EXHIBIT 10.7
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is effective as of
____________ ___________________________, 2000 (the "Effective Date"), by and
between EUFAULA BANCCORP, INC., a Delaware corporation ("Employer"); and XXXX
XXXXXX ("Executive").
WHEREAS, Employer is a bank holding company owning two banks, Southern Bank
of Commerce, Eufaula, Alabama, and First American Bank of Xxxxxx County, Santa
Xxxx Beach, Florida; and
WHEREAS, Executive has been for the past 18 years and continues to serve as
the President and CEO of the Employer and Executive and Employer have agreed to
enter into this Agreement;
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual recitals and covenants
contained herein, the parties hereby agree as follows:
1. Employment. Employer agrees to employ Executive and Executive agrees
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to be employed by Employer, subject to the terms and provisions of this
Agreement.
2. Term. The employment of Executive by Employer as provided in Section
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1 shall commence on the Effective Date and shall terminate as provided in this
Section 2 or in accordance with the provisions of Section 8 hereof; provided,
however, that the obligations and rights set forth in Sections 5, 6, 7 and 8
hereof shall survive termination of this Agreement (except that, under certain
specified circumstances set forth in Section 8 (e) hereof, the obligations and
rights set forth in Section 7 shall expire in accordance with Section 8(e)).
This Agreement shall automatically renew and the term shall be extended for one
additional day on each day after the Effective Date so that the term of this
Agreement shall always be one year, unless the Employer notifies the Executive
in writing that the Agreement is no longer to be extended. Failure by the
Employer to extend this Agreement shall be deemed a termination by Employee for
reason other than "For Cause" under Section 8(d).
3. Duties; Extent of Services. Executive shall perform for Employer all
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duties incident to the positions of President and Chief Executive Officer of the
Employer. Executive shall also serve as a director of Employer and each of its
subsidiary banks, and thereafter for the remaining term of this Agreement, at
each annual meeting of the board of directors of Employer and each of its
subsidiary banks, Executive shall be nominated to serve as a director of
Employer and each of its subsidiary banks. In addition, Executive shall engage
in such other services for Employer or its affiliates as Employer from time to
time shall direct. Executive shall use his best efforts in, and devote his
entire time, attention, and energy, to Employer's business; provided that
nothing contained herein is intended to prohibit Executive from spending a
reasonable amount of time managing his personal investments and discharging his
civic responsibilities as long as such activities do not materially interfere
with his duties and obligations under this Agreement.
4. Compensation.
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During the Term of this Agreement:
(a) Executive's base salary determined periodically by the Employer's
board of directors, shall be an amount not less than $150,000.00, plus an annual
bonus as may be determined from time to time by Employer's board of directors.
Executive's annual bonus shall be a percentage of Executive's base salary,
depending upon the performance of Employer and other factors, which shall be
established and evaluated from time to time by Employer's board of directors.
(b) Employer shall provide term life insurance for Executive equal to
3 times the compensation shown on the Employer's Form W-2 for Executive.
(c) Employer shall provide health Insurance to Executive in
accordance with Employer's customary plans.
(d) Employer shall provide for Executive's use an automobile owned or
leased by Employer and shall replace such automobile every three years.
(e) Executive shall be able to participate in standard retirement and
benefit plans offered by Employer, including profit-sharing, 401K, etc.
(f) Employer shall pay fees for any civic or other clubs which
Executive joins at Employer's request.
(g) Executive shall be entitled to vacation, sick days and holidays
pursuant to Employer's standard policies.
(h) Executive shall be entitled to participate in other executive
level compensation plans offered by Employer and its subsidiaries.
