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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the ____ day of
_____________, 1997, by and between UNITED FINANCIAL HOLDINGS, INC. d/b/a
UNITED FINANCIAL, a corporation incorporated under the laws of the State of
Florida ("Corporation") and XXXXXXX X. XXXXXX ("Employee").
W I T N E S S E T H:
WHEREAS, Corporation desires to enter into an employment relationship
with Employee on certain terms and conditions as set forth herein; and
WHEREAS, Employee is willing to accept such employment;
NOW, THEREFORE, the Parties hereto, in consideration of the mutual
covenants and promises hereinafter contained, do hereby agree as follows:
1. EMPLOYMENT. Corporation hereby employs Employee in the capacity of
Director of Operations, or in such other position of the same or greater
stature as Corporation may direct or desire.
2. DUTIES. Employee's principal duties and responsibilities shall be
those that are usual and customary for his position and as are established from
time to time by the Corporation.
3. ACCEPTANCE. Employee hereby accepts the employment, on the terms
and conditions herein set forth. Employee agrees to perform such services and
duties and hold such offices as may be assigned to him from time to time by
Corporation and to devote his full business time, energies and best efforts to
the performance thereof to the exclusion of all other business activities,
except such activities as Corporation may consent to in writing.
4. TERM. For purposes of this Agreement, the term of employment shall
begin on __________, 1997, with Employee's commencing full-time work on that
date at Corporation's place of business and shall continue until terminated as
herein provided.
5. FACILITIES. Corporation shall provide Employee with an office,
staff, stenographic help, equipment and other services and facilities
reasonably required and suitable for the performance of Employee's duties
hereunder.
6. SALARY. As compensation for the services to be rendered by Employee
to Corporation pursuant to the Agreement, Employee shall be paid the following
annualized salary as basic compensation: Sixty-five Thousand Eight Hundred and
Twenty-three and No Dollars ($65,823.00), payable in equal monthly installments
in arrears for each month for which services are rendered, or such higher
compensation as may be established by Corporation from time to time.
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7. OTHER COMPENSATION. In addition to the basic salary compensation,
Employee shall be paid such additional compensation as is provided for in the
Senior Management Committee Incentive Schedule approved and adopted by
Corporation from time to time. References in this Agreement to "compensation"
shall include Salary under paragraph 6 and Other Compensation under paragraph
7.
8. EXPENSES. Corporation shall pay or reimburse Employee for the
reasonable and necessary business expenses of Employee, in accordance with
Corporation's policies from time to time established.
9. EMPLOYEE BENEFIT PLANS. Employee shall be eligible to participate,
to the extent he may be eligible, in any profit sharing, retirement, group
insurance or other employee benefit plan maintained by the Corporation.
Corporation reserves the right to amend to cancel such benefit plans from time
to time, provided that all eligible personnel are similarly treated.
10. KEY PERSON LIFE INSURANCE. Corporation, in its discretion, may
apply for and procure in its own name and for its own benefit, life insurance
on the life of the Employee in any amount or amounts considered advisable by
Corporation, and Employee shall submit to any medical or other examination and
execute and deliver any application or other instrument in writing, reasonably
necessary to effectuate such insurance.
11. HEALTH INSURANCE. Corporation shall provide health insurance,
including major medical and dental coverage, for Employee in such form and
provide such coverage as is provided to other executive employees of
Corporation from time to time. Corporation reserves the right to amend or
cancel such insurance from time to time, provided that all eligible executives
are similarly treated.
12. VACATIONS AND LEAVE. Employee shall be entitled to the same
vacation and leave time as the other executive officers of Corporation.
13. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Employee acknowledges
that in and as a result of his employment by Corporation, he will be making use
of, acquiring, and/or adding to confidential information of a special and
unique nature and value relating to such matters as Corporation's patents,
copyrights, proprietary information, trade secrets, systems, procedures,
manuals, confidential reports, and lists of customers (which are deemed for all
purposes confidential and proprietary), as well as the nature and type of
services rendered by Corporation, the equipment, and methods used and preferred
by Corporation's customers, and the fees paid by them. As a material inducement
to Corporation to enter into this Agreement and to pay to Employee the
compensation stated in this Agreement, Employee covenants and agrees that he
shall not, at any time during or following the term of his employment, directly
or indirectly, divulge or disclose for any purpose whatsoever any confidential
information that has been obtained by, or disclosed to, him as a result of his
employment by Corporation. In the event of a breach or threatened breach by
Employee of any of the provisions of this paragraph, Corporation, in addition
to and not in limitation of, any other rights, remedies, or damages available
to Corporation at
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law or in equity, shall be entitled to a permanent injunction in order to
prevent or restrain any such breach by Employee or by Employee's partners,
agents, representatives, servants, employers, employees, family members and/or
any and all persons directly or indirectly acting for or with him.
14. DISABILITY DURING EMPLOYMENT. If, during Employee's employment,
Employee becomes unable to perform his duties under this Agreement because of
"disability", Corporation shall pay Employee the Salary that would otherwise be
payable under this Agreement through the period of disability, or if shorter,
for a period of ninety (90) days, and thereafter, until employment terminates
in accordance with this Agreement due to disability, Employee's Salary less the
amount of income paid to Employee under any policy of disability or worker's
compensation insurance paid for by Corporation shall be paid as disability
compensation.
a. For purposes of this Agreement, "disability" shall mean
Employee's inability to perform all, or substantially all, of his duties under
this Agreement because of accident or sickness, with or without reasonable
accommodation.
b. Employee's employment status shall be reinstated upon
return to employment before the end of the disability period for which income
is paid, as described above, with the discharge of Employee's full duties
hereunder.
c. Two (2) or more absences of at least ten (10) days each
not separated by a return to employment for at least six (6) consecutive months
shall be deemed to be a continuation of the same period of absence.
d. The period of absence from employment because of
disability shall not commence for purposes of this paragraph until Employee has
taken all applicable sick leave days, if any, provided under this Agreement.
15. TERMINATION. Employment of Employee under this Agreement will be
terminated:
a. By Employee's death
b. By Employee's disability, if Employee's disability
continues for a continuous period of more than twelve (12) months.
c. Employee's attainment of age sixty-five (65).
d. At the election of Employee, upon ninety (90) days'
advance notice.
e. By mutual agreement of Employee and Corporation.
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f. By the dissolution and liquidation of Corporation (other
than as part of a reorganization, merger, consolidation or sale of all or
substantially all of the assets of Corporation whereby the business of
Corporation is continued).
g. By Corporation for Just Cause. For purposes of this
Agreement, "Just Cause" shall mean only the following:
(i) a final non-appealable conviction of or a plea
of guilty or nolo contendere by Employee to a felony or misdemeanor involving
fraud, embezzlement, theft, or dishonesty or other criminal conduct against
Corporation or others; or
(ii) habitual neglect of Employee's duties or
failure by Employee to perform or observe any substantial lawful obligation of
such employment that is not remedied within thirty (30) days after written
notice thereof from Corporation or its Board of Directors; or
(iii) any material breach by Employee of this
Agreement, which shall not be cured after the thirty (30) day period subsequent
to Employee's written notice from Corporation of the specific aspects of such
material breach.
h. By delivery of not less than six (6) months' written
notice from corporation, effective after December 31, 1997.
16. TERMINATION COMPENSATION. If Employee's employment is terminated
by the Corporation (other than for Just Cause, as specifically defined herein),
Employee shall receive continuing compensation under this Agreement for the
twelve (12) month period commencing on the day after Employee's effective date
of termination. Such compensation payments to Employee shall be in the same
manner and at the same intervals which Employee received such compensation
during his employment with the Corporation, and the amount of such compensation
shall be equal to the sum of the annual compensation received by the Employee
for the twelve (12) month period ending on the effective date of termination
plus the amount of compensation Employee would receive through his
participation in the Senior Management Committee Incentive Schedule referred to
in Paragraph 7, with such participation being based on a pro-rata daily basis.
