EXHIBIT 10.18
CHANGE OF CONTROL
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made as of the 24TH OF JUNE, 2002, between
POINTE FINANCIAL CORPORATION, a Florida Corporation (the "Corporation"), POINTE
BANK, a state-chartered commercial bank ("Bank"), and XXXX X. XXXXX ("Officer"),
an officer of the Bank and the Corporation.
WHEREAS, Officer is employed by the Bank and the Corporation and
currently holds the position of SENIOR VICE PRESIDENT/BUSINESS BANKING; and
WHEREAS, Officer has made and is expected to continue to make a
significant contribution to the management, profitability, and growth of the
Bank, and, consequently, of the Corporation; and
WHEREAS, Officer possesses an intimate knowledge of the Bank's business
and affairs, including its policies, plans, methods, personnel and problems; and
WHEREAS, the Bank considers the continued employment of Officer to be
in the best interests of the Bank, the Corporation, and the shareholders of the
Corporation, and desires to assure itself of Officer's continued services on an
objective and impartial basis and without distraction or conflict of interest in
the event of any efforts to effect a change of ownership or control of the
Corporation; and
WHEREAS, Officer is willing to remain in the employ of the Bank upon
the understanding that it will provide him with income security in the event his
employment should be terminated without cause, or by him for good reason,
following a change in control of the Corporation, upon the terms and conditions
provided herein.
NOW, THEREFORE, in consideration of the foregoing, the Bank and Officer
agree as follows:
1. Operation of Agreement. This Agreement shall be effective
immediately upon its execution. Nevertheless, the Bank will be obligated to
provide Officer the compensation and benefits described in Section 5 only upon
the occurrence of a "Change in Control" of the Corporation. Upon such a Change
in Control, all provisions of this Agreement shall become operative immediately.
2. Change in Control. A "Change in control" of the Corporation shall be
deemed to have occurred if:
(a) the shareholders of the Corporation approve a merger or
consolidation of the Corporation with any other corporation,
other than (A) a merger or consolidation which would result in
the voting securities of the Corporation outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving or parent entity) 50% or more of
the combined voting power of the voting securities of the
Corporation, or such surviving or parent entity, outstanding
immediately after such merger or consolidation, or (B) a
merger or consolidation effected to implement a
recapitalization of the Corporation (or similar transaction)
in which no "person" (as herein below defined) acquired 50% or
more of the combined voting power of the Corporation's then
outstanding securities; or
(b) the shareholders of the Corporation approve a plan of complete
liquidation of the Corporation or an agreement for the sale or
disposition by the Corporation of all or substantially all of
the Corporation's assets (or any transaction having a similar
effect); or
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(c) any "person" (as such term is defined in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended
[the "Exchange Act"]) or group of persons, excluding the
Corporation and any of its subsidiaries, and other than
Xxxxxxx Xxxxxx or Xxxxxx Xxxxxx or a group acting in concert
with them, shall have acquired direct or indirect beneficial
ownership (within the meaning of Rule 13d-3 under the Exchange
Act) of securities of the Corporation representing 25% or more
of the voting power of the Corporation's then outstanding
securities; or
(d) during any one year period, subsequent to the date hereof, the
individuals who at the beginning of such period constitute the
Board of Directors of Corporation or Bank cease for any reason
to constitute at least a majority thereof, unless the
election, or the nomination for election by the Corporation's
shareholders, of each new director was approved by a vote of
at least two-thirds of the directors then still in office who
were directors at the beginning of the period.
3. Effect of Agreement Prior to a Change in Control; Termination of
Agreement Prior to a Change in Control.
(a) The Bank's employment rights and obligations with respect to
Officer are not affected by this Agreement prior to the
occurrence of any event which constitutes a Change in Control
of the Corporation.
(b) This Agreement shall remain in full force and effect unless
and until;
(i) it is terminated by the written agreement of the
parties hereto; or
(ii) the employment of the Officer with the Bank and its
subsidiaries and affiliates is terminated by the
Officer or by the Bank and its subsidiaries and
affiliates, for any reason, prior to a Change in
Control of the Corporation, in which case this
Agreement shall terminate concurrently with the
termination of employment.
