Exhibit 10.1
Transition Employment Agreement
between the Company and Xxxxxxx X. Xxxxxxx dated May 21, 0000
Xxxxxxx 00.0
XXXXX XX XXXXXXX )
) TRANSITION EMPLOYMENT
COUNTY OF NASSAU ) AGREEMENT
This
Transition Employment Agreement (the “Agreement”) is entered into this 21st day
of May, 2003, by and among First Capital Bank Holding Corporation, a Florida corporation
(the “Company”), First National Bank of Nassau County, a national bank 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”).
W I T N E S S E T H
WHEREAS,
the Bank is a national bank organized under the laws of the United States and operating in
Nassau County, Florida; and
WHEREAS,
Executive is the President and Chief Executive Officer of the Bank and the Company; and
WHEREAS, Executive
and the Bank entered into an Amended and Restated Employment Agreement dated September 1,
1998; and
WHEREAS,
the term of Executive’s employment with Employer under the Employment Agreement ends
on August 15, 2003, and the parties desire to enter into this Agreement to set forth the
intentions of the parties regarding the transitioning of Executive’s resignation from
all positions he holds with the Bank and the Company and the termination of his
employment; and
NOW,
THEREFORE, in consideration of the mutual promises, covenants and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Executive and Employer hereby agree as follows:
1.
Continuation of Executive’s Employment. Executive
agrees to continue as the President and Chief Executive Officer of Employer for
a period up to 180 days from the date of this Agreement, as determined by the
Board of Directors of Employer based on the needs of the Board of Directors and
at the sole discretion of the Board of Directors, provided however, that such
employment shall not extend beyond 180 days from the date of this Agreement. If
the Board of Directors determines that Executive’s employment shall
terminate prior to 180 days from the date of this Agreement, Employer shall
provide to Executive two weeks notice of its intent to terminate Executive.
Executive acknowledges and agrees that he has a good faith intention to remain
with Employer so long as Employer is in need of his services and up to 180 days.
In the event Executive desires to terminate his employment prior to the Board of
Directors’ termination of his employment, Executive shall give two weeks
notice of his intent to terminate his employment.
Upon the termination of
Executive’s employment with Employer (the “Termination Date”), Executive
shall resign from any and all positions he holds with the Bank and the Company, including
his position as a member of the Board of Directors of Employer; provided, however, in the
event the Termination Date is prior to July 27, 2003, Executive may, in his discretion,
remain on the Board of Directors until July 27, 2003, at which time he shall resign his
position on the Board. The parties have agreed upon a resignation letter setting forth
Executive’s resignation from the Board of Directors, which will be signed by
Executive. Employer will compensate Executive pursuant to the terms of the Employment
Agreement through the Termination Date.
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2. |
Severance Payment. Commencing on the Termination Date,
Employer shall pay to Executive a severance as follows: |
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(a) |
Standard Severance. The sum equal to 12 months of wages, minus applicable
withholdings, with such payment to commence not later than thirty (30) days
following the Termination Date and to continue on a monthly basis until paid in
full. |
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(b) |
Bonus Severance. In the event Executive continues his employment with
Employer until such time (up to 180 days from the date hereof) as the Board of
Directors determines, in its sole discretion, that Executive’s services are
no longer needed pursuant to Section 1 above, and provided that Executive does
not terminate his employment or breach this Agreement prior to that date,
Employer shall pay to Executive an additional sum equal to 12 months of wages,
minus applicable withholdings (the “Bonus Severance”). In the event
Executive is entitled to the Bonus Severance, it shall be paid in a lump payment
on January 15, 2004. |
In the event Executive fails to
comply with the provisions of this Agreement or otherwise breaches this Agreement,
Employer shall have no obligation to pay Executive the severance payments set forth above.
The language of this paragraph shall not constitute a liquidated damages provision and in
no way limits or prevents Executive or Employer from seeking monetary and other relief,
whether at law or equity, available to it as a result of a breach of this Agreement.
Except as set forth in this Agreement, Executive acknowledges and agrees that no further
sums or payments are due to him from either the Company or the Bank, and he makes no claim
to any further sums under the Employment Agreement or otherwise.
