Exhibit 10.1
Employment Agreement dated June 27, 1997,
between the Company and Xxxxxx X. Xxxxxxx
EMPLOYMENT AGREEMENT
BY AND AMONG
PSB BANCGROUP, INC.
AND
PEOPLES STATE BANK IN ORGANIZATION
AND
XXXXXX X. XXXXXXX
THIS EMPLOYMENT AGREEMENT ("Agreement") is being entered into this 28th
day of July, 1997, by and among PSB BancGroup, Inc., a Florida Corporation
("PSB"), Peoples State Bank, in organization ("Bank"), and Xxxxxx X. Xxxxxxx
("Employee"). PSB and the Bank are collectively referred to herein as the
"Company" and the Company and Employee are collectively referred to herein as
the "Parties".
RECITALS
WHEREAS, the Company wishes to retain Employee as its President and
Chief Executive Officer to perform the duties and responsibilities as are
described in this Agreement and as the Company's Boards of Directors ("Board")
may assign to Employee from time to time; and
WHEREAS, Employee desires to be employed by the Company and to serve as
the President and Chief Executive Officer in accordance with the terms and
provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereto represent, warrant, undertake,
covenant and agree as follows:
OPERATIVE TERMS
1. Employment and Term. PSB shall employ Employee and Employee shall be
employed pursuant to the terms of this Agreement to perform the services
specified in Section 2 herein. The term of employment shall be for two (2)
years, commencing on June 16, 1997 (the "Effective Date"), and terminating on
June 16, 1999, unless extended or terminated pursuant to the provisions set
forth herein. The Board of Directors of PSB shall review this Agreement and the
Employee's performance hereunder on or before June 16, 1998, and annually
thereafter, in order to determine whether to extend the Agreement for a one-year
period. The decision to extend the term of this Agreement for an additional year
is within the sole discretion of the Board.
2. Position, Responsibilities and Duties. During the term of this
Agreement, Employee shall serve in the following capacities and shall fulfill
the following responsibilities and duties:
(a) PSB: Employee shall serve as President and Chief Executive
Officer of PSB, through election by the Board. In such capacity,
Employee shall provide leadership, direction and guidance of PSB's
activities to assure short and long-range profitability. Initially,
Employee shall work diligently in the formation of the Peoples State
Bank, a new state-chartered commercial bank to be located in Lake City,
Florida.
1
(b) When Bank Commences Operations: Employee shall also serve
as the Bank's President and Chief Executive Officer when the Bank
commences operations, subject to selection by the Board. In such
capacity, Employee shall have the same powers, duties and
responsibilities of supervision and management of the Bank usually
accorded to the President and Chief Executive Officer of similar
financial institutions. In addition, Employee shall use his best
efforts to perform the duties and responsibilities enumerated in this
Agreement and any other duties assigned to Employee by the Board and to
utilize and develop contacts and customers to enhance the business of
the Bank. Specifically, Employee shall devote his full business time
and attention and use his best efforts to accomplish and fulfill the
following duties and responsibilities, as well as other duties assigned
to Employee from time to time by the Board:
(i) manage all personnel of the Bank;
(ii) serve as a member of the Board of Directors,
if and when elected to such a position;
(iii) serve on such committees of the Board as
appointed to from time to time;
(iv) keep the Board informed of important
developments concerning the Bank, industry
developments and regulatory initiatives
affecting the Bank;
(v) maintain adequate expense records relating
to Employee's activities on the Bank's
behalf;
(vi) establish and implement marketing efforts to
increase the business of the Bank;
(vii) supervise all loans and assist in their
proper servicing and resolution through the
management of the Bank's human and financial
resources;
(viii) improve the profitability of the Bank in
accordance with the Annual Business Plan as
prepared by management and adopted by the
Board;
(ix) coordinate with the Bank's attorneys and
accountants and other service providers to
the extent necessary to further the business
of the Bank, keeping in compliance with
government laws and regulations and
otherwise keeping the Bank in as good a
financial and legal posture as possible; and
2
(x) conduct and undertake all other activities,
responsibilities, and duties normally
expected to be undertaken and accomplished
by the President and Chief Executive Officer
of a financial institution similar in scope
and operation to our business.
