EXHIBIT 10.5
Employment Contract with
Xxxxxxx X. Xxxxx
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EMPLOYMENT AGREEMENT
FOR
XXXXXXX X. XXXXX
THIS EMPLOYMENT AGREEMENT ("Agreement") is being entered into this 24th
day of February, 2000, by and among CITIZENS COMMUNITY BANCORP, INC. ("CCBI"),
CITIZENS COMMUNITY BANK OF FLORIDA ("Bank") and XXXXXXX X. XXXXX ("Employee").
CCBI, the Bank and the subsidiaries of CCBI and the Bank are collectively
referred to herein as the "Company." CCBI, the Bank and Employee are
collectively referred to herein as the "Parties."
RECITALS
WHEREAS, CCBI wishes to retain Employee as its President and Chief
Financial Officer and the Bank wishes to retain Employee as its President and
Chief Operations Officer to perform the duties and responsibilities as are
described in this Agreement and as the respective Boards of Directors
(collectively, the "Board") may assign to Employee from time to time; and
WHEREAS, Employee desires to define the terms of his employment with
CCBI and the Bank.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereto represent, warrant, undertake,
covenant and agree as follows:
OPERATIVE TERMS
1. Employment and Term. The Company shall employ Employee and Employee
shall be employed pursuant to the terms of this Agreement to perform the
services specified in Section 2 herein. The term of employment shall be for one
(1) year, commencing on January 1, 2000 (the "Effective Date"). Upon each new
day of the one (1) year period of employment from the Effective Date until the
Employee's 65th (sixty-fifth) birthday, the term of this Agreement shall be
automatically extended for one (1) additional day, to be added to the end of the
then-existing one (1) year term. Accordingly, at all times prior to: (i) the
Employee's attaining age sixty-five (65), or (ii) the delivery of a Notice Of
Termination, as defined in Section 11 (or an actual termination) the term of
this Agreement shall be one (1) full year. However, either Party may terminate
the automatic renewals by giving the other Party written notice of their intent
not to renew. The automatic extensions of the term of this Agreement shall
immediately be suspended upon an employment termination by reason of death or
disability or retirement, an employment termination made voluntarily by the
Employee (other than for good reason as defined in Section 9[d], or
involuntarily for just cause as defined in Section 9[b]), or upon a change in
control of CCBI or the Bank as defined in Section 9(e), unless, however, the
Company or the acquiror affirmatively state to Employee that the renewals shall
continue. Additionally, the Board shall, on an annual basis, review Employee's
performance to determine whether this Agreement should continue to be extended.
The Board's action will be reflected in the Board Meeting Minutes.
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In the event the Employee gives a Notice Of Termination, the term of
this Agreement shall expire upon the date indicated in the Notice Of
Termination, subject to the provisions of Section 11 herein. Except as otherwise
provided in the following paragraph with respect to a voluntary termination for
good reason, a voluntary employment termination by the Employee shall result in
the immediate termination of the rights and obligations of the parties under
this Agreement; provided, however, that the terms and provisions of Sections 12,
13, 14 and 15 shall continue to apply.
In the event the Company desires to involuntarily terminate the
employment of Employee (for purposes of this Agreement, a voluntary employment
termination by the Employee for good reason shall be treated as an involuntary
termination of the Employee's employment without just cause), the Company shall
deliver to the Employee a Notice Of Termination, and the following provisions
shall apply:
(a) In the event the involuntary termination is for just
cause, this Agreement shall terminate immediately
upon delivery to the Employee of such Notice Of
Termination. Such a termination for just cause shall
result in the termination of all rights and
obligations of the Parties under this Agreement;
provided, however, that the terms and provisions of
Sections 12, 13, 14 and 15 shall continue to apply.
(b) In the event the involuntary termination is without
just cause, the Employee shall be entitled to receive
the severance benefits set forth in Sections 9(f) and
9(g) herein and the terms and provisions of Sections
12, 13, 14 and 15 shall continue to apply.
