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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Agreement, dated as of the 17th day of January 2001, by and among
Florida Coastline Community Group, Inc., a Florida Corporation (the "Company"),
Florida Coastline National Bank (Proposed), a proposed national bank to be
organized under the laws of the United States (the "Bank") (the Company and the
Bank are collectively referred to herein as the "Employer") and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(the "Executive").
W I T N E S S E T H:
WHEREAS, the directors of the Company, as 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 Miami-Dade
County, Florida; and
WHEREAS, Executive is willing to assist the directors of the Company
in the organization of the Bank and to become the Chairman, Chief Executive
Officer and President of the Bank and the Company in accordance with the terms
and conditions herein after set forth;
NOW, THEREFORE, for and in consideration of the mutual premises and
covenants herein contained, the parties agree as follows:
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 the Executive under this Agreement
shall be for the five year term period commencing on June 1st, 2000.
3. COMPENSATION.
(a) SALARY. For all services rendered by the Executive, Executive
shall be paid a minimum annual base salary of $140,000.00, payable in
semi-monthly installments during the term of this Agreement. Salary payments
shall be subject to withholding and other applicable taxes. Such base salary
shall be increased from time to time in the sole discretion of the Board of
Directors of the Bank.
(b) BONUS. Executive shall receive a bonus paid by the Company of
$50,000.00 as soon as practicable after the Bank opens for business
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(c) DISCRETIONARY BONUS. Beginning on the first anniversary of the
Bank's opening for business and on each successive anniversary, or
alternatively at the close of each of the Bank's fiscal years, in addition to
Executive's base salary, Executive shall be eligible to receive such
performance bonuses as determined in the discretion of the Board of Directors
of the Bank.
(d) PERFORMANCE BONUS. Beginning at the end of the first fiscal year
in which the Bank becomes profitable on a cumulative basis and continuing in
each successive year thereafter during the term hereof, Executive shall receive
a bonus equal to five percent (5%) of the net income, before taxes, of the Bank
up to a maximum bonus in each year of 100 percent (100%) of Executive's Base
Salary. The payment of any bonus pursuant to this Section 3(b) shall be
contingent upon the following:
(i) Prior to the granting of any bonus to Executive, the Board of
Directors of the Bank shall consider, and document its
findings in the minutes of the meeting wherein the issue was
considered, Executive's performance in light of the status of
the Bank's internal controls, loan documentation, credit
underwriting, interest rate exposure, asset growth, asset
quality, earnings, and such other performance goals and
objectives mutually agreed upon between Executive and such
Board of Directors.
(ii) The overall condition of the Bank must be "satisfactory" in
the opinion of the OCC as set forth in the most current OCC
Report of Supervisory Activity provided to the Board of
Directors of the Bank and the Uniform Financial Institution
Rating of the Bank shall not be less than a "2"; and
(iii) The Bank shall be "well capitalized" as defined under the
regulations promulgated by the OCC pursuant to the Federal
Deposit Insurance Corporation Improvement Act of 1991.
4. TITLE AND DUTIES. Executive shall serve as Chairman, Chief
Executive Officer and President of the Bank once the OCC has granted
preliminary charter approval and a member of the Interim Board of Directors and
the initial Board of Directors of the Bank. Executive shall run the day-today
activities of the Bank and oversee the Bank, within the framework of the
approved annual budget, and with a sound system of internal controls and in
compliance with the policies of the Board of Directors of the Bank, and all
applicable laws and regulations. Executive shall be nominated as a director,
Chief Executive Officer and President for the term of this Agreement.
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.
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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. Executive shall notify Employer of any participation
by him in any trade association or similar organization. Executive is also
expected to invest his time in local Civic, Community and Social Organizations
which will further develop the name and business activities of the Employer.
6. EXPENSES. Executive may incur reasonable expenses for promoting the
business the Bank, including expenses for entertainment, travel and similar
items. Executive will be reimbursed for all such expenses upon Executive's
monthly presentation of an itemized account of such expenditures.
7. VACATION. Executive shall be entitled to a vacation of four (4)
weeks per year, according to the Bank's personnel policy, which will be
established by the Bank's Board of Directors during which the Executive's
compensation shall be paid in full.