17. RESIGNATION FROM OFFICE UPON TERMINATION. In the event of
termination of this Agreement other than for death, Employee hereby agrees to
resign from all officer positions held in Corporation, or as an agent, trustee,
or consultant of Corporation or any affiliate of Corporation.
18. WAIVER. A Party's failure to insist on compliance or enforcement
of any provision of this Agreement, shall not affect the validity or
enforceability or constitute a waiver of future enforcement of that provision
or of any other provision of this Agreement by that Party or any other Party.
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19. GOVERNING LAW. This Agreement shall in all respects be subject to,
and governed by, the laws of the State of Florida.
20. SEVERABILITY. The invalidity or unenforceability of any provision
of the Agreement shall not in any way affect the validity or enforceability of
any other provision and this Agreement shall be construed in all respects as if
such invalid or unenforceable provision had never been in this Agreement.
21. NOTICE. Any and all notices required or permitted herein shall be
deemed delivered if delivered personally or if mailed by registered or
certified mail to Corporation at its principal place of business and to
Employee at the address hereinafter set forth following Employee's signature,
or at such other address or addresses as either Party may hereafter designate
in writing to the other.
22. ASSIGNMENT. The rights and benefits of either of the Parties under
this Agreement may not be assigned, nor the burdens delegated, without the
prior written consent of the other Party.
23. AMENDMENTS. This Agreement may be amended at any time by mutual
consent of the Parties hereto, with any such amendment to be invalid unless in
writing, signed by Corporation and Employee.
24. ARBITRATION. Any controversy or claim arising out of, or relating
to this Agreement, or any breach of this Agreement, shall be settled by
arbitration in accordance with the Florida Arbitration Code unless otherwise
provided herein.
If such controversy or claim shall occur, Corporation shall
appoint an arbitrator and Employee shall appoint an arbitrator within fifteen
(15) days of one Party hereto sending written notice to the other of the
existence of such controversy or claim. The arbitrators so-appointed shall
appoint a third arbitrator within ten (10) days of the end of the
aforementioned fifteen (15) day period, and the decision by a majority of such
arbitrators shall be binding upon all parties. Corporation and Employee agree
to cooperate with the arbitrators and to supply them with such information as
shall be necessary in making such decision. Such arbitrators shall have the
right to allocate the costs of arbitration to one Party, or, to allocate such
costs between the Parties. If only one of Corporation or Employee shall appoint
an arbitrator within the fifteen (15) day period, such arbitrator so- appointed
shall be the sole arbitrator, and his or her decision shall be binding on all
Parties.
25. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding by and between Employee and Corporation with respect to the
employment of the Employee, and no representations, promises, agreements, or
understandings, written or oral, relating to the employment of Employee by
Corporation not contained herein shall be of any force or effect. The terms and
provisions of any employee manual or handbook are not a part of this Agreement.
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26. BURDEN AND BENEFIT. This agreement shall be binding upon, and
shall inure to the benefit of, Corporation and Employee, and their respective
heirs, personal and legal representatives, successors, and assigns.
27. REFERENCES TO GENDER AND NUMBER TERMS. In construing this
Agreement, feminine or neuter pronouns shall be substituted for those masculine
in form and vice versa, and plural terms shall be substituted for singular and
singular for plural in any place in which the context so requires.
28. HEADINGS. The various headings in this Agreement are inserted for
convenience only and are not part of this Agreement.
IN WITNESS THEREOF, Corporation and Employee have duly executed this
Agreement as of the day and year first above written.
CORPORATION: EMPLOYEE:
UNITED FINANCIAL HOLDINGS, INC. Xxxxxxx X. Xxxxxx
d/b/a UNITED FINANCIAL
By:___________________________ __________________(SEAL)
Its:__________________________
Address of Corporation for Notice Address of Employee for
Purposes: Notice Purposes:
000 0xx Xxxxxx Xxxxx _________________________
X.X. Xxx 00000 _________________________
Xx. Xxxxxxxxxx, Xx. 00000