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3. |
Accrued Incentive Compensation Bonus. Employer shall pay to
Executive any accrued incentive compensation bonus that is due and payable to
Executive, as described in the Employment Agreement, after the Termination Date,
within thirty (30) days following the filing of the 10Q. |
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4. |
Health Insurance. Employer shall provide to Executive
health insurance coverage, in the same amounts and limited to the same premiums
that Employer is paying for Executive’s health insurance as of the date of
this Agreement, for a period equal to the lesser of (a) one year beginning on
the Termination Date or (b) from the Termination Date until such date that the
Executive obtains employment that offers health insurance to its employees. |
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5. |
Life Insurance. For a period of one year from the
Termination Date, Employer shall pay for the premiums necessary to maintain the
life insurance policy identified as policy number ________. |
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6. |
Company Car. Upon the Termination Date, Executive shall
receive the automobile which Executive has been using as an employee of
Employer, free and clear of any liens. |
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7. |
Stock Warrants. The parties acknowledge that the stock
warrants held by Executive are 80% vested as of the date of this Agreement, with
the remaining 20% vesting on July 26, 2003 (the “Vesting Date”),
provided that, as contemplated by the FDIC policy statement on organizer
warrants, Executive remains a director of Employer as of the Vesting Date. The
parties agree that Executive may remain on the Board of Directors through July
27, 2003, regardless of whether Executive’s employment with Employer is
terminated prior to that date. |
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8. |
Stock Options. Executive shall have a period of three years
following the Termination Date in which to exercise the stock options granted to
Executive pursuant to the Stock Option Agreement dated October 27, 1999 (the
“Stock Option Agreement”). In return for such extension of the stock
option period, Executive agrees to be bound by the restrictive covenants
contained in Section 12 and 13 hereof. The Employer has previously granted to
Executive stock options for an aggregate of 30,000 shares of common stock, of
which 24,000 shares have vested prior to the date hereof. The Employer agrees
that, notwithstanding a provision to the contrary in the Stock Option Agreement,
the options for all 30,000 shares shall be vested upon the Termination Date and
shall remain exercisable for a period of three years from the Termination Date,
subject to the other terms specified in such agreement. Executive acknowledges
that, because of these changes to the terms of his Stock Option Agreement, his
options will not qualify as Incentive Stock Options under the Internal Revenue
Code. The parties agree that this section amends the Stock Option Agreement to
reflect the changes described herein. |
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9. |
Reference for Executive. At Executive’s request,
Employer shall provide a letter of reference for Executive. This obligation on
the part of Employer shall be in effect from the date of this Agreement until 6
months following the Termination Date. |
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(a) |
By Executive: As a material inducement to Employer to make the promises
described herein, Executive, for himself, his spouse, heirs, representatives,
and assigns, does hereby release and forever discharge Employer and all
respective officers, directors, shareholders, owners, agents employees and
affiliated companies from any actions, suits, proceedings, claims, grievances,
charges of discrimination or other claims filed with administrative agencies,
causes of action or actions for reinstatement or damages, debts, dues, sums of
money, accounts, benefits, reckonings, covenants, contracts, agreements,
promises, damages, claims for damages, costs and expenses, attorneys’ fees,
and any and all claims, demands, or liabilities whatsoever of every name and
nature, whether known or unknown, accrued or unaccrued, now existing or which
may develop in the future, in law, equity, or otherwise, which Executive ever
had, now has, or hereafter can, shall or may have against Employer, their
respective officers, directors, shareholders, owners, agents employees or
affiliated companies, individually, severally, jointly, collectively,
derivatively or otherwise, for, upon or by reason of any matter, cause or thing
whatsoever, including but not limited to, any and all charges arising out of:
Title VII of the Civil Rights Act of 1964, as amended; the Age Discrimination in
Employment Act, as amended; the Older Workers’ Benefit Protection Act, the
Rehabilitation Act of 1973; the Employee Retirement Income Security Act of 1974,
as amended; the Americans With Disabilities Act, as amended, 42 U.S.C.
