EXHIBIT 10.8
EMPLOYMENT AGREEMENT
BY AND AMONG
JACKSONVILLE BANCORP, INC.,
JACKSONVILE IHC, INC.
JACKSONVILLE SAVINGS BANK, SSB
AND
XXXXX X. XXXXXXXXXX
--------------------------
AGREEMENT made this 10th day of March, 1998, by and among Jacksonville
Bancorp, Inc., a Texas corporation (the "Company"), Jacksonville IHC, Inc., a
Delaware corporation ("IHC"), Jacksonville Savings Bank, SSB, a Texas chartered
savings bank with its principal office in Jacksonville, Texas (the "Bank") and
Xxxxx X. Xxxxxxxxxx ("Employee").
WITNESSETH:
WHEREAS, Employee is the President and Chief Executive Officer of the
Company and the Bank and Secretary of IHC (hereinafter the Company, IHC and the
Bank are referred to collectively as the "Employer") and has developed an
intimate and thorough knowledge of Employer's business methods and operations;
and
WHEREAS, the retention of Employee's services for and on behalf of
Employer is of material importance to the preservation and enhancement of the
value of Employer's business;
NOW THEREFORE, in consideration of the mutual covenants herein set
forth, Employer and Employee do hereby agree as follows:
I. TERM OF EMPLOYMENT
1.1 Employer hereby employs Employee as the President and Chief
Executive Officer as hereinafter provided, and Employee hereby accepts said
employment and agrees to render such services to Employer on the terms and
conditions set forth in this Agreement for a term of three years commencing on
the date hereof and terminating March 10, 2001, unless further extended or
terminated in accordance with the terms and conditions hereinafter set forth.
During the term of this Agreement, Employee agrees to perform such duties as are
customarily performed by one holding the position of President and Chief
Executive Officer. On the date of the first anniversary of this Agreement and on
each anniversary date thereafter ("Annual Anniversary Date"), this Agreement may
be extended by the Employer's Board of Directors for an additional year only if
the Employer's Board of Directors, after a complete evaluation of the Employee's
performance, concludes that the Employee has satisfactorily performed pursuant
to the terms of this Agreement. References herein to the term of this Agreement
shall refer both to the initial term and successive terms.
1.2 During the term of this Agreement, Employee shall perform such
executive services for Employer as may be consistent with his title and from
time to time be assigned to him by the Employer's Boards of Directors.
1.3 During the term of this Agreement, Employee shall devote his
best efforts, including such portion of his time and effort to the affairs and
business of the Employer as he has customarily provided as President and Chief
Executive Officer.
1.4 The services of Employee shall be rendered principally in
Jacksonville, Texas but he shall do such traveling on behalf of the Employer as
may be reasonably required.
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II. COMPETITIVE ACTIVITIES
2.1 Employee agrees that during the term of his employment
hereunder, except with the express consent of the Board of Directors he will
not, directly or indirectly, engage or participate in, become a director of, or
render advisory or other services for, or in connection with, or become
interested in, or make any financial investment in any firm, corporation,
business entity or business enterprise competitive with or to any business of
Employer; provided, however, that Employee shall not thereby be precluded or
prohibited from owning passive investments, including investments in the
securities of other financial institutions, so long as such ownership does not
require him to devote substantial time to management or control of the business
or activities in which he has invested.
2.2 Employee agrees and acknowledges that by virtue of his
employment hereunder, he will maintain an intimate knowledge of the activities
and affairs of Employer, including trade secrets and other confidential matters.
As a result, and also because of the special, unique, and extraordinary services
that Employee is capable of performing for Employer or one of its competitors,
Employee recognizes that the services to be rendered by him hereunder are of a
character giving them a peculiar value, the loss of which cannot be adequately
or reasonably compensated for by damages. Employee therefore agrees that during
the term of this Agreement, Employee shall not divulge any matter pertaining to
the activities and affairs of the Employer, including without limitation, trade
secrets and other confidential matters except as may be required by law.
Employee agrees that breach of any of these covenants by Employee shall
constitute irreparable harm to the Employer for which Employer does not have an
adequate remedy at law, and that Employer is therefore entitled to immediate
injunctive or other equitable relief to restrain Employee from violating the
provisions of this Agreement. The right to such injunctive and equitable relief
shall survive the termination for cause of Employee by Employer or the voluntary
termination of this Agreement by Employee except if such termination is effected
pursuant to the provisions of Section 7.9 hereof.
