This Employment Agreement (the "Agreement") is entered into this 6th day of April, 2005 (the "Effective Date"), by and among Coastal Banking Company, Inc. (the "Company"), First National Bank of Nassau County, a national bank organized under the laws of the United States (the "Bank") (the Company and the Bank are collectively referred to herein as the "Employer"), and Michael G. Sanchez (the "Executive").
WHEREAS, pursuant to the agreement and plan of merger (the "Merger Agreement") dated as of April 6, 2005 by and between the Company and First Capital Bank Holding Corporation ("First Capital"), First Capital will merge with and into the Company.
WHEREAS, the Executive is currently a party to an employment agreement dated April 14, 2004 (the "Original Agreement") with First Capital and the Bank;
WHEREAS, the Executive is willing to terminate his interests and rights under the Original Agreement with First Capital and the Bank in consideration for entering into an employment agreement with the Employer;
WHEREAS, the Employer desires to secure the continued services of the Executive in accordance herewith, effective upon the date of the consummation of the Merger pursuant to the Merger Agreement (the "Merger Effective Date");
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants contained herein including without limitation Section 5(a)(v), $10.00, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that on the Merger Effective Date:
1. Interpretation with Other Agreements. This Agreement supersedes the Original Agreement in its entirety and is the only agreement between Executive and Employer with respect to the terms and conditions of Executive's employment with Employer and supersedes the Original Agreement in its entirety. However, the following other agreements (or portions of other agreements) shall remain in effect between Employer and Executive: (i) the Stock Option Agreement (as amended) between Executive and First Capital dated May 26, 1999; and (ii) the Stock Purchase Warrant (as amended) between Executive and First Capital to purchase shares of First Capital's common stock dated May 26, 1999.
2. Employment. The Employer shall employ the Executive, and the Executive shall serve the Employer, as President of the Company and President and Chief Executive Officer of the Bank upon the terms and conditions set forth herein. The Executive shall have such authority and responsibilities as are consistent with his position and which may be set forth in this Agreement or assigned by the Board of Directors of the Company or the Bank (each a "Board of Directors") from time to time. The Executive shall devote his full business time, attention, skill and efforts to the performance of his duties hereunder, except during periods of illness or periods of vacation and leaves of absence consistent with the Employer's policy. The Executive may devote reasonable periods of time to perform charitable and other community activities and to manage his personal investments; provided, however, that such activities will not materially interfere with the performance of his duties hereunder and will not be in conflict or competitive with, or adverse to, the interests of the Employer. Under no circumstances will the Executive work for any competitor or have any financial interest in any competitor of the Employer; provided, however, that the Executive may invest in up to 1% of the publicly-traded stock or securities of any company whose stock or securities are traded on a national exchange.
3. Term. Unless earlier terminated as provided herein, the Executive's employment under this Agreement shall commence on the Merger Effective Date and be for a term (the "Term") of five years. Upon the expiration of the Term (and successive one year terms), if this Agreement is not terminated by either party at least 90 days before it would expire, it shall automatically renew for successive one year extensions until terminated as set forth in this paragraph or elsewhere in this Agreement.
4. Compensation and Benefits.
a. Salary. Employer shall pay the Executive a base salary at a rate of $160,000 per annum. The Board (or an appropriate committee of the Board) shall review the Executive's base salary at least annually, focusing primarily upon the Bank's size and performance, and the Board may increase the Executive's base salary if the Board determines in its sole discretion that an additional increase is appropriate
b. Bonus. For a given fiscal year during the Term, the Executive shall be eligible to receive a cash bonus equaling up to 5% of the net pretax income of the Bank for that fiscal year (determined in accordance with generally accepted accounting principals), provided that, (i) the overall condition of the Bank must be "satisfactory" in the most recent report of the Bank released by the Office of the Comptroller of the Currency; (ii) the Bank's most recent Uniform Financial Institution Rating shall be at least "2"; and (iii) the Bank shall be "well capitalized" (the "Bonus Plan"). Any bonus payable for a fiscal year pursuant to this Section 4(b) shall be paid as soon as practicable after April 1 of the succeeding fiscal year. So long as Employer continues the deferred compensation plan for Executive that is currently in place, then any bonus paid under the Bonus Plan as set forth in this paragraph shall not exceed 50% of Executive's then current base salary.
c. Insurance. During the Term, Employer shall pay for the premiums necessary to maintain the Executive's life insurance policy identified as policy number , in the amount of $1,000,000, with Executive's estate being the beneficiary of 50% of the proceeds and Employer being the beneficiary of 50% of the proceeds. Additionally, Employer shall pay for the premiums on Executive's Long Term Disability insurance policy in existence on the date hereof identified as policy number .
