EX-10.2 3 exhibit102.htm exhibit102
 
Table
 
of Contents
 
Exhibit 10.2
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT
 
(this “Agreement”)
 
is made
 
and entered
 
into as
 
of
the
 
April
 
16,
 
2016
 
(the
 
“Effective
 
Date”),
 
between
 
U.S.
 
Century
 
Bank,
 
a
 
Florida-chartered
commercial bank (the “Bank”
 
or the “Employer”), and Luis de la Aguilera (the “Executive”).
WITNESSETH
WHEREAS, the Bank desires to employ the Executive as Chief Executive Officer;
WHEREAS, the Employer desires to be ensured
 
of the Executive’s
 
active participation in
the business of the Employer; and
WHEREAS,
 
the
 
Executive
 
is
 
willing
 
to
 
serve
 
the
 
Bank
 
on
 
the
 
terms
 
and
 
conditions
hereinafter set forth;
NOW
 
THEREFORE,
 
in
 
consideration
 
of
 
the
 
mutual
 
agreements
 
herein
 
contained,
 
and
upon the other terms and conditions hereinafter provided, the Employer and the Executive hereby
agree as follows:
1.
 
Definitions.
 
The
 
following
 
words
 
and
 
terms
 
shall
 
have
 
the
 
meanings
 
set
 
forth
below for the purposes of this Agreement:
(a)
Base Salary.
 
“Base Salary”
 
shall have
 
the meaning set
 
forth in Section
 
3(a) hereof.
(b)
Cause.
 
Termination
 
of
 
the
 
Executive’s
 
employment
 
for
 
“Cause”
 
shall
 
mean
termination because of (i) willful
 
misconduct
 
(including
 
but
 
not
 
limited
 
to
 
misappropriation
 
of
a material Bank
 
business opportunity,
 
material violation of
 
a confidentiality or
 
non-competition
obligation,
 
or
 
abuse of
 
drugs
 
or
 
alcohol
 
that
 
results
 
in
 
the
 
Executive being materially adversely
affected in the performance
 
of his duties), or
 
fraud by the Executive; (ii)
 
conviction of
 
(including
a
 
plea
 
of
 
guilty
 
or
 
nolo
 
contendere to)
 
a felony
 
which has
 
a material
 
effect on
 
the Bank
 
or the
Executive’s
 
performance
 
hereunder;
 
(iii)
 
the
 
failure
 
to
 
comply
 
with
 
any
 
material
 
obligation
imposed
 
upon the Executive
 
pursuant
 
to
 
this
 
Agreement,
 
(iv)
the
failure to
 
substantially
 
meet
by the
 
end
 
of
 
the
 
Initial
 
Term
 
the
targets
agreed
 
to
 
by
 
the
 
Executive
 
and
 
the Board set forth
in Exhibit
 
A hereto
 
(as determined
 
by the
 
Board in
 
good faith
 
in its
 
sole discretion);
 
and (v)
 
the
entry into
 
by the
 
Bank with
 
the Federal
 
Deposit Insurance
 
Corporation (the
 
“FDIC”) and/or
 
the
Office of Financial
 
Regulation of the
 
State of Florida
 
(the “OFR”) after
 
December 31, 2016
 
of a
new consent agreement,
 
cease and desist
 
order or
 
written agreement
 
if the
 
consent order
 
entered
into
 
as
 
June
 
3,
 
2011
 
by
 
the
 
Bank
 
with
 
the
 
FDIC
 
and
 
the
 
OFR
 
(the
 
“Consent
 
Order”)
 
has
 
been
terminated; provided, however,
 
that if
 
such failure
 
under
 
clause
 
(i)
 
or
 
(iii) above
 
is
 
susceptible
of
 
cure,
 
“Cause”
 
shall
 
be
 
deemed
 
to exist
 
only
 
after
 
the
 
failure
 
has
 
remained
 
uncured
 
for
thirty
 
(30)
 
days
 
following receipt
 
by the
 
Executive of
 
written notice
 
from the
 
Bank of
 
the
 
failure).
Notwithstanding
 
the foregoing,
 
if the
 
Executive disagrees
 
with the
 
good
 
faith determination
 
of
the
 
Bank
 
that
 
there
 
is
 
no
 
cure after
 
the
 
30-day
 
cure
 
period,
 
the Executive may request
 
that such
determination be submitted
 
to binding
 
arbitration in accordance
 
with Section 20
 
hereof (with each
party
 
responsible
 
for
 
its
 
own
 
fees
 
and
 
costs).
 
If
 
the
 
Executive
 
makes
 
such
 
a
 
request
 
for
 
Table
 
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2
arbitration, the
 
termination of
 
the Executive
 
shall not
 
become effective
 
unless
 
and until
 
it is
 
upheld
by a final decision issued through such arbitration
 
process; provided, that the Bank shall have the
right, in its sole discretion, to relieve
 
the Executive of all or any portion of his duties during such
arbitration period
 
pending the
 
arbitration
 
decision
 
so
 
long
 
as
 
the
 
Bank
 
continues
 
to
 
pay
 
and
provide
 
to
 
the Executive on a timely basis the compensation and benefits that it would
 
otherwise
owe to the Executive during such period under this Agreement.
(c)
Change in Control.
 