8. ADDITIONAL COMPENSATION.
(a) As additional consideration paid to Executive, Executive shall be
provided with health, hospitalization, disability and term life insurance and
participation in the Bank's incentive compensation plan (in the event one is
adopted by the Board of Directors of the Bank). In addition, Executive shall be
provided with a monthly automobile allowance of $500.00 per month as soon as
the Company's initial public offering is completed and the bank receives
preliminary regulatory approval to operate the bank. The Company shall also
grant to Executive options to purchase three percent (3%) of the number of
shares of Common Stock of the Company offered in its initial public offering at
a purchase price equal to the per share price in the Company's initial public
offering, pursuant to the Company's Incentive Stock Option Plan, as soon as
practicable after the Bank commences business. Twenty percent (20%) of these
options shall vest on the date the Bank commences business and twenty percent
(20%) shall vest on each of the four successive anniversaries of the Bank's
opening for business, however, if the Bank should be sold as a result of a
tender offer, all options of the Executive, vested and not yet vested, will be
able to be exercised. All options shall be exercisable for a period of ten (10)
years from the date of grant. Executive shall also be reimbursed for the costs
of joining one civic club and one social club (including initiation fees, dues
and assessments) once the Bank has become profitable on a cumulative basis.
(b) DEFERRED COMPENSATION LIFE INSURANCE BENEFIT. As of the
Commencement of Operations, the Bank and the Company shall purchase for
$175,000 the Executive's existing prepaid split-dollar life insurance policy,
and shall thereafter assume all obligations thereof, including all ongoing
premiums and expenses related thereto. The Bank and the Company shall hold and
maintain such policy, subject to the Executive's right to repurchase the policy
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in accordance with its terms and this Agreement at the purchase price paid to
acquire such policy. The Bank and the Company agree to reimburse the Executive
for all costs and expenses (including, without limitation, all interest charges
and expenses payable by the Executive related to the initial investment cost of
the policy) and all other expenses associated with the maintenance of the
policy during the Organizational Period and the purchase of the policy by the
Bank and the Company as of the Commencement of Operations.
9. CHANGE IN CONTROL OF THE COMPANY.
(a) In the event of a "Change in Control" of the Company, as defined
herein, Executive shall be entitled, for a period of thirty (30) days from the
date of the closing of the transaction effecting such change in control and at
his election, to give written notice to the Employer of termination of this
Agreement and to receive a cash payment equal to two hundred ninety-nine
percent (299%) times the compensation, including bonus, if any, received by
Executive in the one year period immediately preceding the change of control.
The severance payments provided for in this Section 9(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 Company, whichever is
later.
(b) For purposes of this Section 9, "change of control" of the Company
shall mean:
(i) 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 any group of persons or entities acting
in concert, of 50% or more of the outstanding shares of
Common Stock of the Company;
(ii) The sale of all or substantially all of the assets of the
Company; or
(iii) The liquidation of the Company.
10. TERMINATION.
(a) FOR CAUSE. This Agreement may be terminated by the Board of
Directors of the Bank without notice and without further obligation than for
monies already paid, for any of the following reasons:
(i) Receipt by the Bank of written notice from the OCC that the
OCC has criticized the Executive's performance or his area of
responsibility, and has either (a) rated the Bank a "4" or a
"5" under the Uniform Financial Rating System or (b) has
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determined that the Bank is in a "troubled condition" as
defined under Section 914 of the Financial Institutions
Reform and Enforcement Act of 1989;
(ii) Failure of Executive to follow reasonable written
instructions or policies of the Board of Directors of the
Bank;
(iii) Gross negligence or willful misconduct of Executive
materially damaging to the business of the Bank during the
term of this Agreement or not disclosed to the Bank prior to
the commencement of the term of this Agreement; or
(iv) Arrest for, charged in relation to, by criminal information,
indictment or otherwise, or conviction of Executive during
the term of this Agreement of a crime involving breach of
trust or moral turpitude.
In the event that the Bank discharges Executive alleging,
"cause" under this Section 10(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 10(b)
hereof. In the event that the Bank discharges Executive
alleging "cause" under this Section 10(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 12 hereof.
(b) WITHOUT CAUSE.
(i) The Bank may, upon thirty (30) days written notice to
Executive, terminate this Agreement without cause at any time
during the term of this Agreement upon the condition that the
Executive shall be entitled, as liquidated damages in lieu of
all other claims, to the payment of this base salary for a
period of six months. The severance payments provided for in
this Section 10(b) shall commence not later than thirty (30)
days after the actual date of termination of employment of
Executive. The termination of Executive "without cause" shall
not entitle Bank to the enforcement of the non-competition
and non-solicitation covenants contained in Section 12
hereof.
