CONSULTING AND RESTRICTIVE COVENANTS AGREEMENT
Exhibit 10.2 to 8-K
dated June 22, 2007
CONSULTING AND RESTRICTIVE COVENANTS AGREEMENT
THIS CONSULTING AND RESTRICTIVE COVENANTS AGREEMENT (this “Agreement”) is made and entered into this 22nd day of June, 2007 by and among Seacoast Banking Corporation of Florida (the “Company”), Seacoast National Bank (the “Bank”) and A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇”), to be effective as of January 1, 2009, or such earlier date as may be agreed upon by ▇▇. ▇▇▇▇▇▇▇ and the Company (the “Effective Date”).
BACKGROUND
▇▇. ▇▇▇▇▇▇▇ currently serves as President and Chief Operating and Credit Officer of the Company, pursuant to an Executive Employment Agreement, dated as of March 22, 1991, between the Company and ▇▇. ▇▇▇▇▇▇▇ (the “Employment Agreement”). In addition, the Company and ▇▇. ▇▇▇▇▇▇▇ have entered into a Change of Control Employment Agreement, dated as of December 24, 2003 (the “Change of Control Agreement”), pursuant to which ▇▇. ▇▇▇▇▇▇▇ shall have certain rights with respect to his employment following a Change of Control, as defined therein. Effective as of January 31, 2009, or such earlier date of retirement approved by the Company (the “Retirement Date”), ▇▇. ▇▇▇▇▇▇▇ will resign from his positions as an officer and employee of the Bank and the Company and will thereafter provide consulting services to the Company upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
1.
Employment Agreement, Change in Control Agreement and Resignations. ▇▇. ▇▇▇▇▇▇▇ will tender his resignation as an employee and officer of the Bank and the Company, effective as of his Retirement Date. Until such Retirement Date, ▇▇. ▇▇▇▇▇▇▇’▇ employment will be subject to the terms and conditions of the Employment Agreement and, if applicable, the Change of Control Agreement. In the event that ▇▇. ▇▇▇▇▇▇▇’▇ employment is terminated prior to the Effective Date for any reason, other than such earlier retirement approved by the Company, this Agreement shall expire and shall have no force or effect.
As provided further in this Agreement, ▇▇. ▇▇▇▇▇▇▇ will provide consulting services to the Company after the Effective Date. ▇▇. ▇▇▇▇▇▇▇ and the Company acknowledge that his termination of employment on the Effective Date shall not be deemed a termination subject to Sections 4(d), (e), (f), or (g) of the Employment Agreement or pursuant to the Change of Control Agreement. Upon and following the Effective Date, ▇▇. ▇▇▇▇▇▇▇ shall not be entitled to severance or any other post-termination benefits or payments under the Change of Control Agreement or the Employment Agreement.
2.
Consulting Period. Unless terminated sooner pursuant to Section 5 below, the term of this Agreement shall be for the five-year period commencing on the Effective Date and ending on the fifth anniversary of the Effective Date.
3.
Consulting Services; Board Service.
(a)
Consulting Services. Consultant’s services shall include, but not necessarily be limited to, maintenance of key customer relationships, support of new business development for and on behalf of the Company, the Bank and the Company's other subsidiaries, support of key officer development, continued oversight and management transition of the Seacoast Marine Lending Division of the Bank and such other matters as the Chief Executive Officer of the Company or the Bank or the President and Chief Operating Officer of the Bank, respectively, may request. During the Consulting Period, ▇▇. ▇▇▇▇▇▇▇ shall devote such time and attention to his duties hereunder as is reasonably required to provide consulting services satisfactory to the Company pursuant to this Agreement; provided, however, that ▇▇. ▇▇▇▇▇▇▇ will devote no less than 40 hours per month to his duties hereunder. Notwithstanding the foregoing, the times during which, and the locations at which, ▇▇. ▇▇▇▇▇▇▇ shall perform his services hereunder shall be subject to the mutual agreement of ▇▇. ▇▇▇▇▇▇▇ and the Company.
