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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of the
30th day of July, 1996, by and between KEY FLORIDA BANCORP, INC. ("Employer"),
and XXXXXXX X. XXXXXXX ("Employee").
WITNESSETH:
WHEREAS, Employer wishes to provide for the terms and conditions of
Employee's employment;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereby agree as follows:
I. TERMS OF EMPLOYMENT
(a) Employer hereby employs Employee as Chief Executive Officer, to
hold the title of President, and to perform such services and duties as its
Board of Directors may from time to time, designate during the terms hereof.
Subject to the terms and conditions hereof, Employee will perform such duties
and exercise such authority as are customarily performed and exercised by
persons holding such office subject to the general supervision of the Board of
Directors of Employer, exercised in good faith in accordance with standards of
reasonable commercial judgment.
(b) Employee shall serve on the Board of Directors of Employer subject
to the terms hereof.
(c) Employee accepts such employment and shall devote his full time,
attention, and efforts to the diligent performance of his duties herein
specified and as an officer and director of Employer and will not accept
employment with any other individual, corporation, partnership, governmental
authority or other entity or engage in any venture for profit which Employer
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EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of the 1st
day of November, 1993, by and between LIBERTY NATIONAL BANK, a National Bank
("Employer"), and XXXXXXX X. XXXXXXX ("Employee").
WITNESSETH:
WHEREAS, Employer wishes to provide for the terms and conditions of
Employee's employment;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereby agree as follows:
I. TERMS OF EMPLOYMENT
(a) Employer hereby employs Employee as Chief Executive Officer, to
hold the title of President, and to perform such services and duties as its
Board of Directors may, from time to time, designate during the terms hereof.
Subject to the terms and conditions hereof, Employee will perform such duties
and exercise such authority as are customarily performed and exercised by
persons holding such office, subject to the general supervision of the Board of
Directors of Employer, exercised in good faith in accordance with standards of
reasonable commercial judgment.
(b) Employee shall serve on the Board of Directors of Employer subject
to the terms hereof.
(c) Employee accepts such employment and shall devote his full time,
attention, and efforts to the diligent performance of his duties herein
specified and as an officer and director of Employer and will not accept
employment with any other individual, corporation, partnership, governmental
authority or other entity, or engage in any other venture for profit which
Employer
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may consider to be in conflict with his or its best interest or to be in
competition with Employer's business, or which may interfere in any way with
the Employee's performance of his duties hereunder.
II. TERM OF AGREEMENT
This Agreement shall commence effective as of the 1st day of July 1996,
and shall continue indefinitely from day-to-day until terminated as set forth
below.
A. Voluntary Termination. In the event Employee chooses to resign
from his position, this Agreement will terminate upon 30 days from the date
Employee submits a letter of termination. Upon such termination, neither party
shall have any further obligations hereunder except as specifically provided.
B. Termination by Acquisition of Employer. In the event Employer is
acquired, merged, bought or otherwise changes or terminates its corporate
existence, the following shall occur:
(1) Effective on the date Employer's stock is transferred to such
other entity, the term of this Agreement will become fixed, and will expire
three (3) years from such date.
(2) Employer, may, in its sole discretion, require that Employee
continue to perform his duties under the Agreement for the remainder of the
term, or for such portion thereof as Employer shall designate.
C. Involuntary Termination. This Agreement will terminate on the
occurrence of any of the following:
(1) death of Employee;
(2) consistent with the provisions of the Americans with
Disabilities Act(ADA),
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the partial disability of Employee. "Partial disability" as used herein shall
mean the inability of Employee, due to illness, accident, or any other
physical or mental incapacity (other than incapacity or illness resulting from
Employee's performance of his duties hereunder) to perform the services
provided for hereunder for an aggregate of sixty (60) days within any period of
120 consecutive days during the term hereof, or as is defined in the partial or
residual disability required in Section IV;
(3) the discharge of Employee by Employer with cause, "Cause" as
used herein shall mean (i) such negligence or misconduct as shall constitute,
as a matter of law, a breach of covenants and obligations or Employee
hereunder, (ii) failure or refusal or Employee to comply with the provisions of
this Agreement (ii) Employee's being convicted of or pleading nolo contendere
to any crime involving moral turpitude; provided, however, disability because
of illness or accident or any other physical or mental disability shall not
constitute a basis for discharge for cause; (iv) Employer's being subjected to
cease and desist order or other regulatory supervision caused by Employee's
fault; or, (v) any breach of fiduciary duty to Shareholders of Employer.
