EMPLOYMENT AGREEMENT
EXHIBIT
10.1
8. Post-Employment Obligations. Employer shall pay to Employee such payments and benefits as are required pursuant to this Agreement; provided, however, any such payments shall be subject to Employee’s post-employment cooperation. Such cooperation shall include the following:
This
EMPLOYMENT AGREEMENT
(this “Agreement”) is effective this 1st day of January, 2008 (the “Effective
Date”), by and among Sunshine Savings Bank, a
Federal savings bank, referred to herein as (“Employer” or “Sunshine”), and
Xxxxx X. Xxxxx, Xx.
(“Executive”), an individual resident of Tallahassee, Florida.
RECITALS
WHEREAS,
the parties wish to enter into an employment agreement; and
WHEREAS,
the Employer and Executive desire to set forth certain benefits to which
Executive would be entitled to receive as compensation for his employment
hereunder and in the event that Executive's employment is terminated under
certain circumstances as described herein;
AGREEMENT
NOW
THEREFORE, in consideration of the mutual recitals and covenants contained
herein, the parties hereby agree as follows:
1. Employment. Employer
agrees to employ Executive and Executive agrees to be employed by Employer,
subject to the terms and provisions of this Agreement
2. Term. The
term of this Agreement shall be a period of three years commencing on the
Effective Date, subject to earlier termination as provided
herein. Beginning on the first anniversary of the Effective Date, and
on each anniversary thereafter, the term of this Agreement shall be extended for
a period of one year in addition to the then remaining term, provided that: (1)
the Bank has not given notice to the Employee in writing at least 90 days prior
to such anniversary that the term of this Agreement shall not be extended
further; and (2) prior to such anniversary, the Board of Directors of the Bank
explicitly reviews and approves the extension. Reference herein to the term of
this Agreement shall refer to both such initial term and such extended
terms.
3. Duties: Extent of
Services. Executive shall perform for Employer all duties
incident to the position of President and Chief Executive Officer of
Sunshine. In addition, Executive shall engage in such other services
for Employer or its affiliates, as Employer from time to time shall direct,
commensurate with his position. Executive shall use his best efforts
in, and devote his entire time, attention, and energy, to Employer's business;
provided that nothing contained herein is intended to prohibit Executive from
spending a reasonable amount of time managing his personal investments and
discharging his responsibilities on civic or religious boards as long as such
activities do not interfere with his duties and obligations under this
Agreement, and provided further that with the approval of the Board of Directors
(which approval shall not be unreasonably withheld), from time to time Executive
may serve, or continue to serve, on the boards of directors of, and hold any
other offices or positions in companies or organizations which, in the Board's
sole judgment, will not present any conflict of interest with Sunshine or any
performance of Executive's duties under this Agreement, or which will not
violate any applicable statute, rule or regulation.
4. Compensation.
During
the Term of this Agreement, Executive shall be entitled to the following
benefits:
a. Base
Salary: Executive's total annual base salary shall be an amount not
less than $178,000. Such base salary shall be payable to Executive in such
installments as salary payments are customarily made to executives of
Sunshine.
b. Payment
of Club Fees, etc.: Sunshine shall pay the costs of Employee’s membership in The
Governor’s Club, Inc., Tallahassee, Florida. Sunshine shall pay fees
for any civic or other clubs which, after consultation with the Board of
Directors, Executive joins for Employer's benefit.
c. Life
Insurance: In addition to the life insurance coverage provided to all
executive officers of Sunshine, Employer shall provide Employee with additional
term life insurance with a death benefit in the amount of $500,000.
d. Other
Insurance: Sunshine shall provide fully paid health insurance (employee and
dependents, customary plan) and fully paid long-term disability insurance, and
family dental insurance.
e. Retirement
Plans: Sunshine shall provide Executive access to standard plans offered by
Employer, including profit sharing and 401K Plans.
f. Paid
Leave Time: Executive shall be entitled to 30 days paid time off per
year.
g. Other
executive compensation plans: Executive shall have full participation in other
executive level compensation plans offered by the Employer and affiliates until
termination of this Agreement. Executive shall be entitled to
participate in any and all health, disability, performance bonus, stock option
or other program as may be made available from time to time to executives of
Sunshine.
h. Reimbursement
of Expenses: Sunshine shall pay or reimburse Executive for all reasonable travel
and other expenses incurred by Executive in the performance of his obligations
under this Agreement, including, but not limited to, reasonable entertainment
expenses, whether incurred at Executive’s residence, while traveling, or
otherwise. All requests for reimbursement shall be in writing and shall be
submitted by Executive to Sunshine during the calendar month immediately
following the month during which such expense was incurred. Each such request
shall contain sufficient detail to enable Sunshine to deduct the requested
reimbursement for federal income tax purposes.