(b) General Duties: During the term of this Agreement, and
except for illness, vacation periods and leaves of absences, Employee
shall devote all of his working time, attention, skill and best efforts
to accomplish and faithfully perform all of the duties assigned to
Employee on a full-time basis. Employee shall, at all times, conduct
himself in a manner that will reflect positively upon the Company.
Employee shall obtain such licenses, certificates, accreditations and
professional memberships and designations as the Company may reasonably
require. Employee shall join and maintain membership in such social and
civic organizations as Employee or the Board deems appropriate to
xxxxxx the Company's contacts and business network in the community.
(c) Policies and Manual: Employee agrees to comply with the
policies and procedures that are adopted by the Company and implemented
from time to time as described in the Employee Manual, including any
policies relating to a "drug free work place". In that regard Employee
agrees to submit to the same testing procedures, if any, which apply to
all employees of the Company. Employee has read and understands the
contents of the Employee Manual and acknowledges that the Employee
Manual may be modified, amended, supplemented and updated from time to
time as may be deemed appropriate.
3. Compensation. During the term of this Agreement, Employee shall be
compensated as follows:
(a) Base Salary: Until the Bank commences operations, Employee
shall be compensated by PSB. Employee shall receive an initial annual
salary of Sixty-Seven Thousand Five Hundred Dollars ($67,500) (the
"Base Salary") in equal installments, in accordance with standard
payroll practices, reduced appropriately by deductions for federal
income withholding taxes, social security taxes and other deductions
required by applicable laws. Such base salary shall be reviewed
annually by the Board of Directors.
(b) Additional Compensation: Upon commencement of operations,
the Bank may pay Employee incentive compensation when and if the Board
adopts an incentive compensation plan. The maximum payment for any such
incentive compensation would be up to 50 percent of the Base Salary,
payable on such terms and conditions as the Board determines from time
to time and adopts by resolution.
(c) Other Benefit Plans: During the term of this Agreement,
the Employee will be entitled to participate in and receive the
benefits of any profit-sharing plans, 401(k) plans, deferred
compensation plans, or other plans, benefits and privileges given to
3
employees and executives of the Company which are currently in effect
at the execution of this Agreement or which may come into existence
thereafter to the extent the Employee is otherwise eligible and
qualifies to so participate in and receive such benefits or privileges.
Nothing paid to the Employee under any plan or arrangement presently in
effect or made available in the future shall be deemed to be in lieu of
the Base Salary payable to the Employee pursuant to Section 3 herein.
(d) Incentive Stock Options: The Company will designate
Employee as a key employee eligible for the grant of incentive stock
options under the PSB Bancorp, Inc., 1997 Stock Option Plan (the "Stock
Option Plan"). In that connection, the Company will grant to Employee
under the terms of the Stock Option Plan, an option to acquire up to
10,000 shares of PSB common stock, over a ten-year period. The grant of
the stock options shall be made strictly in accordance with the terms
of the Stock Option Plan and in accordance with the Company's standard
form of Stock Option Agreement. The options will contain an exercise
price of $9 per share and will vest 20 percent per year beginning with
the year of grant. As part of the consideration for the Stock Options,
Employee agrees that for a period of twenty-four (24) months following
any event of termination defined herein, Employee will not accept
employment with any existing or proposed business organization which
then competes or intends to compete with the Company anywhere in
Columbia County, Florida.
4. Payment of Business Expenses. Employee is authorized to incur
reasonable expenses in performing his duties. The Company will reimburse
Employee for authorized expenses, according to the Company's established
policies, promptly after Employee's presentation of an itemized account of such
expenditures, including mileage at the Internal Revenue allowed rate for the use
of Employee's personal automobile.
