLIC SECURITY FINANCIAL CORPORATION
By:
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman, President & CEO
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