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EXHIBIT 10.1
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
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This Second Amendment to Employment Agreement is made and entered into
effective as of the 28th day of April, 1997, by and between CAPITAL FACTORS
HOLDING, INC., a Florida corporation (the "Company"), CAPITAL FACTORS, INC., a
Florida corporation ("Factors"), and XXXX X. XXXXXX (hereinafter called the
"Executive").
RECITALS
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WHEREAS, the Company and the Executive entered into an Employment
Agreement (the "Employment Agreement") pursuant to which the Executive renders
certain services to the Company; and
WHEREAS, the Company and the Executive desire to amend the Employment
Agreement in accordance with the terms of this Amendment.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth in this Amendment, and other good and valuable consideration, the
parties to this Amendment agree as follows:
1. All capitalized terms in this Amendment shall have the same
meaning as in the Employment Agreement, unless otherwise specified.
2. Section 3.3(f) of the Agreement is hereby amended to read as
follows:
"(f) The Executive shall be entitled to receive the estimated
amount of the Incentive Compensation (the "Estimated Incentive
Compensation"), net of any withholding and other taxes, within
fifteen (15) days after the end of each year during the Term,
such Estimated Incentive Compensation to be determined by the
Compensation Committee based on the Company's unaudited
consolidated financial statements as reviewed and approved by
the Board. In no event shall the Estimated Incentive
Compensation exceed the amount, if
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any, by which (i) $1,000,000 exceeds (ii) all remuneration,
other than the Incentive Compensation, payable to the
Executive that is required to be taken into account in
determining the maximum amount of such remuneration that may
be deducted by the Company under Section 162(m) of the Code
for the year for which the Incentive Compensation is payable.
The Estimated Incentive Compensation will be subject to upward
or downward adjustment based on the Company's annual audited
consolidated financial statements from the Company's
independent certified public accountants (the "Adjustment").
The Adjustment shall be paid by the Executive to the Company,
or shall be paid by the Company to the Executive, as the case
may be, within fifteen (15) days of receipt of the Company's
audited consolidated financial statements, but in no event
prior to the date on which the Compensation Committee of the
Company has certified in writing that the performance goals
upon which the Incentive Compensation is based have been met.
In the event the Executive does not reimburse the Company for
any Adjustment within such fifteen-day period, the Company
shall have the right to offset the Adjustment against any
other payments due to the Executive hereunder."
3. A new paragraph (g) is hereby added to Section 3.3 of the
Agreement, to read as follows:
"(g) For purposes of determining the Executive's Incentive
Compensation for any year during the Term:
(i) the Executive's Base Salary taken into account
shall be equal to the Executive's Base Salary as of March 31
of the calendar year for which the Incentive Compensation is
payable, and
(ii) the maximum amount of Base Salary that may be
taken into account shall be $600,000."
4. Section 3.4 of the Agreement is hereby amended by adding the
following paragraphs to the end thereof:
"For purposes of determining the Deferred
Compensation earned for any year during the Term:
(i) the Executive's Base Salary taken into account
shall be equal to the Executive's Base Salary as of the March
31 of the calendar year for which the Deferred Compensation is
payable, and
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(ii) the maximum amount of Base Salary that may be
taken into account shall be $600,000.
In no event shall any Deferred Compensation earned
for any year be paid prior to the date on which the
Compensation and Benefits Committee of the Company has
certified in writing that the performance goals upon which the
Deferred Compensation is based have been met."
5. Section 3.6 of the Agreement is hereby amended to read as
follows:
"3.6 EVENT OF NON-DEDUCTIBILITY.
SECTION 162(M) LIMITS. Notwithstanding any other
provision of this Agreement, if the Company becomes a separate
publicly-held corporation (a "Separate Publicly Held
Corporation") for purposes of Section 162(m) of the Internal
Revenue Code of 1986, as amended, and the regulations
thereunder (collectively, "Section 162(m)"), then for each
calendar year that ends after the first regularly scheduled
meeting of the Company's shareholders that occurs more than 12
months after the Company becomes a Separate Publicly Held
Corporation, payment of the portion (the "Section 162(m)
Portion") of the Executive's Incentive Compensation and
Deferred Compensation that would not otherwise be deductible
by reason of Section 162(m) (determined after taking into
account all other remuneration required to be taken into
account under Section 162(m) for the year), shall be subject
to the following conditions: (i) the performance goals set
forth in Sections 3.3 and 3.4 that must be satisfied in order
for the Section 162(m) Portion to be earned for that year
shall be subject to the approval of, and may be modified by,
the Compensation Committee of the Company, at such times as
may be required for the Section 162(m) Portion to be
deductible under Section 162(m); (ii) payment of the Section
162(m) Portion shall be subject to the approval by the
shareholders of the Company of the material terms of the
performance goals relating to the Section 162(m) Portion
before the Section 162(m) Portion is paid; and (iii) the
maximum amount of Incentive Compensation and Deferred
Compensation payable to the Executive is as set forth in
Sections 3.3 and 3.4 and Exhibits "C" and "D". In addition,
the grant of options to purchase shares of Common Stock
pursuant to Section 4.5 hereof shall be subject to and
conditioned upon (i) the approval by either the Stock Option
Committee of Capital Bancorp before the Company becomes a
Separate Publicly Held Corporation or the Compensation
Committee of the Company after the Company becomes a Separate
Publicly Held Corporation, and (ii) the approval by
shareholders of the Company after the Company becomes a
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Separate Publicly Held Corporation, of a stock option plan
pursuant to which the options shall be granted.
6. All other terms and conditions of the Employment Agreement
shall remain the same.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
duly executed effective as of the day and year first above written.
COMPANY:
CAPITAL FACTORS HOLDING, INC.
By: /s/ Xxxxxx X. Xxxxx
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FACTORS:
CAPITAL FACTORS, INC.
By: /s/ Xxxxxx X. Xxxxx
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EXECUTIVE:
/s/ Xxxx X. Xxxxxx
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XXXX X. XXXXXX
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