5. Vacation. Employee is entitled to four (4) weeks paid vacation time
per year on a non-cumulative basis beginning the first fiscal year following
commencement of operations.
6. Bank Benefits.
(a) Medical Benefits: Employee is entitled to participate in
all medical and health care benefit plans through health insurance,
corporate funds, medical reimbursement plans or other plans, if any,
provided, or to be provided, by the Bank for its employees.
(b) Provision of Automobile: The Bank will provide Employee
with an automobile allowance, to be determined immediately prior to the
Bank's commencement of operations. In addition thereto, Employee shall
be reimbursed for the pro rated operating and maintenance expenses
attributed to Bank business.
(c) Club and Organization Memberships: The Bank will pay an
annual membership fee for Employee at the Lake City Country Club.
Employee shall comply with all applicable federal income tax laws and
regulations governing Employee's personal use of the country club. The
4
Bank will also pay Employee's membership costs in other clubs or
organizations when such membership will benefit the Bank as determined
by the Board of Directors.
(d) Employee shall maintain records of both business and
personal use of such facilities and automobile use and shall submit
those records to the Bank monthly.
7. Disability/Illness.
(a) Illness: Employee shall be paid his full Base Salary for
any period of his illness or incapacity: provided that such illness or
incapacity does not render Employee unable to perform his duties under
this Agreement for a period longer than three (3) consecutive months.
At the end of such three-month period, the Bank may terminate
Employee's employment and this Agreement.
(b) Disability: If the Bank terminates this Agreement pursuant
to Employee's disability as determined under Section 7(a) herein, the
Bank shall pay to Employee, as a disability payment, an amount equal to
Employee's monthly Base Salary, payable in accordance with the Bank's
standard payroll practices, commencing on the effective date of
Employee's termination and ending on the earlier of:
(i) the date Employee returns to full time
employment in his capacity as the Bank's
President;
(ii) Employee's full time employment by another
financial institution;
(iii) three (3) months after the date of such
termination, after which Employee will be
entitled to receive benefits under any
disability insurance plan provided by the
Bank; or
(iv) the date of Employee's death.
The Company may satisfy its obligations under this Section, at its
option, through the purchase of disability insurance. The provisions of
such policy will control the amounts paid to Employee. Such disability
insurance will be coordinated with any disability plans made available
to Employee pursuant to Section 6 herein.
(c) Continuation of Coverages: During any period of illness or
disability, the Bank will continue any other life, health and
disability coverages for Employee substantially identical to the
coverages maintained prior to Employee's termination for disability.
Such coverages shall cease upon the earlier of:
(i) Employee's full time employment by another
financial institution;
5
(ii) one (1) year after the date of such
termination (with the exception of
disability insurance coverage); or
(iii) the date of Employee's death.
(d) No Reduction in Base Salary: During the period in which
Employee is disabled or subject to illness or incapacity, other than as
described in Section 7(b) herein, there shall be no reduction in
Employee's Base Salary.
8. Death During Employment. In the event of Employee's death during the
term of this Agreement, the Company's obligation to Employee shall be limited to
the portion of Employee's compensation which would be payable up to the first
working day of the first month after Employee's death, except that any
compensation payable to Employee under any benefit plan maintained by the
Company will be paid pursuant to its terms.
9. Termination.
(a) Failure of Bank to Commence Operations: In the event the
Bank fails to commence operations for any reason on or before July 1,
1998, this Agreement may be terminated by PSB upon thirty (30) days
written notice to Employee.
(b) Illness, Incapacity or Death: This Agreement shall
terminate upon Employee's illness, incapacity or death in accordance
with the provisions of Sections 7 and 8 herein.