III. COMPENSATION
3.1 Employer will compensate and pay Employee for Employee's
services during the term of the Agreement at a minimum base salary of $105,360
per year for the fiscal year ending September 30, 1998, with annual salary
increases, if any, thereafter in an amount determined by the Board of Directors
each year; provided, however, that such annual increases shall be no less than
the cost of living percentage as used by the U.S. Government in determining
annual increases in social security payments and at no time shall such annual
base salary be reduced below the amount for the fiscal year ending September 30,
1998, without Employee's consent.
3.2 Any bonuses awarded Employee by Employer from time to time shall
not constitute part of Employee's base salary for purposes of this Agreement.
IV. PARTICIPATION IN RETIREMENT AND MEDICAL PLANS, LIFE
INSURANCE AND DISABILITY
4.1 Employee shall be entitled to participate in and receive the
benefits of any plans of Employer relating to pension, profit-sharing, or other
retirement benefits and medical coverage or reimbursement plans that Employer
may adopt for the benefit of its employees.
4.2(a) If Employee shall become disabled or incapacitated to the extent
that he is unable to perform the duties of President and Chief Executive
Officer, he shall nevertheless continue to receive the following percentages of
his compensation, exclusive of any benefits which may be in effect for employees
of Employer, under Section 3.1 of this Agreement for the following periods of
his disability: 100% for the first 6 months, 75% for the next 12 months, and 60%
thereafter for the remaining term of this Agreement. Upon returning to active
duties, Employee's full compensation as set forth in this Agreement shall be
reinstated. In the event that Employee returns to active employment on other
than a full-time basis, then his compensation (as set forth in Section 3.1 of
this Agreement) shall be reduced in proportion to the time spent in said
employment.
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(b) There shall be deducted from the amounts paid to Employee
hereunder during any period of disability, as described in Section 4.2(a)
hereof, any amounts actually paid to Employee pursuant to any disability
insurance or other similar such program which Employer has instituted or may
institute on behalf of its employees for the purpose of compensating employees
in the event of disability.
(c) For purposes of this Agreement, Employee shall be deemed
disabled or incapacitated if Employee, due to physical or mental illness, shall
have been absent from his duties with Employer on a full-time basis for three
consecutive months; provided, that, if Employee shall not agree with a
determination to terminate him because of disability or incapacity, the question
of Employee's ability shall be submitted to an impartial and reputable physician
selected by the parties hereto and such physician's determination on the
question of disability or incapacity shall be binding.
V. ADDITIONAL COMPENSATION AND BENEFITS
5.1 During the term of this Agreement, Employee will be entitled to
participate in and receive the benefits of any stock option, stock ownership,
profit-sharing, or other plans, benefits and privileges given to employees and
executives of Employer or its subsidiaries and affiliates which may come into
existence hereafter, to the extent commensurate with his then duties and
responsibilities, as fixed by Employer's Boards of Directors or any committee of
such Boards or of Employer selected for such purpose; and, to the extent
Employee is otherwise eligible and qualifies, to so participate in and receive
such benefits or privileges. Employer shall not make any changes in such plans,
benefits or privileges which would adversely affect Employee's rights or
benefits thereunder, unless such change occurs pursuant to a program applicable
to all executive officers (Vice President or above) of Employer and does not
result in a proportionately greater adverse change in the rights of or benefits
to Employee as compared with any other executive officer of Employer. Nothing
paid to Employee under any plan or arrangement presently in effect or made
available in the future shall be deemed to be in lieu of the salary payable to
Employee pursuant to Section 3.1 hereof.
VI. EXPENSES
6.1 Employer shall reimburse Employee or otherwise provide for or
pay for all reasonable expenses incurred by Employee in furtherance or in
connection with the business of Employer including, but not by way of
limitation, automobile and traveling expenses, and all reasonable entertainment
expenses (whether incurred at Employee's residence, while traveling, or
otherwise) subject to such reasonable limitations as may be established by
Employer's Boards of Directors, provided such expenses are deductible by
Employer for purposes of federal income taxation. If such expenses are paid in
the first instance by Employee, Employer will reimburse Employee therefor.
