EX-10.5 2 exhibit105.htm EX-10.5 exhibit105
 
 
Exhibit 10.5
EMPLOYMENT AGREEMENT
This EMPLOYMENT
 
AGREEMENT (this
 
"Agreement") is
 
made and
 
entered into
 
as of
September
 
28,
 
2020
 
(the
 
"Effective
 
Date"),
 
between
 
U.S.
 
Century
 
Bank,
 
a
 
Florida-chartered
commercial bank (the "Bank" or the "Employer"), and Jalal "Jay" Shehadeh (the "Executive").
WITNESSETH
WHEREAS, the Executive
 
is presently the
 
Senior Vice
 
President and General
 
Counsel of
the Bank;
WHEREAS,
 
the
 
Employer
 
desires
 
to
 
be
 
ensured
 
of
 
the
 
Executive's
 
continued
 
active
participation in the business of the Employer; and
WHEREAS,
 
the
 
Executive
 
is
 
willing
 
to
 
serve
 
the
 
Bank
 
on
 
the
 
terns
 
and
 
conditions
hereinafter set forth.
NOW THEREFORE,
 
in consideration
 
of the
 
mutual agreements
 
herein contained,
 
and upon
the other terns and
 
conditions hereinafter provided, the
 
Employer and the Executive
 
hereby agree
as follows:
1. Definitions. The following words and terms shall have
 
the meanings set forth below for
the purposes of this Agreement:
(a)
 
Base Salary. "Base Salary" shall have the meaning set forth in Section3(a) hereof.
(b)
 
Cause.
 
Termination
 
of
 
the
 
Executive's
 
employment
 
for
 
"Cause"
 
shall
 
mean
termination because
 
of (i)
 
willful misconduct
 
(including but
 
not limited
 
to misappropriation
 
of a
material
 
Bank
 
business
 
opportunity,
 
material
 
violation
 
of
 
a
 
confidentiality
 
or
 
non-competition
obligation,
 
or
 
abuse of
 
drugs
 
or
 
alcohol
 
that
 
results
 
in
 
the
 
Executive being
 
materially
 
adversely
affected in the
 
performance of his
 
duties), or fraud
 
by the Executive; (ii)
 
conviction of (including
a
 
plea
 
of
 
guilty
 
or
 
nolo
 
contendere
 
to)
 
a
 
felony
 
which
 
has
 
a
 
material
 
effect
 
on
 
the
 
Bank
 
or
 
the
Executive's
 
performance
 
hereunder;
 
and
 
(iii)
 
the
 
failure
 
to
 
comply
 
with
 
any
 
material
 
obligation
imposed upon
 
the Executive
 
pursuant to
 
this Agreement;
 
provided, however,
 
that if
 
such failure
under clause (i) or (iii)
 
above is susceptible of cure, "Cause"
 
shall be deemed to exist
 
only after the
failure
 
has
 
remained
 
uncured
 
for
 
thirty
 
(30)
 
days
 
following
 
receipt
 
by
 
the
 
Executive
 
of
 
written
notice from the Bank of
 
the failure. Notwithstanding the foregoing,
 
if the Executive disagrees with
the
 
good
 
faith
 
determination
 
of
 
the
 
Bank
 
that
 
there
 
is
 
no
 
cure
 
after
 
the
 
3()-day
 
cure
 
period,
 
the
Executive may
 
request that
 
such determination
 
be submitted
 
to binding
 
arbitration in
 
accordance
with Section
 
20 hereof
 
(with each
 
party responsible
 
for its
 
own fees
 
and costs).
 
If the
 
Executive
makes such
 
a request
 
for arbitration,
 
the termination
 
of the
 
Executive shall
 
not become
 
effective
unless and until
 
it is upheld
 
by a final
 
decision issued through
 
such arbitration process;
 
provided,
that the Bank
 
shall have the
 
right, in its
 
sole discretion, to
 
relieve the
 
Executive of all
 
or any portion
of his
 
duties during
 
such arbitration
 
period pending
 
the arbitration
 
decision so
 
long as
 
the Bank
continues to pay and provide to the Executive
 
on a timely basis the compensation
 
and benefits that
it would otherwise owe to the Executive during such period under this Agreement.
 
3
(c)
Change in Control
. "Change in
 
Control" shall mean
 
(except as provided
 
below) the
occurrence of an event described in (i), (ii), (iii) or (iv) below:
(i)
 
Any person or group (within the meaning of Sections 13(d) and 14(d) of the
Securities
 
Exchange
 
Act
 
of
 
1934,
 
as
 
amended
 
(the
 
"Exchange
 
Act")),
 
other
 
than
 
the
 
Bank,
 
an
affiliate of
 
the Bank
 
or a
 
trustee or other
 
fiduciary holding
 
securities under an
 
employee benefit
plan of the Bank or a corporation owned directly
 
or indirectly by the stockholders of the Bank in
substantially the same
 
proportions as their
 
ownership of stock
 
of the Bank,
 
becomes the beneficial
owner (within
 
the meaning
 
of Rule
 
13(d)(3) under
 
the Exchange
 
Act), directly
 
or indirectly
 
(which
shall
 
include
 
securities
 
issuable
 
upon
 
conversion,
 
exchange
 
or
 
otherwise)
 
of
 
securities
representing 50% or more of
 
the combined voting power
 
of the Bank's then outstanding
 
securities
entitled generally to vote for the election of directors;
(ii)
 
Consummation of an agreement to merge
 
or consolidate with another entity
(other
 
than
 
a
 
majority-controlled
 
subsidiary
 
of
 
the
 
Bank)
 
unless
 
the
 
Bank's
 
stockholders
immediately
 
before
 
the
 
merger
 
or
 
consolidation
 
own
 
more
 
than
 
50%
 
of
 
the
 
combined
 
voting
power of
 
the resulting
 
entity's voting
 
securities (giving
 
effect to
 
the conversion
 
or exchange
 
of
securities
 
issued
 
in
 
the
 
merger
 
consolidation
 
to
 
the
 
other
 
entity
 
that
 
are
 
convertible
 
or
exchangeable for voting securities) entitled generally to vote for the election of directors;
(iii)
 
Consummation of an
 
agreement (including, without
 
limitation, an agreement
of liquidation) to
 
sell or otherwise dispose
 
of all or substantially
 
all of the
 
business or assets of
 
the
Bank (or a subsidiary thereof); or
(iv)
 
Individuals who,
 
as of
 
the date
 
hereof, constitute
 
the Board
 
of Directors
 
of
the
 
Bank
 
(the
 
"Incumbent
 
Board")
 
cease
 
for
 
any
 
reason
 
to
 
constitute
 
at
 
least
 
a
 
majority
 
of
 
the
Board, provided that
 
any person becoming
 
a director subsequent
 
to the date hereof
 
whose election
or
 
nomination
 
for
 
election
 
by
 
the
 
stockholders
 
is
 
approved
 
by
 
a
 
vote
 
of
 
at
 
least
 
a
 
majority
 
of
directors
 
then
 
constituting
 
the
 
Incumbent
 
Board
 
shall
 
be,
 
for
 
purposes
 
of
 
this
 
Agreement,
considered as though such person were a member of the Incumbent Board.
Notwithstanding the
 
foregoing, no
 
event shall
 
constitute a
 
Change in
 
Control unless
 
such
event shall also
 
constitute a change in
 
control as defined
 
in Section 409A of
 
the Code, as
 
such term
is hereinafter defined.
(d)
 
Code. "Code" shall mean the Internal Revenue Code of 1986, as amended.
(e)
 
Date
 
of
 
Termination.
 
