AMENDMENT TO THE
EMPLOYMENT AGREEMENT BETWEEN
XXXXXXX X. XXXXX, XX. AND
HARBOR FEDERAL SAVINGS BANK
The Employment Agreement between Xxxxxxx X. Xxxxx, Xx. and Harbor
Federal Savings Bank is hereby amended as follows:
1. Amended Paragraph to the Agreement to read as follows:
3.1 Salary. As compensation for his services hereunder, the Employee
shall, during the first year of his employment hereunder, receive a
base annual salary equal to that in effect on the commencement of the
Initial Term payable in accordance with the general payroll practice of
Employer and any bonus compensation as determined by the Board of
Directors. During each succeeding calendar year or portion thereof, his
salary shall be adjusted to equal the greater of (a) the past year base
salary, or (b) an amount which includes an annual increase as
determined by the Board of Directors."
DATE: 11/13/02 HARBOR FEDERAL SAVINGS BANK
-------------------------
EMPLOYER:
/s/
-----------------------------
Xxxxxx X. Xxxx
Chairman of the Board of Directors
EMPLOYEE:
/s/
---------------------------------------
Xxxxxxx X. Xxxxx, Xx.
AMENDMENT NUMBER 2 TO THE
EMPLOYMENT AGREEMENT BETWEEN
XXXXXXX X. XXXXX, XX. AND
HARBOR FEDERAL SAVINGS BANK
---------------------------
The Employment Agreement dated September 13, 1995 (as amended)
between Xxxxxxx X. Xxxxx, Xx. and Harbor Federal Savings Bank is hereby amended
as follows:
1. The preamble on page 1 is hereby amended to read as follows:
THIS AGREEMENT is made as of this 13th day of September, 1995
between Harbor Florida Bancshares, Inc. and Harbor Federal
Savings Bank whose principal place of business is located at
000 X. Xxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxxx 00000, (together,
"Employer"), and Xxxxxxx X. Xxxxx, Xx., whose residence is
0000 Xxxxx Xxxxxx Xxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxx 00000
("Employee").
2. Section 2.1 is hereby amended to read as follows:
2.1 General Duties. Employee has, for a number of years,
served as President and Chief Executive Officer of Employer,
and shall continue to serve in that position, with the duties
and responsibilities customary to that office. During the
Employment Term, Employee's title and specific reporting
responsibilities may be changed by action of Employer's Board
of Directors in light of changing circumstances of Employer,
including specifically a transaction described in Section 4.9
hereof, providing that Employee shall at all times during the
term hereof have a substantial executive position in keeping
with the dignity and prestige of his present position. He
shall do and perform all services, acts or things necessary or
advisable to manage and conduct the business of the Employer,
subject always to the policies set by the Board of Directors,
in accordance with any and all governing rules and regulations
of applicable bank regulatory agencies.
3. Section 2.4 is hereby amended to read as follows:
2.4 Uniqueness of Employee's Services. The Employee hereby
represents that the services to be performed by him under the
terms of this Agreement are of a special, unique, unusual,
extraordinary and intellectual character which gives them a
peculiar value, the loss of which cannot be reasonably or
adequately compensated in damages in an action at law. The
Employee therefore expressly agrees that the Employer, in
addition to any other rights or remedies which the Employer
may possess, shall be entitled to injunctive and other
equitable relief to prevent a breach of this Agreement by the
Employee.
4. Section 4.6 is hereby amended to read as follows:
4.6 Termination by Regulatory Agency. All obligations under
this Agreement shall be terminated, except to the extent it is
determined that the continuation of this Agreement is
necessary for the continued operation of the Employer: (i) by
the Director of the Office of Thrift Supervision, 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 the Employer under the authority contained in
section 13(c) of the Federal Deposit Insurance Act; or (ii) by
the Director of the Office of Thrift Supervision, 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 the Employer or when the Employer is
determined by the Director to be in an unsafe or unsound
condition.
5. Section 4.10 is hereby amended to read as follows:
4.10 Additional Special Provisions on Termination. In the
event of any termination pursuant to Section 4.1, Section 4.9
or this Section 4.10 hereof, then, in additional to all other
rights of Employee hereunder, the following special provisions
shall apply as to matters here specified:
6. Section 4.10.2(a) is amended by adding the following new
subsection (C) as follows:
(C) Employee's resignation for any reason following an event
described in 4.9(a), (b), (c) or (d) above, provided that such
resignation by Employee may only occur within a window period
beginning ninety (90) days after the effective date of any
such event and ending one hundred eighty (180) days after any
such event.
7. Section 4.10.2(b) is hereby amended to read as follows:
(b) In the event of an Involuntary Termination, in lieu of any
further salary payments to the Employee for period subsequent
to the date of the Involuntary Termination, the Employer shall
pay to the Employee, or in the event of his subsequent death,
his beneficiary or beneficiaries, or his estate, as the case
may be, subject to the limitation set forth in subparagraph
(c), Severance Payments in an amount equal to three times
Employee's Annual Compensation (as defined below) in the
taxable year preceding such Involuntary Termination. The term
"Annual Compensation" shall mean the sum of the following:
(i) the Employee's base salary from the Employer
during the 12-month period immediately
preceding the Date of Involuntary
Termination, plus
(ii) the amount of the bonuses received by the
Employee from the Employer during the 12
month period immediately preceding the Date
of Involuntary Termination, plus
(iii) the cost to the Employer of all traditional
welfare benefits, which are defined as life,
medical, health, disability or dental
insurance plans or arrangements in which the
Executive or his dependents participate as of
the date of the Event of Termination, plus
(iv) upon the election of the Employee at his
sole discretion, an amount equivalent to
the excess, if any, of the aggregate fair
market value (measured as of the close of
trading on the date of Involuntary
Termination) of all shares of any class or
series of the Employer's capital stock
issuable upon exercise of then outstanding
exercisable employee options granted to the
Employee over the aggregate exercise price
of such options; and such options shall
thereupon be cancelled and of no further
force or effect.
