Exhibit 10.4
Employment Agreement, dated as of March 15, 2001,
between United Heritage Bank and Xxxxxxx X. Xxxxx
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made as of this 15th day
of March, 2001, by and between United Heritage Bank (the "Bank"), and Xxxxxxx X.
Xxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Bank desires to retain the services of and employ the
Executive, and the Executive desires to provide services to the Bank, pursuant
to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the promises and of the covenants
and agreements herein contained, the Bank and the Executive covenant and agree
as follows:
1. Employment. Pursuant to the terms and conditions of this
Agreement, the Bank agrees to employ the Executive and the Executive agrees to
render services to the Bank as set forth herein.
2. Position and Duties. During the term of this Agreement, the
Executive shall serve as Chief Financial Officer and Senior Vice President of
the Bank, and shall undertake such duties, consistent with such titles, as may
be assigned to her from time to time by the President and Chief Executive
Officer or the Board of Directors of the Bank (referred to as the "Board"),
including assisting in keeping the Bank in compliance with applicable laws and
regulations. In performing hers duties pursuant to this Agreement, the Executive
shall devote her full business time, energy, skill and best efforts to promote
the Bank and its business and affairs; provided that, subject to Sections 10, 12
and 13 of this Agreement, the Executive shall have the right to manage and
pursue personal and family interests, and make passive investments in
securities, real estate, and other assets, and also to participate in charitable
and community activities and organizations, so long as such activities do not
adversely affect the performance by Executive of her duties and obligations to
the Bank.
3. Term. The initial term of employment pursuant to this
Agreement shall be for a period of three years, commencing with the date hereof
and expiring (unless sooner terminated as otherwise provided in this Agreement
or unless otherwise renewed or extended as set forth herein) on the third
anniversary of this Agreement, which date, including any earlier date of
termination or any extended expiration date, shall be referred to as the
"Expiration Date". Subject to the provisions of Section 8 of this Agreement, the
term of this Agreement and the employment of the Executive by the Bank hereunder
shall be deemed automatically renewed for successive periods of one year
commencing on the third anniversary date of this Agreement, unless either party
gives the other written notice, at least 180 days prior to the end of the then
term of the Agreement. After termination of the employment of the Executive for
any reason whatsoever, the Executive shall continue to be subject to the
provisions of Sections 10 through 17, inclusive, of this Agreement; provided,
however, that the Executive shall not be subject to the provisions of Sections
12 or 13 where the employment of the
Executive is terminated by the Executive for Good Reason (as defined in Section
8) or pursuant to Sections 8(e) or 8(f), or where the term of employment is not
renewed pursuant to this Section 3.
4. Compensation. During the term of this Agreement, the Bank
shall pay or provide to the Executive as compensation for the services of the
Executive set forth in Section 2 hereof:
(a) A base annual salary of at least $82,022 until
December 31, 2001, payable in such periodic installments consistent with other
employees of the Bank (such base salary to be subject to increase by the Board
in its discretion); and
(b) Such individual bonuses and other compensation to the
Executive as may be authorized by the Board from time to time.
5. Benefits and Insurance. The Bank shall provide to the
Executive such medical, health, and life insurance as well as any other benefits
as the Board shall determine from time to time. At a minimum, the Executive
shall be entitled to (i) participate in all employee benefit plans offered to
the Bank's employees generally, and (ii) life insurance coverage (payable to
such beneficiary as the Executive may designate from time to time). The
Executive also shall be entitled to participate in any group disability plan
maintained by the Bank, with the Bank paying to the Executive her base annual
salary during any waiting period imposed by such plan for the receipt of
disability benefits thereunder. The Bank shall undertake to provide for its
employees generally (including the Executive) a retirement plan and a plan
qualified under Section 401(k) of the Internal Revenue Code of 1986, as amended.
All benefits referred to herein shall be provided at reasonable levels and
within reasonable time after the commencement of the Executive's employment
pursuant to the terms of this Agreement. The Executive also shall be entitled to
receive upon the opening of the Bank options exercisable for 20,000 shares of
Bank common stock at $10.00 per share, such options to be fully vested at the
time of issuance and subject to the terms and conditions of the Bank's officers
and employees' stock option plan.
6. Vacation. The Executive may take up to three weeks of vacation
time at such periods during each year as the President and Chief Executive
Officer and the Executive shall determine from time to time. The Executive shall
be entitled to full compensation during such vacation periods.
7. Reimbursement of Expenses. The Bank shall reimburse the
Executive for reasonable expenses incurred in connection with her employment
hereunder subject to guidelines issued from time to time by the Board and upon
submission of documentation in conformity with applicable requirements of
federal income tax laws and regulations supporting reimbursement of such
expenses.
