Exhibit 10(a)
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement"), made this day of 1999, by and among
Indian River Banking Company, a registered bank holding company ("the Company"),
Indian River National Bank, a national banking association and wholly owned
subsidiary of the Company with its main office in Vero Beach, Florida (the
"Bank"), and Xxxxxxx X. High (the "Officer").
W I T N E S S E T H
WHEREAS, the Board of Directors ("Board") of the Bank desires to retain the
services of the Officer as the President and Chief Executive Officer of the
Bank, and the Board of the Company desires to retain the services of the Officer
as the President and Chief Executive Officer of the Company, and each desires
that the Officer serve as a member of the respective Board of Directors.
WHEREAS, the Officer desires to serve as President and Chief Executive
Officer of the Company and the Bank and as a member of their respective Boards
of Directors.
WHEREAS, the Officer and the respective Boards of the Bank and the Company
desire to enter into an Agreement setting forth the terms and conditions of the
employment of the Officer and the related rights and obligations of each of the
parties.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed as follows:
1. Employment. The Officer is employed as the President and Chief Executive
Officer of the Company and of the Bank, reporting directly to their respective
Boards. Subject to Board direction, the Officer shall have responsibility for
the general management and control of the business and affairs of the Company,
the Bank, and their respective subsidiaries, and shall perform all duties and
shall have all powers which are commonly incident to the offices of President
and Chief Executive Officer or which, consistent with those offices, are
delegated to him by the respective Board. The Officer's duties include, but are
not limited to:
a. Making recommendations to the Boards concerning the strategies,
capital structure, tactics, and general operations of the Company and
the Bank;
b. Managing the day-to-day operations of the Company and the Bank;
c. Supervising other officers and employees of the Company and the Bank;
d. Promoting the Company and the Bank and their services;
e. Managing the efforts of the Company and the Bank to comply with
applicable laws and regulations; and
f. Providing complete, timely, and accurate reports to the Boards of the
Company and the Bank regarding the material affairs and the condition
of the Company and the Bank, respectively.
2. Location and Facilities. The Officer will be furnished with the working
facilities and staff customary for executive officers with the title and duties
set forth in Section 1 and as are necessary for him to perform his duties. The
location of such facilities and staff shall be at the principal administrative
offices of the Company and the Bank, or at such other site or sites customary
for such offices.
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3. Term.
a. The term of this Agreement shall be (i) the initial term, consisting
of the period commencing on the date of this Agreement (the "Effective
Date") and ending immediately prior to the third anniversary of the
Effective Date, plus (ii) any and all extensions of the initial term
made pursuant to this Section 3.
b. On each anniversary of the Effective Date prior to a termination of
the Agreement, the term under this Agreement shall be extended for an
additional one-year period beyond the then effective expiration date
without action by any party, provided that neither the Company or the
Bank, on the one hand, nor the Officer, on the other, shall have given
written notice at least sixty (60) days prior to such anniversary date
of its or his desire that the term not be extended. The Boards of the
Company and the Bank will review the Officer's performance and the
advisability of extending the term of this Agreement at a meeting or
meetings at least ninety (90) days prior to each anniversary date.
4. Base Compensation.
a. The Company and the Bank agree to pay the Officer during the term of
this Agreement a salary at the rate of $150,000 per annum, payable in
cash not less frequently than monthly, as may be adjusted in
accordance with this Section 4.
b. The Boards of the Company and the Bank shall review annually the rate
of the Officer's salary based upon factors they deem relevant, and may
maintain or increase his salary, provided that no such action shall
(i) reduce the rate of salary below $150,000, or (ii) reduce the rate
of salary paid to the Officer for any months prior to the month in
which notice of the reduction is provided in writing to the Officer,
and provided further that the Officer's salary shall be increased on
each anniversary of the effective date by a percentage equal to the
percentage change in the Consumer Price Index (All Urban Consumers)
("CPI-U") over the last twelve-month period for which such CPI-U data
is available prior to such anniversary date (as adjusted for changes
in CPI-U base years) up to a maximum of five percent per year.
c. In the absence of action by the Board of both the Company and the
Bank, the Officer shall continue to receive salary at the $150,000 per
annum rate specified herein or, if another rate has been established
under the provisions of this Section 4, the rate last properly
established by action of the Board of the Company or the Bank under
the provisions of this Section 4.
