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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
FOR
CHIEF EXECUTIVE OFFICER
THIS AGREEMENT, dated as of the 28th day of March, 1999, by
and among Citizens Bancshares of Southwest Florida, Inc., a Florida corporation
(the "Employer"), Citizens National Bank of Southwest Florida (Proposed), a
proposed national bank to be organized under the laws of the United States (the
"Bank") (the Employer and the Bank are collectively referred to herein as the
"Employer"), and Xxxxxxx X. XxXxxxxx, ("Executive").
W I T N E S S E T H:
WHEREAS, the directors of the Employer, 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
Xxxxxxx County, Florida; and
WHEREAS, as of the date of this Agreement the Employer has
obtained preliminary approval from the OCC and is currently seeking approval
from the FDIC;
WHEREAS, Executive is willing to assist the directors of the
Employer in the organization of the Bank and to become the Chief Executive
Officer of the Bank and the Employer 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. Unless earlier terminated under the provisions
of this Agreement the term of employment of Executive under this Agreement shall
be the three-year period
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commencing on April 28, 1999 ("Commencement Date"), and ending on
February 28, 2002.
3. COMPENSATION. For all services to be rendered by
Executive during the term of this Agreement, Employer agrees to pay Executive in
accordance with the terms outlined in Exhibit "A" net of applicable
withholdings.
4. TITLE AND DUTIES. Executive shall serve as Chief
Executive Officer of the Bank commencing on the Commencement Date. Executive's
duties are described on attached Exhibit "B".
5. EXTENT OF SERVICES. Commencing on the Commencement
Date, Executive shall devote his full business time, attention and energies to
the business of Employer and shall not during the term of this Agreement be
engaged in any other career 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 Executive so desires, so long as such
investments do not require his services during normal business hours in the
operation of the affairs of the companies in which such investments are made.
Executive shall notify Employer of any significant participation by him in any
trade association or similar organization.
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 periodic presentation of an itemized account of such
expenditures. Executive's reimbursable expenses are further detailed on Exhibit
"A".
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
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time Executive's compensation shall be paid in full. Executive's vacation
allowance is further detailed on Exhibit "A".
8. EXECUTIVE BENEFITS. Without limiting or reducing any
of the Executive's rights and benefits available to Executive as an employee
under state and/or federal law, so long as Executive is employed, Executive will
be entitled to participate in the employee benefit programs offered to
Employer's employees and covering the Executive's employment and duties
including, without limitation, those rights and benefits described in Exhibit
"A" of this Agreement.
9. CONFIDENTIALITY. In Executive's position as an
employee of Employer, Executive has had and will have access to confidential
information, trade secrets and other proprietary information of vital importance
to Employer and has and will also develop relationships with customers,
employees and others who deal with Employer which are of value to Employer.
Employer requires as a condition to Executive's employment with Employer that
Executive agrees to certain restrictions as set forth below on Executive's use
of the proprietary information and valuable relationships developed during
Executive's employment with Employer. In consideration of the terms and
conditions contained herein, the parties hereby agree as follows:
9.1 Employer and Executive mutually agree and
acknowledge that Employer may entrust Executive with highly sensitive
confidential, restricted and proprietary information concerning various Business
Opportunities (as hereinafter defined), customer lists, and personnel matters.
Executive acknowledges that during Executive's employment by the Employer, he
shall bear a responsibility to Employer to protect such information from use or
disclosure that is not necessary for the performance of Executive's duties
hereunder, as an essential incident of Executive's employment with Employer.
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9.2 For the purposes of this Section, the
following definitions shall apply.
9.2.1 "TRADE SECRET" shall mean the identity of
customers of Employer, the whole or any portion or phase of any scientific or
technical information, design, process, procedure, formula or improvement that
is valuable and secret (in the sense that it is not generally known to
competitors of Employer) and which is defined as a "trade secret" under Florida
law.
9.2.2 "CONFIDENTIAL INFORMATION" shall mean any
data or information, other than Trade Secrets, which is material to Employer and
not generally known by the public. Confidential Information shall include, but
not be limited to, Business Opportunities of Employer (as hereunder defined),
the details of this Agreement, Employer's business plans and financial
statements and projections, and the costs of the services Employer may offer or
provide to the customers they serve, to the extent such information is material
to Employer and not generally known by the public.
