Exhibit 10(i)
AGREEMENT REGARDING CHANGE IN CONTROL
AGREEMENT (this "Agreement") dated as of the 8th day of
November, 1993, between BANCFLORIDA FINANCIAL CORPORATION, a
Delaware corporation having its principal place of business in
Naples, Florida (the "Company") and RUDOLF P. GUENZEL, an
individual resident of North Fort Myers, Florida (the
"Executive").
WHEREAS, the Executive currently serves as President
and Chief Executive Officer of BancFlorida, a Federal Savings
Bank, the Company's principal subsidiary (the "bank")
WHEREAS, the Board of Directors of the Company (the
"Board"), has determined that it is in the best interests of the
Company and the Bank to assure that the Company and the Bank will
have the continued services of the Executive, notwithstanding the
possibility, threat or occurrence of a Change in Control (as
defined hereafter); and
WHEREAS, upon the effectiveness of this Agreement, the
Executive wishes to terminate the Agreement Regarding Change in
Control dated as of November 8, 1993 between the Executive and
the Bank and to relinquish all of the Executive's rights
thereunder;
NOW, THEREFORE, in consideration of the premises and
the mutual covenants contained in this Agreement, the Company and
the Executive agree as follows:
I. Term of Agreement. This Agreement shall commence
on the date set forth above and shall terminate on the date three
(3) years from such date.
II. Definitions. Unless otherwise defined herein, the
following terms shall have the meanings set forth below for
purposes of this Agreement:
A. Change in Control. A "Change in Control"
shall be deemed to occur: (i) on the date that the Board
determines such a Change in Control to have occurred, or (ii)
under such circumstances and at such time as the Board may in its
reasonable discretion prospectively determine will constitute
such a Change in Control, in either case to be evidenced by
appropriate Board action and written communication to the
Executive. Such a determination, once made, may not be rescinded
by a newly constituted Board following a Change in Control, but
may later be rescinded or modified if the specific events
identified as constituting a Change in Control have not occurred.
B. Code. "Code" shall mean the Internal Revenue Code
of 1986.
III. Events Occurring on Change in Control.
A. Change in Control Payments. In the event of
a Change in Control while the Executive is employed by the
Company, the Executive shall be entitled to the compensation
provided in Section IV.A. of this Agreement.
B. Resignation and Subsequent Employment
Agreement. In addition, in the event of such a Change in
Control, and as a condition to receipt of the payment described
in Section III.A. and IV.A. hereof, the Executive shall
immediately submit his resignation from any and all offices,
directorships, positions and employment by, in or with the Bank,
the Company and their subsidiaries; provided, however, that if
so requested within thirty (30) days following the date of a
Change in Control by the surviving, successor or acquiring entity
succeeding to and/or owning and operating the business of the
Company or the Bank subsequent to a Change in Control, the
Executive shall enter into an employment agreement with such
surviving, successor or acquiring entity in substantially the
form of Exhibit A annexed hereto, providing for employment for up
to two years in a position bearing substantially the same
responsibilities and duties as those carried on by the Executive
immediately prior to the Change in Control. Except as provided
herein and pursuant to the terms of such an employment agreement,
the Executive shall be under no obligation to continue to remain
in the employ of or render services for the Company or the Bank
or such a surviving successor or acquiring entity subsequent to a
Change in Control. If requested by the Company or the Bank, the
Executive shall execute a form of employment agreement, which may
later be accepted and executed within thirty (30) days following
a Change in Control by the surviving, successor or acquiring
entity.
IV. Compensation Upon Change in Control.
A. Severance Payments. Upon a Change in Control
the Executive shall be entitled to the following:
1. The Company shall pay to the Executive, at
the time specified in subsection IV.A.2. below, a lump sum
payment equal to 2.99 times the sum of:
a. the Executive's annual base salary
paid by the Bank, as in effect immediately prior to the
Change in Control; plus
b. the average annual value of non-cash
fringe benefits included in the Executive's
compensation for federal income tax purposes for the
two (2) full calendar years prior to the Change in
Control; plus
c. the average annual amount of any
bonuses received, credited or deferred with respect to
such two (2) prior calendar years;
provided, however, that the value or benefit of or derived from
options or similar arrangements relating to securities of the
Company shall not be included in the base for calculation of the
payment hereunder, whether or not such value or benefit was
reflected as income for federal income tax or alternative minimum
tax purposes.
