AMENDMENT NO. 2

 
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Exhibit 10.4
AMENDMENT NO. 2
TO THE
U.S. CENTURY BANK
THIS AMENDMENT NO.2
 
(the “Amendment”) to
 
the Employment Agreement
 
between
U.S.
 
Century
 
Bank,
 
a
 
Florida-chartered
 
commercial
 
bank
 
(the
 
“Bank”
 
or
 
the
 
“Employer”),
 
and
Xxxx de xx Xxxxxxxx (the “Executive”) dated April 16, 2016 (the “Agreement”),
 
is hereby effective
as of April 30, 2019 (“Amendment Effective Date”).
WHEREAS,
 
the Executive
 
is presently
 
employed as
 
the Chief
 
Executive Officer
 
of the
Bank;
WHEREAS,
 
the
 
Bank
 
and
 
the
 
Executive
 
previously
 
entered
 
into
 
the
 
Agreement,
 
as
amended pursuant
 
to the
 
terms of
 
the First
 
Amendment to the
 
Agreement dated
 
as of
 
April 4,
 
2019;
WHEREAS,
 
upon
 
consideration,
 
the
 
Bank
 
and
 
the
 
Executive
 
wish
 
to
 
adopt
 
certain
mutually agreed revisions to the Agreement;
WHEREAS,
 
the
 
Bank
 
desires
 
to
 
be
 
ensured
 
of
 
the
 
Executive’s
 
continued
 
active
participation in the business of the Employer under such revised terms; and
 
WHEREAS,
 
the Executive is
 
willing to
 
serve the
 
Employer on the
 
terms and
 
conditions
set forth in the Agreement, as amended by this Amendment.
NOW THEREFORE,
 
in consideration of the premises and the mutual agreements herein
contained, the Employer and the Executive do hereby agree to amend the Agreement as follows:
1.
Section 2(a) of the Agreement be and hereby is
 
rescinded and deleted and replaced
in its entirety by the following:
(a)
 
The
 
Bank
 
hereby
 
employs
 
the
 
Executive
 
as
 
Chief
 
Executive
 
Officer
 
and
 
the
Executive hereby
 
accepts said
 
employment and
 
agrees to
 
render such
 
services to
the Employer on the terms and conditions set forth in this
 
Agreement. The term of
employment under
 
this Agreement
 
shall be
 
for a
 
term ending
 
April 30,
 
2022 (the
“Initial
 
Amended
 
Term”).
 
Prior
 
to
 
April
 
30,
 
2021
 
(the
 
“Extension
 
Anniversary
Date”) and each annual
 
anniversary thereafter of the
 
Extension Anniversary Date,
the
 
Board
 
of
 
Directors
 
of
 
the
 
Bank
 
shall
 
consider
 
and
 
review
 
(with
 
appropriate
corporate documentation thereof, and after taking into account all relevant factors,
including the Executive’s performance hereunder) a
 
one-year extension of the
 
term
of this Agreement.
 
If the Board
 
of Directors approves
 
such extension, then
 
the term
of this Agreement shall be so extended as of the relevant annual anniversary of the
Extension
 
Anniversary
 
Date
 
unless
 
the
 
Executive
 
gives
 
written
 
notice
 
to
 
the
Employer
 
of
 
the
 
Executive’s
 
election
 
not
 
to
 
extend
 
the
 
term,
 
with
 
such
 
written
notice to
 
be given
 
not less
 
than thirty
 
(30) days
 
prior to
 
any such
 
relevant annual
anniversary of the Extension Anniversary
 
Date. If the Board of
 
Directors elects not
 
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to extend the term, it shall give
 
written notice of such decision to the
 
Executive not
less
 
than
 
thirty
 
(30)
 
days
 
prior
 
to
 
any
 
such
 
annual
 
anniversary
 
of
 
the
 
Extension
Anniversary Date.
 
If any
 
party gives
 
timely notice
 
that the
 
term will
 
not be
 
extended
as
 
of
 
any
 
annual
 
anniversary
 
of
 
the
 
Extension
 
Anniversary
 
Date,
 
then
 
this
Agreement
 
and
 
the
 
rights
 
and
 
obligations
 
provided
 
herein
 
shall
 
terminate
 
at
 
the
conclusion
 
of
 
its
 
remaining
 
term,
 
except
 
to
 
the
 
extent
 
set
 
forth
 
in
 
Section
 
7.
References
 
herein
 
to
 
the
 
term
 
of
 
this
 
Agreement
 
shall
 
refer
 
both
 
to
 
the
 
Initial
Amended Term
 
and successive terms as the term of
 
this Agreement is extended in
accordance with the terms hereof.
2.
Section 3(a)
 
be and
 
hereby is
 
amended to
 
delete the
 
reference to
 
“$350,000” and
replace such reference with “$450,000”.
 
3.
A new Section 3(g) is added which reads in its entirety as follows:
(g)
 
The Board of Directors will grant to the Executive (pursuant to a written grant
agreement) nonqualified
 
stock options
 
to purchase
 
two hundred
 
thousand (200,000)
shares
 
of
 
common
 
stock
 
of
 
the
 
Bank,
 
with
 
an
 
exercise
 
price
 
of
 
two
 
dollars
 
and
twenty-seven cents ($2.27) per share (which
 
is the fair market value per share)
 
(the
“Option Grant”), with such options to be designed in a manner to cause them to be
exempt from
 
Section 409A
 
of the
 
Internal Revenue
 
Code under
 
Section 1.409A-
1(b)(5)(i)(A)
 
of
 
the
 
United
 
States
 
Department
 
of
 
the
 
Treasury
 
Regulations.
 