"Date
 
of
 
Termination"
 
shall
 
mean
 
(i)
 
if
 
the
 
Executive's
employment is terminated for
 
Cause, the date on
 
which the Notice of
 
Termination is given, and (ii)
if the Executive's employment is terminated for any other
 
reason, the date specified in such Notice
of Termination.
(f)
 
Disability.
 
"Disability"
 
shall
 
mean
 
the
 
Executive
 
(i)
 
is
 
unable
 
to
 
engage
 
in
 
any
substantial gainful activity
 
by reason of
 
any medically determinable
 
physical or mental
 
impairment
which can be
 
expected to result
 
in death or
 
can be expected
 
to last for
 
a continuous period
 
of not
less
 
than
 
12
 
months,
 
or
 
(ii)
 
is,
 
by
 
reason
 
of
 
any
 
medically
 
determinable
 
physical
 
or
 
mental
impairment which
 
can be
 
expected to
 
result in
 
death or
 
can be
 
expected to
 
last for
 
a continuous
period of not
 
less than 12
 
months, receiving income
 
replacement benefits
 
for a period
 
of not less
than three months under an accident and health plan covering employees of the Employer.
(g)
 
Good
 
Reason.
 
Termination
 
by
 
the
 
Executive
 
of
 
the
 
Executive's
 
employment
 
for
"Good Reason" shall mean termination by the Executive based on:
 
4
(i)
 
any material
 
breach of
 
this Agreement
 
by the
 
Employer,
 
including without
limitation any of
 
the following: (A) a
 
material diminution in
 
the Executive's base compensation,
(B)
 
a
 
material
 
diminution
 
in
 
the
 
Executive's
 
authority,
 
duties
 
or
 
responsibilities,
 
or
 
(C)
 
any
requirement that
 
the Executive
 
report to
 
a corporate
 
officer or
 
employee of
 
the Bank
 
instead of
reporting directly to the President and Chief Executive Officer, other than from time to time with
respect to specified matters, or
(ii)
 
change
 
in
 
excess
 
of
 
twenty-five
 
(25)
 
miles
 
in
 
the
 
geographic
 
location
 
at
which the Executive must perform his services under this Agreement;
provided, however,
 
that prior
 
to any
 
termination of
 
employment for
 
Good Reason,
 
the Executive
must first provide written notice to the Bank
 
within ninety (90) days of the initial
 
existence of the
condition, describing the existence of
 
such condition, and the
 
Bank shall thereafter have
 
the right
to remedy the
 
condition within thirty
 
(30) days of
 
the date the
 
Bank received the
 
notice from the
Executive. If
 
the Bank
 
remedies the
 
condition within
 
such thirty
 
(30) day
 
cure period,
 
then no
 
Good
Reason shall
 
be deemed
 
to exist
 
with respect to
 
such condition.
 
If the Bank
 
does not
 
remedy the
condition
 
within
 
such
 
thirty
 
(30)
 
day
 
cure
 
period,
 
then
 
the
 
Executive
 
may
 
deliver
 
a
 
Notice
 
of
Termination
 
for Good Reason at
 
any time within sixty
 
(60) days following the
 
expiration of such
cure period.
(h)
 
Notice of
 
Termination.
 
Any purported
 
termination
 
of the
 
Executive's employment
by the Employer for any
 
reason, including without limitation
 
for Cause, Disability or Retirement,
or
 
by
 
the
 
Executive
 
for
 
any
 
reason,
 
including
 
without
 
limitation
 
for
 
Good
 
Reason,
 
shall
 
be
communicated
 
by
 
a
 
"Notice
 
of
 
Termination"
 
to
 
the
 
other
 
party
 
hereto.
 
For
 
purposes
 
of
 
this
Agreement, a
 
"Notice of
 
Termination"
 
shall mean
 
a dated
 
notice which
 
(i) indicates
 
the specific
termination provision
 
in this
 
Agreement relied
 
upon,
 
(ii) sets
 
forth in
 
reasonable detail
 
the facts
and circumstances claimed to provide
 
a basis for termination of
 
the Executive's employment under
the provision so indicated, (iii) specifies a Date of Termination,
 
which shall be not less than thirty
(30) nor more
 
than ninety (90)
 
days after such
 
Notice of Te
 
rmination is
 
given, except in
 
the case
of the termination of the Executive's
 
employment for Cause, which shall be effective
 
immediately,
and (iv) is given in the manner specified in Section 1 1 hereof.
(i)
 
Retirement.
 
"Retirement"
 
shall
 
mean
 
the
 
Executive's
 
voluntary
 
or
 
involuntary
termination of employment,
 
as applicable, upon
 
reaching at
 
least age 65,
 
but shall
 
not include an
involuntary termination for Cause.
2.
Te
rm of Employment.
(a)
 
The
 
Bank
 
hereby
 
employs
 
the
 
Executive
 
as
 
Senior
 
Vice
 
President
 
and
 
General
Counsel and the Executive
 
hereby accepts said
 
employment and agrees to
 
render such services to
the Employer
 
on the
 
terms
 
and conditions
 
set forth
 
in this
 
Agreement. The
 
term of
 
employment
under this Agreement shall be for three years
 
beginning on the Effective Date
 
(the "Initial Tern").
Not less than sixty (60) days prior to the second annual anniversary
 
of the Effective Date and each
annual anniversary thereafter,
 
the Board of Directors
 
of the Bank
 
shall consider and review
 
(with
appropriate
 
corporate
 
documentation
 
thereof,
 
and
 
after
 
taking
 
into
 
account
 
all
 
relevant
 
factors,
including
 
the
 
Executive's
 
performance
 
hereunder)
 
a
 
one-year
 
extension
 
of
 
the
 
tern
 
of
 
this
Agreement. If the Board of Directors approves such an extension, then the term of this Agreement
shall be
 
so extended
 
as of
 
the relevant
 
annual anniversary
 
of the
 
Effective Date
 
unless the
 
Executive
gives written notice to
 
the Employer of the
 
Executive's election not
 
to extend the
 
term, with such
written notice
 
to be given
 
not less than
 
sixty (60)
 
days prior
 
to any such
 
relevant annual
 
anniversary
of the
 
Effective Date.
 