2. The compensation provided for in 1. above shall be
paid not later than the thirtieth (30th) day following the date
of Change in Control, provided, however, that if the amount of
such compensation cannot be finally determined on or before such
day, the Company or the successor to the Company shall pay to the
Executive on such day an amount equal to ninety percent (90%) of
the estimated amount of such compensation, as determined in good
faith by the Company or the successor to the Company, and shall
pay the remainder of such compensation (together with interest at
the federal "mid-term" rate as provided in (section mark) 1274(d)
of the Code)
as soon as the amount thereof can be determined, but in no event
later than the ninetieth (90th) day after the date of Change in
Control. In the event that the amount of the estimated payment
exceeds the amount subsequently determined to have been due, such
excess shall constitute a loan by the Company or the successor to
the Company to the Executive payable on the fifth day after
demand by the Company or the successor to the Company (together
with interest at the federal mid-term rate as described above).
3. In addition to any other payments hereunder, in the
event of a Change in Control, the Executive's interests and
benefits in or under any benefit, income, stock option, deferred
compensation, phantom unit or similar plan of the Company or the
Bank shall immediately become 100% vested and/or accelerated, as
the case may be, and shall be immediately payable, except as
otherwise specifically prohibited by law or by the terms of any
such plan or agreement. The Company and the Executive agree to
take any necessary steps to amend such plans or agreements to
allow for such vesting or acceleration; provided, however, if and
to the extent such acceleration of vesting or payment would cause
the imposition of the excise tax imposed under Section 4999 of
the Code, such acceleration of vesting or payment shall not
occur, but such amounts or benefits shall arise, vest or be paid
in the normal course or at the earliest point when it is
determined they could vest or be paid without giving rise to such
excise tax.
B. Limitations. Anything in this Agreement to
the contrary notwithstanding, in the event it shall be determined
that any payment or distribution by the Company to or for the
benefit of the Executive (whether paid or payable or distributed
or distributable pursuant to the terms of this Agreement or
otherwise), would be subject to the excise tax imposed by Section
4999 of the Code or any interest or penalties are incurred by the
Executive with respect to such excise tax, the amount of such
payment shall be reduced to such an amount as shall not give rise
to the imposition of such excise tax. To the extent possible,
such reduction shall be accomplished first, by ignoring the
acceleration of payments or vesting provided in subsection A.3.
above, and second, by decreasing the amounts of other cash
payments.
Subject to the provisions of this Subsection B, all
determinations required to be made under this Subsection B,
including whether and when a reduction is required and the amount
of such reduction and the assumptions to be utilized in arriving
at such determination, shall be made by KPMG Peat Marwick (the
"Accounting Firm") which shall provide detailed supporting
calculations both to the Company and the Executive within thirty
(30) business days of the receipt of request for a determination
by either party. In the event that the Accounting Firm is
serving as accountant or auditor for the individual, entity or
group effecting the Change in Control, the Executive shall
appoint another nationally recognized accounting firm to make the
determinations required hereunder (which accounting firm shall
then be referred to as the Accounting Firm hereunder). All fees
and expenses of the Accounting Firm shall be borne solely by the
Company. If the Accounting Firm determines that no Excise Tax is
payable by the Executive, it shall furnish the Executive and the
Company with a written opinion that no Excise Tax is due and
payable as a result of payments under this Agreement. Any
determination by the Accounting Firm shall be binding upon the
Company and the Executive.
C. Double Payment. In addition to any other
benefits provided hereunder, in the event the Executive must
bring legal action (including arbitration) seeking to obtain or
enforce any right or benefit provided by this Agreement, should
the Executive prevail in such action the severance compensation
under this Agreement shall be twice (2X) the amount ultimately
determined or agreed to be due the Executive pursuant to Sections
IV.A. and IV.B., as applicable. Notwithstanding anything in this
Section IV.C. to the contrary, the total amounts paid pursuant to
this Agreement will be subject to the limitations under Section
IV.B.
D. Fees and Expenses. In addition to any other
payments or benefits hereunder, subject to the limitations of
Section IV.B. the Company shall pay to the Executive all legal
fees and expenses incurred by the Executive hereunder (including
all such fees and expenses, if any, incurred in seeking to obtain
or enforce any right or benefit provided by this Agreement should
the Executive prevail in such action).
V. No Obligation To Mitigate Damages; Other Benefits.
The Executive shall not be required to mitigate damages or the
amount of any payment provided for under this Agreement by
seeking other employment or otherwise, nor shall the amount of
any payment provided for under this Agreement be reduced by any
compensation earned by the Executive as the result of employment
by the Bank, the Company or any successor thereto, nor another
employer after the termination of the Executive's employment, or
otherwise. Nothing contained herein shall prejudice the
Executive's right to the full realization of any and all other
benefits to which the Executive shall be entitled pursuant to the
terms of any employee benefit plans or other agreements of the
Company or the Company in which the Executive is a participant or
to which the Executive is a party.