VII. TERMINATION
7.1 Employer shall have the right, at any time upon prior written
Notice of Termination satisfying the requirements of Section 7.9(c) hereunder,
to terminate Employee's employment hereunder, including termination for just
cause. For the purpose of this Agreement, "termination for just cause" shall
include termination because of the Employee's personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform the duties stated in this Agreement, willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses) or of any final cease-and-desist order, willful or intentional
breach or neglect by Employee of his duties hereunder or material breach of any
provision of this Agreement. For purposes of this Section 7.1, no act, or
failure to act, on the Employee'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 Employer;
provided that any act or omission to act on Employee's behalf in reliance upon
an opinion of counsel to Employer or counsel to Employee shall not be deemed to
be willful.
7.2 In the event Employee is terminated for just cause pursuant to
Section 7.1 hereof, Employee shall have no right to compensation or other
benefits for any period after such date of termination. If Employee is
terminated by Employer other than for just cause pursuant to Section 7.1 hereof
and other than in connection with a change in control of Employer, as defined
herein, Employee's right to compensation and other benefits under this Agreement
shall
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be as set forth in Sections 7.9(e) and (f) hereof. In the event Employee is
terminated by Employer other than for just cause pursuant to Section 7.1 hereof,
but in connection with a change in control of Employer, as defined herein,
Employee's right to compensation and other benefits under this Agreement shall
be as set forth in Sections 7.9(d) and (f) hereof.
7.3 Employee shall have the right, upon prior written Notice of
Termination of not less than thirty (30) days satisfying the requirements of
Section 7.9(c) hereof, to terminate his employment hereunder, but in such event,
Employee shall have no right after the date of termination to compensation or
other benefits as provided in this Agreement, unless such termination is for
good reason, as defined, pursuant to Section 7.9(a) hereof. If Employee provides
a Notice of Termination for good reason, as defined, the date of termination
shall be the date on which a Notice of Termination is given.
7.4 If Employee is suspended from office and/or temporarily
prohibited from participating in the conduct of Employer's affairs pursuant to
notice served under Section 8(e)(3) or Section 8(g)(1) of the Federal Deposit
Insurance Act ("FDIA") (12 U.S.C. sections 1818(e)(3) and 1818(g)(1)),
Employer'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, Employer may, in its discretion: (i) pay 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.
7.5 If Employee is removed from office and/or permanently prohibited
from participating in the conduct of Employer's affairs 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 Employer under this Agreement shall terminate as
of the effective date of the order, but vested rights of Employee and Employer
as of the date of termination shall not be affected.
7.6 If the Bank 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 the Bank, all obligations
under this Agreement shall terminate as of the date of default, but vested
rights of Employee and Employer as of the date of termination shall not be
affected.
7.7 In the event that Employee is terminated in a manner which
violates the provisions of Section 7.1, as determined by a court of competent
jurisdiction, Employee shall be entitled to reimbursement for all reasonable
costs, including attorneys fees, in challenging such termination. Such
reimbursement shall be in addition to all rights to which Employee is otherwise
entitled under this Agreement.
7.8 This Agreement shall be terminated upon the death of Employee
during the term of this Agreement; provided that, if Employee has heirs, the
estate of Employee shall be entitled to receive payment in an amount equal to
one-half of Employee's total annual compensation, at the date of death, as
calculated in accordance with Section 3.1 of this Agreement. Unless alternative
arrangements are made by Employer and the legal representative of Employee's
estate, such payment shall be divided into six equal installments with the first
installment due and payable within 30 days of Employee's death and the remaining
installments due monthly thereafter.
