Ex-10.16 Gregory W. Bryant Confidentiality Agrmnt



 



Exhibit 10.16


CONFIDENTIALITY, NON-COMPETE, AND NON-SOLICITATION AGREEMENT


     THIS CONFIDENTIALITY, NON-COMPETE, AND NON-SOLICITATION AGREEMENT (the
“Agreement”) is made and entered into this 1st day of January, 2003, by and
between Bay Cities Bank (the “Employer”) and Gregory W. Bryant (the
“Employee”).


WITNESSETH


     WHEREAS, Employer is engaged in the banking industry and has established a
fine reputation and substantial goodwill in that business and serves clients
throughout the Tampa Bay and surrounding areas;


     WHEREAS, both Employer and Employee acknowledge that Employer has a
substantial and legitimate business interest in, among other things, its
confidential business information, trade secrets, customer and vendor lists,
methods of business operation, customer goodwill associated with its trade
name, trademark, service mark, and trade dress, and its substantial
relationships with specific prospective and existing customers;


     WHEREAS, Employer desires to retain Employee as an employee, and Employee
desires to continue in such employment, if already employed;


     WHEREAS, Employee acknowledges that the business of Employer is a very
competitive business;


     WHEREAS, Employee acknowledges that he is employed in a key position of
employment with Employer, one in which Employer reposes a great deal of
responsibility, trust, and reliance; and


     WHEREAS, Employer and Employee desire to continue their business
relationship subject to the establishment of this Confidentiality, Non-Compete,
and Non-solicitation Agreement;


     NOW, THEREFORE, in consideration of the covenants, promises,
representations, and understandings set forth below, the parties agree as
follows:


     1.     Recitals. The foregoing recitals are true and correct and made a part
of this Agreement.


     2.     Employment. In consideration for entering into this Agreement,
Employer agrees to continue to employ Employee pursuant to the terms of a
separate written Employment Agreement. Nothing contained herein shall in any
way alter the nature of Employee’s employment in the written Employment
Agreement effective January 1, 2003 or provide any assurance by Employer of
continuing employment beyond that which is provided in the January 1, 2003
Employment Agreement.


     Employee represents and warrants that Employee is not subject to any
restrictive agreement, other contractual or legal obligation, limitation, or
prohibition that would prohibit Employee from entering into this Agreement. In
the event of a breach of this warranty,


 






 



Employee agrees to indemnify and hold Employer harmless from any and all
claims, costs, expenses, attorney’s fees, lawsuits, or other liability arising
from such breach.


     3.     Confidentiality Agreement. Employee recognizes and acknowledges that
during the course of his employment Employee has and will continue to learn
various Employer proprietary or confidential business information (including
the identity and sources of markets, marketing information and strategies; data
processing and management information system programs and practices; vendors
and sources of vendors; customers and sources of customers and customer needs;
sales history; and financial strength, among others), and has and will continue
to have access to other confidential information related to the Employer’s
business, all of which Employee agrees to keep confidential at all times. Such
confidential information includes, but is not limited to, any and all documents
received or generated by Employer, customer lists and sources of customers and
customer needs, sales history and financial strengths, vendors and sources of
vendors, trade secrets, pricing information, financial information, corporate
information, personnel information, methods of operation, the identity and
source of markets, marketing information and strategies, data processing and
management information system programs and practices, and other proprietary
information. Employee acknowledges that Employer has a legitimate business
interest in its relationships with prospective or existing vendors, customers
and clients, as well as vendor, customer and client goodwill associated with
Employer’s trade name, trademark, service mark, trade dress, geographic
location, and sales, marketing and trade area. With respect to this
confidential information, Employee agrees as follows:



		
	 	     a. Employee will use all such information only in connection with
the performance of duties on behalf of Employer and agrees not to copy,
disclose or otherwise use such information or to later contest its
confidential or proprietary nature.
	 
	 	     b. Employee will not, during or after the term of his employment:
(1) publish, disclose, or make accessible any confidential information,
or any part thereof, to any person, firm, corporation, or association or
other entity for any reason whatsoever; or (2) use or generate benefit
from such information, except during employment with Employer and for the
benefit of Employer, without prior written permission of Employer.
	 
	 	     c. Employee shall return all tangible evidence of such confidential
information, including, but not limited to, any files, papers, memoranda,
records, documents, lists, books, files, and computer stored or generated
information, including any information stored on any computer hard drive,
diskettes, tapes, or other format, and copies of the foregoing, to
Employer prior to or at the termination of employment with Employer.
	 
	 	     d. Employee acknowledges and agrees that disclosure of any
confidential information of Employer by Employee would cause irreparable
harm to Employer and that Employer will be irreparably damaged if the
provisions of this paragraph are not specifically enforced, that monetary
damages will not provide an adequate remedy to Employer, and that
Employer is entitled to an injunction (preliminary, temporary and final),
restraining any violation of this paragraph (without bond or other
security being required), or any other appropriate decree of specific
performance. In the event there is a breach or a threatened breach by
Employee of the provisions of this Paragraph Three (3), Employer shall be
entitled to an injunction restraining Employee from disclosing in whole
or in part such information, generating a benefit from such information,
or rendering a service to any person, firm, corporation, association, or
other entity, to whom



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	 	such information has been disclosed. It is agreed that such
remedies are not exclusive and shall be in addition to any other remedy
which Employer may have.
	 
	 	     e. Employee acknowledges and agrees that the restrictive covenants
contained in this Agreement are reasonably necessary to protect the
legitimate business interests of Employer and that the restrictions
stated are not overbroad or overlong and are otherwise reasonably
necessary to protect the established legitimate business interests of
Employer.



