CONSULTING AGREEMENT
This
Consulting Agreement ("Agreement") is entered into this ____ day of
January 2009 (“Effective Date”) by and between TIB
Financial Corp. (the "Company") with its place of business
headquartered in Naples, Florida and Xxxxxx X.
Xxxx (“Executive” or "Consultant").
WHEREAS, the Executive presently serves the
Company as its President, and currently serves as its Vice-Chairman of the Board
and a member of the Board of Directors; and
WHEREAS, the Executive wishes
to retire as the Company’s President and an employee, effective as of January
30, 2009 (“Retirement Date”); and
WHEREAS, the Company
recognizes the specialized knowledge and expertise of the Executive related to
the business affairs of the Company, the communities in which the Company
operates and the financial services industry; and
WHEREAS, the Company and its
executive officers wish to continue to utilize the knowledge and experience of
the Executive from time to time for special projects and advice with respect to
the Company and its business opportunities; and
WHEREAS, Executive and the
Company desire to enter into such a consulting relationship upon the terms and
conditions hereinafter contained.
NOW, THEREFORE, in
consideration of the covenants and terms contained in this Agreement as set
forth herein and of the mutual benefits accruing to Company and to the
Consultant from the consulting relationship to be established between the
parties as set forth in the terms of this Agreement, the Company and the
Consultant, intending to be legally bound, hereby agree, as
follows:
1.
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Retirement
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A.
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As
of the Retirement Date, the Executive hereby resigns as the Company’s
President, as an employee of the Company and any subsidiary of the
Company, and as an officer in any other capacity of the Company and any of
its subsidiaries; provided, however, the Executive shall remain a member
of the Board of Directors of the Company for the remainder of his elected
term of office and as Vice-Chairman of the
Board.
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B.
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Upon
the Retirement Date, the provisions of the Employment Agreement between
the Executive and the Company, as amended and restated on December 16,
2008 (as attached hereto) (“Employment Agreement”), shall be terminated,
except however, the provisions of Sections 10, 12, 13 and 14 shall survive
such Employment Agreement termination. For periods after the
Retirement Date, the Executive shall not receive additional salary, bonus
or benefits in accordance with the Employment Agreement, or otherwise,
except as set forth in this Agreement or otherwise as provided by law or
in accordance with the policies of the Company with respect to its members
of the Board of Directors or to its retired
employees.
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C.
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Upon
the Retirement Date, the provisions set forth in the Split-Dollar Life
Insurance Arrangement between the Executive and the Company, dated
February 8, 2001, and as amended on December 16, 2003, will be terminated,
and the Company shall thereafter be the sole owner and beneficiary of any
life insurance arrangements owned by the
Company.
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2. Consulting
Relationship
As of the
Retirement Date, the Company hereby retains Consultant, and Consultant hereby
agrees to be retained by Company, as an independent contractor, and not as an
employee, with such duties and responsibilities set forth at Section 3 herein
during the Term (as defined in Section 6) of this Agreement.
3. Consulting
Service
Consultant
agrees that during the Term of this Agreement:
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A.
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Consultant
will devote his best efforts to such position as consultant and an
independent contractor to the Company, and he will perform such duties and
furnish advice and assistance to the Company from time to time as
requested by the Company=s
President, Chief Financial Office or Chief Operating Officer
(collectively, “Senior Management”). The Consultant shall be
available to assist the Company as requested by Senior Management, on a
monthly basis as mutually agreed upon from time to time, and the
Consultant shall be available for a minimum of twenty hours per month to
offer such consultation and advice and undertake special projects, as
requested. The Consultant shall be acting in the capacity as an
independent contractor, and not as an officer or employee of the Company.
The Consultant shall not be subject to the direct control or supervision
of the Senior Management of the Company with respect to the time spent,
research undertaken, or procedures followed in the performance of
consulting services rendered hereunder. During the Term of the Agreement,
Consultant agrees to consult with the Company, as requested by Senior
Management, on matters related to the business affairs and operations of
the Company as they pertain to strategic planning and product development,
merger and acquisition analysis, community relations and business
development opportunities that may be available to the
Company;
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B.
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Consultant
shall exercise a reasonable degree of skill, prudence and care in
performing the services referred to in Section 3.A.
above;
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C.
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Except
as may be limited by Sections 1.B and 7 of this Agreement, Consultant may
be an employee, officer or director of other companies or entities and may
provide consulting services for other companies or organizations; provided
that such activities do not conflict with the services and activity that
the Consultant is rendering to the Company or any of its subsidiaries or
the services or activities of the Company and its
subsidiaries;
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D.
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Consultant
shall be available to render such consulting services to the Company under
this Agreement during the Term of this Agreement. Consultant shall not be
obligated to render any services under this Agreement during such period
when he is unable to do so due to illness, disability or injury, subject
to the terms of Section 6(B)
hereof;
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E.
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Consultant
shall be available for service hereunder upon receipt of not less than
five (5) business days=
written notice from the Company;
and
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F.
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Consultant
shall not enter into agreements or make commitments on behalf of the
Company without prior written consent or approval of the Company or its
Senior Management.
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4. Compensation
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A.