7.9 (a) Employee may terminate his employment hereunder for good
reason. For purposes of this Agreement, "good reason" shall mean (i) a failure
by Employer to comply with any material provision of this Agreement, which
failure has not been cured within ten (10) days after a notice of such
noncompliance has been given by Employee to Employer; (ii) subsequent to a
change in control of Employer and without Employee's express written consent,
any of the following shall occur: the assignment to Employee of any duties
inconsistent with Employee's positions, duties, responsibilities and status with
Employer immediately prior to a change in control of Employer; a change in
Employee's reporting responsibilities, titles or offices as in effect
immediately prior to a change in control of Employer; any removal of Employee
from, or any failure to re-elect Employee to, any of such positions, except in
connection with a termination of employment for just cause, disability, death or
retirement pursuant to Sections 7.1 or
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7.5 hereof; a reduction by Employer in Employee's annual salary as in effect
immediately prior to a change in control or as the same may be increased from
time to time; or the failure of Employer to continue in effect any bonus,
benefit or compensation plan, life insurance plan, health and accident plan or
disability plan in which Employee is participating at the time of a change in
control of Employer, or the taking of any action by Employer which would
adversely affect Employee's participation in or materially reduce Employee's
benefits under any of such plans; or (iii) any purported termination of
Employee's employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 7.9(c) hereof (and for purposes of this
Agreement no such purported termination shall be effective).
(b) For purposes of this Agreement, a "change in control of
Employer" shall mean a change in control as defined in 12 C.F.R. sections
574.4(a) or (b), provided, however, such determination of control shall be
subject to the provisions of 12 C.F.R. sections 574.4(c) and 574.3(c) thereof.
(c) Any termination of Employee's employment by Employer or by
Employee shall be communicated by written Notice of Termination to the other
party hereto. For purposes of this Agreement, a "Notice of Termination" shall
mean a dated notice which shall (i) indicate the specific termination provision
in the Agreement relied upon; (ii) set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Employee's
employment under the provision so indicated; (iii) specify a date of
termination, which shall be not less than thirty (30) nor more than ninety (90)
days after such Notice of Termination is given, except in the case of Employer's
termination of Employee's employment for just cause pursuant to Section 7.1
hereof, in which case the Notice of Termination may specify a date of
termination as of the date such Notice of Termination is given; and (iv) be
given in the manner specified in Section 8.3 hereof.
(d) If Employee shall terminate his employment for good reason
pursuant to clause (ii) of Section 7.9(a) hereof, then in lieu of any further
salary payments to Employee for periods subsequent to the date of termination,
Employer shall pay as severance to Employee an amount equal to the aggregate
present value of the product of (i) the average aggregate annual compensation
paid to the Employee and includible in the Employee's gross income for federal
income tax purposes during the five calendar years preceding the taxable year in
which the date of termination occurs (or such lesser amount of time if the
Employee has not been employed by Employer for five years at the time of
termination) by Employer and any of its subsidiaries subject to United States
income tax, multiplied by (ii) 2.99, such payment to be made in a lump sum on or
before the fifth day following the date of termination; provided, however, that
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. If the lump sum severance payment
under this Section 7.9(d), either alone or together with other payments which
the Employee has the right to receive from Employer, would constitute a
"parachute payment" (as defined in Section 280G of the Internal Revenue Code of
1986, as amended (the "Code")), such lump sum severance payment shall be reduced
to the largest amount as will result in no portion of the lump sum severance
payment under this Section 7.9(d) being subject to the excise tax imposed by
Section 4999 of the Code. The determination of any reduction in the lump sum
severance payment under this Section 7.9(d) pursuant to the foregoing provision
shall be made by independent counsel to Employer in consultation with the
independent certified public accountants of Employer.
(e) If Employee shall terminate his employment for good reason as
defined in clauses (i) or (iii) of Section 7.9(a) hereof or if Employee is
terminated by Employer for other than just cause pursuant to Section 7.1 hereof,
then in lieu of any further salary payments to Employee for periods subsequent
to the date of termination, Employer shall pay as severance to Employee an
amount equal to the product of (i) Employee's average annual compensation for
the most recent five taxable years, multiplied by (ii) the number "three" (3),
such payment to be made in substantially equal semi-monthly installments on the
fifteenth and last days of each month, or if these days are nonbusiness days,
the immediately preceding business day, commencing with the month in which the
date of termination occurs and continuing for the number of consecutive
semi-monthly payment dates (including the first such date aforesaid) equal to
the product obtained by multiplying by 24 the number of years (including partial
years) applicable under Subsection (ii) of this Section 7.9(e). For purposes of
the immediately preceding sentence, the term "compensation" includes any payment
of money or provision of any other thing of value in consideration of
employment, including, without
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limitation, base salary, commissions, bonuses, pension and profit-sharing plans,
severance payments, retirement, director or committee fees, fringe benefits,
payment of expense items without accountability or business purpose or that do
not meet requirements of the Internal Revenue Service for deductibility by the
association.
