EXHIBIT 10.4
Employment Contract with
Xxxxxxx Xxxxx, Xx.
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EMPLOYMENT AGREEMENT
FOR
XXXXXXX XXXXX, XX.
THIS EMPLOYMENT AGREEMENT ("Agreement") is being entered into this 9th
day of February, 2000, by and among CITIZENS COMMUNITY BANCORP, INC. ("CCBI"),
CITIZENS COMMUNITY BANK OF FLORIDA ("Bank") and XXXXXXX XXXXX, XX. ("Employee").
CCBI, the Bank and the subsidiaries of CCBI and the Bank are collectively
referred to herein as the "Company." CCBI, the Bank and Employee are
collectively referred to herein as the "Parties."
RECITALS
WHEREAS, CCBI and the Bank wish to retain Employee as their Chief
Executive Officer to perform the duties and responsibilities as are described in
this Agreement and as the respective Boards of Directors (collectively, the
"Board") may assign to Employee from time to time; and
WHEREAS, Employee desires to define the terms of his employment with
CCBI and the Bank.
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. The Company 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 one
(1) year, commencing on January 1, 2000 (the "Effective Date"). Upon each new
day of the one (1) year period of employment from the Effective Date until the
Employee's 65th (sixty-fifth) birthday, the term of this Agreement shall be
automatically extended for one (1) additional day, to be added to the end of the
then-existing one (1) year term. Accordingly, at all times prior to (i) the
Employee's attaining age sixty-five (65) or (ii) the delivery of a Notice Of
Termination, as defined in Section 11 (or an actual termination) the term of
this Agreement shall be one (1) full year. However, either Party may terminate
the automatic renewals by giving the other Party written notice of their intent
not to renew. The automatic extensions of the term of this Agreement shall
immediately be suspended upon an employment termination by reason of death or
disability or retirement, or an employment termination made voluntarily by the
Employee (other than for good reason as defined in Section 9[d], or
involuntarily for just cause as defined in Section 9[b]). Additionally, the
Board shall, on an annual basis, review Employee's performance to determine
whether this Agreement should continue to be extended. The Board's action will
be reflected in the Board Meeting Minutes.
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In the event the Employee gives a Notice Of Termination, the term of
this Agreement shall expire upon the date indicated in the Notice Of
Termination, subject to the provisions of Section 11 herein. Except as otherwise
provided in the following paragraph with respect to a voluntary
termination for good reason, a voluntary employment termination by the Employee
shall result in the termination of the rights and obligations of the parties
under this Agreement; provided, however, that the terms and provisions of
Sections 12 and 13 shall continue to apply.
In the event the Company desires to involuntarily terminate the
employment of Employee (for purposes of this Agreement, a voluntary employment
termination by the Employee for good reason shall be treated as an involuntary
termination of the Employee's employment without just cause), the Company shall
deliver to the Employee a Notice Of Termination, and the following provisions
shall apply:
(a) In the event the involuntary termination is forjust
cause, this Agreement shall terminate immediately
upon delivery to the Employee of such Notice Of
Termination. Such a tennination forjust cause shall
result in the termination of all rights and
obligations of the Parties under this Agreement;
provided, however, that the terms and provisions of
Sections 12 and 13 shall continue to apply.
(b) In the event the involuntary termination is without
just cause, the Employee shall be entitled to receive
the severance benefits set forth in Sections 9(f) and
9(g) herein and the terms and provisions of Sections
12 and 13 shall continue to apply.
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) Specific Duties: Employee shall serve as the Chief
Executive Officer of CCB1 and the Bank, through election by the Board.
In such capacity, Employee shall have the same powers, duties and
responsibilities of supervision and management usually accorded to the
Chief Executive Officer of a bank holding company or financial
institution. In addition, Employee shall use his best efforts to
perform the duties and responsibilities described 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 Company.
