Exhibit 10.1
STATE OF FLORIDA
COUNTY OF LEE
EXECUTIVE
CONSULTATION,
SEPARATION FROM SERVICE
AND
DEATH BENEFIT
AGREEMENT
THIS EXECUTIVE CONSULTATION,
SEPARATION FROM SERVICE AND DEATH BENEFIT AGREEMENT
(“Agreement”) is made and entered into this
day of February, 2009, to be
effective as of the 15th day of January, 2009 by and between
IRONSTONE BANK , a federal savings association with its
principal office in Ft. Myers, Florida (“Company”) and
JAMES M. PARKER (“Executive”);
W I T N E S S E T
H
WHEREAS , Executive is an employee of Company who has
provided guidance, leadership and direction in the growth,
management and development of Company and has learned trade
secrets, confidential procedures and information, and technical and
sensitive plans of Company; and
WHEREAS , Company desires to limit Executive’s
availability to other employers or entities which are in
competition with Company following Executive’s separation
from service with Company; and
WHEREAS , Company desires to offer to Executive a
non-competition arrangement and a consultation arrangement together
with a death benefit arrangement for Executive’s designated
beneficiary or estate, as applicable, and the parties hereto have
reached an agreement concerning those arrangements and other
matters contained herein and desire to set forth the terms and
conditions thereof.
NOW, THEREFORE
, for and in consideration of the
mutual promises and undertakings herein set forth, Executive and
Company hereby agree as follows:
1. Administration of the
Agreement . The
Agreement shall be administered by the Board of Directors of the
Company or its delegate (the “Administrator”). Subject
to the provisions of the Agreement, the Administrator shall have
full and final authority in its discretion to take any action with
respect to the Agreement including, without limitation, the
authority to (i)
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determine all matters relating to the payments;
(ii) establish, amend and rescind rules and regulations for
the administration of the Agreement; and (iii) construe and
interpret the Agreement, to interpret rules and regulations for
administering the Agreement and to make all other determinations
deemed necessary or advisable for administering the Agreement.
Except to the extent otherwise required under Section 409A of
the Internal Revenue Code of 1986, as amended (“Code”),
the Administrator shall have the authority, in its sole discretion,
to accelerate the date that any Consultation Payments or Separation
Payments which were not otherwise vested or earned shall become
vested or earned in whole or in part without any obligation to
accelerate such date with respect to any other employee. The
Administrator also may in its sole discretion determine that
Executive’s rights or payments under the Agreement shall be
subject to reduction, cancellation, forfeiture or recoupment due to
conduct by Executive that is determined by the Administrator to be
detrimental to the business or reputation of the Company,
including, without limitation, upon termination of employment for
cause; violation of policies of the Company; or breach of
non-solicitation, noncompetition, confidentiality or other
restrictive covenants that apply to the Executive. In addition to
action by meeting in accordance with applicable laws, any action of
the Administrator with respect to the Agreement may be taken by a
written instrument signed by the Administrator (including, where
the Board or a committee serves as the Administrator, by written
consent signed by all of the members of the Board, or all of the
members of a committee, and any such action so taken by written
consent shall be as fully effective as if it had been taken by a
majority of the members at a meeting duly held and called). No
individual shall be liable while acting as Administrator for any
action or determination made in good faith with respect to the
Agreement, and any such individual shall be entitled to
indemnification and reimbursement in the manner provided in the
Company’s certificate of incorporation and bylaws and/or
under applicable law.
2. Consultation Payments
. Following
Executive’s separation from service with Company on or after
his Vesting Date (as defined in Section 7), Company shall pay
to Executive the sum of SEVEN HUNDRED THIRTY-EIGHT AND 69/100
Dollars ($738.69) per month, beginning six months and one week
after Executive’s date of separation for a period of ten
(10) years, or until Executive’s death, whichever first
occurs (“Consultation Payments”). If Executive should
die during the ten-year period during which Consultation Payments
are being made under this Paragraph 2, then those payments shall
terminate.
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The monthly Consultation Payments
shall be paid for and in consideration of Executive’s
support, sponsorship, advisory and other services provided to
Company (“Consultation Services”), such sum to be
payable to Executive whether or not Executive’s Consultation
Services are utilized in said month by Company. Except as set forth
below, Consultation Payments hereunder shall be payable each month
without deductions and Executive agrees to be solely responsible
for the payment of all income and other taxes out of said funds and
all Social Security, self-employment and any other taxes or
assessments, if any, applicable on said compensation.