5. Bonuses. Unless the Officer agrees otherwise, he shall be entitled to
participate in discretionary bonuses that the Board may award from time to time
to senior management employees pursuant to bonus plans or otherwise, including,
without limitation, the Bank's 2000 Incentive Bonus Plan. A copy of the Bank's
2000 Incentive Bonus Plan is attached hereto as Exhibit I.
6. Benefit Plans. The Officer shall be entitled to participate in such life
insurance, medical, dental, pension, profit sharing, and retirement plans and
other programs and arrangements as may be approved from time to time by the
Company or the Bank for the benefit of their respective employees.
7. Vacation and Leave.
a. The Officer shall be entitled to vacations in accordance with Bank
policy, or otherwise as approved by the Board, provided that the
Officer shall be entitled to paid vacation of at least ten working
days between the Effective Date and December 31, 1999, and of at least
twenty working days for each calendar year thereafter.
b. In addition to paid vacations, the Officer shall be entitled, without
loss of pay, to absent himself voluntarily from the performance of his
employment for such additional periods of time and for such valid and
legitimate reasons as the Board of the Company and the Bank may in
their discretion determine. Further, the Board of the Company or the
Bank may grant to the Officer a leave or leaves
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of absence, with or without pay, at such time or times and upon such
terms and conditions as such Boards in their discretion may determine.
8. Expense Payments and Reimbursements. The Officer shall be reimbursed for all
reasonable out-of-pocket business expenses that he shall incur in connection
with his services under this Agreement upon substantiation of such expenses in
accordance with applicable policies of the Company or the Bank.
9. Loyalty and Confidentiality.
a. During the term of this Agreement the Officer: (i) shall devote all
his time, attention, skill, and efforts to the faithful performance of
his duties hereunder; provided, however, that from time to time, the
Officer may serve on the boards of directors of, and hold any other
offices or positions in, companies or organizations which will not
present any conflict of interest with the Company or the Bank or any
of their subsidiaries or affiliates, unfavorably affect the
performance of Officer's duties pursuant to this Agreement, or violate
any applicable statute or regulation; and (ii) shall not engage in any
business or activity contrary to the business affairs or interests of
the Company or the Bank.
b. Nothing contained in this Agreement shall prevent or limit the
Officer's right to invest in the capital stock or other securities of
any business dissimilar from that of the Company and the Bank, or,
solely as a passive, minority investor, in any business.
c. The Officer agrees to maintain the confidentiality of any and all
information concerning the operation or financial status of the
Company and the Bank; the names or addresses of any of their
borrowers, depositors and other customers; any information concerning
or obtained from such customers; and any other information concerning
the Company or the Bank to which he may be exposed during the course
of his employment. The Officer further agrees that, unless required by
law or specifically permitted by the Company or the Bank in writing,
he will not disclose to any person or entity, either during or
subsequent to his employment, any of the above-mentioned information
which is not generally known to the public, nor shall he employ such
information in any way other than for the benefit of the Company and
the Bank.