(c) Termination for Just Cause: The Company shall have the
right, at any time, upon prior written notice of termination satisfying
the requirements of Section 11 herein, to terminate the Employee's
employment hereunder, including termination for just cause. For the
purpose of this Agreement, termination for just cause shall mean any of
the following acts committed by Employee:
(i) Personal dishonesty;
(ii) Incompetence;
(iii) A pattern of socially unacceptable behavior;
(iv) Willful misconduct;
(v) Breach of fiduciary duty involving personal
profit;
(vi) Intentional failure to perform stated
duties;
6
(vii) Willful violation of any law, rule or
regulation (other than traffic violations or
similar offenses) or any final
cease-and-desist order; or
(viii) Material breach of any provision of this
Agreement.
For purposes of this Section, no act, or failure to act, on
the Employee's part shall be considered "willful" unless done, or
omitted to be done, by him not in good faith and without reasonable
belief that his action or omission was in the best interest of the
Company; provided that any act or omission to act by the Employee in
reasonable reliance upon an opinion of counsel to the Company shall not
be deemed to be willful. In the event Employee is terminated for just
cause, Employee shall have no right to compensation or other benefits
for any period after such date of termination.
(d) Effective Date of Termination: The termination of this
Agreement and Employee's employment shall be effective upon the
delivery to Employee of written notice or at such later time as may be
specified in such notice, and Employee shall immediately vacate the
Bank premises on or before such effective date.
(e) Involuntary Termination: If the Employee is terminated by
the Company, other than for just cause or in connection with a change
in control of the Company (as defined in Section 9[g] herein),
Employee's right to compensation and other benefits under this
Agreement shall be as set forth in Sections 9(h)(i) and 9(i) herein. In
the event the Employee is terminated in connection with a change in
control of the Company, Employee's right to compensation and other
benefits under this Agreement shall be as set forth in Sections
9(h)(ii) and 9(i) herein.
(f) Termination for Good Reason: Employee may terminate his
employment hereunder for good reason by giving written notice to the
Board of Directors or the Chairman thereof. For purposes of this
Agreement, "good reason" shall mean (i) a failure by the Company to
comply with any material provision of this Agreement, which failure has
not been cured within fifteen (15) days after a notice of such
noncompliance has been given by the Employee to PSB or the Company; or
(ii) subsequent to a change in control as defined in Section 9(g)
herein and without the Employee's express written consent, any of the
following shall occur: the assignment to the Employee of any duties
inconsistent with the Employee's positions, duties, responsibilities
and status with PSB and the Bank immediately prior to a change in
control; a change in the Employee's reporting responsibilities, titles
or offices as in effect immediately prior to a change in control of PSB
or the Bank; any removal of the Employee from, or any failure to
re-elect the Employee to, any of such positions, except in connection
with a termination of employment for just cause, disability, death, or
removal pursuant to Sections 9(b) or 9(c) herein; a reduction in the
Employee's annual salary as in effect immediately prior to a change in
control; the failure of the Bank to continue in effect any bonus,
benefit or compensation plan, life insurance plan, health and accident
plan or disability plan in which the Employee is participating at the
7
time of a change in control of PSB or the Bank, or the taking of any
action by PSB or the Bank which would adversely affect the Employee's
participation in or materially reduce the Employee's benefits under any
of such plans, or the transfer of the Employee to any location outside
of Columbia County, Florida or the assignment of substantial duties to
the Employee to be completed outside Columbia County, Florida.
(g) Change in Control: For purposes of this Agreement, a
change in control shall mean a change in ownership of stock in PSB or
the Bank. A "change in control" for purposes of this Agreement is
defined to mean an event where a person:
(i) Acquires more than 25 percent of any class of voting
stock of PSB or the Bank;
(ii) Acquires irrevocable proxies representing more than
25 percent of any class of voting stock of PSB;
(iii) Acquires any combination of voting stock and
irrevocable proxies representing more than 25 percent
of any class of voting stock of PSB; or
(iv) Controls in any manner the election of a majority of
the directors of PSB or the Bank.