8. Termination. The employment of the Executive may be terminated
as follows:
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(a) By the Bank, by action taken by its Board or
President and Chief Executive Officer, at any time and immediately upon written
notice to the Executive if said discharge is for cause. In the notice of
termination furnished to the Executive under this Section 8(a), the reason or
reasons for said termination shall be given and, if no reason or reasons are
given for said termination, said termination shall be deemed to be without cause
and therefore termination pursuant to Section 8(f). Any one or more of the
following conditions shall be deemed to be grounds for termination of the
employment of the Executive for cause under this Section 8(a):
(i) If the Executive shall fail or refuse to
comply with the obligations required of her as set forth in this Agreement or
comply with the policies of the Bank established by the President and Chief
Executive Officer and/or the Board from time to time, including but not limited
to, policies creating or establishing performance standards related to
acceptable profitability levels. Said performance standards shall be reasonable
in nature and reflect customary business practices and profit expectations
within the banking industry for like banking institutions similar in size and
market; provided, however, that for the first two such failures or refusals, the
Executive shall be given written warnings (each providing at least a 10 day
period for an opportunity to cure), and the third failure or refusal shall be
grounds for termination for cause;
(ii) If the Executive shall have engaged in
conduct involving fraud, deceit, personal dishonesty, or breach of fiduciary
duty, which in any such case has adversely affected, or may adversely affect,
the business or reputation of the Bank;
(iii) If the Executive shall have wilfully
violated any banking law or regulation, memorandum of understanding, cease and
desist order, or other agreement with any banking agency having jurisdiction
over the Bank;
(iv) If the Executive shall have become subject
to continuing intemperance in the use of alcohol or drugs which has adversely
affected, or may adversely affect, the business or reputation of the Bank; or
(v) If the Executive shall have filed, or had
filed against him, any petition under the federal bankruptcy laws or any state
insolvency laws.
In the event of termination for cause, the Bank shall
pay the Executive only salary, vacation, and bonus amounts accrued and unpaid as
of the effective date of termination.
(b) By the Executive upon the lapse of 10 days following
written notice by the Executive to the Bank of termination of her employment
hereunder for Good Reason (as defined below), which notice shall reasonably
describe the Good Reason for which the Executive's employment is being
terminated; provided, however, that if the Good Reason specified in such notice
is such that there is a reasonable prospect that it can be cured with diligent
effort within 10 days, the Bank shall have a reasonable time (having regard for
the nature of the Good Reason) to cure such Good Reason, which time shall not in
any event exceed 10 days from the date of such notice, and the Executive's
employment shall continue in effect during such reasonable time so long as the
Bank
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makes diligent efforts during such time to cure such Good Reason. If such Good
Reason shall be cured by the Bank during such reasonable time, the Executive's
employment and the obligations of the Bank hereunder shall not terminate as a
result of the notice which has been given with respect to such Good Reason. Cure
of any Good Reason with or without notice from the Executive shall not relieve
the Bank from any obligations to the Executive under this Agreement or otherwise
and shall not affect the Executive's rights upon the reoccurrence of the same,
or the occurrence of any other, Good Reason. For purposes of this Agreement, the
term "Good Reason" shall mean any material breach by the Bank of any provision
of this Agreement, any significant reduction, without the Executive's prior
written consent, in the duties, responsibilities, authority or title of the
Executive as an officer of the Bank, or if the Executive's employment is
terminated by the Bank for any reason other than cause.
If the Executive's employment is terminated by the Executive
for Good Reason, the Bank shall, for a period of one year after said
termination;
(i) continue to pay to the Executive the base
annual salary in effect under Section 4(a) on the date of said termination (or,
if greater, the highest annual salary in effect for the Executive within the 36
month period prior to said termination) plus an annual amount equal to any bonus
paid by the Bank to the Executive during the 12 month period prior to said
termination;
(ii) continue to provide for the benefit of the
Executive the life insurance benefits provided to the Executive prior to
termination; and
(iii) reimburse the Executive for continued
coverage in accordance with the Consolidated Omnibus Budget Reconciliation Act
under the Bank's medical insurance plan.
(c) By the Executive upon the lapse of 30 days following
written notice by the Executive to the Bank of her resignation from the Bank for
other than Good Reason; provided, however, that the Bank, in its discretion, may
cause such termination to be effective at any time during such 30-day period. If
the Executive's employment is terminated because of the Executive's resignation,
the Bank shall be obligated to pay to the Executive any salary, vacation, and
bonus amounts accrued and unpaid as of the effective date of such resignation.