10. Termination and Termination Pay. Subject to Section 11 of this Agreement,
the Officer's employment under this Agreement may be terminated in the following
circumstances:
a. Death. The Officer's employment under this Agreement shall terminate
upon his death during the term of this Agreement, in which event the
Officer's estate shall be entitled to receive the compensation due to
the Officer through the last day of the calendar month in which his
death occurred.
b. Retirement. This Agreement shall be terminated upon the normal or
early retirement of the Officer under the retirement benefit plan or
plans in which he participates pursuant to Section 6 of this Agreement
or otherwise.
c. Disability. The Company, the Bank, or the Officer may terminate the
Officer's employment after having established the Officer's
Disability. For purposes of this Agreement, "Disability" means a
physical or mental infirmity that impairs the Officer's ability to
substantially perform his duties under this Agreement and that results
in the Officer's becoming eligible for long-term disability benefits
under the Company's or the Bank's long-term disability plan (or, if
the Company or the Bank has no such plan in effect, that impairs the
Officer's ability to substantially perform his duties under this
Agreement for a period of one-hundred-eighty consecutive days). In the
event of such Disability, the Officer's obligation to perform services
under this Agreement will terminate. In the event of such termination,
the Officer shall be entitled to receive the compensation and benefits
provided for under this Agreement for any period during the term of
this Agreement and prior to the date of termination pursuant to this
Section 10.c. during which the Officer is unable to work due to
physical or mental infirmity (less any amounts which the Officer
receives under any disability insurance maintained by the Company or
the Bank with respect to such period). The Boards of the Company and
the Bank
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shall determine whether or not the Officer is and continues to be
permanently disabled for purposes of this Agreement in good faith,
based upon competent medical advice and other factors that they
reasonably believe to be relevant. As a condition to any benefits,
such Board may require the Officer to submit to such physical or
mental evaluations and tests as it deems reasonably appropriate.
d. Just Cause.
i. The Board of the Company or the Bank may, by written notice to
the Officer in the form and manner specified in this paragraph,
immediately terminate his employment with the Company or the
Bank, respectively, at any time, for Just Cause. The Officer
shall have no right to receive compensation or other benefits for
any period after termination for Just Cause except for vested
benefits. Termination for "Just Cause" shall mean termination
because of, in the good faith determination of the Company's or
the Bank's Board, the Officer's:
(1) Personal dishonesty;
(2) Incompetence;
(3) Willful misconduct;
(4) Breach of fiduciary duty involving personal profit;
(5) Intentional failure to perform duties under this Agreement;
(6) Other, continuing material failure to perform his duties
under this Agreement after reasonable notification (which
shall be stated in writing and given at least fifteen days
prior to termination) by the Board of the Company or the
Bank of such failure;
(7) Willful violation of any law, rule or regulation (other than
traffic violations or similar offenses) that reflects
adversely on the reputation of the Bank, any felony
conviction, any violation of law involving moral turpitude,
or any violation of a final cease-and-desist order; or
(8) Material breach by the Officer of any provision of this
Agreement.
ii. Notwithstanding the foregoing, the Officer shall not be deemed to
have been terminated for Just Cause by the Company or the Bank
unless there shall have been delivered to the Officer a copy of a
resolution duly adopted by the affirmative vote of not less than
a majority of the entire membership of the Board of the Company
or the Bank at a meeting of such Board called and held for the
purpose (after reasonable notice to the Officer and an
opportunity for the Officer to be heard before the Board),
finding that in the good faith opinion of such Board the Officer
was guilty of conduct described above and specifying the
particulars thereof.
e. Certain Regulatory Events.
i. If the Officer is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order
issued under Sections 8(e)(4) or 8(g)(1) of the Federal Deposit
Insurance Act ("FDIA") (12 U.S.C. xx.xx. 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
parties shall not be affected.
ii. If the Bank is in default (as defined in Section 3(x)(1) of
FDIA), all obligations of the Bank under this Agreement shall
terminate as of the date of default, but vested rights of the
parties shall not be affected.
iii. If a notice served under Sections 8(e)(3) or (g)(1) of the FDIA
(12 U.S.C. xx.xx. 1818(e)(3) and (g)(1)) suspends and/or
temporarily prohibits the Officer from participating in the
conduct of the Bank's affairs, the Bank's obligations under this
Agreement shall be suspended as of the date of such service,
unless stayed by appropriate proceedings. If the charges in the
notice are dismissed, the Bank may, in its discretion, (i) pay
the Officer all or part of the compensation withheld while its
contract
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obligations were suspended, and (ii) reinstate (in whole or in
part) any of its obligations which were suspended.