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The
Company agrees to pay Consultant for his services performed under this
Agreement and for his commitments and agreements as contained herein,
including Section 7 herein, a monthly retainer of $30,000 during the Term
of this Agreement. The Company acknowledges that compliance by
the Consultant with Section 7, herein, is an essential component of this
Agreement, and that such compliance is necessary for the Company to obtain
the full value of the Consultant’s services hereunder. The
parties agree that Consultant shall not be entitled to participate in or
receive benefits under any Company programs maintained for its
employees. The Consultant will receive remuneration for
services as a director of the Company for such time that he may be serving
in such capacity commensurate with the remuneration received by other
non-employee directors of the Company. Remuneration received as
a non-employee director shall not be in lieu of or reduce any remuneration
otherwise due under this Agreement. Any compensation received
under this Agreement shall not impact any compensation being received or
that may be received in the future related to the Consultant’s prior
service as an employee of the
Company.
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B.
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The
Company hereby agrees to reimburse the Consultant for all reasonable
expenses incurred by the Consultant on behalf of and with the consent of
the Company, provided that the Consultant shall furnish appropriate
documentation of such expenses and receives prior approval of such
expenses.
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5. Other
Conditions
Consultant
shall have no supervisory authority over any employee or officer of Company, nor
shall Company be required in any manner to implement any plans or suggestions
Consultant may provide.
6. Term and
Termination
The term
of this Agreement shall begin on the Retirement Date and shall continue until
March 1, 2011 ("Term"), unless otherwise extended or terminated in accordance
with the provisions set forth below.
A.
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Termination
for Cause. The Company may terminate this Agreement at any time
for "Just Cause;" provided, that after any such termination for “Just
Cause,” the Consultant shall nevertheless be obligated to comply with the
provisions of Section 7 hereof for the balance of the Term and the Company
shall nevertheless remain obligated to comply with the provisions of
Section 4(A) hereof for the balance of the Term. Termination
for "Just Cause" shall be defined as: (i) If the Consultant shall have
engaged in conduct involving fraud, deceit, personal dishonesty, or breach
of fiduciary duty; (ii) If the Consultant shall have violated any banking
law or regulation, memorandum of understanding, cease and desist order, or
other agreement with any banking agency having jurisdiction over the
Company which, in the judgment of the Board, has adversely affected, or
may adversely affect, the business or reputation of the Company as
determined by the Board; (iii) If the Consultant shall have become subject
to continuing intemperance in the use of alcohol or drugs which has
adversely affected, or may adversely affect, the business or reputation of
the Company as determined by the Board; (iv) If the Consultant shall have
filed, or had filed against him, any petition under the federal bankruptcy
laws or any state insolvency laws; or (v) If any banking authority having
supervisory jurisdiction over the Company, or its subsidiaries, initiates
any proceedings against the
Consultant.
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B.
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Notwithstanding
anything herein to the contrary, this Agreement may be terminated by the
Company or the Consultant at any time prior to the expiration of its Term
upon not less than three months prior written notice to the other party;
provided, that after any such termination, the Consultant shall
nevertheless be obligated to continue to comply with the provisions of
Section 7 hereof for the balance of the Term and the Company shall
nevertheless remain obligated to comply with the provisions of Section
4(A) hereof for the balance of the
Term.
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C.
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Disability
or Death. In the event of the Disability or death of the
Consultant, the Consultant (or his surviving spouse, if any, and otherwise
his estate) shall nevertheless continue to receive the payments due under
this Agreement through the end of the Term. Such payments shall
commence within 31 days after the date of Disability or
death.
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7. Non-Competition and
Confidential Business
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A.
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Consultant,
during the Term of the Agreement, will not, without the express written
consent of Company, directly or indirectly communicate or divulge to, or
use for his own benefit or for the benefit of any other person, firm,
association, or corporation, any trade secrets, proprietary data or other
confidential information communicated to or otherwise learned or acquired
by Consultant from the Company while serving as a consultant or director
of the Company, if applicable, except that Consultant may disclose such
matters to the extent that disclosure is (a) requested by the Company
or (b) required by a court or other governmental agency of competent
jurisdiction.
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B.
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The
Consultant agrees that during the Term of this Agreement, the Consultant
will not, directly or indirectly, (i) become a director, officer,
employee, shareholder, principal, or agent of, or become a consultant or
independent contractor rendering or performing professional services
associated with providing client/customer services and products for the
benefit of, any insured depository institution, trust company or parent
holding company of any such institution or company which has an office
within 25 miles of any office of the Company as it exists as of the date
of this Agreement, or any other entity whose business in the aforesaid
area materially competes with the depository, lending or other business
activities of the Company (in each case, a “Competitor”); provided,
however, that this provision shall not prohibit the Consultant from owning
bonds, non-voting preferred stock or up to five percent (5%) of the
outstanding common stock of any such entity if such common stock is
publicly traded, (ii) solicit or induce, or cause others to solicit or
induce, any employee of the Company or any of its subsidiaries to leave
the employment of such entities; or (iii) solicit (whether by mail,
telephone, personal meeting or any other means, excluding general
solicitations of the public that are not based in whole or in part on any
list of customers of the Company) any customer of the Company
to transact business with any other entity, whether or not a Competitor,
or to reduce or refrain from doing any business with the Company or its
subsidiaries, or interfere with or damage (or attempt to interfere with or
damage) any relationship between the Company and any such
customers.