5. Trade Secrets. Executive shall not at any time or in any manner,
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either directly or indirectly, use or employ, or divulge, disclose or
communicate to any person, firm or corporation in any manner whatsoever, any
information concerning any matters affecting or relating to the business of
Employer, including without limiting the generality of the foregoing, any of
Employer's customers or any other information concerning the business of
Employer or its manner of operation. Without regard to whether all of the
foregoing matters will be deemed confidential, material, or important, the
Employer and Executive stipulate that as between them, such matters are
important, material, and confidential and affect the effective and successful
conduct of the business of Employer and Employer's good will, and that any
breach of the terms of this paragraph shall be a material a breach of this
Agreement, entitling Employer to injunctive relief, suit for monetary damages or
any other relief available to Employer.
6 Trade Secrets After Termination of Employment. All the terms of
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Section 5 above shall remain in full force and effect during the term of this
Agreement and for a period that coincides with the Non-Competition Periods
specified in Section 7 hereto.
7. Non-Competition and Non-Solicitation.
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(a) If Executive's employment is terminated pursuant to Sections
8(b), 8(c) or 8(d) of this Agreement, the Executive, for the period immediately
following the date of termination to the first anniversary of the date of
termination or the periods specified in Section 8(d) during which Employer must
make severance payments to Executive, whichever is applicable (the "Non-
Competition Period"), will not, without the prior written approval of Employer
directly or indirectly (i) own a greater than 5% equity interest in any class of
stock of, or manage, operate, participate in, be employed by, perform consulting
services for, or otherwise be connected in any manner with, a bank holding
company or any depository institution located within a 50-mile radius of any
office of any of Employer's subsidiary banks existing on the date of
termination; (ii) solicit or induce any employee of Employer or its subsidiaries
to terminate such employment or to become employees of any other person or
entity; (iii) solicit any customer, supplier, contractual party of Employer or
its subsidiaries, or any other person with whom each of them has business
relations to cease doing business with Employer or its subsidiaries, or (iv) in
any way interfere with the relationship of Employer or its subsidiaries and any
of their respective employees, customers, suppliers, contractual parties or any
other person with whom each of them has business relations.
(b) The Executive agrees that each of the covenants set forth above
in Section 7(a) of this Agreement are reasonable with respect to its duration,
geographical area and scope.
(c) In the event of a breach by the Executive of any covenant set
forth in Section 7(a) of this Agreement, the term of such covenant shall be
extended by the period of the duration of such breach.
8. Termination.
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(a) Employer may terminate Executive and this Agreement For Cause.
"For Cause" shall mean (i) abuse of or addiction to intoxicating drugs
(including alcohol); (ii) any action by the Executive which constitutes fraud,
willful malfeasance of duty or conduct grossly inappropriate to Executive's
office and which is demonstrably likely to lead to material injury to Employer,
or a successor or affiliate of Employer, (iii) a felony conviction of Executive;
or (iv) the suspension or removal of Executive by federal or state banking
regulatory authorities; provided, that "For Cause" shall not include Executive's
medical disability. In addition, the services of Executive and the obligations
of Employer under this Agreement shall be deemed terminated For Cause by
Employer due to the death of Executive.
(b) If Employer terminates Executive's employment hereunder "For
Cause" all rights of Employer and obligations imposed upon Executive in Section
7 shall survive any such termination and Executive shall not be entitled to any
further compensation from Employer.
(c) If for any reason during the term of this Agreement Executive
desires to cease working for Employer, or to retire in accordance with the
normal retirement policies of Employer, Executive shall notify Employer of such
desire. In that case, Executive may cease working for Employer at a mutually
agreed upon date, all rights and obligations specified in Section 7 shall
continue to apply in full and Executive shall not be entitled to any further
compensation from Employer as of the date of termination.
(d) Employer may terminate Executive other than "For Cause" but, in
that case, for a period of two years from the date of termination of Executive's
employment if Executive has been employed by Employer or its predecessors for 20
years or less, or for a period of three years from the date of termination of
Executive's employment if Executive has been employed by Employer or its
predecessors in excess of 20 years, (i) Executive shall continue to receive the
minimum base salary, excluding bonus, provided for in Section 4(a) (less
disability payments, if any, received by Employee), (ii) Employer shall continue
to maintain the insurance policy described in Section 4(b) and health insurance
provided under Section 4(c) or health insurance comparable to that maintained by
Employer on behalf of Executive prior to such termination, and (iii) all rights
of Employer and obligations imposed on Executive in Section 7 shall survive any
such termination, which for purposes of this Section 8(d) shall mean that the
Non-Competition Period provided for therein shall continue until all payments
due to Employee under this Section 8(d) have been made and, thereafter, they
shall expire.
