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Exhibit 10.4
EMPLOYMENT AGREEMENT
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This agreement made and entered into this 15th day of July, 1998,
between BIG LAKE NATIONAL BANK (hereinafter referred to as "the Bank") and BIG
LAKE FINANCIAL CORPORATION (hereinafter referred to as "the Holding Company")
and XXX X. XXXXXXX, (hereinafter referred to as "the Employee");
WHEREAS, the bank is a national bank, regulated by the Office of the
Comptroller of the Currency, insured by the Federal Deposit Insurance
Corporation, and located in Okeechobee, Florida; and
WHEREAS, the Holding Company is a Florida corporation which owns the
Bank; and
WHEREAS, the Bank and the Holding Company want to employ the Employee
as President and Chief Executive Officer of the Bank; and
WHEREAS, the parties desire to enter into this Agreement setting forth
the terms and conditions of the employment relationship of the Bank and the
Holding Company and the Employee.
NOW, THEREFORE, it is agreed as follows:
1. RELATIONSHIP ESTABLISHED AND DUTIES
A. The Bank and the Holding Company hereby will employ the Employee as
President and Chief Executive Officer, to hold the title of President and Chief
Executive Officer, and to perform such services and duties as the Board of
Directors of the Bank and the Holding Company may, from time to time, designate
during the term hereof. Subject to the terms and conditions hereof, Employee
will perform such duties and exercise such authority as are customarily
performed and exercised by persons holding such office, subject to the general
direction of the Board of Directors of the Bank and the Holding Company,
exercised in good faith in accordance with standards of reasonable business
judgement. Without limiting the generality of the foregoing, to the extent
permitted by law and the governing instruments of the Bank, the Employee shall
have the ultimate responsibility and authority for the hiring and firing of any
and all employees and/or officers of the Bank.
B. Employee shall serve on the Board of Directors of Big Lake National
Bank ("The Bank") and Big Lake Financial Corporation ("the Holding Company").
C. Employee accepts such employment and shall devote his full time,
attention, and efforts to the diligent performance of his duties herein
specified and as an officer and director of the Bank and Holding Company and
will not accept employment with any other individual, corporation, partnership,
governmental authority, or any other entity, or engage in any other venture for
profit which the Bank and/or the Holding Company may consider to be in conflict
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with his or its best interest or to be in competition with the Bank's or the
Holding Company's business, or which may interfere in any way with the
Employee's performance of his duties hereunder. Any exception to this must be
upon the prior written consent of the Board of Directors of the Bank and the
Company (hereinafter referred to as "the Board").
H. TERMS OF EMPLOYMENT
A. The initial term of employment under this Agreement shall commence
upon execution of this Agreement by all parties and shall continue until
December 31, 1999 unless such is terminated pursuant to the terms hereof or by
the first to occur of the conditions to be stated hereinafter. This Agreement
will be automatically extended each year after the initial term unless either
party give ninety (90) days contrary written notice to the other. The term
previously stated notwithstanding this contract shall be terminated by the
earlier to occur of any of the following:
1. Termination on Death or Disability: The employment period
shall automatically terminate upon the death of the Employee
or his disability as defined in this contract.
2. Benefits Payable to Employee Upon Disability: In the event of
the Employee's disability during the employment period, the
Bank shall have the obligation to provide the Employee, by
disability insurance or other mutually agreed-upon plan,
sixty-percent (60%) of the aggregate amount of the Base
Salary as in effect at the time such disability commences.
For purposes of this Agreement, "disability" shall mean the
employee's substantial inability, by reason of physical or
mental incapacity, to perform his services hereunder, which
shall continue for a period of six (6) months.
3. Termination for Cause: The employment period may be
terminated by the Bank for "cause" at any time during the
employment period upon fifteen (15) days' prior written
notice to the Employee, which notice shall state the facts
constituting such "cause", provided, however, the employee
shall have fifteen (15) days after receipt by him of such
notice to cure such state of affairs or facts constituting
"cause". Following notice by the Bank, the Employee may be
placed on paid administrative leave pending resolution as
described in this paragraph. For purposes of this section,
the term "cause" shall be limited to:
(a). Gross neglect or gross misconduct by the Employee in
carrying out his duties resulting in material harm to
the Bank or the Holding Company;
(b). The failure by the Employee to substantially perform
his
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duties hereunder (other than any such failure resulting
from the Employee's incapacity physical or mental
illness), after a demand for substantial performance is
delivered to the Employee by the Board which
specifically identifies the manner in which the Board
believes that the Employee has not substantially
performed his duties; or
(c). The order of a federal bank regulatory agency or a
court of competent jurisdiction requiring the
Employee's termination; or
(d). Conviction of a felony or fraud on the part of the
Employee, or;
(e). Conduct of such moral turpitude that the Employee's
reputation is impugned to such extent as to render him
ineffective in his position. The Employee may be
temporarily suspended with full pay, from duty if there
is substantial evidence of probable "cause" as
described herein, until "cause" is either proved or
cured; if cured, full reinstatement will immediately be
effected.
