Exhibit No. 10.6
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is effective the 15th day of
November 2001 (the "Effective Date"), by and between NEXITY BANK, an Alabama
banking corporation ("Employer"); and Xxxxxxx X. Xxxxxx ("Employee").
RECITALS
WHEREAS, Employer desires to retain the services of Employee as its Senior
Vice President Senior Lending Officer, and Employee desires to be so employed;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual recitals and covenants
contained herein, the parties hereby agree as follows:
1. Employment. Employer agrees to employ Employee and Employee agrees to
be employed by Employer, subject to the terms and provisions of this Agreement.
2. Term. The employment of Employee by Employer as provided in Section 1
unless earlier terminated as provided herein, shall be for a rolling term of two
years (the "Term") commencing on the date hereof. This agreement shall be deemed
to extend each day for an additional day automatically and without any action on
behalf of either party hereto. The obligations and rights set forth in Sections
7, 8 and 9 hereof shall survive termination of this Agreement except as may be
specified otherwise in such sections.
3. Duties; Extent of Services. Employee shall perform for Employer all
duties incident to the position of Senior Vice President Senior
Lending Officer of the Employer, under the direction of the
president of Employer, or its designee. In addition, Employee shall
engage in such other services for Employer or its affiliated
companies, as Employer from time to time shall direct. The precise
services of Employee and the title of Employee's position may be
extended, curtailed or modified by Employer from time to time
without affecting the enforceability of the terms of this Agreement.
Employee shall use his best efforts in, and devote his entire time,
attention, and energy, to Employer's business and, except as
previously disclosed to Employer, shall not during the term hereof
serve, without the express permission of the board of directors of
Employer, as an officer or director of any business enterprise other
than the Company or an affiliate
thereof. Nothing contained herein is intended to prohibit Employee
from spending a reasonable amount of time managing his personal
investments and discharging his civic responsibilities and other
permitted activities as long as such activities do not materially
interfere with his duties and obligations under this Agreement.
4. Compensation.
(a) During the term of this Agreement, Employee's total annual cash
compensation shall be an amount not less than $150,000.00. During the term of
this Agreement, Employee may also receive other cash or non-cash compensation
(including without limitation merit increases and/or participation in incentive
compensation plans adopted by Employer) as may be granted by Employer's
Executive management, in its sole discretion.
(b) Employee shall be entitled to vacation days, paid holidays and sick
days and health benefits as provided customarily by Employer.
(c) Employee shall be granted options to acquire 100,000 shares of
Nexity Financial Corporation Common Stock at the then current market
price at execution of the agreement under the Nexity Financial
Corporation Stock Option Plan.
5. Compliance with Rules and Policies. Employee shall comply with all of
the rules, regulations, and policies of Employer now or hereinafter in effect.
He shall promptly and faithfully do and perform any and all other duties and
responsibilities which he may, from time to time, be directed to do by the
Chairman or President of Employer or its designee.
6. Representation of Employee. Except as previously disclosed to Employer,
Employee represents to Employer that he is not subject to any rule, regulation
or agreement, including without limitation, any non-compete or non-solicitation
agreement, that purports to, or which reasonably could, be expected to limit,
restrict or interfere with Employee's ability to engage in the activities
provided for in this Agreement.
7. Disclosure of Information. Employee acknowledges that any documents,
information and technology and computer related know-how, whether written or
not, that comes into Employee's possession or knowledge during Employee's course
of employment with Employer which is not or has not become part of the public
domain, including, without limitation the financial and business conditions,
goals and
operations of customers of Employer, or any of its affiliates or subsidiaries as
the same may exist from time to time (collectively, "Confidential Information"),
are valuable, special and unique assets of Employer's business. Employee will
not, during or after the term of this Agreement, (i) disclose any written
Confidential Information to any person, firm, corporation, association, or other
entity not employed by or affiliated with Employer for any reason or purpose
whatsoever, or (ii) use any written Confidential Information for any reason
other than to further the business of Employer. Employee agrees to return any
written Confidential Information, and all copies thereof, upon the termination
of Employee's employment (whether hereunder or otherwise). In the event of a
breach or threatened breach by Employee of the provisions of this Section 7, in
addition to all other remedies available to Employer, Employer shall be entitled
to an injunction restraining Employee from disclosing any written Confidential
Information or from rendering any services to any person, firm, corporation,
association or other entity to whom any written Confidential Information has
been disclosed or is threatened to be disclosed. Employee further agrees that he
will not divulge to any person, firm, corporation, association, or other entity
not employed by or affiliated with Employer, any of Employer's business methods,
sales, services or techniques, regardless of whether the same is written or not.
8. Competition. Except as specified otherwise in this Section 8, if this
Agreement is terminated by the Company for Cause or by the Employee for
any reason, Xx. Xxxxxx shall not enter into an employment relationship or
a consulting arrangement or serve as an officer, director or greater than
5%shareholder with any other bank, thrift, lending or financial
institution in the capacity of a correspondent banker or as a supervisor
of or a participant in any Internet banking business (hereinafter a
"competitor") within one year of the anniversary of the date of such
termination (the "Noncompete Period"). The obligations contained in this
Section 8 shall not prohibit Xx. Xxxxxx from being an owner of not more
than 5% of the outstanding stock of any class of a bank, thrift, lending
or financial institution, which is publicly traded, so long as Xx. Xxxxxx
has no active participation in the business of such corporation.