VI. Miscellaneous.
A. Successors and Assigns. This Agreement shall
inure to the benefit of and be enforceable by the Executive's
personal and legal representatives, personal representatives
(including executors or administrators), successors, heirs,
distributees, and devisees. If the Executive should die while any
amounts are still payable to the Executive hereunder, all such
amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's
devisee or other designee or, if there be no such designee, to
the Executive's estate.
B. Notice. For purposes of this Agreement,
notices and all other communications provided for in the
Agreement shall be in writing and shall be deemed to have been
duly given when delivered or mailed by United States registered
mail, return receipt requested, postage prepaid as follows:
If to the Company:
BancFlorida Financial Corporation
5801 Pelican Bay Boulevard
Naples, FL 33963
Attention: Gerard McHale, Director
If to the Executive:
1807 Coral Circle
North Ft. Myers, Florida 33903
or such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
C. Amendment. 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 the Company.
D. Waiver. No waiver by either party hereto at
any time of any breach by the 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 subsequent notice.
E. Entire Agreement. No agreements or
representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. The
Executive agrees that the Agreement Regarding Change in Control
dated as of November 8, 1993 between the Executive and the Bank
shall be of no further force and effect and the Executive hereby
relinquishes all rights thereunder.
F. Employment. The Executive agrees to be
bound by the terms and conditions of this Agreement and to remain
in the employ of the Company during any period following any
public announcement by any person of any proposed transaction or
transactions which, if effected, would result in a Change in
Control until a Change in Control has taken place or, in the
opinion of the Board, such person has abandoned or terminated its
efforts to effect a Change in Control. Subject to the foregoing,
except as specifically provided herein nothing contained in this
Agreement shall impair or interfere in any way with the right of
the Executive to terminate the Executive's employment or the
right of the Company to terminate the employment of the Executive
with or without cause prior to a Change in Control. Nothing
contained in this Agreement shall be construed as a contract of
employment between the Company and the Executive or as a right of
the Executive to continue in the employ of the Company or as a
limitation of the right of the Company to discharge the Executive
with or without cause prior to a Change in Control.
G. Validity. The invalidity or
unenforceability of any provisions of this Agreement shall not
affect the validity or enforceability of any other provision of
this Agreement, which shall remain in full force and effect.
H. 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.
I. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Florida.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement effective as of the day and year first written above.
/s/ Rudolf P. Guenzel
RUDOLF P. GUENZEL
BANCFLORIDA FINANCIAL CORPORATION,
a Delaware corporation
By: /s/ J. Michael Holmes
Its Secretary/Treasurer
EXHIBIT A
EMPLOYMENT AGREEMENT
AGREEMENT (this "Agreement") made as of this ___ day of
___________, 199___, between __________, a bank with its
principal offices at ____________ (the "Bank"), and RUDOLF P.
GUENZEL, an individual resident of North Fort Myers, Florida (the
"Executive").
WHEREAS, the Executive was formerly employed by
BancFlorida, a Federal Savings Bank, and was an officer of
BancFlorida Financial Corporation, a Delaware corporation; and
WHEREAS, there has been a change in control of
BancFlorida and/or BancFlorida Financial Corporation and the Bank
has succeeded to the business of BancFlorida; and
WHEREAS, the Bank wishes to continue to retain the
Executive's services to aid in the orderly transition of the Bank
for a period of time up to, but not exceeding, the Period (as
hereafter defined),
NOW, THEREFORE, the parties agree as follows:
SECTION 1: EMPLOYMENT OF EXECUTIVE; DUTIES AND
RESPONSIBILITIES
1.1 Employment of Executive. The Bank agrees to
employ the Executive, and the Executive agrees to be employed by
the Bank, subject to the terms and conditions of this Agreement.
1.2 Term. The employment of the Executive by the Bank
pursuant to this Agreement shall be for the period of two (2)
years commencing on the day and year first written above (the
"Period"), unless sooner terminated pursuant to the provisions of
Section 3 hereof.
1.3 Offices and Positions of Officer.
(a) During the Period, the Executive shall be the
President and Chief Executive Officer of the Bank. During the
Period the Executive shall be treated as an employee of the Bank
with all benefits accruing thereto, including without limitation
life insurance benefits, medical and major medical coverage, and
accrual of pension benefits.