The occurrence of any of the events described in paragraphs i, ii, and iii
above may be considered by the Board of the Company or the Bank in connection
with a termination for Just Cause.
f. Voluntary Termination by Officer. In addition to his other rights to
terminate under this Agreement, the Officer may voluntarily terminate employment
with the Bank and the Company during the term of this Agreement upon at least
sixty-days' prior written notice to each of their Boards, in which case the
Officer shall receive only his compensation, vested rights and employee benefits
up to the date of his termination.
g. Without Just Cause or With Good Reason.
i. In addition to termination pursuant to Section 10.a. through
10.f. the Board of the Company or the Bank may, by written notice
to the Officer, immediately terminate his employment with the
Company or the Bank, respectively, at any time for a reason other
than Just Cause (a termination "Without Just Cause"); and the
Officer may, by written notice to the Boards of the Company and
the Bank, immediately terminate this Agreement at any time within
ninety days following an event of "Good Reason" as defined below
(a termination "With Good Reason").
ii. Subject to Section 11 hereof, in the event of termination under
this Section 10.g., the Officer shall be entitled to receive the
salary for the remaining term of the Agreement, including any
renewals or extensions thereof, at the highest annual rate in
effect pursuant to Section 4 of this Agreement for any of the
twelve months immediately preceding the date of such termination,
plus annual cash bonuses for each year (prorated in the event of
partial years) remaining under such term at the amount received
by the Officer in the calendar year preceding the termination.
The sum due under this Section 10.g. shall be paid in one lump
sum within ten calendar days of such termination. Also, in such
event, the Officer shall, for the remaining term of the
Agreement, continue to participate in any benefit plans of the
Company and the Bank that provide health (including medical and
dental), life or disability insurance, or similar coverage upon
terms no less favorable than the most favorable terms provided to
senior officers of the Bank during such period.
iii. "Good Reason" shall exist if, without Officer's express written
consent, the Company or the Bank materially breach any of its
respective obligations under this Agreement. Without limitation,
such a material breach shall be deemed to occur upon any of the
following:
(1) A material reduction in the Officer's responsibilities or
authority, or a requirement that the Officer report to any
person or group other than the Boards of the Company and the
Bank (or any other effective reduction in reporting
responsibilities) in connection with his employment with the
Company or the Bank;
(2) Assignment to the Officer of duties of a non-executive
nature or duties for which he is not reasonably equipped by
his skills and experience;
(3) Failure of the Officer to be elected or reelected to the
Board of the Bank or the Company;
(4) A reduction in salary or benefits contrary to the terms of
this Agreement, or, following a Change in Control as defined
in Section 11 of this Agreement, any reduction in salary or
material reduction in benefits below the amounts to which he
was entitled prior to the Change in Control;
(5) Termination of incentive and benefit plans, programs or
arrangements, or reduction of the Officer's participation to
such an extent as to materially reduce their aggregate value
below their aggregate value as of the Effective Date.
(6) A requirement that the Officer relocate his principal
business office or his principal place of residence outside
of the area consisting of a fifty mile radius from the
current main office and any branch of the Bank, or the
assignment to the Officer of duties that would reasonably
require such a relocation;
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(7) A requirement that the Officer spend more than thirty normal
working days away from the area consisting of a fifty mile
radius from the current main office and any branch of the
Bank during any consecutive twelve-month period; or
(8) Failure to provide office facilities, secretarial services,
and other administrative services to Officer which are
necessary for the Officer to perform his duties hereunder
(excluding brief periods during which office facilities may
be temporarily unavailable due to fire, natural disaster, or
other calamity).
