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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS AGREEMENT is dated the 1st day of October, 1999, among Xxxxxxxx
Bancorp Inc., a Florida corporation, Xxxxxxxx Bank, N.A. (the "Bank"), a
national banking association located in Miami, Florida (collectively, the
"Company"), and Xxxxxx X. Xxxxxxxx (the "Executive").
INTRODUCTION
The Boards of Directors of the Company have determined that it is in
the best interests of the Company to retain the Executive's services and to
reinforce and encourage the continued attention and dedication of the Executive
to his assigned duties without distraction in potentially disturbing
circumstances arising from the possibility of a change in control of the Company
or the assertion of claims and actions against employees.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Company and the Executive hereby agree as
follows:
1. EMPLOYMENT. Upon the terms and subject to the conditions contained
in this Agreement, the Executive agrees to provide full-time services for the
Bank during the term of this Agreement. The Executive agrees to devote his best
efforts to the business of the Company and shall perform his duties in a
diligent, trustworthy, and business-like manner, all for the purpose of
advancing the business of the Company.
2. DUTIES. The duties of the Executive shall be those duties which can
reasonably be expected to be performed by a person who is a senior executive of
a national chartered bank. The Executive shall report as directed by the Board
of Directors of the Bank. The Executive's duties may, from time to time, be
changed or modified at the discretion of the Board of Directors or the CEO of
the Company.
3. EMPLOYMENT TERM. Subject to the terms and conditions hereof, the
Company agrees to employ the Executive for a term of one year and three months,
commencing as of October 1, 1999 (the "Effective Date") and continuing through
December 31, 2000, unless renewed under this Section 3. The Company may
terminate the Executive's employment prior to the end of the three-year term
through a Termination Due to Disability under Section 5(a), a Termination With
Cause under Section 5(b) or Termination Without Cause under Section 5(c).
The term of this Agreement shall be automatically extended for an
additional year each December 31, commencing December 31, 2000, unless either
the Company or the Executive provides written notice of election not to renew,
at least 30 days before the applicable December 31.
4. SALARY AND BENEFITS.
(a) BASE SALARY. The Company shall, during the term of this
Agreement, pay the
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Executive an annual base salary in effect as of the date of the
Agreement through December 31, 1999. Thereafter, base salary shall be
reviewed by the Company at least annually and any base salary increase
shall be effective each January 1, beginning January 1, 2000. The
Company may not, however, reduce the Executive's base salary at any
time during the term of this Agreement.
(b) ANNUAL INCENTIVE PAYMENT. Each year during this Agreement,
the Executive shall be eligible to receive an annual incentive payment
(the "Annual Incentive Payment). The amount actually awarded to the
Executive will be determined by the Company's or the Bank's
Compensation Committee. Any applicable bonus shall be paid by February
28 of each year (with the first bonus payable by February 28, 2000,
relating to the 1999 year).
(c) STOCK OPTIONS. The Company shall provide a stock option
program to the Executive in accordance with the 1998 and 2000 Executive
Incentive Plans, as amended or replaced by a successor plan approved by
the Company's Board of Directors and, if necessary, its shareholders.
The Executive will not be eligible to participate in any stock option
plans reserved for outside directors.
(d) LIFE INSURANCE. The Company shall provide life insurance
coverage on the life of the Executive in accordance with the Company's
Group Term Life Insurance Plan. The life insurance benefit will be paid
upon death according to the following schedule; however, the death
benefit is limited to a maximum of $350,000.
YEARS OF SERVICE DEATH BENEFIT
---------------- -------------
1-5 2 x Salary
5-10 3 x Salary
10-15 4 x Salary
15+ 5 x Salary
(e) VACATION. The Executive shall be entitled to the number of
weeks of paid vacation during each full year of his employment
hereunder in accordance with the vacation policy adopted by the
Company. In addition, upon any Termination under Section 5, except for
Termination for Cause, the Executive will be paid any vacation earned
in the calendar year of the termination but not taken through the date
of the termination.
