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EXHIBIT 10.2
[DRAFT] EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of the _______ day of ________, 1997, by and
among Gulf Coast Bancorp, Inc., a Florida corporation (the "Holding Company"),
Gulf Coast Community Bank, National Association (Proposed), a proposed national
bank to be organized under the laws of the United States (the "Bank" or the
"Employer"), and _______________ (the "Executive").
WITNESSETH:
WHEREAS, the directors and 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 Port Charlotte,
Florida; and
WHEREAS, Executive is willing to become employed by the Bank as its
Chairman and Chief Executive Officer of the Bank in accordance with the terms
and conditions hereinafter set forth:
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
commence on the Executive's first day of employment with the Bank (the
"Start Date") and end two years after the Bank's receipt of a charter
from the OCC. If this contract is not renewed or renegotiated prior to
the end of the two year term, it will be treated as a termination
without cause and compensated as indicated in paragraph 11.b.
3. Compensation.
For all services rendered by Executive, Executive shall be paid a
minimum annual base salary of $96,000.00 from the Bank, payable in
equal semi-monthly installments during the term of this Agreement.
Salary payments shall be subject to withholding and other applicable
taxes.
4. Title and Duties. Executive shall serve as Chairman and Chief Executive
Officer of the Holding Company and of the Bank once the OCC has granted
preliminary charter approval. Executive shall be responsible for
overall operations of the Proposed Bank, including implementing the
Board's directives; acting as chief regulatory contact; monitoring the
Proposed Bank's progress and presenting regular reports to the Board on
financial, lending and deposit activities and on other operations;
actively involved in
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community relations and business development; serves as
Financial Officer; and responsible for strategic planning
efforts.
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, except that Executive shall
not make an investment in the securities of any competing
financial institution without the express approval of the
Board of Directors of the Bank. Executive shall notify
Employer of any significant participation by him in any trade
association or similar organization.
6. Working Facilities. Executive shall receive from the Bank,
such assistants, perquisites, facilities and services as are
suitable to his position and appropriate for the performance
of his duties on behalf of such entity. In addition, the Bank
shall provide Executive membership in a country or golf club
(including dues, assessments and initiation fees) of his
choice and Executive shall have the option at the termination
of his employment for any reason to repurchase said
membership from the Bank.
7. 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 by the Bank for all such expenses upon Executive's
periodic presentation of an itemized account of such
expenditures with receipts attached.
8. Vacations. Executive shall be entitled each year to four (4)
weeks of vacation time in accordance with the personnel
policy established by the Bank's Boards 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 and participate
in all employee benefit plans offered by the Bank to all of
its employees, including health, hospitalization, disability,
life insurance, travel insurance, retirement and savings
plans. In addition, Executive shall be provided with a term
life insurance policy of at least $200,000, which shall
include an accidental death or dismemberment provision of two
times the face amount of the policy. The Holding Company
shall also grant to Executive the option to purchase 20,000
shares of Common Stock of the Holding Company at a purchase
price equal to the price at which the stock is offered and
sold to investors through the Public Placement Memorandum.
These options shall vest at the rate of ten percent (10%) or
two thousand (2,000) options per year, beginning on the
Executive's Start Date and on each of the nine (9) subsequent
anniversary dates, and shall be exercisable for a period of
ten (10) years from such Start Date.
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10. Change in Control of the Bank.
a. In the event of a "change in control" of the Bank,
as defined herein, and only to the extend permitted
by applicable statutes and regulations, 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 one time (100%) the compensation,
including incentive compensation, if any, received
by Executive in the one-year period immediately
preceding the change in control. In the event
"change in control" shall occur within the first
year of this Agreement, the severance compensation
shall be equal to the payments due during the first
year of the Agreement. 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 Bank, whichever is later.
b. In addition, if Executive elects to terminate this
Agreement pursuant to this Section 10, Executive
shall further be entitled, in lieu of shares of
Common Stock of the Bank issuable upon exercise of
stock options to which Executive is entitled under
this Agreement, an amount in cash or Common Stock of
the Bank or any other company into which shares of
the Bank are convertible (or any combination
thereof) as Executive shall in his election
designate equal to the excess of the fair market
value of the Common Stock as of the date of closing
of the transaction effecting the change in control
over the per share exercise price of the options
held by Executive, times the number of shares of
Common Stock subject to such options (whether or not
then fully exercisable). The fair market value of
the Common Stock shall be equal to the higher of (i)
the value as determined by the Board of Directors of
the Bank if there is no organized trading market for
the shares at the time such determination is made,
which per share value shall not be less than 1.8
times the per share book value of the stock or (ii)
the closing price (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 Bank'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 Bank. The severance
payments provided for in this Section 10.b. shall be
paid in full 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 Bank, whichever is later.