(b)
Service as a Director. During the Consulting Period, ▇▇. ▇▇▇▇▇▇▇ agrees to serve as a member of the Board of Directors (the “Board”) of the Company.
4.
Compensation for Consulting Services. As compensation for the consulting services to be provided by ▇▇. ▇▇▇▇▇▇▇ hereunder, the Company shall pay and provide the following compensation:
(a)
Consulting Fee. During the Consulting Period, the Company will pay to ▇▇. ▇▇▇▇▇▇▇ a consulting fee in an amount equal to $25,000 per month (the “Consulting Fee”). The Consulting Fee shall be paid in monthly installments. At ▇▇. ▇▇▇▇▇▇▇'▇ option and upon notice to the Company prior to the Effective Date, ▇▇. ▇▇▇▇▇▇▇ may delay any payments hereunder by 6 months.
(b)
Board Service Fees. As a member of the Board, ▇▇. ▇▇▇▇▇▇▇ will receive compensation payable pursuant to the Company’s normal policy for non-employee directors, as changed by the Board from time to time.
(c)
Welfare Benefits. The Company shall purchase for ▇▇. ▇▇▇▇▇▇▇ and his spouse a health benefit plan for the Consulting Period. In addition, the Company shall purchase for ▇▇. ▇▇▇▇▇▇▇ a term life insurance policy, with a value equal to one times the amount of the annual Consulting Fee, for the Consulting Period. Such policy shall expire upon termination of the Consulting Period, or, if earlier, termination of ▇▇. ▇▇▇▇▇▇▇’▇ consulting services as provided in Section 5 herein.
(d)
Fringe Benefits. During the Consulting Period, the Company shall provide ▇▇. ▇▇▇▇▇▇▇ with the same fringe benefits to which executive officers of the Company and the Bank receive, to the extent legally permissible, in accordance with the plans, practices, programs and policies of the Company, including, but not limited to, reimbursement for expenses, including dues, for clubs of which ▇▇. ▇▇▇▇▇▇▇ is a member, and continued use of a Company car. During the Consulting Period, ▇▇. ▇▇▇▇▇▇▇ will be entitled to office, furnishings and equipment of similar type and quality made available to him immediately prior to the Effective Date, and ▇▇. ▇▇▇▇▇▇▇ shall be entitled to secretarial and other assistance reasonably necessary for the performance of his duties and responsibilities, as determined by the Company.
(e)
Expenses. The Company shall reimburse ▇▇. ▇▇▇▇▇▇▇ for all reasonable expenses incurred by him in connection with the performance of his duties hereunder, provided that ▇▇. ▇▇▇▇▇▇▇ shall furnish the Company with a reasonable accounting for his expenses and hours spent. The reasonableness of such expenses shall be subject to the determination by the Company, in a manner consistent with the Company’s normal expense reimbursement policies.
(f)
Equity Awards. Any equity awards granted to ▇▇. ▇▇▇▇▇▇▇ prior to the Effective Date shall become immediately exercisable on the Effective Date and shall thereafter lapse in accordance with the other provisions of the applicable plan and award agreement.
5.
Termination of Consulting Services.
(a)
Death or Disability. ▇▇. ▇▇▇▇▇▇▇’▇ service as a consultant shall terminate automatically upon his death or disability during the Consulting Period.
(b)
Termination by the Company. The Company may terminate ▇▇. ▇▇▇▇▇▇▇’▇ status as a consultant, with or without cause, at any time prior to a “Change of Control” (as defined in the Change of Control Agreement) or definitive negotiations regarding a Change of Control, or an unsolicited tender offer that, if reasonably likely to be completed, would result in a Change in Control.
(c)
Termination by ▇▇. ▇▇▇▇▇▇▇. ▇▇. ▇▇▇▇▇▇▇ may terminate his status as a consultant at any time, for any reason or no reason.
(d)
Notice of Termination. Any termination by the Company or by ▇▇. ▇▇▇▇▇▇▇ shall be communicated by notice of termination to the other party hereto given in accordance with Section 10(f) of this Agreement.