(ii) Executive may upon thirty (30) days written notice to
Employer terminate this Agreement without cause at any time
during the term of this Agreement. In the event of
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termination of this Agreement by Executive, the Bank shall
have no further obligation to Executive than for monies paid
and the Bank shall be entitled to enforcement of the
non-competition and non-solicitation covenants contained in
Section 12 hereof.
(iii) In the event this Agreement is terminated without cause,
whether by Executive or by the Bank, any stock options or
unexercised portion thereof, granted pursuant to this
Agreement, whether or not vested on the date of termination,
may be exercised by Executive within one hundred eighty (180)
days from the date of termination at which time all such
options shall expire.
11. DEATHS OR DISABILITY. In the event of the Executive's death,
Employer shall pay to Executive's designated beneficiary, or, if Executive has
failed to designate a beneficiary, to his estate, an amount equal to the
Executive's base salary pursuant to Section 3 hereof through the end of the
month in which the Executive's death occurred. Such compensation shall be in
lieu of any other benefits provided hereunder, except that (i) in the event of
a change of control of the Company as defined herein, Executive's designated
beneficiary or his estate, as the case may be, shall be entitled to the
benefits of Section 10(b) hereof, and (ii) any benefits payable pursuant to
Section 3 shall be prorated and made available to Executive in respect to any
period prior to his death. The Bank may maintain insurance on its behalf to
satisfy in whole or in part the obligations of this Section 11.
In the event of the Executive's disability, as hereinafter defined,
Employer shall pay to Executive the base salary then in effect through the end
of the month in which the Executive became disabled. 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 sixty (60) consecutive days.
Any dispute regarding the existence, the extent, or the continuance of
Executive's disability shall be resolved by the determination of a duly
licensed and practicing physician selected by and mutually agreeable to both
the Board of Directors of the Bank and the Executive; provided, however, if
Executive officially establishes his eligibility to receive social security
disability benefits or is deemed disabled under the terms and conditions of any
disability insurance policy carried on the Executive by the Company or the
Bank, he shall be deemed to be disabled as provided herein without further
proof. Executive shall make himself available for and submit to such
examinations by said physician as may be directed from time to time by the
physician. Failure to submit to any such examinations shall constitute a
material breach of this Agreement.
12. NON-COMPETITION AND NON-SOLICITATION.
(a) Executive acknowledges that he has preformed services or will
perform services hereunder, which directly affects Employer's business.
Accordingly, the parties deem it necessary to enter into the protective
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Agreement set forth below, the terms and conditions of which have been
negotiated by and between the parties hereto.
(b) In the event of termination of employment under this Agreement by
action of the Executive pursuant to 9(b)(ii) prior to the expiration of the
term of this Agreement, Executive agrees with Employer that through the actual
date of the termination of the Agreement, and for a period of twelve (12)
months after such termination date, Executive shall not, without prior written
consent of Employer, within a fifteen (15) mile radius of the headquarters of
the Employer, either directly or indirectly, serve as Chairman, President or
CEO of any bank.
(c) The covenants of Executive set forth in this Section 12 are
separate and independent covenants for which valuable consideration has been
paid, the receipt, adequacy and sufficiency of which are acknowledged by
Executive, and have also been made by Executive to induce Employer to enter
into this Agreement. In the event that a court of competent jurisdiction finds
that Executive has violated the provisions of this Section 12, then, as partial
relief to Employer, all unexercised options granted to Executive pursuant to
Section 8 hereof shall immediately become null and void. Further, each of the
aforesaid covenants may be availed of or relied upon by Employer in any court
of competent jurisdiction and shall form the basis of injunctive relief and
damages including expenses of litigation (including but not limited to
reasonable attorney's fees) suffered by Employer arising out of any breach of
the aforesaid covenants by Executive. The covenants of Executive set forth in
this Section 12 are cumulative to each other and to all other covenants of
Executive in favor of Employer contained in this Agreement and shall survive
the termination of this Agreement for the purpose intended. Should any
covenant, term or condition contained in this Section 12 become or be declared
invalid or unenforceable by a court of competent jurisdiction, then the parties
may request that such court judicially modify such unenforceable provision
consistent with the intent of this Section 12 so that it shall be enforceable
as modified, and in any event the invalidity of any provision of this Section
12 shall not affect the validity of any other provision in this Section 12 or
elsewhere in this Agreement.
