EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement"), dated as of the _____ day of
____________________ 1998, by and among Marine Bancshares, Inc., a Florida
corporation (the "Company"), Marine National Bank (Proposed), a proposed
national bank to be 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. Xxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the directors of the Company, 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, Executive is willing to assist the directors of the Company in
the organization of the Bank and to become the President and Chief Executive
Officer of the Bank and the Company 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. CONSULTING SERVICES. From June 15, 1998 through such time as the
Bank opens for business, Executive shall serve as a consultant to Employer for
the purpose of assisting with the organization of the Bank and the Company, and
as a consultant Executive shall be deemed to be an independent contractor.
Executive shall be paid $______ per month, payable bi-weekly, for such
consulting services.
2. EMPLOYMENT. Employer employs Executive and Executive accepts
employment upon the terms and conditions set forth in this Agreement.
3. TERM. The term of employment of Executive under this Agreement
shall be the three year period commencing on the date the Bank opens for
business.
4. COMPENSATION. (a) SALARY. For all services rendered by Executive,
Executive shall be paid an annual base salary of $120,000, payable in equal
semi-monthly installments during the term of this Agreement. Salary payments
shall be subject to withholding and other applicable taxes. Such base salary may
be increased from time to time in the sole discretion of the Board of Directors
of the Bank.
(b) BONUS. Beginning on the second anniversary of the Bank's
opening for business, and in addition to Executive's base salary, Executive
shall be eligible to receive such performance bonuses as may be determined in
the discretion of the Board of Directors of the Bank, which bonuses may be in
amounts up to fifty percent (50%) of Executive's base salary. No bonus shall be
payable, however, unless the following conditions shall have been fulfilled:
(i) Prior to the granting of any bonus to Executive, 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 Bank's
internal controls, loan documentation, credit
underwriting, interest rate exposure, asset growth,
asset quality, earnings, 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.
5. TITLE AND DUTIES. Executive shall serve as President and as Chief
Executive Officer of the Bank once the OCC has granted preliminary charter
approval and a member of the Interim Board of Directors and the initial Board of
Directors of the Bank. Executive shall run the day-to-day activities of the Bank
and oversee the Bank, within the framework of the approved annual budget, and
with a sound system of internal controls and in compliance with the policies of
the Board of Directors of the Bank, and all applicable laws and regulations.
Executive shall also serve as President and as Chief Executive Officer of the
Company, and the Company shall nominate Executive for election by the
shareholders as a director of the Company for the term of this Agreement.
6. 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.
7. EXPENSES. Executive may incur reasonable expenses for promoting
the business of the Bank, including expenses for entertainment, travel, and
similar items. Executive will
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be reimbursed for all such expenses upon Executive's monthly presentation of an
itemized account of such expenditures.
8. 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 time Executive's compensation shall be paid in full.
9. ADDITIONAL COMPENSATION. As additional consideration paid to
Executive, Executive shall be provided with health, hospitalization, disability
and term life insurance, and participation in the Bank's incentive compensation
plan (in the event one is adopted by the Board of Directors of the Bank). In
addition, Executive shall be paid $600 per month as an automobile allowance. The
Company shall also grant to Executive options to purchase 25,000 shares of
Common Stock of the Company at a purchase price of $10.00 per share pursuant to
the Company's Incentive Stock Option Plan, as soon as practicable after the Bank
commences business. Twenty (20%) of these options shall vest beginning on the
date the Bank commences business and twenty (20%) shall vest on each of the four
successive anniversaries of the Bank's opening for business. All options shall
be exercisable for a period of seven (7) years from the date of grant.
10. CHANGE IN CONTROL OF THE COMPANY. In the event of a "change in
control" of the Company, as defined herein, Executive shall be entitled, for a
period of thirty (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 two
hundred percent (200%) of 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 10(a) shall be paid in cash,
commencing not later than ten (10) days after the date of notice of termination
by Executive under this Section 10 or ten (10) days after the date of closing of
the transaction effecting the change in control of the Company, whichever is
later.
(b) For purposes of this Section 10, "change in control" of the
Company 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 or entities
acting in concert, of 50% or more of the outstanding
shares of Common Stock of the Company;
(ii) the sale of all or substantially all of the assets
of the Company; or
(iii) the liquidation of the Company.
