CHANGE

 
 
 
Table
 
of Contents
 
Exhibit 10.6
CHANGE
 
IN
 
CONTROL
 
AGREEMENT
THIS
 
CHANGE
 
IN
 
CONTROL
 
AGREEMENT
 
(“CIC
 
Agreement”)
 
is
 
made
 
by
 
and
between
 
U.S.
 
Century
 
Bank,
 
with
 
Corporate
 
Offices
 
located
 
at
 
0000
 
XX
 
00
xx
 
Xxx.,
 
Xxxxx,
 
XX
00000 (hereinafter called the
 
“Bank” or the “Company”),
 
its subsidiaries, divisions and associated
and affiliated entities (“Affiliates”) and Xxxxxxx Xxxxx (“Executive”).
WHEREAS,
 
as
 
consideration
 
for
 
Executive’s
 
continued
 
employment
 
with
 
the
 
Bank
 
as
Chief Credit
 
Officer,
 
which is
 
incorporated by
 
reference in
 
this Agreement),
the parties hereto,
intending to be
 
legally bound,
 
agree as follows:
1.
Payment Upon Change in Control.
 
In the event of a Change in
 
Control (as defined
herein) for the remaining term of Executive’s employment with the Bank, the
 
Company agrees to
issue
 
payment
 
to
 
Executive
 
in
 
the
 
total
 
amount
 
of
 
1.5
 
times
 
the
 
Base
 
Annual
 
Salary
 
of
 
the
Executive applicable for the one
 
(1) year period prior to
 
the Change in Control, to
 
be paid within
thirty (30) days
 
of the consummation
 
of the Change
 
in Control.
 
Bank’s
 
provision of this
 
benefit
to Executive
 
is
 
made
 
without
 
regard to
 
whether,
 
or for
 
how long,
 
Executive remains
 
employed
with the surviving company subsequent to the Change in Control.
 
2.
Change
 
in
 
Control.
 
“Change
 
in
 
Control
 
shall
 
mean
 
the
 
occurrence
 
of
 
an
 
event
described in (i), (ii), (iii), or (iv) below:
(i) Any person or group (within the meaning of Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than
the Bank, an affiliate of the Bank or a trustee or other fiduciary holding securities
under an employee benefit plan of the Bank or a corporation owned directly or
indirectly by the stockholders of Bank in substantially the same proportions as
their ownership of stock of the Bank, becomes the beneficial
 
owner (within the
meaning of Rule 13(d)(3) under the Exchange Act, directly or indirectly (which
shall include securities issuable upon conversion, exchange or otherwise) or
securities representing 50% or more of the combined voting power of the Bank’s
then-outstanding securities entitled to vote for the election of directors.
(ii)
 
Consummation
 
of
 
an
 
agreement
 
to
 
merge or
 
consolidate
 
with
 
another
 
entity
(other
 
than
 
a
 
majority-controlled
 
subsidiary
 
of the
 
Bank)
 
unless
 
the
 
Bank’s
stockholders immediately before the
 
merger or
 
consolidation own more
 
than 50%
of
 
the
 
combined
 
voting
 
power
 
of
 
the
 
resulting
 
entity’s
 
voting
 
securities
 
(giving
effect to
 
the conversion
 
or exchange
 
of securities
 
issued in
 
the merger
 
consolidation
to the
 
other entity
 
that are
 
convertible or
 
exchangeable for
 
voting securities)
 
entitled
generally to vote for the election of directors.
 
(iii) Consummation
 
of an
 
agreement (including,
 
without limitation,
 
an agreement
of liquidation) to sell or otherwise dispose of all or substantially all of the business
or assets of the Bank (or a subsidiary thereof); or
 
 
 
 
 
 
 
Table
 
of Contents
 
(iv) Individuals who, as of the date hereof, constitute the Board of Directors of the
Bank
 
(the
 
“Incumbent
 
Board”)
 
cease
 
for
 
any
 
reason
 
to constitute
at least a majority of the Board, provided that any person becoming a director
subsequent to the date hereof whose election or nomination for election by the
stockholders
 
is
 
approved
 
by
 
a
 
vote
 
of
 
at
 
least
 
a
 
majority
 
of
 
directors then
constituting
 
the
 
Incumbent
 
Board
 
shall
 
be,
 
for
 
purposes
 
of
 
this Agreement,
considered as though such person were a member of the Incumbent Board.
 