2. Position, Responsibilities and Duties. During the term of this
Agreement, Employee shall serve in the following capacities and shall fulfill
the following responsibilities and duties:
(a) Specific Duties: Employee shall serve as the President and
Chief Financial Officer of CCBI and the President and Chief Operations
Officer of the Bank, through election by the Board. In such capacities,
Employee shall have the same powers, duties and responsibilities of
supervision and management usually accorded the same officers of
similar bank holding companies or financial institutions. In addition,
Employee shall use his best efforts to perform the duties and
responsibilities described in this Agreement and any other duties
assigned to Employee by the Chief Executive Officer and/or the Board
and to utilize and develop contacts and customers to enhance the
business of the Company. Specifically, Employee shall devote his full
business time and attention and use his best efforts to accomplish and
fulfill the following duties and responsibilities, as well as other
duties assigned to Employee from time to time by the Board:
(i) serve as an Executive Officer of CCBI and
President and Chief Operations Officer of
the Bank;
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(ii) serve as a member of the Board, if and when
elected to such positions;
(iii) serve on such committees as appointed by the
Board from time to time;
(iv) develop, review and monitor all operating
systems for the Bank;
(v) develop, review and monitor all financial
reporting, auditing and record keeping
systems for CCBI;
(vi) coordinate the budgeting process for the
Company with the Chief Executive Officer to
insure that budgetary goals and
projections are being met;
(vii) participate with the Chief Executive Officer
in the strategic planning process of the
Company (this includes the identification,
development and implementation of approved
complementary business activities and
subsidiaries;
(viii) monitor daily financial statements for the
Company;
(ix) assess the developmental needs and career
paths of all employees of the Company and
make recommendations to the Chief Executive
Officer of the Company; and
(x) coordinate with the Company's attorneys and
accountants, and other service providers to
the extent necessary to further the business
of the Company, keeping in compliance with
government laws and regulations and
otherwise keeping the Company in as good a
financial and legal posture as possible.
(b) General Duties: During the term of this Agreement, and
except for illness, vacation periods and leaves of absences, Employee
shall devote a minimum of 160 hours per month of his working time,
attention, skill and best efforts to accomplish and faithfully perform
all of the duties assigned to Employee. Employee shall, at all times,
conduct himself in a manner that will reflect positively upon the
Company. Employee shall obtain such licenses, certificates,
accreditations and professional memberships and designations as the
Company may reasonably require.
3. Compensation. During the term of this Agreement, Employee
shall be compensated as follows:
(a) Base Salary: Employee shall receive an annual salary
of Ninety Thousand Dollars ($90,000) (the "Base Salary"), payment of
which shall be allocated between CCBI and the Bank as determined by the
Board. The Base Salary shall be payable in equal
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installments, in accordance with the Company's standard payroll
practices, reduced appropriately by deductions for federal income
withholding taxes, social security taxes and other deductions required
by applicable laws. The Company may adjust the Base Salary from time to
time, based upon the Board's evaluation of Employee's performance. In
no event, however, will the Base Salary be reduced without Employee's
written concurrence.
(b) Profit Sharing Plan: Employee shall be entitled to share
with the Bank's Chief Executive Officer, as allocated by the Board, a
percentage of the Bank's profit sharing pool as determined by the
Board, at its sole discretion.
(c) Stock Appreciation Incentive Bonus: Each year, Employee
shall be entitled to a cash bonus equal to the increase in the "Fair
Market Value" of 10,000 shares of CCBI common stock from December 31 of
the preceding year to December 31 of the year for which the bonus is
awarded ("SAI bonus"). The Board of the Company may, from year to year,
increase or decrease the number of shares of CCBI common stock on which
the SAI bonus is predicated ("SAI shares").
