Ex-10.1: Employment Agreement (Kenneth E. LaRoe)

EX-10.1 2 g98886exv10w1.htm EX-10.1: EMPLOYMENT AGREEMENT (KENNETH E. LAROE) exv10w1

Exhibit 10.1

EMPLOYMENT AGREEMENT

This Employment Agreement (this “Agreement”) is made and entered into effective as of [ ], 2006 (the “Effective Date”), by and among Florida Choice Bank, a Florida banking corporation (“Employer”); and Kenneth E. LaRoe, a resident of the State of Florida (“Executive”).

Recitals

WHEREAS, pursuant to that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of October 27, 2005, between Alabama National BanCorporation, a Delaware corporation (“ANB”) and Employer’s parent holding company, Employer has become a wholly-owned subsidiary of ANB; and

WHEREAS, Executive has served as a valuable member of Employer’s management team for a number of years, and, as a condition to the consummation of the transactions provided for in the Merger Agreement, Executive and Employer have agreed to enter into this Agreement.

Agreement

NOW THEREFORE, in consideration of the mutual recitals and covenants contained herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows:

1. Employment. Employer agrees to employ Executive and Executive agrees to be employed by Employer, subject to the terms and provisions of this Agreement. The period of Executive’s employment by Employer under the terms of this Agreement will be for a period of two (2) years commencing on the Effective Date, unless such employment terminates earlier in accordance with the provisions of Section 9 hereof (the “Employment Period”).

2. Agreement Term. The term of this Agreement (the “Agreement Term”) shall be for a period of three (3) years, commencing on the Effective Date. The termination of Executive’s employment upon or prior to the expiration of the Employment Period shall be independent from, and shall not serve to terminate or shorten, the Agreement Term.

3. Duties; Extent of Services. Executive shall perform for Employer all duties incident to the position of Chairman of the Board of Directors, under the direction of the board of directors of Employer or its designee(s). In addition, Executive shall engage in such other services for Employer or its affiliated banks and companies as Employer from time to time shall direct. The precise services of Executive and the title of Executive’s position may be extended, curtailed or modified from time to time without breaching or affecting the enforceability of the terms of this Agreement. Executive shall devote an appropriate amount of time, attention and energy, to the business of the Employer.

4. Compensation. From the Effective Date until the termination of Executive’s employment:

(a) Base Salary. Executive’s total annual base salary shall be $100,000, payable with the same frequency as the salaries of other employees of Employer.

(b) Benefits. Executive shall be entitled to vacation days, paid holidays and sick days, and to participate in Employer’s health and retirement plans, as provided in Employer’s Personnel Policy, as such may be amended from time to time.

(c) Automobile Allowance. Executive shall be entitled to a $800 monthly automobile allowance or, at the option of Employer, to the use of an automobile owned by Employer.

(d) Equity Incentives. Executive shall be eligible to receive awards under any stock option, stock purchase or equity-based incentive compensation plan or arrangement adopted by Employer or ANB from time to time for which senior executives of ANB’s other bank subsidiaries are eligible to participate. Executive’s participation in, and awards under, such plans and arrangements, if any, will be determined from time to time by, and will be in the sole discretion of, ANB’s board of directors or its designee, as the case may be.

5. Compliance With Rules and Policies. Executive shall comply with all of the rules, regulations, and policies of Employer now or hereinafter in effect. He shall promptly and faithfully do and perform any and all other duties and responsibilities which he may, from time to time, be directed to do by the board of directors of Employer or its designee(s).

6. Representation of Executive. Executive represents to Employer that he is not subject to any rule, regulation or agreement, including without limitation, any non-compete agreement, that purports to, or which reasonably could be expected to, limit, restrict or interfere with Executive’s ability to engage in the activities provided for in this Agreement.

7. Disclosure of Information. Executive acknowledges that any documents and information, whether written or not, that come or have come into Executive’s possession or knowledge during Executive’s course of employment with Employer, including, without limitation information about customers and potential customers and the business methods, sales, services, techniques, financial and business conditions, goals and operations of Employer, ANB or any of their respective affiliates or subsidiaries as the same may exist from time to time (collectively, “Confidential Information”), are valuable, special and unique assets of Employer’s business. Executive will not, during or after the Employment Period: (a) disclose any Confidential Information to any person, firm, corporation, association, or other entity not employed by or affiliated with Employer for any reason or purpose whatsoever, or (b) use any Confidential Information for any reason other than to further the business of Employer. Executive agrees to return any written Confidential Information (including without limitation all Confidential Information stored in electronic format), and all copies thereof, immediately upon the termination of Executive’s employment for any reason (whether hereunder or otherwise). In the event of a breach or threatened breach by Executive of the provisions of this Section 7, in addition to all other remedies available to Employer, Employer shall be entitled to an injunction restraining Executive from disclosing any Confidential Information.

