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Exhibit 10.6
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement"), is entered into and
made effective as of this 31 day of July, 1995 by and among C. Xxxxxxx Xxxxxx
("Executive") and the First National Bank and Trust Company of the Treasure
Coast (the "Bank"), and the Bank's parent corporation, Seacoast Banking
Corporation of Florida (the "Company").
WHEREAS, the Bank and the Company desire to employ Executive as Executive
Vice President and Chief Banking Officer and Executive desires to serve in such
positions; and
WHEREAS, in order to provide adequate assurances to Executive as an
inducement to commence and continue his employment with the Bank and the
Company, the Bank and the Company desires to enter into this Agreement to set
forth the terms of his employment, and to provide for certain payments
contingent upon a change in control of the Bank or the Company as hereinafter
provided ("Change in Control"); and
WHEREAS, Executive desires to enter into the Agreement and to devote his
full time best efforts to the Bank and the Company.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties, intending to be legally
bound, agree as follows:
1. EMPLOYMENT.
(a) Bank. The Bank shall employ Executive as Executive Vice
President and Chief Banking Officer of the Bank with the duties,
responsibilities and powers of such office as assigned to him as of
the date set forth above and as customarily associated with such
office, and Executive shall serve the Bank in such capacities during
the term of this Agreement. Executive acknowledges that such
duties, responsibilities and powers may be increased from time to
time by the Board of Directors of the Bank, that the position held
by Executive may be changed or Executive's employment may be
terminated pursuant to Section 4(c) hereof by action of the Board of
Directors of the Bank prior to a Change in Control and that such a
change in position, duties, responsibilities, powers or a
termination of employment pursuant to Section 4(c) hereof whether
prior to or following a Change in Control shall not entitle
Executive to the benefits provided for in Section 5(c), unless such
change or termination is not made in good faith.
(b) Company. The Company shall employ Executive as Executive
Vice President and Chief Banking Officer of the Company with duties,
responsibilities and powers of such office as assigned to him as
of the date
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set forth above and as customarily associated with such office, and
Executive shall serve the Company in such capacities during the term
of this Agreement. Executive acknowledges that such duties,
responsibilities and powers may be increased from time to time by the
Board of Directors of the Company, that the position held by
Executive may be changed or Executive's employment may be terminated
pursuant to Section 4(c) hereof by action of the Board of Directors
of the Company prior to a Change in Control and that such a change in
position, duties, responsibilities, powers or a termination of
employment pursuant to Section 4(c) hereof whether prior to or
following a Change in Control shall not entitle Executive to the
benefits provided for in Section 5(c), unless such change or
termination is not made in good faith.
(c) Executive represents, warrants and covenants to the Bank and
the Company that he will be available to commence his duties
hereunder by October 31, 1995 and that this Agreement and his
performance of services hereunder does not breach or conflict with
any other agreements or instruments to which Executive is a party or
may be bound, and that he shall faithfully and diligently discharge
his duties and responsibilities under this Agreement, and shall use
his full time best efforts to implement the policies established by
the Board of Directors and the Chief Executive Officer of the Bank
and the Company, respectively.
(d) During the term of this Agreement, Executive shall devote his
full and exclusive business time, energy and skill to the business
of the Bank and the Company, to the promotion of the interests of
the Bank and the Company and to the fulfillment of Executive's
obligations hereunder.
2. TERM.
The term of this Agreement shall be three (3) years from the date hereof,
unless further extended by mutual consent of the Bank and Company and
Executive or sooner terminated as herein provided. UNLESS 90 DAYS PRIOR
NOTICE OF NON-RENEWAL IS GIVEN BY THE EXECUTIVE, THE BANK OR THE COMPANY
PRIOR TO THE END OF THE INITIAL AND ANY SUBSEQUENT TERM HEREOF, THIS
AGREEMENT SHALL AUTOMATICALLY BE RENEWED ON THE EXPIRATION OF THE INITIAL
TERM AND ANNUALLY THEREAFTER THROUGH THE NEXT SUCCEEDING ANNIVERSARY OF
THE AGREEMENT.
