EMPLOYMENT AGREEMENT
(Change of Control)
This EMPLOYMENT AGREEMENT is made as of the 16th day of August, 1999,
between POINTE FINANCIAL CORPORATION, a Florida Corporation (the
"Corporation"), POINTE BANK, a state-chartered commercial bank ("Bank"), and R.
Xxxx Xxxxxx, Jr. ("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 President; 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 hereinbelow 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
or 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 of the
Corporation, 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 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; or
(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
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(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 acquiror 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
(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
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(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 a written Notice of Termination to the other
party to this Agreement specifying 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 in Control of 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 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
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(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 his continued participation is possible under the
terms and provisions of such plan, programs and arrangements. 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 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.
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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 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:
R. Xxxx Xxxxxx, Jr.
000 Xxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
If to Bank:
Chief Executive Officer
Pointe Bank
00000 Xxxxxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
8. Successors; Nonassignability.
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(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 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, all 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
counterparts, 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.
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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
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 payments." 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/ Xxxxxxx Xxxxxx BY: /s/ Xxxxxxx X. Xxxxxxxx
----------------------- ----------------------------
Xxxxxxx Xxxxxx, Chairman Xxxxxxx X. Xxxxxxxx
Executive Vice President
OFFICER
/s/ R. Xxxx Xxxxxx, Jr.
-----------------------
R. Xxxx Xxxxxx, Jr.
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