8. Competition.

(a) During the Agreement Term (including any unexpired portion of the Agreement Term that remains following the termination of Executive’s employment for any reason, whether voluntary or involuntary, but subject to the Change in Control provisions of Section 14 below), Executive shall not, individually or as an employee, agent, consultant, lender, officer, director or shareholder of or otherwise through any corporation or other business organization (whether in existence or in formation), directly or indirectly, other than on behalf of Employer: (i) carry on or engage in the business of banking (including credit unions), mortgage banking, the securities industry or any other lending related business or other business conducted by Employer or its affiliates anywhere in the Florida counties of Lake, Marion, Orange, Seminole, Osceola and/or Sumter (collectively, the “Territory”); (ii) perform any services for any bank or bank holding company (whether in existence or in formation) that has a branch or office anywhere in, or conducts any banking or similar business anywhere in the Territory; (iii) during the period of his employment, solicit or do banking or similar business with any person or entity who or that is or has been an existing or prospective customer of Employer; (iv) following the termination of employment, solicit or do banking or similar business with any person or entity who or that was an existing or prospective customer of Employer at any time during the 24-month period immediately prior to the termination of Executive’s employment; (v) solicit or do banking or similar business with any existing or prospective customer of ANB or any of its other bank subsidiaries if Executive learned about such customer, or had any contact with such customer, while an employee of Employer; or (vi) solicit any director, officer or employee of Employer or ANB or any of their subsidiaries or affiliates to leave his or her position or employment with Employer or ANB or any of their subsidiaries or affiliates for any reason, or hire any such director, officer or employee, without the prior written consent of Employer. Notwithstanding the foregoing, Executive may hold up to (but not more than) two percent of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934.

(b) Executive represents that his experience and capabilities, together with the compensation paid by Employer and payable under this Agreement, are such that the provisions of this Section 8 will not impose an undue hardship on Executive or prevent him from earning a livelihood.

(c) If Executive violates the provisions of Section 8(a) above, the period during which the covenants set forth therein shall apply shall be extended 1 day for each day in which a violation of such covenants occurs. The purpose of this provision is to prevent Executive from profiting from his own wrong if he violates such covenants.

(d) In the event of any conduct or threatened conduct by Executive violating any provision of this Section 8, Employer shall be entitled, in addition to other available remedies, to injunctive relief and/or specific performance of such provision.

(e) Executive acknowledges that (i) Executive has occupied, and will continue to occupy, a position of trust and confidence with Employer prior to the date hereof and has and will become

familiar with Confidential Information, including without limitation trade secrets, as that term is defined in Section 688.002(4) of the Florida Code; (ii) ANB has required that Executive make the covenants set forth in Sections 7 and 8 of this Agreement as a material condition to Employer’s employment of Executive and ANB’s acquisition of the capital stock of Employer’s parent holding company, including the capital stock owned by Executive; (iii) the provisions of Sections 7 and 8 of this Agreement are reasonable in geographic scope, duration, and scope and are necessary to protect and preserve Employer’s legitimate business interests, including, without limitation, its trade secrets, valuable confidential business information, relationships with specific prospective and existing customers, customer goodwill, and specialized training provided to Executive; and (iv) Employer would be irreparably damaged if Executive were to breach the covenants set forth in Sections 7 or 8 of this Agreement.

9. Termination of Employment Prior to Expiration of Employment Period.

(a) Employer may terminate Executive’s employment prior to the expiration of the Employment Period “For Cause.” In such event, all rights and obligations specified in Section 8(a) shall survive any such termination until the expiration of the Agreement Term, and Executive shall not be entitled to any further compensation or benefits from Employer under this Agreement or otherwise. “For Cause” means (i) abuse of or addiction to intoxicating drugs (including alcohol); (ii) any act or omission on the part of Executive which constitutes fraud, malfeasance of duty or conduct inappropriate to Executive’s office and is reasonably likely to lead to material injury to Bank, ANB, or a successor or affiliate of Bank or ANB; (iii) indictment or conviction of a felony or a crime of moral turpitude; (iv) the suspension or removal of Executive by federal or state banking regulatory authorities; or (v) a breach by Executive of any of the material terms of this Agreement. In addition, the services of Executive and the obligations of Employer under this Agreement may be terminated For Cause by Employer due to the death or total disability of Executive. For purposes of this Section 9, the term “total disability” means Executive’s inability, as a result of illness or injury, to perform the normal duties of his employment for a period of ninety (90) consecutive days.