(e)
Date of Termination. “Date of Termination” means (i) if ▇▇. ▇▇▇▇▇▇▇’▇ status as a consultant is terminated other than by reason of his death or disability, the date of receipt of the notice of termination, or any later date specified therein, or (ii) if ▇▇. ▇▇▇▇▇▇▇’▇ status as a consultant is terminated by reason of death, the Date of Termination will be the date of death.
6.
Obligations of the Company upon Termination. Upon termination of the Consulting Period for any reason, including termination by expiration of the Consulting Period, early termination by either party, or termination by reason of ▇▇. ▇▇▇▇▇▇▇’▇ death or disability, then, in consideration of his services prior to the Date of Termination and his compliance with the Restrictive Covenants set forth in Section 8 of this Agreement, the Company shall, to the extent not theretofore paid, pay to ▇▇. ▇▇▇▇▇▇▇ or his estate in a lump sum in cash within 30 days after the Date of Termination the Consulting Fee earned through the Date of Termination and any expenses accrued and reimbursable hereunder through the Date of Termination.
7.
Independent Contractor. This Agreement calls for the performance of services by ▇▇. ▇▇▇▇▇▇▇ as an independent contractor, and ▇▇. ▇▇▇▇▇▇▇ will not be and will not be considered an employee of the Company for any purpose during the Consulting Period. Accordingly, it is understood and agreed that during the Consulting Period ▇▇. ▇▇▇▇▇▇▇ (a) has no authority to act for, or bind the Company by contract or otherwise; (b) is not eligible to participate in any employment benefit plan or program available to employees of the Company; (c) will be treated as an independent contractor for purposes of the Federal Insurance Contributions Act, federal income tax withholding, the Employee Retirement Income Security Act, state unemployment or disability insurance laws, or other similar laws; (d) shall work with, and take general direction from, the Chief Executive Officer of the Company; and (e) will perform the services required under and pursuant to this Agreement in good faith and with a view toward maintaining and enhancing the customer and community relationship, reputation, and goodwill of the Company, the Bank and their subsidiaries.
8.
Restrictions on ▇▇. ▇▇▇▇▇▇▇’▇ Conduct.
(a)
General. ▇▇. ▇▇▇▇▇▇▇ acknowledges that his rights, the payments for services hereunder, and benefits under this Agreement are contingent upon his compliance with the provisions of this Section 8. ▇▇. ▇▇▇▇▇▇▇ recognizes and agrees that the Company will suffer irreparable harm in the event that ▇▇. ▇▇▇▇▇▇▇ violates any of the Restrictive Covenants (as defined below). ▇▇. ▇▇▇▇▇▇▇ and the Company understand and agree that the purpose of the provisions of this Section 8 is to protect the Company's, the Bank's and their subsidiaries' legitimate business interests, as more fully described below, and is not intended to impair or infringe upon ▇▇. ▇▇▇▇▇▇▇’▇ right to work, earn a living, or acquire and possess property from the fruits of his labor. ▇▇. ▇▇▇▇▇▇▇ and the Company acknowledge and agree that the Restrictive Covenants are not made in connection with ▇▇. ▇▇▇▇▇▇▇’▇ former services for the Company, but rather are intended to protect the Company’s interests. ▇▇. ▇▇▇▇▇▇▇ hereby acknowledges that the restrictions set forth in this Section 8 are reasonable and that they do not, and will not, unduly impair his ability to earn a living. Therefore, in consideration of (i) ▇▇. ▇▇▇▇▇▇▇’▇ rights and benefits under this Agreement; (ii) in consideration of the monetary compensation provided in Section 4; and (iii) in consideration of receiving access to the Confidential Information and Trade Secrets (as defined below), and, subject to the limitations of reasonableness imposed by law, ▇▇. ▇▇▇▇▇▇▇ shall be subject to the restrictions set forth in this Section 8.