“Change in Control” shall mean (except
 
as
 
provided
 
below)
the occurrence
 
of
 
an
 
event
 
described in
 
(i),
 
(ii), (iii) or (iv) below:
(i)
Any person or
 
group (within the
 
meaning of Sections 13(d)
 
and 14(d) of
 
the
Securities Exchange
 
Act of
 
1934, as
 
amended
 
(the “Exchange
 
Act”)), other
 
than the
 
Bank, an
affiliate of the
 
Bank or a
 
trustee or other fiduciary holding
 
securities under an
 
employee benefit
plan of the Bank or a corporation owned directly or indirectly by
 
the stockholders of the Bank in
substantially
 
the
 
same
 
proportions
 
as
 
their
 
ownership
 
of
 
stock
 
of
 
the
 
Bank,
 
becomes
 
the
beneficial
 
owner
 
(within
 
the
 
meaning
 
of
 
Rule
 
13(d)(3)
 
under
 
the Exchange Act), directly or
indirectly (which
 
shall include
 
securities issuable
 
upon conversion,
 
exchange or
 
otherwise) of
securities
 
representing
 
50%
 
or
 
more
 
of
 
the
 
combined
 
voting
 
power
 
of
 
the
 
Bank’s
 
then-
outstanding securities entitled
 
generally to vote for the election of directors;
(ii)
Consummation of an
 
agreement to merge or consolidate with
 
another entity
(other
 
than
 
a
 
majority-controlled
 
subsidiary
 
of
 
the
 
Bank)
 
unless
 
the
 
Bank’s
 
stockholders
immediately before
 
the
 
merger
 
or
 
consolidation
 
own
 
more
 
than
 
50%
 
of
 
the
 
combined
 
voting
power
 
of
 
the
 
resulting entity’s
 
voting securities
 
(giving effect
 
to the
 
conversion or
 
exchange of
securities
 
issued
 
in
 
the
 
merger
 
consolidation
 
to
 
the
 
other
 
entity
 
that
 
are
 
convertible
 
or
exchangeable
 
for
 
voting
 
securities)
 
entitled
 
generally
 
to
 
vote
 
for
 
the
 
election
 
of directors;
(iii)
Consummation
 
of
 
an
 
agreement
 
(including,
 
without
 
limitation,
 
an
agreement of liquidation) to sell or otherwise dispose
 
of
 
all or substantially all of the business or
assets of the Bank (or a subsidiary thereof);
 
or
(iv)
Individuals who, as of the
 
date hereof, constitute the
 
Board of Directors of
the Bank (the “Incumbent Board”) cease for any reason to
 
constitute at
 
least
 
a
 
majority
 
of
 
the
Board,
 
provided
 
that
 
any
 
person
 
becoming
 
a
 
director subsequent
 
to
 
the
 
date
 
hereof
 
whose
election
 
or
 
nomination
 
for
 
election
 
by
 
the
 
stockholders
 
is
 
approved
 
by
 
a
 
vote
 
of
 
at
 
least
 
a
majority
 
of
 
directors
 
then
 
constituting
 
the
 
Incumbent
 
Board
 
shall
 
be,
 
for
 
purposes
 
of
 
this
Agreement, considered as though such person were a member of the Incumbent Board.
Notwithstanding the foregoing,
 
no event shall
 
constitute a Change
 
in Control unless
 
such
event shall also constitute a change in control as defined in Section 409A of the Code.
(d)
Code.
 
“Code” shall mean the Internal Revenue Code of 1986, as amended.
(e)
Date
 
of
 
Termination.
 
“Date
 
of
 
Termination”
 
shall
 
mean
 
(i)
 
if
 
the
 
Executive’s
employment is
 
terminated for
 
Cause, the
 
date on
 
which the
 
Notice of
 
Termination
 
is given,
 
and
(ii) if
 
the Executive’s
 
employment is
 
terminated for
 
any other
 
reason, the
 
date specified
 
in such
Notice of Termination.
 
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3
(f)
Disability.
 
“Disability”
 
shall
 
mean
 
the
 
Executive
 
(i)
 
is
 
unable
 
to
 
engage
 
in
 
any
substantial gainful
 
activity by
 
reason of
 
any medically
 
determinable physical
 
or mental
 
impairment
which can be expected to
 
result in death or
 
can be expected to
 
last for a continuous
 
period of not
less
 
than
 
12
 
months,
 
or
 
(ii)
 
is,
 
by
 
reason
 
of
 
any
 
medically
 
determinable
 
physical
 
or
 
mental
impairment which
 
can be
 
expected to
 
result in
 
death or
 
can be
 
expected to
 
last for
 
a continuous
period of not
 
less than 12 months,
 
receiving income replacement benefits
 
for a period of
 
not less
than three months under an accident and health plan covering employees of the Employer.
(g)
Good Reason.
 