(f) REIMBURSEMENT OF EXPENSES. The Company shall reimburse the
Executive for all reasonable out-of-pocket expenses incurred by the
Executive in the course of his duties, in accordance with any business
conducted on behalf of the Company.
(g) EMPLOYEE BENEFITS. The Executive shall be entitled to
participate in the employee benefit programs generally available to
employees of the Company, and to all normal perquisites provided to
senior executive officers of the Company.
(h) BENEFITS NOT IN LIEU OF COMPENSATION. No benefit or
perquisite provided to the Executive shall be deemed to be in lieu of
base salary, bonus, or other compensation.
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5. TERMINATION OF EMPLOYMENT. The Board of Directors of the Company may
terminate the employment of the Executive at any time as it deems appropriate.
(a) DISABILITY. The Company may terminate the Executive's
employment for Disability if the Executive is incapacitated or absent
and unable to perform substantially all the regular Duties of his
employment as defined under the Total Disability From Your Own
Occupation under the Company's Long Term Disability Plan. If, during
the term of this Agreement, the Executive's employment terminates due
to Disability, the Company shall provide long term disability insurance
that provides for an annual benefit of 2/3 of the Executive's Base
Salary; however, this benefit is limited to the maximum allowed under
the Company's Long Term Disability Plan in effect from time to time,
but not less than $6,000 per month.
(b) VOLUNTARY RESIGNATION OR TERMINATION FOR CAUSE. If the
Executive shall voluntarily terminate his employment for other than
Good Reason or if the Company shall discharge the Executive for Cause,
as defined herein, this Agreement shall terminate immediately and the
Company shall have no further obligation to make any payment under this
Agreement which has not already become payable, but has not yet been
paid, provided, however, that with respect to any stock options,
restricted stock, incentive plans, deferred compensation arrangements,
or other plans or programs in which the Executive is participating at
the time of termination of his employment, the Executive's rights and
benefits under each such plan shall be determined in accordance with
the terms, conditions, and limitations of the plan and any separate
agreement executed by the Executive which may then be in effect.
For the purposes of this Agreement, the Company shall have
"Cause" to terminate the Executive's employment hereunder upon:
(i) the willful and continued failure by the
Executive to perform his duties with the Company (other than
any such failure resulting from incapacity due to Disability),
after a demand for specific performance is delivered to the
Executive by the Board which identifies individual goals and
objectives which must be accomplished to remedy the
Executive's performance, as well as provides rationale as to
the reason the Board believes that he has not historically
performed his duties;
(ii) the willful engaging by the Executive in gross
misconduct materially and demonstrably injurious to the
Company. For purposes of this paragraph, no act, or failure to
act, on the Executive'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.
(c) TERMINATION WITHOUT CAUSE OR RESIGNATION FOR GOOD REASON.
If during the term of the Agreement, the Executive's employment is
terminated by the Company without Cause or the Executive voluntarily
terminates his employment for Good Reason, as defined herein:
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(i) BASE SALARY. The Company shall pay the Executive
in a lump sum an amount equal to the remaining term of this
Agreement times the current annual base salary as provided in
Section 4(a) in effect at the date of termination;
(ii) ANNUAL INCENTIVE. To compensate the Executive
for the current year's annual incentive, the Company shall pay
to the Executive in a lump sum an amount equal to the
aggregate amount paid to the Executive under Sections 4(b) for
the most recently completed calendar year multiplied by a
ratio whose numerator is the number of the current month as of
the date of termination and the denominator is twelve.
(iii) NONQUALIFIED RETIREMENT PLANS AND STOCK
OPTIONS. The Company shall pay to the Executive any amounts
due under Section 4(c) according with the terms, conditions
and limitations of the plans and any separate agreements under
Section 4(c) without regard to "vesting" thereunder.
