EXHIBIT 10.9
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of the 25th day of April, 2000, by and between
Southern Security Bank Corporation, a Delaware corporation (the "Company" or
"Employer") and Xxxxxx X. Xxxxxxx, (the "Executive").
WITNESSETH:
WHEREAS, Executive is willing to assist the directors of the Company in
accordance with the terms and conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the mutual premises and
covenants herein contained, the parties hereto agree as follows:
1. EMPLOYMENT. Employer employs Executive and Executive accepts employment
upon the terms and conditions set forth in this Agreement.
2. TERM. The term of employment of Executive under this Agreement shall be
the one year period commencing on April 1, 2000 ("Commencement Date") and ending
on March 31, 2001 ("Ending Date"). This Agreement shall automatically renew for
one year on each anniversary date unless either party notifies the other, 60
days prior to Ending Date.
3. COMPENSATION. The Company shall pay Executive a minimum annual base
salary of $125,000, payable in semi-monthly installments immediately upon the
Commencement Date. Salary payments shall be subject to withholding and other
applicable taxes. Executive's salary will be reviewed annually for annual
increases by the Company's Board of Directors.
4. TITLE AND DUTIES. The Executive shall initially serve as Chairman,
President, and CEO of the Company, subject to the continuing approval of the
Board of Directors for the term of this Agreement. The Executive shall devote
his efforts, skills, attention, and such time as he deems necessary to the
business and affairs of the Company and shall serve the Company faithfully and
competently and shall at all times act in the Company's best interest. Such
supervisory and management responsibilities shall include those as delegated
from the board of directors from time to time.
5. EXTENT OF SERVICES. Executive shall devote such time, attention and
energies to the business of Employer as in necessary to accomplish his duties.
Also, recognition is given to the fact that Executive is expected on occasion to
participate in client development after normal business hours. Executive shall
notify Employer of any significant participation by him in any trade association
or similar organization and the Board of Directors shall approve in advance
Executive's service as a director of any entity or organization.
6. WORKING FACILITIES. Executive shall have such assistants, perquisites,
facilities and services as are suitable to his position and appropriate for the
performance of his duties.
7. EXPENSES. Executive may incur reasonable expenses for promoting the
business of the Employer, including expenses for entertainment, travel, and
similar items. Executive will be reimbursed for all such expenses upon
Executive's periodic presentation of an itemized account of such expenditures.
8. VACATIONS. Executive shall be entitled each year to a vacation in
accordance with the personnel policy established by the Company's Board of
Directors, during which time Executive's compensation shall be paid in full.
Executive shall also be entitled to all paid holidays made generally available
by the Company.
9. ADDITIONAL COMPENSATION. As additional consideration paid to Executive,
Executive shall be provided with:
(a) health, hospitalization, and disability
(b) Life Insurance
(c) An automobile or an allowance for Executive's use of an automobile
(d) Participation in an executive incentive bonus plan.
(e) Vacation Days
All the above additional compensation and benefits shall be in
accordance with policies to be established by the Company's Board of Directors.
10. STOCK OPTIONS. Executive is granted 125,000 shares at current market
value of $0.35 per share to be vested 25,000 shares as of April 1, 2000 and the
remaining 100,000 shares to be vested 33 1/3% at each year end exercisable for 5
years from date of vesting. Should executive not be employed by The Company for
any reason all options must be exercised within 90 days of separation. In
addition, Executive shall be entitled to participate in all employee and
executive stock option plans implemented by the Company.
11. TERMINATION. (a) In the event that the Board of Directors of the
Company determines in its sole discretion to terminate the Executive's
employment Without Cause prior to the Ending Date, the Executive shall be
entitled to receive one year's salary, which payment shall be subject to
withholding and other applicable taxes and shall be made simultaneously with
such termination of this Agreement.
(b) For Cause. This Agreement may be terminated by the Board of
Directors of the Company without notice and without further obligation than
for monies already paid, for any of the following reasons:
(i) Failure of Executive to follow reasonable written
instructions or policies of the Board of Directors of the Company;
(ii) Receipt by the Company of written notice from any bank
regulatory agency having jurisdiction over the Company or the
"Company" that such agency has criticized Executive's performance or
his area of responsibility and Executive does not take timely action
to remedy the situation;
(iii) Gross negligence or willful misconduct of Executive
materially damaging to the business of the Company or "Company" during
the term of this Agreement, or at any time while he was employed by
the Company prior to the term of this Agreement, if not disclosed to
the Company prior to the commencement of the term of this Agreement;
or
(iv) Conviction of Executive during the term of this Agreement of
a crime involving breach of trust or moral turpitude.
In the event that the "Company" discharges Executive alleging "cause"
under this Section 11(b) and it is subsequently determined judicially that the
termination was "without cause," then such discharge shall be deemed a discharge
without cause subject to the provisions of Section 11(c) hereof. In the event
that the "Company" discharges Executive alleging "cause" under this Section
11(b), such notice of discharge shall be accompanied by a written and specific
description of the circumstances alleging such "cause." The termination of
Executive for "cause" shall not entitle the "Company" to enforcement of the non-
competition and non-solicitation covenants contained in Section 13 hereof.
(c) Without Cause.