This
grant shall vest as follows: options covering 66,666 shares of common
 
stock of the
Bank shall vest
 
on April
 
1, 2021; and
 
options covering 66,667
 
shares of
 
common
stock of the Bank shall vest on
 
April 1, 2022. Options may be
 
exercised after they
become vested
 
and prior
 
to the
 
expiration of
 
the
 
options,
 
provided such
 
exercise
does
 
not
 
constitute
 
an
 
“ownership
 
change”
 
for
 
the
 
Bank
 
within
 
the
 
meaning
 
of
Section 382
 
of the
 
Code. In
 
addition to
 
the other
 
vesting dates/events
 
set forth
 
in
such grant, such Option Grant shall provide for accelerated vesting upon a Change
in Control.
 
The other
 
terms of
 
the Option
 
Grant award
 
shall comply
 
with the
 
Bank’s
2015 Equity Incentive Plan.
4.
Section 5(f)
 
be and
 
hereby is
 
rescinded and
 
deleted and
 
is replaced
 
in its
 
entirety
by the following:
(f) In the event
 
that concurrently with or
 
within twelve (12) months
 
subsequent to
a Change in Control the Executive's
 
employment is terminated by (i) the Employer
for other
 
than Cause,
 
Disability, Retirement or
 
the Executive's
 
death during
 
the term
of
 
this
 
Agreement or
 
(ii)
 
the
 
Executive for
 
Good
 
Reason
 
during
 
the
 
term
 
of
 
this
Agreement, then
 
the Employer
 
shall, in
 
consideration of
 
the Executive's
 
agreements
in Section 7
 
below and subject to
 
the provisions of Sections
 
5(g), 5(h), 6, 18
 
and 19
hereof, if
 
applicable, pay to
 
the Executive
 
a Cash
 
severance amount
 
(the "Enhanced
Severance
 
Payment")
 
equal
 
to
 
2.99
 
times
 
the
 
Executive's
 
"Highest
 
Annual
Compensation"
 
(as
 
such
 
term
 
is
 
defined
 
herein).
 
For
 
purposes
 
hereof,
 
"Highest
Annual
 
Compensation"
 
shall
 
mean
 
the
 
highest
 
aggregate
 
amount
 
of
 
Base
 
Salary
and cash bonus
 
received by the
 
Executive in a
 
given calendar year
 
from the Bank
(excluding
 
any
 
deferred
 
amounts)
 
during
 
the
 
most
 
recent
 
three
 
calendar
 
years
immediately
 
preceding
 
the
 
year
 
in
 
which
 
the
 
Date
 
of
 
Termination
 
occurs.
 
The
 
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Enhanced Severance Payment shall be
 
paid in two installments. The first
 
payment
consisting of 50% of the Enhanced Severance Payment will be paid in a lump sum
thirty (30) days following
 
the later of the Date
 
of Termination
 
or the expiration of
the
 
revocation
 
period
 
provided
 
for
 
in
 
the
 
general
 
release
 
to
 
be
 
executed
 
by
 
the
Executive pursuant to
 
Section 5(g)
 
below, with the remaining 50%
 
of the Enhanced
Severance
 
Payment
 
to
 
be
 
paid
 
in
 
a
 
lump
 
sum
 
within
 
ten
 
(10)
 
days
 
after
 
the
expiration of the Restricted Period as set forth
 
in Section 7 hereof. In addition,
 
the
Executive shall
 
receive continued
 
medical and
 
dental benefits
 
as provided
 
by the
Bank
 
from
 
time
 
to
 
time
 
for
 
its
 
employees,
 
with
 
the
 
Bank
 
paying
 
100%
 
of
 
the
premiums for such coverage, for the period of time equal to the shorter of
 
eighteen
(18) months
 
or the
 
maximum
 
period of
 
COBRA continuation
 
coverage provided
under Section 4980B(f)
 
of the Code
 
(with such coverage to
 
be treated as
 
COBRA
coverage). If the Bank's payment of COBRA premiums on behalf of the Executive
is taxable
 
to the
 
Executive, then
 
the Bank
 
will pay
 
to the
 
Executive an
 
additional
amount such that
 
after payment by
 
the Executive of
 
all applicable local,
 
state and
federal income and
 
payroll taxes
 
imposed on him
 
with respect to
 
such
 
additional
 
amount,
 
the
 
Executive retains
 
an
 
amount
 
equal
 
to
 
all
 
applicable local,
 
state
 
and
federal income and payroll taxes imposed upon him with respect
 
to the payment of
such
 
COBRA
 
premiums.
 
Such
 
payment
 
shall
 
be
 
made
 
on
 
or
 
before
 
March
 
15th
following the close
 
of the calendar
 
year in which
 
the COBRA premiums were
 
paid.
Except as
 
provided herein, the
 
Enhanced Severance
 
Payment shall be
 
in lieu
 
of, and
not in
 
addition to,
 
any Base
 
Salary or
 
other compensation
 
or benefits
 
that
 
would
have been
 
paid under
 
Sections 3(a),
 
3(b), 3(c)
 
and 3(d)
 
above in
 
the absence
 
of a
termination of employment, and the Executive shall have no rights pursuant to this
Agreement to any Base Salary or
 
other benefits for any period
 
after the applicable
Date of Termination.
5.
All other sections and provisions in the
 
Agreement shall continue in full force and
effect and are not affected by this Amendment.
 
exhibit104p4i0.jpg
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A-4
IN
 
WITNESS
 
WHEREOF,
 
the
 
parties
 
have
 
executed
 
this
 
Amendment
 
No.
 
2
 
to
 
the
Agreement as of the date first written above.
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Filed: March 24th, 2022
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