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) serve as Chief Executive Officer of CCBI and
the Bank;
(ii) serve as the Chairman of the Boards of CCBI
and the Bank, if and when elected to such
positions;
(iii) serve on such committees as appointed by the
Board from time to time;
(iv) coordinate all management contact with the
members of the Board;
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(v) have the ultimate responsibility for the
preparation and approval of the agendas for
all meetings of the Board and Chair those
meetings, emphasizing participation by the
Board and efficient time usage;
(vi) work in close coordination with the
Presidents of CCBI, the Bank and their
subsidiaries on the strategic planning
process for the Company;
(vii) develop, review and monitor all compensation
systems in the Company, with particular
emphasis on officers and supervisors;
(viii) coordinate the budgeting process for the
Company with the President/CFO to insure
that budgetary goals and projections are
being met;
(ix) lead the strategic planning process of the
Company (including the identification,
development and implementation of approved
complementary business activities and
subsidiaries;
(x) monitor daily financial statements for the
Company;
(xi) assess the developmental needs and career
paths of all officers of the Company and
make recommendations to the respective
Executive Committee members;
(xii) establish and implement marketing efforts to
increase the business of the Company; and
(xiii) coordinate with the Company's attorneys and
accountants, and other service providers to
the extent necessary to further the business
of the Company, keeping in compliance with
government laws and regulations and
otherwise keeping the Company in as good a
financial and legal posture as possible.
(b) GeneralDuties: During the term of this Agreement, and
except for illness, vacation periods and leaves of absences, Employee
shall devote a minimum of 120 hours per month of his working time,
attention, skill and best efforts to accomplish and faithfully perform
all of the duties assigned to Employee. Such working time may be on or
off site at the discretion of Employee. 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.
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3. Compensation. During the term of this Agreement, Employee
shall be compensated as follows:
(a) Base Salary: Employee shall receive an annual salary of
Sixty-Three Thousand Dollars ($63,000) (the "Base Salary"), payment of
which shall be allocated between CCBI and the Bank as determined by the
Board. The Base Salary shall be payable in equal installments, in
accordance with the Company's standard payroll practices, reduced
appropriately by deductions for federal income withholding taxes,
social security taxes and other deductions required by applicable laws.
The Company may adjust the Base Salary from time to time, based upon
the Board's evaluation of Employee's performance. In no event, however,
will the Base Salary be reduced without Employee's written concurrence.
(b) Performance Bonus: In each year, in the event the
Company's year end pretax earnings are $ 1.0 million or less, Employee
shall receive a performance bonus of 2% of the Company's pre-tax
earnings. Should the Company's pre-tax earnings at year end exceed $
1.0 million, Employee's performance bonus shall be 1 % of the Company's
pre-tax earnings
(c) Profit Sharing Plan: Employee shall be entitled to share
with the Bank's President, as allocated by the Board, a percentage of
the Bank's profit sharing pool as determined by the Board, at its sole
discretion.
(d) Stock Appreciation Incentive Bonus: Each year, Employee
shall be entitled to a cash bonus equal to the increase in the "Fair
Market Value" of 25,000 shares of CCBI common stock from January 1 of
that year to December 31 of that year ("SAI bonus"). The Board of the
Company may, from year to year, increase the number of shares of CCBI
common stock on which the SAI bonus is predicated.
For purposes of this Section 3, the Fair Market Value of a
share of CCBI common stock shall be the closing sale price of a share
on the date in question (or, if such day is not a trading day in the
U.S. markets, on the nearest preceding trading day), as reported with
respect to the principal market (or the composite of the markets, if
more than one) or national quotation system in which such shares are
then traded, or if no such closing prices are reported, the mean
between the high bid and low asked prices that day on the principal
market or national quotation system then in use, or if no such
quotations are available, the price furnished by a professional
securities dealer making a market in such shares as selected by the
Board. In the absence of any over-the-counter transactions, the Fair
Market Value means the highest price at which the stock has sold in an
arms length transaction during the 90 days immediately preceding the
date in question. In the absence of an arms length transaction during
such 90 days, Fair Market Value means the book value of a share of
common stock.
Notwithstanding the provisions of the preceding two
paragraphs, in the event of a change in control (as defined in Section
9[e] of this Agreement), Employee shall be immediately entitled to
receive his SAI bonus for that year. In this instance, the amount of
the SAI bonus shall be equal to the increase in the Fair Market Value
of the number of SAI shares from December 31 of the preceding year to
the price paid for the number of shares of CCBI common stock equal to
the number of SAI shares in the transaction that effects the change in
control; the SAI bonus shall be paid simultaneously with that closing.
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(e) Stock and Other Benefit Plans: During the term of this
Agreement, the Employee will be entitled to participate in and receive
the benefits of any stock option plans, stock ownership plans,
profit-sharing plans, 401 (k) plans, deferred compensation plans, or
other plans, benefits and privileges given to 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. The Company shall not make any
changes in such plans, benefits or privileges which would adversely
affect the Employee's rights or benefits thereunder, unless such change
occurs pursuant to a program applicable to all executive officers (Vice
President or above) and does not result in a proportionately greater
adverse change in the rights of or benefits to the Employee as compared
with any other executive officer of the Company. 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(a) herein.