Termination
 
by the Executive
 
of the
 
Executive’s
 
employment for
“Good Reason” shall mean termination by the Executive based on:
(i)
 
any
 
material
 
breach
 
of
 
this
 
Agreement
 
by
 
the
 
Bank
 
Employer,
 
including
without
 
limitation
 
any
 
of
 
the
 
following:
 
(A)
 
a
 
material
 
diminution
 
in
 
the
 
Executive’s
 
base
compensation, (B) a material diminution in
 
the Executive’s authority, duties or responsibilities, or
(C)
 
any
 
requirement
 
that
 
the
 
Executive
 
report
 
to
 
a
 
corporate
 
officer
 
or
 
employee
 
of
 
the
 
Bank
instead of reporting directly to
 
the Board of Directors, other
 
than from time to time with
 
respect to
specified
 
matters,
 
a
 
director
 
of
 
the
 
Bank
 
who
 
is
 
designated
 
by
 
a
 
majority
 
of
 
the
 
full
 
Board
 
of
Directors of the Bank, or
(ii)
 
change
 
in
 
excess
 
of
 
twenty-five
 
(25)
 
miles
 
in
 
the
 
geographic
 
location
 
at
which the Executive must perform his services under this Agreement;
provided, however, that
 
prior to any
 
termination of employment for
 
Good Reason, the Executive
must first provide written notice to the Bank within ninety (90) days of the initial existence of the
condition, describing the existence of such condition,
 
and the Bank shall thereafter have the
 
right
to remedy
 
the condition
 
within thirty
 
(30) days
 
of the
 
date the
 
Bank received
 
the written
 
notice
from the
 
Executive.
 
If the
 
Bank remedies
 
the condition
 
within such
 
thirty (30)
 
day cure
 
period,
then no
 
Good Reason
 
shall be
 
deemed to
 
exist with
 
respect to
 
such condition.
 
If the
 
Bank does
not remedy the condition
 
within such thirty (30)
 
day cure period, then
 
the Executive may deliver
a
 
Notice
 
of
 
Termination
 
for
 
Good
 
Reason
 
at
 
any
 
time
 
within
 
sixty
 
(60)
 
days
 
following
 
the
expiration of such cure period.
 
(h)
Notice
 
of
 
Termination.
 
Any
 
purported
 
termination
 
of
 
the
 
Executive’s
employment by the Employer for
 
any reason, including without limitation for
 
Cause, Disability or
Retirement,
 
or
 
by
 
the
 
Executive
 
for
 
any
 
reason,
 
including
 
without
 
limitation
 
for
 
Good
 
Reason,
shall
 
be
 
communicated
 
by
 
a
 
written
 
“Notice
 
of
 
Termination”
 
to
 
the
 
other
 
party
 
hereto.
 
For
purposes
 
of
 
this
 
Agreement,
 
a
 
“Notice
 
of
 
Termination
 
”
 
shall
 
mean
 
a
 
dated
 
notice
 
which
 
(i)
indicates
 
the
 
specific
 
termination
 
provision
 
in
 
this
 
Agreement
 
relied
 
upon,
 
(ii)
 
sets
 
forth
 
in
reasonable
 
detail
 
the
 
facts
 
and
 
circumstances
 
claimed
 
to
 
provide
 
a
 
basis
 
for
 
termination
 
of
 
the
Executive’s
 
employment under
 
the provision
 
so indicated,
 
(iii) specifies
 
a Date
 
of Termination,
which
 
shall
 
be
 
not
 
less
 
than
 
thirty
 
(30)
 
nor
 
more
 
than
 
ninety
 
(90)
 
days
 
after
 
such
 
Notice
 
of
Termination
 
is
 
given,
 
except
 
in
 
the
 
case
 
of
 
the
 
termination
 
of
 
the
 
Executive’s
 
employment
 
for
Cause, which shall be
 
effective immediately,
 
and (iv) is given
 
in the manner specified
 
in Section
11 hereof.
(i)
Retirement.
 
“Retirement”
 
shall
 
mean
 
the
 
Executive’s
 
voluntary
 
or
 
involuntary
termination of employment,
 
as applicable, upon reaching
 
at least age 65,
 
but shall not
 
include an
involuntary termination for Cause.
 
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4
2.
 
Term
 
of Employment.
(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 three
 
years beginning on the
 
Effective Date (the “Initial
 
Term”).
 
Prior to
the second
 
annual anniversary
 
of the
 
Effective
 
Date and
 
each annual
 
anniversary thereafter,
 
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 an extension,
 
then the term of this
 
Agreement shall be so extended
 
as of
the relevant annual anniversary of the
 
Effective 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 Effective
Date; provided, however, that if the Bank is deemed to be
 
in “troubled condition” as defined in
 
12
C.F.R.
 
303.101(c)
 
(or
 
any
 
successor
 
thereto)
 
as
 
of
 
the
 
applicable
 
annual
 
anniversary
 
of
 
the
Effective Date,
 
then the
 
term of
 
this Agreement
 
shall not
 
be extended
 
unless and
 
until the
 
Employer
shall have received all requisite regulatory approvals,
 
non-objections or consents to such renewal
pursuant to the provisions of
 
12 C.F.R. Part 359.
 
If the Board of Directors elects
 
not 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 Effective
 
Date.
 