If the
 
Board of
 
Directors elects
 
not to
 
extend the
 
tern, it
 
shall give
 
written
 
5
notice of such decision to the Executive as soon as the
 
decision is made but in no case no less than
sixty (60) days
 
prior to any such
 
annual anniversary of the
 
Effective Date. If any
 
party gives timely
notice that the
 
term will not
 
be extended as
 
of any annual
 
anniversary of the
 
Effective Date,
 
then
this Agreement and the rights and obligations
 
provided herein shall terminate at the conclusion
 
of
its remaining term, except to the extent set forth in Section 7. References herein to the term of this
Agreement shall refer both to the Initial Term and successive terms.
(b)
 
During
 
the
 
term
 
of
 
this
 
Agreement,
 
the
 
Executive
 
shall
 
perform
 
such
 
executive
services for the Bank as may be consistent with his titles and
 
from time to time assigned to him by
the Bank's Board of Directors and/or the President and Chief Executive Officer.
3.
 
Compensation and Benefits.
(a)
 
The Employer
 
shall compensate
 
and pay
 
the Executive
 
for his
 
services during
 
the
term of this
 
Agreement at a
 
minimum base salary
 
of $200,000 per
 
year ("Base Salary"),
 
which may
be increased from time to
 
time in such amounts as
 
may be determined by the
 
President and Chief
Executive Officer or the Board
 
of Directors of the Employer
 
and may not be decreased
 
without the
Executive's express written consent.
(b)
 
The
 
Bank
 
shall
 
pay
 
Executive
 
a
 
retention
 
bonus
 
(the
 
"Retention
 
Bonus")
 
in
 
the
amount of $150,000
 
in the first
 
payroll period following
 
August l, 2022;
 
provided, however,
 
that
in the event
 
that Executive
 
resigns Executive's
 
employment with
 
the Bank
 
without Good
 
Reason
or is terminated
 
by the Bank
 
for Cause prior
 
to August l,
 
2022, Executive shall
 
forfeit the Retention
Bonus in full.
 
The Bank
 
shall deduct
 
from the
 
Retention Bonus all
 
amounts required
 
to be deducted
or withheld under applicable law.
(c)
 
In addition to
 
his Base Salary,
 
the Executive shall
 
be entitled to
 
receive during the
term
 
of
 
this
 
Agreement
 
such
 
bonus
 
payments
 
("Bonus")
 
as
 
may
 
be
 
determined
 
by
 
the
 
Board
 
of
Directors of the Employer.
(d)
 
During the term
 
of this Agreement,
 
the Executive shall
 
be entitled to
 
participate in
and
 
receive
 
the
 
benefits
 
of
 
any
 
pension
 
or
 
other
 
retirement
 
benefit
 
plan,
 
profit
 
sharing,
 
stock
incentive,
 
or
 
other
 
plans,
 
benefits
 
and
 
privileges
 
given
 
to
 
employees
 
and
 
executives
 
of
 
the
Employer,
 
to
 
the
 
extent
 
commensurate
 
with
 
his
 
then
 
duties
 
and
 
responsibilities,
 
as
 
fixed
 
by
 
the
Board of Directors
 
of the
 
Bank. Notwithstanding anything
 
to the contrary
 
herein, for purposes
 
of
medical and dental insurance benefits offered to or provided by the Bank to the Executive, he will
be treated
 
as if
 
he were
 
an Executive
 
Vice
 
President of
 
the Bank.
 
The Bank
 
shall not
 
make any
changes in such
 
plans, benefits or privileges
 
which would adversely affect the
 
Executive's rights or
benefits thereunder,
 
unless such
 
change occurs
 
pursuant to
 
a program
 
applicable to
 
all executive
officers
 
of
 
the
 
Employer
 
and
 
does
 
not
 
result
 
in
 
a
 
proportionately
 
greater
 
adverse
 
change
 
in
 
the
rights of or
 
benefits to
 
the Executive
 
as compared
 
with any other
 
executive officer of
 
the Employer.
Nothing paid to the Executive under any plan or arrangement presently in
 
effect or made available
in the future
 
shall be deemed
 
to be in
 
lieu of the
 
salary payable
 
to the Executive
 
pursuant to Section
3(a) hereof.
(e)
 
During the term of this Agreement, the Executive shall be entitled
 
to four (4) weeks
of paid annual vacation,
 
on a calendar basis, to
 
be taken at such
 
time or times agreed
 
upon by the
Executive and
 
the President
 
and Chief
 
Executive Officer. In
 
addition, the
 
Executive shall
 
be entitled
to
 
six
 
(6)
 
days
 
of
 
personal/sick
 
leave
 
per
 
calendar
 
year.
 
The
 
Executive
 
shall
 
not
 
be
 
entitled
 
to
receive any
 
additional compensation
 
from the
 
Employer for
 
failure to
 
take a
 
vacation or
 
use his
personal/sick leave, nor shall the Executive be able to accumulate unused vacation time or unused
personal/sick leave from one year to the next, except to the
 
extent authorized by the President and
Chief Executive Officer.
 
6
(f)
 
The
 
Board
 
of
 
Directors
 
will
 
grant
 
to
 
the
 
Executive
 
(pursuant
 
to
 
a
 
written
 
grant
agreement)
 
non-qualified
 
stock
 
options
 
to
 
purchase
 
one
 
hundred
 
and
 
fifty
 
thousand
 
(150,000)
shares of common
 
stock of the
 
Bank (the "Option
 
Grant"), with an
 
exercise price per
 
share equal
to the Fair
 
Market Value, as such term is defined in
 
the Bank's Amended and
 
Restated 2015 Equity
Incentive Plan (the "2015 Equity Incentive
 
Plan"), with such options to be designed
 
in a manner to
cause them to be exempt from Section 409A of the Internal Revenue Code under Section 1.409A-
1 (b)(5)(i)(A) of
 
the United States Department
 
of the Treasury Regulations. This
 
grant shall vest as
follows: options
 
covering 50,000
 
shares of
 
common stock
 
of the
 
Bank shall vest
 
on August
 
1, 2021;
options covering 50,000 shares of common stock of the Bank shall vest on August 1,
2022; and
 
options covering
 
50,000 shares
 
of common
 
stock of
 
the Bank
 
shall vest
 
on August
 
1,
2023. Options may be exercised after
 
they become vested and prior to
 
the expiration of the term of
the options, provided such exercise does not constitute
 
an "ownership change" for the Bank within
the meaning
 
of Section
 
382 of
 
the Code.
 
In addition
 
to the
 
other vesting
 
dates/events set forth
 
in
such grant, such Option Grant shall provide
 
for accelerated vesting upon a Change in Control. The
other terms of the Option Grant award shall comply with the Bank's 2015 Equity Incentive Plan.
(g)
 
Executive
 
shall
 
receive
 
an
 
automobile
 
allowance
 
at
 
the
 
rate
 
of
 
$750
 
per
 
month
during
 
the
 
term
 
of
 
this
 
Agreement.
 
This
 
transportation
 
allowance
 
will
 
serve
 
to
 
cover
 
all
transportation
 
expenses
 
of
 
Executive
 
in
 
the
 
South
 
Florida
 
area
 
including,
 
but
 
not
 
limited
 
to,
transportation, gas and car maintenance.
4.
Expenses. The Employer shall
 
reimburse the Executive or
 
otherwise provide for or
pay for all
 
reasonable expenses incurred
 
by the Executive
 
in furtherance of
 
or in connection
 
with
the
 
business
 
of
 
the
 
Employer,
 
including,
 
but
 
not
 
by
 
way
 
of
 
limitation,
 
travel
 
expenses,
 
and
 
all
reasonable entertainment expenses,
 
subject to such
 
reasonable documentation and
 
other limitations
as may be established by the Board of
 
Directors of the Bank. If such expenses
 
are paid in the first
instance
 
by
 
the
 
Executive,
 
the
 
Employer
 
shall
 
reimburse
 
the
 
Executive
 
therefor.
 