3. COMPENSATION AND BENEFITS.
The Bank shall pay or provide to Executive the following items as
compensation for his service hereunder:
(i) A base salary of $150,000.00 per year, payable in monthly
installments, which base salary may be increased from time to time
in accordance with
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normal business practices of the Bank; and
(ii) Hospitalization insurance (including major medical),
long-term disability insurance, and life insurance in accordance
with the Bank's insurance plans for Senior Management as such plans
may be modified from time to time; and
(iii) Reasonable club dues.
The above-stated terms of compensation shall not be deemed exclusive or
prevent Executive from receiving any other compensation, including,
without limitation, bonuses, provided by the Bank and/or the Company.
Executive shall be entitled to participate in all current and future
employee benefit plans and arrangements in which the Senior Management of
the Bank is permitted to participate. The Company does not separately
compensate its officers who are also officers of the Bank and no
additional compensation will be payable by the Company hereunder.
4. TERMINATION.
Executives' employment under this Agreement shall terminate:
(a) Death. Upon Executive's death; or
(b) Disability. Upon notice from the Bank to Executive in the
event Executive becomes "permanently disabled". For purposes of
this Agreement, Executive shall be deemed "permanently disabled" if
he has been disabled by bodily or mental illness, disease, or
injury, to the extent that, in the opinion of the Board of
Directors, he is prevented from performing his material and
substantial duties of employment, and provided further that such
disability has continued substantially for six (6) months preceding
such notice. If requested by the Bank, Executive shall submit to an
examination by a physician selected by the Bank for the purpose of
determining or confirming the existence of extent of any disability;
or
(c) Cause. Upon notice from the Bank to Executive for cause. For
purposes of this Agreement, "cause" shall be (i) a willful and
continued failure by Executive to perform his duties as Executive
Vice President and Chief Banking Officer of the Bank and the Company
as established by their respective Board of Directors (other than
due to disability), or (ii) a breach by Executive of his fiduciary
duties of loyalty or care to the Bank, or (iii) a willful violation
by Executive of any provision of this Agreement; or (iv) a
conviction or the entering of a plea of nolo contendere by Executive
for any felony or any crime involving fraud, dishonesty or a breach
of trust, or (v) a breach of the Bank's Code of Ethics, or (vi)
commission by Executive of a willful or negligent act which causes
material harm to the Bank, or
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(vii) habitual absenteeism, alcoholism or other form of drug or other
addiction, or (viii) any violation of laws or regulations such that
Executive ceases to be eligible to serve as an executive officer of a
depository institution or a depository institution holding company or
(ix) Executive becomes ineligible to be bonded at costs consistent
with the Bank and/or the Company's other senior officers. In
addition, if Executive shall terminate his employment for a breach of
this Agreement by the Bank in accordance with Section 4(e), and it is
ultimately determined that no reasonable basis existed for Executive's
termination on account of the alleged default of the Bank and/or the
Company, such event shall be deemed cause for termination by the Bank.