If any
 
party gives
 
timely notice
 
that
the
 
term
 
will
 
not
 
be
 
extended
 
as
 
of
 
any
 
annual
 
anniversary
 
of
 
the
 
Effective
 
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 Term and successive terms.
(b)
 
During
 
the
 
term
 
of
 
this
 
Agreement,
 
the
 
Executive
 
shall
 
perform
 
such
 
executive
services for the Bank as
 
may be consistent with his
 
titles and from time to
 
time assigned to him by
the Bank’s Board of Directors.
(c)
 
The Executive
 
represents and
 
warrants that
 
his entering
 
into this
 
Agreement, and
his performance of his duties
 
as Chief Executive Officer of
 
the Bank, will not breach or
 
give rise
to
 
any
 
cause
 
of
 
action
 
against
 
the
 
Executive
 
or
 
the
 
Bank
 
under
 
the
 
terms
 
of
 
any
 
agreements
between the
 
Executive and
 
any prior
 
employer (a
 
“Prior Agreement”).
 
The Executive
 
shall comply
with any surviving
 
terms of
 
any Prior
 
Agreement, including
 
terms concerning
 
competition, non-
solicitation and confidentiality.
3.
 
Compensation and Benefits.
(a)
 
The Employer shall
 
compensate and pay
 
the Executive for
 
his services during
 
the
term of
 
this
 
Agreement at
 
a minimum
 
base salary
 
of $350,000
 
per year
 
(“Base Salary”),
 
which
may
 
be
 
increased
 
from
 
time
 
to
 
time
 
in
 
such
 
amounts
 
as
 
may
 
be
 
determined
 
by
 
the
 
Board
 
of
Directors
 
of
 
the
 
Employer
 
and
 
may
 
not
 
be
 
decreased
 
without
 
the
 
Executive’s
 
express
 
written
consent.
 
(b)
For any calendar
 
year, the Executive may earn
 
a bonus of
 
fifty percent (50%)
 
of the
Executive’s Base
 
Salary
 
(upon achievement of target
 
performance levels) for such
 
calendar year
(“Annual Bonus”), depending
 
on the
 
satisfaction
 
of performance
 
criteria for
 
such calendar year,
 
Table
 
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5
which
 
shall
 
be
 
determined
 
as
 
follows.
 
No
 
later
 
than
 
February
 
1
st
 
of
 
each
 
calendar
 
year,
 
the
Executive
 
shall
 
submit
 
to
 
the
 
Bank’s
 
Board
 
of
 
Directors
 
proposed
 
performance
 
goals
 
for
 
the
calendar
 
year.
 
No
 
later
 
than
 
March
 
1
st
 
of
 
each
 
calendar
 
year,
 
the
 
Board
 
of
 
Directors
 
shall
approve
 
performance
 
goals
 
for
 
the calendar year (either as
 
presented by the Executive, or
 
with
reasonable modifications desired by the
 
Board). Such approved performance goals
 
shall indicate
the
 
manner
 
in
 
which
 
the
 
Executive’s
 
Annual
 
Bonus
 
(if
 
any)
 
will
 
be
 
determined
 
upon
 
partial
satisfaction
 
or
 
excess
 
satisfaction
 
of
 
one
 
or
 
more
 
of
 
the goals.
 
Notwithstanding anything to
the contrary within this
 
Agreement, it is
 
acknowledged and agreed
 
that no bonuses may
 
be
paid under
 
this paragraph
 
unless all
 
legal prohibitions
 
from the
 
making of
 
such payments
are lifted or
 
the Employer
 
receives approval for
 
the making
 
of such
 
payments from the
 
FDIC
and the OFR.
(c)
 
During the term of this Agreement, the Executive shall be entitled to participate in
and
 
receive
 
the
 
benefits
 
of
 
any
 
pension
 
or
 
other
 
retirement
 
benefit
 
plan,
 
profit
 
sharing,
 
stock
incentive,
 
or
 
other
 
plans,
 
benefits
 
and
 
privileges
 
given
 
to
 
employees
 
and
 
executives
 
of
 
the
Employer,
 
to the
 
extent
 
commensurate with
 
his then
 
duties and
 
responsibilities,
 
as fixed
 
by the
Board of Directors of
 
the Bank.
 
The Bank shall not
 
make any changes in
 
such plans, benefits or
privileges which would adversely affect the Executive’s rights or benefits thereunder, unless such
change occurs pursuant to a
 
program applicable to all executive
 
officers of the Employer and does
not result in a proportionately
 
greater adverse change in
 
the rights of or
 
benefits to the Executive
as
 
compared
 
with
 
any
 
other
 
executive
 
officer
 
of
 
the
 
Employer.
 
Nothing
 
paid
 
to
 
the
 
Executive
under any plan or arrangement presently in effect or made available in the future shall be deemed
to be in lieu of the salary payable to the Executive pursuant to Section 3(a) hereof.
(d)
 
During the
 
term of this
 
Agreement, the Executive
 
shall be entitled
 
to four (4)
 
weeks
of paid annual vacation,
 
on a calendar basis,
 
to be taken at such time or times
 
agreed upon by the
Executive
 
and
 
the
 
Chairman
 
of
 
the
 
Board.
 
