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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into this
22nd day of January 1997, by and among AMERICAN BANK OF BRADENTON (the "Bank")
and XXXXXX X. XXXXXXX, an individual (the "Employee").
WHEREAS, the Bank is a state bank, regulated by the Florida Comptroller's
Office, Division of Banking, and is insured by the Federal Deposit Insurance
Corporation, located in Bradenton, Florida; and
WHEREAS, the Bank desires to increase its volume and market share of
retail residential origination loans and related activities arising out of such
lending services, and the Bank desires to employ the Employee in connection
therewith; and
WHEREAS, the Employee has experience in the origination and sale of such
loans and related lending activities and the Employee is willing to be employed
by the Bank as a loan officer on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the employment of the Employee by the
Bank, and the other mutual covenants contained herein, the parties agree as
follows:
1. EMPLOYMENT AND DUTIES. The Bank hereby employs the Employee as a
Residential Loan Production Manager and the Employee hereby accepts employment
upon the terms and conditions hereinafter set forth. As Residential Loan
Production Manager, the duties of the Employer shall include the solicitation,
organization and closing of residential loans on behalf of the Employer and the
supervision of each Loan Officer (as that term is defined herein) in such
activities and the performance of such other duties that the Employer may
designate from time to time.
2. TERM OF AGREEMENT. The effective date of this Agreement shall be
January 22, 1997 and it shall remain effective and continue in force and effect
for a period of three (3) years (the "Initial Term") unless earlier terminated
in accordance with the provisions contained herein. Unless otherwise terminated
in accordance herewith, this Agreement will be automatically extended after the
Initial Term for successive one (1) year periods thereafter unless either party
gives written notice of non-renewal to the other party (30) days prior to the
expiration of the term of this Agreement then in effect.
3. COMPENSATION. For all services rendered by the Employee under this
Agreement, the Bank shall pay the Employee the compensation set forth below. All
compensation payable to the Employee is stated in gross amount and shall be
subject to all applicable withholding taxes, other normal payroll and any other
amounts required by law to be withheld.
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(a) Base Salary. The Bank shall pay the Employee an annual salary of
Seventy-Five Thousand Dollars ($75,000) payable in weekly
installments the ("Base Salary").
(b) Quarterly Bonus. Then Bank shall pay to the Employee, on or
before the thirtieth (30th) following the end of each fiscal
quarter that this Agreement is in effect, a Quarterly Bonus,
which shall be equivalent to .08% of the Quarterly Residential
Loan Productivity (as that term is hereinafter defined) for each
Loan Officer (as that term is defined hereinafter). "Quarterly
Residential Loan Productivity", as calculated for each Loan
Officer, shall be equal to the total principal amount of all
residential loans which that Loan Officer has been credited with
originating and closing, which shall include loans sold by the
Bank and those loans held in the Bank's portfolio, in the
immediately preceding fiscal quarter. "Loan Officer" refers to
each loan officer who is an employee of the Bank and who reports
directly to the Employee in accordance with the Bank's
organizational chart, as revised from time to time by the Bank.
(c) Monthly Commission. The Bank shall pay to the Employee, on or
before the third pay period of each month that this Agreement is
in effect, a monthly commission on all residential loans
originated and closed, which shall include loans sold by the Bank
and those loans held in the Bank's portfolio, by the Employee and
all Loan Officers in the Bank's portfolio, by the Employee and
all Loan Officers in the immediately preceding calender month
(the "Monthly Commission"). The Monthly Commission shall be due
and payable if, and only if, fee income generated by the Bank
from those residential loans originated and closed by the
Employee and the Loan Officers for the immediately preceding
calender month exceeds 1.25% of the Monthly Residential Loan
Productivity (as defined below) for that month. If the fee income
exceeds this threshold, the Bank shall pay the Employee a Monthly
Commission as set forth above equivalent to 50% of the fee income
in excess of 1.25% of the Monthly Residential Loan Productivity.