D. Effect of Termination.
(1) Termination of this Agreement for any reason shall constitute a
tender by Employee of his resignation as an officer and director of Employer.
(2) In the event of termination of this Agreement, except as
provided elsewhere, Employer shall pay to Employee the compensation provided in
Section III, below, to the effective date of termination and neither of the
parties shall have any further obligations hereunder except as otherwise
specifically provided. Except as provided in Section II.A.(3), the
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timing and manner of payment of such compensation shall not be accelerated by
termination of this Agreement.
(3) In the event Employee's employment is terminated under any of the
events described in paragraph A through C above, then upon receipt of
Employee's letter of termination or the occurrence of such other event giving
rise to a termination under this Agreement, Employer may, in its sole
discretion, immediately relieve Employee of his responsibilities for performing
any further duties hereunder, may after giving Employee a reasonable opportunity
to remove his personal possessions require Employee to immediately vacate the
premises of the Employer any may continue Employee's compensation as set forth
herein or may pay to Employee all remaining compensation due to the end of the
term in one lump sum.
III. COMPENSATION
For all services which Employee may render to Employer while this
Agreement is in effect, including service on the Board of Directors and other
assigned committees of Employer, Employer shall pay to Employee, subject to
such deductions as may be required by law;
A. Base Salary. An annual salary payable in twenty-four (24)
equal installments and subject to such deductions as may be required by law of:
$120,000 each year.
B. Performance Bonus. Employee will be paid a performance bonus
in accordance with Employer's Incentive Plan, as it may be changed from
time-to-time.
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C. Stock Options. Employee will receive such stock options as are
approved by the Board of Directors from time-to-time in accordance with
Employer's Stock Option Plan.
IV. OTHER BENEFITS
During the term of this Agreement, Employer shall furnish to Employee
(i) an automobile allowance of $425.00 per month; (ii) a life insurance policy
providing for death benefits equal to two times Employee's base salary at the
time of death, to such beneficiary(ies) designated by Employee; (iii) group
health and hospital insurance covering Employee and his family; (iv) long term
disability insurance with benefits of at least $25,000.00 per year, with a
partial or residual disability rider; and (v) monthly dues for membership in a
club suitable for business entertainment. In addition, the Employee shall be
entitled to such other benefits, including vacation, as are set forth in
Employer's Personnel Policy, as it may change from time-to-time.
V. EXPENSES
Upon presentment to Employer of expense reports in sufficiently
detailed form to comply with standards for deductibility of business expenses
established from time-to-time by the Internal Revenue Service, Employer will
reimburse Employee for such reasonable business expenses incurred by Employee
in connection with performance of his duties hereunder.
VI. POST TERMINATION COVENANTS
A. Confidentiality. Employee recognizes that in performing the
services contemplated hereunder, Employee will be exposed to and in possession
of certain proprietary and other information of a confidential nature
(collectively, the "Confidential Information"), the dissemination of which
could cause irreparable harm to Employer. For purposes of this Agreement,
Confidential Information shall include, but not be limited to, all documentation
and
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information (whether written, oral or otherwise) relating to the past, present
or future business plans of Employer, customer information, pricing
information, intellectual property, and information regarding the operation
and management of Employer. During the term of this Agreement and following
the termination of this Agreement, Employee agrees to treat any and all such
Confidential Information in confidence and undertake the following security
measures and obligations:
(1) Employee agree to limit dissemination and distribution
of Confidential Information only to those employees, agents,
successors or assigns of Employer who have a need to know such
information in connection with Employee performing the services
contemplated hereunder;
(2) to utilize Confidential Information for the sole and
exclusive purposes contemplated hereunder;
(3) not to copy, by photostatic, electronic or other means,
including magnetic media, all or any portion of information given to
Employee that relates to Confidential Information; and
(4) at the conclusion of this Agreement, to return any and
all documents, notes or physical evidence, including diskettes
or media for electronic storage of information, without making copies
or a summary thereof.
B. Non-Competition. During the term of this Agreement and for a period
of one (1) year thereafter, Employee shall not, directly or indirectly, enter
into, engage in, be employed by, or consult with any individual or entity in
the banking business or any related field in Sarasota and Manatee Counties,
Florida.
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C. Non-Solicitation. During the term of this Agreement and for a
period of one (1) year thereafter, Employee shall not, directly or indirectly,
solicit any employee of Employer or any subsidiary or affiliated organization
of the Employer to terminate their employment and/or accept employment with or
seek remuneration by any of the clients or customers of Employer or any
subsidiary or affiliated organization with whom Employer or any subsidiary or
affiliated organization of Employer did business during the term of this
Agreement.