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5. Disclosure of
Information. Executive will not, during or after the term of
this Agreement: (i) disclose any confidential information or any information
regarding the business or operation of Employer to any person, firm,
corporation, association, or other entity not employed by or affiliated with
Employer for any reason or purpose whatsoever; or (ii) use any confidential
information for any reason other than to further the business of
Employer. Executive agrees to return any written confidential
information and all copies thereof, upon the termination of Executive's
employment (whether hereunder or otherwise).
6. Termination.
a. Employer
shall be obligated to comply with all provisions of this Agreement and may
terminate Executive for any reason upon prior Notice of termination to
Executive.
b. If:
(i) Employer terminates Executive's employment hereunder for Cause, Disability
or Executive's death; or (ii) if Executive terminates his employment hereunder
without Good Reason, Executive shall not be entitled to any further compensation
or other benefits from Employer after the date of termination.
c. If
Employer terminates Executive' s employment hereunder other than for Cause,
Disability or Executive's death: (i) all rights and obligations specified in
Section 4 shall survive any such termination for the remainder of the term of
this Agreement; and (ii) Executive shall continue to receive the benefits and
compensation provided for in Section 4 for the remainder of the term of this
Agreement and Employer shall pay Executive in cash the annual compensation in
Section 4.a. payable in equal monthly installments for the remainder of the term
of this Agreement.
d. If
Executive terminates his employment hereunder for Good Reason: (i) all rights
and obligations specified in Section 4 shall survive any such termination for
the remainder of the term of this Agreement; and (ii) Employer shall pay
Executive in cash the annual compensation in Section 4 payable in equal monthly
installments for the remainder of the term of this Agreement.
e. The
provisions of Section 5 and the Executive's rights under Section 4.e. and under
any stock option plan shall survive regardless of any termination of Executive's
employment hereunder, whether voluntary or involuntary.
7. Suspension/Termination
Pursuant To Regulator Action
a. If
the Employee is suspended from office and/or temporarily prohibited from
participating in the conduct of Sunshine’s affairs pursuant to actions taken by
the Office of Thrift Supervision (“OTS”) or by 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]), Sunshine’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,
Sunshine 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. If
the Employee is removed from office and/or permanently prohibited from
participating in the conduct Sunshine’s affairs by an order issued by the OTS or
by an order issued under 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 Sunshine under this
Agreement shall terminate as of the effective date of the order, but vested
rights of the Employee as of the date of termination shall not be
affected.
c. If
Sunshine is in default, as defined in Section 3(x)(1) of the FDIA (12 U.S.C.
Section 1813[x][1]) to mean an adjudication or other official determination by
any court of competent jurisdiction, the appropriate federal banking agency or
other public authority pursuant to which a conservator, receiver or other legal
custodian is appointed for Sunshine, all obligations under this Agreement shall
terminate as of the date of default, but vested rights of the Employee and
Sunshine as of the date of termination shall not be
affected.
d. Regulatory
Termination. All obligations 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 Sunshine:
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(i)
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by
the Director or his or her designee, at the time the Federal Deposit
Insurance Corporation enters into an agreement to provide assistance to or
on behalf of Sunshine under the authority contained in Section 13(c) of
the Federal Deposit Insurance Act;
or
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(ii)
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by
the Director or his or her designee, at the time the Director or his or
her designee approves a supervisory merger to resolve problems related to
operation of Sunshine, or when Sunshine is determined by the Director to
be in unsafe or unsound condition.
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e. Any
payments made to the Employee pursuant to this Agreement, or otherwise, are
subject to and conditioned upon their compliance with 12 U.S.C. Section 1828(k)
and any regulations promulgated thereunder.
8. Post-Employment Obligations. Employer shall pay to Employee such payments and benefits as are required pursuant to this Agreement; provided, however, any such payments shall be subject to Employee’s post-employment cooperation. Such cooperation shall include the following:
a. Employee
shall furnish such information and assistance as may be reasonably required by
Employer in connection with any litigation or settlement of any dispute between
Employer and a customer or other third parties (including without limitation
serving as a witness in court or other proceedings);
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b. Employee
shall provide such information or assistance to Employer in connection with any
regulatory examination by any financial institution regulatory
agency;
c. Employee
shall keep Employer’s trade secrets and other proprietary or confidential
information secret to the fullest extent practicable, subject to compliance with
all applicable laws;
d. Employee
shall return all Employer’s property, including, but not limited to, keys,
credit cards, manuals and other written materials.
e. Employee
has resigned his position as a Director of Sunshine.
f. Employee
shall comply with restrictive covenants;
g. Employee
shall comply with any other reasonable request of Employer.