For purposes of this Agreement, the "Monthly Residential Loan
Productivity" shall equal the principal amount of all residential
loans for which the Employee and the Loan Officers are credited
with originating and closing in the immediately preceding
calender month.
(d) One-Time Bonus. In consideration for the Employee entering into
this Agreement and the mutual covenants provided for herein, the
Bank shall provide to the Employee a one-time only bonus worth
Twenty-five Thousand Dollars ($25,000.00) ("Bonus"), which is
due and payable by certified check made payable to the Employee
on the effective date of this Agreement.
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4. BENEFITS. The Employee shall be entitled to participate in any plan
of the Bank relating to stock options, stock purchases, profit sharing, group
life insurance, medical coverage, education, or other retirement or employee
benefits that the Bank may adopt for the benefit of its employees. In addition,
during the first year of this Agreement and for each twelve (12) month period
thereafter, the Employee shall be entitled to that period of days for vacation
as is set from time to time by the Bank's corporate policy. The Employee shall
also be entitled to all paid holidays given by the Bank to its other employees.
The Employee shall also be entitled to all paid holidays given by the Bank to
its other employees. The Employee shall not be entitled to receive any
additional compensation from the Bank on account of his failure to take a
vacation; nor shall he be entitled to accumulate unused vacation time from one
(1) of the term of this Agreement to the next.
5. TIME DEVOTED TO EMPLOYMENT. The Employee shall devote his entire
time, attention and energies to the business of the Bank, and shall not, while
employed by the Bank, be engaged in any other business activity, whether or not
such business activity is pursued for gain, profit or other pecuniary
advantage; provided, however, this provision shall not be construed as
preventing the Employee from investing his assets in such form or manner as
will not require any services on the part of the Employee.
6. TERMINATION OF AGREEMENT. This Agreement shall terminate and the
Employee's rights with respect to compensation, and any and all other rights of
the Employee under this Agreement shall terminate (except as to compensation
deemed earned under Section 3(a) prior to such termination):
(i) immediately upon the death of the Employee;
(ii) immediately upon the Disability (as defined in this Section
below) of the Employee;
(iii) immediately for Cause (as defined in this Section below),
upon the giving of notice thereof by the Corporation or the
Employee as the case may be, or on such later date as such
notice may specify;
(iv) without Cause, upon thirty (30) days prior written notice
from the Bank to the Employee in the case of termination of
the Employee by the Bank; or
(v) immediately, in the event that certain Asset Purchase
Agreement by and among XxxXxxxxx and Xxxxxxx Mortgage
Company, Inc., the Employee, W. Xxxxxx Xxxxxxx, X. X.
XxxXxxxxx, and X. X. Xxxxx and American Bancshares, Inc.,
is voided pursuant to Section 4.4 of such agreement.
For purposes of this Section, the Employee shall be deemed to have or be
subject to a "Disability" if: (1) for medical or psychological reasons, the
Employee has been unable to
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perform his duties under this Agreement for thirty (30) consecutive days, or
for a total period of sixty (60) days during the term of this Agreement,
excluding vacation, as determined by the Bank's board of directors in its sole
discretion; and (2) the Bank gives the Employee notice of such determination.
For purposes of this Section, the term "Cause" shall mean any of the
following with respect to the Employee, as determined by the Bank's board of
directors in its sole discretion: (1) being charged with or convicted of any
felony or any crime; (2) the commission or attempted commission of any act of
willful misconduct or dishonesty; (3) malfeasance in the performance of his
duties hereunder; or (4) negligence or incompetence in the performance of his
duties hereunder. With respect to the Bank, the term "Cause" shall mean the
material breach of the terms and conditions of this Agreement, for which no
cure is provided by the Bank within thirty (30) days after receiving notice of
such breach by the Employee to the Bank.