9.2.3 "BUSINESS OPPORTUNITIES" shall mean any
specialized information or plans of Employer concerning the provision of
financial services to the public, together with all related information
concerning the specifics of any contemplated financial services regardless of
whether Employer has contacted or communicated with such target person or
business.
9.2.4 Notwithstanding the definitions of Trade
Secrets, Confidential Information, and Business Opportunities set forth above,
Trade Secrets, Confidential Information, Business Opportunities and the
information generally subject to this Paragraph 9 and its subparts shall not
include any information:
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(i) that is or becomes generally known
to the public;
(ii) that is already known by Executive
or is developed by Executive after termination of employment through entirely
independent efforts;
(iii) that Executive obtains from an
independent source having a bona fide right to use and disclose such
information;
(iv) that is required to be disclosed by
law, except to the extent eligible for special treatment under an appropriate
protective order; or
(v) that Employer's Board of Directors
approves for release.
9.3 Executive shall not, without the prior
approval of Employer's Board, during his employment with Employer and for a
period of one (1) year from the last day of his providing full services under
his employment with the Employer use or disclose, to any unauthorized person who
is not an employee of Employer, any Trade Secrets and/or Confidential
Information of Employer, its subsidiaries or affiliates, or of any other person
or entity making Trade Secrets and/or Confidential Information available for
Employer's use unless said Trade Secrets and/or Confidential Information ceases
to be a Trade Secret and/or unless the Employer ceases to do business in Xxxxxxx
County, Florida, in which case these restrictions on disclosure and use shall
not apply.
10. OBSERVANCE OF SECURITY MEASURES. During Executive's
employment with Employer, Executive is required to observe all security measures
adopted to protect Trade Secrets, Confidential Information, and Business
Opportunity of Employer.
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11. CHANGE IN CONTROL OF THE EMPLOYER.
11.1 In the event of a "change in control" of the
Employer, as defined hereinafter, Executive shall be entitled at any time up to
thirty (30) days prior to the date of closing of the transaction (the "Election
Date") which will affect such change in control (the "Change-in-Control Date")
and at his election, to give written notice to Employer of termination of this
Agreement, and Executive shall be paid, in addition to all accrued but unpaid
Base Salary (which is to be paid as earned) and Performance Bonuses (which are
to be paid as provided in this Agreement), a lump sum cash payment in the amount
stated in Paragraph J of Exhibit "A" (the "Change-in-Control Payment"). The
Change-in-Control payment provided for in this Section 11.1 shall be
unconditional and without setoff of any kind and paid in cash, not later than
ten (10) days after the date of notice of termination by Executive under this
Section 11.1 or on the Change-in-Control Date, whichever is later provided;
however, that such Change-in-Control Payment shall in no event be paid later
than ninety (90) days from the date of the notice of termination by Executive.
Additionally, the Change-in-Control Payment shall be made to Executive as a
condition precedent to the closing of the transaction which will effect the
change in control, and prior to the Change-in-Control Date Employer shall notify
representatives of the acquiring or successor entity, as the case may be, of
Executive's rights and Employer's obligations under this Agreement, including
without limitation this paragraph, and without effecting Employer's obligations
to pay Executive hereunder, any such acquiring or successor entity shall become
obligated to forthwith pay to Executive for such part of the Change-in-Control
Payment as has not been paid by the Employer as of the Change-in-Control Date.
11.2 In addition to the foregoing and
notwithstanding any provision to the contrary or otherwise in this Agreement, in
the event of a change in control of Employer (as defined hereinafter), all
options and other stock rights of the Executive, whether under this Agreement or
otherwise (including, but not limited to the accrual of stock options not yet
issued
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to Executive, but to which Executive is entitled), shall be automatically and
without further documentation immediately vest in executive, and Executive shall
have the immediate and unfettered right to take any and all actions as Executive
shall deem appropriate with regard to said options and/or rights, including
without limitation the immediate right to receive unissued, but accrued stock
options, exercise stock options and/or transfer or sell stock. Employer shall
take all actions necessary to immediately issue any stock options which have
accrued but have not yet been issued.