c. For purposes of this Section 10, "change in control"
of the Bank shall mean:
1. 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
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Securities Exchange Act of 1934, as
amended) by any person or entity or group
of persons or entities acting in concert,
of 50% or more of the outstanding shares of
Common Stock of the Bank.
2. the sale of all or substantially all of the
assets of the Bank; or
3. the liquidation of the Bank.
d. If any payments to be made under this Section 10
constitute an "Excess Parachute Payment" as that
term is defined in Section 280(g) of the Internal
Revenue Code, the payments shall be reduced to the
largest amount which would not constitute an "Excess
Parachute Payment."
11. Termination.
a. For Cause. This Agreement may be terminated by the
Board of Directors of the Employer without notice
and without further obligations other than for
monies already paid, for any of the following
reasons:
i. failure of Executive to follow reasonable
written instructions or policies of the
Board of Directors of the Bank;
ii. 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
iii. conviction of Executive during the term of
this Agreement of a crime involving breach
of trust or moral turpitude; or
iv. at the request of any bank regulatory
authority with jurisdiction over the Bank.
In the event that the Employer 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 Employer 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 and non-solicitation covenants
contained in Section 13 hereof, unless the employee
purposely engages in conduct constituting "cause"
for the purpose of negating the non-competition
provision.
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b. Without Cause.
i. Notwithstanding the provisions of Section 2
of this Agreement, the Employer may, upon
thirty (30) days' written notice to
Executive, or by the giving of a notice
under Section 2 of this Agreement 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 same severance payments as
provided in Section 10 hereof; provided
that for purposes of Section 10.b., the
fair market value of Common Stock shall be
determined as of the date of notice of
termination of this Agreement given by the
Bank to Executive. 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.
ii. Executive may upon thirty (30) days'
written notice to Employer terminate his
Agreement without cause at any time during
the term of this Agreement. In the event of
termination of this Agreement by Executive,
the Employer shall have no further
obligation to Executive than for monies
paid.
12. Death or Disability.
a. In the event of Executive's death during the term of
this Agreement, 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 plus an amount equal to
ninety (90) days salary. Employer shall also
continue to provide Executive's survivors with any
benefits it provided Executive for such additional
ninety (90) day period.
b. In the event of Executive's disability during the
term of this Agreement, Employer shall pay to
Executive an amount equal to Executive's base salary
pursuant to Section 3 hereof through the end of the
month in which Executive's disability occurred plus
an amount equal to six (6) months salary. Employer
shall also continue to provide Executive with any
benefits it provided Executive prior to his
disability for a period of six (6) months following
his disability and shall continue to pay the
premiums on any life and disability policies
provided by the Employer for the benefit of
Executive prior to his disability.
c. The compensation set forth in Sections a. and b. of
this Section 12 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 during the ninety (90) day or six (6) month
periods described in Sections a. and b. of this
Section 12, Executive, Executive's
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designated beneficiary or Executive's estate, as the
case may be, shall be entitled to the benefits of
Section 10.b. hereof, and (ii) any benefit payable
pursuant to Section 3 shall be prorated and made
available to Executive or his beneficiary or estate
in respect of any period prior to his death or
disability. and (iii) in the event of Executive's
disability, Employer shall continue to pay the
premiums on any life and disability policies
provided by the Employer for the benefit of
Executive prior to his disability. The Bank may
maintain insurance on its behalf to satisfy in whole
or in part the obligations of this Section 12.
d. 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 180
consecutive days.
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
to its principal office in the case of Employer.
14. Waiver of Breach. The waiver of 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.
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 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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WHEREAS, as of the day and date first above set forth, the
parties hereto execute this Agreement.
GULF COAST BANCORP, INC. XXXXX X. XXXXXX
By By
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GULF COAST COMMUNITY
BANK (PROPOSED)
By
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