     4.     Non-Compete During Employment. Employee agrees that during the term of
his employment with Employer, he will not directly or indirectly become engaged
in any business dealing with Commercial Banking business or the sales and
marketing of Commercial Banking products, or solicit any such business except
for, on behalf of, or at the direction of the Employer without the prior
written approval of the Employer’s Board and/or its Chairman.


     5.     Non-Compete After Employment. Employee agrees that for a period of the
later of twelve (12) months after the termination of Employee’s employment with
Employer, or the completion of any payments under the separate written
Employment Agreement, Employee shall not in any way compete against Employer or
any subsidiary or affiliated or related entity of Employer, or accept
employment or establish any business relationship (including a consulting
relationship), direct or indirect, with any business entity in competition with
Employer or any subsidiary or affiliated or related entity of Employer or which
plans to be in competition with Employer or any subsidiary or affiliated or
related entity of Employer. Employee specifically agrees, without limitation,
that he shall not call upon, solicit, divert, take away or interfere with the
business or patronage of any person, partnership, corporation or other business
entity which is or was a customer of Employer on or after January 1, 2003,
regardless of whether Employee has had any previous customer contact or
personal relationship with such other business entity at any time, including
during or before Employee’s term of employment with Employer. For purposes of
this paragraph, “in competition with Employer” includes, but is not limited to,
financial institutions. The term “business entity in competition with
Employer” specifically includes, but is not limited to, those business entities
known as federally insured financial institutions, any successor, assign,
parent, subsidiary, or affiliated company of any of these entities and any
entity whose interest is to organize another financial institution. Employer
and Employee agree that Employer competes throughout the greater Tampa Bay
area, i.e. within 75 mile radius of 2202 North Westshore Blvd. (the
“Geographical Area”), and that the prohibition on competition applies to the
Geographical Area.


     6.     Non-Solicitation Agreement. Employee agrees that, during his
employment with Employer, and for a period of one (1) year after the
termination, for whatever reason, of his employment with Employer, Employee
shall not:



		
	 	     a. directly or indirectly engage, hire, employ, or solicit any
employee of Employer, or of any successor, assign, parent, subsidiary,
affiliated or related organization of Employer (a “Related
Organization”), or otherwise induce or attempt to induce any employee of
Employer or any Related Organization to leave employment of Employer or
any Related Organization or alter the employment relationship of any
employee with Employer or any Related Organization, or interfere with or
disrupt the relationship of Employer or any Related Organization with any
of its employees, or solicit or employ any person employed by Employer or
any Related Organization;



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	 	     b. directly or indirectly attempt to solicit any customer or client
of Employer, or of any Related Organization, or directly or indirectly
interfere with the relationship of Employer or of any Related
Organization, with any customers or clients or prospective or potential
customers or clients with whom Employee had a substantial relationship;
or
	 
	 	     c. accept the business of or provide services for any customer or
prospective or potential customer or client of Employer or any Related
Organization with whom Employee had a substantial relationship.



     7.     Tolling. The time restrictions applicable to Paragraphs Three (3),
Four (4), Five (5) and Six (6) shall be tolled during the period of any breach
of this Agreement.


     8.     Remedies for Breach of Confidentiality, Non-Compete and/or
Non-Solicitation Agreements. Employer and Employee acknowledge that the
remedies at law for any breach of Paragraphs Three (3), Four (4), Five (5) or
Six (6) are inadequate, and that Employer shall be entitled to injunctive
relief without notice to Employee, and that such injunctive relief shall not be
exclusive, but shall be in addition to any rights or remedies Employer or any
successor, assign, parent, subsidiary, affiliated or related organization of
Employer may have for such breach.


     9.     Invalid Provision. In the event any provision of this Agreement should
be or become invalid or unenforceable, that shall not affect the validity and
enforceability of any other provision of this Agreement. Similarly, if the
scope of any restriction or covenant contained herein should be or become too
broad or extensive to permit enforcement thereof to its full extent, then the
court is specifically authorized by the parties to enforce any such restriction
or covenant to the maximum extent permitted by law, and Employee hereby
consents and agrees that the scope of any such restriction or covenant may be
modified accordingly in any judicial proceeding brought to enforce such
restriction or covenant.


     10.     Interpretation of Agreement. This Agreement has been brought about by
virtue of the negotiations of both Employer and Employee. Thus, should it ever
become necessary to construe or interpret the terms and conditions of this
Agreement, it shall be done without giving any consideration as to which of the
parties may have drafted this Agreement.


