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EXHIBIT 10.3
[DRAFT] EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of the________day of______________, 1997,
by and among Gulf Coast Bancorp, Inc., a Florida corporation (the "Holding
Company"), Gulf Coast Community Bank, National Association (Proposed), a
proposed national bank to be organized under the laws of the United States (the
"Bank" or the "Employer"), and _______________ (the "Executive").
WITNESSETH:
WHEREAS, the directors and organizers of the Bank, are seeking
approval from the Comptroller of the Currency ("OCC") and the Federal Deposit
Insurance Corporation ("FDIC") to charter a national bank in Port Charlotte,
Florida; and
WHEREAS, Executive is willing to become employed by the Bank as its
President and General Counsel of the Bank in accordance with the terms and
conditions hereinafter set forth:
1. Employment. Employer employs Executive and Executive accepts
employment upon the terms and conditions set forth in this Agreement.
2. Term. The term of employment of Executive under this Agreement shall
commence on the Executive's first day of employment with the Bank (the
"Start Date") and end two years after the Bank's receipt of a charter
from the OCC. If this contract is not renewed or renegotiated prior to
the end of the two year term, it will be treated as a termination
without cause and compensated as indicated in paragraph 11.b.
3. Compensation.
For all services rendered by Executive, Executive shall be paid a
minimum annual base salary of $96,000.00 from the Bank, payable in
equal semi-monthly installments during the term of this Agreement.
Salary payments shall be subject to withholding and other applicable
taxes.
4. Title and Duties. Executive shall serve as President and General
Counsel of the Holding Company and of the Bank once the OCC has
granted preliminary charter approval. Executive shall run the
day-to-day operating activities of the Bank and assist the Chief
Executive Officer in managing the bank's affairs; leads bank's efforts
at community relations and business development; serves as bank's
internal legal counsel and human resources officer; coordinates all
marketing efforts; serves as bank's compliance and CRA officer.
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5. Extent of Services. Executive shall devote his entire time, attention
and energies to the business of Employer and shall not during the term
of this Agreement be engaged in any other business activity which
requires the attention or participation of Executive during normal
business hours of Employer, recognition being given to the fact that
Executive is expected on occasion to participate in client development
after normal business hours. However, Executive may invest his assets
in such form or manner as will not require his services in the
operation of the affairs of the companies in which such investments
are made, except that Executive shall not make an investment in the
securities of any competing financial institution without the express
approval of the Board of Directors of the Bank. Executive shall notify
Employer of any significant participation by him in any trade
association or similar organization.
6. Working Facilities. Executive shall receive from the Bank, such
assistants, perquisites, facilities and services as are suitable to
his position and appropriate for the performance of his duties on
behalf of such entity. In addition, the Bank shall provide Executive
membership in a country or golf club (including dues, assessments and
initiation fees) of his choice and Executive shall have the option at
the termination of his employment for any reason to repurchase said
membership from the Bank.
7. Expenses. Executive may incur reasonable expenses for promoting the
business of the Bank, including expenses for entertainment, travel,
and similar items. Executive will be reimbursed by the Bank for all
such expenses upon Executive's periodic presentation of an itemized
account of such expenditures with receipts attached.
8. Vacations. Executive shall be entitled each year to four (4) weeks of
vacation time in accordance with the personnel policy established by
the Bank's Boards of Directors, during which time Executive's
compensation shall be paid in full.
9. Additional Compensation. As additional Consideration paid to
Executive, Executive shall be provided with and participate in all
employee benefit plans offered by the Bank to all of its employees,
including health, hospitalization, disability, life insurance, travel
insurance, retirement and savings plans. In addition, Executive shall
be provided with a term life insurance policy of at least $200,000,
which shall include an accidental death or dismemberment provision of
two times the face amount of the policy. The Holding Company shall
also grant to Executive the option to purchase 20,000 shares of Common
Stock of the Holding Company at a purchase price equal to the price at
which the stock is offered and sold investors through the Public
Placement Memorandum. These options shall vest at the rate of ten
percent (10%) or two thousand (2,000) options per year, beginning on
the Executive's Start Date and on each of the nine (9) subsequent
anniversary dates, and shall be exercisable for a period of ten (10)
years from such Start Date.