(f) Unless Employee is terminated for just cause pursuant to
Section 7.1 hereof, pursuant to Section 7.5 hereof, or pursuant to a termination
of employment by Employee for other than good reason, Employer shall maintain in
full force and effect, for the continued benefit of Employee for the term of
years (including partial years) as determined in Section 7.9(e) hereof, all
employee benefit plans and programs in which Employee was entitled to
participate immediately prior to the date of termination, provided that
Employee's continued participation is possible under the general terms and
provisions of such plans and programs.
(g) Employee shall not be required to mitigate the amount of any
payment provided for in Sections 7.9(d) and (e) of this Agreement by seeking
other employment or otherwise.
VIII. MISCELLANEOUS
8.1 Notwithstanding anything to the contrary herein contained, the
payment or obligation to pay any monies, or granting of any rights or privileges
to Employee as provided in this Agreement shall not be in lieu or derogation of
the rights and privileges that Employee now has under any plan or benefit
presently outstanding.
8.2 This Agreement may not be modified, changed, amended, or altered
except in writing signed by Employee or by his duly authorized representative,
and by a duly authorized officer of Employer.
8.3 All notices given or required to be given herein shall be in
writing, sent by United States first-class certified or registered mail, postage
prepaid, to Employee (or to Employee's spouse or estate upon Employee's death)
at Employee's last-known address, and to Employer at its principal offices. All
such notices shall be effective when deposited in the mail in the manner
specified in this Section 8.3. Either party by a notice in writing may change or
designate the place for receipt of all such notices.
8.4 No course of conduct between Employer and Employee and no delay
or omission of Employer or Employee to exercise any right or power given under
this Agreement shall: (i) impair the subsequent exercise of any right or power,
or (ii) be construed to be a waiver of any default or any acquiescence in or
consent to the curing of any default while any other default shall continue to
exist, or be construed to be a waiver of such continuing default or of any other
right or power that shall theretofore have arisen; and, every power and remedy
granted by law and by this Agreement to any party hereto may be exercised from
time to time, and as often as may be deemed expedient. All such rights and
powers shall be cumulative to the fullest extent permitted by law.
8.5 All references herein to particular sections of a statute, rule
or regulation or to a particular disclosure item or schedule shall also be
deemed to be a reference to any successor section, statute, rule, regulation,
disclosure item or schedule.
8.6 The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect
IX. SUCCESSORS, ETC.
9.1 This Agreement shall inure to the benefit of and be binding upon
Employee, and, to the extent applicable, his heirs, assigns, executors, and
personal representatives, and the Bank and the Bank, their successors, and
assigns, including, without limitation, any person, partnership, or corporation
which may acquire all or substantially all of the Bank's or the Bank's assets
and business, or with or into which the Bank or the Bank may be consolidated or
merged, and this provision shall apply in the event of any subsequent merger,
consolidation, or transfer unless such merger or consolidation or subsequent
merger or consolidation is a transaction of the type which would result in
termination under Sections 7.6 and 7.7 hereof.
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9.2 This Agreement is personal to each of the parties and neither
party may assign or delegate any of its rights or obligations under this
Agreement without the prior written consent of the other party.
X. APPLICABLE LAW
10.1 This Agreement shall be governed in all respects and be
interpreted by and under the laws of Texas, except to the extent that such law
may be preempted by applicable federal law, including regulations, opinions or
orders duly issued by the OTS with respect to the Company or IHC or FDIC
("Federal Law"), in which event this Agreement shall be governed and be
interpreted by and under Federal Law.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
JACKSONVILLE SAVINGS BANK, SSB
By: /s/ X.X. Xxxxx
-------------------------------------------
X.X. Xxxxx
Chairman of the Board
JACKSONVILLE IHC, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxxxxx
Chairman of the Board
JACKSONVILLE BANCORP, INC.
By: /s/ X.X. Xxxxx
-------------------------------------------
X.X. Xxxxx
Chairman of the Board
EMPLOYEE
/s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxxxxxx
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