exv10w2



 






Exhibit 10.2




EMPLOYMENT AGREEMENT




     This
Employment Agreement (the “Agreement”) is made as of this
15th day of
March, 2004, by and between United Heritage Bank (the “Bank”), and Shirley L.
Tyler (the “Executive”).



WITNESSETH:




     WHEREAS, the Bank desires to retain the services of and employ the
Executive, and the Executive desires to provide services to the Bank, pursuant
to the terms and conditions of this Agreement.



     NOW, THEREFORE, in consideration of the promises and of the covenants and
agreements herein contained, the Bank and the Executive covenant and agree as
follows:



     1. Employment. Pursuant to the terms and conditions of this Agreement,
the Bank agrees to employ the Executive and the Executive agrees to render
services to the Bank as set forth herein. The Employment Agreement between the
Executive and the Bank dated March 15, 2001 is hereby terminated and replaced
by this Agreement.



     2. Position and Duties. During the term of this Agreement, the Executive
shall serve as Chief Financial Officer and Senior Vice President of the Bank,
and shall undertake such duties, consistent with such titles, as may be
assigned to her from time to time by the President and Chief Executive Officer
or the Board of Directors of the Bank (referred to as the “Board”), including
assisting in keeping the Bank in compliance with applicable laws and
regulations. In performing hers duties pursuant to this Agreement, the
Executive shall devote her full business time, energy, skill and best efforts
to promote the Bank and its business and affairs; provided that, subject to
Sections 10, 12 and 13 of this Agreement, the Executive shall have the right to
manage and pursue personal and family interests, and make passive investments
in securities, real estate, and other assets, and also to participate in
charitable and community activities and organizations, so long as such
activities do not adversely affect the performance by Executive of her duties
and obligations to the Bank.



     3. Term. The initial term of employment pursuant to this Agreement shall
be for a period of three years, commencing with the date hereof and expiring
(unless sooner terminated as otherwise provided in this Agreement or unless
otherwise renewed or extended as set forth herein) on the third anniversary of
this Agreement, which date, including any earlier date of termination or any
extended expiration date, shall be referred to as the “Expiration Date.”
Subject to the provisions of Section 8 of this Agreement, the term of this
Agreement and the employment of the Executive by the Company hereunder shall be
deemed automatically renewed for successive periods of three years on each
anniversary date of this Agreement commencing with the first anniversary of
this Agreement (i.e., March 15, 2005), unless the Executive receives written
notice from the Company that the term of this Agreement will not be
automatically



 









 







renewed. In the event of the Executive’s receipt of such notice from the
Company that the term of this Agreement will not be renewed, then the term of
this Agreement shall end on the anniversary date of this Agreement occurring
three years after the anniversary date first occurring after the date such
notice is given. As an illustration of the foregoing, if such notice were
given by the Company to the Executive on a date in 2005 before the first
anniversary date of this Agreement, then the term of this Agreement would end
on the anniversary date of this Agreement in 2008. If notice were given by the
Company to the Executive on a date in 2005 after the first anniversary date of
this Agreement, then the term of this Agreement would end on the anniversary
date in 2009. After termination of the employment of the Executive for any
reason whatsoever, the Executive shall continue to be subject to the provisions
of Sections 10 through 17, inclusive, of this Agreement; provided, however,
that the Executive shall not be subject to the provisions of Sections 12 or 13
where the employment of the Executive is terminated by the Executive for Good
Reason (as defined in Section 8) or pursuant to Sections 8(e) or 8(f), or where
the term of employment is not renewed pursuant to this Section 3.



     4. Compensation. During the term of this Agreement, the Bank shall pay or
provide to the Executive as compensation for the services of the Executive set
forth in Section 2 hereof:



          (a) A base annual salary of at least $104,000.00 until December 31, 2004,
payable in such periodic installments consistent with other employees of the
Bank (such base salary to be subject to increase by the Board in its
discretion); and



          (b) Such individual bonuses and other compensation to the Executive as may
be authorized by the Board from time to time.