(b)
Definitions. The following capitalized terms used in this Section 8 shall have the meanings assigned to them below:
“Competitive Position” means any position with a Competitor as a Principal or Representative in which ▇▇. ▇▇▇▇▇▇▇ will use or is likely to use any Confidential Information or Trade Secrets, or in which ▇▇. ▇▇▇▇▇▇▇ has duties for, provides services to, or otherwise assists such Competitor where such duties, services or assistance involve Competitive Services.
“Competitive Services” means any activities engaged in by the Company as of the Effective Date that relate directly to soliciting customers or engaging in business development activities in the business of banking, fiduciary services, securities and insurance brokerage, investment management or services, making or administering loans or making credit decisions, or deposit taking.
“Competitor” means any Person engaged, wholly or in material part, in Competitive Services.
“Confidential Information” means all information regarding the Company, its activities, business or clients that is the subject of reasonable efforts by the Company to maintain its confidentiality and that is not generally disclosed by practice or authority to persons not employed by the Company, but that does not rise to the level of a Trade Secret. “Confidential Information” shall include, but is not limited to financial plans and data concerning the Company; management planning information; business plans; operational methods; market studies; marketing plans or strategies; product development techniques or plans; customer lists; details of customer contracts; credit policies and practices; customer names, data and information; current and anticipated customers; targeted potential customers; business acquisition plans; new personnel acquisition plans; and pricing information. “Confidential Information” shall not include information that has become generally available to the public by the act of one who has the right to disclose such information without violating any right, privilege or obligation of the Company. This definition shall not limit any definition of “confidential information” or any equivalent term under state or federal law.
“Person” means any individual or any corporation, partnership, joint venture, trust, limited liability company, association or other entity or enterprise, including governmental agencies and authorities.
“Principal or Representative” means a principal, owner, partner, shareholder, joint venturer, investor, member, trustee, director, officer, manager, employee, agent, representative or consultant.
“Protected Customers” means any Person to whom the Company has sold its products or services or to whom the Company has submitted a written proposal to sell its products or services during the Consulting Period or during the twelve (12) months prior to the Effective Date.
“Protected Employees” means employees of the Company who were employed by the Company at any time during the Consulting Period or within six (6) months prior to the Effective Date.
“Restricted Period” means the Consulting Period plus twenty-four (24) months after the termination of the Consulting Period; provided, however that such period shall be extended by any length of time during which Executive is in breach of the Restricted Covenants.
“Restricted Territory” means the counties in the State of Florida and elsewhere where the Company, the Bank or their subsidiaries have offices at the Termination Date and, with respect to the Bank's Seacoast Marine Lending Division, the markets served by such Division, at the Termination Date.
“Restrictive Covenants” means the restrictive covenants contained in Section 8(d) hereof.
“Trade Secret” means all information, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, distribution lists or a list of actual or potential customers, advertisers or suppliers which is not commonly known by or available to the public and which information: (A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy, and includes any item of confidential information that constitutes a “trade secret(s)” under the common law or federal law or the laws of the State of Florida.
(c)
Protectable Employer Interests. ▇▇. ▇▇▇▇▇▇▇ and the Company acknowledge and agree as follows: (i) that ▇▇. ▇▇▇▇▇▇▇’▇ services on behalf of the Company have required and will continue to require special expertise and talent in the provision of Competitive Services; (ii) that ▇▇. ▇▇▇▇▇▇▇ has been and will continue to be in a position of trust and responsibility and have access to a substantial amount of Confidential Information and Trade Secrets belonging to the Company; (iii) that, during his employment with the Company and the Consulting Period, ▇▇. ▇▇▇▇▇▇▇ has developed and will continue to develop substantial relationships with prospective and existing customers of the Company; and (iv) that as a former officer and consultant to the Company, ▇▇. ▇▇▇▇▇▇▇ has been and will be the repository of a substantial portion of the customer goodwill of the Company.
(d)
Restrictive Covenants.