d. Company Car. During the Term, Executive shall be entitled to the use of an automobile supplied by Employer. The automobile shall be of a size and quality mutually agreed upon by the parties and consistent with the make and quality of the automobile used by the Executive on the date hereof. The Employer shall make a new automobile available for the use of the Executive no less frequently than every three years.
e. Stock Options. The Executive shall continue to be eligible to participate in the Bank's long-term equity incentive program and be eligible for the grant of stock options, restricted stock, and other awards thereunder or under any similar plan adopted by the Company, provided that the grant of any such awards is not required by this Agreement. Nothing herein shall be deemed to preclude the granting to the Executive of warrants or options under a director option plan in addition to the options granted hereunder.
f. Other Benefits. In addition to the benefits set forth in Sections 4 (c) through (e) above, the Executive shall participate in any other retirement, welfare, deferred compensation, life and health insurance, and other benefit plans or programs of the Employer now or hereafter applicable to the Executive or applicable generally to employees of the Employer, as determined by the Board of Directors of the Company.
g. Expenses. The Employer shall continue to reimburse the Executive for reasonable travel and other expenses related to the Executive's duties which are incurred and accounted for in accordance with the Employer's standard business practices.
a. The Executive's employment under this Agreement may be terminated prior to the end of the Term only as follows:
b. If the Executive's employment is terminated because of the Executive's death, the Executive's estate shall receive any sums due him as base salary and/or reimbursement of expenses through the end of the month during which death occurred, plus any bonus earned or accrued under the Bonus Plan through the date of death (including any amounts awarded for previous years but which were not yet vested) and a pro rata share of any bonus with respect to the current fiscal year which had been earned as of the date of the Executive's death.
c. During the period of any incapacity leading up to the termination of the Executive's employment as a result of disability, the Employer shall continue to pay the Executive his full base
salary at the rate then in effect and all perquisites and other benefits (other than any bonus) until the Executive becomes eligible for benefits under any long-term disability plan or insurance program applicable to the Executive (regardless of whether the policy is maintained by the Employer), provided that the amount of any such payments to the Executive shall be reduced by the sum of the amounts, if any, payable to the Executive for the same period under such disability benefit or pension plan. Furthermore, the Executive shall receive any bonus earned or accrued under the Bonus Plan through the date of incapacity (including any amounts awarded for previous years but which were not yet vested) and a pro rata share of any bonus with respect to the current fiscal year which had been earned as of the date of the Executive's incapacity. If Employer does not maintain the policy for Executive pursuant to Section 4.c above, then although Employer may relieve Executive of his duties due to incapacity or disability, Employer must compensate Executive as if Executive were performing his duties to their fullest extent, including bonus and increases in compensation.
d. If the Executive's employment is terminated for Cause as provided above, or in the event of a Resignation (excepting in each instance the circumstances in Section 5(f)), the Executive shall receive any sums due him as base salary and/or reimbursement of expenses through the date of such termination, but Executive will thereby forfeit any rights in any unpaid bonus, including, without limitation, any bonus amounts awarded for previous years which were not yet vested and any share of any bonus with respect to the current fiscal year which had been earned as of the date of such termination or resignation.
e. If the Executive's employment is terminated Without Cause, the Employer shall: (i) pay to the Executive severance compensation in an amount equal to 100% of his then-current monthly base salary each month for 24 months from the date of termination, plus any bonus earned or accrued under the Bonus Plan through the date of termination and a pro rata share of any bonus with respect to the current fiscal year which had been earned as of the date of the Executive's termination; and (ii) convey to Executive the vehicle then provided to him pursuant to this Agreement free of any liens.
f. If Executive's employment is terminated (a) Upon a Change in Control, for any reason upon delivery of notice by Executive to the Employer within a 12 month period after the occurrence of a Change in Control; (b) for Good Reason pursuant to Section 5(a)(iv); (c) Without Cause or pursuant to a Resignation after a Change in Control; or (d) if the Executive terminates this Agreement pursuant to Paragraph 5(a)(v), then, in addition to other rights and remedies available in law or equity, the Executive shall be entitled to the following (i) the Employer shall pay the Executive in cash within 15 days of such termination date any sums due him as base salary and/or reimbursement of expenses through the date of such termination, plus any bonus earned or accrued under the Bonus Plan through the date of termination (including any amounts awarded for previous years but which were not yet vested) and a pro rata share of any bonus with respect to the current fiscal year which had been earned as of the date of the Executive's termination (and any forfeiture in other restrictive provisions applicable to each award shall not apply); (ii) the Employer shall pay the Executive in cash within 15 days of such termination date one lump sum payment in an amount equal to 2.99 times the sum of (1) the Executive's then current annual base salary, and (2) the average bonuses paid to Executive during the three preceding fiscal years pursuant to Section 4(b); (iii) the Employer shall immediately convey to Executive the vehicle then provided to him pursuant to this Agreement free of any liens; and (iv) as soon as possible, but in no event later than 90 days after such termination, the Employer shall cause Executive's accrued benefits under the deferred compensation plan available to Executive pursuant to Section 4(b) to be paid to Executive.
g. With the exceptions of the provisions of this Section 5, and the express terms of any benefit plan under which the Executive is a participant, upon termination of the Executive's
employment, the Employer shall have no obligation to the Executive for, and the Executive waives and relinquishes, any further compensation or benefits (exclusive of COBRA benefits). At the time of termination of employment, the Executive shall enter into a form of release acknowledging such remaining obligations and discharging the Employer, as well as the Employer's officers, directors and employees with respect to their actions for or on behalf of the Employer, from any other claims or obligations arising out of or in connection with the Executive's employment by the Employer, including the circumstances of such termination.
h. Notwithstanding Section 5(g) of this Agreement, if the Executive's employment is terminated in accordance with Section 5(e) or (f) of this Agreement, Employer shall at its expense continue for a period of 12 months (the "Continuation Period") on behalf of Executive the benefits provided (x) to Executive at any time during the 90-day period prior to the Change in Control or at any time thereafter or (y) to other similarly situated employees who continue in the employ of Employer during the Continuation Period. The coverage and benefits (including deductibles and costs) provided during the Continuation Period shall be no less favorable to Executive than the most favorable of such coverages and benefits during any of the periods referred to in clauses (x) and (y) above. Employer's obligation with respect to the foregoing benefits shall be limited to the extent that Executive obtains any such benefits pursuant to a subsequent employer's benefit plans, in which case Employer may reduce the coverage of any benefits it is required to provide Executive as long as the aggregate coverages and benefits of the combined benefit plans is no less favorable to Executive than the coverages and benefits required to be provided under this provision. This section shall not be interpreted so as to limit any benefits to which Executive may be entitled under any of Employer's employee benefit plans, programs or practices following Executive's termination of employment, including without limitation, retiree medical and life insurance benefits. Employer shall not, by virtue of this provision, be under any obligation to continue to maintain any particular plan or program.
i. In the event that the Executive's employment is terminated for any reason and the Executive serves as a director of the Company, the Employer, or any other subsidiary of the Company, the Executive shall (and does hereby) tender his resignation from such positions effective as of the date of termination.
j. The parties intend that the severance payments and other compensation provided for herein are reasonable compensation for the Executive's services to the Employer and shall not constitute "excess parachute payments" within the meaning of Section 280G(b) of the Internal Revenue Code of 1986 and any regulations thereunder. In the event that the Employer's independent accountants acting as auditors for the Employer on the date of a Change in Control determine that the payments provided for herein constitute "excess parachute payments," then the Executive's compensation payable hereunder shall be decreased, so as to equal an amount that is $1.00 less than three times the Executive's "base amount," as that term is defined in Section 280G(b) of the Internal Revenue Code.
k. Notwithstanding anything to the contrary herein, if the Executive is suspended or temporarily prohibited from participating in the conduct of the Employer's affairs by a notice served under section 8(e)(3) or (g)(1) of Federal Deposit Insurance Act (12 U.S.C. 1818 (e)(3) and (g)(1)), the Employer'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 Employer may in its discretion (i) pay the Executive all or part of the compensation withheld while the obligations under this Agreement were suspended and (ii) reinstate (in whole or in part) any of such obligations which were suspended.
l. Notwithstanding anything to the contrary herein, if the Executive is removed or permanently prohibited from participating in the conduct of the Employer's affairs by an order
issued under section 8 (e)(4) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C. 1818 (e)(4) or (g)(1)), all obligations of the Executive under this Agreement shall terminate as of the effective date of the order, but any vested rights of the parties hereto shall not be affected.
m. Notwithstanding anything to the contrary herein, if the Employer is in default (as defined in section 3(x)(1) of the Federal Deposit Insurance Act), all obligations under this Agreement shall terminate as of the date of default, but this paragraph 5(m) shall not affect any vested rights of the parties hereto.
n. Any payments made to the Executive pursuant to this Agreement, or otherwise, are subject to and conditioned upon their compliance with 12 U.S.C. Section 1828(k) and any regulations promulgated thereunder.
6. Ownership of Work Product. The Employer shall own all Work Product arising during the course of the Executive's employment (prior, present or future). For purposes hereof, "Work Product" shall mean all intellectual property rights, including all Trade Secrets, U.S. and international copyrights, patentable inventions, and other intellectual property rights, in any programming, documentation, technology, work of authorship or other work product that relates to the Employer, its business or its customers and that Executive conceives, develops, or delivers to the Employer or that otherwise arises out of the services provided by the Executive to the Employer hereunder, at any time during his employment, during or outside normal working hours, in or away from the facilities of the Employer, and whether or not requested by the Employer. If the Work Product contains any materials, programming or intellectual property rights that the Executive conceived or developed prior to, and independent of, the Executive's work for the Employer, the Executive agrees to identify the pre-existing items to the Employer, and the Executive grants the Employer a worldwide, unrestricted, royalty-free right, including the right to sublicense such items. The Executive agrees to take such actions and execute such further acknowledgments and assignments as the Employer may reasonably request to give effect to this provision.
7. Protection of Trade Secrets. The Executive agrees to maintain in strict confidence and, except as necessary to perform his duties for the Employer, the Executive agrees not to use or disclose any Trade Secrets of the Employer during or after his employment. For the purposes hereof, "Trade Secret" means information, including, without limitation, technical or non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a process, a drawing, financial data, financial plans, product plans, information on customers or a list of actual or potential customers or suppliers, which: (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
8. Protection of Other Confidential Information. In addition, the Executive agrees to maintain in strict confidence and, except as necessary to perform his duties for the Employer, not to use or disclose any Confidential Business Information of the Employer during his employment and for a period of 24 months following termination of the Executive's employment. "Confidential Business Information" shall mean any internal, non-public information (other than Trade Secrets already addressed above) concerning the Employer's financial position and results of operations (including revenues, assets, net income, etc.); annual and long-range business plans; product or service plans; marketing plans and methods; training, educational and administrative manuals; customer and supplier information and purchase histories; and employee lists. The provisions of Sections 6 and 7 above shall also apply to protect Trade Secrets and Confidential Business Information of third parties provided to the Employer under an obligation of secrecy.
9. Return of Materials. The Executive shall surrender to the Employer, promptly upon its request and in any event upon termination of the Executive's employment, all media, documents, notebooks,
computer programs, handbooks, data files, models, samples, price lists, drawings, customer lists, prospect data, or other material of any nature whatsoever (in tangible or electronic form) in the Executive's possession or control, including all copies thereof, relating to the Employer, its business, or its customers. Upon the request of the Employer, Executive shall certify in writing compliance with the foregoing requirement.
10. Restrictive Covenants.
a. No Solicitation of Customers. During the Executive's employment with the Employer and for a period of 12 months thereafter, the Executive shall not (except on behalf of or with the prior written consent of the Employer), either directly or indirectly, on the Executive's own behalf or in the service or on behalf of others, solicit or attempt to solicit Customers to induce or encourage them to acquire or obtain from anyone other than the Employer or its subsidiaries any product or service competitive with or as a substitute for any of the Employer's Products. For purposes of this Section, "Customer" refers to any person or group of persons with whom the Executive had direct material contact with regard to the selling, delivery, or support of the Employer's Products, including servicing such person's or group's account, during the period of 12 months preceding the termination date of Executive's employment. The "Employer's Products" refers to the products and services that the Employer or any of its subsidiaries or affiliates offered or sold within six months of the he termination date of Executive's employment. This restriction does not apply after a Change in Control.
b. No Recruitment of Personnel. During the Executive's employment with the Employer and for a period of 12 months thereafter, the Executive shall not, either directly or indirectly, on the Executive's own behalf or in the service or on behalf of others, solicit or induce any employee of or consultant to the Employer or any of its subsidiaries or affiliates to leave his or her position with the Employer (or the subsidiary or affiliate) for the purpose of providing banking services to another business, or recruit or attempt to recruit such persons to accept employment or any other position with another business that is providing banking services. This restriction does not apply after a Change in Control.
c. Non-Competition Agreement. During the Executive's employment with the Employer and for a period of 12 months thereafter, the Executive shall not (without the prior written consent of the Employer) compete with the Employer or any of its affiliates by, directly or indirectly, forming, serving as an organizer, director, officer or employee of, or consultant to, or acquiring or maintaining more than a 1% passive investment in, a depository financial institution or holding company therefor if such depository institution or holding company has one or more offices or branches located within a radius of 35 miles from the Employer's headquarters.
d. Independent Provisions. The provisions in each of the above Sections 10(a), 10(b), and 10(c) are independent, and the unenforceability of any one provision shall not affect the enforceability of any other provision.
11. Successors; Binding Agreement. This Agreement shall be binding upon and shall inure to the benefit of the Employer and its successors and assigns. Neither this Agreement nor any right or interest hereunder shall be assignable or transferable by the Executive, his beneficiaries or legal representatives, except by will or by the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive's legal personal representative.
12. Notice. For the purposes of this Agreement, notices and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when personally delivered or sent by certified mail, return receipt requested, postage prepaid, addressed to the respective addresses last given by each party to the other; provided, however, that all notices to the Employer shall be directed to the attention of the Employer with a copy to the Secretary of the
Employer. All notices and communications shall be deemed to have been received on the date of delivery thereof.
13. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Florida without giving effect to the conflict of laws principles thereof. Any action brought by any party to this Agreement shall be brought and maintained in a court of competent jurisdiction in State of Florida.
14. Non-Waiver. Failure of the Employer to enforce any of the provisions of this Agreement or any rights with respect thereto shall in no way be considered to be a waiver of such provisions or rights, or in any way affect the validity of this Agreement.
15. Enforcement. The Executive agrees that in the event of any breach or threatened breach by the Executive of any covenant contained in Section 7, 8, 10(a), 10(b), or 10(c) hereof, the resulting injuries to the Employer would be difficult or impossible to estimate accurately, even though irreparable injury or damages would certainly result. Accordingly, an award of legal damages, if without other relief, would be inadequate to protect the Employer. The Executive, therefore, agrees that in the event of any such breach, the Employer shall be entitled to obtain from a court of competent jurisdiction an injunction to restrain the breach or anticipated breach of any such covenant, and to obtain any other available legal, equitable, statutory, or contractual relief. Should the Employer have cause to seek such relief, no bond shall be required from the Employer, and the Executive shall pay all attorney's fees and court costs which the Employer may incur to the extent the Employer prevails in its enforcement action.
16. Saving Clause. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision or clause of this Agreement, or portion thereof, shall be held by any court or other tribunal of competent jurisdiction to be illegal, void, or unenforceable in such jurisdiction, the remainder of such provision shall not be thereby affected and shall be given full effect, without regard to the invalid portion. It is the intention of the parties that, if any court construes any provision or clause of this Agreement, or any portion thereof, to be illegal, void, or unenforceable because of the duration of such provision or the area or matter covered thereby, such court shall reduce the duration, area, or matter of such provision, and, in its reduced form, such provision shall then be enforceable and shall be enforced.
17. Certain Definitions.
a. "Change in Control" shall mean the occurrence during the Term of any of the following events (except for the consummation of the transactions contemplated by the Merger Agreement which shall not be deemed to be a "Change in Control"), unless such event is a result of a Non-Control Transaction:
b. "Good Reason" shall mean the occurrence after a Change in Control of any of the events or conditions described in subsections (i) through (viii) hereof:
(B) provide the Executive with compensation and benefits, in the aggregate, at least equal (in terms of benefit levels and/or reward opportunities) to those provided for under each other employee benefit plan, program and practice in which the Executive was participating at any time within 90 days preceding the date of a Change in Control or at any time thereafter;
Any event or condition described in clause (i) through (viii) above which occurs prior to a Change in Control but which the Executive reasonably demonstrates (A) was at the request of a third party, or (B) otherwise arose in connection with, or in anticipation of, a Change in Control which actually occurs, shall constitute Good Reason for purposes of this Agreement, notwithstanding that it occurred prior to the Change in Control. The Executive's right to terminate his employment for Good Reason shall not be affected by his incapacity due to physical or mental illness.
c. "Non-Control Transaction" shall mean a transaction described below:
d. "Notice of Termination" shall mean a written notice of termination from the Employer or the Executive which specifies an effective date of termination, indicates the specific termination provision in this Agreement relied upon, and, in the case of a termination for Good Reason or for Cause, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive's employment under the provision so indicated.
18. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, if any, understandings and arrangements, oral or written, between the parties hereto with respect to the subject matter hereof.
19. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Employer has caused this Agreement to be executed and its seal to be affixed hereunto by its officers thereunto duly authorized, and the Executive has signed and sealed this Agreement, effective as of the date first above written.
COASTAL BANKING COMPANY, INC.
FIRST NATIONAL BANK OF NASSAU COUNTY
/s/ SUELLEN RODEFFER GARNER
Name: Suellen Rodeffer Garner
Title: Chairman of the Board
/s/ MICHAEL G. SANCHEZ
Name: Michael G. Sanchez