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.
5. Vacation. Employee is entitled to three (3) weeks paid
vacation time per year on a non-cumulative basis.
6. Fringe 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 Company for its employees.
(b) Automobile Allowance: The Company will provide Employee
with a $600 per month automobile allowance during Employee's term of
employment. All expenses and upkeep of the automobile will be bome by
the Employee. Employee shall be responsible for apportioning the time
allocated for personal use for purposes of compliance with the Internal
Revenue Code of 1986, as amended.
(c) Country Club Membership: The Company will pay for a full
membership for Employee at the Marco Island Yacht Club located in
Xxxxxxx County, Florida. Employee shall comply with all applicable
federal income tax laws and regulations governing Employee's personal
use of this membership. The Company will also pay Employee's membership
costs in other clubs or organizations when such membership will benefit
the Company as determined in advance by the Board. Employee shall
maintain records of both business and personal use of such facilities
and shall submit those records to CCBI monthly.
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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 sixty (60) consecutive days. At
the end of such sixty (60) day period, the Company may terminate
Employee's employment and this Agreement.
(b) Disability: Regardless of whether the Company terminates
Employee's employment and this Agreement pursuant to Section 7(a)
herein, if an illness or incapacity lasts for longer than sixty (60)
consecutive days, Employee shall receive payments under the disability
insurance plan provided by the Company and not his full Base Salary.
(c) Continuation of Coverages: During any period of illness or
disability, the Company may continue any other life, health and
disability coverages that Employee was entitled to participate in
immediately prior to the date of receiving benefits or payments under
any disability insurance plan; provided, however, that the Employee's
continued participation is possible under the general terms and
provisions of such plans and programs, and that:
(i) such coverages shall cease upon the earlier
of. (A) sixty (60) days after the date of
any termination of employment hereunder
(with the exception of disability insurance
coverage); or (B) the date of Employee's
death; and
(ii) the continuation of such coverages is not
violative of any disability insurance policy
that Employee is receiving benefits or
payments under.
(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.
(e) Annual Physical: Once a year, Employee agrees to undergo a
routine physical examination. The costs of the examination will be
reimbursed by the Company. The results of the physical examination, or
a summary thereof, shall be made part of Employee's personnel file.
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 accrued
compensation payable to Employee under any benefit plan maintained by the
Company will be paid pursuant to its tenns.
9. Termination.
(a) 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.
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(b) Termination for Just Cause: The Company shall have the
right at anytime, upon prior written notice of termination satisfying
the requirements of Section 11 herein, to terminate the Employee's
employment hereunder, including termination forjust cause. For the
purpose of this Agreement, termination for "just cause" shall mean
termination for personal dishonesty, incompetence, willful misconduct,
material breach of fiduciary duty, intentional failure to perform the
duties stated in this Agreement, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses), willful
violation of a final cease-and-desist order, willful or intentional
breach or negligence or misconduct in the performance of such duties or
material breach of any provision of this Agreement as determined by a
court of competent jurisdiction or in final agency action by a federal
or state regulatory agency having jurisdiction over the Company. 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 Corporate 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.
(c) 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[e] herein), Employee's
right to compensation and other benefits under this Agreement shall be
as set forth in Sections 9(f)(i) and 9(g) herein. In the event the
Employee is terminated by the Company 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(f)(ii) and 9(g) herein.
(d) Termination for Good Reason: Employee may terminate his
employment hereunder for good reason. 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 the Company; or (ii) subsequent to a
change in control as defined in Section 9(e) herein.
(e) Change in Control: For purposes of this Agreement, a
"change in control" shall mean a change in ownership of stock of CCB1
or the Bank whereby a person: (i) acquires 50%, plus one share of the
outstanding shares of voting stock of CCBI or the Bank through direct
or indirect ownership or proxy; or (ii) controls in any manner the
election of a majority of the directors of the Board.
(b) Severance Payment:
(i) If the Employee shall terminate his
employment for good reason as defined in of
Section 9(d) herein, or if the Employee is
terininated by the Company for other
thanjust cause pursuant to Section 9(c)
herein, then in lieu of any further salary
payments to the Employee for periods
subsequent to the date of termination, the
Employee shall be paid, as severance, an
amount which would equal the Employee's
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total Base Salary for the remainder of the
term of the Agreement, plus any bonus,
profit sharing, or incentive compensation
that the 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 the Bank
occurs within twelve (12) months of the
Employees' involuntary termination or
termination for good reason, Employee
shall be entitled to a severance payment
equal to two (2) times his current Base
Salary and any bonus, profit sharing or
incentive compensation that would then
be due Employee. Any payment under Section
9(f)(i) and 9(f)(ii) shall be made in
substantially equal semi-monthly
installments on the fifteenth and last days
of each month until paid in full.