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C.
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Unless
prior written consent is obtained from the Company, during the Term of
this Agreement, the Consultant hereby agrees that he shall not, on his own
behalf or on behalf of others, employ, solicit, or induce, or attempt to
employ, solicit or induce, any employee of the Company for employment with
any Competitor, nor will Consultant directly or indirectly, on his behalf
or for others, seek to influence any Company employee to leave the employ
of the Company or any Company
subsidiary.
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D.
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The
Consultant and the Company acknowledge and agree that irreparable injury
will result to the parties in the event of a breach of any of the
provisions of this Section 7 (the "Designated Provisions") and that the
Consultant and the Company will have no adequate remedy at law with
respect thereto. Accordingly, in the event of a material breach
of any Designated Provision, and in addition to any other legal or
equitable remedy the Consultant or the Company may have, the Consultant or
the Company shall be entitled to the entry of a preliminary and a
permanent injunction (including, without limitation, specific performance
by a court of competent jurisdiction located in any county in the State
of Florida, or elsewhere), to restrain the violation or breach
thereof by either the Consultant or the Company, and the parties shall
submit to the jurisdiction of such court in any such
action.
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8. Independent
Contractor
The
parties hereto agree and acknowledge that the relationship between Company and
Consultant shall be that of an independent contractor and not that of
employer-employee, master-servant or principal-agent. Nothing in this
Agreement, or its implementation, shall be construed to be to the
contrary.
9. Complete
Agreement
This
Agreement, and any attachments or exhibits appended hereto, shall represent the
complete Agreement between Company and Consultant concerning the subject matter
hereof and supersedes all prior agreements or understandings, written or
oral. No attempted modification or waiver of any of the provisions
hereof shall be binding on either party unless made in writing and signed by
both Consultant and Company.
10. Notices
Any
notice required or permitted to be given hereunder shall be in writing and shall
be effective three business days after it is properly sent by registered or
certified mail, if to the Company to the President at the administrative offices
of the Company, or if to Consultant to the address set forth beneath his
signature to this Agreement, or to such other address as either party may from
time to time designate by notice.
11. Assignability
This
Agreement may not be assigned by either party without the prior written consent
of the other party, except that no consent is necessary for the Company to
assign this Agreement to a corporation succeeding to substantially all the
assets or business of the Company whether by merger, consolidation, acquisition
or otherwise. Any successor corporation shall remain responsible for
the duties and obligations of the Company, including the continuation of the
payments due to the Consultant for the period through the end of the Term as
detailed at Section 4.A, herein. This Agreement shall be binding upon
Consultant, his heirs and permitted assigns and the Company, its successors and
permitted assigns.
12. Severability
Each of
the sections contained in this Agreement shall be enforceable independently of
every other section in this Agreement, and the invalidity or non-enforceability
of any section shall not invalidate or render non-enforceable any other section
contained herein. If any section or provision in a section is found
invalid or unenforceable, it is the intent of the parties that a court of
competent jurisdiction shall reform the section or provisions to produce its
nearest enforceable economic equivalent.
13. Governing
Law.
The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the United States where applicable and otherwise by
the substantive laws of the State of Florida.
Notwithstanding
anything herein to the contrary, any payments made to Consultant pursuant to the
Agreement, or otherwise, shall be subject to and conditioned upon compliance
with 12 USC '1828(k)
and any regulations promulgated thereunder.
14. Section 409A
Compliance.
A. Notwithstanding
anything herein to the contrary, the Company shall make reasonable efforts to
administer the Agreement and make payments hereunder in a manner that is not
deemed to be contrary to the requirements set forth at Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”) and regulations and
notices promulgated thereunder such that any payments made would result in the
requirement for the recipient of such payments to pay additional interest and
taxes to be imposed in accordance with Section 409A(a)(1)(B) of the Code;
provided, however, the Company shall not have any responsibility to the
Executive or any beneficiary(ies) with respect to any tax liabilities that may
be applicable to any payments made under the Agreement, whether such tax
liabilities are applicable to compliance with Section 409A of the Code or
otherwise.
B. If
any provision of the Agreement shall be determined to be inconsistent with the
requirements of Section 409A of the Code, then, the Agreement shall be
construed, to the maximum extent possible, to give effect to such provision in a
manner consistent with Section 409A of the Code, and if such construction is not
possible, as if such provision had never been included.
C. "Termination
of Service" as a Consultant shall have the same meaning as "separation from
service", as that phrase is defined in Section 409A of the Code (taking into
account all rules and presumptions provided for in the Section 409A
regulations).
D. For
purposes of this Agreement, “Disability” means the total and permanent
disability of the Consultant within the meaning of the Social Security
Act.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
TIB FINANCIAL CORP.
("COMPANY")
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By:
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_________________________________
XXXXXX X. XXXX,
CONSULTANT
Address:
____________________
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