     5. Benefits and Insurance. The Bank shall provide to the Executive such
medical, health, and life insurance as well as any other benefits as the Board
shall determine from time to time. At a minimum, the Executive shall be
entitled to (i) participate in all employee benefit plans offered to the Bank’s
employees generally, and (ii) life insurance coverage (payable to such
beneficiary as the Executive may designate from time to time). The Executive
also shall be entitled to participate in any group disability plan maintained
by the Bank, with the Bank paying to the Executive her base annual salary
during any waiting period imposed by such plan for the receipt of disability
benefits thereunder. All benefits referred to herein shall be provided at
reasonable levels and within reasonable time after the commencement of the
Executive’s employment pursuant to the terms of this Agreement.



     6. Vacation. The Executive may take up to three weeks of vacation time at
such periods during each year as the President and Chief Executive Officer and
the Executive shall determine from time to time. The Executive shall be
entitled to full compensation during such vacation periods.



     7. Reimbursement of Expenses. The Bank shall reimburse the Executive for
reasonable expenses incurred in connection with her employment hereunder
subject to guidelines issued from time to time by the Board and upon submission
of documentation in conformity with



 









 







applicable requirements of federal income tax laws and regulations supporting
reimbursement of such expenses.



     8. Termination. The employment of the Executive may be terminated as
follows:



          (a) By the Bank, by action taken by its Board or President and Chief
Executive Officer, at any time and immediately upon written notice to the
Executive if said discharge is for cause. In the notice of termination
furnished to the Executive under this Section 8(a), the reason or reasons for
said termination shall be given and, if no reason or reasons are given for said
termination, said termination shall be deemed to be without cause and therefore
termination pursuant to Section 8(f). Any one or more of the following
conditions shall be deemed to be grounds for termination of the employment of
the Executive for cause under this Section 8(a):



               (i) If the Executive shall fail or refuse to comply with the obligations
required of her as set forth in this Agreement or comply with the policies of
the Bank established by the President and Chief Executive Officer and/or the
Board from time to time, including but not limited to, policies creating or
establishing performance standards related to acceptable profitability levels.
Said performance standards shall be reasonable in nature and reflect customary
business practices and profit expectations within the banking industry for like
banking institutions similar in size and market; provided, however, that for
the first two such failures or refusals, the Executive shall be given written
warnings (each providing at least a 10 day period for an opportunity to cure),
and the third failure or refusal shall be grounds for termination for cause;



               (ii) If the Executive shall have engaged in conduct involving fraud,
deceit, personal dishonesty, or breach of fiduciary duty, which in any such
case has adversely affected, or may adversely affect, the business or
reputation of the Bank;



               (iii) If the Executive shall have willfully violated any banking law or
regulation, memorandum of understanding, cease and desist order, or other
agreement with any banking agency having jurisdiction over the Bank;



               (iv) If the Executive shall have become subject to continuing intemperance
in the use of alcohol or drugs which has adversely affected, or may adversely
affect, the business or reputation of the Bank; or



               (v) If the Executive shall have filed, or had filed against him, any
petition under the federal bankruptcy laws or any state insolvency laws.



               In the event of termination for cause, the Bank shall pay the Executive
only salary, vacation, and bonus amounts accrued and unpaid as of the effective
date of termination.