For purposes of this Agreement, the term "Good Reason" shall
mean:
(i) Without his express written consent, the
assignment to the Executive of any duties inconsistent with
his positions, duties, responsibilities and status with the
Company, or a change in his reporting responsibilities, titles
or offices, or any removal of the Executive from or any
failure to re-elect the Executive to any of such positions,
except in connection with the termination of his employment
for Cause, Disability or retirement or as a result of his
death or by the Executive other than for Good Reason;
(ii) A reduction by the Company in the Executive's
base salary as in effect on the date hereof or as the same may
be increased from time to time;
(iii) Without his express written consent the failure
by the Company to continue in effect any Stock Options under
Section 4(c), the Life Insurance under Section 4(d) in which
the Executive is participating (or plans providing
substantially similar benefits), the taking of any action by
the Company which would adversely affect the Executive's
participation in or materially reduce his benefits under any
of such plans or deprive him of any material fringe benefit
enjoyed by him, or the failure by the Company to provide the
Executive with the number of paid vacation days to which he is
then entitled on the basis of years of service with the
Company in accordance with the Company's normal vacation
policy in effect on the date hereof; or
(iv) Any failure of the Company to obtain the
assumption of, or the agreement to perform, this Agreement by
any successor as contemplated in Section 16(a) hereof.
6. PERFORMANCE BONUS UPON CERTAIN CHANGES OF CONTROL. If a Change of
Control occurs during the term of this Agreement and if the compensation paid
upon such Change of Control
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on a per share basis equals or exceeds the closing price of a share of the
Company's common stock on the date hereof plus twenty percent thereof, the
Executive shall be paid a performance bonus equal to the Executive's
compensation paid by the Company and its affiliates which was includible in the
Executive's gross income during the most recent taxable year ending before the
date of the Change of Control.
The term "Change of Control" as used in this Agreement shall have the
following meaning:
(i) A reorganization, merger, consolidation or other form of
corporate transaction or series of transactions, in each case, with
respect to which persons who were the shareholders of the Company
immediately prior to such reorganization, merger or consolidation or
other transaction do not, immediately thereafter, directly or
indirectly, own more than 80% of the combined voting power entitled to
vote generally in the election of director of the reorganized, merged
or consolidated entity's then outstanding voting securities;
(ii) A liquidation or dissolution of the Company;
(iii) The sale of more than 50% of the assets of the Company
to any person or entity not controlled by or under common control with
the Company (unless such reorganization, merger, consolidation or other
corporate transaction, liquidation, dissolution or sale is subsequently
abandoned); or
(iv) The acquisition by any person, entity or "group", within
the meaning of Section 13 (d) (3) or 14 (d) (2) of the Securities
Exchange Act, (excluding any employee benefit plan of the Company or
its subsidiaries which acquires beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act))
of more than twenty percent (20%) of either the then outstanding shares
of common stock or the combined voting power of the Company's then
outstanding voting securities entitled to vote generally in the
election of directors.
7. TERMINATION AFTER CHANGE OF CONTROL BENEFIT.
(a) TERMINATION. If within 12 months after a Change of
Control, the Company shall terminate the Executive's employment other
than pursuant to Section 5(a) or 5(b) hereof or if the Executive shall
terminate his employment for Good Reason, then the Company shall pay to
the Executive a benefit as defined in Section 7(b).
(b) AMOUNT. Upon a termination after a Change of Control as
provided in Section 7(a), the Executive will receive a Change of
Control Benefit equal to the greater of (i) two (2) times the
Executive's Base Annual Compensation as defined in Section 7(c) at the
date of the Change of Control assuming the individual is in good
employment or (ii) the amount payable to the Executive as provided in
Section 5(c).
(c) BASE ANNUAL COMPENSATION. The Executive's compensation
paid by the Company and its affiliates which was includible in the
Executive's gross income during the
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most recent taxable year ending before the date of the Change of
Control (including, amounts includible in compensation, i.e., the base
salary and cash annual incentive prior to any deferred arrangements)
PROVIDED, HOWEVER, that such amount shall not exceed an amount equal to
three (3) times the Executive's average annualized compensation paid by
the Company and its affiliates which was includible in the Executive's
gross income during the most recent five taxable years ending before
the date of the Change of Control (defined as the individual's "base
amount" under Section 280G of the Internal Revenue Code of 1986, as
amended).