§§ 12101, et seq.; 42 U.S.C. §§ 1981, 1985,
1986, and 1988; the Family and Medical Leave Act of 1993; the Fair Labor
Standards Act; the Consolidated Omnibus Reconciliation Act of 1985; the
Constitution, statutes, regulations or executive orders of the United States
and/or the State of Florida; the common law, including but not limited to
contractual claims and both intentional and unintentional tort claims; and any
claim or action, whether known or unknown, accrued or unaccrued, now existing or
which may develop in the future, which Executive ever had, now has, or hereafter
can, shall or may have against the Released Parties, their respective officers,
directors, shareholders, owners, agents employees or affiliated companies,
individually, severally, jointly, collectively, derivatively or otherwise,
arising out of, as a consequence of, for or by reason of, resulting from, or
relating in any way to the relationship and severing of this relationship
between Executive and Employer; including, but not limited to, any claims
arising out of the Employment Agreement; provided, however, that this Agreement
shall not in any way affect the right of Executive to seek specific enforcement
of this Agreement or to xxx for a breach thereof. |
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(b) |
By Employer. The Employer does hereby release and forever discharge
Executive, his spouse, his heirs, personal representatives, and assigns, from
any and all claims, actions, and causes of action, which Employer ever had, now
has or may have had against Executive, for, upon or in any manner arising from
or in connection with Executive’s employment by Employer, except (i) any
debts or obligations that Executive owes or has to Employer as of the date of
this Agreement; (ii) any claim or debt, unknown to Employer’s officers and
directors as of the date of this Agreement, resulting from any illegal or
fraudulent conduct by Executive during his employment with Employer that
adversely affects the Company or the Bank, or (iii) any claim arising out of
Executive’s breach of any covenant contained in Section 12 of the
Employment Agreement or Section 13 of this Agreement; such covenants shall
survive the termination of Executive’s employment and the Employment
Agreement. Nothing herein shall in any way affect the right of the Executive to
seek specific enforcement of this Agreement or to xxx for a breach thereof. |
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11. |
Return of Executive Property. Executive represents and
warrants that, upon the Termination Date, he shall deliver any and all
documents, materials or other objects or things (and any copies or duplicates of
such things) in his possession, custody or control which relate to the
operations or business of the Company or the Bank, regardless of whether or not
the documents or materials or other things were prepared by Executive. |
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12. |
Covenants in Employment Agreement. Executive reaffirms and
agrees to abide by the covenants contained in Section 12 of the Employment
Agreement, a copy of which is attached hereto as Exhibit A and
incorporated herein by reference, as amended by this Section, and acknowledges
and agrees that (a) there was valid consideration for such covenants at the time
given and separate and independent consideration exists at this time for such
covenants and for the amendment of such covenants as set forth herein, in the
form of the promises made herein; (b) such covenants are reasonable in scope and
necessary for the legitimate interests of Employer; (c) Executive has not
breached any covenant or portion thereof contained in Section 12 of the
Employment Agreement that is applicable during Executive’s employment. |
The parties agree that Section 12 of
the Employment Agreement is hereby amended to extend the time period of the covenant not
to compete to a period of two (2) years from the Termination Date, rather than 12 months,
as set forth in the Employment Agreement. Except as set forth herein, the covenant not to
compete is unchanged and remains in full force and effect. Executive agrees that valid
consideration has been given for the extension of the time period of the covenant not to
compete in the form of the vesting of his remaining options and an extension of the time
period in which he can exercise his stock options, such time period being extended from 30
days to three years from the Termination Date.
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13. |
Additional Covenants. In consideration of the promises and
terms and conditions set forth in this Agreement, Executive covenants and agrees
as follows: |
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(a) |
During Executive’s employment and at all times thereafter, Executive shall
not use any Trade Secrets of Employer, except as an employee of Employer with
the consent of Employer. Executive further covenants and agrees that during
Executive’s employment and at all times thereafter, Executive shall not use
or disclose any Trade Secrets of Employer to any firm, company, corporation,
association or other entity, for any reason or purpose whatsoever, except as an
employee of Employer with the consent of Employer. |
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The
term “Trade Secret(s)", as used herein, shall be defined as set forth in the
“Florida Uniform Trade Secrets Act” (Fla. Stat. Xxx. § 688.001 et. seq.)
which currently defines Trade Secrets as information, including, a formula, pattern,
compilation, program, device, method, technique, or process, that: (i) derives independent
economic value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by other persons who can obtain economic value from
its disclosure or use, and (ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy. |
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(b) |
Executive shall not, directly or indirectly, alone or in association with or on
behalf of any other person or entity, solicit any person or entity who was a
customer of the Bank during the last 12 months of Executive’s employment
with Employer. |
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Executive
recognizes and acknowledges that Employer’s customers and the specific needs of such
customers are essential to the success of Employer’s Business and its continued good
will and that information regarding its customers is a property interest of Employer,
having been developed by Employer at great effort and expense. |
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(c) |
Executive covenants and agrees that, upon the Termination Date and for a period
of one year thereafter, Executive shall not, directly or indirectly, alone or in
association with or on behalf of any other person or entity, solicit any person
who was an employee of the Bank as of the Termination Date or any time between
the date of this Agreement and the termination date. |
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14. |
Remedies for Breach. Executive recognizes and agrees that a
breach by Executive of any covenant contained in this Agreement, including
specifically Section 12 of the Employment Agreement, as amended, would cause
immeasurable and irreparable harm to Employer. In the event of a breach or
threatened breach of any such covenant, Employer shall be entitled to temporary
and permanent injunctive relief, restraining Executive from violating or
threatening to violate any covenant contained herein. The parties agree that the
relief described herein is in addition to such other and further relief as may
be available to Employer at equity or by law. Nothing herein shall be construed
as prohibiting Employer from pursuing any other remedies available to it for
such breach or threatened breach, including the recovery of damages from
Executive. |
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15. |
No Breach by Employer. Executive represents and warrants
that as of the date of this Agreement there has been no breach of the Employment
Agreement by Employer and the terms of this Agreement do not result in a breach
by Employer. |
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16. |
Binding Agreement. This Agreement shall bind and inure to
the benefit of the Bank and the Company, their respective successors and
assigns, and Executive and his or her heirs and legal representatives.