Upon
submission of proper receipts, Employer shall promptly reimburse Employee for
any reasonable expenses incurred by Employee in complying with the provisions of
this Section.
9. Indebtedness. If
during the term of this Agreement, Employee becomes indebted
to Employer for any reason, Employer may, at its election, set off
and collect any sums due Employer out of any amounts which Employer may owe
Employee pursuant to the terms of this Agreement. Furthermore, upon
the termination or expiration of this Agreement, all sums owed to Employer by
Employee shall become immediately due and payable. The prevailing party shall be
entitled to judgment for all expenses and Attorneys’ Fees actually or
necessarily incurred by Employer in connection with any collection proceeding
relating to Employee’s indebtedness. Notwithstanding any of the foregoing, any
indebtedness to Employer secured by a mortgage on Employee’s residence shall not
be subject to the foregoing provisions, but shall be governed by the loan
documents evidencing such indebtedness.
10. Maintenance of Trade Secrets
and Confidential Information. Employee shall use his best
efforts and utmost diligence to guard and protect all of the Employer’s trade
secrets and confidential information. Employee shall not, either during the
term, or after termination or expiration of this Agreement, for
whatever reason, use in any capacity, or divulge or disclose in any manner, to
any Person, the identity of Employer’s customers, methods of operation,
marketing or promotional methods, processes, techniques, systems, formulas,
programs, trade secrets or other confidential information relating to Employer’s
business. Upon termination or expiration of this Agreement or Employee’s
employment, for any reason, Employee shall immediately return and deliver to
Employer all records and papers and all materials which bear employment trade
secrets or confidential information.
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11. Competitive
Activities.
a. Limitation on Outside
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 in, participate
in, become a director of, render advisory or other services to, become employed
by, or make any financial investment in any firm, corporation, business entity
or business enterprise competitive with or to any business of Employer.
Notwithstanding the foregoing, Employee shall not be precluded or prohibited
from owning passive investments, including investments in the securities of
other financial institutions. Employee, however, shall be prohibited
from making any investments or commitments of time, accepting any positions or
participating in any activities which cause Employee to devote time to such
investments, commitments, positions or activities which interfere with
Employee’s position with, and obligations to Sunshine.
b. Agreement Not to
Compete. Employee acknowledges that by virtue of his
employment with Employer, Employee will acquire an intimate knowledge of the
activities and affairs of Sunshine, including trade secrets and other
confidential matters. Employee, therefore, agrees that during the term of this
Agreement, and for a period of one year following the termination of Employee’s
employment hereunder, Employee shall not become employed, directly or
indirectly, whether as an employee, independent contractor, consultant, or
otherwise, with any federally-insured financial institution, financial holding
company, bank holding company, or other financial services provider operating,
or intending to operate, in Xxxx County or any contiguous county, or with any
Person whose intent it is to organize another such company or entity to be
operated in Xxxx County or contiguous county. Employee hereby agrees that the
duration of the anti-competitive covenant set forth herein is reasonable, and
that its geographic scope is not unduly restrictive.
c. Non-Solicitation
Agreement. Employee further agrees that: (i) for a period of
one year following the termination of Employee’s employment for any reason,
Employee shall not directly or indirectly solicit the business of any then
current customer of Sunshine, both loan customers and depositors, regardless of
whether or not Employee was responsible for generating such customer’s business
for Sunshine; and (ii) Employee shall not directly or indirectly solicit or
induce any employee of Employer to terminate such employment or to become
employees of any other person or entity;
12. Notice. For
the purposes of this Agreement, notices and demands shall be deemed given when
sent by United States mail, by facsimile or by a reputable overnight express
courier, addressed in the case of Sunshine to Sunshine Savings Bank, 0000 X.
Xxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx 00000, Attention: Chairman of the Board of
Directors, or in the case of the Executive to Xxxxx X. Xxxxx, Xx, 000 X. Xxxxxx
Xxxxxx, Xxxx #0000, Xxxxxxxxxxx, Xxxxxxx 00000.