The
 
Executive
 
shall
 
not
 
be
 
entitled
 
to
 
receive
 
any
additional compensation from the Employer for failure to take a vacation, nor
 
shall the Executive
be
 
able
 
to
 
accumulate
 
unused
 
vacation
 
time
 
from
 
one
 
year
 
to
 
the
 
next,
 
except
 
to
 
the
 
extent
authorized by the Board of Directors of the Bank.
(e)
 
Subject to receipt of any required prior regulatory
 
approval, the Board of Directors
will
 
grant
 
to
 
the
 
Executive
 
(pursuant
 
to
 
a
 
written
 
grant
 
agreement)
 
nonqualified
 
options
 
to
purchase two
 
hundred thousand (200,000)
 
shares
 
of common stock
 
of the
 
Bank, with
 
an exercise
price
 
of
 
one
 
dollar
 
and
 
fifty
 
cents ($1.50) per
 
share (which is
 
the current
 
fair market value
 
per
share)
 
(the
 
“Option
 
Grant”),
 
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 be
 
25% vested
 
after
the first anniversary of
 
the
 
grant, and an
 
additional 25% vested after
 
each following anniversary
of grant (until fully vested
 
on the fourth
 
anniversary
 
of grant). Options
 
may be exercised
 
once they
are
 
vested,
 
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, provided that
 
no accelerated vesting
 
upon a Change
 
in Control shall
 
occur if at the
 
time
of
 
the
 
Change
 
in
 
Control
 
any
 
of
 
the
 
following
 
is
 
applicable:
 
(i)
 
the
 
Bank
 
is
 
still
 
subject
 
to
 
the
Consent Order, as such order may be amended from time to time, or (ii) the Bank is deemed to be
in “troubled
 
condition” as
 
defined in
 
12 C.F.R. §303.101(c) (or
 
any successor
 
thereto), unless
 
prior
to
 
or
 
in
 
connection
 
with
 
the
 
change
 
in
 
control,
 
the
 
Bank
 
has
 
received
 
all
 
requisite
 
regulatory
 
Table
 
of Contents
6
approvals, non-objections or consents to such acceleration pursuant
 
to the provisions of 12 C.F.R.
Part 359.
 
The other terms
 
of the Option
 
Grant award shall
 
comply with the
 
Bank’s
 
2015 Equity
Incentive Plan.
 
(f)
 
Executive
 
shall
 
receive
 
an
 
automobile
 
allowance
 
at
 
the
 
rate
 
of
 
$750
 
per
 
month
during
 
the
 
term
 
of
 
this
 
Agreement.
 
This
 
transportation
 
allowance
 
will
 
serve
 
to
 
cover
 
all
transportation
 
expenses
 
of
 
Executive
 
in
 
the
 
South
 
Florida
 
area
 
including,
 
but
 
not
 
limited
 
to,
transportation, gas and car maintenance.
 
4.
 
Expenses.
 
The Employer shall
 
reimburse the
 
Executive or
 
otherwise provide
 
for
or pay
 
for
 
all reasonable
 
expenses incurred
 
by the
 
Executive in
 
furtherance of
 
or
 
in connection
with the business
 
of the Employer, including, but
 
not by way
 
of limitation, traveling
 
expenses, and
all
 
reasonable
 
entertainment
 
expenses,
 
subject
 
to
 
such
 
reasonable
 
documentation
 
and
 
other
limitations as may be
 
established by the Board
 
of Directors of the
 
Bank.
 
If such expenses are
 
paid
in the first instance by the Executive,
 
the Employer shall reimburse the Executive therefor.
 
Such
reimbursement shall
 
be paid
 
promptly by
 
the Bank
 
and in
 
any event
 
no later
 
than March
 
15
th
 
of
the year immediately following the year in which such expenses were incurred.
5.
 
Termination.
(a)
 
The Employer shall
 
have the
 
right, at any
 
time upon
 
prior Notice of
 
Termination,
to terminate the Executive’s employment
 
hereunder for any reason, including, without limitation,
termination for Cause, Disability or Retirement, and
 
the Executive shall have the right, upon
 
prior
Notice of Termination, to terminate his employment hereunder for any reason.
(b)
 
In the event that (i) the Executive’s employment is terminated by the Employer for
Cause
 
or
 
(ii)
 
the
 
Executive
 
terminates
 
his
 
employment
 
hereunder
 
other
 
than
 
for
 
Disability,
Retirement, death or Good
 
Reason, the Executive
 
shall have no
 
right pursuant to
 
this Agreement
to compensation or other benefits for any period after the applicable Date of Termination.
(c)
 
In the event that the Executive’s employment is terminated as a result of Disability
or Retirement,
 
the Executive
 
shall have
 
no right
 
pursuant to
 
this Agreement
 
to compensation
 
or
other benefits for any period after the applicable Date of Termination.
(d)
 
In the event that the Executive’s employment is terminated due to death during the
term
 
of
 
this
 
Agreement,
 
the
 
Executive
 
shall
 
have
 
no
 
right
 
pursuant
 
to
 
this
 
Agreement
 
for
compensation or other
 
benefits for any
 
period after the
 
applicable Date of
 
Termination
 
except to
pay to the Executive’s designated
 
beneficiary (or estate or his personal representative, as the case
may be,
 
if no
 
beneficiary has
 
been designated)
 
(i)
 
that
 
portion,
 
if
 
any,
 
of
 
the
 
Base
 
Salary
 
that
remains unpaid
 
for the period
 
prior
 
to the
 
date
 
of his
 
death, and
 
(ii) a
 
lump
 
sum cash
 
payment
equal
 
to
 
one-half (1/2)
 
of the
 
Executive’s
 
Base Salary,
 
plus continuation
 
of medical
 
and
 
dental
benefits for his
 
then spouse and/or
 
dependents at the
 
Bank’s expense for a period
 
of six (6)
 
months
after the date of
 
his death.
 