Such
reimbursement shall be paid promptly by the
 
Bank and in any event no
 
later than March 15
th
of the
year immediately following the year in which such expenses were incurred.
5.
 
Termination.
(a)
 
The Employer shall have the right, at any time upon prior Notice of Termination, to
terminate
 
the
 
Executive's
 
employment
 
hereunder
 
for
 
any
 
reason,
 
including,
 
without
 
limitation,
termination for Cause, Disability or Retirement, and the Executive shall have the right, upon prior
Notice of Termination, to terminate his employment hereunder for any reason.
(b)
 
In the event
 
that (i) the
 
Executive's employment is
 
terminated by the
 
Employer for
Cause
 
or
 
(ii)
 
the
 
Executive
 
terminates
 
his
 
employment
 
hereunder
 
other
 
than
 
for
 
Disability,
Retirement, death or
 
Good Reason,
 
the Executive
 
shall have
 
no right
 
pursuant to
 
this Agreement
to compensation or other benefits for any period after the applicable Date of Termination.
(c)
 
In the event
 
that the Executive's
 
employment is terminated
 
as a result
 
of Disability
or Retirement,
 
the Executive
 
shall have
 
no right
 
pursuant to
 
this Agreement
 
to compensation
 
or
other benefits for any period after the applicable Date of Termination.
(d)
 
In the event
 
that the Executive's
 
employment is
 
terminated due to
 
death during
 
the
term
 
of
 
this
 
Agreement,
 
the
 
Executive
 
shall
 
have
 
no
 
right
 
pursuant
 
to
 
this
 
Agreement
 
for
compensation or
 
other benefits
 
for any
 
period after
 
the applicable
 
Date of
 
Termination
 
except to
pay to the
 
Executive's designated beneficiary
 
(or estate or
 
his personal representative,
 
as the case
may
 
be,
 
if
 
no
 
beneficiary
 
has
 
been
 
designated)
 
(i)
 
that
 
portion,
 
if
 
any,
 
of
 
the
 
Base
 
Salary
 
that
 
7
remains unpaid for the
 
period prior to the
 
date of his death,
 
(ii) the pro rata
 
portion of the Retention
Bonus earned as of the
 
Date of Termination to the extent not yet fully
 
vested and paid prior thereto
and (iii) a lump sum cash payment equal to
 
one-half (1/2) of the Executive's Base Salary,
 
plus the
continuation
 
of
 
medical
 
and
 
dental
 
benefits
 
for
 
his
 
then
 
spouse
 
and/or
 
dependents at
 
the
 
Bank's
expense for a
 
period of six
 
(6) months after
 
the date of
 
his death. Upon
 
the Executive's death,
 
he
shall vest in
 
any outstanding unvested
 
options granted under
 
the Option Award pursuant to Section
3(f) (and the terms of the awards granted under Section 3(f) shall so provide).
(e)
 
In
 
the
 
event
 
that
 
prior
 
to
 
a
 
Change
 
in
 
Control
 
the
 
Executive's
 
employment
 
is
terminated by
 
(i) the
 
Employer for
 
other than
 
Cause, Disability, Retirement or
 
the Executive's
 
death
during the
 
term of
 
this Agreement
 
or (ii)
 
the Executive
 
for Good
 
Reason during
 
the term
 
of this
Agreement, then
 
the Employer
 
shall, in
 
consideration of
 
the Executive's
 
agreements in
 
Section 7
below and subject
 
to the provisions
 
of Sections 5(g),
 
5(h), 6, 18
 
and 19 hereof,
 
if applicable, pay
to the Executive
 
a cash severance
 
amount equal
 
to the aggregate
 
of (A) 50%
 
of the
 
Executive's then
current annual Base Salary,
 
(B) the pro
 
rata portion of
 
the Retention Bonus
 
earned as of the
 
Date
of Termination to the extent not yet fully vested and paid prior thereto and (C)
 
the amount accrued
with respect to the Bonus for the year in which the termination occurs (the "Severance Payment").
The Severance Payment shall be
 
paid in two installments. The first
 
payment consisting of 50% of
the Severance Payment will be paid in
 
a lump sum thirty (30) days following
 
the later of the Date
of Termination
 
or the expiration of
 
the revocation period provided
 
for in the general release
 
to be
executed by
 
the Executive
 
pursuant to
 
Section 5(g)
 
below with
 
the remaining
 
50% of
 
the Severance
Payment to be paid in a
 
lump sum within ten (10) days
 
after the expiration of the Restricted
 
Period
as
 
set
 
forth
 
in
 
Section
 
7
 
hereof.
 
In
 
addition,
 
the
 
Executive
 
shall
 
receive
 
continued
 
medical
 
and
dental benefits as provided
 
by the Bank from
 
time to time for
 
its employees, at the
 
Bank's expense,
for
 
the
 
period
 
of
 
time
 
equal
 
to
 
the
 
shorter
 
of
 
one
 
(1)
 
year
 
or
 
the
 
maximum
 
period
 
of
 
COBRA
continuation
 
coverage
 
provided
 
under
 
Section
 
4980B(f)
 
of
 
the
 
Code
 
(with
 
such
 
coverage
 
to
 
be
treated
 
as
 
COBRA
 
coverage).
 
With
 
respect
 
to
 
the
 
Bank's
 
payment
 
of
 
Executive's
 
COBRA
expenses, the Bank will pay to
 
the Executive an additional amount
 
such that after payment by the
Executive of all applicable local,
 
state and federal income
 
and payroll taxes imposed
 
on him with
respect to
 
such additional
 
amount, the
 
Executive retains
 
an amount
 
equal to
 
all applicable
 
local,
state
 
and
 
federal
 
income
 
and
 
payroll
 
taxes
 
imposed
 
upon
 
him
 
with
 
respect
 
to
 
such
 
COBRA
payments. Such payment shall
 
be made on or
 
before March 15
th
following the close of
 
the calendar
year in
 
which the
 
COBRA payments
 
were made.
 