(h) Severance Payment:
(i) If the Employee shall terminate his employment
for good reason as defined in Section 9(d) herein, or if the
Employee is terminated by the Company for other than just
cause pursuant to Section 9(e) herein, then in lieu of any
further salary payments to the Employee for periods subsequent
to the date of termination, Employee shall be paid, as
severance, an amount which would equal Employee's total annual
compensation for the remainder of the term of the Agreement,
plus any incentive compensation which Employee would have been
entitled to hereunder;
(ii) In the event Employee's employment is terminated
as a result of a change in control or a change in control of
PSB or the Bank occurs within twelve (12) months of the
Employees' involuntary termination, Employee shall be entitled
to a severance payment equal to Employee's total annual
compensation for the remainder of the term of the Agreement,
plus any incentive compensation which Employee would have been
entitled to hereunder;
(iii) Any payment under Section 9(h)(i) and 9(h)(ii)
shall be made in substantially equal semi-monthly installments
on the fifteenth and last days of each month until paid in
full.
8
(i) Additional Severance Benefits: Unless Employee is
terminated for just cause pursuant to Section 9(e) herein, pursuant to
Section 10(b) herein, or pursuant to a termination of employment by the
Employee for other than good reason, the Company shall maintain in full
force and effect, for the continued benefit of the Employee for the
remaining term of this Agreement, or twelve (12) months (whichever is
longer), all employee benefit plans and programs in which the Employee
was entitled to participate immediately prior to the date of
termination; provided, however, that the Employee's continued
participation is possible under the general terms and provisions of
such plans and programs. Further, the Company shall pay for the same or
similar benefits if such benefits are available to the employee on an
individual or group basis as a result of contractual or statutory
provisions requiring or permitting such availability including, but not
limited to, health insurance covered under COBRA.
(j) Mitigation: Employee shall not be required to mitigate the
amount of any payment provided for in Sections 9(h) and 9(i) of this
Agreement by seeking other employment.
10. Required Provisions by Regulation. The Company and Employee
acknowledge that the laws and regulations governing the Parties require that
certain provisions be provided in each employment agreement with officers and
employees of the Bank. The Parties agree to be bound by the following
provisions:
(a) Suspension: If the Employee is suspended from office
and/or temporarily prohibited from participating in the conduct of the
Bank's affairs pursuant to actions taken by the Florida Department of
Banking and Finance ("DOBF") or by notice served under Section 8(e)(3)
or Section 8(g)(1) of the Federal Deposit Insurance Act ("FDIA") (12
U.S.C. Section 1818[e][3] and Section 1818[g][1]), the Bank's
obligations under this Agreement shall be suspended as of the date of
service, unless stayed by appropriate proceedings. If the charges in
the notice are dismissed, the Bank may, in its discretion: (i) pay the
Employee all or part of the compensation withheld while its obligations
under this Agreement were suspended, and (ii) reinstate (in whole or in
part) any of its obligations which were suspended.
(b) Permanent Prohibition: If the Employee is removed from
office and/or permanently prohibited from participating in the conduct
of PSB and the Bank's affairs by an order issued by the DOBF or by an
order issued under Section 8(e)(4) or Section 8(g)(1) of the FDIA (12
U.S.C. Sections 1818[e](4] and [g][1]), all obligations of the Bank
under this Agreement shall terminate as of the effective date of the
order, but vested rights of the Employee and the Bank as of the date of
termination shall not be affected.
(c) Golden Parachute: Any payments made to the Employee
pursuant to this Agreement, or otherwise, are subject to and
conditioned upon their compliance with 12 U.S.C. Section 1828(k) and
any regulations promulgated thereunder.
