EXHIBIT 10.3
FOUNDER'S AGREEMENT
This Founder's Agreement, dated as of December 2, 1997, is entered into
by and among SFC Acquisition Corp., a Delaware corporation (the "Company"), C.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇", or the "Founder") (collectively, the "Parties",
individually, a "Party").
Whereas the Company has been organized for the purposes of acquiring
all of the issued and outstanding capital stock (the "Acquisition") of Superior
Federal Bank, (the "Bank") a subsidiary of NB Holdings Corporation, and of
operating thereafter as a unitary thrift holding company;
Whereas, the Founder and the Company have agreed to cooperate
in raising the capital necessary for the Acquisition and to provide for the
payment of the costs of the Acquisition, and ▇▇▇▇▇▇ has agreed to serve as an
executive officer of the Company in connection with the Acquisition and the
operations of the Company thereafter;
Whereas, the Parties acknowledge that neither the terms of this
Agreement nor the fact that they have entered into this Agreement shall (i) in
any way limit, control or determine the voting rights of the Founder as to any
capital stock of the Company that the Founder may acquire in connection with the
Acquisition; (ii) provide the Founder with any rights as to the management of or
control the affairs of the Company (other than as an officer of the Company
pursuant to the terms of an employment agreement) ; or (iii) entitle the Founder
to any share in any profits of the Company (other than as an officer of the
Company pursuant to the terms of an employment agreement);
Whereas the capital required to complete the Acquisition shall be
raised by (i) direct investment of the Founder in the amounts set forth on
Schedule "A" (each such amount with respect to the Founder an "Initial
Investment"), (ii) a private placement of a number of shares of common stock of
the Company, par value $0.01 (the "Common Stock"), sufficient to raise $85.0
million to $100.0 million of equity in the Company (the "Private Placement"),
and (iii) an offering of debt instruments of the Company in the principal amount
of $55.0 million to $70.0 million (the "Debt Offering");
Whereas it is intended that the Private Placement, the Debt Offering
and the Acquisition shall be consummated at the offices of NB Holdings
Corporation in Charlotte, North Carolina at a date and time to be determined
(the "Closing");
Whereas ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. ("▇▇▇▇▇") intends to provide
investment banking services in connection with the Private Placement and to
serve as lead underwriter for the Debt Offering;
Whereas ▇▇▇▇▇▇ has incurred and expects to incur significant out-of-
pocket expenses in connection with the Acquisition;
Now Therefore, the Company and the Founder agree as follows:
ARTICLE ONE
CAPITALIZATION
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1.1 FOUNDER'S INVESTMENT. The Founder agrees, subject to the conditions
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set forth in Section 1.2, to purchase, and the Company agrees to sell a number
of shares of Common Stock equal to the amount obtained by dividing 96% of that
price per share of Common Stock as shall be set forth in a Subscription
Agreement for Common Stock to be prepared in connection with the Private
Placement (the "Offering Price") into the amount of the Founder's Initial
Investment as set forth on Schedule A. The Founder's obligation to purchase, and
the Company's obligation to sell, any shares exceeding 10% of the Company's
issued and outstanding Common Stock (as defined herein) shall be subject to
approval by the Office of Thrift Supervision, or successor agency, if any, of
any rebuttal of control submission of the Founder. However, the Founder agrees
to purchase, and the Company agrees to sell, the maximum number of shares
provided for in this Agreement, subject to any reduction required to comply with
applicable regulatory restrictions on such purchase and sale.