(i)
Restriction on Disclosure and Use of Confidential Information and Trade Secrets. ▇▇. ▇▇▇▇▇▇▇ understands and agrees that the Confidential Information and Trade Secrets constitute valuable assets of the Company and its affiliated entities, and may not be converted to ▇▇. ▇▇▇▇▇▇▇’▇ own use or for or on behalf of any other Person. Accordingly, ▇▇. ▇▇▇▇▇▇▇ hereby agrees that he shall not, directly or indirectly, at any time during the Restricted Period reveal, divulge, or disclose to any Person not expressly authorized by the Company any Confidential Information, and he shall not, directly or indirectly, at any time during the Restricted Period use or make use of any Confidential Information in connection with any business activity other than business of the Company. During the Restricted Period, ▇▇. ▇▇▇▇▇▇▇ shall not directly or indirectly transmit or disclose any Trade Secret of the Company to any Person, and shall not make use of any such Trade Secret, directly or indirectly, for himself or for others, without the prior written consent of the Company. ▇▇. ▇▇▇▇▇▇▇ and the Company acknowledge and agree that this Section 8 is not intended to, and does not, alter either the Company’s rights or ▇▇. ▇▇▇▇▇▇▇’▇ obligations under any state or federal statutory or common law regarding trade secrets and unfair trade practices.
(ii)
Nonsolicitation of Protected Employees. ▇▇. ▇▇▇▇▇▇▇ understands and agrees that the relationship between the Company and each of its Protected Employees constitutes a valuable asset of the Company and may not be converted through ▇▇. ▇▇▇▇▇▇▇‘s solicitation to ▇▇. ▇▇▇▇▇▇▇’▇ own use. Accordingly, ▇▇. ▇▇▇▇▇▇▇ hereby agrees that during the Restricted Period, ▇▇. ▇▇▇▇▇▇▇ will not, directly or indirectly, on his own behalf or as a Principal or Representative of any Person or otherwise, solicit or induce any Protected Employee to terminate his employment relationship with the Company or to enter into any relationship of employment, agency or independent contractorship with any other Person.
(iii)
Restriction on Relationships with Protected Customers. ▇▇. ▇▇▇▇▇▇▇ understands and agrees that the relationship between the Company and each of its Protected Customers constitutes a valuable asset of the Company and may not be converted through ▇▇. ▇▇▇▇▇▇▇’▇ solicitation to ▇▇. ▇▇▇▇▇▇▇’▇ own use. Accordingly, ▇▇. ▇▇▇▇▇▇▇ hereby agrees that, during the Restricted Period, ▇▇. ▇▇▇▇▇▇▇ will not, without the prior written consent of the Company, directly or indirectly, on his own behalf or as a Principal or Representative of any Person, solicit, divert, or attempt to solicit or divert a Protected Customer for the purpose of providing or selling Competitive Services; provided, however, that the prohibition of this covenant shall apply only to Protected Customers with whom ▇▇. ▇▇▇▇▇▇▇ had Material Contact on the Company’s behalf during the Consulting Period or during the twelve (12) months immediately preceding the Effective Date. For purposes of this Agreement, ▇▇. ▇▇▇▇▇▇▇ had “Material Contact” with a Protected Customer if (a) ▇▇. ▇▇▇▇▇▇▇ had business dealings with the Protected Customer on the Company’s behalf; (b) ▇▇. ▇▇▇▇▇▇▇ was responsible for supervising or coordinating the dealings between the Company and the Protected Customer; or (c) ▇▇. ▇▇▇▇▇▇▇ obtained Trade Secrets or Confidential Information about the customer as a result of ▇▇. ▇▇▇▇▇▇▇’▇ association with the Company.
(iv)
Noncompetition with the Company. ▇▇. ▇▇▇▇▇▇▇ understands and agrees that he is capable of obtaining gainful, lucrative and desirable employment that does not violate the restrictions contained in this Agreement. ▇▇. ▇▇▇▇▇▇▇ hereby agrees that, during the Restricted Period, ▇▇. ▇▇▇▇▇▇▇ will not, without prior written consent of the Company, directly or indirectly seek or obtain a Competitive Position in the Restricted Territory with a Competitor; provided, however, that the provisions of this Agreement shall not be deemed to prohibit the ownership by ▇▇. ▇▇▇▇▇▇▇ of any securities of the Company or its affiliated entities or not more than five percent (5%) of any class of securities of any corporation having a class of securities registered pursuant to the Securities Exchange Act of 1934, as amended.