7. PROTECTIVE COVENANTS.
(a) Reason for Protective Covenants. As part of its business,
the Bank is engaged in various lending services. The parties
recognize and acknowledge that the Bank has developed
substantial good will, valuable relationships with
customers, trade secrets and particular means or methods of
conducting its business, all of which are worthy of
protection. Under such circumstances, the parties further
recognize and acknowledge that it is reasonable and
necessary for the Employee, who is employed in a responsible
position with the Bank, to enter into the protective
covenants set forth in subparagraphs 7(b) and 7(c) of this
Agreement.
(b) Covenant Not to Disclose Trade Secrets and Confidential
Information. It is expressly acknowledged by the Employee
that customer lists, loans in progress, current and closed
out loans, prospect lists, or lists of potential or actual
customers of the Bank, documents reflecting the names and
addresses of existing and potential customers, and
information regarding profits, the methods by which the Bank
serves its customers, as well as other business procedures,
are the property of the Bank and constitute confidential
trade secrets, or valuable confidential business or
professional information, of the Bank. The Employee promises
to maintain the confidentiality of such documents and
information while employed by the Bank and agrees that he
will not, directly or indirectly, disclose such information
or documents to any natural or legal person, other than
authorized employees or agents of the Bank, during the
course of his employment or thereafter. The Employee also
agrees to turn over all documents in his possession
containing trade secrets of the Bank to authorized
representatives of the Bank, together with any and all
copies thereof, at the time he leaves the employ of the
Bank, regardless of the reason for his termination.
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(c) Covenant Not to Solicit Customers. The Employee agrees that while
employed by the Bank in any capacity, and for two (2) years
following termination of his employment, whether voluntary or
involuntary, with or without cause, he will not, directly or
indirectly, for his own account or for the account of any other
natural or legal person solicit any customer of the Bank to cease
doing business with the Bank. Both parties agree that the
two-year period provided in this paragraph shall be extended by
any length of time during which the Employee is in breach of such
covenant.
8. EACH COVENANT IS AN INDEPENDENT AGREEMENT. It is agreed that each of
the covenants set forth in Section 7 of this Agreement are agreements
independent of any other provision of this Agreement. The existence of any claim
or cause of action of the Employee against the Bank, whether based on this
Agreement or otherwise, shall not constitute a defense to the enforcement by the
Bank of such covenants. Notwithstanding the foregoing, the Bank agrees that the
covenants contained in Section 7 of this Agreement shall terminate and the
Employee shall be released from any obligations thereunder if this Agreement is
properly terminated by the Employee under Section 6(iii) of this Agreement or
the Bank terminates this Agreement in accordance with Section 6(iv).
9. INJUNCTION AND ATTORNEYS' FEES. The Employee agrees that if the
Employee violates any of the covenants contained in Section 7 of this Agreement,
the Bank shall be entitled to injunctive relief to enforce such covenants. The
Bank shall also be entitled to a reasonable attorneys' fee if it prevails in any
lawsuit brought under this Agreement.
10. NOTICES. In the case of any notice required or permitted to be given
to either party under this Agreement, such notice shall be in writing and shall
be deemed to have been duly given when delivered in person or three (3) days
after being mailed by United States certified or registered mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Bank: American Bank of Bradenton
0000 00xx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, President
If to the Employee: Xxxxxx X. Xxxxxxx
000 00xx Xx. X.
Xxxxxxxxx, XX 00000
11. WAIVER. The waiver by the Bank of a breach of any provision of this
Agreement by the Employee shall not operate to be construed as a waiver of any
subsequent breach by the Employee.
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12. BINDING EFFECT. The rights and obligations of the Bank under this
Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Bank.
13. CHANGES TO AGREEMENT. This Agreement may be changed only by an
agreement in writing.
14. GOVERNING LAW. This Agreement shall be construed in accordance with
the law of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date of the aforesaid.
AMERICAN BANK OF BRADENTON EMPLOYEE
By: /s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
President
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