B. Termination of Employee's employment shall constitute a tender by
Employee of his resignation as an officer and director of the Bank and the
Holding Company. In the event the Bank terminates the Employee for other than
"cause", the Employee is entitled to severance pay equal to two (2) weeks'
salary at the rate in effect on the date of termination for each year of
service commencing September 16, 1988, or portion thereof, not to exceed an
amount equal to 12 months salary.
III. COMPENSATION
For all services which Employee may render to the Bank during the term
hereof, the Bank shall pay to employee, subject to such deductions as may be
required by law:
A. Base Salary. An annual salary of $127,000.00 until January 1, 1999.
Starting January, 1999 and in each January thereafter, annual increase reviews
will be done for a January 1 effective increase date during the term of this
Agreement so that for each calendar year starting January 1, 1999, the
Employee's salary increase will take effect. The Board has sole discretion as
to the amount of the Employee's compensation.
B. Payment of Base Salary. The Bank shall pay the Base Salary due to
the Employee in accordance with the policy of the Bank as in effect from time
to time for the payment of salary to senior executive personnel.
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C. Stock Option Plan. (ROAA in this section refers to Big Lake
National Bank only). Each year, a Stock Option ranging from 1,000 shares to
7,000 shares will be awarded in January of each year starting with January 1,
1999, based upon mutually agreed upon goals such as the Return on Average
Assets achieved after the application of taxes based upon the following
formula. Option will be issued at Book Value as of the immediate preceding
December 31 to be exercised within five (5) years. In the event of the
Employee's death or disability, his estate or representative can exercise
options during the six-month period following the Employee's death or
disability.
a. ROAA greater than 1.0% but less than 1.10% Shares 1,000
b. ROAA greater than 1.10% but less than 1.20% Shares 2,000
c. ROAA equal to 1.20% but less than 1.30% Shares 3,000
d. ROAA equal to 1.30% but less than 1.40% Shares 4,000
e. ROAA equal to 1.40% but less than 1.60% Shares 5,000
f. ROAA equal to 1.60% but less than 1.75% Shares 6,000
g. ROAA equal to 1.75% but less than 2.00% Shares 7,000
D. The Board of Directors may, at its sole discretion, reduce the
Stock Options to be issued under the preceding section in the event the Bank
does not achieve the following annual (JANUARY 1 - DECEMBER 31) growth targets
with respect to average Total Loans and Total Deposits.
Average Total Loans 10%
Average Total Deposits 10%
IV. DIRECTOR'S FEES
In addition to any other benefits or compensation provided for
hereunder, in return for his services as a member of the Board, the Bank and
Holding Company shall pay the Employee such Director's fees as it customarily
pays to corporate directors.
V. OTHER BENEFITS
A. The Employee shall be entitled to participate in any plan of the
Bank relating to stock options, stock purchased, profit sharing, thrift, group
life insurance, medical coverage, education, or other retirement or employee
benefits that the Bank may adopt for the benefit of
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its employees.
B. The Employee shall be eligible to participate in any other benefits
which may be or become applicable to the Bank's executive employees, shall be
furnished a vehicle (including all expenses of maintenance), a reasonable
expense account, the payment of reasonable expenses for attending annual and
periodic meetings of trade associations, and any other benefits which are
commensurate with the responsibilities and functions to be performed by the
Employee hereunder.
C. At such reasonable times as the Board of Directors shall in its
discretion permit, the Employee shall be entitled, without loss of pay, to
absent himself voluntarily from the performance of his employment under this
Agreement, all such voluntary absences to count as vacation time, provided
that:
1. The Employee shall be entitled to an annual vacation of four
(4) weeks per year. The employee shall schedule at least two
(2) consecutive weeks of vacation each year.
2. The timing of vacations shall be scheduled in a reasonable
manner by the Employee. The Employee shall not be entitled to
receive any additional compensation from the Bank on account
of his failure to take a vacation; nor shall he be entitled
to accumulate unused vacation time from one calendar year to
the next.
VI. CHANGE OF OWNERSHIP
A. For purposes of this Agreement, a Change in Ownership shall be
deemed to have occurred if any person or entity becomes the "beneficial owner"
(as defined in Rule 13d-3 promulgated pursuant to the Securities Exchange Act
of 1934), directly or indirectly, of 505 or more of the common stock of Big
Lake Financial Corporation or Big Lake National Bank after the date of this
agreement.
B. In the event a Change in Ownership occurs, Stock Options as
described in Section III-C, shall be declared accomplished and earned based
upon performance up to date of the Change in Ownership.
C. In the event a Change in Ownership occurs, then the Employee shall
have the right within 365 days following such Change in Ownership, to resign
and elect to receive the following severance package upon the delivery of
written notice (the "Notice of Election") by the Employee to the Bank and the
Holding Company.
1. A lump sum payment equal to one year's salary at the rate in
effect at the time the Change in Ownership occurs. Said
amount to be paid to the
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Employee in within thirty (30) business days following the
delivery by the Employee to the Bank and the Holding Company
of the Notice of Election.