11.3 If Executive elects to terminate this
Agreement pursuant to this Section 11, then Executive shall further be entitled,
in lieu of the receipt of shares of Common Stock of the Employer issuable upon
exercise of Executive's stock options, whether such options arose under this
Agreement or otherwise, to receive from Employer an amount in cash or Common
Stock of the Employer (or any combination thereof) as Executive shall in his
sole discretion designate (hereinafter "like-kind election") equal to the excess
of the fair market value (hereinafter defined) as of the Change-in-Control Date
of each share of Common Stock over the exercise price(s) of each share
represented by Executive's options, times the number of shares of Common Stock
represented by such options. The "fair market value" of each share of the Common
Stock shall be equal to the higher of (i) the value as determined by the Board
of Directors of the Employer if there is no organized trading market for the
shares at the time such determination is made, or (ii) the closing price per
share as of the date of the like-kind election (or the average of the bid and
asked prices if no closing price is available) on any nationally recognized
securities exchange or association on which the Employer's shares may be quoted
or listed, or (iii) the highest per share price actually paid for Common Stock
in connection with any change in control of the Employer, or (iv) the book value
of the shares of the Common Stock as determined by Sheshunoff or Xxxxx, Xxxxxxxx
and Xxxxx, or similarly qualified entity or (v) the price being paid for each
share of Common Stock as part of the Change-in-Control. The payment provided for
in this Section 11.2 shall be paid in full not later than ten (10) days after
the date of the Change-in-Control Notice
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by Executive under this Section 11 or on the Change-of-Control Date,
whichever is later.
11.4 For purposes of this Section 11, "change in
control" of the Employer shall mean the first to occur of any one or more of the
following:
(i) any transaction, whether by merger,
consolidation, asset sale,
recapitalization, reorganization,
combination, stock purchase, tender
offer, reverse stock split, or
otherwise, which results in the
acquisition of, 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 Employer, or
(ii) the sale of all or substantially
all of the assets of the Employer;
or
(iii) the liquidation of the Employer or
a material amount of Employer's
assets; or
(iv) the takeover or control of all or
substantially all of the operations
of Employer through any of the
means specified in 11.4 (i) above;
or
(v) the approval by the Board of
Directors and the holders of a
majority of the Common Shares then
outstanding of any of the events or
transactions listed in 11.4 (i) -
(iv) above.
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12. RETURN OF MATERIALS Upon the termination of his
employment with Employer, Executive shall deliver to Employer all memoranda,
notes, records, manuals or other documents, including all copies of such
materials, pertaining to the performance of Executive's services hereunder or
containing Trade Secrets or Confidential Information, whether made or compiled
by Executive or furnished to him from any source by virtue of his employment
with Employer.
13. SEVERABILITY. Executive acknowledges and agrees that
the covenants contained in Sections 9 through 12 of this Agreement shall be
construed as covenants independent of one another and distinct from the
remaining terms and conditions of this Agreement, and severable from every other
contract and course of business between Employer and Executive, and that the
existence of any claim, suit or action by Executive against Employer, whether
predicated upon this or any other agreement, shall not constitute a defense to
Employer's enforcement of any covenant contained in Sections 9 through 12 of
this Agreement. Likewise, the existence of any claim, suit and/or action by
Employer against Executive, whether predicated on this or any other agreement,
shall not act as, constitute or permit a setoff or defense to Employer's
obligations under this Agreement.
14. SPECIFIC PERFORMANCE. Executive acknowledges and
agrees that except as otherwise stated, the covenants contained in Sections 9
and 12 of this Agreement shall survive any termination of employment, as
applicable, with or without Cause, at the instigation or upon the initiative of
either party. Executive further acknowledges and agrees that the ascertainment
of damages in the event of Executive's breach of any covenant contained in
Sections 9 and 12 of this Agreement would be difficult, if at all possible.
Executive therefore acknowledges and agrees that Employer shall be entitled in
addition to and not in limitation of any other rights, remedies, or damages
available to Employer in arbitration, at law or in equity, upon submitting
whatever affidavit the law may require, and posting any necessary bond, to have
a court of
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competent jurisdiction enjoin Executive from committing any such breach of the
covenants stated in paragraphs 9 and 12.