     11.     Applicable Law and Venue. This Agreement shall be interpreted under
and governed by the laws of the State of Florida. The exclusive venue of any
action brought under this Agreement shall be Hillsborough County Circuit Court
or the U.S. District Court for the Middle District of Florida, Tampa Division.


     12.     Amendments or Modifications. No amendments or modifications to this
Agreement shall be binding on any of the parties, unless such amendment or
modification is in writing and executed by all of the parties to this
Agreement. No term, provision or clause of this Agreement shall be deemed
waived and no breach excused, unless such waiver or consent shall be in writing
and executed by Employee and by the Chairman of the Board of Directors, on
behalf of Employer.


     13. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of Employer’s successors, assigns, parents, subsidiaries,
affiliated or related organizations and be enforceable by Employer’s
successors, assigns, parents, subsidiaries, affiliated or related
organizations. Each and every reference to “Employer” in this Agreement shall
be construed as including Employer’s successors, assigns, parents,
subsidiaries, affiliated or related organizations.


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     14.     Surviving Provisions. All of the provisions of this Agreement,
including, but not limited to, the restrictions and remedies, survive the
termination of Employee’s employment, irrespective of the grounds or reasons
for such termination, including termination by Employer with or without notice
or cause.


     15.     Reasonableness. Employee acknowledges that the restrictions hereby
imposed are fair and reasonable and are reasonably required for the protection
of the legitimate business interests of Employer. Employee has voluntarily and
knowingly entered into this Agreement and agrees that the non-compete
restriction of this Agreement will not prevent Employee from finding suitable
employment should Employee’s employment terminate for whatever reason.


     16.     Disclosure of Agreement. Employee shall, and Employer may, disclose
this Agreement and its terms to any future or prospective employer of Employee
and to any client, customer, or prospective client or customer of Employer,
Employee, or future employer of Employee.


     17.     Notice. If, at any time, Employee believes that for any reason
Employee is no longer bound by this Agreement, Employee must notify Employer in
writing within 30 days of the circumstance or event which forms the basis for
such belief. Such notice shall state with particularity the circumstance or
event that forms the basis for Employee’s belief. Failure to strictly comply
with this notice requirement on a timely basis shall serve as a waiver of
Employee’s contention that Employee is no longer bound by this Agreement.
After receipt of such notice, Employer shall have 30 days to remedy the
circumstance or event. If Employer remedies the circumstance or event, this
shall serve as a waiver of Employee’s contention that Employee is no longer
bound by this Agreement. Any effort by Employer to remedy the circumstance or
event shall in no way be construed as any sort of admission that the
circumstance or event relieves Employee of Employee’s obligations under this
Agreement. Any notice to Employer shall be delivered by U.S. Mail, postage
prepaid, return receipt requested, to the following address:



	 	 	 
	A. Bronson Thayer	 	
 
	Chairman of the Board of Directors	 	 
	Bay Cities Bank	 	 
	P.O. Box 21027	 	 
	Tampa, FL 33622-1027	 	 



     18.     Complete Agreement. This Agreement represents the complete agreement
between Employee and Employer regarding the subject matter of this Agreement.
Employee acknowledges and agrees that no representation, promise, or agreement
regarding the subject matter of this Agreement has been made to or with
Employee that is not set forth in this Agreement. Any representations or
agreements regarding the subject matter of this Agreement not explicitly
included in this Agreement are considered waived and unenforceable. Any
previous agreements between Employer and Employee regarding the subject matter
of this Agreement are hereby superceded by execution of this Agreement, and
shall be devoid of any continuing force or effect. This Agreement is in no way
dependent upon the performance of any other contract or agreement that may have
been or may be entered into between Employee and Employer, including but not
limited to the separate written Employment Agreement, and the breach or alleged
breach of any other contract or agreement, including the separate written
Employment Agreement, is no defense to enforcement of this Agreement. Employer
and Employee acknowledge the existence of a separate written Employment
Agreement into which


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they have entered, which is a separate agreement that contains and
addresses its own subject matter.


     19.     Acknowledgment. Employee acknowledges that Employee has read this
Agreement in full and completely understands all of its terms and obligations
and enters into this Agreement freely and voluntarily.


     IN WITNESS THEREOF, the parties hereto have executed this Agreement as of
the date set forth above.



	 	 	 	 	 	 	 
	
Signed, sealed and delivered

In the presence of:
	 	BAY CITIES BANK
	 	 	 	 	By	 	 
	


	 	 	 	

	Name:	 	 	 	Name:	 	 
	 	 	


	 	 	 	

	 	 	 	 	Title:	 	 
	 	 	 	 	 	 	

	Date:	 	 	 	Date:	 	 
	 	 	


	 	 	 	

	 
	


	 	

	Name:	 	 	 	Name:	 	 
	 	 	


	 	 	 	

	 	 	 	 	 	 	Gregory W. Bryant
	Date:	 	 	 	Date:	 	 
	 	 	


	 	 	 	





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