1.2 CONDITIONS TO FUNDING. The obligation of the Founder to purchase
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Common Stock as set forth in Section 1.1 hereof shall be subject to the
fulfillment of each of the following conditions: (i) the Private Placement
(apart from the funding by the Founder of his Initial Investment) and the Debt
Offering shall have been completed and the aggregate proceeds therefrom,
together with the aggregate investment of the Founder, shall be sufficient to
complete the Acquisition; (ii) all conditions precedent to the consummation of
the Acquisition (other than any such condition requiring funding by the Founder
of his Initial Investments) shall have been fulfilled; (iii) all regulatory
approvals and consents necessary for consummation of the Acquisition and for the
Company's operation as a unitary thrift holding company of the Bank shall have
been obtained or made and shall be in full force and effect and all waiting
periods required by any applicable law shall have expired; and (iv) ▇▇▇▇▇▇ shall
have entered into an employment agreement with the Company as provided in
Article Three hereof.
ARTICLE TWO
RECOUPMENT OF PRE-CLOSING EXPENSES
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2.1 RECOUPMENT. ▇▇▇▇▇▇ shall be entitled to receive at Closing a number
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of additional shares of Common Stock equal in value to twice the sum of actual
Pre-closing Expenses, as defined herein, incurred by him to date in connection
with the Acquisition divided by the Offering Price.
2.2 PRE-CLOSING EXPENSES. As used herein, the term Pre-closing Expenses
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means expenses incurred in connection with the Acquisition, the Private
Placement and the Debt Offering, which shall include customary expenses of due
diligence, legal and accounting fees, consultancy fees and the cost of ▇▇▇▇▇▇'▇
services through the Closing. Pre-closing Expenses incurred through the date of
this Agreement are set forth on Schedule 2.2. Pre-closing Expenses incurred and
binding estimates of Pre-closing Expenses expected to be incurred from the date
of this Agreement until Closing shall be set forth on appropriate schedules
submitted to the Company two days before the Closing.
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ARTICLE THREE
EMPLOYMENT AGREEMENT
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▇▇▇▇▇▇ and the Company shall, at or before the Closing, enter into an
Employment Agreement, subject to any necessary regulatory approvals, which shall
provide, among other things, that (i) ▇▇▇▇▇▇ shall serve as the Chairman and
Chief Executive Officer of the Company and the Bank; (ii) his employment shall
be for an initial term of three years; (iii) he shall receive an initial annual
base salary of $225,000 to be reviewed annually for adequacy; (iv) he shall be
entitled to an initial $75,000 targeted annual bonus based upon the achievement
of agreed-upon annual and long term Company performance goals, such bonus to be
reviewed annually for adequacy; (v) he shall receive options to acquire an
amount of Common Stock (valued at the Offering Price) equal in value to 5% of
the aggregate proceeds of the Private Placement and vesting in accordance with
the following schedule:
20% vesting at Closing;
20% vesting upon the successful consummation of a public
offering of equity securities of the Company ("IPO Stock");
20% vesting upon the IPO Stock reaching a market value 50%
above the Offering Price;
20% vesting upon the IPO Stock reaching a market value 100%
above the Offering Price; and
20% vesting upon the IPO Stock reaching a market value 150%
above the Offering Price;
(vi) if a public offering of IPO Stock shall not have been consummated within
five years of the date of the Employment Agreement, he shall receive options as
described in subsection (v) above, which options shall vest in accordance with
the following schedule:
20% vesting at Closing;
20% vesting upon the Bank's annual return on average assets
("ROAA") attaining 125 basis points;
20% vesting upon the Bank's annual ROAA attaining 140 basis
points;
20% vesting upon the Bank's annual ROAA attaining 155 basis
points;
20% vesting upon the Bank's annual ROAA attaining 175 basis
points;
provided that such vesting shall be cumulative and accelerated upon the Bank's
having attained a stated ROAA basis-point target in any year in which the
vesting schedule of this subsection (vi) applies; (vii) subject to limitations
under Section 280(g) of the Internal Revenue Code of 1986, as amended, he shall
be entitled to receive a severance benefit equal to three years base
compensation and bonuses to vest upon a change of control of the Company; and
(viii) he shall receive perquisites including, but not limited to, reimbursement
of reasonable relocation expenses, term life insurance coverage paying at least
$1.0 million in death benefits, the use of a luxury automobile at Company
expense and, subject to applicable law, the right to participate in employee
benefit plans and insurance programs of the Company or the Bank and to receive
customary Company benefits.