15. TERMINATION.
15.1 FOR CAUSE. This Agreement may be terminated
for any of the following reasons by the Board of Directors of the Employer
"for cause," but only after giving Executive written notice of the Board's
intent to terminate Executive setting forth all matters constituting "cause"
and further giving thirty (30) days or, if cure is not able to be completed
in thirty (30) days, (or, if cure is not able to be completed in thirty (30)
days after the exercise of due diligence, such longer period as is reasonably
necessary), to cure the matters giving rise to the "for cause" termination:
(i) gross negligence or willful
misconduct of Executive materially
damaging to the business of the
Employer during the term of this
Agreement, or at any time while he
was employed by the Employer prior
to the term of this Agreement, if
not disclosed to the Employer prior
to the commencement of the term of
this Agreement; or
(ii) conviction of Executive during the
term of this Agreement of a crime
involving breach of trust or moral
turpitude.
In the event that the Employer discharges Executive
alleging "cause" under this Section 15.1 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 15.2
hereof. In the event that Executive fails to cure those matters giving rise to
the "for cause" termination, then upon Employer's discharge of Executive for
"cause" under this Section 15.1, such notice of discharge shall be accompanied
by a written and specific description of the circumstances constituting such
"cause" (hereinafter "Notice of Discharge.")
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Upon termination for cause, Executive shall be paid not later
than the thirtieth day following the date of the written notice of discharge for
cause, without setoff or deduction all accrued but unpaid Base Salary and
Performance Bonuses, and Executive shall further have those rights stated in
Section 15.3 below.
15.2 WITHOUT CAUSE.
(i) The Employer may, upon thirty (30)
days' written notice ("Notice of
Termination") to Executive,
terminate this Agreement without
cause at any time during the term
of this Agreement upon the
condition that Executive shall be
paid without setoff or deduction
(i) all Base Salary and Performance
Bonuses accrued, but not yet paid,
plus, (ii), as liquidated damages
in lieu of any claim by Executive
for damages arising out of early
termination an amount equal to the
Change-in-Control Payments as
provided in Paragraph J of Exhibit
"A" hereof, and Executive shall
have the right to a like-kind
election as described in 11.3
above; provided, however, that for
purposes of determining the fair
market value of Common Stock, such
fair market value shall be
determined as of the date of Notice
of Termination without cause of
this Agreement given by the
Employer to Executive.
Additionally, in the event of a
without cause termination,
Executive shall have all of the
rights and benefits provided for in
Section 15.3 below.
The payment provided for in
this Section 15.2 shall be made to
Executive not later than the
thirtieth day following the date
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of the Notice of Termination of
employment of Executive. In the
event of termination by Employer
without cause, Employer shall have
no right to enforce the terms and
conditions of the non-competition
and non-solicitation covenants in
Section 17 hereof and such
provisions shall not be binding
upon Executive.
(ii) Executive may upon thirty (30)
days' written notice ("Notice of
Termination") 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, then Executive shall
have all of the same rights that
Executive would have had if
Employer had terminated without
cause except that the Employer
shall have no obligation to pay to
Executive an amount equal to the
Change-in-Control Payment. However,
Employer shall be obligated to pay,
within thirty (30) days of
Additionally, Executive's notice of
termination without cause all Base
Salary and Performance Bonuses
accrued, but not yet paid to
Executive, and the Employer shall
be entitled to enforcement of the
non-competition and
non-solicitation covenants
contained in Section 17 hereof.
Additionally, Executive shall have
and retain those rights specified
in Section 15.3 below.
15.3 In the event this Agreement is
terminated with or without cause,
and, if without cause whether by
Executive or by the
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Employer, all of the Executive's
stock options including any options
which have accrued but not yet been
issued to Executive ("Accrued
Options"), and any unexercised
portion thereof, granted pursuant
to this Agreement or otherwise
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 that
have not been so exercised shall
expire; provided, however, that in
the case of Accrued Options,
Executive shall have 30 days from
the date of issuance of the options
to exercise the same.