8.1 During the Noncompete Period, Xx. Xxxxxx shall not directly or
indirectly through another entity (i) induce or attempt to induce
any employee of Company to leave the employ of Company, including
but not limited to a competitor, or in any way interfere with the
relationship between Company and any employee thereof, (ii) hire any
person who was an employee of Company or any subsidiary at any time
during the time that Xx. Xxxxxx was employed by Company, or (iii)
induce or attempt to induce any customer, supplier, or business
relation and the Company or do business with a competitor.
8.2 The severance payment and stock option payment to which Xx. Xxxxxx
is entitled under this Agreement shall be deemed adequate
consideration for Xx. Xxxxxx'x obligations under Sections 7 and 8
hereof.
8.3 If, at the time of enforcement of this Section 8, a court shall hold
that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree
that the maximum duration, scope or area reasonable under such
circumstances shall be substituted for the stated duration, scope or
areas and that the court shall be allowed to revise the restrictions
contained herein to cover the maximum period, scope and area
permitted by law. Xx. Xxxxxx agrees that the restrictions contained
in this Section 8 are reasonable.
8.4 In the event of a breach or a threatened breach by Xx. Xxxxxx of any
of the provisions of this Section 8, the Company, addition and
supplementary to other rights and remedies existing in its favor,
may apply to any court of law or equity of competent jurisdiction
for specific performance and/or injunctive or other relief in order
to enforce or prevent any violations of the provisions hereof
(without posting a bond or other security). In addition, in the
event of an alleged breach or violation by Xx. Xxxxxx of this
Section 8, the Noncompete Period shall be tolled until such breach
or violation has been duly cured.
9. Termination.
(a) Employer may terminate Employee For Cause. "For Cause" shall
mean (i) abuse of or addiction to intoxicating drugs (including alcohol); (ii)
any action by the Employee which constitutes fraud, sexual harassment, willful
malfeasance of duty or conduct grossly inappropriate to Employee'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 Employee; or
(iv) the suspension or removal of Employee by federal or state banking
regulatory authorities; provided, that "For Cause" shall not include Employee's
medical disability. In addition, the services of Employee and the obligations of
Employer under this Agreement may be terminated For Cause by Employer due to the
death of Employee.
(b) If Employer terminates Employee's employment hereunder "For
Cause" all rights and obligations specified in Section 8 shall survive any such
termination and Employee shall not be entitled to any further compensation from
Employer including compensation under Section 4.
(c) If for any reason during the term of this Agreement Employee
desires to cease working for Employer, Employee shall notify Employer of such
desire.
In that case, Employee may cease working for Employer at a mutually agreed upon
date, all rights and obligations specified in Section 8 shall continue to apply
in full and Employee shall not be entitled to any further compensation from
Employer under Section 4.
(d) Employer may terminate Employee at any time other than "For
Cause" but in that case (i) Employee shall continue to receive the minimum cash
compensation provided for in Section 4 (a) for a period of one year following
the date of termination and health insurance comparable to that maintained by
Employer on behalf of Employee prior to such termination for such one year
period, and (ii) all rights and obligations specified in Section 8 shall survive
any such termination, which for purposes of this Section 9 (d) shall mean that
the non-compete covenant provided for therein shall continue until all payments
due to Employee under this Section 9 (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," all rights and obligations specified in
Section 8 (but not Section 4) shall terminate immediately. For purposes of this
Section 9(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) the
acquisition of beneficial ownership by one person or a related group of persons
of greater than Fifty One percent (51%) of the outstanding voting stock or
assets of Employer or Employer's holding company, or (iii) individuals who
currently constitute the directors of Employer or Employer's holding company, 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.
(f) The provisions of Section 7 shall survive regardless of any
termination of Employee's employment hereunder, whether voluntary or
involuntary.
10. Notice. For the purposes of this Agreement, notices and demands shall
be deemed given when mailed by United States mail, addressed in the case of
Employer to Nexity Financial Corporation, 0000 Xxxx Xxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, Attention: President; or in the case of Employee to
Xx. Xxx Xxxxxx 0000 Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxx 00000.
11. Miscellaneous. No provision of this Agreement may be modified, waived,
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
Employee and Employer.
12. Validity. The invalidity of any provision or provisions of this
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.
13. Default.
(a) If Employee breaches or violates any of the covenants,
conditions, or terms of this Agreement on his part to be performed, Employer
shall have the right, without notice to Employee, to obtain an injunction or
other equitable relief against him restraining him from violating any such
covenant, condition or term, such notice being hereby expressly waived by
Employee.
(b) Additionally, in the event of any conduct by Employee violating
any provision of this Agreement, Employer shall be entitled, if it so elects, to
institute and initiate and prosecute proceedings in any court of competent
jurisdiction, either at law or in equity, to obtain damages for such conduct, to
enforce specific performance of such provision or to obtain any other relief or
any combination of the foregoing that Employer may elect to pursue.
14. Parties. Except as provided in Section 9 (e), this Agreement shall be
binding upon and shall inure to the benefit of any successors or assigns to
Employer. Employee 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
Employee and by a duly authorized officer of Employer as of the date first above
written.
Witnesses:
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Attest: NEXITY BANK
By: By:
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Its Secretary Its: President
[Corporate Seal]