(d) If the Executive's employment is terminated by the
death or disability (as defined in the disability plan maintained by the Bank)
of the Executive, this Agreement shall automatically terminate, and the Bank
shall be obligated to pay to the Executive or the Executive's estate any salary,
vacation, and bonus amounts accrued and unpaid at the date of death or through
the end of the waiting period referred to in Section 5 in the case of
disability.
(e) Upon a Change of Control the Executive shall be
entitled to receive at the closing of such Change of Control an amount equal to
one times the average base annual salary plus annual bonus received by the
Executive during the three year period prior to such termination. For purposes
of this Agreement, a Change of Control shall mean a merger or acquisition in
which the Bank is not the surviving entity, or the acquisition by any individual
or group of beneficial ownership
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of more than 50% of the outstanding shares of Bank common stock (excluding any
transaction which results in the formation for the Bank of a bank holding
company owned by substantially all of the former shareholders of the Bank). The
term "group" and the concept of beneficial ownership shall have such meanings
ascribed thereto as set forth in the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and the regulations and rules thereunder.
(f) By the Bank, by action taken by its Board, at any
time if said discharge is without cause. If the Executive's employment is
terminated by the Bank without cause, the Bank shall, for a period of one year
after said termination;
(i) continue to pay to the Executive the base
annual salary in effect under Section 4(a) on the date of said termination (or,
if greater, the highest annual salary in effect for the Executive within the 36
month period prior to said termination) plus an annual amount equal to any bonus
paid by the Bank to the Executive during the 12 month period prior to said
termination;
(ii) continue to provide for the benefit of the
Executive the life insurance benefits provided to the Executive prior to
termination; and
(iii) reimburse the Executive for continued
coverage in accordance with the Consolidated Omnibus Budget Reconciliation Act
under the Bank's medical insurance plan.
9. Notice. All notices permitted or required to be given to
either party under this Agreement shall be in writing and shall be deemed to
have been given (a) in the case of delivery, when addressed to the other party
as set forth at the end of this Agreement and delivered to said address, (b) in
the case of mailing, three days after the same has been mailed by certified
mail, return receipt requested, and deposited postage prepaid in the U.S. Mails,
addressed to the other party at the address as set forth at the end of this
Agreement, and (c) in any other case, when actually received by the other party.
Either party may change the address at which said notice is to be given by
delivering notice of such to the other party to this Agreement in the manner set
forth herein.
10. Confidential Matters. The Executive is aware and acknowledges
that the Executive shall have access to confidential information by virtue of
her employment. The Executive agrees that, during the period of time the
Executive is retained to provide services to the Bank, and thereafter subsequent
to the termination of Executive's services to the Bank for any reason
whatsoever, the Executive will not release or divulge any confidential
information whatsoever relating to the Bank or its business, to any other person
or entity without the prior written consent of the Bank. Confidential
information does not include information that is available to the public or
which becomes available to the public other than through a breach of this
Agreement on the part of the Executive. Also, the Executive shall not be
precluded from disclosing confidential information in furtherance of the
performance of her services to the Bank or to the extent required by any legal
proceeding.
11. Injunction Without Bond. In the event there is a breach or
threatened breach by the Executive of the provisions of Sections 10, 12, or 13,
the Bank shall be entitled to an injunction without bond to restrain such breach
or threatened breach, and the prevailing party in any such
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proceeding will be entitled to reimbursement for all costs and expenses,
including reasonable attorneys' fees in connection therewith. Nothing herein
shall be construed as prohibiting the Bank from pursuing such other remedies
available to it for any such breach or threatened breach including recovery of
damages from the Executive.
12. Noncompetition. The Executive agrees that during the period of
time the Executive is retained to provide services to the Bank, and thereafter
for a period of one year subsequent to the termination of Executive's services
to the Bank for any reason whatsoever (except where the employment of the
Executive is terminated by the Executive for Good Reason or pursuant to Sections
8(e) or 8(f), or where the term of employment is not renewed pursuant to Section
3), Executive will not enter the employ of, or have any interest in, directly or
indirectly (either as executive, partner, director, officer, consultant,
principal, agent or employee), any other bank or financial institution or any
entity which either accepts deposits or makes loans (whether presently existing
or subsequently established) and which has an office located within a radius of
50 miles of any office of the Bank; provided, however, that the foregoing shall
not preclude any ownership by the Executive of an amount not to exceed 5% of the
equity securities of any entity which is subject to the periodic reporting
requirements of the 1934 Act and the shares of Bank common stock owned by the
Executive at the time of termination of employment.