Any notice of termination of Executive's employment with the Bank for
cause shall set forth, in reasonable detail, the facts and
circumstances claimed to provide the basis for termination of his
employment under the provisions contained herein and the effective
date of termination ("Termination Date"); or
(d) Change in Control. Upon notice by Executive to the Bank
following a "Change in Control" ( as defined in this Section 4(d)),
provided Executive terminates his employment within one (1) year
following the effective date of such "Change in Control". For
purposes of this Agreement, a "Change in Control" shall be deemed to
have occurred if (i) the Bank or Company shall become a direct or
indirect subsidiary of, or shall be merged or consolidated with or
into another entity, which entity is neither controlled by the
Company nor the Bank or if 51% or more of the voting power of shares
of (i) Class A Common Stock, (ii) Class B Common Stock, or (iii) the
shares of Class A and Class B Common Stock voting together as one
class,of the resulting entity are not held by persons who were
shareholders of the Bank or Company immediately before the
transaction, subject to the limitations of subparagraph (iii) below,
or (ii) substantially all of the assets of the Bank or Company shall
be sold or transferred to a person or entity, which person or entity
is neither controlled by the Bank or Company, or if 51% or more of
the voting power of shares of (i) Class A Common Stock, (ii) Class B
Common Stock or (iii) the shares of Class A and Class B Common Stock
voting together as one class are not held by persons who were
shareholders of the Bank or Company immediately prior to the asset
sale, subject to the limitations of subparagraph (iii) below; or
(iii) and "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934), or persons acting
together or in concert, and who are not, at the date hereof,
beneficial owners (individually or collectively) of 10% or more of
the common stock of the Company or the bank of any class or series
become the "beneficial owner" (as defined in Rule 13(d) of the
Securities Exchange Act of 1934 as amended) of securities of the Bank
or the Company representing 45% or more of the
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voting power of either any individual class of securities or of any
classes which vote together of the Bank's or Company's then
outstanding securities, other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or
Bank, or
(e) Breach. Upon notice from Executive to the Bank and/or the
Company of the Bank's and/or the Company's failure to comply with
any material provision of this Agreement, provided that the Bank or
the Company, as the case may be, shall have thirty (30) days from
the receipt of such notice to cure any such failure under this
Agreement. If such failure shall be cured or if the Bank and/or
Company shall have taken steps to cure the failure within the thirty
(30) day period, Executive shall have no right to terminate his
employment under the provisions of this Section 4(e); or
(f) Change in Position or Duties. Upon notice from Executive to
the Bank and/or the Company, in the event that Executive is not
elected Executive Vice President and Chief Banking Officer of the
Bank and the Company with the duties and powers which are
customarily associated with such office; or
(g) Improper Termination by Company. Upon notice from Executive
to the Bank and/or the Company, as applicable, upon a purported
termination of Executive's employment by the Bank and or the Company
for cause if it is ultimately determined that cause did not exist;
or
(h) Expiration of Term. Upon the expiration of the term of this
Agreement as set forth in Section 2.
5. COMPENSATION AND BENEFITS PAYABLE UPON TERMINATION.
(a) Upon Executive's death, the Bank shall pay Executive's full
base salary in accordance with the terms set forth in Section 5(c)
below. In addition, the Bank shall continue to pay for and provide
to Executive's spouse and eligible dependents hospitalization
insurance (including major medical), and any such other health
insurance benefits comparable to that coverage that would have been
provided under the Bank's group health insurance plan to Executive's
spouse and eligible dependents at the date of Executive's death, at
such time in accordance with the terms set forth in Section 5(c).
(b) In the event Executive becomes permanently disabled and is
terminated as set forth in Section 4(b) above, the Bank shall pay to
Executive compensation and benefits as set forth in Section 5(c)
below, provided that Executive's base salary shall be reduced by any
amounts received by Executive under the Bank's long term disability
plan or from any other collateral source payable due to disability,
including, without limitation,
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social security benefits. If Executive shall remain permanently
disabled beyond the period set forth in Section 5(c) below, Executive
shall receive only such amounts, if any, as are payable under the
Bank's long term disability plan or under any other employee benefit
or welfare plan in which Executive participated and is entitled to
benefits.
(c) If Executive's employment shall be terminated by Executive
pursuant to Sections 4(d), (e), (f) or (g), or by the Bank for any
reason other than for cause as set forth in Section 4(c), the Bank
shall continue to pay to Executive or his estate or beneficiaries,
his full base salary (including any other cash compensation) to
which Executive would be entitled at the Termination Date or on the
date of a Change in Control, whichever date will result in the
greater base salary, for a period of two (2) years following the
Termination Date. In addition, the Bank shall continue to pay his
hospitalization insurance premiums (including major medical), long
term disability premiums and life insurance premiums for a period of
two (2) years or until his earlier death. The compensation and
benefits payable under this Section 5(c) are hereinafter referred to
as "Severance Benefits".
The payment of Severance Benefits is in recognition and consideration
of the value of continued services by Executive to the Bank and is
not in any way to be construed as a penalty or damages. Executive
shall not be required to mitigate the amount of any payment of
Severance Benefits by seeking other employment or otherwise. The
payment of Severance Benefits shall not affect any other sums or
benefits otherwise payable to Executive under any other employment
compensation or benefit or welfare plan of the Bank.