Upon the Executive’s death,
 
he shall vest
 
in any outstanding
 
unvested
options
 
granted under
 
the
 
Option
 
Award
 
pursuant
 
to
 
Section
 
4(e) (and
 
the
 
terms
 
of
 
the
 
awards
granted under Section 4(e) shall so provide).
 
Table
 
of Contents
7
(e)
 
In
 
the
 
event
 
that
 
prior
 
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
 
equal
 
to
 
the
 
aggregate
 
of
 
(A)
 
one
 
(1)
 
times
 
the
Executive’s then current
 
annual Base
 
Salary and
 
(B) the
 
amount accrued
 
with respect
 
to the
 
Annual
Bonus for
 
the year
 
in which
 
the termination
 
occurs (the
 
“Severance Payment”).
 
The Severance
Payment shall be paid
 
in two installments. The
 
first payment consisting of
 
50% of the 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
 
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, at
 
the Bank’s expense,
 
for the
 
period
of
 
time
 
equal
 
to
 
the
 
shorter
 
of
 
one
 
(1)
 
year
 
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).
 
With
 
respect to
 
the Bank’s
 
payment of
 
Executive’s
 
COBRA
 
expenses,
 
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 such COBRA payments.
 
Such payment shall
 
be made on or
 
before March 15
th
 
following the close of
 
the
 
calendar year in
which the COBRA
 
payments were
 
made.
 
Except as provided
 
herein, the 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.
 
The Executive’s right to
severance under
 
this Section
 
5(e) shall
 
be subject
 
to the
 
prior receipt
 
of any
 
required regulatory
approval
 
or
 
non-objection
 
if,
 
as
 
of
 
the
 
date
 
of
 
termination
 
of
 
the
 
Executive’s
 
employment,
 
the
Bank is deemed
 
to be in “troubled
 
condition” as defined in
 
12 C.F.R. 303.101(c) (or any successor
thereto).
(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
equal to the aggregate
 
of (A) 1.99 times
 
the Executive’s
 
then current annual Base
 
Salary and (B)
the amount accrued with respect to the
 
Annual Bonus for the year in which
 
the termination occurs
(the
 
“Enhanced
 
Severance
 
Payment”).
 
The
 
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
 
Table
 
of Contents
8
as provided by the Bank from time
 
to time for its
 
employees, at
 
the Bank’s expense,
 
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).
 
With
 
respect
 
to
 
the
 
Bank’s
 
payment
 
of
 
Executive’s
 
COBRA
expenses,
 
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 such COBRA
payments.
 
Such payment
 
shall be
 
made on
 
or before
 
March 15
th
 
following the
 
close of
 
the
 
calendar
year
 
in
 
which
 
the
 
COBRA
 
payments
 
were
 
made.
 
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.
 
The
 
Executive’s
 
right
 
to
 
severance under
 
this
 
Section
 
5(f) shall
 
be
 
subject
 
to the
prior receipt of any required regulatory approval or non-objection if,
 
as of the date of termination
of the Executive’s employment, the Bank is deemed to be in
 
“troubled condition” as defined in 12
C.F.R. 303.101(c) (or any successor thereto).
(g)
 
The Executive’s
 
right to
 
receive
 
the severance
 
benefits
 
set
 
forth in
 
Sections
 
5(e)
and
 
5(f)
 
above
 
shall
 
be
 
conditioned
 
upon
 
the
 
Executive’s
 
execution
 
of
 
a
 
general
 
release
 
which
releases
 
the
 
Employer
 
and
 
their
 
directors,
 
officers
 
and
 
employees
 
from
 
any
 
claims
 
that
 
the
Executive
 
may
 
have
 
under
 
various
 
laws
 
and
 
regulations
 
and
 
the
 
expiration
 
of
 
any
 
right
 
the
Executive may
 
have to
 
revoke such
 
general release, with
 
such revocation
 
right not
 
being exercised.
 