(d) NONQUALIFIED RETIREMENT PLANS AND STOCK OPTIONS. The
Company shall also pay to the Executive any amounts due under Section
4(c) according with the terms, conditions and limitations of the plans
and any separate agreements under Section 4(c) without regard to
"vesting" thereunder.
(e) CONSIDERATION OF BENEFIT. As consideration for the benefit
paid in Section 7, the Executive agrees to work with the new
organization for a period of no less than six months. If the
organization, however, terminates the employment of the Executive
except under Termination for Cause, the Executive is still entitled to
the benefit specified under this section 7.
(f) LIMITATION OF BENEFIT: Notwithstanding anything to the
contrary in this Agreement, if there are payments to the Employee which
constitute "parachute payments," as defined in Section 280G of the
Code, then the payments made to the Executive shall be the maximum of
(x) one dollar ($1.00) less than the amount which would cause the
payments to the Employee (including payments to the Employee which are
not included in this Agreement) to be subject to the excise tax imposed
by Section 4999 of the Code, and (y) the payments to the Employee
(including payments to the Employee which are not included in the
Agreement) after taking into account the excise tax imposed by Section
4999 of the Code.
(g) PAYMENT OF BENEFIT. The Company shall pay any Change of
Control Benefit payable as provided in this Section 7 in a lump sum
upon the Executive's Termination of Employment.
8. CONFIDENTIAL INFORMATION. The Executive recognizes and acknowledges
that he will have access to certain information of the Company and that such
information is confidential and constitutes valuable, special and unique
property of the Company. The Executive shall not at any time, either during or
subsequent to the term of this Agreement, disclose to others, use, copy or
permit to be copied, except in pursuance of his duties for and on behalf of the
Company, it successors, assigns or nominees, any Confidential Information of the
Company (regardless of whether developed by the Executive) without the prior
written consent of the Company.
The term "Confidential Information" with respect to any person means
any secret or confidential information or know-how and shall include, but shall
not be limited to, the plans, customers, costs, prices, uses, and applications
of products and services, results of investigations, studies owned or used by
such person, and all products, processes, compositions, computer
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programs, and servicing, marketing or operational methods and techniques at any
time used, developed, investigated, made or sold by such person, before or
during the term of this Agreement, that are not readily available to the public
or that are maintained as confidential by such person. The Executive shall
maintain in confidence any Confidential Information of third parties received as
a result of his employment with the Company in accordance with the Company's
obligations to such third parties and the policies established by the Company.
9. DELIVERY OF DOCUMENTS UPON TERMINATION. The Executive shall deliver
to the Company or its designee at the termination of his employment all
correspondence, memoranda, notes, records, drawings, sketches, plans, customer
lists, product compositions, and other documents and all copies thereof, made,
composed or received by the Executive, solely or jointly with others, that are
in the Executive's possession, custody, or control at termination and that are
related in any manner to the past, present, or anticipated business or any
member of the Company.
10. NO TAMPERING. Throughout the term of the Agreement and through the
second anniversary of the expiration thereof, the Executive shall not (a)
request, induce or attempt to influence any customers of the Company to curtail
or cancel any business they may transact with the Company; or (b) request,
induce or attempt to influence any employee of the Company to terminate his
employment with the Company.
11. RELOCATION. The Company's requiring the Executive to be based
anywhere other than Miami, Florida except for required travel on the Company's
business to an extent substantially consistent with his present business travel
obligations, or, in the event the Executive consents to any relocation, the
failure by the Company to pay (or reimburse the Executive) for all reasonable
moving expenses incurred by him relating to a change of his principal residence
in connection with such relocation and to indemnify the Executive against any
loss (defined as the difference between the actual sale price of such residence
and the higher of (a) his aggregate investment in such residence or (b) the fair
market value of such residence as determined by a real estate appraiser
designated by the Executive and reasonably satisfactory to the Company) realized
on the sale of the Executive's principal residence in connection with any such
change of residence, shall constitute Good Reason for the Executive to
voluntarily terminate his employment.