10. Change in Control of the Bank.
a. In the event of a "change in control" of the Bank, as defined
herein, and only to the
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extend permitted by applicable statutes and regulations,
Executive shall be entitled, for a period of thirty (30) days
from the date of closing of the transaction effecting such
change in control and at his election, to give written notice
to Employer of termination of this Agreement and to receive a
cash payment equal to one time (100%) the compensation,
including incentive compensation, if any, received by
Executive in the one-year period immediately preceding the
change in control. In the event "change in control" shall
occur within the first year of this Agreement, the severance
compensation shall be equal to the payments due during the
first year of the Agreement. The severance payments provided
for in this Section 10.a. shall be paid in cash, commencing
not later than ten (10) days after the date of notice of
termination by Executive under this Section 10 or ten (10)
days after the date of closing of the transaction effecting
the change in control of the Bank, whichever is later.
b. In addition, if Executive elects to terminate this Agreement
pursuant to this Section 10, Executive shall further be
entitled, in lieu of shares of Common Stock of the Bank
issuable upon exercise of stock options to which Executive is
entitled under this Agreement, an amount in cash or Common
Stock of the Bank or any other company into which shares of
the Bank are convertible (or any combination thereof) as
Executive shall in his election designate equal to the excess
of the fair market value of the Common Stock as of the date
of closing of the transaction effecting the change in control
over the per share exercise price of the options held by
Executive, times the number of shares of Common Stock subject
to such options (whether or not then fully exercisable). The
fair market value of the Common Stock shall be equal to the
higher of (i) the value as determined by the Board of
Directors of the Bank if there is no organized trading market
for the shares at the time such determination is made, which
per share value shall not be less than 1.8 times the per
share book value of the stock or (ii) the closing price (or
the average of the bid and asked prices if no closing price
is available) on any nationally recognized securities
exchange or association on which the Bank's shares may be
quoted or listed, or (iii) the highest per share price
actually paid for Common Stock in connection with any change
in control of the Bank. The severance payments provided for
in this Section 10.b. shall be paid in full not later than
ten (10) days after the date of notice of termination by
Executive under this Section 10 or ten (10) days after the
date of closing of the transaction effecting the change in
control of the Bank, whichever is later.
c. For purposes of this Section 10, "change in control" of the
Bank shall mean:
1. any transaction, whether by merger, consolidation,
asset sale, tender offer, reverse stock split, or
otherwise, which results in the acquisition or
beneficial ownership (as such term is defined under
rules and regulations promulgated under the
Securities Exchange Act of 1934, as amended) by any
person or entity or group of persons or entities
acting in concert, of 50% or more of the outstanding
shares of Common Stock of the Bank.
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2. the sale of all or substantially all of the assets
of the Bank; or
3. the liquidation of the Bank.
d. If any payments to be made under this Section 10 constitute
an "Excess Parachute Payment" as that term is defined in
Section 280(g) of the Internal Revenue Code, the payments
shall be reduced to the largest amount which would not
constitute an "Excess Parachute Payment."
11. Termination.
a. For Cause. This Agreement may be terminated by the
Board of Directors of the Employer without notice
and without further obligations other than for
monies already paid, for any of the following
reasons:
i. failure of Executive to follow reasonable
written instructions or policies of the
Board of Directors of the Bank;
ii. gross negligence or willful misconduct of
Executive materially damaging to the
business of the Bank during the term of
this Agreement, or at any time while he was
employed by the Bank prior to the term of
this Agreement, if not disclosed to the
Bank prior to the commencement of the term
of this Agreement; or
iii. conviction of Executive during the term of
this Agreement of a crime involving breach
of trust or moral turpitude; or
iv. at the request of any bank regulatory
authority with jurisdiction over the Bank.