Except as
 
provided herein,
 
the Severance
 
Payment
shall be
 
in lieu
 
of, and
 
not in
 
addition to,
 
any Base Salary
 
or other
 
compensation or
 
benefits that
would
 
have
 
been
 
paid
 
under
 
Sections
 
3(a),
 
3(b),
 
3(c),
 
3(d)
 
and
 
3(e)
 
above
 
in
 
the
 
absence
 
of
 
a
termination of employment,
 
and the Executive shall
 
have no rights
 
pursuant to this
 
Agreement to
any Base Salary or other benefits for any period after the applicable Date of Termination.
(D In
 
the event
 
that concurrently
 
with or
 
within twelve
 
(12) months
 
subsequent to
 
a Change
in
 
Control
 
the
 
Executive's
 
employment
 
is
 
terminated
 
by
 
(i)
 
the
 
Employer
 
for
 
other
 
than
 
Cause,
Disability,
 
Retirement
 
or
 
the
 
Executive's
 
death
 
during
 
the
 
term
 
of
 
this
 
Agreement
 
or
 
(ii)
 
the
Executive
 
for
 
Good
 
Reason
 
during
 
the
 
term
 
of
 
this
 
Agreement,
 
then
 
the
 
Employer
 
shall,
 
in
consideration of
 
the Executive's
 
agreements in
 
Section
 
7 below
 
and subject
 
to the
 
provisions of
Sections 5(g),
 
5(h), 6,
 
18 and
 
19 hereof,
 
if applicable,
 
pay to
 
the Executive
 
a cash
 
severance amount
equal to the aggregate
 
of (A) one (1) times
 
the Executive's then current annual
 
Base Salary and (B)
the full amount
 
of the Retention
 
Bonus to the
 
extent the Retention
 
Bonus has not yet
 
fully vested
and
 
been
 
paid
 
prior
 
to
 
the
 
Date
 
of
 
Termination
 
(the
 
"Enhanced
 
Severance
 
Payment").
 
The
Enhanced Severance
 
Payment
 
shall be
 
paid in
 
two installments.
 
The first
 
payment consisting
 
of
50% of the Enhanced
 
Severance Payment will be
 
paid in a lump
 
sum thirty (30) days
 
following the
later
 
of
 
the
 
Date
 
of
 
Termination
 
or
 
the
 
expiration
 
of
 
the
 
revocation
 
period
 
provided
 
for
 
in
 
the
general release to be executed by the Executive pursuant to
 
Section 5(g) below with the remaining
50% of the Enhanced
 
Severance Payment to
 
be paid in
 
a lump sum
 
within ten (10)
 
days after the
 
8
expiration of the Restricted Period as set forth in Section 7 hereof. In addition, the Executive shall
receive continued
 
medical and
 
dental benefits
 
as provided
 
by the
 
Bank from
 
time to
 
time for
 
its
employees, at
 
the Bank's
 
expense, for
 
the period
 
of time
 
equal to
 
the shorter
 
of eighteen
 
(18) months
or the maximum period of COBRA continuation coverage provided
 
under Section 4980B(f) of the
Code (with such coverage to be treated as COBRA coverage). With respect to the Bank's payment
of Executive's
 
COBRA expenses,
 
the Bank
 
will pay
 
to the
 
Executive an
 
additional amount
 
such
that after
 
payment by
 
the Executive
 
of all
 
applicable local,
 
state and
 
federal income
 
and payroll
taxes
 
imposed
 
on
 
him
 
with
 
respect
 
to
 
such
 
additional
 
amount,
 
the
 
Executive
 
retains
 
an
 
amount
equal to
 
all applicable
 
local,
 
state and
 
federal
 
income and
 
payroll taxes
 
imposed
 
upon him
 
with
respect to such COBRA payments.
 
Such payment shall be made
 
on or before March 15
th
following
the
 
close
 
of
 
the
 
calendar
 
year
 
in
 
which
 
the
 
COBRA
 
payments
 
were
 
made.
 
Except
 
as
 
provided
herein, the Enhanced
 
Severance Payment shall
 
be in lieu of,
 
and not in addition
 
to, any Base
 
Salary
or other compensation
 
or benefits that
 
would have been
 
paid under Sections
 
3(a), 3(b), 3(c),
 
3(d)
and 3(e)
 
above in
 
the absence
 
of a
 
termination of
 
employment, and
 
the Executive
 
shall have
 
no
rights
 
pursuant
 
to
 
this
 
Agreement
 
to
 
any
 
Base
 
Salary
 
or
 
other
 
benefits
 
for
 
any
 
period
 
after
 
the
applicable Date of Termination.
(g)
 
The Executive's right to receive the severance benefits set forth
 
in Sections 5(e) and
5(f) above shall be conditioned upon the Executive's execution of a general release which releases
the Employer and their directors,
 
officers and employees
 
from any claims
 
that the Executive may
have under various laws and regulations and the expiration of any right
 
the Executive may have to
revoke such
 
general release,
 
with such
 
revocation right
 
not being
 
exercised. If
 
either the
 
time period
for paying the severance set forth in Sections 5(e) or 5(f), as applicable, or the time period that the
Executive has
 
to consider
 
the terns
 
of the
 
general release
 
(including any
 
revocation period
 
under
such release) commences
 
in one calendar year
 
and ends in
 
the succeeding calendar
 
year, then
 
the
severance payment set forth in
 
Sections 5(e) or 5(f), as
 
applicable, above shall not be
 
paid until the
succeeding calendar year.
(h)
 
If,
 
prior
 
to
 
the
 
Executive's
 
receipt
 
of
 
the
 
Severance
 
Payment
 
or
 
the
 
Enhanced
Severance Payment set forth
 
in Sections 5(e)
 
or 5(f), as applicable,
 
respectively,
 
above due to his
termination of employment (including termination for Good Reason) and at
 
such time the Bank is
deemed to be in 'troubled condition" as defined in 12 C.F.R. 5303.101 (c), it is determined that the
Executive (i) committed
 
any fraudulent act
 
or omission, breach
 
of trust or
 
fiduciary duty, or insider
abuse with regard to the Employer that has had or is likely to have a material adverse effect on the
Employer, (ii) is
 
substantially responsible for the
 
insolvency of, the
 
appointment of a conservator
or receiver
 
for,
 
or the
 
troubled condition,
 
as defined
 
by applicable
 
regulations of
 
the appropriate
federal banking
 
agency, of the Employer,
 
(iii) has
 
materially violated
 
any applicable
 
federal or
 
state
banking law
 
or regulation
 
that has
 
had or
 
is likely
 
to have
 
a material
 
adverse effect
 
on the
 
Employer,
or (iv) has
 
violated or conspired
 
to violate Sections
 
215, 656, 657,
 
1005, 1006, 1007,
 
1014, 1302
or 1344
 
of Title
 
18 of
 
the United
 
State code,
 
or Sections
 
1341 or
 
1343 of
 
Title
 
18 affecting
 
the
Bank, then the Severance
 
Payment or the Enhanced
 
Severance Payment, as applicable,
 
shall not be
provided to the
 
Executive. If it is
 
determined after the Executive
 
receives the Severance
 
Payment
or the Enhanced
 
Severance Payment, as
 
applicable, that any
 
of the matters
 
set forth in
 
clauses (i)
through (iv) of this Section 5(h) are applicable to the Executive, then
 
the Executive shall promptly
(and in
 
any event
 
within ten
 
(10) business
 
days following
 
written notice
 
to the
 
Executive) return
an amount equal to the Severance Payment
 
or the Enhanced Severance Payment, as applicable,
 
to
the Employer in immediately available funds.
6.
Limitation
 
of
 
Benefits
 
under
 
Certain
 
Circumstances.
 