12. PUBLICITY AND ADVERTISING. The Executive agrees that the Company
may use his name, picture, or likeness for any advertising, publicity, or other
business purpose at any time, during the term of the Agreement and may continue
to use materials generated during the term of the Agreement for a period of six
months thereafter. The Executive shall receive no additional consideration if
his name, picture or likeness is so used. The Executive further agrees that any
negatives, prints or other material for printing or reproduction purposes
prepared in connection with the use of his name, picture or likeness by the
Company shall be and are the sole property of the Company.
13. REMEDIES. The Executive acknowledges that a remedy at law for any
breach or attempted breach of the Executive's obligations under Sections 8
through 10 may be inadequate, agrees that the Company may be entitled to
specific performance and injunctive and other equitable remedies in case of any
such breach or attempted breach, and further agrees to waive any requirement for
the securing or posting of any bond in connection with the obtaining of any such
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injunctive or other equitable relief. The Company shall have the right to offset
against amounts to be paid to the Executive pursuant to the terms hereof any
amounts from time to time owing by the Executive to the Company. The termination
of the Agreement pursuant to Section 3, 5(a) or 5(b) shall not be deemed to be a
waiver by the Company of any breach by the Executive of this Agreement or any
other obligation owed the Company, and notwithstanding such a termination the
Executive shall be liable for all damages attributable to such a breach.
14. DISPUTE RESOLUTION. Subject to the Company's right to seek
injunctive relief in court as provided in Section 13 of this Agreement, any
dispute, controversy or claim arising out of or in relation to or connection to
this Agreement, including without limitation any dispute as to the construction,
validity, interpretation, enforceability or breach of this Agreement, shall be
exclusively and finally settled by arbitration, and any party may submit such
dispute, controversy or claim, including a claim for indemnification under this
Section 14, to arbitration.
(a) ARBITRATORS. The arbitration shall be heard and determined
by one arbitrator, who shall be impartial and who shall be selected by
mutual agreement of the parties; provided, however, that if the dispute
involves more than $1,000,000, then the arbitration shall be heard and
determined by three (3) arbitrators. If three (3) arbitrators are
necessary as provided above, then (i) each side shall appoint an
arbitrator of its choice within thirty (30) days of the submission of a
notice of arbitration and (ii) the party-appointed arbitrators shall in
turn appoint a presiding arbitrator of the tribunal within thirty (30)
days following the appointment of the last party-appointed arbitrator.
(b) PROCEEDINGS. Unless otherwise expressly agreed in writing
by the parties to the arbitration proceedings:
(i) The arbitration proceedings shall be held in
Miami, Florida, at a site chosen by mutual agreement of the
parties, or if the parties cannot reach agreement on a
location within thirty (30) days of the appointment of the
last arbitrator, then at a site chosen by the arbitrators;
(ii) The arbitrators shall be and remain at all times
wholly independent and impartial;
(iii) The arbitration proceedings shall be conducted
in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, as amended from time to
time;
(iv) Any procedural issues not determined under the
arbitral rules selected pursuant to item (iii) above shall be
determined by the law of the place of arbitration, other than
those laws which would refer the matter to another
jurisdiction;
(v) The costs of the arbitration proceedings
(including attorneys' fees and costs) shall be borne in the
manner determined by the arbitrators;
(vi) The decision of the arbitrators shall be reduced
to writing; final and
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binding without the right of appeal; the sole and exclusive
remedy regarding any claims, counterclaims, issues or
accounting presented to the arbitrators; made and promptly
paid in United States dollars free of any deduction or offset;
and any costs or fees incident to enforcing the award shall,
to the maximum extent permitted by law, be charged against the
party resisting such enforcement;
(vii) The award shall include interest from the date
of any breach or violation of this Agreement, as determined by
the arbitral award, and from the date of the award until paid
in full, at 6% per annum; and
(viii) Judgment upon the award may be entered in any
court having jurisdiction over the person or the assets of the
party owing the judgment or application may be made to such
court for a judicial acceptance of the award and an order of
enforcement, as the case may be.