2. Title to the automobile provided by the Bank to the
Employee, within thirty (30) business days following the
delivery by the Employee to the Bank of the Notice of
Election such title to be delivered by the Bank to the
Employee free and clear of all liens and encumbrances.
3. Provided Employee is insurable at standard rates, a paid-up
life insurance policy with a face amount equal to one year's
salary in effect on the date of the Notice of Election
insuring the life of the Employee (and payable to such
beneficiaries of as the Employee shall designate from time to
time). Said life insurance policy to be delivered by the Bank
to the Employee within thirty (30) business days following
the delivery by the Employee to the Bank of the Notice of
Election.
VII. EFFECT OF TERMINATION OF EMPLOYMENT
A. The parties intend that the Employee shall have the right to issue
the Notice of Election contemplated by this Agreement within 365 days following
a Change in Ownership. Accordingly, if the employment of the Employee is
terminated by either the Bank or the Holding Company, following a Change in
Ownership, then this termination of employment shall not affect the right of
the Employee to elect within the 365-day period following a Change in Ownership
to receive the benefits set forth in Section VI of this Agreement. Further, the
Employee shall be entitled to resign and elect the benefits set forth in
Section VI of this Agreement if any of the following occurs within 12 months
preceding a Change in Ownership (i) the Employee's employment is terminated by
the Bank or the Holding Company for any reason other than for "cause", or
(ii) the Employee's duties with Big Lake or the Bank are significantly reduced,
or (iii) if the Employee's title is changed to one other than President and
Chief Executive Officer. In this event, the 12-month period contemplated by
Section VI for the measurement of the Employee's salary shall be deemed to be
the 12-month period prior to the termination of employment or reduction in
responsibility or title of Employee, as the case may be, rather than the
12-month period prior to the Change in Ownership.
B. In no event shall the severance paid under Section VI be cumulative
with the severance provided for in Section II-A. An election under Section VI
shall be deemed to be a waiver of severance under Section II-A of this
agreement. Should Section II-A severance have been paid prior to an election
under this Section, such payment made shall be deducted from the Section VI
payments due.
VIII. POST TERMINATION COVENANTS
A. If, during the term hereof, Employee shall cease employment
hereunder by
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Employee' resignation (except following a Change in Ownership) or termination
for cause, then Employee agrees that for two (2) years following such
termination he will not be employed in the banking business in Okeechobee,
Florida or Okeechobee County, Florida and will not do the following during such
two-year period, without the prior written consent of the Bank and the Holding
Company.
1. furnish to anyone the name of, or any list or lists of
customers of the Bank or utilize such list or information
himself for banking purposes; or
2. furnish, use, or divulge to anyone any information acquired
by him for the Bank relating to the Bank's methods of doing
business or the Holding Company's method of doing business;
or
3. contact directly or indirectly any customer of the Bank for
banking solicitation purposes; or
4. hire for any other Bank or employer (including himself) any
employee of the Bank or Holding Company, or directly or
indirectly cause such employee to leave his or her employment
to work for another.
B. It is understood and agreed by the parties hereto that the
provisions of this section are independent of each other, and the invalidity of
any such provision or portion thereof shall not affect the validity or
enforceability of any other provisions of this agreement.
IX. WAIVER OF PROVISIONS
Failure of any of the parties 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 hereunder of the future performance of any such term or condition of
any other term or condition of this agreement, unless such waiver is contained
in a writing signed by or on behalf of all the parties.
X. GOVERNING LAW
This agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Florida. This Agreement is being
entered into in Okeechobee County, Florida, which shall be the venue of any
action brought pursuant to the terms of this Agreement.
XI. SEVERABILITY
If, for any reason, any provision of this Agreement shall be held by a
court of competent jurisdiction to be void or unenforceable, the same shall not
affect the remaining provisions thereof.
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XII. MODIFICATION AND AMENDMENT
This Agreement contains the sole and entire agreement among the
parties hereto and supersedes all prior discussions and agreements among the
parties, and any such prior agreements shall, from and after the date hereof,
be null and void. This Agreement shall not be modified or amended except by an
instrument in writing signed by on behalf of the parties hereto.
XIII. COUNTERPARTS AND HEADINGS
This agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument. The headings set out herein are for
convenience of reference and shall not be deemed a part of this agreement.
XIV. CONTRACT NONASSIGNABLE
This agreement may not be assigned or transferred by any party hereto,
in whole or in part, without prior written consent of the other. This Agreement
shall be binding upon the successors of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the year and date first above written.
Employee:
/s/ Xxxxxx X. Xxxxxx /s/ Xxx X. Xxxxxxx
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Xxxxxx X. Xxxxxx XXX X. XXXXXXX
Witness as to Employee
Date: June 2, 1999
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Witness as to Employee
BANK AND HOLDING COMPANY
/s/ Xxxxxx X. Xxxxxx BY: Xxxxx X. Xxxxxxx III
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Xxxxxx X. Xxxxxx Chairman of the Board of
Witness as to Bank/Holding Company Big Lake Financial Corporation
And Big Lake National Bank
/s/ [ILLEGIBLE]
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Witness as to Bank/Holding Company
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