 









 





          (b) By the Executive upon the lapse of 10 days following written notice by
the Executive to the Bank of termination of her employment hereunder for Good
Reason (as defined below), which notice shall reasonably describe the Good
Reason for which the Executive’s employment is being terminated; provided,
however, that if the Good Reason specified in such notice is such that there is
a reasonable prospect that it can be cured with diligent effort within 10 days,
the Bank shall have a reasonable time (having regard for the nature of the Good
Reason) to cure such Good Reason, which time shall not in any event exceed 10
days from the date of such notice, and the Executive’s employment shall
continue in effect during such reasonable time so long as the Bank makes
diligent efforts during such time to cure such Good Reason. If such Good
Reason shall be cured by the Bank during such reasonable time, the Executive’s
employment and the obligations of the Bank hereunder shall not terminate as a
result of the notice which has been given with respect to such Good Reason.
Cure of any Good Reason with or without notice from the Executive shall not
relieve the Bank from any obligations to the Executive under this Agreement or
otherwise and shall not affect the Executive’s rights upon the reoccurrence of
the same, or the occurrence of any other, Good Reason. For purposes of this
Agreement, the term “Good Reason” shall mean any material breach by the Bank of
any provision of this Agreement, any significant reduction, without the
Executive’s prior written consent, in the duties, responsibilities, authority
or title of the Executive as an officer of the Bank, or if the Executive’s
employment is terminated by the Bank for any reason other than cause.



          If the Executive’s employment is terminated by the Executive for Good
Reason, the Bank shall, for a period of one year after said termination;



               (i) continue to pay to the Executive the base annual salary in effect
under Section 4(a) on the date of said termination (or, if greater, the highest
annual salary in effect for the Executive within the 36 month period prior to
said termination) plus an annual amount equal to any bonus paid by the Bank to
the Executive during the 12 month period prior to said termination; and



               (ii) reimburse the Executive for continued coverage in accordance with the
Consolidated Omnibus Budget Reconciliation Act under the Bank’s medical
insurance plan.



          (c) By the Executive upon the lapse of 30 days following written notice by
the Executive to the Bank of her resignation from the Bank for other than Good
Reason; provided, however, that the Bank, in its discretion, may cause such
termination to be effective at any time during such 30-day period. If the
Executive’s employment is terminated because of the Executive’s resignation,
the Bank shall be obligated to pay to the Executive any salary, vacation, and
bonus amounts accrued and unpaid as of the effective date of such resignation.



          (d) If the Executive’s employment is terminated by the death or disability
(as defined in the disability plan maintained by the Bank) of the Executive,
this Agreement shall automatically terminate, and the Bank shall be obligated
to pay to the Executive or the Executive’s estate (i) any salary, vacation, and
bonus amounts accrued and unpaid at the date of



 









 







termination of employment and (ii) in the case of disability, the Bank shall
continue to pay to the Executive the Executive’s salary for a period until the
earlier of 12 months following the termination of the Executive’s employment as
a result of disability or the end of any waiting period of disability insurance
maintained by the Bank on the Executive.



          (e) Upon a Change of Control, in which event the Executive shall be
entitled to receive at the closing of such Change of Control an amount equal to
the sum of (i) the base annual salary in effect under Section 4(a) on the date
of such termination (or, if greater, the highest annual salary in effect for
the Executive within the 36-month period prior to said termination) plus (ii)
the average annual bonus received by the Executive during the three year period
prior to such termination. For purposes of this Agreement, a Change of Control
shall mean a merger or acquisition in which the Company or the Bank is not the
surviving entity, or the acquisition by any individual or group of beneficial
ownership of more than 50% of the outstanding shares of the Company common
stock. The term “group” and the concept of beneficial ownership shall have
such meanings ascribed thereto as set forth in the Securities Exchange Act of
1934, as amended (the “1934 Act”), and the regulations and rules thereunder.



          (f) By the Bank, by action taken by its Board, at any time if said
discharge is without cause. If the Executive’s employment is terminated by the
Bank without cause, the Bank shall, for a period of one year after said
termination;



               (i) continue to pay to the Executive the base annual salary in effect
under Section 4(a) on the date of said termination (or, if greater, the highest
annual salary in effect for the Executive within the 36 month period prior to
said termination) plus an annual amount equal to any bonus paid by the Bank to
the Executive during the 12 month period prior to said termination; and



               (ii) reimburse the Executive for continued coverage in accordance with the
Consolidated Omnibus Budget Reconciliation Act under the Bank’s medical
insurance plan.