For and in consideration of said
monthly Consultation Payments to Executive, Executive will provide
Consultation Services as an independent contractor to Company, as
and when Company may request, which services may be provided with
respect to all phases of Company’s business and particularly
those phases in which Executive has particular expertise and
knowledge. Executive’s services shall be limited to those of
an independent contractor, shall not be on a day-to-day regularly
scheduled operational basis and shall be provided only when
Executive is reasonably available and willing, which willingness
will not be unreasonably withheld.
Effective as of Executive’s
date of separation, Executive and Company agree that Executive
shall be, under the terms of this Agreement, an independent
contractor, and Executive agrees that Executive’s rights and
privileges and obligations are only as provided in this Agreement
as to matters covered herein. Notwithstanding the foregoing, if
Company determines that the Consultation Payments are compensation
for other than payments for Consultation Services, and such
payments shall be subject to any and all applicable withholding,
Social Security, employment, income and other taxes or assessments,
if any, under applicable tax law, the said payments shall be
subject to the required withholdings.
3. Separation Payments
. Following
Executive’s separation from service with Company on or after
his Vesting Date (as defined in Section 7), Company shall pay
to Executive the sum of TWO THOUSAND TWO HUNDRED SIXTEEN AND 06/100
Dollars ($2,216.06) per month, beginning six months and one week
after Executive’s date of separation for a period of ten
(10) years, or until Executive’s death, whichever first
occurs (the “Separation Payments”). Such payments shall
be subject to any and all applicable withholding, Social Security,
employment, income and other taxes or assessments, if any, under
the applicable tax
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law. If Executive should die during the ten-year
period during which payments are being made under this Paragraph 3,
then those payments shall terminate and future payments, if any,
shall be made to Executive’s designated beneficiary(ies) or
Executive’s estate in accordance with the provisions of
Paragraph 4 of this Agreement.
4. Continuation of
Payments . Following
Executive’s death during the original ten-year period of
payments under Paragraph 3 above, the sum of TWO THOUSAND NINE
HUNDRED FIFTY-FOUR AND 75/100 Dollars ($2,954.75) per month shall
be paid to such individual or individuals as Executive shall have
designated in writing as his beneficiary(ies) as provided in
Paragraph 13 below or, in the absence of such designation, to
Executive’s estate, as applicable, beginning the first
calendar month following the date of Executive’s death and
continuing thereafter until the expiration of said original
ten-year period. Once the monthly payments have begun to Executive,
whether paid by Company or as otherwise provided herein, the
maximum payment period under this Agreement shall be ten
(10) years.
5. Covenant Not To
Compete. For and in
consideration of the monthly payments described in Paragraphs 2 and
3, Executive agrees not to become an officer or employee of,
provide any consultation to, nor participate in any manner with,
any other entity of any type or description involved in any major
element of business which Company is performing at the time of
Executive’s separation from service with the Company, nor
will Executive perform or seek to perform any consultation or other
type of work or service with any other firm, person or entity,
directly or indirectly, in any such business which competes with
Company, whether done directly or indirectly, in ownership,
consultation, employment or otherwise. Executive agrees not to
reveal to outside sources, without the consent of Company, any
matters, the revealing of which could, in any manner, adversely
affect or disclose Company’s business or any part thereof,
unless required by law to do so. This Covenant Not To Compete by
Executive is limited to the geographic area consisting of each
county or like jurisdictional entity in which either Company or any
banking or investment entity owned directly or indirectly by the
parent of Company shall maintain a banking or other business office
at the time of Executive’s separation from service, shall
exist for and during the term of all payments to be made under
Paragraphs 2 and 3, whether made directly by Company or as
otherwise provided herein, and shall not prevent Executive from
purchasing or acquiring, as an investor only, a financial interest
of less than 5% in a business or other entity which is in
competition with Company.
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Executive acknowledges that the
remedy at law for breach of Executive’s Covenant Not To
Compete will be inadequate and that Company shall be entitled to
injunctive relief as to any violation thereof; however, nothing
herein shall be construed as prohibiting Company from pursuing any
other remedies available to it, in addition to injunctive relief,
whether at law or in equity, including the recovery of damages. In
the event Executive shall breach any condition of Executive’s
Covenant Not To Compete, then Executive’s right to any of the
payments becoming due under Paragraphs 2 and 3 of this Agreement
after the date of such breach shall be forever forfeited and the
right of Executive’s designated beneficiary(ies) or
Executive’s estate to any payments under this Agreement shall
likewise be forever forfeited. This forfeiture is in addition to
and not in lieu of any of the above-described remedies of Company
and shall be in addition to any injunctive or other relief as
described herein. Executive further acknowledges that any breach of
Executive’s Covenant Not To Compete shall be deemed a
material breach of this Agreement.
6. Death Benefits
. In the event Executive
dies while employed by Company or within six months and one week
after Executive’s date of separation from service with
Company due to