In the event that the Employer discharges Executive alleging
"cause" under this Section 11.a. and it is subsequently
determined judicially that the termination was "without
cause," then such discharge shall be deemed a discharge
without cause subject to the provisions of Section 11.b.
hereof. In the event that the Employer discharges Executive
alleging "cause" under this Section 11.a, such notice of
discharge shall be accompanied by a written and specific
description of the circumstances alleging such "cause". The
termination of Executive for "cause" shall not entitle the
Bank to enforcement of the non-competition and
non-solicitation covenants contained in Section 13 hereof,
unless the employee purposely engages in conduct constituting
"cause" for the purpose of negating the non-competition
provision.
b. Without Cause.
i. Notwithstanding the provisions of Section 2 of this
Agreement, the Employer may, upon thirty (30) days'
written notice to Executive, or by the giving of a
notice
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under Section 2 of this Agreement terminate this
Agreement without cause at any time during the term
of this Agreement upon the condition that Executive
shall be entitled, as liquidated damages in lieu of
all other claims, to the same severance payments as
provided in Section 10 hereof; provided that for
purposes of Section 10.b., the fair market value of
Common Stock shall be determined as of the date of
notice of termination of this Agreement given by the
Bank to Executive. The severance payments provided
for in this Section 11.b. shall commence not later
than thirty (30) days after the actual date of
termination of employment of Executive.
ii. Executive may upon thirty (30) days' written notice
to Employer terminate his Agreement without cause at
any time during the term of this Agreement. In the
event of termination of this Agreement by Executive,
the Employer shall have no further obligation to
Executive than for monies paid.
12. Death or Disability.
a. In the event of Executive's death during the term of
this Agreement, Employer shall pay to Executive's
designated beneficiary, or if Executive has failed
to designate a beneficiary, to his estate, an amount
equal to Executive's base salary pursuant to Section
3 hereof through the end of the month in which
Executive's death occurred plus an amount equal to
ninety (90) days salary. Employer shall also
continue to provide Executive's survivors with any
benefits it provided Executive for such additional
ninety (90) day period.
b. In the event of Executive's disability during the
term of this Agreement, Employer shall pay to
Executive an amount equal to Executive's base salary
pursuant to Section 3 hereof through the end of the
month in which Executive's disability occurred plus
an amount equal to six (6) months salary. Employer
shall also continue to provide Executive with any
benefits it provided Executive prior to his
disability for a period of six (6) months following
his disability and shall continue to pay the
premiums on any life and disability policies
provided by the Employer for the benefit of
Executive prior to his disability.
c. The compensation set forth in Sections a. and b. of
this Section 12 shall be in lieu of any other
benefits provided hereunder, except that (i) in the
event of a change in control of the Bank as defined
herein during the ninety (90) day or six (6) month
periods described in Sections a. and b. of this
Section 12, Executive, Executive's designated
beneficiary or Executive's estate, as the case may
be, shall be entitled to the benefits of Section
10.b. hereof, and (ii) any benefit payable pursuant
to Section 3 shall be prorated and made available to
Executive or his beneficiary or estate in respect of
any period prior to his death or disability. and
(iii) in the event of Executive's
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disability, Employer shall continue to pay the
premiums on any life and disability policies
provided by the Employer for the benefit of
Executive prior to his disability. The Bank may
maintain insurance on its behalf to satisfy in whole
or in part the obligations of this Section 12.
d. Executive shall be deemed disabled if, by reason of
physical or mental impairment, he is incapable of
performing his duties hereunder for a period of 180
consecutive days.
13. Notices. Any notice required or desired to be given under
this Agreement shall be deemed given if in writing sent by
certified mail to his residence in the case of Executive, or
to its principal office in the case of Employer.
14. Waiver of Breach. The waiver of Employer of a breach of any
provision of this Agreement by Executive shall not operate or
be construed as a waiver of any subsequent breach by
Executive. No waiver shall be valid unless in writing and
signed by an authorized officer of Employer.
15. Assignment. Executive acknowledges that the services to be
rendered by him are unique and personal. Accordingly,
Executive may not assign any of his rights or delegate any of
his duties or obligations under this Agreement. The rights
and obligations of Executive under this Agreement shall inure
to the benefit of and shall be binding upon the successors
and assigns of Employer.
16. Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Florida.
17. Entire Agreement. This Agreement contains the entire
understanding of the parties hereto regarding employment of
Executive, and supersedes and replaces any prior agreement
relating thereto. It may not be changed orally but only by an
agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension,
or discharge is sought.
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WHEREAS, as of the day and date first above set forth, the
parties hereto execute this Agreement.
GULF COAST BANCORP, INC. ▇▇▇▇ ▇. ▇▇▇▇
By By
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GULF COAST COMMUNITY
BANK (PROPOSED)
By
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