9
(d) Default Under FDIA: If the Bank is in default, as defined
in Section 3(x)(1) of the FDIA (12 U.S.C. Section 1813[x][1]) to mean
an adjudication or other official determination by any court of
competent jurisdiction, the appropriate federal banking agency or other
public authority pursuant to which a conservator, receiver or other
legal custodian is appointed for the Bank, all obligations under this
Agreement shall terminate as of the date of default, but vested rights
of the Employee and the Bank as of the date of termination shall not be
affected.
11. Notice of Termination.
(a) Employee's Notice: Employee shall have the right, upon
prior written notice of termination of not less than thirty (30) days,
to terminate his employment hereunder. In such event, Employee shall
have no right after the date of termination to compensation or other
benefits as provided in this Agreement, unless such termination is for
"good reason", as defined in Section 9(e) herein. If the Employee
provides a notice of termination for good reason, the date of
termination shall be the date on which the notice of termination is
given.
(b) Specificity: Any termination of the Employee's employment
by the Company or by Employee shall be communicated by written notice
of termination to the other party hereto. For purposes of this
Agreement, a "notice of termination" shall mean a dated notice which
shall: (i) indicate the specific termination provision in the Agreement
relied upon; (ii) set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Employee's
employment under the provision so indicated; and (iii) set forth the
date of termination, which shall be not less than thirty (30) days nor
more than forty-five (45) days after such notice of termination is
given, except in the case of termination of the Employee's employment
for just cause, in which case date of termination shall be the date
such notice of termination is given.
(c) Delivery of Notices: All notices given or required to be
given herein shall be in writing, sent by United States first-class
certified or registered mail, postage prepaid, by way of overnight
carrier or by hand delivery. If to the Employee (or to the Employee's
spouse or estate upon the Employee's death) notice shall be sent to
Employee's last-known address, and if to Employer, notice shall be sent
to the Chairman of the Board at the main office of PSB. All such
notices shall be effective when deposited in the mail if sent via
first-class certified or registered mail, or upon delivery if by hand
delivery or sent via overnight carrier. The Parties, by notice in
writing, may change or designate the place for receipt of all such
notices.
12. Post-Termination Obligations. The Company shall pay to Employee
such compensation as is required pursuant to this Agreement; provided, however,
any such payment shall be subject to Employee's post-termination cooperation.
Such cooperation shall include the following:
10
(i) Employee shall furnish such information and assistance as
may be reasonably required by the Company in connection with any
litigation or settlement of any dispute between the Company, a borrower
and/or any other third parties (including without limitation serving as
a witness in court or other proceedings);
(ii) Employee shall provide such information or assistance to
the Company in connection with any regulatory examination by any state
or federal regulatory agency;
(iii) Employee shall keep the Company's trade secrets and
other proprietary or confidential information secret to the fullest
extent practicable, subject to compliance with all applicable laws.
13. Fees and Kickbacks. It shall be considered a material breach of
this Agreement if Employee receives: (i) either directly or indirectly any fee,
kickback, or thing of value in connection with any loan made by the Company; or
(ii) any portion, split or percentage of any charge, either directly or
indirectly, given to or accepted by the Company or any subsidiary or affiliate,
in connection with any loan made by the Company or its affiliates; or (iii) any
fee, kickback or compensation of any kind in connection with the participation
by the Company in any loan from any other source.
14. Indebtedness. If during the term of this Agreement, Employee
becomes indebted to the Company for any reason, the Company may, at its
election, set off and collect any sums due Employee out of any amounts which the
Company may owe Employee from his Base Salary or other compensation.
Furthermore, upon the termination of this Agreement, all sums owed by Employee
shall become immediately due and payable. Employee shall pay all expenses and
attorney's fees actually or necessarily incurred by the Company in connection
with any collection proceeding for Employee's indebtedness to the Company.
Notwithstanding any of the foregoing, any indebtedness to the Company secured by
a mortgage on Employee's residence shall not be subject to the foregoing
provisions, and shall be governed by the loan documents evidencing such
indebtedness.