(e)
Exceptions from Disclosure Restrictions. Anything herein to the contrary notwithstanding, ▇▇. ▇▇▇▇▇▇▇ will not be restricted from disclosing or using Confidential Information that: (a) is or becomes generally available to the public other than as a result of an unauthorized disclosure by ▇▇. ▇▇▇▇▇▇▇ or his agent; (b) becomes available to ▇▇. ▇▇▇▇▇▇▇ in a manner that is not in contravention of applicable law from a source (other than the Company or its affiliated entities or one of its or their officers, employees, agents or representatives) that is not bound by a confidential relationship with the Company or its affiliated entities or by a confidentiality or other similar agreement; (c) was known to ▇▇. ▇▇▇▇▇▇▇ on a non-confidential basis and not in contravention of applicable law or a confidentiality or other similar agreement before its disclosure to ▇▇. ▇▇▇▇▇▇▇ by the Company or its affiliated entities or one of its or their officers, employees, agents or representatives; or (d) is required to be disclosed by law, court order or other legal process; provided, however, that in the event disclosure is required by law, ▇▇. ▇▇▇▇▇▇▇ will provide the Company with prompt notice of such requirement so that the Company may seek an appropriate protective order prior to any such required disclosure by ▇▇. ▇▇▇▇▇▇▇.
(f)
Reasonableness. The covenants contained in this Section 8 are considered by the parties hereto to be fair, reasonable and necessary for the protection of the legitimate business interests of the Company.
(g)
Rights and Remedies Upon Breach. In the event ▇▇. ▇▇▇▇▇▇▇ breaches, or threatens to commit a breach of, any of the provisions of the Restrictive Covenants, the Company shall have the following rights and remedies, which shall be independent of any others and severally enforceable, and shall be in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity:
(i)
the right and remedy to enjoin or restrain, preliminarily and permanently, ▇▇. ▇▇▇▇▇▇▇ from violating or threatening to violate the Restrictive Covenants and to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction without the need for posting a bond, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to the Company and that money damages would not provide an adequate remedy to the Company; and
(ii)
the right and remedy to require ▇▇. ▇▇▇▇▇▇▇ to account for and pay over to the Company all compensation paid to him pursuant to Section 4 of this Agreement as special consideration for the Restrictive Covenants; and
(iii)
the right and remedy to require ▇▇. ▇▇▇▇▇▇▇ to account for and pay over to the Company and the Bank all compensation, profits, monies, accruals, increments or other benefits derived or received by ▇▇. ▇▇▇▇▇▇▇ as the result of any transactions constituting a breach of the Restrictive Covenants; and
(iv)
the right and remedy to recover reasonable attorneys' fees incurred by the Company and/or the Bank to enforce this Agreement and any other damages permitted by law.
(h)
Severability of Covenants. ▇▇. ▇▇▇▇▇▇▇ acknowledges and agrees that the Restrictive Covenants are reasonable and valid in time and scope and in all other respects. The covenants set forth in this Agreement shall be considered and construed as separate and independent covenants. If any court determines that any of the Restrictive Covenants, or any part thereof, are invalid or unenforceable, the remainder of the Restrictive Covenants will not thereby be affected and will be given full effect, without regard to the invalid portions.
(i)
Reformation. ▇▇. ▇▇▇▇▇▇▇ and the Company agree that it is their mutual intention that the Restrictive Covenants be enforced in accordance with their terms to the maximum extent possible under applicable law. ▇▇. ▇▇▇▇▇▇▇ and the Company further agree that, in the event any court of competent jurisdiction shall find that any provision hereof is not enforceable in accordance with its terms, the court shall reform the Restrictive Covenants such that they will be enforceable to the maximum extent permissible at law.