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11. TERMINATION. (a) FOR CAUSE. This Agreement may be terminated by
the Board of Directors of the Bank without notice and without further obligation
for any of the following reasons:
(i) receipt by the Bank of written notice from the OCC
that the OCC has criticized Executive's performance
or his area of responsibility, and has either (a)
rated the Bank a "4" or a "5" under the Uniform
Financial Rating System or (b) has determined that
the Bank is in a "troubled condition" as defined
under Section 914 of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989;
(ii) failure of Executive to follow reasonable written
instructions or policies of the Board of Directors of
the Bank;
(iii) 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;
(iv) arrest for, charge in relation to (by criminal
information, indictment or otherwise) or conviction
of Executive during the term of this Agreement of a
crime involving breach of trust or moral turpitude;
or
(v) breach by Executive of any material term of this
Agreement.
In the event that the Bank discharges Executive alleging
"cause" under this Section 11(a) 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 11(b) hereof. In
the event that the Bank discharges Executive alleging "cause" under this Section
11(a), such notice of discharge shall be accompanied by a written and specific
description of the circumstances alleging such "cause." The termination of
Executive for "cause" shall not entitle the Bank to enforcement of the
non-competition covenants contained in Section 13 hereof.
(b) WITHOUT CAUSE.
(i) The Bank may, upon thirty (30) days' written notice
to Executive, terminate this Agreement without cause
at any time during the term of this Agreement upon
the condition that Executive shall be entitled, as
liquidated damages in lieu of all other claims, to
the payment of his base salary for a period of six
months. The severance payments provided for in this
Section 11(b) shall commence not later than thirty
(30) days after the actual date of termination of
employment of Executive. The termination of Executive
"without cause" shall not
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entitle the Bank to enforcement of the
non-competition covenants contained in Section 13
hereof.
(ii) Executive may, upon thirty (30) days' written notice
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,
the Bank shall have no further obligation to
Executive and the Bank shall be entitled to
enforcement of the non-competition covenants
contained in Section 13 hereof.
(iii) In the event this Agreement is terminated without
cause, whether by Executive or by the Bank, any stock
options or unexercised portion thereof, granted
pursuant to Section 9 of this Agreement, 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.
12. DEATH OR DISABILITY. In the event of Executive's death, Employer
shall continue to pay to Executive's designated beneficiary, or, if Executive
has failed to designate a beneficiary, to his estate, the periodic payments of
Executive's base salary pursuant to Section 4 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 in the event of a change in
control of the Company, as defined herein, Executive's designated beneficiary or
his estate, as the case may be, shall be entitled to the benefits of Section 10
hereof. The Bank may maintain insurance on its behalf to satisfy in whole or in
part the obligations of this Section 12.
In the event of Executive's disability, as hereinafter defined,
Employer shall pay to Executive the periodic payments of base salary then in
effect through the end of the month in which Executive became disabled.
Executive shall be deemed to have a "disability" 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 Company or the Bank, 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.
13. NON-COMPETITION. Executive acknowledges that he has performed
services or will perform services hereunder which directly affect Employer's
business. Accordingly,
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the parties deem it necessary to enter into the protective agreement set forth
below, the terms and condition of which have been negotiated by and between the
parties hereto.
(b) In the event of termination of employment under this
Agreement by action of Executive pursuant to Section 10(b)(ii) 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 executive officer of any bank, bank holding
company or other financial institution.
(c) The covenants of Executive set forth in this Section 13 are
separate and independent covenants for which valuable consideration has been
paid, the receipt 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 13, then, as partial
relief to Employer, all unexercised options granted to Executive pursuant to
Section 9 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 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 13 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 13 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 13 so that it shall be enforceable as modified, and
in any event the invalidity of any provision of this Section 13 shall not affect
the validity of any other provision in this Section 13 or elsewhere in this
Agreement.
14. 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.
15. WAIVER OF BREACH. The waiver by Employer of 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.
16. 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
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the successors and assigns of Employer.
17. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida.
18. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto regarding employment of Executive, and
supersedes and replaces any prior 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
"BANK"
MARINE NATIONAL BANK (PROPOSED)
By:
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Chairman
By:
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Secretary
"COMPANY"
MARINE BANCSHARES, INC.
By:
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Name:
Title:
"EXECUTIVE"
Xxxxxxx X. Xxxxx
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