For purposes of this Section 3, the Fair Market Value of a
share of CCBI common stock shall be the closing sale price of a share
on the date in question (or, if such day is not a trading day in the
U.S. markets, on the nearest preceding trading day), as reported with
respect to the principal market (or the composite of the markets, if
more than one) or national quotation system in which such shares are
then traded, or if no such closing prices are reported, the mean
between the high bid and low asked prices that day on the principal
market or national quotation system then in use, or if no such
quotations are available, the price furnished by a professional
securities dealer making a market in such shares as selected by the
Board. In the absence of any over-the-counter transactions, the Fair
Market Value means the highest price at which the stock has sold in an
arms length transaction during the 90 days immediately preceding the
date in question. In the absence of an arms length transaction during
such 90 days, Fair Market Value means the book value of a share of
common stock.
Notwithstanding the provisions of the preceding two
paragraphs, in the event of a change in control (as defined in Section
9[e] of this Agreement), Employee shall be immediately entitled to
receive his SAI bonus for that year. In this instance, the amount of
the SAI bonus shall be equal to the increase in the Fair Market Value
of the number of SAI shares from December 31 of the preceding year to
the price paid for the number of shares of CCBI common stock equal to
the number of SAI shares in the transaction that effects the change in
control; the SAI bonus shall be paid simultaneously with that closing.
(d) Stock and Other Benefit Plans: During the term of this
Agreement, the Employee will be entitled to participate in and receive
the benefits of any stock option plans, stock ownership plans,
profit-sharing plans, 401(k) plans, deferred compensation plans, or
other plans, benefits and privileges given to employees and executives
of the Company which are currently in effect at the execution of this
Agreement or which may come into existence thereafter to the extent
the Employee is otherwise eligible and qualifies to so participate in
and receive such benefits or privileges. The Company shall not make
any changes in such plans, benefits or privileges which would
adversely affect the Employee's rights or benefits thereunder, unless
such change occurs pursuant to a program applicable to
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all executive officers (Vice President or above) and does not result in
a proportionately greater adverse change in the rights of or benefits
to the Employee as compared with any other executive officer of the
Company. Nothing paid to the Employee under any plan or arrangement
presently in effect or made available in the future shall be deemed to
be in lieu of the Base Salary payable to the Employee pursuant to
Section 3(a) herein.
4. Payment of Business Expenses. Employee is authorized to incur
reasonable expenses in performing his duties. The Company will reimburse
Employee for authorized expenses, according to the Company's established
policies, promptly after Employee's presentation of an itemized account of such
expenditures.
5. Vacation. Employee is entitled to three (3) weeks paid
vacation time per year on a non-cumulative basis.
6. Fringe Benefits.
(a) Medical Benefits: Employee is entitled to participate in
all medical and health care benefit plans through health insurance,
corporate funds, medical reimbursement plans or other plans, if any,
provided, or to be provided, by the Company for its employees.
(b) Automobile Allowance: The Company will provide Employee
with a $600 per month automobile allowance during Employee's term of
employment. All expenses and upkeep of the automobile will be borne by
the Employee. Employee shall be responsible for apportioning the time
allocated for personal use for purposes of compliance with the Internal
Revenue Code of 1986, as amended.
(c) Club Memberships: The Company will pay Employee's
membership costs in any clubs or organizations that are deemed to be a
benefit to the Company, as determined in advance by the Board. Employee
shall maintain records of both business and personal use of such
facilities and shall submit those records to CCBI monthly.
7. Disability/Illness.
(a) Illness: Employee shall be paid his full Base Salary for
any period of his illness or incapacity, provided that such illness or
incapacity does not render Employee unable to perform his duties under
this Agreement for a period longer than sixty (60) consecutive days. At
the end of such sixty (60) day period, the Company may terminate
Employee's employment and this Agreement.
(b) Disability: Regardless of whether the Company terminates
Employee's employment and this Agreement pursuant to Section 7(a)
herein, if an illness or incapacity lasts for longer than sixty (60)
consecutive days, Employee shall receive payments under the disability
insurance plan provided by the Company and not his full Base Salary.
