Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") entered into to be
effective as of the 18th day of January, 2001, is made and entered into by and
between FIRST NATIONAL BANK OF NASSAU COUNTY, a national bank organized under
the laws of the United States (the "Bank") (the Bank is also referred to herein
as the "Employer"), and XXXXXXX X. XXXXXX (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 Bank is seeking to establish a wholesale mortgage
business; and
WHEREAS, Executive is willing to assist the Bank to establish a
wholesale mortgage business and to become the Senior Vice President -- Wholesale
Mortgage Lending of the Bank 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 three year period commending on January 18, 2001 (the "Term").
3. Compensation.
(a) Salary. For all services rendered by Executive, Executive shall be
paid a minimum annual base salary of $150,000.00, payable in equal semi-monthly
installments during the term of this Agreement. Salary payment shall be subject
to withholding and other applicable taxes. Such base salary shall be increased
from time to time in the sole discretion of the Board of Directors of the Bank.
(b) Bonus. In addition to Executive's base salary and the compensation
set forth in Section 8, Executive shall be eligible to receive such performance
bonuses as determined in the discretion of the Board of Directors of the Bank.
(i) Prior to the granting of any performance
bonus to Executive and without any effect
upon the compensation set forth in Sections
3(a), 8(a), 8(b), and 8(c), 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 internal controls, loan
documentation, credit underwriting, interest
rate exposure, asset growth, asset quality,
and earnings of the Bank's wholesale
mortgage business and the Bank, 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.
13
4. Title and Duties. Executive shall serve as Senior Vice President--
Wholesale Mortgage Lending of the Bank, reporting to the President of the Bank.
Executive shall run the day-to-day activities of the Bank's wholesale mortgage
business and oversee that business within the framework of the approved annual
budget, with a sound system of internal controls, and in compliance with the
policies of the Board of Directors of the Bank, the directives of the Bank's
President, and all applicable laws and regulations.
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.
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 reasonable expenses upon Executive's
monthly presentation of an itemized account of such expenditures, including but
not limited to a car allowance of $500.00 per month.
7. Vacations. Executive shall be entitled each year to a vacation of
not less than fifteen days during which time Executive's compensation shall be
paid in full.
8. Additional Compensation.
(a) As additional consideration paid to Executive, Executive shall be
provided with $500.00 per month to help defray the cost of health,
hospitalization, disability and term life insurance (including the costs of
insurance premiums, deductible items, and items excluded from coverage).
(b) The Bank shall also grant to Executive options to purchase 15,000
shares of the common stock of First Capital Bank Holding Corporation (the
"Company") with an exercise price equal to the current fair market value of the
shares as established by the Company's Board of Directors. Options to purchase
3,000 shares shall vest on the earlier of (i) the date on which the first
employee of the Bank's wholesale mortgage business is hired at the
recommendation of Executive or (ii) the first day of the Term. The remaining
options shall vest ratably on each of the first four anniversary dates of the
Term.
(c) Executive shall be entitled to receive a portion of the net,
pre-tax income attributable to the Bank's wholesale mortgage business pursuant
to the terms and conditions set forth on Exhibit A, which is incorporated
hereby.
9. Change in Control of the Bank.
(a) In the event of a "change in control" of the Bank, as defined
herein, Executive shall be entitled, for a period of 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 100% 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 days after the date of
notice of termination by Executive under this Section 10 or ten days after the
date of closing of the transaction effecting the change in control of the Bank,
whichever is later.
(b) For purposes of this Section 9, "change in control" of the Bank
shall mean:
(i) any transaction, whether by merger,
consolidation, asset sale, tender offer,
reverse stock split, or otherwise, which
results in the acquisition or beneficial
ownership (as such term is defined under
rules and regulations promulgated under the
Securities Exchange Act of 1934, as amended)
by any person or entity or any group of
persons
14
or entities acting in concert (other
than any affiliate of the Bank as of the
date of this Agreement) of 50% or more of
the outstanding shares of Common Stock of
the Bank;
(ii) the sale of all or substantially all of the
assets of the Bank; or
(iii) the liquidation of the Bank.
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 Office of the Comptroller of the
Currency (or other applicable regulatory
agency) that criticizes Executive's
performance or his area of responsibility;
(ii) the failure of the Bank's wholesale
mortgage business to attain the
profitability and volume measures set forth
on Exhibit B hereto, which is incorporated
hereby;
(iii) failure of Executive to follow reasonable
written instructions or policies of the
President or the Board of Directors of the
Bank;
(iv) 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
(v) Executive's arrest for, being charged
in relation to (whether by criminal
information, indictment, or otherwise), or
conviction of a felony or 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 by a court of
law or other authorized tribunal 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".