16. DEATH OR DISABILITY. In the event of Executive's
disability or death, Executive shall have all of the same rights as if he had
been terminated "without cause" and Employer shall pay to Executive (in the case
of disability) or (in the case of death), Executive's designated beneficiary,
or, if Executive has failed to designate a beneficiary, to his estate those
amounts specified under Section 15.2 (i) and (ii) above for a "without cause"
termination and Executive shall also have all of the benefits provided under
15.3 except that in the case of disability or death, all unvested options shall
immediately vest, and the time for exercising the options shall be within 365
days from the date of disability (as defined below) or death. In the event of a
change in control of the Employer after Executive's death or disability as
defined herein, Executive or Executive's designated beneficiary or his estate,
as the case may be, shall be entitled to the rights, payments, and benefits of
Sections 11.1, 11.2 and 11.3 hereof. The Employer may maintain insurance on its
behalf to satisfy in whole or in part the obligations of Employer under this
Section 16.
16.1 DISABILITY - means:
(i) Solely due to injury or Sickness and for a
consecutive period of ninety (90) days:
(a) your ability to work is restricted,
resulting in the Loss of Earnings; or
(b) you are unable to perform the substantial
and material duties of your regular occupation in which you were engaged just
prior to the Disability; or
(c) your state licensing board has restricted
your ability to perform your occupation as a health care practitioner as a
result of testing positive on a human immunodeficiency virus test; and
(d) your Loss of Earnings is 20% or more of
your Prior Earnings.
(ii) You are receiving care from a Doctor which is
appropriate for the condition causing your Disability. We will waive this
requirement when continued care would be of no benefit to you.
If a Disability is caused by more than one
injury or Sickness, we will pay benefits as if the Disability were caused by
only one injury or Sickness.
16.2 DOCTOR - means a medical practitioner who is legally
licensed to practice under state law, and not yourself, the Owner, or the Loss
Payee.
16.3 EARNINGS - means income you earn for labor or
services performed. This includes salary, wages, fees, draws, commissions, and
other compensation (excluding Stock Options) you receive. If you are
self-employed, this is not income after deducting your normal and customary
business expenses. These expenses must be reasonable and must not exceed
expenses before Disability began. They must be deductible for Federal Income
Tax purposes.
16.4 Identifiable contributions for you to any tax
qualified retirement, annuity, salary reduction, or deferred compensation plan,
whether employer sponsored or individually owned, or to any non-qualified
deferred compensation plan are considered Earnings if they are:
(i) Made either by you or on your behalf; and
(ii) Not waived by contract during your Disability.
16.5 During any period Earnings:
(i) Will include all income for services performed
during that period, whether or not received; but
(ii) Will not include income for services performed
prior to that period, regardless of when received.
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17. NON-COMPETITION AND NON-SOLICITATION.
17.1 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.
17.2 In the event of termination of employment
under this Agreement pursuant to Section 15 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 Xxxxxxx and Xxx County, Florida either directly or indirectly,
serve as an officer, independent contractor, employee, Director of any bank,
bank holding company or other financial institution.
17.3 The covenants of Executive set forth in this
Section 17 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. 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 17
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.
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Should any covenant, term, or condition contained in this Section 17 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 17 so that it shall be
enforceable as modified, and in any event the invalidity of any provision of
this Section 17 shall not affect the validity of any other provision in this
Section 17 or elsewhere in this Agreement.
17.4 Notwithstanding anything to the contrary in
this Section 17, this Agreement or otherwise, in the event that Employer ceases
to operate as a Bank in Xxxxxxx County, then the provisions of Section 17.1 -
17.3 shall no longer apply to Executive.
18. 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.
19. WAIVER OF BREACH. The waiver by Employer or
Executive, as the case may be, of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach by the
breaching party. No waiver shall be valid unless in writing and signed by an
authorized officer of Employer or Executive, as the case may be.
20. 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.
21. GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Florida.
22. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto regarding employment of Executive, and
supersedes and replaces any prior
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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 waiver,
change, modification, extension, or discharge is sought.