(c) Continuation of Coverages: During any period of illness or
disability, the Company may continue any other life, health and
disability coverages that Employee was entitled to participate in
immediately prior to the date of receiving benefits or payments under
any disability insurance plan; provided, however, that the Employee's
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continued participation is possible under the general terms and
provisions of such plans and programs, and that:
(i) such coverages shall cease upon the earlier
of: (A) sixty (60) days after the date of
any termination of employment hereunder
(with the exception of disability insurance
coverage); or (B) the date of Employee's
death; and
(ii) the continuation of such coverages is not
violative of any disability insurance policy
that Employee is receiving benefits or
payments under.
(d) No Reduction in Base Salary: During the period in which
Employee is disabled or subject to illness or incapacity, other than as
described in Section 7(b) herein, there shall be no reduction in
Employee's Base Salary.
(e) Annual Physical: Once a year, Employee agrees to undergo a
routine physical examination. The costs of the examination will be
reimbursed by the Company. The results of the physical examination, or
a summary thereof, shall be made part of Employee's personnel file.
8. Death During Employment. In the event of Employee's death during the
term of this Agreement, the Company's obligation to Employee shall be limited to
the portion of Employee's compensation which would be payable up to the first
working day of the first month after Employee's death, except that any accrued
compensation payable to Employee under any benefit plan maintained by the
Company will be paid pursuant to its terms.
9. Termination.
(a) Illness, Incapacity or Death: This Agreement shall
terminate upon Employee's illness, incapacity or death in accordance
with the provisions of Sections 7 and 8 herein.
(b) Termination for Just Cause: The Company shall have the
right at any time, upon prior written notice of termination satisfying
the requirements of Section 11 herein, to terminate the Employee's
employment hereunder, including termination for just cause. For the
purpose of this Agreement, termination for "just cause" shall mean
termination for personal dishonesty, incompetence, willful misconduct,
material breach of fiduciary duty, 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), willful
violation of a final cease-and-desist order, willful or intentional
breach or negligence or misconduct in the performance of such duties or
material breach of any provision of this Agreement as determined by a
court of competent jurisdiction or in final agency action by a federal
or state regulatory agency having jurisdiction over the Company. For
purposes of this Section, no
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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 the Company; provided that any act or omission to act
by the Employee in reasonable reliance upon an opinion of Corporate
Counsel to the Company shall not be deemed to be willful. In the event
Employee is terminated for just cause, Employee shall have no right to
compensation or other benefits for any period after such date of
termination.
(c) Involuntary Termination: If the Employee is terminated by
the Company other than for just cause, Employee's right to compensation
and other benefits under this Agreement shall be as set forth in
Sections 9(f) and 9(g) herein.
(d) Termination for Good Reason: Employee may terminate his
employment hereunder for good reason. For purposes of this Agreement,
"good reason" shall mean (i) a failure by the Company to comply with
any material provision of this Agreement, which failure has not been
cured within fifteen (15) business days after a notice of such
noncompliance has been given by the Employee to the Company; or (ii)
subsequent to a change in control (as defined in Section 9[e] herein)
where the acquiror reduces Employee's Base Salary within two years
after a change in control. So long as Employee remains employed with
the acquiror, or one of the acquiror's subsidiaries, and Employee
receives his Base Salary as compensation, Employee cannot trigger
termination for good reason simply due to a change in control.
(e) Change in Control: For purposes of this Agreement, a
"change in control" shall mean a change in ownership of stock of CCBI
or the Bank whereby a person: (i) acquires 50%, plus one share of the
outstanding shares of voting stock of CCBI or the Bank through direct
or indirect ownership or proxy; or (ii) controls in any manner the
election of a majority of the directors of the Board.
(f) Severance Payments:
(i) If Employee terminates his employment for
other than good reason or if the Company
terminates his employment for just cause,
Employee shall receive no severance
payments.
(ii) If Employee terminates his employment for
good reason or if the Company terminates his
employment for other than just cause,
Employee shall be paid, as severance, an
amount which would equal the Employee's six
month Base Salary.
(iii) Notwithstanding Section 9(f)(ii), if
Employee terminates his employment for good
reason as provided in Section 9(d)(ii),
Employee shall be paid, as severance, his
Base Salary until the second anniversary of
the change in control. In the event such
termination occurs in the second year
following the change in control, Employee
shall be paid, as severance, one (1) years'
Base Salary.