Nothing contained in this Agreement shall be deemed to require or imply any
obligation on the part of the Officer to continue in the employment of the Bank
of any of its subsidiaries or affiliates prior to or following a Change in
Control of the Corporation, or to require or imply any right on the part of the
Officer to continue in the employment of the Bank, the Corporation or any of
their subsidiaries or affiliates prior to a Change in Control; or to limit in
any way the right of the Bank to terminate the employment of the Officer, with
or without cause, at any time prior to a Change in Control of the Corporation.
4. Termination Following a Change in Control. Following the occurrence
of any event which constitutes a Change in Control of the Corporation, the
provisions hereinafter set forth shall apply:
(a) Death. If Officer dies prior to Notice of Termination being
given, his rights under this Agreement shall terminate upon
his death.
(b) Disability. The Bank may terminate Officer's employment under
this Agreement if, as a result of his incapacity due to
accident or illness, Officer shall have been absent from his
duties with the Bank on a full time basis for 150 consecutive
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business days and, within 30 days after written Notice of
Termination is given by the Bank, he shall not have returned
to the full time performance of his duties.
(c) Cause. The Bank may terminate Officer's employment under this
Agreement for Cause. For purposes of this Agreement, the Bank
shall have "Cause" to terminate Officer's employment if he:
(i) engages in one or more acts constituting a felony, or
involving fraud or serious moral turpitude;
(ii) willfully refuses (except by reason of incapacity due
to accident or illness) to perform substantially his
duties, provided that such refusal shall have
resulted in demonstrable material injury to the Bank
or its affiliates or subsidiaries; or
(iii) willfully engages in gross misconduct materially
injurious to the Bank or its affiliates or
subsidiaries.
For purposes of this Agreement, no act or failure to act on Officer's part shall
be considered "willful" unless done, or omitted to be done, in bad faith and
without reasonable belief that his action or omission was in, or not opposed to,
the best interest of the Bank, its affiliates and subsidiaries.
Notwithstanding the foregoing, Officer shall not be deemed to have been
terminated for Cause unless and until the Bank shall have delivered to him a
copy of a resolution duly adopted by the affirmative vote of a majority of the
entire membership of the Board of Directors of the Bank at a meeting called and
held for that purpose, after reasonable notice to Officer and an opportunity for
him, together with counsel, to be heard before the Board, finding that in the
good faith opinion of the Board he was guilty of conduct set forth above in
subparagraphs (i), (ii), or (iii) of this paragraph, and specifying the
particulars thereof in detail.
If Officer is terminated for Cause while discussions are underway between
Corporation and a potential acquirer or merger partner and those discussions
result in a Change in Control, Officer will be entitled to the termination
benefits provided in Section 5 of this Agreement if it is determined through
arbitration or litigation that Officer was wrongfully discharged. Officer shall
be entitled to reimbursement for all reasonable costs, including attorney's
fees, incurred in successfully challenging such discharge, only if the Officer
is the prevailing party in such action.
(d) Voluntary Termination by the Officer. Officer may terminate
his employment under this Agreement for Good Reason. For
purposes of this Agreement, "Good Reason" shall be deemed to
exist under any of the following circumstances:
(i) Officer has been assigned any duties inconsistent
with his position, duties, responsibilities and
status with the Bank or the Corporation immediately
prior to a Change in Control, or has been assigned
reporting responsibilities of a lesser scope than
those in effect immediately prior to a Change in
Control, or he has been removed from, or not
re-elected to, any of such positions, except in
connection with the termination of his employment for
Cause; or
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(ii) the Bank or Corporation has reduced Officer's base
salary as in effect immediately prior to a Change in
Control or as the same may be increased thereafter
from time to time, or has failed to give him annual
salary increases consistent with performance review
ratings as compared with other employees of the same
or similar rank; or
(iii) the Bank or Corporation has required Officer to be
based anywhere other than the Bank's principal
executive offices in Boca Raton, Florida, or such
other location in Florida where Officer was based
immediately prior to a Change in Control, except for
required travel on the Bank's or the Corporation's
business to an extent substantially consistent with
his previous business travel obligations, or in the
event he consents to any such relocation, the Bank
has failed to pay (or reimburse him for) all
reasonable moving expenses incurred; or
(iv) the Bank or Corporation has failed to continue in
effect any benefit, retirement or compensation plan,
thrift and savings plan, stock bonus, stock
option/stock appreciation rights plan, life insurance
plan, health plan, dental plan or disability plan in
which Officer is participating at the time of a
Change in Control of the Corporation (or plans
providing substantially similar benefits), or the
Bank or the Corporation has taken any action which
would adversely affect his participation in or
materially reduce his benefits under any of such
plans or deprive him of any material fringe benefit
or perquisite enjoyed by him at the time of the
Change in Control, or the Bank has failed to provide
him with the number of paid vacation days or sick
days to which he is entitled in accordance with the
Bank's normal vacation or sick pay policies in effect
prior to the Change in Control.