(b) If the Bank shall (i) consolidate or merge
with or into any other person, (ii) sell all or substantially all
of its assets to any other person, or (iii) become party to
another form of business combination or corporate reorganization,
or any person or a group of persons acting in concert shall
acquire control of the Bank pursuant to the acquisition of a
controlling interest in the outstanding shares of capital stock
of the Bank or there shall be a change in control of the Bank
other than in the manner described in Subparagraphs (i) through
(iii) inclusive of this Section 1.3(b), then the Bank shall, to
the fullest extent permitted by law, cause the surviving,
acquiring or successor entity, as the case may be, to assume all
of the Bank's duties, obligations and liabilities, to the
Executive arising under this Agreement.
1.4 Duties and Responsibilities.
(a) During the Period, the Executive shall
perform such duties and responsibilities as are required to be
performed by him pursuant to the relevant terms of the By-Laws of
the Bank together with such other duties as the Board of
Directors of the Bank shall reasonably assign to the Executive
from time to time during the Period, it being understood that
such duties and responsibilities shall be the same as those
customarily assigned and expected to be performed by the
President and Chief Executive Officer of a [type] bank of
similar size as the Bank. When assigning such duties, the Board
of Directors shall take into consideration the past
responsibilities, experience and seniority as the Executive. In
no event shall the Executive be assigned duties inconsistent with
his status as the President and Chief Executive Office of the
Bank.
(b) During the Period the Officer shall devote
his full attention to the business and affairs of the Bank during
regular business hours.
SECTION 2: COMPENSATION; REIMBURSEMENT; INDEMNIFICATION;
BENEFITS
2.1 Base Compensation.
During the Period, the Bank shall pay to the Officer an
aggregate annual base salary in an amount as may be from time to
time determined by the Board of Directors of the Bank, but in no
event at a rate of less than the base salary most recently in
effect from BancFlorida.
2.2 Payment of Base Compensation. The Bank shall pay
the base compensation due the Executive in accordance with the
policy of the Bank as in effect from time to time for the payment
of salaries to senior personnel.
2.3 Other Benefits and Insurance. During the Period
the Executive shall be entitled to participate in such employee
benefits as are generally made available by the Bank to its
executive employees, including without limitation life insurance,
major medical and disability coverage, sick pay benefits,
vacation pay, travel and accident insurance and participation in
any retirement plan or plans, to the extent permitted by the
terms thereof, and at a minimum shall be entitled to retirement,
medical, life insurance and other benefits substantially
equivalent to those most recently provided by BancFlorida to the
Executive.
2.4 Business Expenses. The Bank shall reimburse the
Executive, in the manner, to the extent and subject to such
conditions as may be applicable under normal Bank policy, for
reasonable expenses incurred by him in the course of rendering
his services pursuant to this Agreement.
SECTION 3: TERMINATION OF EMPLOYMENT
3.1 Termination of Period. The Period may be
terminated in the following manner:
(a) Termination on Death. The Period shall
automatically terminate upon the death of the Executive. The
Executive's compensation and, except as otherwise provided by
law, all benefits shall cease as of the date of death.
(b) Termination by the Executive. The Period may
be terminated by the Executive during the Period for "Good
Reason" as hereafter provided. In the event of such termination
the Executive shall be entitled to a payment equal to three (3)
months salary at the rate then in effect, payable within ten (10)
days of termination. For purposes of this Agreement "Good
Reason" shall mean any of the following events, unless it occurs
with the Executive's express prior written consent:
(1) the assignment to the Executive by the
Bank of any duties inconsistent with, or a
diminution of, the Executive's position, duties,
titles, offices, responsibilities and status with
the Bank, or any removal of the Executive from or
any failure to reelect the Executive to any of
such positions;
(2) a reduction by the Bank in the
Executive's base salary as in effect on the date
hereof or as the same may be increased from time
to time during the term of this Agreement, other
than a reduction of the Executive's base salary
pursuant to the terms of any short-term disability
plan or long-term disability plan maintained by
the Bank during a period in which the Executive is
disabled (within the meaning of such plan or
plans) and qualifies for benefits under such plan
or plans;
(3) any failure by the Bank to continue in
effect any benefit plan or arrangement (including,
without limitation, pension plans, group life
insurance plan, medical, dental, accident and
disability plans and educational assistance
reimbursement plan) in which the Executive is
participating (or to substitute and continue other
plans providing the Executive with substantially
similar benefits) (hereinafter referred to as
"Benefit Plans"), the taking of any action by the
Bank which would adversely affect the Executive's
participation in or materially reduce the
Executive's benefits under any such Benefit Plan
or deprive the Executive of any material fringe
benefit enjoyed by the Executive, or the failure
by the Bank to provide the Executive with the
number of paid vacation days to which the
Executive is entitled in accordance with the
vacation policies in effect at the time of a
change in control of the Bank;
(4) the Executive's relocation to any place
of business of the Bank which is outside the
franchise area (as that term is defined in Section
3.2(e);
(5) a requirement that the Executive travel
outside the franchise area (as that term is
defined in Section 3.2(e) to perform business
obligations, the number of days of which total
more than one hundred (100) days in any one
calendar year;
(6) any material breach by the Bank of any
provision of this Agreement; or
(7) any failure by the Bank to obtain the
assumption of this Agreement by any successor or
assign of the Bank.