15. Maintenance of Trade Secrets and Confidential Information. Employee
shall use his best efforts and utmost diligence to guard and protect all of the
Company's trade secrets and confidential information. Employee shall not, either
during the term or after termination of this Agreement, for whatever reason,
use, in any capacity, or divulge or disclose in any manner, to any Person, the
identity of the Company's customers, or its customer lists, methods of
operation, marketing and promotional methods, processes, techniques, systems,
formulas, programs or other trade secrets or confidential information relating
to the Company's business. Upon termination of this Agreement or Employee's
employment, for any reason, Employee shall immediately return and deliver to the
Company all records and papers and all matters of whatever nature which bear
trade secrets or confidential information relating to the Company.
11
16. Competitive Activities.
(a) Limitation on Outside Activities: Employee agrees that
during the term of this Agreement, except with the express consent of
the Board, Employee will not, directly or indirectly, engage or
participate in, become a director of, or render advisory or other
services for, or in connection with, or become interested in, or make
any financial investment in any firm, corporation, business entity or
business enterprise competitive with or to any business of the Company;
provided, however, that Employee shall not be precluded or prohibited
from owning passive investments, including investments in the
securities of other financial institutions, so long as such ownership
does not require Employee to devote other than minimal time to
management or control of the business or activities in which Employee
has invested.
(b) Agreement Not to Compete: Employee acknowledges that by
virtue of his employment with the Company, Employee will acquire an
intimate knowledge of the activities and affairs of the Company,
including trade secrets and other confidential matters. Employee,
therefore, agrees that during the term of this Agreement, and for a
period of twenty-four (24) months following the termination of
Employee's employment hereunder, Employee shall not become employed,
directly or indirectly, whether as an employee, independent contractor,
consultant, or otherwise, in the financial services industry with any
business enterprise or business entity, or Person who competes or
intends to compete directly or indirectly with any office of the
Company located in Columbia County, Florida.
Employee hereby agrees that the duration of the
anticompetitive covenant set forth herein is reasonable, and its
geographic scope is not unduly restrictive.
17. Remedies for Breach.
(a) Arbitration: The Parties agree that, except for the
specific remedies for injunctive relief and other equitable relief
contained in Subsection 16(b) and (c) below, any controversy or claim
arising out of or relating to this Agreement or any breach thereof,
including, without limitation, any claim that this Agreement or any
portion thereof is invalid, illegal or otherwise voidable, shall be
submitted to binding arbitration before and in accordance with the
rules of the American Arbitration Association and judgment upon the
determination and/or award of such arbitrator may be entered in any
court having jurisdiction thereof. Provided, however, that this clause
shall not be construed to permit the award of punitive damages to
either party. The prevailing party to said arbitration shall be
entitled to an award of reasonable attorney's fees. The venue of
arbitration shall be in Columbia County, Florida.
(b) Injunctive Relief: The Parties acknowledge and agree that
the services to be performed by Employee are special and unique and
that money damages cannot fully compensate the Company in the event of
Employee's violation of the provisions of Section 16 of this Agreement.
12
Thus, in the event of a breach of any of the provisions of such
Section, Employee agrees that the Company, upon application to a court
of competent jurisdiction, shall be entitled to an injunction
restraining Employee from any further breach of the terms and provision
of such Section. Should the Company prevail in an action seeking an
injunction restraining Employee, Employee shall pay all costs and
reasonable attorneys fees incurred by the Company in and relating to
obtaining such injunction. Such injunctive relief may be obtained
without bond and Employee's sole remedy, in the event of the entry of
such injunction, shall be the dissolution of such injunction. Employee
hereby waives any and all claims for damages by reason of the wrongful
issuance of any such injunction.
(c) Cumulative Remedies: Notwithstanding any other provision
of this Agreement, the injunctive relief described in Section 17(b)
herein and all other remedies provided for in this Agreement which are
available to the Company as a result of Employee's breach of this
Agreement, are in addition to and shall not limit any and all remedies
existing at or in equity which may also be available to the Company.