(e) Notice of Termination. Any termination of Officer's employment
shall be communicated by written Notice of Termination to the
other party to this Agreement specifying in the "Termination
Date". For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the
specific termination provision in this Agreement (if any)
relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination
of Officer's employment under the provision so indicated. The
Board resolution adopted pursuant to paragraph (c) above may
constitute Notice of Termination under such provision.
(f) Effect of Agreement on Other Rights. This Agreement shall not
diminish or increase other rights Officer (or his estate,
survivors, or heirs) may have under any other contract,
employee benefit plan or policy of the Bank except as
expressly provided in this Agreement.
5. Compensation and Benefits Following Termination. If the Bank should
terminate the employment of the Officer, other than for Disability pursuant to
subparagraph 4(b) hereof or for Cause pursuant to subparagraph 4(c) hereof, or
if Officer should terminate his employment for Good Reason pursuant to
subparagraph 4(d) hereof, during the two-year period following the occurrence of
an event constituting a Change of Control or the Corporation, then the Bank
shall provide Officer the following severance pay and benefits:
(a) Salary through Termination Date. The Bank shall pay Officer
his full base salary through the Termination Date at the
monthly rate in effect at the time that Notice of Termination
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is given, together with an amount equal to the product of (x)
a fraction, the numerator of which is the number of days in
the year of termination preceding the Termination Date and the
denominator of which is 360, and (y) the greater of the
following amounts.
(i) one-third (1/3) of the aggregate bonuses paid or
payable to the Officer during the most recent three
full fiscal years; or
(ii) the total of all bonus payments to which the Officer
would be entitled with respect to the year of
termination, projecting, on an appropriate basis, the
Corporation's actual performance from the beginning
of the applicable performance period or periods
through the end of the month preceding the
Termination Date, to the end of the applicable
performance period or periods, and assuming, where
applicable, that the Officer is entitled to the
maximum award potentially available under the
applicable bonus plans or other arrangements.
(b) Severance Pay. The Bank shall pay Officer monthly following
his Termination Date, for a period of two (2) years, an amount
equal to the sum of Officer's full base salary at the monthly
rate in effect at the time that Notice of Termination is
given, plus one-twelfth (1/12) of the greater of the following
amounts.
(i) one-third (1/3) of the aggregate bonuses paid or
payable to the Officer during the most recent three
full fiscal years; or
(ii) the total of all bonus payments to which the Officer
would be entitled with respect to the year of
termination, projecting, on an appropriate basis, the
Corporation's actual performance from the beginning
of the applicable performance period or periods
through the end of the month preceding the
Termination Date, to the end of the applicable
performance period or periods, and assuming, where
applicable, that the Officer is entitled to the
maximum award potentially available under the
applicable bonus plans or other arrangements; or
(iii) The total of all minimum awards potentially payable,
with respect to the year of termination, under all
applicable bonus plans or other arrangements.
In no event shall the total compensation paid to the Officer upon the
termination of his employment in connection with a Change in Control exceed the
amount permitted by Section 280G of the Internal Revenue Code (as amended).
(c) Insurance Benefits. The Corporation or the Bank, as the case
may be, shall maintain in full force and effect for two years
after the Termination Date all employee life, health, dental,
accident, disability, medical, and other employee welfare
benefit plans, programs, or arrangements, including
participation in the 401(k) program and Corporation match,
(other than benefits under any supplemental retirement plan of
the Corporation or the Bank in which Officer was participating
immediately prior to Notice of Termination being given)
provided that he continued participation is possible under the
terms and provisions of such plan, programs, and arrangements.
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In the event that Officer's participation in any such plan,
program, or arrangement is barred, the Bank shall arrange to
provide Officer with benefits substantially similar to those
which he would have been entitled to receive under such plan,
program or arrangement if he had remained a participant for
such two-year period.