If either the
 
time period for
 
paying the severance
 
set forth in
 
Sections 5(e) or
 
5(f), as applicable,
or the
 
time period
 
that the
 
Executive has
 
to consider
 
the terms
 
of the
 
general release
 
(including
any
 
revocation
 
period
 
under
 
such
 
release)
 
commences
 
in
 
one
 
calendar
 
year
 
and
 
ends
 
in
 
the
succeeding
 
calendar
 
year,
 
then
 
the
 
severance
 
payment
 
set
 
forth
 
in
 
Sections
 
5(e)
 
or
 
5(f),
 
as
applicable, above shall not be paid until the succeeding calendar year.
(h)
 
If
 
prior
 
to
 
the
 
Executive’s
 
receipt
 
of
 
the
 
Severance
 
Payment
 
or
 
the
 
Enhanced
Severance Payment set forth in Sections 5(e) or
 
5(f), as applicable, respectively,
 
above due to his
termination
 
of
 
employment
 
(including
 
termination
 
for
 
Good
 
Reason)
 
while
 
the
 
Bank
 
is
 
(i)
 
still
subject to the Consent Order,
 
as such order may be
 
amended from time to time
 
,
 
or (ii) is deemed
to
 
be
 
in
 
“troubled
 
condition”
 
as
 
defined
 
in
 
12
 
C.F.R.
 
§303.101(c)
 
it
 
is
 
determined
 
that
 
the
Executive (i)
 
committed any
 
fraudulent act
 
or omission, breach
 
of trust
 
or fiduciary
 
duty, or insider
abuse with regard to the Employer
 
that has had or is likely
 
to have a material adverse effect on
 
the
Employer, (ii) is substantially responsible for the
 
insolvency of, the appointment of a conservator
or receiver for,
 
or the
 
troubled condition,
 
as defined
 
by applicable
 
regulations of
 
the appropriate
federal
 
banking
 
agency,
 
of
 
the
 
Employer,
 
(iii)
 
has
 
materially
 
violated
 
any
 
applicable federal
 
or
state banking
 
law or
 
regulation that
 
has had
 
or is
 
likely to
 
have a
 
material adverse
 
effect on
 
the
Employer, or
 
(iv) has violated
 
or conspired to
 
violate Sections
 
215, 656,
 
657, 1005, 1006,
 
1007,
1014, 1302
 
or 1344
 
of Title
 
18 of
 
the United
 
State
 
Code, or
 
Sections 1341
 
or 1343
 
of Title
 
18
affecting
 
the
 
Bank,
 
then
 
the
 
Severance
 
Payment
 
or
 
the
 
Enhanced
 
Severance
 
Payment,
 
as
applicable, shall not be provided to the Executive.
 
If it is determined after the Executive receives
the Severance Payment or
 
the Enhanced Severance Payment,
 
as applicable, that any of
 
the matters
set forth
 
in clauses
 
(i) through
 
(iv) of
 
this Section
 
5(h) are
 
applicable to
 
the Executive,
 
then the
Executive shall promptly (and in any event within ten (10) business days following written notice
 
Table
 
of Contents
9
to the
 
Executive) return
 
an amount
 
equal to
 
the Severance
 
Payment or
 
the Enhanced
 
Severance
Payment, as applicable, to the Employer in immediately available funds.
6.
 
Limitation of
 
Benefits under
 
Certain Circumstances.
 
If the
 
payment pursuant
to
 
Section
 
5(f)
 
hereof,
 
either
 
alone
 
or
 
together
 
with
 
other
 
payments
 
and
 
benefits
 
which
 
the
Executive
 
has
 
the
 
right
 
to
 
receive
 
from
 
the
 
Employer,
 
would
 
constitute
 
a
 
“parachute
 
payment”
under Section
 
280G of
 
the Code,
 
then the
 
amount payable
 
by the
 
Employer pursuant
 
to Section
5(d)
 
hereof
 
shall
 
be
 
reduced
 
by
 
the
 
minimum
 
amount
 
necessary
 
to
 
result
 
in
 
no
 
portion
 
of
 
the
amount
 
payable
 
by
 
the
 
Employer
 
under
 
Section
 
5(f)
 
being
 
non-deductible
 
to
 
the
 
Employer
pursuant to Section 280G
 
of the Code and
 
subject to the excise tax
 
imposed under Section 4999 of
the Code.
 
The determination of
 
any reduction in
 
the amount payable
 
pursuant to Section
 
5(d) shall
be based
 
upon the
 
opinion of
 
independent tax
 
counsel selected
 
by the
 
Employer and
 
paid for
 
by
the Employer.
 
Such counsel
 
shall promptly
 
prepare the
 
foregoing opinion,
 
but in
 
no event
 
later
than ten
 
(10) days
 
from the
 
Date of
 
Termination, and may
 
use such
 
actuaries as
 
such counsel
 
deems
necessary or advisable for
 
the purpose.
 
Nothing contained herein shall
 
result in a reduction of
 
any
payments
 
or
 
benefits
 
to
 
which
 
the
 
Executive
 
may
 
be
 
entitled
 
upon
 
termination
 
of
 
employment
under any
 
circumstances other
 
than as
 
specified in
 
this Section
 
6, or
 
a reduction
 
in the
 
payment
specified in Section 5(f) below zero.
7.
 