(c) ACKNOWLEDGMENT OF PARTIES. Each party acknowledges that he
or it has voluntarily and knowingly entered into an agreement to
arbitration under this Section by executing this Agreement.
15. INDEMNIFICATION. The Executive shall be protected against any and
all legal actions when he is either a party, witness or a participant in any
legal action brought against the Company. He will be protected through any
programs that cover the outside directors or other executives of the Company.
16. MISCELLANEOUS PROVISIONS.
(a) SUCCESSORS OF THE COMPANY. The Company will require any
successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company, by agreement in form and substance
satisfactory to the Executive, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken
place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the
Company in the same amount and on the same terms as the Executive would
be entitled hereunder if the Executive terminated his employment for
Good Reason, except that for purposes of implementing the foregoing,
the date on which any such succession becomes effective shall be deemed
the Date of Termination. As used in this Agreement, "Company" shall
mean the Company as hereinbefore defined and any successor to its
business and/or assets as aforesaid which executes and delivers the
agreement provided for in this Section 16 or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation of
law.
(b) EXECUTIVE'S HEIRS, ETC. The Executive may not assign his
rights or delegate his duties or obligations hereunder without the
written consent of the Company. This Agreement shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and
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legatees. If the Executive should die while any amounts would still be
payable to him hereunder as if he had continued to live, all such
amounts, unless other provided herein, shall be paid in accordance with
the terms of this Agreement to his designee or, if there be no such
designee, to his estate.
(c) NOTICE. For the purposes of this Agreement, notices and
all other communications provide for in the Agreement shall be in
writing and shall be deemed to have been duly given when delivered or
mailed by United States registered or certified mail, return receipt
requested, postage prepaid, addressed to the respective addresses set
forth below, provided that all notices to the Company shall be directed
to the attention of the Chief Executive Officer of the Company with a
copy to the Secretary of the Company, or to such other in writing in
accordance herewith, except that notices of change of address shall be
effective only upon receipt.
(d) AMENDMENT OR WAIVER. No provisions of this Agreement may
be modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing signed by the Executive and such
officer as may be specifically designated by the Board of Directors of
the Company (which shall in any event include the Company's Chief
Executive Officer). No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition
or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement.
(e) INVALID PROVISIONS. Should any portion of this Agreement
be adjudged or held to be invalid, unenforceable or void, such holding
shall not have the effect of invalidating or voiding the remainder of
this Agreement and the parties hereby agree that the portion so held
invalid, unenforceable or void shall, if possible, be deemed amended or
reduced in scope, or otherwise be stricken from this Agreement to the
extent required for the purposes of validity and enforcement thereof.
(f) SURVIVAL OF THE EXECUTIVE'S OBLIGATIONS. The Executive's
obligations under this Agreement shall survive regardless of whether
the Executive's employment by the Company is terminated, voluntarily or
involuntarily, by the Company or the Executive, with or without Cause.
(g) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same instrument.
(h) GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of Florida.
(i) CAPTIONS AND GENDER. The use of captions and Section
headings herein is for purposes of convenience only and shall not
effect the interpretation or substance of any
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provisions contained herein. Similarly, the use of the masculine or
feminine gender with respect to pronouns in this Agreement is for
purposes of convenience and includes either sex who may be a signatory.
IN WITNESS WHEREOF, the Executive and duly authorized Company officers
have signed this Agreement.
EXECUTIVE: COMPANY:
XXXXXXXX BANCORP INC.
_________________________
Xxxxxx X. Xxxxxxxx By __________________________
Title:
Address:
By __________________________
Title:
XXXXXXXX BANK, N.A.
By __________________________
Title:
By __________________________
Title:
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
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