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(iv) Any payments under this Section 9(f) shall
be made in substantially equal semi-monthly
installments on the fifteenth and last days
of each month until paid in full.
(g) Additional Severance Benefits: Unless the Employee is
terminated for just cause pursuant to Section 9(b) herein, pursuant to
Section 7 herein, pursuant to Section 10(b) herein, pursuant to a
termination of employment by the Employee for other than good reason,
or incident to a change in control as described in Section (9)(d)(ii),
the Company shall maintain in full force and effect, for the continued
benefit of the Employee for the remaining term of this Agreement, or
six months (whichever is longer), all employee benefit plans and
programs in which the Employee was entitled to participate in
immediately prior to the date of termination; provided, however, that
the Employee's continued participation is possible under the general
terms and provisions of such plans and programs. Further, the Company
shall pay for the same or similar benefits if such benefits are
available to the Employee on an individual or group basis as a result
of contractual or statutory provisions requiring or permitting such
availability including, but not limited to, health insurance covered
under COBRA.
(h) Mitigation: Employee shall not be required to mitigate the
amount of any payment provided for in Sections 9(f) and 9(g) of this
Agreement by seeking other employment or otherwise.
10. Required Provisions by Regulation. The Company and Employee
that the laws and regulations governing the Parties require that certain
provisions be provided in each employment agreement with officers and employees
of the Bank. The Parties, therefore, agree to be bound by the following
provisions:
(a) Suspension: If the Employee is suspended from office
and/or temporarily prohibited from participating in the conduct of the
Bank'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. Section 1818[e][3] and Section 1818[g][1]), the Bank'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, the Bank 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.
(b) Permanent Prohibition: If the Employee is removed from
office and/or permanently prohibited from participating in the conduct
of the Bank's affairs by an order issued under Section 655.037, Florida
Statutes, or 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 the Bank under this
Agreement shall terminate as of the effective date of the order, but
vested rights of the Employee and the Bank as of the date of
termination shall not be affected.
(c) Default Under FDIA: If the Bank is in default, as
defined in Section 3(x)(1) of the FDIA (12 U.S.C. Section 1813[x][1]),
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all obligations under this Agreement shall terminate as of the date of
default, but vested rights of the Employee and the Bank as of the date
of termination shall be not affected.
(d) Regulatory Termination: All obligations of the Bank 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 the Bank:
(iii) by the Director of the Federal Deposit
Insurance Corporation (or his or her
designee) (the "FDIC") at the time the FDIC
enters into an agreement to provide
assistance to or on behalf of the Bank under
the authority to contained in Section 13(c)
of the Federal Deposit Insurance Act; or
(iv) by the Department or the Director (or his or
her designee) at the time the Department or
the Director (or his or her designee)
approves a supervisory merger to resolve
problems related to operation of the Bank or
when the Bank's determined by the Director
to be in unsafe or unsound condition.
Any of Employee's rights that have already vested, however, shall not
be affected by such action.
11. Notice of Termination.
(a) Employee's Notice: Employee shall have the right, upon
prior written notice of termination of not less than sixty (60) days,
nor more than ninety (90) days, to terminate his employment hereunder.
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 in
Section 9(d) herein. If the Employee provides a notice of termination
for good reason, the date of termination shall be the date on which the
notice of termination is given.
(b) Specificity: Any termination of the Employee's employment
by the Company 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; and (ii) set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Employee's employment under the provision so indicated.
(c) Date of Termination: The notice of termination shall
specify the date of termination. In the case of the Employee giving
notice, the date shall not be less than sixty (60) days, nor more than
ninety (90) days. The Company may shorten the time as it deems
appropriate. In the case of the Company giving notice, the date shall
be as of the date such notice is given, or such time as the Company
deems appropriate.