Executive’s rights and obligations under this Agreement are personal and
not assignable. This Agreement may be assigned by Employer upon written notice
to Executive at his last known address as reflected in Employer’s records. |
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17. |
No Waiver. No waiver of a breach of any provision of this
Agreement shall be construed to be a waiver of any breach of any other
provision. No delay with regard to enforcement of any breach of any provision of
this Agreement shall be construed to be a waiver of such breach. |
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18. |
Covenants are Necessary. The parties agree that the
foregoing covenants in this Agreement are necessary for the legitimate business
interests of Employer and impose a reasonable restraint on Executive in light of
the activities and business of Employer on the date of the execution of this
Agreement. |
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19. |
Modifications. Any revisions or modifications of this
Agreement must be in writing and must be signed by both parties hereto to be
effective. |
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20. |
Entire Agreement. This Agreement (which includes Section 12
of the Employment Agreement) represents the entire agreement between the
parties, and there are no other agreements, express or implied, between them.
The Employment Agreement is amended by this Agreement, and the severance and
termination provisions of the Employment Agreement are superseded by this
Agreement. Any prior agreements, written or oral, are superseded by this
Agreement, provided, however, that the Stock Option Agreement between Executive
and the Company and the Stock Purchase Warrant to Purchase Shares of Common
Stock dated May 26, 1999, both remain in full force and effect as amended by
this Agreement. |
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21. |
Severability and Substitution of Valid Provisions. The
parties agree that the covenants contained herein are to be construed as
agreements independent of each other. Should any provision of this Agreement be
determined to be invalid by a court or government agency of competent
jurisdiction, the remainder shall remain in full force and effect. Further, to
the extent that any provision of this Agreement is deemed unenforceable, the
parties agree that the covenant or provision shall be enforced to the fullest
extent possible under the laws and public policies of the State of Florida. |
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22. |
Confidentiality. Any and all materials concerning this
Agreement will be regarded as privileged communication between the parties and
they will not disseminate or release such matters by publication of any sort, in
any manner or means, to any person or persons. The content of this Agreement and
Release will not be disclosed other than to the parties, their family members,
accountants or attorneys on a need to know basis. |
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23. |
Opportunity to Review. Executive has been provided an
opportunity to review this document and discuss it with his chosen counsel
before signing it. Executive represents that he is freely and voluntarily
signing this Agreement in exchange for the benefits provided herein. Executive
represents and warrants that he has been given a period of at least 21 days to
consider the Agreement; that he has read the Agreement in its entirety and
understands the meaning and effect of each of its paragraphs, that he is signing
this Agreement of his own free will with the intent of being bound by it. |
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24. |
Right to Revoke Agreement. Executive may revoke this
Agreement at any time within a period of seven days of the execution of this
Agreement by providing Employer with written notice of such revocation. Upon
revocation, Executive shall return to Employer any payments that have been made
to Executive hereunder. If written notice of revocation is not given to Employer
by the end of the seventh day following the execution of this Agreement, there
shall be no further right of revocation. |
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25. |
Applicable Law and Choice of Forum. This Agreement shall be
interpreted in accordance with the laws of the State of Florida. Further, both
parties agree that any action brought to enforce this Agreement must be brought
within a court of competent jurisdiction located within Nassau County, Florida. |
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
Witnesses: First National Bank of Nassau
x/ Witness By: /s/ Xxxxxxx Xxxxxxxx Xxxxxx
x/ Witness Its: Chairman
Witnesses: First Capital Bank Holding Corporation
x/ Witness By: /s/ Xxxxxxx Xxxxxxxx Xxxxxx
x/ Witness Its: Chairman
Witnesses: Executive:
x/ Witness By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
x/ Witness
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