iv. Notwithstanding the foregoing, a reduction or elimination of the
Officer's benefits under one or more benefit plans maintained by
the Company or the Bank as part of a good faith, overall
reduction or elimination of such plan or plans or benefits
thereunder applicable to all participants in a manner that does
not discriminate against the Officer (except as such
discrimination may be necessary to comply with law) shall not
constitute an event of Good Reason or a material breach of this
Agreement, provided that benefits of the type or to the general
extent as those offered under such plans prior to such reduction
or elimination are not available to other officers of the Company
or the Bank or any company that controls either of them under a
plan or plans in or under which the Officer is not entitled to
participate, and receive benefits, on a fair and
nondiscriminatory basis.
h. Continuing Covenant not to Compete or Interfere with Relationships.
Regardless of anything herein to the contrary, following a termination
(i) upon retirement pursuant to Section 10.b., (ii) due to Disability
pursuant to Section 10.c., (iii) for Just Cause pursuant to Section
10.d., or (iv) by the Officer pursuant to Section 10.f.:
i. The Officer's obligations under Section 9.c. of this Agreement
will continue in effect; and
ii. During the greater of (A) remaining term of this Agreement
(determined immediately before such termination), or (B) the
period ending on the third anniversary of such termination) the
Officer shall not serve as an officer or director or employee of
any bank holding company, bank, savings association, savings and
loan holding company, or mortgage company (any of which, a
"Financial Institution") which Financial Institution offers
products or services competing with those offered by the Company
or the Bank from any office within fifty miles from the main
office or any branch of the Bank and shall not interfere with the
relationship of the Company or the Bank and any of its employees,
agents, or representatives.
11. Termination in Connection with a Change in Control.
a. For purposes of this Agreement, a "Change in Control" shall be deemed
to occur on the earliest of:
i. The acquisition by any entity, person or group (other than the
acquisition by a tax-qualified retirement plan sponsored by the
Company or the Bank) of beneficial ownership, as that term is
defined in Rule 13d-3 under the Securities Exchange Act of 1934,
of more than 25% of the outstanding capital stock of the Company
or the Bank entitled to vote for the election of directors
("Voting Stock");
ii. The commencement by any entity, person, or group (other than the
Company or the Bank, a subsidiary of the Company or the Bank, or
a tax-qualified retirement plan sponsored by the Company or the
Bank) of a tender offer or an exchange offer for more than 25% of
the outstanding Voting Stock of the Company or the Bank;
iii. The effective time of (a) a merger or consolidation of the
Company or the Bank with one or more other corporations as a
result of which the holders of the outstanding Voting Stock of
the Company or the Bank immediately prior to such merger exercise
voting control over less than 60% of the Voting Stock of the
surviving or resulting corporation, or (b) a transfer of
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substantially all of the property of the Company or the Bank
other than to an entity of which the Company or the Bank owns at
least 60% of the Voting Stock;
iv. Upon the acquisition by any entity, person, or group of the
control of the election of a majority of the Bank's or the
Company's directors; and
v. At such time that, during any period of two consecutive years,
individuals who at the beginning of such period constitute the
Board of the Company or the Bank (the "Continuing Directors")
cease for any reason to constitute at least two-thirds thereof,
provided that any individual whose election or nomination for
election as a member of the Board was approved by a vote of at
least two-thirds of the Continuing Directors then in office shall
be considered a Continuing Director.
b. Termination. If within the period beginning six months prior to and
ending two years after a Change in Control, (i) the Company or the
Bank shall terminate the Officer's employment Without Just Cause, or
(ii) the Officer shall voluntarily terminate his employment With Good
Reason, the Company or the Bank shall, within ten calendar days of the
termination of Officer's employment, make a lump-sum cash payment to
him equal to 2.0 times the sum of (x) his annual salary at the highest
annual rate in effect for any of the twelve months immediately
preceding the date of such termination, plus (y) the amount of other
compensation received by him during the calendar year preceding the
Change in Control. This cash payment is subject to adjustment pursuant
to Section 14 of this Agreement, and shall be made in lieu of any
payment also required under section 10.g. of this Agreement because of
a termination in such period. The Officer's rights under Section 10.g.