D. Scope. Except as otherwise provided below, the restrictions
provided in paragraphs A through C above shall extend to any and all activities
of Employee, whether as an independent contractor, partner, joint venturer,
officer, director, stockholder, agent, employee, salesman or otherwise, for any
person, firm, partnership, corporation or other entity or otherwise.
E. Time Period. The period of time during which Employee is
prohibited from engaging in certain business practices pursuant to paragraphs A
through C above, shall be extended by any length of time during which Employee
is in breach of such covenants.
F. Essential Elements. It is understood and agreed by and between the
parties hereto that the restrictive covenants set forth in paragraphs A through
C above are essential elements of this Agreement and that, but for the
agreement of Employee to comply with such covenants, Employer would not have
agreed to enter into this Agreement. Such covenants by Employee shall be
construed as agreements independent of any other provisions of this Agreement
and the existence of any claim or cause of action of Employee against Employer,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement of such covenants by Employer.
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G. Severability. It is agreed by and between the parties hereto that
if any portion of the covenants set forth above are held to be invalid,
unreasonable, arbitrary or against public policy, then such portion of such
covenant shall be considered divisible both as to time and geographical area.
The parties agree that if any court of competent jurisdiction determines the
specified time period or specified geographical area to be invalid,
unreasonable, arbitrary or against public policy, a lesser time period and
geographical area that is determined to be reasonable, non-arbitrary and not
against public policy may be enforced against Employee. The parties further
agree that the foregoing covenants are appropriate and reasonable when
considered in light of the nature of the business conducted by Employer.
H. Injunctive Relief. The parties agree that damages at law will be an
insufficient remedy if Employee violates a material term or condition of this
Agreement. Accordingly, it is agreed that Employer shall be entitled, upon
application to a court of competent jurisdiction, to obtain injunctive relief
to enforce the provisions of this Agreement and that such injunctive relief
shall be in addition to any other rights or remedies available to Employer.
I. Survival of Obligations. The restrictions and obligations imposed
by paragraphs A through C above shall survive any expiration, termination or
cancellation of this Agreement and shall continue to bind Employer, his
employees, agents, successors or assigns as set forth herein.
J. Notice. Employer shall immediately put Employee on notice in
accordance with Article IX below if it knows or has reason to believe that
Employee has violated any of the restrictive covenants imposed by paragraphs A
through C above.
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VII. WAIVER OF PROVISIONS
Failure of any of the parties to insist, in one or more instances, on
performance by the others in strict accordance with the terms and conditions of
this Agreement shall not be deemed a waiver or relinquishment of any right
granted hereunder or of any other term or condition of this Agreement, unless
such waiver is contained in a writing signed by or on behalf of both parties.
VIII. ATTORNEY FEES
In the event of litigation arising out of the enforcement of this
Agreement, the prevailing party shall be entitled to recover a reasonable
attorneys fee, together with all court costs expended from the non-prevailing
party in action at trial or upon appeal.
IX. NOTICE
Any notice required to be given hereunder shall be sufficient if in
writing and delivered in person or by certified mail, return receipt requested,
to the parties at the addresses listed below or at such other location as a
party may designate form time to time:
IF TO BANCORP:
0000 00xx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
IF TO JONSSON:
0000 00xx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
X. GOVERNING LAW
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Florida. If for any reason any
provision of this Agreement shall be held by
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a court of competent jurisdiction to be void or unenforceable, the same shall
not affect the remaining provisions thereof. Venue for enforcement of this
Agreement shall be in Manatee County, Florida.
XI. MODIFICATION AND AMENDMENT
This Agreement shall not be modified or amended except by an instrument
in writing signed by or on behalf of the parties.
XII. COUNTERPARTS AND HEADINGS
This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument. The headings set out herein are for
convenience of reference and shall not be deemed a part of this Agreement.
XIII. CONTRACT NON-ASSIGNABLE
This Agreement may not be assigned or transferred by any party hereto,
in whole or in part, without prior written consent of the other.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the date first above written.
WITNESSES:
/s/ Xxxxxx Xxx-Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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/s/ Xxxxx X. Xxxxxxxx XXXXXXX X. XXXXXXX
------------------------------------------ "Employee"
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Xxxxxx Xxx-Xxxxxxx LIBERTY NATIONAL BANK
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Xxxxx X. Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx, Chairman of the
Board
"Employer"
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