(e) Notwithstanding anything to the contrary contained herein, upon
the occurrence of a "Change in Control" of Employer, all rights and obligations
specified in Section 7 (but not Section 4) shall terminate immediately. For
purposes of this Section 8(e), "Change of Control" shall mean the occurrence
during the term of this Agreement of any of the following events: (i) a merger,
consolidation or other corporate reorganization of Employer in which Employer
does not survive, or a sale of all or substantially all of the assets of
Employer,(ii) when any "person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934 (other than the Employer, any
subsidiary of the Employer, or any Employer employee benefit plan, including its
trustee), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
such Exchange Act), directly or indirectly, of securities of the Employer
representing twenty-five percent (25%) or more of the combined voting power of
the Employer's then outstanding securities; or (iii) individuals who currently
constitute the directors of Employer, or who become directors of Employer upon
nomination or election by the directors of Employer, other than through an
actual or threatened stockholder election contest, cease for any reason to
constitute a majority of the directors of Employer or its successor. If within
two years after a change of control of Employer, Executive's duties under this
Agreement are materially altered or Executive is required to relocate his
residence to a city other than Eufaula, Alabama, or Executive is no longer
appointed to the offices designated in Section 3, then Executive may at his
option terminate this Agreement and such termination shall be considered to be a
termination of Executive's employment by Employer for reasons other than For
Cause under Section 8(d). For purposes of determining the identity of a
beneficial owner of shares under clause (ii) above, shares held directly by
Xxxxxx X. Xxxxx or Xxxxxxx X. Xxxxx, or shares held by their estate, or shares
held by any person who, under Federal Reserve Board Regulation 12 C.F.R.
(S)225.41(b)(2), is deemed to be acting in consent with them, shall not be
included in calculating the 25 percent limit referenced in clause (ii).
9. Notice. For the purposes of this Agreement, notices and demands shall
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be deemed given when mailed by United States mail, addressed in the case of
Employer to Xxxxx X. Xxxxxxx, Eufaula BancCorp, Inc., Xxxx Xxxxxx Xxx 0000,
Xxxxxxx, Xxxxxxx 00000-0000, Attention: Chairman of the Board of Directors or
his successor; or in the case of Executive to Xxxx Xxxxxx, Eufaula BancCorp,
Inc., Xxxx Xxxxxx Xxx 0000, Xxxxxxx, Xxxxxxx 00000-0000.
10. Miscellaneous. No provision of this Agreement may be modified, waived,
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or discharged unless such modification, waiver or discharge is agreed to in
writing. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Alabama. This Agreement supersedes and cancels any
prior employment agreement or understanding entered into between Executive and
Employer.
11. Validity. The invalidity of any provision or provisions of this
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Agreement shall not affect any other provision of this Agreement, which shall
remain in full force and effect, nor shall the invalidity of a portion of any
provision of this Agreement affect the balance of such provision.
12. Parties. This Agreement shall be binding upon and shall inure to the
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benefit of any successors or assigns to Employer. Executive may not assign any
of his rights or delegate any of his duties or obligations under this Agreement
or any portion hereof.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
Executive and by a duly authorized officer of Employer as of the date first
above written.
Witnesses:
____________________________________ ________________________________
Xxxx Xxxxxx
Executive
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Attest: EUFAULA BANCCORP, INC.
By: ________________________________ By:____________________________
Its Administrative Officer Xxxxx X. Xxxxxxx
Its Chairman of the Board of
Directors
[Corporate Seal]