     9. Notice. All notices permitted or required to be given to either party
under this Agreement shall be in writing and shall be deemed to have been given
(a) in the case of delivery, when addressed to the other party as set forth at
the end of this Agreement and delivered to said address, (b) in the case of
mailing, three days after the same has been mailed by certified mail, return
receipt requested, and deposited postage prepaid in the U.S. Mails, addressed
to the other party at the address as set forth at the end of this Agreement,
and (c) in any other case, when actually received by the other party. Either
party may change the address at which said notice is to be given by delivering
notice of such to the other party to this Agreement in the manner set forth
herein.



     10. Confidential Matters. The Executive is aware and acknowledges that
the Executive shall have access to confidential information by virtue of her
employment. The Executive agrees that, during the period of time the Executive
is retained to provide services to the Bank, and thereafter subsequent to the
termination of Executive’s services to the Bank for



 









 







any reason whatsoever, the Executive will not release or divulge any
confidential information whatsoever relating to the Bank or its business, to
any other person or entity without the prior written consent of the Bank.
Confidential information does not include information that is available to the
public or which becomes available to the public other than through a breach of
this Agreement on the part of the Executive. Also, the Executive shall not be
precluded from disclosing confidential information in furtherance of the
performance of her services to the Bank or to the extent required by any legal
proceeding.



     11. Injunction Without Bond. In the event there is a breach or threatened
breach by the Executive of the provisions of Sections 10, 12, or 13, the Bank

shall be entitled to an injunction without bond to restrain such breach or
threatened breach, and the prevailing party in any such proceeding will be
entitled to reimbursement for all costs and expenses, including reasonable
attorneys’ fees in connection therewith. Nothing herein shall be construed as
prohibiting the Bank from pursuing such other remedies available to it for any
such breach or threatened breach including recovery of damages from the
Executive.



     12. Noncompetition. The Executive agrees that during the period of time
the Executive is retained to provide services to the Bank, and thereafter for a
period of one year subsequent to the termination of Executive’s services to the
Bank for any reason whatsoever (except where the employment of the Executive is
terminated by the Executive for Good Reason or pursuant to Sections 8(e) or
8(f), or where the term of employment is not renewed pursuant to Section 3),
Executive will not enter the employ of, or have any interest in, directly or
indirectly (either as executive, partner, director, officer, consultant,
principal, agent or employee), any other bank or financial institution or any
entity which either accepts deposits or makes loans (whether presently existing
or subsequently established) and which has an office located within a radius of
50 miles of any office of the Bank; provided, however, that the foregoing shall
not preclude any ownership by the Executive of an amount not to exceed 5% of
the equity securities of any entity which is subject to the periodic reporting
requirements of the 1934 Act and the shares of Bank common stock owned by the
Executive at the time of termination of employment.



     13. Nonsolicitation; Noninterference. The Executive agrees that during
the period of time the Executive is retained to provide services to the Bank,
and thereafter for a period of one year subsequent to the termination of
Executive’s services to the Bank for any reason whatsoever (except where such
termination is by the Executive for Good Reason or pursuant to Sections 8(e) or
8(f), or where the term of employment is not renewed pursuant to Section 3),
the Executive will not (a) solicit for employment by Executive, or anyone else,
or employ any employee of the Bank or any person who was an employee of the
Bank within 12 months prior to such solicitation of employment; (b) induce, or
attempt to induce, any employee of the Bank to terminate such employee’s
employment; (c) induce, or attempt to induce, anyone having a business
relationship with the Bank to terminate or curtail such relationship or, on
behalf of himself or anyone else, compete with the Bank; (d) knowingly make any
untrue statement concerning the Bank or its directors or officers to anyone; or
(e) permit anyone controlled by the Executive, or any person acting on behalf
of the Executive or anyone controlled by an employee of the Executive to do any
of the foregoing.