13. Nonsolicitation; Noninterference. The Executive agrees that
during the period of time the Executive is retained to provide services to the
Bank, and thereafter for a period of one year subsequent to the termination of
Executive's services to the Bank for any reason whatsoever (except where such
termination is by the Executive for Good Reason or pursuant to Sections 8(e) or
8(f), or where the term of employment is not renewed pursuant to Section 3), the
Executive will not (a) solicit for employment by Executive, or anyone else, or
employ any employee of the Bank or any person who was an employee of the Bank
within 12 months prior to such solicitation of employment; (b) induce, or
attempt to induce, any employee of the Bank to terminate such employee's
employment; (c) induce, or attempt to induce, anyone having a business
relationship with the Bank to terminate or curtail such relationship or, on
behalf of himself or anyone else, compete with the Bank; (d) knowingly make any
untrue statement concerning the Bank or its directors or officers to anyone; or
(e) permit anyone controlled by the Executive, or any person acting on behalf of
the Executive or anyone controlled by an employee of the Executive to do any of
the foregoing.
14. Remedies. The Executive agrees that the restrictions set forth
in this Agreement are fair and reasonable. The covenants set forth in this
Agreement are not dependent covenants and any claim against the Bank, whether
arising out of this Agreement or any other agreement or contract between the
Bank and Executive, shall not be a defense to a claim against Executive for a
breach or alleged breach of any of the covenants of Executive contained in this
Agreement. It is expressly understood by and between the parties hereto that the
covenants contained in this Agreement shall be deemed to be a series of separate
covenants. The Executive understands and agrees that if any of the separate
covenants are judicially held invalid or unenforceable, such holding shall not
release her from her obligations under the remaining covenants of this
Agreement. If in any judicial proceedings, a court shall refuse to enforce any
or all of the separate covenants because taken together they are more extensive
(whether as to geographic area, duration, scope of business or otherwise) than
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necessary to protect the business and goodwill of the Bank, it is expressly
understood and agreed between the parties hereto that those separate covenants
which, if eliminated or restricted, would permit the remaining separate
covenants or the restricted separate covenant to be enforced in such proceeding
shall, for the purposes of such proceeding, be eliminated from the provisions of
this Agreement or restriction, as the case may be.
15. Invalid Provision. In the event any provision should be or
become invalid or unenforceable, such facts shall not affect the validity and
enforceability of any other provision of this Agreement. Similarly, if the scope
of any restriction or covenant contained herein should be or become too broad or
extensive to permit enforcement thereof to its full extent, then any such
restriction or covenant shall be enforced to the maximum extent permitted by
law, and Executive hereby consents and agrees that the scope of any such
restriction or covenant may be modified accordingly in any judicial proceeding
brought to enforce such restriction or covenant.
16. Governing Law; Venue. This Agreement shall be construed in
accordance with and shall be governed by the laws of the State of Florida. The
sole and exclusive venue for any action arising out of this Agreement shall be a
federal or state court situated in Orange County, Florida, and the parties to
this Agreement agree to be subject to the personal jurisdiction of such Court
and that service on each party shall be valid if served by certified mail,
return receipt requested or hand delivery.
17. Attorneys' Fees and Costs. In the event a dispute arises
between the parties under this Agreement and suit is instituted, the prevailing
party shall be entitled to recover her or its costs and attorneys' fees from the
nonprevailing party. As used herein, costs and attorneys' fees include any costs
and attorneys' fees in any appellate proceeding.
18. No Third Party Beneficiary. This Agreement is solely between
the parties hereto, and no person not a party to this Agreement shall have any
rights hereunder, either as a third party beneficiary or otherwise. The rights
and obligations of the parties under this Agreement shall inure to the benefit
of and shall be binding upon their respective successors and legal
representatives.
19. Effect on Other Agreements. This Agreement and the termination
thereof shall not affect any other agreement between the Executive and the Bank,
and the receipt by the Executive of benefits thereunder.
20. Miscellaneous. The rights and duties of the parties hereunder
are personal and may not be assigned or delegated without the prior written
consent of the other party to this Agreement. The captions used herein are
solely for the convenience of the parties and are not used in construing this
Agreement. Time is of the essence of this Agreement and the performance by each
party of its or her duties and obligations hereunder.
21. Complete Agreement. This Agreement constitutes the complete
agreement between the parties hereto and incorporates all prior discussions,
agreements and representations made in
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regard to the matters set forth herein. This Agreement may not be amended,
modified or changed except by a writing signed by the party to be charged by
said amendment, change or modification.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
UNITED HERITAGE BANK
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
President and Chief Executive Officer
"EXECUTIVE"
/s/ Xxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxx X. Xxxxx, individually
Address:
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