If
 
the
 
payment
 
pursuant
 
to
Section hereof, either alone or together with other payments and benefits which
 
the Executive has
the
 
right
 
to
 
receive
 
from
 
the
 
Employer,
 
would
 
constitute
 
a
 
"parachute
 
payment"
 
under
 
Section
280G of the Code, then the amount payable by the Employer pursuant to Section 5(d) hereof shall
 
9
be reduced by the minimum amount necessary
 
to result in no portion of the amount payable
 
by the
Employer under
 
Section 5(f)
 
being non-deductible
 
to the
 
Employer pursuant
 
to Section
 
280G of
the Code and subject to
 
the excise tax imposed under
 
Section 4999 of the Code.
 
The determination
of any reduction in the
 
amount payable pursuant to Section 5(d)
 
shall be based upon the opinion
 
of
independent
 
tax
 
counsel
 
selected
 
by
 
the
 
Employer
 
and
 
paid
 
for
 
by
 
the
 
Employer.
 
Such
 
counsel
shall promptly prepare
 
the foregoing opinion, but
 
in no event
 
later than ten (10)
 
days from the
 
Date
of Termination,
 
and may use such
 
actuaries as such counsel
 
deems necessary or advisable
 
for the
purpose. Nothing contained herein shall result in a reduction of any payments or benefits to which
the Executive
 
may be entitled
 
upon termination of
 
employment under any
 
circumstances other than
as specified in this Section 6, or a reduction in the payment specified in Section 5(f) below zero.
7.
 
Restrictive Covenants
(a)
Trade Secrets.
 
The Executive
 
acknowledges that
 
he has
 
had, and
 
will have,
 
access
to
 
confidential
 
information
 
of
 
the
 
Bank
 
(including,
 
but
 
not
 
limited
 
to,
 
current
 
and
 
prospective
confidential
 
know-how,
 
customer
 
lists,
 
marketing
 
plans,
 
business
 
plans,
 
financial
 
and
 
pricing
information, and information regarding
 
acquisitions, mergers and/or joint
 
ventures) concerning the
business, customers,
 
contacts, prospects,
 
and assets
 
of the
 
Bank that
 
is unique,
 
valuable and
 
not
generally known outside the Bank, and that was
 
obtained from the Bank or which was
 
learned as a
result of
 
the
 
performance
 
of services
 
by the
 
Executive on
 
behalf of
 
the
 
Bank ("Trade
 
Secrets").
Trade Secrets
 
shall not include any
 
information that: (i) is
 
now, or
 
hereafter becomes, through no
act or failure
 
to act on
 
the part of
 
the Executive that constitutes
 
a breach of
 
this Section 7, generally
known or available
 
to the public;
 
(ii) is known
 
to the Executive
 
at the time
 
such information was
obtained
 
from
 
the
 
Bank;
 
(iii)
 
is
 
hereafter
 
furnished
 
without
 
restriction
 
on
 
disclosure
 
to
 
the
Executive by
 
a
 
third
 
party,
 
other
 
than
 
an
 
employee or
 
agent
 
of
 
the
 
Bank,
 
who
 
is
 
not
 
under
 
any
obligation of confidentiality to the Bank or an Affiliate; (iv) is disclosed with the written approval
of
 
the
 
Bank;
 
or
 
(v)
 
is
 
required
 
to
 
be
 
disclosed
 
or
 
provided
 
by
 
law,
 
court
 
order,
 
order
 
of
 
any
regulatory agency
 
having jurisdiction or
 
similar compulsion,
 
including pursuant
 
to or in
 
connection
with any
 
legal proceeding
 
involving the
 
parties hereto;
 
provided however, that
 
such disclosure
 
shall
be
 
limited
 
to
 
the
 
extent
 
so
 
required
 
or
 
compelled;
 
and
 
provided
 
further,
 
however,
 
that
 
if
 
the
Executive is
 
required to
 
disclose such
 
confidential information,
 
he shall
 
give the
 
Bank notice
 
of
such
 
disclosure
 
and
 
cooperate
 
in
 
seeking
 
suitable
 
protections.
 
Other
 
than
 
in
 
the
 
course
 
of
performing services
 
for
 
the
 
Bank, the
 
Executive
 
will
 
not, at
 
any time,
 
directly or
 
indirectly use,
divulge, furnish or
 
make accessible to
 
any person any
 
Trade Secrets, but instead
 
will keep all
 
Trade
Secrets strictly and
 
absolutely confidential. The Executive
 
will deliver promptly to
 
the Bank, at
 
the
termination of
 
his employment
 
or at
 
any other
 
time at
 
the request
 
of the
 
Employer, without retaining
any copies,
 
all documents
 
and other
 
materials in
 
his possession
 
relating, directly
 
or indirectly,
 
to
any Trade Secrets.
(b)
Non-Competition. If
 
the Executive's
 
employment is
 
terminated during
 
the term
 
of
this Agreement for Cause or
 
without Cause, before or after
 
a Change in Control, or
 
the Executive
terminates his employment
 
hereunder other than for
 
Disability during the
 
term of the Agreement,
then for a period of twelve (12)
 
months after termination of employment (the "Restricted Period"),
the Executive
 
will
 
not, directly
 
or indirectly,
 
(i) become
 
a director,
 
officer,
 
employee, principal,
agent, shareholder, consultant or independent contractor
 
of any insured depository institution,
 
trust
company or parent
 
holding company of
 
any such institution
 
or company or
 
other entity engaging
in the banking business which has an office in the State of Florida ("Competing Business"); (ii) as
agent
 
or
 
principal,
 
carrying
 
on
 
or
 
engaging
 
in
 
any
 
activities
 
or
 
negotiations
 
with
 
respect
 
to
 
the
acquisition
 
or
 
disposition
 
of
 
a
 
Competing
 
Business;
 
(iii)
 
extending
 
credit
 
for
 
the
 
purpose
 
of
establishing or operating a
 
Competing Business; (iv) lending
 
or allowing the Executive's
 
name or
reputation to
 
be used
 
in a
 
Competing Business;
 
and (v)
 
otherwise allowing
 
the Executive's
 
skill,
knowledge
 
or
 
experience
 
to
 
be
 
used
 
in
 
a
 
Competing
 
Business.
 
Notwithstanding
 
the
 
foregoing,
 
10
nothing
 
in
 
this
 
Agreement
 
shall
 
prevent
 
the
 
Executive
 
from
 
owning
 
for
 
passive
 
investment
purposes not
 
intended to
 
circumvent this
 
Agreement, less
 
than five
 
percent
 
(5%) of
 
the publicly
traded voting
 
securities of
 
any company
 
engaged in
 
the banking,
 
financial services
 
or other
 
business
similar to
 
or competitive
 
with the
 
Employer (so
 
long as
 
the Executive
 
has no
 
power to
 
manage,
operate,
 
advise,
 
consult
 
with
 
or
 
control
 
the
 
competing
 
enterprise
 
and
 
no
 
power,
 
alone
 
or
 
in
conjunction with
 
other affiliated
 
parties, to
 
select a
 
director,
 
manager,
 
general partner,
 
or similar
governing
 
official
 
of
 
the
 
competing
 
enterprise
 
other
 
than
 
in
 
connection
 
with
 
the
 
normal
 
and
customary
 
voting
 
powers
 
afforded
 
the
 
Executive
 
in
 
connection
 
with
 
any
 
permissible
 
equity
ownership).
(c)
Non-Solicitation
 
of
 
Employees.
 