(d) Delivery of Notices: 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, by
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way of overnight carrier or by hand delivery. If to the Employee (or to
the Employee's spouse or estate upon the Employee's death) notice shall
be sent to Employee's last-known address, and if to the Company, notice
shall be sent to the corporate headquarters of CCBI. All such notices
shall be effective when deposited in the mail if sent via first-class
certified or registered mail, or upon delivery if by hand delivery or
sent via overnight carrier. Either Party, by notice in writing, may
change or designate the place for receipt of all such notices.
12. Post-Termination Obligations. The Company shall pay to Employee
such compensation as is required pursuant to this Agreement; provided, however,
any such payment shall be subject to Employee's post-termination cooperation.
Such cooperation shall include the following:
(i) Employee shall furnish such information and assistance as
may be reasonably required by the Company, or its attorneys, in
connection with any litigation or settlement of any dispute between the
Company, a borrower and/or any other third parties (including without
limitation serving as a witness in court or other proceedings); and
(ii) Employee shall provide such information or assistance as
may be reasonably required by the Company in connection with any
regulatory examination by any state or federal regulatory agency.
13. Maintenance of Trade Secrets and Confidential Information. Employee
shall use his best efforts and utmost diligence to guard and protect all of the
Company's trade secrets and confidential information. Employee shall not, either
during the term or after termination of this Agreement, for whatever reason,
use, in any capacity, or divulge or disclose in any manner, to any Person, the
identity of the Company's customers, or its customer lists, methods of
operation, marketing and promotional methods, processes, techniques, systems,
formulas, programs or other trade secrets or confidential information relating
to the Company's business.
14. Competitive 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 or participate in, become a director of, or
render advisory or other services for, or in connection with, or make any
financial investment in any financial institution that directly competes with
the business of the Bank in Xxxxxxx County, Florida; provided, however, that
Employee shall not be precluded or prohibited from owning passive investments,
including investments in the securities of other financial institutions.
Employee acknowledges that by virtue of his employment with the
Company, Employee will acquire an intimate knowledge of its activities and
affairs, including trade secrets and other confidential matters. Employee,
therefore, agrees that during the term of this Agreement, and for a period of
one (1) year after the termination of his employment for any reason, Employee
shall not become employed, directly or indirectly, whether as an employee,
independent contractor, consultant, or otherwise, in the financial services
industry with any business enterprise or business entity, or person whose intent
is to organize another financial institution in Xxxxxxx County and Xxx
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County, Florida, or in any other Florida County where the Bank may have a full
service branch office. Employee hereby agrees that the duration of the
anticompetitive covenant set forth herein is reasonable, and its geographic
scope is not unduly restrictive.
15. Remedies for Breach.
(a) Arbitration: The Parties agree that, except for the
specific remedies for injunctive relief and other equitable relief
contained in Sections 15(b) and 15(c) herein, any controversy or claim
arising out of or relating to this Agreement or any breach thereof,
including, without limitation, any claim that this Agreement or any
portion thereof is invalid, illegal or otherwise voidable, shall be
submitted to binding arbitration before and in accordance with the
rules of the American Arbitration Association and judgment upon the
determination and/or award of such arbitrator may be entered in any
court having jurisdiction thereof; provided, however, that this clause
shall not be construed to permit the award of punitive damages to
either party. The prevailing party to said arbitration shall be
entitled to an award of reasonable Attorneys' Fees. The venue of
arbitration shall be in Xxxxxxx County, Florida.
(b) Injunctive Relief: The Parties acknowledge and agree that
the services to be performed by Employee are special and unique and
that money damages cannot fully compensate the Company in the event of
Employee's violation of the provisions of Section 14 of this Agreement.
Thus, in the event of a breach of any of the provisions of such
Section, Employee agrees that the Company, upon application to a court
of competent jurisdiction, shall be entitled to an injunction
restraining Employee from any further breach of the terms and provision
of such Section. Should the Company prevail in an action seeking an
injunction restraining Employee, Employee shall pay all costs and
reasonable Attorneys' Fees incurred by the Company in and relating to
obtaining such injunction. Such injunctive relief may be obtained
without bond and Employee's sole remedy, in the event of the improper
entry of such injunction, shall be the dissolution of such injunction.