8. Section 4.10.2(c) is hereby deleted.
9. A new Section 4.10.2(f) is hereby added after Section
4.10.2(e) as follows:
4.10.2(f) In consideration for the benefit described in
Section 4.10.1 and the payments under Section 4.10.2(b), and
in recognition of the long-term nature of Employee's service
to Employer as its Chief Executive Officer, and his
recognition and identification with Employer in the markets in
which Employer operates, and the need for and significant
benefit that protection of business and goodwill associated
with Employer following termination of Employee's service will
require, Employee and Employer agree that Employee shall, in
the three (3) years following termination of his employment
with Employer not directly or indirectly (i) become a
director, officer, employee, shareholder, principal, agent,
consultant or independent contractor of any insured depository
institution (or an affiliate or subsidiary thereof) which has
an office in any of St. Lucie, Okeechobee, Xxxxxx, Volusia,
Brevard and Indian River Counties or such other Florida
counties in which Employer establishes a branch office during
the term of the Agreement whose business in the aforesaid
counties competes with the depository, lending or business
activities of Employer, provided, however, that nothing herein
shall prohibit Employee from continuing to serve as a director
of Employer following such termination or from owning bonds,
non-voting preferred stock or up to five percent (5%) of the
outstanding common stock of such entity if such common stock
is publicly traded; (ii) solicit or induce, or cause others to
solicit or induce, any employee of Employer, or any of its
subsidiaries to leave the employment of such entities, or
(iii) solicit (whether by mail, telephone, e-mail, personal
meeting or any other means) any customer of Employer or its
subsidiaries to transact business with any other entity,
whether or not it competes with Employer's business
activities, or to reduce or refrain from doing any business
with Employer or its subsidiaries or interfere with or
damage(or attempt to interfere or damage) any relationships
between Employer or its subsidiaries and any such customers.
In consideration of the benefits described in Section 4.10.1
and the payments under Section 4.10.2(b), and for the
obligation or commitments of the Employee under this Section
4.10.2(f) and the significant value to Employer represented by
Employee's agreement not to compete with Employer, Employer
shall pay Employee amounts referred to under Section 4.10.2(b)
on the effective date of Employee's termination (subject to
applicable withholding). Notwithstanding any other provisions
of this Section, Employee acknowledges that he has
considerable valuable information regarding Employer,
including but not limited to Employer's operations, customers
and business strategies,, and Employee agrees to treat as
confidential all information concerning the books, records,
contracts, properties, commitments and affairs of Employer and
its subsidiaries and affiliates, including but not limited to
information regarding accounts, shareholders, finances,
strategies, marketing, customers and potential customers and
other information of a similar nature not available to the
general public.
It is the intention of the parties hereto that the provisions
of this Agreement shall be enforced to the fullest extent
permissible under all applicable laws and public notices, but
that the unenforceability or the modification to conform with
such laws or public policies of any provision hereof shall not
render unenforceable or impair the remainder of this
Agreement. The convents with respect to the Counties shall be
deemed to be separate covenants with respect to each County,
and should any court of competent jurisdiction conclude or
find that this Agreement or any portion is not enforceable
with respect to any of the Counties, such conclusion or
finding shall in no way render invalid or unenforceable the
covenants herein with respect to any other County.
Accordingly, if any provision shall be determined to be
invalid or unenforceable either in whole or in part, this
Agreement shall be deemed amended to delete or modify as
necessary the invalid or unenforceable provisions to alter the
balance of this Agreement in order to render the same valid
and enforceable.
Employer acknowledges that it would not have entered in to
this Agreement unless the Employee had, among other things,
entered into this Agreement to strictly limit his future
ability to engage in activities that compete with Employer's
business activities. It is further acknowledged that any
breach of this Agreement will result in irreparable damage to
Employer for which Employer will not have an adequate remedy
at law. In addition to any other remedies and damages
available to Employer, the Employee further acknowledges that
Employer shall be entitled to injunctive relief hereunder to
enjoin any breach of this Agreement, and the parties hereby
consent to an injunction in favor of Employer by any court of
competent jurisdiction, without prejudice to any other right
or remedy to which Employer may be entitled. Employee
represents and acknowledges that, in light of his experience
and capabilities, he can obtain employment with other than a
competing business or in a business engaged in other lines
and/or of a different nature than those engaged by Employer or
its subsidiaries or affiliates, and that the enforcement of a
remedy by way of injunction will not prevent the Employee from
earning a livelihood. In the event of a breach of this
Agreement by the Employee, the Employee acknowledges that in
addition to or in lieu of Employer seeking injunctive relief,
Employer may also seek to recover damages in a judicial
proceeding. Each of the remedies available to Employer in the
event of a breach by the Employee shall be cumulative and not
mutually exclusive.
If an action is instituted to enforce any of the provisions of
this Agreement, the prevailing party in such action shall be
entitled to recover from the losing party its, her or his
reasonable attorneys' fees and costs.
Date: 12/5/03 HARBOR FEDERAL SAVINGS BANK
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EMPLOYER:
/s/
----------------------------------
Xxxxxx X. Xxxx
Chairman of the Board of Directors
Date: 12/5/03 HARBOR FLORIDA BANCSHARES,
--------------------------- INC.
EMPLOYER:
/s/
----------------------------------
Xxxxxx X. Xxxx
Chairman of the Board of Directors
Date: 12/5/03 EMPLOYEE:
-------------------------------
/s/
----------------------------------
Xxxxxxx X. Xxxxx, Xx.