During
 
the
 
Restricted
 
Period,
 
without
 
the
 
written
consent of
 
the Bank, the
 
Executive shall
 
not, directly or
 
indirectly, solicit, induce or
 
hire, or
 
attempt
to solicit,
 
induce or
 
hire, any
 
current employee
 
of the
 
Employer,
 
or any
 
individual who
 
becomes
an employee
 
during the
 
Restricted Period,
 
to leave
 
his or
 
her employment
 
with the
 
Employer or
join
 
or
 
become
 
affiliated
 
with
 
any
 
other
 
business
 
or
 
entity,
 
or
 
in
 
any
 
way
 
interfere
 
with
 
the
employment relationship between any employee and the Employer.
(d)
Non-Solicitation
 
of
 
Customers.
 
During
 
the
 
Restricted
 
Period,
 
without
 
the
 
written
consent of the Bank, the
 
Executive shall not, directly
 
or indirectly,
 
solicit or induce, or
 
attempt to
solicit
 
or
 
induce,
 
any
 
customer,
 
any
 
person
 
being
 
then
 
solicited
 
by
 
the
 
Bank
 
to
 
be
 
a
 
customer,
lender,
 
supplier,
 
licensee,
 
licensor
 
or
 
other
 
business
 
relation
 
of
 
the
 
Employer
 
to
 
terminate
 
its
relationship or
 
contract with
 
the Employer,
 
to cease
 
doing business
 
with the Employer,
 
or in
 
any
way
 
interfere
 
with
 
the
 
relationship
 
between
 
any
 
such
 
customer,
 
lender,
 
supplier,
 
licensee
 
or
business relation
 
and the
 
Employer
 
(including making
 
any negative
 
or derogatory
 
statements
 
or
communications concerning the Employer or its directors, officers or employees).
(e)
 
Intellectual
 
Property.
 
Executive
 
will
 
disclose
 
to
 
Employer
 
all
 
work,
 
products
including ideas,
 
inventions, literary
 
property,
 
music, lyrics,
 
scripts, themes,
 
slogans, titles,
 
copy,
art and
 
any other
 
relevant material
 
which could
 
reasonably be
 
used by
 
Employer or
 
any of
 
its clients
(herein collectively
 
called "Intellectual
 
Property") which
 
he may
 
create any
 
time during
 
the term
of employment, whether created
 
during or after working
 
hours. Employer and Executive
 
agree that
all
 
Intellectual
 
Property
 
shall
 
be
 
deemed
 
to
 
be
 
"works
 
made
 
for
 
hire"
 
and
 
the
 
sole
 
property
 
of
Employer.
 
Executive
 
agrees
 
to
 
execute
 
and
 
deliver
 
all
 
documents
 
which
 
Employer
 
may
 
deem
necessary or advisable
 
in order to confirm
 
such ownership or to
 
register Intellectual Property
 
in the
name of Employer or any of its clients in the United States and all foreign countries.
(f)
 
Non-Disparagement.
 
The
 
Executive
 
agrees
 
that
 
he
 
shall
 
not
 
make,
 
or
 
cause
 
to
 
be
made, any disparaging or critical
 
remarks, comments or statements about
 
or against the Bank or
 
its
subsidiaries or affiliates
 
or any director,
 
officer,
 
employee or customer of
 
any such entities at any
time in
 
the future,
 
except
 
for any
 
statements by
 
him
 
made pursuant
 
to lawful
 
subpoena or
 
legal
process. Executive acknowledges that the Employer's reputation and image in the market is
 
one of
its principal assets and that Employer has expended substantial time, effort and money in building
this reputation and image and that, accordingly,
 
any action or comment by the Executive which
 
is
damaging to
 
or in
 
any way
 
diminishes such
 
image or
 
reputation will
 
cause Employer
 
irreparable
injury.
(g)
 
Irreparable Harm. The Executive acknowledges that: (i) the Executive's
 
compliance
with Section 7 of this Agreement is necessary to preserve and protect the proprietary rights, Trade
Secrets, and the goodwill of
 
the Employer as a going concern,
 
and (ii) any failure by
 
the Executive
to comply with the
 
provisions of this Agreement
 
will result in irreparable
 
and continuing injury for
which there will be
 
no adequate remedy at
 
law. In the event that the Executive
 
fails to comply with
 
11
the terms and conditions
 
of this Agreement, the
 
obligations of the
 
Employer to pay the
 
severance
benefits set
 
forth in
 
Section 5
 
shall cease,
 
and the
 
Employer will
 
be entitled,
 
in addition
 
to other
relief that may be proper, to all types of equitable relief (including, but not limited to, the issuance
of an
 
injunction and/or
 
temporary restraining
 
order and
 
the recoupment
 
of any
 
severance previously
paid) that
 
may be
 
necessary to
 
cause the
 
Executive to
 
comply with
 
this Agreement,
 
to restore
 
to
the Employer their property, and to make the Employer whole.
(h)
Survival
. The provisions set
 
forth in this Section 7
 
shall survive the termination of
this Agreement.
(i)
 
Scope Limitations. If the scope, period
 
of time or area of restriction specified in this
Section 7
 
are or
 
would be
 
judged to
 
be unreasonable
 
in any
 
court proceeding,
 
then the
 
period of
time, scope
 
or area
 
of restriction
 
will be
 
reduced or
 
limited in
 
the manner
 
and to
 
the extent
 
necessary
to make the restriction
 
reasonable, so that the
 
restriction may be enforced
 
in those areas, during the
period of time and in the scope that are or would be judged to be reasonable.
8.
 
Mitigation; Exclusivity of Benefits.
(a)
 
The Executive
 
shall not be
 
required to
 
mitigate the amount
 
of any
 
benefits hereunder
by seeking other
 
employment or otherwise,
 
nor shall the
 
amount of any
 
such benefits be
 
reduced
by any compensation earned
 
by the Executive as
 
a result of employment by
 
another employer after
the Date of Termination or otherwise.
(b)
 
The specific
 
arrangements referred
 
to herein
 
are not
 
intended to
 
exclude any
 
other
benefits
 
which
 
may
 
be
 
available
 
to
 
the
 
Executive
 
upon
 
a
 
termination
 
of
 
employment
 
with
 
the
Employer pursuant to employee benefit plans of the Employer or otherwise.
9.
Withholding.
 
All payments
 
required to
 
be made
 
by the
 
Employer hereunder
 
to the
Executive
 
shall
 
be
 
subject
 
to
 
the
 
withholding
 
of
 
such
 
amounts,
 
if
 
any,
 
relating
 
to
 
tax
 
and
 
other
payroll deductions as the Employer may reasonably determine should be withheld pursuant to any
applicable law or regulation.
10.
Assignability.
 