are not otherwise affected by this Section 11. Also, in such event,
the Officer shall, for two (2) calendar years following his
termination of employment, continue to participate in any benefit
plans of the Company and the Bank that provide health (including
medical and dental), life or disability insurance, or similar coverage
upon terms no less favorable than the most favorable terms provided to
senior officers of the Bank during such period.
c. The provisions of Sections 11 and Sections 13 through 24, including
the defined terms used is such sections, shall continue in effect
until the later of the expiration of this Agreement or two years
following a Change in Control.
12. Indemnification and Liability Insurance.
a. Indemnification. The Company and the Bank agree to indemnify the
Officer (and his heirs, executors, and administrators), and to advance
expenses related thereto, to the fullest extent permitted under
applicable law and regulations against any and all expenses and
liabilities reasonably incurred by him in connection with or arising
out of any action, suit, or proceeding in which he may be involved by
reason of his having been a director or officer of the Company or the
Bank or any of their subsidiaries (whether or not he continues to be a
director or officer at the time of incurring any such expenses or
liabilities) such expenses and liabilities to include, but not be
limited to, judgements, court costs, and attorney's fees and the cost
of reasonable settlements, such settlements to be approved by the
Board of the Company or the Bank, if such action is brought against
the Officer in his capacity as an officer or director of the Company
or the Bank or any of their subsidiaries. Indemnification for expense
shall not extend to matters for which the Officer has been terminated
for Just Cause. Nothing contained herein shall be deemed to provide
indemnification prohibited by applicable law or regulation.
Notwithstanding anything herein to the contrary, the obligations of
this Section 12 shall survive the term of this Agreement by a period
of six years.
b. Insurance. During the period in which indemnification of the Officer
is required under this Section, the Company or the Bank shall provide
the Officer (and his heirs, executors, and administrators) with
coverage under a directors' and officers' liability policy at the
expense of the Company or the Bank, at least equivalent to such
coverage provided to directors and senior officers of the Company or
the Bank, whichever is more favorable to the Officer.
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13. Reimbursement of Officer's Expenses to Enforce this Agreement. The Company
or the Bank shall reimburse the Officer for all out-of-pocket expenses,
including, without limitation, reasonable attorney's fees, incurred by the
Officer in connection with successful enforcement by the Officer of the
obligations of the Company or the Bank to the Officer under this Agreement up to
a maximum of $50,000 Successful enforcement shall mean the grant of an award of
money or the requirement that the Company or the Bank take some action specified
by this Agreement (i) as a result of court order; or (ii) otherwise by the
Company or the Bank following an initial failure of the Company or the Bank to
pay such money or take such action promptly after written demand therefor from
the Officer stating the reason that such money or action was due under this
Agreement at or prior to the time of such demand.
14. Adjustment of Certain Payments and Benefits.
a. In the event that payments pursuant to this Agreement (including,
without limitation, any payment under any plan, program, option, or
arrangement referred to in Section 5 or 6 hereof and the value of
acceleration of vesting or receipt of benefits thereof) would result
in the imposition of a penalty tax pursuant to Section 280G, such
payments shall be reduced to equal the maximum amount which may be
paid under Section 280G without exceeding such limits. In the event
any such reduction in payments is necessary, the Officer may
determine, in his sole discretion, which categories of payments
(including, without limitation, the value of benefits or of
acceleration of vesting or receipt of benefits or amounts) are to be
reduced or eliminated.
b. Payments made to the Officer pursuant to this Agreement or otherwise,
are subject to and conditioned upon their compliance with Section
18(k) of the FDIA (12 U.S.C. ss. 1828 (k), relating to "golden
parachute" and indemnification payments and certain other benefits.