Notwithstanding
 
the
 
foregoing, no
 
event
 
shall
 
constitute a
 
Change
 
in Control
 
unless
such event shall
 
also constitute
 
a change in
 
control as
 
defined in Section
 
409A of the
Code.
3.
Severability. Should any provision of this Agreement
 
be declared or determined
 
by
any court of
 
competent jurisdiction
 
to be unenforceable
 
or invalid for
 
any reason, the
 
validity of
the remaining
 
parts, terms
 
or provisions
 
of this
 
Agreement shall
 
not be
 
affected thereby
 
and the
invalid or unenforceable
 
part, term
 
or provision shall
 
be deemed
 
not to be
 
a part of
 
this Agreement.
4.
Applicable
 
Law/Forum.
 
This
 
Agreement
 
has
 
been
 
entered
 
into
 
in
 
and
 
shall
 
be
governed
 
by
 
and
 
construed
 
under
 
the
 
internal
 
laws
 
of
 
the
 
State
 
of
 
Florida,
 
without
 
regard
 
to
conflicts of laws principals. All
 
suits, proceedings and other
 
actions relating to, arising out
 
of or in
connection
 
with
 
this
 
Agreement will
 
be
 
submitted
 
solely
 
to
 
the
 
in
 
personam jurisdiction
 
of
 
the
United States District Court for
 
the Southern District of Florida
 
(“Federal Court”) or to the
 
Circuit
Court in Broward County or Miami-Dade County. Executive hereby waives any claims against or
objections to such in personam jurisdiction and venue.
5.
Notice.
 
All notices
 
and other
 
communications hereunder
 
shall be
 
in writing
 
and
shall be
 
deemed to
 
have been
 
given only
 
if and
 
when personally
 
delivered or
 
three (3)
 
business
days after mailing, postage prepaid, registered or
 
certified mail, or when delivered (and receipted
for) by an
 
express delivery service,
 
addressed in each
 
case. As to
 
notices provided to
 
Bank, notices
shall
 
be
 
sent
 
to
 
the
 
Human
 
Resources
 
Department
 
at
 
the
 
address
 
of
 
the
 
Bank
 
listed
 
in
 
the
introductory
 
paragraph
 
of
 
this
 
Agreement.
 
As
 
to
 
notices
 
to
 
Executive,
 
notices
 
shall
 
be
 
sent
 
to
address provided below. Executive and Bank may change the address for the giving of notices.
6.
Complete Agreement.
 
This Agreement
 
represents the
 
complete agreement
 
between
Executive and Bank regarding the
 
subject matter of this Agreement.
 
This Agreement is in no
 
way
dependent upon
 
the performance
 
of any
 
other contract
 
or agreement
 
that may
 
have been
 
or may
be entered
 
into between
 
Executive and
 
Bank, and
 
remains in
 
effect
 
during the
 
pendency of
 
this
Agreement.
 
As such,
 
the breach
 
or alleged breach
 
of any
 
other contract or
 
agreement is no
 
defense
to enforcement of this Agreement.
7.
Amendments in Writing.
 
No amendment, modification, waiver, or other change to
this
 
Agreement, shall
 
in
 
any event
 
be
 
effective
 
unless
 
the same
 
shall be
 
in
 
writing, specifically
identifying
 
this
 
Agreement
 
and
 
the
 
provision
 
intended
 
to
 
be
 
changed
 
and
 
signed
 
by
 
Bank
 
and
Executive, and each
 
such change
 
shall be effective only
 
in the specific
 
instance and for
 
the specific
purpose
 
for
 
which
 
it
 
is
 
given.
 
No
 
provision
 
of
 
this
 
Agreement shall
 
be
 
varied, contradicted
 
or
explained by
 
any
 
oral
 
agreement,
 
course
 
of
 
dealing
 
or
 
performance
 
or
 
any
 
other
 
matter
 
not
 
set
forth in an agreement in writing and signed by Bank and Bank.
 
 
exhibit106p3i0.jpg
Table
 
of Contents
 
8.
Acknowledgment. Executive
 
acknowledges that
 
Executive has
 
read this
 
Agreement
in full and completely understands all
 
of its terms and obligations
 
and enters into this Agreement
freely
 
and
 
voluntarily,
 
and
 
after
 
having
 
the
 
opportunity
 
to
 
consult
 
with
 
representatives
 
of
Executive’s own choosing and that Executive’s
 
agreement is freely given.
IN WITNESS
 
WHEREOF,
 
the parties
 
hereto have
 
duly executed
 
this Agreement
 
on the
date first above mentioned.
 
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Filed: March 24th, 2022
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