EMPLOYER
Dated: 4/28/99 /s/ Xxx X. Xxx
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EXECUTIVE
Dated: 4/28/99 /s/ Xxxxxxx X. XxXxxxxx
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EXHIBIT "A"
EXECUTIVE COMPENSATION
FOR
CHIEF EXECUTIVE OFFICER
A. SALARY. For all services rendered by Executive, Executive shall receive
a minimum annual base salary of $140,000.00 ("Base Salary"), payable in equal
semi-monthly installments during the term of this Agreement. Base Salary
payments shall be subject to withholding and other applicable taxes. Annual
salary reviews shall take place on each anniversary of this Agreement during the
term hereof.
B. BONUS. Beginning December 31, 1999, and at the end of each calendar
year of the Employer, in addition to Executive's Base Salary, Executive shall be
paid performance bonuses ("Performance Bonuses") based upon good faith written
annual goals for Executive established with Executive's input by the Board of
Directors and given to the Executive at least 30 days before January 1st of the
year for which the goals apply (hereinafter "Performance Goals") except that for
the year 1999, such goals shall be established and given to Executive by no
later than March 31, 1999. The payment of Performance Bonuses pursuant to this
Section (B) shall be contingent upon the following:
(a) As of the calendar year end in question, 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 "3"; and
(b) As of the calendar year end in question, the Bank shall be
"adequately capitalized" as defined under regulations promulgated by the OCC
pursuant to the Federal Deposit Insurance Corporation Improvement Act of 1991;
and
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(c) The Bank shall be profitable, and
(d) No bonus shall exceed 40% of the Executive's Base Salary.
When the contingencies stated in sub-paragraphs B (a), (b) and
(c) above have been met, but in no instance beyond 45 days from each calendar
year-end, the Employer shall set the Performance Bonus amounts based upon the
following criteria:
1. Goals being set by the Board of Directors and goals met;
2. Deposit goals set by the Board of Directors and goals met;
3. Loan goals set by the Board of Directors and goals met;
4 Expense control goals set by the Board of Directors and
goals met. The Performance Goals shall be part of the annual business plans
prior to the expiration of each calendar year for the next ensuing calendar
year, except that the business plan and Performance Goals for 1999 shall be
completed prior to March 31, 1999. In each business plan, each of the above
criteria will be assigned specific percentage bonus (in relation to the
Executive's Base Salary) and each percentage (or, such portion of each
percentage if a specific criteria has not been fully met) shall be paid to
Executive annually, but in no event beyond fifty (50) days from each calendar
year end.
C. STOCK OPTION PLAN: Upon the Commencement Date, Employer shall grant and
transfer to Executive options to purchase 30,000 shares of Common Stock of
Employer at an exercise price of ten dollars ($10.00) per share. Unless sooner
vested as a result of other terms of this or any other Agreement, twenty percent
(20%) of these options shall vest on December 31, 1999 and twenty percent (20%)
shall vest on December 31st of each of the successive four years. All
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options shall be exercisable for a period of 10 years from the date of grant.
The provisions of this paragraph shall not in any way limit the availability of
additional options to Executive.
D. AUTO ALLOWANCE: Executive will be given $650.00 per month for the cost
of his automobile operations and normal maintenance.
E. CLUB MEMBERSHIP: Golf membership at a country club to be determined.
F. EXPENSE ACCOUNT: Legitimate and customary business related expenses.
G. VACATION: FOUR: Four weeks paid vacation.
H. HEALTH INSURANCE:* Family coverage comparable to or better than
Executive's health insurance coverage while Executive employed at Nationsbank,
N.A.
I. CONTINUING EDUCATION: Required continuing education shall be paid for
by Employer. Payment for optional education for Executive shall be determined
annually.
J. CHANGE IN CONTROL PAYMENTS: Two and one-half (2 1/2) times the
then-applicable annual Base Salary.
K. LIFE INSURANCE:* Death benefit equal to two (2) times Executive's
annual Base Salary.
L. DISABILITY INSURANCE: * Coverage comparable to or better than
Executive's coverage while Executive employed at Nationsbank, N.A.
M.
* All insurance policies shall be issued by companies which are not insurance
trusts (or their equivalent) and which are A rated or the equivalent of an A
rating or better.
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