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ARTICLE FOUR
MISCELLANEOUS
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4.1 BENEFIT. This Agreement shall inure to the benefit of and be
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binding upon each of the Parties, and their respective successors. This
Agreement shall not be assignable by any Party without the prior written consent
of the other Party.
4.2 GOVERNING LAW. This Agreement shall be governed by, and construed
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in accordance with the Laws of the State of Delaware without regard to any
conflict of Laws.
4.3 COUNTERPARTS. This Agreement may be executed in counterparts, each
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of which shall be deemed to constitute an original. Each such counterpart shall
become effective when one counterpart has been signed by each Party thereto.
4.4 HEADINGS. The headings of the various articles and sections of this
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Agreement are for convenience of reference only and shall not be deemed a part
of this Agreement or considered in construing the provisions thereof.
4.5 SEVERABILITY. Any term or provision of this Agreement that is
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prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining terms and provisions thereof or affecting the
validity or enforceability of such provision in any other jurisdiction, and if
any term or provision of this Agreement is held by any court of competent
jurisdiction to be void, voidable, invalid or unenforceable in any given
circumstance or situation, then all other terms and provisions, being severable,
shall remain in full force and effect in such circumstance or situation and the
term or provision shall remain valid and in effect in any other circumstances or
situation.
4.6 CONSTRUCTION. Use of the masculine pronoun herein shall be deemed
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to refer to the feminine and neuter genders and the use of singular references
shall be deemed to include the plural and vice versa, as appropriate. No
inference in favor of or against any Party shall be drawn from the fact that
such Party or such Party's counsel has drafted any portion of this Agreement.
4.7 EQUITABLE REMEDIES. The parties hereto agree that, in the event of
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a breach of this Agreement by any Party, the other Party if not then in breach
of this Agreement may be without an adequate remedy at law owing to the unique
nature of the contemplated transactions. In recognition thereof, in addition to
(and not in lieu of) any remedies at law that may be available to the
non-breaching Party, the non-breaching Party shall be entitled to obtain
equitable relief, including the remedies of specific performance and injunction,
in the event of a breach of this Agreement by the Party in breach, and no
attempt on the part of the non-breaching Party to obtain such equitable relief
shall be deemed to constitute an election of remedies by the non-breaching Party
that would preclude the non-breaching Party from obtaining any remedies at law
to which it would otherwise be entitled.
4.8 ATTORNEYS' FEES. If any Party hereto shall bring an action at law
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or in equity to
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enforce its rights under this Agreement, the prevailing Party in such action
shall be entitled to recover from the Party against whom enforcement is sough
its costs and expenses incurred in connection with such action (including fees,
disbursements and expenses of attorneys and costs of investigation).
4.9 NO WAIVER. No failure, delay or omission of or by any Party in
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exercising any right, power or remedy upon any breach or default of any other
Party shall impair any such rights, powers or remedies of the Party not in
breach or default, nor shall it be construed to be a waiver of any such right,
power or remedy, or an acquiescence in any similar breach or Default; nor shall
any waiver of any single breach or Default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any Party of any
provisions of this Agreement must be in writing and be executed by the Parties
to this Agreement and shall be effective only to the extent specifically set
forth in such writing.
4.10 REMEDIES CUMULATIVE. All remedies provided in this Agreement, by
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law or otherwise, shall be cumulative and not alternative.
4.11 AMENDMENT. This Agreement may only be amended by a writing signed
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by all of the Parties hereto.
4.12 ENTIRE CONTRACT. This Agreement and the documents and instruments
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referred to herein constitute the entire contract between the parties to this
Agreement and supersede all other understandings with respect to the subject
matter of this Agreement.
SFC ACQUISITION CORP.
/s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇, ▇▇.
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C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Its: Acting Chairman
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