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Exhibit 10.1(a)
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Agreement, dated as of the 1st day of June 2000, as amended and
restated as of the 25th day of April, 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.
The Board of Directors of the Bank shall conduct an annual review of
the Executive's performance.
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) 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
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receive such performance bonuses as determined in the discretion of the Board of
Directors of the Bank. The payment of any bonus pursuant to this Section 3(c)
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" a defined under the
regulations promulgated by the OCC pursuant to the Federal
Deposit Insurance Corporation Improvement Act of 1991.
(c) 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 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
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(iii) The Bank shall be "well capitalized" a 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.
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
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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. 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 7500001146 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. 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. 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 until the Executive repurchases the Policy.
9. CHANGE IN CONTROL OF THE COMPANY.
(a) In the event of a "Change in Control" of the Company, as defined
herein, followed by (i) a demotion of the Executive or a substantial reduction
in the Executive's duties and responsibility; (ii) any reduction of the
Executive's salary; (iii) any purported termination of the Executive's
employment; or (iv) any requirement that the Executive perform his duties in any
location outside of Miami-Dade County, Florida, 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 percent (200%) 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.
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(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 o 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
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
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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.
(v) failure or regulatory takeover of the Bank.
(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 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
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(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
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
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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
OR TO ITS ATTORNEY IN THE CASE OF THE EMPLOYER:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
The ▇▇▇▇▇▇ Building
288 ▇▇▇▇▇▇ Avenue
Coral Gables, FL 3313
(▇▇▇) ▇▇▇-▇▇▇▇ 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.
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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.
"COMPANY"
FLORIDA COASTLINE
COMMUNITY GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Authorized Representative
"BANK"
FLORIDA COASTLINE NATIONAL
BANK (PROPOSED)
By:
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Authorized Representative
"EXECUTIVE"
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Individually
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