(i) The "Company" may, upon thirty (30) days' written notice to
Executive, terminate this Agreement without cause at any time during
the term of this Agreement upon the condition that Executive shall be
entitled, as liquidated damages in lieu of all other claims. The
severance payments provided for in this Section 11(a) shall commence
not later than thirty (30) days after the actual date of termination
of employment of Executive.
(ii) Executive may upon thirty (30 days' written notice to
Employer terminate this Agreement without cause at any time during the
term of this Agreement. In the event of termination of this Agreement
by Executive, the "Company" shall have no further obligation to
Executive than for monies paid.
12. DEATH OR DISABILITY. In the event of Executive's death, Employer shall
pay to Executive's designated beneficiary, or, if Executive has failed to
designate a beneficiary, to his estate, an amount equal to Executive's base
salary pursuant to Section 3 hereof for 90 days following date of death. Such
compensation shall be in lieu of any other benefits provided hereunder, except
that (i) the Executive's designated beneficiary or his estate, as the case may
be, shall be entitled to the benefits hereof, and (ii) any benefit payable
pursuant to Section 3 shall be prorated and made available to Executive in
respect of any period prior to his death. The Company may maintain insurance on
its behalf to satisfy in whole or in part the obligations of this Section 12.
In the event of Executive's disability, as hereinafter defined, Employer
shall pay to Executive the base salary then in effect through the end of the
month in which Executive became disabled. Executive shall be deemed disabled if,
by reason of physical or mental impairment, he is incapable of performing his
duties hereunder for a period of 180 consecutive days.
13. NON-COMPETITION AND NON-SOLICITATION. (a) Executive acknowledges that
he has performed services or will perform services hereunder which directly
affect Employer's business. Accordingly, the parties deem it necessary to enter
into the protective agreement set forth below, the terms and condition of which
have been negotiated by and between the parties hereto.
(b) In the event of termination of employment under this Agreement
by action of The Company pursuant to 11(c) (i) prior to the expiration of the
term of this Agreement, Executive agrees with Employer that through the actual
date of termination of the Agreement, and for a period of twelve (12) months
after such termination date, Executive shall not, without the prior written
consent of Employer, within the counties in which the Company operates either
directly or indirectly, serve as an executive officer of any Bank, Bank holding
company or other financial institution.
(c) The covenants of Executive set forth in this Section 13 are
separate and independent covenants for which valuable consideration has been
paid, the receipt, adequacy and sufficiency of which are acknowledged by
Executive, and have also been made by Executive to induce Employer to enter into
this Agreement. Each of the aforesaid covenants may be availed of or relied upon
by Employer in any court of competent jurisdiction, and shall form the basis of
injunctive relief and damages including expenses of litigation (including but
not limited to reasonable attorney's fees) suffered by Employer arising out of
any breach of the aforesaid covenants by Executive. The covenants of Executive
set forth in this Section 13 are cumulative to each other and to all other
covenants of Executive in favor of Employer contained in this Agreement and
shall survive the termination of this Agreement for the purposes intended.
Should any covenant, term, or condition contained in this Section 13 become or
be declared invalid or unenforceable by a court of competent jurisdiction, then
the parties may request that such court judicially modify such unenforceable
provision consistent with the intent of this Section 13 so that it shall be
enforceable as modified, and in any event the invalidity of any provision of
this Section 13 shall not affect the validity of any other provision in this
Section 13 or elsewhere in this Agreement.
14. NOTICES. Any Notice required, permitted or desired to be delivered
hereunder shall be deemed to be delivered when deposited in the United States
mail, return receipt requested, addressed to the parties at the addresses first
stated herein, or to such other address as either party hereto shall from time
to time designate to the other party by notice in writing as provided herein.
15. WAIVER OF BREACH. The waiver by Employer of a breach of any provision
of this Agreement by Executive shall not operate or be construed as a waiver of
any subsequent breach by Executive. No waiver shall be valid unless in writing
and signed by an authorized officer of Employer.
16. SEVERABILITY. Invalidity or unenforceability of any provision hereof
shall in no way affect the validity or enforceability of any other provisions.
17. TERMINOLOGY. All personal pronouns used in this Agreement, whether used
in the masculine, feminine or neuter gender, shall include all other genders;
the singular shall include the plural and vice versa. Titles of Paragraphs are
for convenience only, and neither limit nor amplify the provisions of the
Agreement itself.
18. ASSIGNMENT. Executive acknowledges that the services to be rendered by
him are unique and personal. Accordingly, Executive may not assign any of his
rights or delegate any of his duties or obligations under this Agreement. The
rights and obligations of Executive under this Agreement shall inure to the
benefit of and shall be binding upon the successors and assigns of Employer.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each such counterpart shall for all purposes be deemed an
original.
20. OTHER INSTRUMENTS. The parties hereby covenant and agree that they will
execute such other and further instruments and documents as are or may become
necessary or convenient to effectuate and carry out the terms of this Agreement.
21. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida.
22. ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties hereto regarding employment of Executive, and supersedes and
replaces any prior agreement relating thereto. It may not be changed orally but
only by an agreement in writing signed by the party against whom enforcement of
any waiver, change, modification, extension, or discharge is sought.
IN WITNESS WHEREOF, this Agreement has been duly signed by the Executive
and on behalf of the Company on the day and year first above written.
For the Company:
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Vice President and Secretary
For the Executive:
/s/Xxxxxx X. Xxxxxxx