(d) Legal Costs. Other than provided in Section 6, the Bank shall
pay Officer all legal fees and expenses incurred by him as a
result of his termination, including, but not limited to, all
such fees and expenses, if any, incurred in contesting or
disputing any such termination or in seeking to obtain or
enforce any right or benefit provided in this Agreement
through legal process or arbitration, regardless of the
outcome, unless the court or the arbitration panel finds that
his claim is totally without merit.
(e) Calculation of Benefits Under Certain Plans. For the purposes
of calculating the amount of severance payable to the Officer
following a Notice of Termination under paragraph (b) of
Section 5 of this Agreement, if at the time a Notice of
Termination is given, the Officer has not been employed by the
Bank for a period of time sufficient for the Officer to have
been eligible for a cash bonus under an Annual Incentive Plan
as in effect for the applicable number of years prior to the
Notice of Termination, then the Officer shall be deemed to
have earned the maximum bonus award potentially available to
an Officer of the same grade under the Annual Incentive Plan
(based upon the Officer's current annual base salary) for the
applicable year or years prior to the Notice of Termination
for which the Officer was not an employee and therefore not
eligible for a cash bonus under an Annual Incentive Plan.
(f) Disability Benefits. In the event of the Disability of
Officer, Bank shall continue to pay Officer all amount of
severance payable under paragraph (b) of Section 5 of this
Agreement. Notwithstanding the above, any amounts payable
hereunder shall be reduced by any amounts paid to the Officer
under any other disability program maintained by the Bank or
Corporation.
(g) Career Counseling. The Bank shall pay for the cost of
professional career counseling assistance for the officer in
an amount not to exceed $25,000.00.
(h) Long Term Incentive Programs. All benefits under any long-term
incentive programs in which the Officer was entitled to
participate, including, but not limited to, shareholder value
plans, stock option plans, stock awards, or stock bonuses
shall be immediately payable by Bank and any benefit carrying
a right to exercise that was not previously exercisable and
vested shall become fully exercisable and vested. The
restrictions, deferral limitations, and forfeiture conditions
applicable to any other award granted to Officer shall lapse
and such awards shall be deemed fully vested and any
performance conditions imposed with respect to awards shall be
deemed to be fully achieved. For a period of three (3) years
following a Change in Control, the Officer shall have the
right to exercise any stock options.
6. Arbitration.
(a) All disputes under this Agreement shall be settled by
arbitration in Boca Raton, Florida, before a single arbitrator
pursuant to the rules of the American Arbitration Association.
Arbitration may be commenced at any time by any party hereto
giving written notice to each other party to a dispute that
such dispute has been referred to arbitration under this
Section. The arbitrator shall be selected by the joint
agreement of Bank and Officer, but if they do not so agree
within 20 days after the date of the notice referred to above,
the selection shall be made pursuant to the rules from the
panels of arbitrators maintained by such Association. Any
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award rendered by the arbitrator shall be conclusive and
binding upon the parties hereto and not subject to appeal;
provided, however, that any such award shall be accompanied by
a written opinion of the arbitrator giving the reasons for the
award. This provision for arbitration shall be specifically
enforceable by the parties and the decision of the arbitrator
in accordance herewith shall be final and binding and there
shall be no right of appeal therefrom. Each party shall pay
its own expenses of arbitration and the expenses of the
arbitrator shall be equally shared provided, however, that if
in the opinion of the arbitrator any claim for indemnification
or any defense or objection thereto was unreasonable, the
arbitrator may assess, as part of his award, all or any part
of the arbitration expenses of the other party (including
reasonable attorneys' fees) and of the arbitrator against the
party raising such unreasonable claim, defense, or objection.
(b) To the extent that arbitration may not be legally permitted
hereunder and the parties to any dispute hereunder may not at
the time of such dispute mutually agree to submit such dispute
to arbitration, any party may commence a civil action in a
court of appropriate jurisdiction to solve disputes hereunder.
Nothing contained in this Section shall prevent the parties
from settling any dispute by mutual agreement at any time.