13. NOTICE. Any notice required or desired to be given under this
Agreement shall be deemed given if in writing sent via U.S. First Class Mail
and Certified Mail to:
EXECUTIVE'S RESIDENCE:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ Phone
(▇▇▇) ▇▇▇-▇▇▇▇ Facsimile
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OR TO ITS ATTORNEY IN THE CASE OF THE EMPLOYER:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
The Aragon Building
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ Phone
(▇▇▇) ▇▇▇-▇▇▇▇ Facsimile
14. WAVER OF BREACH. The waver by 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 wavier shall be valid unless
in writing and signed by an authorized officer of the 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 waver, change, modification, or discharge is sought.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above with an effective date of June 1, 2000.
"COMPANY"
FLORIDA COASTLINE COMMUNITY
GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Authorized Representative
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"BANK"
FLORIDA COASTLINE
NATIONAL BANK (PROPOSED)
By:
---------------------------------
Authorized Representative
"EXECUTIVE"
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Individually
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ADDENDUM TO EMPLOYMENT AGREEMENT
This Addendum to Employment Agreement (the "Addendum") dated as of the
8th day of March, 2000 by and among Florida Coastline Community Group, Inc., a
Florida corporation (the "Company"), Florida Coastline National Bank
(proposed), a proposed national bank to be organized under the laws of the
United States (the "Bank") (the Company and the Bank are collectively referred
to herein as the "Employer") and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Executive")
WITNESSETH:
WHEREAS, the Employer and the Executive entered into that certain
Employment Agreement the ("Agreement") as of June 1, 2000; and
WHEREAS, the Employer and the Executive wish to (i)delete the text of
Section 8(b) of the Agreement and replace such text with a restated Section
8(b) in order to (x)clarify the Executive's obligation to buy back the prepaid
split-dollar life insurance from the Employer in the event that the Executive's
employment is terminated; and (y) to more clearly reference and identify such
policy; (ii) add an additional circumstance that will allow the Employer to
terminate the Executive "for cause;" and (iii) clarify that the performance of
the Executive will be reviewed annually by the Board of Directors.
NOW THEREFORE, for and in consideration of the mutual premises and
covenants contained herein and in the Agreement, the parties agree as follows:
1. The text of Section 8(b) of the Agreement shall be deleted and
replaced in its entirety with the following text:
DEFERRED COMPENSATION LIFE INSURANCE BENEFIT. As of the commencement
of operations, the Bank and the Company shall purchase for $192,333
the Executive's existing prepaid split dollar life insurance policy
(the "Policy") underwritten by ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Life Insurance
Company, policy number 75,0001146 a copy of which is attached hereto
as Exhibit A. The Bank and the Company shall hold and maintain the
Policy, subject to the Executive's right to repurchase the Policy in
accordance with its terms and the terms of this Agreement for $175,000
to acquire the Policy. If the Executive's employment with the Bank and
the Company is terminated for any reason except the death of the
Executive, the Executive shall, within ninety (90) days following such
termination, repurchase the Policy from the Bank and the Company for
$175,000 for the Policy. In the event that the Executive fails to
repurchase the Policy within the aforementioned ninety (90) day
period, the Executive shall pay monthly interest to the Bank and the
Company on the amount of $175,000 at the rate of one percentage point
over the then current prime rate per annum. Executive shall make
monthly payments no later than the last business day of each month
commencing on the last business day of the month immediately following
the end of the ninety (90) day period and shall continue to make such
monthly payments
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until the Executive repurchases the Policy.
2. Section 10(a) of the Agreement sets forth four enumerated
circumstances as reasons for the termination "for cause" of ▇▇. ▇▇▇▇▇▇▇'▇
employment with the Bank to those four reasons there shall be added a fifth
reason as follows:
(v) failure or regulatory takeover of the Bank.
3. The following sentence shall be added to Section 2 of the
Agreement:
The Board of Directors of the Bank shall conduct an annual review of
the Executive's performance.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum as
of the date first written above.
COMPANY
Florida Coastline Community Group, Inc.
By:
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Authorized Representative
BANK
Florida Coastline National Bank
By:
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Authorized Representative
EXECUTIVE
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