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13. Miscellaneous. No
provision of this Agreement may be modified, waived or discharged unless such
modification, waiver or discharge is agreed to in writing. The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of Florida. This Agreement
supersedes and cancels any prior employment agreement or understanding entered
into between Executive and Sunshine.
14. Validity. The
invalidity of any provision or provisions of this Agreement shall not affect any
other provision of this Agreement, which shall remain in full force and effect,
nor shall the invalidity of a portion of any provision of this Agreement affect
the balance of such provision.
15. Parties. This
Agreement shall be binding upon and shall inure to the benefit of any successors
or assigns of Sunshine. Executive may not assign any of his rights or
delegate any of his duties or obligations under this Agreement or any portion
hereof.
16. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
17. Definitions. For
purposes of this Agreement, the following terms shall have the following
meanings:
a. The
termination of the Executive' s employment shall be for “Cause” if it is a
result of:
i. any
act that (A) constitutes, on the
part of the Executive, fraud, personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit or an act of
moral turpitude, intentional failure to perform duties required by this
Agreement, or (B) breach of fiduciary duty which is demonstrably likely to lead
to material injury to Sunshine and which was intended to result in direct or
indirect financial gain to or personal enrichment of the Executive;
or
ii. the
conviction (from which no appeal may be or is timely taken) of the Executive of
a felony; or
iii a
willful violation of any law, rule, or regulation (other than traffic violations
or similar offenses) or of a final cease-and-desist order;
iv. a
material breach of any provision of this Agreement
v. the
suspension or removal of the Executive by federal or state banking regulatory
authorities acting under lawful authority pursuant to provisions of federal or
state laws or regulations which may be in effect from time to time;
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b. “Disability”
shall mean a physical or mental infirmity which impairs the Executive' s ability
to substantially perform his duties with Employer for a period of 180
consecutive days, as determined by an independent physician selected with the
approval of both Employer and the Executive which shall not be unreasonably
withheld.
c. “Good
Reason” shall mean the occurrence of any of the events or conditions described
in subsection (i) through (vii) hereof:
i. a
change in the Executive's status, title, position or responsibilities {including
reporting responsibilities) which, in the Executive's reasonable judgment,
represents an adverse change from his status, office, title, position or
responsibilities as in effect at any time; the assignment to the Executive of
any duties or responsibilities which, in the Executive's reasonable judgment,
are inconsistent with his status, office, title, position or responsibilities as
in effect at any time; any removal of the Executive from, or failure to
reappoint or reelect him to, any such status, office, title, position or
responsibility; or any other change in condition or circumstances that in the
Executive's reasonable judgment makes it materially more difficult for the
Executive to carry out the duties and responsibilities of his.
ii. a
reduction in the Executive's base salary or any failure to pay the Executive any
compensation or benefits to which he is entitled within five days of the date
due.
iii. Employer
requiring the Executive to be based at any place outside a 50-mile radius from
the executive offices occupied by the Executive on the effective date hereof
unless mutually agreed to by Employer and Executive, except for reasonably
required travel on Employer's.
iv. the
failure by Employer to continue in effect (without reduction in benefit level
and/or reward opportunities) any material compensation or employee benefit plan
in which the Executive was participating on the Effective Date or at any time
thereafter, unless such plan is replaced with a plan that provides substantially
equivalent compensation or benefits to the Executive.
v. the
insolvency, or the filing by any person or entity, including Sunshine, of a
petition for bankruptcy of Sunshine, or other relief under any other moratorium
or similar law, which petition is not dismissed within 60
days;
vi. any
material breach by Sunshine of this Agreement not remedied within 30 days of
notice of such breach by Executive to Employer.
vii. any
purported termination of the Executive's employment for Cause
by Sunshine which does not comply with the terms of this
Agreement.
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e. “Notice
of Termination” shall mean a written notice of termination from Sunshine or the
Executive which species an effective date of termination, indicates the specific
termination provision in this Agreement relied upon, and sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment.
f. “Termination
Date” shall mean, in the case of the Executive's death, his date of death, and
in all other cases, the date specified in the Notice of
Termination.
IN WITNESS WHEREOF, this
Agreement has been duly executed and delivered by Executive and by a duly
authorized officer of Sunshine as of the date first above written.
| Witnesses: | EXECUTIVE | |||
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| Xxxxx X. Xxxxx, Xx. | ||||
| Attest: | SUNSHINE SAVINGS BANK | |||
| By: |
By:
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| Its: | Secretary |
Its:
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Chairman of the Board | |
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