15. Injunctive Relief. If there is a breach or threatened breach of Section
10.h. of this Agreement or the prohibitions upon disclosure contained in Section
9.c. of this Agreement, the Company or the Bank and the Officer agree that there
is no adequate remedy at law for such breach, and that the Company and the Bank
each shall be entitled to injunctive relief restraining the Officer from such
breach or threatened breach, but such relief shall not be the exclusive remedy
hereunder for such breach. The parties hereto likewise agree that the Officer,
without limitation, shall be entitled to injunctive relief to enforce the
obligations of the Company and the Bank under Section 11 of this Agreement.
16. Successors and Assigns.
a. This Agreement shall inure to the benefit of and be binding upon any
corporate or other successor of the Company or the Bank which shall
acquire, directly or indirectly, by merger, consolidation, purchase or
otherwise, all or substantially all of the assets or stock of the
Company or the Bank.
b. Since the Bank and the Company are contracting for the unique and
personal skills of the Officer, the Officer shall be precluded from
assigning or delegating his rights or duties hereunder without first
obtaining the written consent of the Bank and the Company.
17. No Mitigation. The Officer shall not be required to mitigate the amount of
any payment provided for in this Agreement by seeking other employment or
otherwise and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided to the Officer in any subsequent employment.
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18. Notices. All notices, requests, demands and other communications in
connection with this Agreement shall be made in writing and shall be deemed to
have been given when delivered by hand or 48 hours after mailing at any general
or branch United States Post Office, by registered or certified mail, postage
prepaid, addressed as follows, or to such other address as shall have been
designated in writing by the addressee:
a. If to the Company or the Bank:
Indian River Banking Company
Indian River National Bank
000 Xxxxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Attention: The Boards of Directors
Copy to: Corporate Secretary
b. If to the Officer:
Xxxxxxx X. High
19. Joint and Severally Liability; Payments by the Company and the Bank. To the
extent permitted by law, except as otherwise provided herein, the Company and
the Bank shall be jointly and severally liable for the payment of all amounts
due under this Agreement. The Company hereby agrees that it shall be jointly and
severally liable with the Bank for the payment of all amounts due under this
Agreement and shall guarantee the performance of the Bank's obligations
thereunder, provided that the Company shall not be required by this Agreement to
pay to the Officer a salary or any bonuses or any other cash payments, except in
the event that the Bank does not fulfill the obligations to the Officer
hereunder for such payments. The Company may, however, pay salary and bonuses as
deemed appropriate by its Board in the exercise of its discretion.
20. No Plan Created by this Agreement. The Officer, the Company and the Bank
expressly declare and agree that this Agreement was negotiated among them and
that no provision or provisions of this Agreement are intended to, or shall be
deemed to, create any plan for purposes of the Employee Retirement Income
Security Act or any other law or regulation, and the Company, the Bank and the
Officer each expressly waives any right to assert the contrary. Any assertion in
any judicial or administrative filing, hearing, or process by or on behalf of
the Officer or the Company or the Bank that such a plan was so created by this
Agreement shall be deemed a material breach of this Agreement by the party
making such an assertion.
21. Amendments. No amendments or additions to this Agreement shall be binding
unless made in writing and signed by all of the parties, except as herein
otherwise specifically provided.
22. Applicable Law. Except to the extent preempted by Federal law, the laws of
the State of Florida shall govern this Agreement in all respects, whether as to
its validity, construction, capacity, performance or otherwise.
23. Severability. The provisions of this Agreement shall be deemed severable and
the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof.
24. Headings. Headings contained herein are for convenience of reference only.
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25. Entire Agreement. This Agreement, together with any understanding or
modifications thereof as agreed to in writing by the parties, shall constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof, other than written agreements with respect to specific plans, programs
or arrangements described in Sections 5 and 6.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
INDIAN RIVER NATIONAL BANK
By:___________________________________
Title:________________________________
INDIAN RIVER BANKING COMPANY
By:___________________________________
Title:________________________________
OFFICER
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Xxxxxxx X. High
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