9.
Representations and Warranties. ▇▇. ▇▇▇▇▇▇▇ hereby represents and warrants to the Company that (a) he is not a party to, or otherwise subject to, any covenant not to compete with any person or entity which would interfere with his consulting duties hereunder, (b) his performance of all the terms of this Agreement and as a consultant to the Company does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by ▇▇. ▇▇▇▇▇▇▇ in confidence or in trust prior to his relationship with the Company, and (c) his execution of this Agreement and performance of his obligations hereunder will not violate the terms or conditions of any contract or obligation, written or oral, between ▇▇. ▇▇▇▇▇▇▇ and any other person or entity.
10.
Miscellaneous.
(a)
Assignment and Successors. This Agreement is personal to ▇▇. ▇▇▇▇▇▇▇ and without the prior written consent of the Company shall not be assignable by ▇▇. ▇▇▇▇▇▇▇ otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by ▇▇. ▇▇▇▇▇▇▇’▇ legal representatives. This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.
(b)
Waiver. Failure of either party to insist, in one or more instances, on performance by the other in strict accordance with the terms and conditions of this Agreement shall not be deemed a waiver or relinquishment of any right granted in this Agreement or of the future performance of any such term or condition or of any other term or condition of this Agreement, unless such waiver is contained in a writing signed by the party making the waiver.
(c)
Severability. If any provision or covenant, or any part thereof, of this Agreement should be held by any court to be invalid, illegal or unenforceable, either in whole or in part, such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of the remaining provisions or covenants, or any part thereof, of this Agreement, all of which shall remain in full force and effect.
(d)
Entire Agreement. Except as provided herein, this Agreement contains the entire agreement and understanding among the Company and ▇▇. ▇▇▇▇▇▇▇ with respect to the subject matter hereof and, from and after the Effective Date, this Agreement shall supersede any other agreement between the parties with respect to the subject matter hereof, including, without limitation, the Employment Agreement and the Change in Control Agreement.
(e)
Choice of Law; Forum Selection. The validity, interpretation and performance of this Agreement shall be governed by, and construed in accordance with the laws of the State of Florida, excluding said State’s choice of law rules. The parties hereto voluntarily submit themselves to the jurisdiction of the state or federal district courts in the State of Florida, which shall have exclusive jurisdiction over any case or controversy arising under or in connection with or to remedy any breach of or otherwise to enforce the terms and conditions of this Agreement.
(f)
Notices. All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given if delivered personally or three days after mailing if mailed, first class, certified mail (return receipt requested), postage prepaid:
To the Company or the Bank:
Seacoast Banking Corporation of Florida
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
To ▇▇. ▇▇▇▇▇▇▇:
A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
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Any party may change the address to which notices, requests, demands and other communications shall be delivered or mailed by giving notice thereof to the other party in the same manner provided herein.
(g)
Amendments and Modifications. This Agreement may be amended or modified only by a writing signed by both parties hereto, which makes specific reference to this Agreement.
(h)
Construction. Each party and his or its counsel have reviewed this Agreement and have been provided the opportunity to revise this Agreement and accordingly, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. Instead, the language of all parts of this Agreement shall be construed as a whole, and according to its fair meaning, and not strictly for or against either party.
(i)
Other. As used herein, the singular shall include the plural and vice versa, and any reference to any gender shall include all other genders, as applicable. The terms "include", "including" and "included" and derivations thereof shall be deemed to be without limitation, whether by enumeration or otherwise.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Consulting Agreement as of the date first above written.
/s/ ▇▇▇▇▇▇ ▇▇▇▇ Witness | SEACOAST NATIONAL BANK By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III Title: Chairman & Chief Executive Officer |
/s/ ▇▇▇▇▇▇ ▇▇▇▇ Witness | SEACOAST BANKING CORPORATION OF FLORIDA By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III Title: Chairman & Chief Executive Officer |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Witness | /s/ A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
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