(b) Employer may terminate Executive’s employment at any time prior to the expiration of the Employment Period for any reason other than “For Cause”; provided, however, if Employer terminates Executive other than For Cause, or if Executive terminates his employment for “Good Reason” (as defined below): (i) Executive shall continue to receive the amount of his then current base salary until the expiration of the Employment Period (to be paid with the same frequency as Executive’s salary was paid prior to termination) as if Executive’s employment had continued during such period; (ii) if Executive continues to participate in Employer’s group medical plan by electing COBRA continuation coverage, then Employer, until the expiration of the Employment Period, will pay the premiums of any such COBRA coverage (on a taxable basis to Executive); provided, however, that Employer’s responsibility to make such COBRA payments will immediately cease if Executive becomes eligible for any health benefits pursuant to the Medicare program or a subsequent employer’s plan, or as otherwise permitted or required under COBRA regulations; and (iii) all rights and obligations specified in Section 8(a) shall survive such termination until the expiration of the Agreement Term. Other than the payments and benefits provided for in this Section 9(b), Executive acknowledges that he shall not be entitled to any other payments, benefits or damages from Employer under this Agreement or otherwise in connection with a termination of Executive by Employer other

than For Cause or a termination by Executive for Good Reason, and Executive hereby waives all rights and claims with respect thereto. “Good Reason” means a material breach of this Agreement by Employer, after Executive has provided written notice of such breach to Employer within 30 days, and Employer has been afforded at least 30 days to remedy such breach from the date such notice is received by Employer.

(c) If Executive resigns or terminates his employment hereunder for any reason (other than Good Reason) prior to the expiration of the Employment Period, (i) he must provide at least 30 days prior written notice of such resignation or termination, (ii) all rights and obligations specified in Section 8(a) shall survive any such termination until the expiration of the Agreement Term, (iii) Executive shall not be entitled to any further compensation or benefits from Employer under this Agreement or otherwise, and (iv) Employer shall be entitled to all remedies available under this Agreement and applicable law. Upon receipt of any such notice of termination, Employer may elect, at its sole option, to have Executive’s resignation or termination effective immediately.

(d) Upon the natural expiration of Executive’s employment pursuant to the expiration of the Employment Period, (i) Executive shall not be entitled to any further compensation or benefits from Employer under this Agreement or otherwise, and (ii) the rights and obligations of Section 8(a) shall survive until the expiration of the Agreement Term.

10. Notice. For the purposes of this Agreement, notices and demands shall be deemed given when mailed by United States mail, addressed in the case of Employer to Florida Choice Bank, 18055 U.S. Highway 441, Mount Dora, Florida 32757, Attention: CEO, with a copy to ANB at Alabama National BanCorporation, 1927 First Avenue North, Birmingham, Alabama 35203, Attention: Chief Executive Officer; or in the case of Executive, to his last known address of record contained in Employer’s personnel files, or to such other address as instructed by Executive by written notice to Employer.

11. Miscellaneous. No provision of this Agreement may be modified, waived or discharged unless such modification, waiver or discharge is agreed to in writing. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Florida without regard to principles of conflicts of laws.

12. Validity. Should any court of competent jurisdiction or other judicial body decide, hold, adjudge or decree that any provision, clause or term of this Agreement is invalid, void or unenforceable, such determination shall not affect any other provision of this Agreement, and all other provisions of this Agreement shall remain in full force and effect as if such void or unenforceable provision, clause or term had not been included herein. Such determination shall not be deemed to affect the validity or enforceability of this entire Agreement in any other situation or circumstance, and the parties agree that the scope of this Agreement is intended to extend to Employer the maximum protection permitted by law. The parties expressly deem the scope, length of time and the size of the Territory provided for in Sections 7 and 8 of this Agreement to be reasonable. If, however, any judicial body decides, holds, adjudges or decrees that the scope, length of time and/or the size of the Territory provided for in Section 7 and/or 8 of this Agreement is/are unreasonable, then it is the express intent of the parties that such court determine the scope, length of

time and/or size of the territory that is/are reasonable and that such court enforce the terms of this Agreement in accordance with such determination.

13. Attorney’s Fees; Venue. In the event of any litigation arising from, or to enforce, this Agreement by either party hereunder, including without limitation any action by Employer to secure an injunction (or other equitable remedy) and/or damages under Sections 7 or 8 hereof, the prevailing party shall be entitled to recovery of all costs and reasonable attorney’s fees incurred and paid by such party. The exclusive venue for any legal action concerning, arising out of or relating to this Agreement or any of its provisions shall be the state or federal court located in Orlando, Florida. The parties agree and consent to the jurisdiction of such court and waive any objection as to personal jurisdiction or venue therein.

14. Parties. This Agreement shall be binding upon and shall inure to the benefit of any successors or assigns of Employer and/or ANB. Employer may assign this Agreement to another wholly-owned bank subsidiary of ANB without the consent of Employee, and Employer’s successors and assigns that are wholly-owned bank subsidiaries of ANB may enforce any and all terms and conditions of this Agreement, including but not limited to the confidentiality, non-competition and non-solicitation provisions contained in this Agreement. This Agreement shall be binding upon Employee’s heirs, estate and personal representative, and Employee may not assign any of his rights or delegate any of his duties or obligations under this Agreement or any portion hereof. Provided, however, notwithstanding anything to the contrary herein, if after the occurrence of a Change in Control (as defined below), (A) Executive is assigned duties materially inconsistent with Executive’s authorities, duties and responsibilities as in effect immediately prior to such Change in Control, and (B) Executive thereafter voluntarily terminates his employment hereunder, the rights and obligations specified in Section 8(a) shall terminate and shall not survive any such termination of employment, and Executive shall not be entitled to any further payments, benefits or damages from Employer under this Agreement or otherwise, and Executive hereby waives all rights and claims with respect thereto. “Change in Control” means (1) any transaction, whether by merger, consolidation, tender offer or otherwise, which results in the acquisition of beneficial ownership (as such term is defined under rules and regulations promulgated under the Securities Exchange Act of 1934, as amended) by any person or entity or any group of persons or entities acting in concert, of 50% or more of the outstanding shares of common stock of ANB; or (2) the sale of all or substantially all of the assets of ANB.

15. Waiver of Claims. In consideration of the obligations of Employer hereunder, Executive acknowledges that, at the request and election of Employer, as a condition precedent to receiving any severance payments or benefits from Employer otherwise payable hereunder, he will be required to execute and deliver a release whereby he unconditionally releases Employer, its directors, officers, employees, agents and shareholders, from any and all claims, liabilities and obligations of any nature pertaining to the termination of Executive’s employment by Employer, including but not limited to (a) any claims under federal, state or local laws prohibiting discrimination, including without limitation the Age Discrimination in Employment Act of 1967, as amended, or (b) any claims growing out of any alleged legal restrictions on Employer’s right to terminate Executive’s employment, such as any alleged implied contract of employment or termination contrary to public policy.

16. Taxes; Withholding. Executive shall be solely responsible for the payment of all income and other taxes in connection with any and all payments received from Employer or made by Employer on Executive’s behalf. All compensation payable pursuant to this Agreement, including without limitation severance compensation and COBRA payments, shall be subject to reduction by all applicable withholding, social security and other federal, state and local taxes and deductions.

17. Survival. The rights, obligations, agreements and provisions contained in Sections 7 through 17 of this Agreement shall survive the termination of Executive’s employment for any reason and/or the expiration of the Agreement Term.

18. American Jobs Creation Act of 2004. To the extent the American Jobs Creation Act of 2004, as amended, and the regulations thereunder (collectively, the “Act”) apply to any payment to be made to Executive hereunder, the parties’ intent is that such payment, unless expressly provided otherwise (such as in the case of severance payments) or unless deferred pursuant to the terms of a written deferred compensation plan maintained by Employer or one of its affiliates, will be paid no later than (a) 2¹/2 months after the end of Executive’s first taxable year in which the amount is no longer subject to a “substantial risk of forfeiture” or (b) 2¹/2 months after the end of Executive’s first taxable year in which the amount is no longer subject to a “substantial risk of forfeiture.” The purpose of this provision is reflect the parties’ desire and intent to comply with the Act, to the extent applicable.

19. Entire Agreement; Waiver. The parties’ intent is that this Agreement shall become effective immediately prior to the consummation of the transactions provided for in the Merger Agreement. Once effective, this Agreement supersedes and cancels any and all prior employment agreements or understandings entered into between Executive, Employer and/or ANB, including without limitation that certain Executive Employment Agreement dated as of February 28, 2005, between Executive and Employer (the “Prior Agreement”). Under the terms of the Prior Agreement, Executive would have been entitled to a change in control payment (“Change in Control Payment”) in connection with the consummation of the transactions provided for in the Merger Agreement if the Prior Agreement had remained in effect. As a material inducement for Employer to enter into this Agreement, Executive acknowledges and agrees that, notwithstanding anything to the contrary in the Prior Agreement or otherwise, he is not entitled to, and he will not claim or seek, any payment(s) from Employer or ANB under or in connection with the Prior Agreement, including without limitation any Change in Control Payment or any related payment, and Executive hereby irrevocably waives and releases any and all rights thereto.

[Signature pages follow.]

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by Executive and by a duly authorized officer of Employer as of the date first above written.


	“Employer”:

	Florida Choice Bank

	By:	/s/ Robert L. Porter


	Name:	Robert L. Porter


	Its:	COO


	“Executive”:

/s/ Patricia A. Shurtleff	/s/ Kenneth E. LaRoe

Witness	Kenneth E. LaRoe

/s/ Stephen R. Jeuck
Witness