Exhibit 10.11
BANK OF FLORIDA
CORPORATION
PLAN B
CHANGE IN CONTROL
AGREEMENT
THIS CHANGE IN CONTROL
AGREEMENT (“Agreement”) is entered into by and
between Bank of Florida Corporation (“Employer”) and
John B. James, Bank of Florida Corporation Senior Executive Vice
President – Chief Administrative Officer
(“Employee”).
WHEREAS,
in recognition of Employee’s
prior and continuing contribution to Employer and its subsidiaries,
Employer wishes to protect Employee’s position therewith in
the manner provided in the Agreement in the event of a Change in
Control of the Employer.
NOW, THEREFORE,
in consideration of Employee’s
management position, contribution, and responsibilities, Employer
hereby agrees to provide Employee with certain severance benefits
as specifically provided herein.
SECTION 1 –
DEFINITIONS
(a) “Change in Control”
means an event where any Person (defined herein to mean any natural
person, corporation, limited liability company, partnership, or any
other similar business entity), other than any Person who on the
date hereof is a director or officer of Employer: (i) directly
or indirectly, or acting in concert through one or more other
persons, owns, controls, or has power to vote 50% or more of any
class of the then outstanding voting securities of Employer; or
(ii) controls in any manner the election of a majority of the
directors of Employer. For purposes of this Agreement, a
“Change in Control” shall be deemed not to have
occurred in connection with a reorganization, consolidation, or
merger of Employer whereby the stockholders of Employer,
immediately before the consummation of the transaction, will own
over 50% of the total combined voting power of all classes of stock
entitled to vote of the surviving entity immediately after the
transaction.
(b) Termination for “just
cause” means termination because of Employee’s personal
dishonesty, incompetence, insubordination, misconduct or conduct
which negatively reflects upon the Employer, breach of fiduciary
duty, intentional failure to perform stated duties, willful
violation of any law, rule, or regulation (other than minor traffic
violations or similar offenses), or final cease-and desist order.
In determining “incompetence,” the acts or omissions
shall be measured against standards generally prevailing in the
financial institution industry. No act, or failure to act on
Employee’s part, shall be considered “willful”
unless done, or omitted to be done, by Employee not in good faith
and without reasonable belief that Employee’s action or
omission was in the best interest of Employer; provided that any
act or omission to act on Employee’s behalf in reliance upon
advice or written opinion of Employer’s counsel shall not be
deemed to be willful.
(c) “Protected Period”
means the term of this Agreement and six months following
termination hereof if Employee is employed by Employer at the time
Employer is required under the Securities Exchange Act of 1934 to
make a public announcement of a potential Change in Control, which
is in fact later consummated.
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SECTION 2 – TERM OF
AGREEMENT
This Agreement shall remain in
effect for two years commencing on January 1, 2009, and
terminating on December 31, 2010, unless extended or
terminated in accordance with the terms and conditions set forth in
Section 9 herein.
SECTION 3 – PAYMENTS TO
EMPLOYEE UPON A CHANGE IN CONTROL
If Employer terminates
Employee’s employment without “just cause,”
Employee shall be entitled to receive the termination benefits
described in Section 4 herein, if a Change in Control also
occurs or has occurred within the Protected Period. Due to
Employee’s tenure, performance, and experience with the
Employer, Employee shall also be entitled to receive such
termination benefits described in Section 4 herein, if within
six months of a Change in Control, Employee elects to terminate his
or her employment for any reason; provided however, Employee shall
not be entitled to such benefits if the transaction is considered
to be a merger of equals and the Employee has been retained by the
resulting company in the same capacity.
SECTION 4 – TERMINATION
BENEFITS
(a) Upon a termination described in
Section 3, Employer or its successor(s) shall pay Employee, or
in the event of Employee’s subsequent death, Employee’s
estate, as severance pay, a sum equal to two years of
Employee’s “highest base salary.” For purposes of
this Agreement “highest base salary” shall mean
Employee’s highest base salary from the three years prior to
Employee’s termination. Such payment shall be made in one
lump sum payment within ten business days of such a termination of
employment.
(b) Upon a termination described in
Section 3, Employer or its successor(s) shall continue to
provide life, health, and disability coverage
(“Coverage”) comparable to the coverage maintained by
Employer for Employee prior to Employee’s severance. Such
Coverage shall cease upon the earlier of Employee obtaining new
employment at which the Employee is entitled to receive comparable
Coverage, or six months from the date of Employee’s
termination.
SECTION 5 – LIMITATIONS ON
PAYMENTS
(a) Notwithstanding any provision of
this Agreement to the contrary, if payments to Employee under this
Agreement and/or any other payment or benefit from the Employer or
any of its subsidiaries of either in connection with a Change in
Control are deemed an “excess parachute payment” under
Section 280G of the Internal Revenue Code of 1986, as amended
(“Code”), such payments or benefits shall be reduced to
the extent necessary to avoid such characterization. The initial
determination of whether a reduction is required under this
paragraph shall be made by Employer’s independent
accountants, and, to the extent practicable, Employee shall be
entitled to select the payments or property that remain payable to
Employee after the application of this paragraph. Employee shall be
deemed to have forfeited any right to any payment or property that
is subject to reduction hereunder, without requirement of further
notice. In the event that a final administrative action of the
Internal Revenue Service (the “IRS”) increases the
amount deemed to be an “excess parachute payment”
within the meaning of Code Section 280G, the amount of such
increase shall be deemed a conditional payment by Employer.
Employee agrees that he shall promptly remit to Employer, but in no
event later than 20 business days from receipt of notice, the
amount of such conditional payment, including interest thereon,
determined at the applicable federal rate.
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(b) The Employer and the Employee
intend that their exercise of authority or discretion under this
Agreement shall comply with Section 409A of the Code. If and
when the Employee’s employment terminates, the Employee is a
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