(b) Without Cause.
(i) The Bank may, upon 30 days' written notice
to Executive, terminate this Agreement
without cause at any time during the first
six months of the Term upon the condition
that Executive shall be entitled, as
liquidated damages in lieu of all other
claims, to: (A) monies already paid; (B)
monies owed for the 30 day notice period;
(C) the payment of Executive's base salary
for a period of six months; and (D) any
bonus or profit sharing accrued through the
date of termination. The termination of
Executive's employment "without cause" shall
not entitle the Bank to enforcement of the
non-competition and non-solicitation
covenants contained in Section 12 hereof.
(ii) After the first six months of the Term, the
Bank may, upon 30 days' written notice to
Executive, terminate this Agreement without
cause at any time during the Term upon the
condition that Executive shall be entitled,
as liquidated damages in lieu of all other
claims, to: (A) monies already paid; (B)
monies owed for the 30 day notice period;
(C) the payment of Executive's base salary
for a period of twelve months, and (D) any
bonus or profit sharing accrued through the
date of termination. The severance payments
provided for in this Section 10(b) shall
commence not later than thirty 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.
15
(iii) Executive may upon 30 days' written
notice to Employer terminate this Agreement
without cause at any time during the Term.
In the event of termination of this
Agreement by Executive, the Bank shall have
no obligation to Executive and the Bank
shall be entitled to enforcement of the
non-competition and non-solicitation
covenants contained in Section 12 hereof.
(iv) In the event this Agreement is
terminated without cause by the Bank, any of
Executive's stock options, whether or not
vested on the date of termination, may be
exercised by Executive within 60 days from
the date of termination, at which time all
such options shall expire.
(v) In the event this Agreement is
terminated without cause by the Executive,
any of Executive's stock options that are
not vested shall expire, and any vested
stock options may be exercised by Executive
within 60 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 Bank as defined herein, Executive's designated beneficiary or his estate,
as the case may be, shall be entitled to the benefits of Section 9(a) 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 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 Bank or its affiliate, he shall be deemed to
be disabled as provided herein without further proof. Executive shall make
himself available for and submit to such examinations by said physician as may
be directed from time to time by the physician. Failure to submit to any such
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) Executive recognizes and acknowledges that the Bank's customers and
the specific needs of such customers are essential to the success of its
business and its continued good will. Executive covenants and agrees that in the
event his employment relationship with the Bank is terminated for any reason
whatsoever, other than termination pursuant to Sections 10(b)(i) or 10(b)(ii),
Executive shall not, for a period of one (1) year following the termination of
Executive's employment with the Bank, directly or indirectly, alone or in
association with or on behalf of any other person or entity, (i) solicit, (ii)
accept Business from, or (iii) perform any service for any person or entity who
was a customer of the Bank at any time during the 12 months preceding the
termination of Executive's employment with the Bank for the purpose of competing
with the Business of the Bank. For purposes of this Agreement, "Business" means
mortgage lending and wholesale mortgage lending.
(c) Executive recognizes and acknowledges that the Bank's employees are
essential to the success of its business and its continued good will. Executive
covenants and agrees that in the event his employment relationship with the Bank
is terminated for any reason whatsoever, other than termination pursuant to
Sections 10(b)(i) or 10(b)(ii), Executive shall not, for a period of one (1)
year following the termination of Executive's employment with
16
the Bank, directly or indirectly, alone or in association with or on behalf of
any other person or entity, (i) solicit, (ii) employ, or (iii) cause to be
employed any person who was an employee of the Bank at any time during the 12
months preceding the termination of Executive's employment with the Bank for the
purpose of competing with the Business of the Bank.
(d) 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 rights granted to Executive pursuant to Sections 8(b) and 8(c)
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 of this Section 12 or elsewhere in this Agreement.
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 its principal office in the case of
Employer.
14. Waiver of Breach. The waiver by Employer to 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)
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
"BANK"
FIRST NATIONAL BANK OF NASSAU COUNTY
By: /s/ Xxxxxxx Xxxxxxx, President
---------------------------------------
"EXECUTIVE"
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
XXXXXXX X. XXXXXX
18