 









 





     14. Remedies. The Executive agrees that the restrictions set forth in
this Agreement are fair and reasonable. The covenants set forth in this
Agreement are not dependent covenants and any claim against the Bank, whether
arising out of this Agreement or any other agreement or contract between the
Bank and Executive, shall not be a defense to a claim against Executive for a
breach or alleged breach of any of the covenants of Executive contained in this
Agreement. It is expressly understood by and between the parties hereto that
the covenants contained in this Agreement shall be deemed to be a series of
separate covenants. The Executive understands and agrees that if any of the
separate covenants are judicially held invalid or unenforceable, such holding
shall not release her from her obligations under the remaining covenants of
this Agreement. If in any judicial proceedings, a court shall refuse to
enforce any or all of the separate covenants because taken together they are
more extensive (whether as to geographic area, duration, scope of business or
otherwise) than necessary to protect the business and goodwill of the Bank, it
is expressly understood and agreed between the parties hereto that those
separate covenants which, if eliminated or restricted, would permit the
remaining separate covenants or the restricted separate covenant to be enforced
in such proceeding shall, for the purposes of such proceeding, be eliminated
from the provisions of this Agreement or restriction, as the case may be.



     15. Invalid Provision. In the event any provision should be or become
invalid or unenforceable, such facts shall not affect the validity and
enforceability of any other provision of this Agreement. Similarly, if the
scope of any restriction or covenant contained herein should be or become too
broad or extensive to permit enforcement thereof to its full extent, then any
such restriction or covenant shall be enforced to the maximum extent permitted
by law, and Executive hereby consents and agrees that the scope of any such
restriction or covenant may be modified accordingly in any judicial proceeding
brought to enforce such restriction or covenant.



     16. Governing Law; Venue. This Agreement shall be construed in accordance
with and shall be governed by the laws of the State of Florida. The sole and
exclusive venue for any action arising out of this Agreement shall be a federal
or state court situated in Orange County, Florida, and the parties to this
Agreement agree to be subject to the personal jurisdiction of such Court and
that service on each party shall be valid if served by certified mail, return
receipt requested or hand delivery.



     17. Attorneys’ Fees and Costs. In the event a dispute arises between the
parties under this Agreement and suit is instituted, the prevailing party shall
be entitled to recover her or its costs and attorneys’ fees from the
nonprevailing party. As used herein, costs and attorneys’ fees include any
costs and attorneys’ fees in any appellate proceeding.



     18. No Third Party Beneficiary. This Agreement is solely between the
parties hereto, and no person not a party to this Agreement shall have any
rights hereunder, either as a third party beneficiary or otherwise. The rights
and obligations of the parties under this Agreement shall inure to the benefit
of and shall be binding upon their respective successors and legal
representatives.



 









 





     19. Effect on Other Agreements. This Agreement and the termination
thereof shall not affect any other agreement between the Executive and the
Bank, and the receipt by the Executive of benefits thereunder.



     20. Miscellaneous. The rights and duties of the parties hereunder are
personal and may not be assigned or delegated without the prior written consent
of the other party to this Agreement. The captions used herein are solely for
the convenience of the parties and are not used in construing this Agreement.
Time is of the essence of this Agreement and the performance by each party of
its or her duties and obligations hereunder.



     21. Complete Agreement. This Agreement constitutes the complete agreement
between the parties hereto and incorporates all prior discussions, agreements
and representations made in regard to the matters set forth herein. This
Agreement may not be amended, modified or changed except by a writing signed by
the party to be charged by said amendment, change or modification.



     IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.



	 	 	 
	

	 	UNITED HERITAGE BANK
	 
	 	 
	

	 	By:     /s/
David G. Powers                                                         
	

	 	           David G. Powers
	

	 	           President and Chief Executive Officer
	 
	 	 
	

	 	“EXECUTIVE”
	 
	 	 
	

	 	       
  /s/ Shirley L. Tyler                                                             
	

	 	Shirley L. Tyler, individually
	

	 	Address: