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EXHIBIT 10.2
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"), dated
as of the first day of September 1998, is made and entered into by and among
FIRST CAPITAL BANK HOLDING CORP., a Florida corporation (the "Company"), FIRST
NATIONAL BANK OF NASSAU COUNTY (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 XXXXXXX X.
XXXXXXX (the "Executive"). Unless expressly stated otherwise herein, this
Agreement shall be deemed to supersede all prior warranties, representations,
covenants and agreements among the parties hereto.
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 Nassau
County, Florida; and
WHEREAS, Executive is willing to assist the directors of the Company
in the organization of the Bank and to become the President and Chief Executive
Officer of the Bank and the Company in accordance with the terms and conditions
hereinafter set forth;
NOW, THEREFORE, for and in consideration of the mutual premises and
covenants herein contained, the parties hereto 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 Executive under this Agreement
shall be the five year period commencing on August 15, 1998.
3. COMPENSATION.
(a) Salary. For all services rendered by Executive,
Executive shall be paid a minimum annual base salary of $96,000, payable in
equal 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.
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(b) Bonus. Executive shall receive a bonus of $10,000 as
soon as practicable after the Bank opens for business. Beginning on the first
anniversary of the Bank's opening for business and on each successive
anniversary until the Bank is profitable on a cumulative basis, 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.
Beginning at the end of the first 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
pre-tax net income of the Bank and Bank-related entities. 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 regulations promulgated by the OCC pursuant to the Federal Deposit
Insurance Corporation Improvement Act of 1991.
4. TITLE AND DUTIES. Executive shall serve as Chief Executive
Officer 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-to-day activities of the Bank and oversee
the Bank, within the framework of the approval 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
also serve as Chief Executive Officer of the Company and shall be nominated as a
director of the Company 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.
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6. 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 for all such expenses
upon Executive's monthly presentation of an itemized account of such
expenditures.
7. VACATIONS. Executive shall be entitled each year to a vacation
in accordance with the personnel policy established by the Bank's Board of
Directors during which time Executive's compensation shall be paid in full.
8. ADDITIONAL COMPENSATION. 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 an automobile at a cost to Employer
not to exceed $25,000 as soon as the Company's initial public offering is
completed. The Company shall also grant to Executive options to purchase shares
in the amount of the lesser of (i) 30,000 shares or (ii) five percent (5%) of
the number of shares of Common Stock of the Company sold 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 beginning 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. 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 country club
(including initiation fees, dues and assessments) once the Bank has become
profitable on a cumulative basis.
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 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 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 in 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 in 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
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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 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, Recovery 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 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
(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.
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(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 Executive shall be entitled,
as liquidated damages in lieu of all other claims, to the payment of his base
salary for a period of twelve 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 the Bank to 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 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 thirty (30) days from the date
of termination, at which time all such options shall expire.
(iv) In the event this Agreement is terminated
without cause by the executive, any stock options not vested will be terminated,
and any stock options vested but not then exercised may be exercised by
Executive within thirty (30) days from the date of termination at which time all
such options shall expire.
11. DEATH OR DISABILITY. In the event of 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 Executive's
base salary pursuant to Section 3 hereof through the end of the month in which
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 in 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 benefit payable pursuant to Section 3 shall be prorated and
made available to Executive in respect of 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 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 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
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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 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
Executive by the Company or the Bank, he shall be deemed to 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 examination shall
constitute a material breach of this Agreement.
12. NON-COMPETITION AND NON-SOLICITATION.
(a) Executive acknowledges that he has performed services
or will perform services hereunder which directly affect 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 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 termination of the Agreement, and for a period of twelve (12)
months after such termination date, Executive shall not, without the prior
written consent of Employer, within a 35-mile radius of the headquarters of
Employer, either directly or indirectly, serve as an executive officer of any
bank, bank holding company or other financial institution.
(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 attorneys' 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 purposes 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.
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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 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 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 embodies the entire and final
agreement of the parties hereto on the subject matter stated in this Agreement.
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.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
"BANK"
FIRST NATIONAL BANK OF NASSAU COUNTY
(PROPOSED)
By:/s/ Xxxxxxx Xxxxxxxx Xxxxxx
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Xxxxxxx Xxxxxxxx Xxxxxx, Chairman of the
Board
"COMPANY"
FIRST CAPITAL BANK HOLDING CORPORATION
By:/s/ Xxxxxxx Xxxxxxxx Xxxxxx
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Xxxxxxx Xxxxxxxx Xxxxxx, Chairman of the
Board
"EXECUTIVE"
/s/ Xxxxxxx X. Xxxxxxx (LS)
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Xxxxxxx X. Xxxxxxx