(d) In the event termination is, for any reason other than as
described in Section 5(a), (b), or (c) above, the Bank shall pay
Executive his full salary through the date of termination and no
other compensation or benefits shall be paid to Executive hereunder;
provided, however, that nothing herein shall be deemed to limit his
vested rights under any other benefit, retirement, stock option or
pension plan of the Bank, and the terms of those plans, programs or
arrangements shall govern.
6. NON-COMPETITION AND NON-DISCLOSURE.
(a) To induce the Bank and the Company to enter into this
Agreement, Executive agrees that during the term of this Agreement
and for a period of two (2) years after the termination of
employment or service of Executive hereunder, Executive will not,
within Xxxxxx, Indian River, or St. Lucie Counties, Florida, or any
other county wherein the Bank, the Company and/or its affiliates
conducts business at the date his employment is
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terminated, as principal, agent, trustee or through the agency or on
behalf of any corporation, partnership, association, trust or agent
or agency, (i) engage in the business of banking, fiduciary services,
securities brokerage, investment management or services, lending or
deposit taking, (ii) control or own beneficially (directly or
indirectly) 5% or more of the outstanding capital stock or other
ownership interest (a "Principal Stockholder") of any corporation or
person engaged in or controlling any such business other than the
Company or Bank, or (iii) serve as an officer, director, trustee,
agent or employee of any corporation, or as a member, employee or
agent of any partnership, or as an owner, trustee, employee or agent
of any other business or entity, which directly or indirectly
conducts such business within Xxxxxx, Indian River, or St. Lucie
Counties, Florida, or any other county wherein the Bank, the Company
and/or its affiliates conducts business at the date his employment is
terminated. Executive further agrees that he will not solicit any
employee to leave their employment with the company or Bank or any
Company or Bank subsidiaries for any reason or otherwise interfere
with the employment relationship of the Company, the Bank, or their
subsidiaries if Executive serves as an officer, director, trustee,
managing agent or as a Principal Stockholder of any person or entity
which hires or seeks or negotiates the employment or hiring of any
such employee. In the event that the provisions of this Section 6(a)
should be deemed to exceed the time or geographic limitations
permitted by applicable law, then such provisions shall be reformed
automatically to the maximum time or geographic limitations so
permitted.
(b) Executive recognizes and acknowledges that he will have
access to certain confidential information of the Company, the Bank
and of their subsidiaries and affiliates, including, without
limitation; customer lists, credit information, organization,
pricing, xxxx-ups, commissions, and other information and that all
such information constitutes valuable, special and unique property
of the Company, Bank and their subsidiaries and affiliates. Such
information is herein referred to as "Trade Secrets". Executive
will not disclose or directly or indirectly utilize, in any manner,
any such Trade Secrets for his own benefit or the benefit of anyone
other than the Company, Bank and their subsidiaries and affiliates
during the term of this Agreement and for a period of two (2) years
after the term of this Agreement. In the event of a breach or
threatened breach by Executive of the provisions of this Section
6(b), the Company, the Bank, or any subsidiary or affiliate of the
Company, or the Bank shall be entitled to an injunction restraining
Executive and any others from disclosing or utilizing, in whole or in
part, such Trade Secrets. Nothing herein shall be construed as
prohibiting or limiting the Company, Bank, or any subsidiary or
affiliate of the Company or the Bank from exercising any other
available rights or remedies for such breach or threatened breach,
including, without limitation, the recovery of damages from Executive
or others.
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7. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement other than as a result of the provisions of Section 6 hereof,
shall be settled exclusively by arbitration. Each party shall appoint
one arbitrator and shall notify, in writing, the other party of such
appointment and request the other party to appoint one arbitrator within
thirty (30) days of receipt of such request. If the party so requested
fails to appoint an arbitrator, the party making the request shall be
entitled to designate two arbitrators. The two arbitrators shall select
a third. The written decision of a majority of the arbitrators shall be
binding upon the Bank and Executive and enforceable by law. The
arbitrators shall, by majority vote, determine the place for hearing, the
rules of procedure, and allocation of the expenses of the arbitration.