The Bank
 
may assign
 
this Agreement
 
and its
 
rights and
 
obligations
hereunder in whole, but not in part, to any corporation, bank or other entity with
 
or into which the
Bank may hereafter merge or consolidate or to which the Bank may transfer all or
 
substantially all
of its assets, if in
 
any such case said corporation,
 
bank or other entity shall
 
by operation of law or
expressly in
 
writing assume
 
all obligations
 
of
 
the
 
Employer hereunder
 
as
 
fully
 
as if
 
it
 
had been
originally made
 
a
 
party
 
hereto, but
 
may
 
not
 
otherwise
 
assign this
 
Agreement
 
or their
 
rights and
obligations hereunder.
 
The Executive
 
may not
 
assign or
 
transfer this
 
Agreement or
 
any rights
 
or
obligations hereunder.
11.
Notice. For
 
the purposes
 
of this
 
Agreement, notices
 
and all
 
other communications
provided for
 
in this
 
Agreement shall
 
be in
 
writing and
 
shall be
 
deemed to
 
have been
 
duly given
when delivered or mailed by certified or registered mail, return receipt requested,
 
postage prepaid,
addressed to the respective addresses set forth below:
 
To the Bank:
 
President and Chief Executive Officer
U.S. Century Bank
2301 N.W.
 
87
th
Avenue Doral,
Florida 33172
exhibit105p11i1 exhibit105p11i0 exhibit105p11i2
 
12
 
To the Executive:
 
Jalal "Jay" Shehadeh
At
 
the
 
address
 
last
 
appearing
 
on
 
the
personnel records of the Employer
12.
Amendment; Waiver.
 
No provisions of this Agreement may be modified, waived or
discharged
 
unless
 
such
 
waiver,
 
modification
 
or
 
discharge
 
is
 
agreed
 
to
 
in
 
writing
 
signed
 
by
 
the
Executive and such officer or officers as may be specifically designated by the Board of Directors
of the Employer
 
to sign on
 
their behalf. No
 
waiver by any
 
party hereto at
 
any time of
 
any breach
by any other party hereto
 
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.
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.
14.
Nature of
 
Obligations. Nothing
 
contained herein
 
shall create
 
or require
 
the Employer
to create a
 
trust of any
 
kind to fund any
 
benefits which may be
 
payable hereunder, and to the
 
extent
that the
 
Executive acquires
 
a right
 
to receive
 
benefits from
 
the Employer
 
hereunder, such right
 
shall
be no greater than the right of any unsecured general creditor of the Employer.
15.
Headings.
 
The
 
section
 
headings
 
contained
 
in
 
this
 
Agreement
 
are
 
for
 
reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
16.
Validity.
 
The invalidity or unenforceability
 
of any provision of
 
this Agreement shall
not
 
affect
 
the
 
validity
 
or
 
enforceability
 
of
 
any
 
other
 
provisions
 
of
 
this
 
Agreement,
 
which
 
shall
remain in full force and effect.
17.
Counterparts. This
 
Agreement may
 
be executed
 
in one
 
or more
 
counterparts, each
of which
 
shall be
 
deemed to
 
be an
 
original but
 
all of
 
which together
 
will
 
constitute one
 
and the
same instrument.
18.
Regulatory
 
Actions.
 
The
 
following
 
provisions
 
shall
 
be
 
applicable
 
to
 
the
 
parties
hereto or
 
any successor
 
thereto, and
 
shall be
 
controlling in
 
the event
 
of a
 
conflict with
 
any other
provision of this Agreement, including without limitation Section 5 hereof.
If
 
the
 
Executive
 
is
 
suspended
 
from
 
office
 
and/or
 
temporarily
 
prohibited
 
from
participating in the conduct of the Bank's
 
affairs pursuant to notice served under Section 8(e)(3)
 
or
Section
 
of
 
the
 
Federal Deposit
 
Insurance Act
 
U.S.C.
 
and
 
1818(g)(1)),
the Bank's
 
obligations under
 
this Agreement
 
shall be
 
suspended as
 
of the
 
date of
 
service, unless
stayed by appropriate proceedings. If
 
the charges in the notice are
 
dismissed, the Bank will: (i)
 
pay
the Executive all or part of
 
the compensation withheld while its
 
obligations under this Agreement
were suspended,
 
and (ii)
 
reinstate (in
 
whole or
 
in part)
 
any of
 
its obligations
 
which were
 
suspended.
(b)
 
If
 
the
 
Executive
 
is
 
removed
 
from
 
office
 
and/or
 
permanently
 
prohibited
 
from
participating in
 
the conduct
 
of the
 
Bank's affairs by
 
an order
 
issued under
 
Section 8(e)(4)
 
or Section
8(g)(1)
 
of
 
the
 
FDIA
 
(12
 
U.S.C.
 
1818(e)(4)
 
and
 
(g)(l)),
 
all
 
obligations
 
of
 
the
 
Bank
 
under
 
this
Agreement shall terminate
 
as of the
 
effective date
 
of the order,
 
but vested rights
 
of the Executive
and the Bank as of the date of termination shall not be affected.
exhibit105p12i1 exhibit105p12i0
 
13
If the Bank is
 
in default, as
 
defined in Section
 
3(x)(1) of the
 
FDIA (12 U.S.C.
all obligations
 
under this Agreement
 
shall terminate as
 
of the date
 
of default,
 
but vested rights
 
of
the Executive and the Bank as of the date of termination shall not be affected.
19. Regulatory Prohibition.
 
Notwithstanding any other
 
provision of this
 
Agreement to the
contrary, any payments made
 
to the
 
Executive pursuant
 
to this
 
Agreement, or
 
otherwise, are
 
subject
to and
 
conditioned upon
 
their compliance
 
with Section
 
18(k) of
 
the FDIA
 
(12 U.S.C.
 
S1828(k))
and 12 C.F.R. Part 359.
20, Arbitration. Any
 
controversy or claim
 
arising out ofor relating
 
to this Agreement,
 
or the
breach thereof, shall be settled by arbitration
 
before a single arbitrator in accordance with
 
the rules
then
 
existing
 
under
 
the
 
Employment
 
Dispute
 
Resolution
 
Rules
 
of
 
the
 
American
 
Arbitration
Association ("AAA") conducted
 
at the district
 
office of the
 
AAA located nearest
 
to the home
 
office
of the
 
Bank, and
 
judgment upon
 
the award
 
rendered may
 
be entered
 
in any court
 
having jurisdiction
thereof, except to the extent
 
that the parties may
 
otherwise reach a mutual settlement
 
of such issue.
Each party to the arbitration shall bear its own expenses.
21.
 
Entire
 
Agreement.
 
This
 
Agreement
 
embodies
 
the
 
entire
 
agreement
 
between
 
the
Employer
 
and
 
the
 
Executive
 
with
 
respect
 
to
 
the
 
matters
 
agreed
 
to
 
herein.
 
All
 
prior
 
agreements
between the
 
Employer and
 
the Executive
 
with respect
 
to the
 
matters agreed
 
to herein
 
are hereby
superseded and shall have no force or effect.
Signature page follows.]
exhibit105p13i1 exhibit105p13i0 exhibit105p13i2
 
14
IN WITNESS
 
WHEREOF,
 
this Agreement
 
has been
 
executed as
 
of the
 
date first
 
written
above.