(c) Termination by Bank. The Bank may terminate
employment of the Executive at any time during the Period. In
the event of such termination by the Bank for any reason, the
Executive shall be entitled to a payment equal to three (3)
months salary at the rate then in effect, payable within ten (10)
days of termination.
(d) Termination Without Good Reason. In the
event of voluntary termination by the Executive without Good
Reason the Executive's compensation and, except as otherwise
provided by law, all benefits shall cease on the effective date
of such termination.
(e) Franchise Area. For purposes of this
Agreement, the term "franchise area" shall mean the geographical
area within fifty (50) miles of the main office of BancFlorida
immediately prior to the effective date of this Agreement.
SECTION 4: GENERAL PROVISIONS
4.1 Nonassignability. Neither the Agreement nor any
of the rights, obligations or interests arising hereunder may be
assigned by the Executive without the prior written consent of
the Bank; provided, however, that nothing in this section 4.1
shall preclude the Executive from designating in writing a
beneficiary or beneficiaries to receive any compensation payable
to him or any other benefit receivable by him under this
Agreement on the death or incapacity of the Executive, nor shall
it preclude the executors, administrators, or any other legal
representatives of the Executive or his Estate from assigning any
rights hereunder to any person or persons entitled thereto.
Neither this Agreement nor any of the rights, obligations or
interests arising hereunder may be assigned by the Bank without
the prior written consent of the Executive to a person other than
(1) an affiliate of the Bank; or (2) any party with which the
Bank merges or consolidates, or to whomever the Bank may sell all
or substantially all of its assets; provided, however, that any
such affiliate or successor shall expressly assume all of the
Bank's obligations and liabilities to the Executive under this
Agreement.
4.2 Severability. This Agreement shall be deemed
severable, and any part hereof which may be held invalid by a
court or other entity of competent jurisdiction shall be deemed
automatically excluded from this Agreement and the remaining
parts shall remain in full force and effect.
4.3 Merger. This Agreement contains the entire
understanding of the parties hereto and constitutes the only
agreement between the Bank and the Executive regarding the
employment of the Executive by the Bank. This Agreement
supersedes all prior agreements, either expressed or implied,
between the parties hereto including the employment of the
Executive by the Bank.
4.4 Amendment. None of the terms and conditions of
this Agreement shall be amended or modified unless expressly
consented to in writing and signed by each of the parties hereto.
4.5 Binding Agreement. This Agreement shall be
binding upon and inure to the benefit of the parties hereto, and
their respective heirs, other legal representatives and permitted
successors and assigns, as the case may be.
4.6 Governing Law. This Agreement shall be governed
by and construed under the internal laws of the State of Florida.
4.7 Notices. All notices or other communications to
be given by the parties among themselves pursuant to this
Agreement shall be in writing, and all payments to be made
hereunder shall be deemed to have been duly made if mailed by
certified mail or hand-delivered to either of the parties at the
addresses first written above. Any of the parties hereto may
change their respective addresses upon written notice to the
other given in the manner provided in this Section.
4.8 Waiver. No waiver by any of the parties to this
Agreement of any condition, term or provision of this Agreement
shall be deemed to be a waiver of any proceeding or subsequent
breach of the same or any other condition, term or provision
thereof.
4.9 Damages; Further Employment. In the event of
termination of the Executive, voluntary or involuntary, the
damages of the Executive shall be limited to the compensation
provided herein. Except as specifically provided herein, nothing
in this Agreement shall limit the damages recoverable by the
Executive or the Bank in the event of breach by the other party.
Nothing contained herein shall limit the ability of the Bank to
continue to employ or retain the Executive after the expiration
of the Period on such basis and pursuant to such arrangements as
shall be mutually agreeable; provided, that nothing herein shall
require either party to do so.
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the date and year first above
written.
EXECUTIVE:
_____________________________
RUDOLF P. GUENZEL
BANK NAME:
By: ________________________
Attest:
____________________________