7. Notices. All notices, requests, demands, and other communications
provided for by this Agreement shall be in writing and shall be sufficiently
given if and when mailed in the continental United States by registered or
certified mail or personally delivered to the party entitled thereto at the
address stated below or to such changed address as the addressee may have given
by a similar notice:
If to Officer:
XXXX X. XXXXX
0000 XX 00XX XXXXXX
XXXX XXXXX XX 00000
If to Bank:
Chief Executive Officer
Pointe Bank
00000 Xxxxxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
8. Successors; Nonassignability.
(a) Any successor (whether direct or indirect, by purchase,
merger, consolidation, or otherwise) to all or substantially
all of the business or assets of the Bank, is bound by this
Agreement in the same manner and to the same extent as the
Bank and the Corporation if no such succession had taken
place. Failure of any such successor of the Bank and the
Corporation to acknowledge this Agreement upon written request
by Officer shall be a breach of this Agreement and shall
entitle Officer, if he thereafter terminates his employment
with the Bank, to compensation from the Bank in the same
amount and on the same terms as he would be entitled to
hereunder if he had given Notice of Termination due to a
reduction of his responsibilities pursuant to paragraph (d) of
Section 4 as of the day immediately before such succession
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became effective and had specified the day on which he
terminates his employment as his Termination Date. As used in
this Agreement, the Bank shall include any successor to all or
substantially all of its business or assets or which otherwise
becomes bound by all the terms and provisions of this
Agreement, whether by the terms hereof, by operation of law or
otherwise. Except as provided in this paragraph, this
Agreement shall not be assignable by the Bank.
(b) All rights of Officer under this Agreement shall inure to the
benefit of and be enforceable by his personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees, and legatees if the Bank should
terminate his employment other than for Disability pursuant to
subparagraph 4(b) hereof or for Cause pursuant to subparagraph
4(c) hereof or if Officer should terminate his employment for
Good Reason pursuant to subparagraph 4(d) hereof. If Officer
should die while any amounts would still be payable to him and
rights available to him hereunder if he had continued to live,
any such amounts, unless otherwise provided, shall be paid and
rights conveyed in accordance with the terms of this Agreement
to his devisee, legatee, or other designee or, if there be no
such designee, to his estate.
9. Whole Agreement. This Agreement constitutes the entire understanding
of the parties relating to the subject matter hereof and supersedes all prior
agreements, understandings, and representations, whether oral or written,
relating to such subject matter.
10. Separability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
11. Modifications. No provisions of this Agreement may be modified,
waived, or discharged unless such waiver, modification, or discharge is agreed
to in writing signed by Officer and by such officer as may be specifically
designated by the Board of Directors of the Bank. No waiver by either party at
any time of any breach by the other party of, or compliance with, any condition
or provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same or
at any prior or subsequent time.
12. Withholding Taxes. The Bank may withhold from any benefits payable
under this Agreement all federal, state, city, or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
13. Governing Law. The validity, interpretation, performance, and
enforcement of this Agreement shall be governed by the laws of the State of
Florida without giving effect to the principles of conflict of laws thereof.
14. Counterparts. This Agreement may be executed in any number of
counter parts, each of which so executed shall be deemed to be an original, and
such counterparts will together constitute but one Agreement.
15. Gender. Whenever the masculine is used herein, the same shall
include the feminine and natural and/or artificial persons shall include all
genders whenever and wherever the context so requires or permits.
16. Application of Section 280G of the Internal Revenue Code. It is the
intention of the parties that, in the event of a Change in Control of the
Corporation, the payments under Section 5 shall not constitute "excess parachute
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payments" within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended, and any regulations promulgated by the Internal Revenue
Service thereunder. In the event that the independent accountants acting as
auditors for the Corporation on the date of the Change in Control (or another
accounting firm designated by them) determine that the payments under Section 5
may constitute "excess parachute payments", the amounts payable pursuant to
Section 5 shall be reduced to the maximum amount that may be paid without
constituting the payments "excess parachute payment". Such determination
pursuant to this Section shall take into account (I) whether the payments under
this Agreement are "parachute payments" within the meaning of Section 280G and,
if so, (ii) the amount of payments under Section 5 that constitutes "reasonable
compensation" within the meaning of Section 280G. Nothing contained in this
Agreement shall prevent the Corporation after a Change in Control from agreeing
to pay the Officer's compensation or benefits in excess of those provided in
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Corporation Bank
POINTE FINANCIAL CORPORATION POINTE BANK
By: /s/ R. Xxxx Xxxxxx, Jr. By: /s/ R. Xxxx Xxxxxx, Jr.
------------------------ --------------------------
R. Xxxx Xxxxxx, Jr., Chairman R. Xxxx Xxxxxx, Jr., President
Officer
By: /s/ Xxxx X. Xxxxx
-------------------------
XXXX X. XXXXX