(g) Additional Severance Benefits: Unless the Employee is
terminated for just cause pursuant to Section 9(b) herein, pursuant to
Section 10(b) herein, pursuant to Section 7 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 in
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.
(h) Mitigation: Employee shall not be required to mitigate the
amount of any payment provided for in Sections 9(f) and 9(g) of this
Agreement by seeking other employment or otherwise.
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, therefore, 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 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.
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(b) Permanent Prohibition: If the Employee is removed from
office and/or permanently prohibited from participating in the conduct
of the Bank's affairs by an order issued under Section 655.037, Florida
Statutes, or 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) 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]), 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 be not affected.
(d) Regulatory Termination: All obligations of the Bank under
this Agreement shall be terminated, except to the extent that a
determination has been made that continuation of this Agreement is
necessary for continued operation of the Bank:
(i) by the Director of the Federal Deposit
Insurance Corporation (or his or her
designee) (the "FDIC") at the time the FDIC
enters into an agreement to provide
assistance to or on behalf of the Bank under
the authority to contained in Section 13(c)
of the Federal Deposit Insurance Act; or
(ii) by the Department or the Director (or his or
her designee) at the time the Department or
the Director (or his or her designee)
approves a supervisory merger to resolve
problems related to operation of the Bank or
when the Bank's determined by the Director
to be in unsafe or unsound condition.
Any of Employee's rights that have already vested, however, shall not
be affected by such action.
11. Notice of Termination.
(a) Employee's Notice: Employee shall have the right, upon
prior written notice of termination of not less than sixty (60) 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(d) 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 the
Employee's employment under the provision so indicated; and
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(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 the Company's
termination of the Employee's employment forjust 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 the Company, notice shall be
sent to the corporate headquarters of CCBL 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. Either Party, 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:
(i) Employee shall furnish such information and
assistance as may be reasonably required by the
Company, or its attorneys, 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); and
(ii) Employee shall provide such information or assistance
as may be reasonably required by the Company in
connection with any regulatory examination by any
state or federal regulatory agency.
13. 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 tennination 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.
14. Competitive 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 make any
financial investment in any financial institution that directly competes with
the business of the Bank in Xxxxxxx County, Florida; provided, however, that
Employee shall not be precluded or prohibited from owning passive investments,
including investments in the securities of other financial institutions.
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3. Remedies for Breach.
(a) Arbitration: The Parties agree that, except for the
specific remedies for injunctive relief and other equitable relief
contained in Sections 15(b) and 15(c) herein, 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 Attorneys' Fees. The venue of
arbitration shall be in Xxxxxxx 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 14 of this Agreement.
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 improper
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 15(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.
16. 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 Bank, 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 Bank's assets and business, or with or into which the Bank 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 1 O(c) and 1 O(d) herein.
17. Miscellaneous.
(a) Amendments to the Agreement: Unless as otherwise
provided herein, this Agreement may not be modified or amended except
in writing signed by the Parties.
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(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 or the interpretation of
any of the provisions of this Agreement.
(d) Governing LawlJurisdiction: This Agreement shall be
construed in accordance with and governed by the laws of the State of
Florida. Any litigation involving the Parties and their rights and
obligations hereunder shall be brought in the appropriate courts in and
for Xxxxxxx 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
otherprovisions 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 neutral gender,
as appropriate.
(i) Recitals: The Recitals set forth at the beginning of this
Agreement shall 1~ 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.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the day and year first written above.
CITIZENS COMMUNITY BANCORP, INC.
/s/ Xxxxxxx Xxxxx, Xx. By:/s/ Xxxx X. Xxx
----------------------------- ---------------------
Xxxxxxx Xxxxx, Xx. Xxxx X. Xxx
Chairman of the Executive Committee
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx
----------------------------- --------------------
Witness Witness
CITIZENS COMMUNITY BANK OF FLORIDA
/s/ Xxxxxxx Xxxxx, Xx. By:/s/ Xxxxx X. Xxxxx
----------------------------- -------------------
Xxxxxxx Xxxxx, Xx. Xxxxx X. Xxxxx
Chairman of the Executive Committee
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx
----------------------------- --------------------
Witness Witness
13