Absent any written agreement to the contrary, the rules of the American
Arbitration Association shall apply to any arbitration proceedings.
8. APPLICATION OF CODE SECTION 280G.
If any payment of Severance Benefits hereunder shall be determined to be
an "excess parachute payment", as defined by Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code" ), which subjects Executive
to an excise tax under Section 4999(a) of the Code, the Bank shall pay a
supplemental benefit equal to the excise tax and all state and federal
income taxes on the supplemental benefit. Executive agrees to fully
cooperate with the Bank should the Bank determine to challenge, for
whatever reason, any determination by the Internal Revenue Service that
Severance Benefits paid hereunder constitute "excess parachute payments"
as defined by Section 280G of the Code.
9. SUCCESSORS: BINDING AGREEMENT.
(a) This Agreement shall be binding upon any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise), to all or substantially all of the business and/or
assets of the Bank regardless of whether such occurrence constitutes
a Change in Control hereunder and the Bank and the Company shall
require any such successor to expressly assume and agree to perform
this Agreement. As used in this Agreement, "Company" and "Bank"
shall mean the Company and Bank as herein respectively defined and
any successors or assignees to their respective business and/or
assets as aforesaid, which is required by this Agreement to assume
and perform this Agreement, whether by operation of law or otherwise.
In the event any successor to the Company has total assets in excess
of $8 billion and does not maintain a Florida-based holding company,
then the term "successor" shall only include the bank resulting from
such transaction.
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(b) This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If Executive should die while any amount would still be
payable hereunder, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement
to Executive's devisee, legatee or other designee or, if there is no
such designee, to Executive's estate.
10. MISCELLANEOUS.
(a) All notices required or permitted hereunder shall be given in
writing by actual delivery or by Registered or Certified Mail
(postage prepaid), at the following addresses or at such other
places as shall be designated in writing:
Executive: Mr. C. Xxxxxxx Xxxxxx
_______________________________
_______________________________
Bank or the Company: 000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx, III
(b) If any provision of this Agreement shall be determined to be
void by any court or arbitrium of competent jurisdiction, then such
determination shall not affect any provisions of this Agreement, all
of which shall remain in full force and effect.
(c) The failure of the parties to complain of any act or omission
on the part of either party, no matter how long the same may
continue, shall not be deemed to be a waiver of any of its rights
hereunder.
(d) This Agreement may be executed in two (2) or more counterparts, each
of which shall be deemed an original, but all of which shall
constitute one and the same instrument. It may be modified or
terminated only by a writing signed by the party against whom
enforcement of any waiver, change, modification, extension, discharge
or termination is sought.
(e) The recitals contained in this Agreement are expressly made a
part hereof.
(f) This Agreement represents the entire understanding and agreement
among the parties and supersedes any prior agreements or
understandings with
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respect to the subject matter hereof. It is intended and agreed that
the Company, the Bank and its direct and indirect subsidiaries are
express beneficiaries of this Agreement and may enforce the
provisions hereof to the same extent as the Bank.
(g) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Florida.
IN WITNESS WHEREOF, Executive has executed this Agreement and the Bank and
the Company have caused this Agreement to be executed under seal by their
respective undersigned officers, thereunto duly authorized as of the day and
year first above written.
EXECUTIVE
/s/ C. Xxxxxxx Xxxxxx (SEAL)
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C. Xxxxxxx Xxxxxx
FIRST NATIONAL BANK & TRUST COMPANY
OF THE TREASURE COAST
By: /s/ Xxxxxx X. Xxxxxx, III
-------------------------------------
Xxxxxx X. Xxxxxx, III
President and Chief Executive Officer
SEACOAST BANKING CORPORATION OF FLORIDA
By: /s/ Xxxxxx X. Xxxxxx, III
-------------------------------------
Xxxxxx X. Xxxxxx, III
Executive Vice President &
Chief Operating Officer
ATTEST:
BY: /s/ A. Xxxxxxx Xxxxxxx
---------------------------------
A. Xxxxxxx Xxxxxxx
Executive Vice President &
Chief Operating & Credit Officer
(CORPORATE SEAL)
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