18. Assignment. This Agreement shall inure to the benefit of and be
binding upon the Employee, and to the extent applicable, his heirs, assigns,
executors, and personal representatives, and to the Company, and to the extent
applicable, its successors, and assigns, including, without limitation, any
person, partnership, or corporation which may acquire all or substantially all
of the Company's assets and business, or with or into which the Company may be
consolidated or merged, and this provision shall apply in the event of any
subsequent merger, consolidation, or transfer, unless such merger or
consolidation or subsequent merger or consolidation is a transaction of the type
which would result in termination under Sections 10(c) and 10(d) herein.
19. Miscellaneous.
(a) Amendment of Agreement: Unless as otherwise provided
herein, this Agreement may not be modified or amended except in writing
signed by the Parties.
(b) Certain Definitions: For purposes of this Agreement, the
following terms whenever capitalized herein shall have the following
meanings:
(i) "Person" shall mean any natural person,
corporation, partnership (general or
limited), trust, association or any other
business entity.
(ii) "Attorneys Fees" shall include the legal
fees and disbursements charged by attorneys
and their related travel and lodging
expenses, court costs, paralegal fees, etc.
incurred in settlement, trial, appeal or in
bankruptcy proceedings.
(c) Headings for Reference Only: The headings of the Sections
and the Subsections herein are included solely for convenient reference
and shall not control the meaning of the interpretation of any of the
provisions of this Agreement.
13
(d) Governing Law/Venue: This Agreement shall be construed in
accordance with and governed by the laws of the State of Florida.
Notwithstanding the Provisions of Section 19(a) herein, venue for any
litigation involving the Parties and their rights and obligations
hereunder shall be brought in any appropriate court in Columbia County,
Florida.
(e) Severability: If any of the provisions of this Agreement
shall be held invalid for any reason, the remainder of this Agreement
shall not be affected thereby and shall remain in full force and effect
in accordance with the remainder of its terms.
(f) Entire Agreement: This Agreement and all other documents
incorporated or referred to herein, contain the entire agreement of the
Parties and there are no representations, inducements or other
provisions other than those expressed in writing herein. This Agreement
amends, supplants and supersedes any and all prior agreements between
the Parties. No modification, waiver or discharge of any provision or
any breach of this Agreement shall be effective unless it is in writing
signed by both Parties. A Party's waiver of the other Party's breach of
any provision of this Agreement, shall not operate, or be construed, as
a waiver of any subsequent breach of that provision or of any other
provision of this Agreement.
(g) Waiver: No course of conduct by the Company or Employee
and no delay or omission of the Company or Employee to exercise any
right or power given under this Agreement shall: (i) impair the
subsequent exercise of any right or power, or (ii) be construed to be a
waiver of any default or any acquiescence in or consent to the curing
of any default while any other default shall continue to exist, or be
construed to be a waiver of such continuing default or of any other
right or power that shall theretofore have arisen. Any power and/or
remedy granted by law and by this Agreement to any party hereto may be
exercised from time to time, and as often as may be deemed expedient.
All such rights and powers shall be cumulative to the fullest extent
permitted by law.
(h) Pronouns: As used herein, words in the singular include
the plural, and the masculine include the feminine and neuter gender,
as appropriate.
(i) Recitals: The Recitals set forth at the beginning of this
Agreement shall be deemed to be incorporated into this Agreement by
this reference as if fully set forth herein, and this Agreement shall
be interpreted with reference to and in light of such Recitals.
[Signatures Follow This Page]
14
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the day and year first written above.
PSB BancGroup, Inc. Peoples State Bank in Organization
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------- ---------------------
Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx
Chairman of the Board Proposed Chairman of the Board
/s/ Xxxxx X. Xxxx /s/ Xxxxx X. Xxxx
---------------------------- ---------------------
Witness Witness
Employee
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxx
--------------------------------------
Witness
15