Employee hereby waives any and all claims for damages by reason of the
wrongful issuance of any such injunction.
(c) Cumulative Remedies: Notwithstanding any other provision
of this Agreement, the injunctive relief described in Section 15(b)
herein and all other remedies provided for in this Agreement which are
available to the Company as a result of Employee's breach of this
Agreement, are in addition to and shall not limit any and all remedies
existing at or in equity which may also be available to the Company.
16. Assignment. This Agreement shall inure to the benefit of and be
binding upon the Employee, and to the extent applicable, his heirs, assigns,
executors, and personal representatives, and to the Bank, and to the extent
applicable, its successors, and assigns, including, without limitation, any
person, partnership, or corporation which may acquire all or substantially all
of the Bank's assets and business, or with or into which the Bank may be
consolidated or merged, and this provision shall apply in the event of any
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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 10(c) and 10(d) herein.
17. Miscellaneous.
(a) Amendments to the Agreement: Unless as otherwise
provided herein, this Agreement may not be modified or amended except
in writing signed by the Parties.
(b) Certain Definitions: For purposes of this Agreement,
the following terms whenever capitalized herein shall have the
following meanings:
(i) "Person" shall mean any natural person,
corporation, partnership (general or
limited), trust, association or any other
business entity.
(ii) "Attorneys' Fees" shall include the legal
fees and disbursements charged by attorneys
and their related travel and lodging
expenses, court costs, paralegal fees, etc.
incurred in settlement, trial, appeal or in
bankruptcy proceedings.
(c) Headings for Reference Only: The headings of the Sections
and the Subsections herein are included solely for convenient
reference and shall not control the meaning or the interpretation of
any of the provisions of this Agreement.
(d) Governing Law/Jurisdiction: This Agreement shall be
construed in accordance with and governed by the laws of the State of
Florida. Any litigation involving the Parties and their rights and
obligations hereunder shall be brought in the appropriate courts in and
for Xxxxxxx County, Florida.
(e) Severability: If any of the provisions of this Agreement
shall be held invalid for any reason, the remainder of this Agreement
shall not be affected thereby and shall remain in full force and effect
in accordance with the remainder of its terms.
(f) Entire Agreement: This Agreement and all other documents
incorporated or referred to herein, contain the entire agreement of the
Parties and there are no representations, inducements or other
provisions other than those expressed in writing herein. This Agreement
amends, supplants and supersedes any and all prior agreements between
the Parties. No modification, waiver or discharge of any provision or
any breach of this Agreement shall be effective unless it is in writing
signed by both Parties. A Party's waiver of the other Party's breach of
any provision of this Agreement, shall not operate, or be construed, as
a waiver of any subsequent breach of that provision or of any other
provision of this Agreement.
(g) Waiver: No course of conduct by the Company or
Employee and no delay or omission of the Company 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
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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. Any power and/or 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.
(h) Pronouns: As used herein, words in the singular
include the plural, and the masculine include the feminine and neutral
gender, as appropriate.
(i) Recitals: The Recitals set forth at the beginning of this
Agreement shall be deemed to be incorporated into this Agreement by
this reference as if fully set forth herein, and this Agreement shall
be interpreted with reference to and in light of such Recitals.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the day and year first written above.
CITIZENS COMMUNITY BANCORP, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxx, Xx.
------------------------------- ----------------------
Xxxxxxx X. Xxxxx Xxxxxxx Xxxxx, Xx.
Chairman of the Board of Directors
/s/ Xxxx X. Xxx /s/ Xxxxx Xxxxx
------------------------------- -----------------------
Witness Witness
CITIZENS COMMUNITY BANK OF FLORIDA
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxx, Xx.
------------------------------- ----------------------
Xxxxxxx X. Xxxxx Xxxxxxx Xxxxx, Xx.
Chairman of the Board of Directors
/s/ Xxxx X. Xxx /s/ Xxxxx Xxxxx
-------------------------------- -----------------------
Witness Witness
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