Restrictive Covenants
(a)
 
Trade Secrets
. The Executive acknowledges
 
that he has had,
 
and will have, access
to
 
confidential
 
information
 
of
 
the
 
Bank
 
(including,
 
but
 
not
 
limited
 
to,
 
current
 
and
 
prospective
confidential
 
know-how,
 
customer
 
lists,
 
marketing
 
plans,
 
business
 
plans,
 
financial
 
and
 
pricing
information, and
 
information regarding
 
acquisitions, mergers and/or
 
joint ventures)
 
concerning the
business, customers,
 
contacts, prospects,
 
and assets
 
of the
 
Bank that
 
is unique,
 
valuable and
 
not
generally known outside the Bank , and that was obtained from the Bank or which was learned as
a result of the performance of
 
services by the Executive on
 
behalf of the Bank (“Trade
 
Secrets”).
Trade Secrets shall not include any information
 
that: (i) is now,
 
or hereafter becomes, through no
act or
 
failure to act
 
on the part
 
of the Executive
 
that constitutes a
 
breach of
 
this Section 7,
 
generally
known or available to the
 
public; (ii) is known to
 
the Executive at the time
 
such information was
obtained
 
from
 
the
 
Bank;
 
(iii)
 
is
 
hereafter
 
furnished
 
without
 
restriction
 
on
 
disclosure
 
to
 
the
Executive by
 
a third
 
party,
 
other than
 
an
 
employee or
 
agent of
 
the
 
Bank,
 
who is
 
not under
 
any
obligation of confidentiality to the Bank or an
 
Affiliate; (iv) is disclosed with the written approval
of
 
the
 
Bank;
 
or
 
(v)
 
is
 
required
 
to
 
be
 
disclosed
 
or
 
provided
 
by
 
law,
 
court
 
order,
 
order
 
of
 
any
regulatory agency
 
having jurisdiction
 
or similar
 
compulsion, including
 
pursuant to
 
or in
 
connection
with
 
any
 
legal
 
proceeding
 
involving
 
the
 
parties
 
hereto;
 
provided
 
however,
 
that
 
such
 
disclosure
shall be limited
 
to the extent so
 
required or compelled; and
 
provided further,
 
however, that
 
if the
Executive is
 
required to
 
disclose such
 
confidential information,
 
he shall
 
give the
 
Bank notice
 
of
such
 
disclosure
 
and
 
cooperate
 
in
 
seeking
 
suitable
 
protections.
 
Other
 
than
 
in
 
the
 
course
 
of
performing services
 
for the
 
Bank, the
 
Executive will
 
not, at
 
any time,
 
directly or
 
indirectly use,
divulge, furnish
 
or make
 
accessible to
 
any person
 
any Trade Secrets,
 
but instead
 
will keep
 
all Trade
Secrets strictly
 
and absolutely
 
confidential. The Executive
 
will deliver
 
promptly to
 
the Bank ,
 
at
the termination
 
of his
 
employment or
 
at any
 
other time
 
at the
 
request of
 
the Employer,
 
without
retaining
 
any
 
copies,
 
all
 
documents
 
and
 
other
 
materials
 
in
 
his
 
possession
 
relating,
 
directly
 
or
indirectly, to any Trade
 
Secrets.
 
Table
 
of Contents
10
(b)
Non-Competition
. If the Executive’s employment is
 
terminated during the term
 
of
this Agreement for Cause or without Cause, before or after a Change in Control, or the Executive
terminates his employment hereunder other than for Disability during
 
the term of the Agreement,
then for a
 
period of twelve
 
(12) months after
 
termination of employment (the
 
“Restricted Period”),
the Executive
 
will not,
 
directly or
 
indirectly,
 
(i) become
 
a director,
 
officer,
 
employee, principal,
agent, shareholder, consultant
 
or independent
 
contractor of
 
any insured
 
depository institution, trust
company or parent holding company
 
of any such institution
 
or company or other entity
 
engaging
in the banking business which
 
has an office in the State of
 
Florida (“Competing Business”); (ii) as
agent
 
or
 
principal,
 
carrying
 
on
 
or
 
engaging
 
in
 
any
 
activities
 
or
 
negotiations
 
with
 
respect to
 
the
acquisition
 
or
 
disposition
 
of
 
a
 
Competing
 
Business;
 
(iii)
 
extending
 
credit
 
for
 
the
 
purpose
 
of
establishing or operating a Competing Business; (iv) lending or allowing the Executive’s name or
reputation to be used in
 
a Competing Business; and
 
(v) otherwise allowing the
 
Executive’s
 
skill,
knowledge or
 
experience
 
to
 
be
 
used
 
in
 
a
 
Competing Business.
 
Notwithstanding
 
the
 
foregoing,
nothing
 
in
 
this
 
Agreement
 
shall
 
prevent
 
the
 
Executive
 
from
 
owning
 
for
 
passive
 
investment
purposes not
 
intended to
 
circumvent this
 
Agreement, less
 
than five
 
percent (5%)
 
of the
 
publicly
traded
 
voting
 
securities
 
of
 
any
 
company
 
engaged
 
in
 
the
 
banking,
 
financial
 
services
 
or
 
other
business similar
 
to or
 
competitive with
 
the Employer
 
(so long
 
as the
 
Executive has
 
no power
 
to
manage, operate, advise, consult with
 
or control the competing enterprise and
 
no power, alone
 
or
in conjunction with
 
other affiliated parties,
 
to select a
 
director, manager, general partner, or similar
governing
 
official
 
of
 
the
 
competing
 
enterprise
 
other
 
than
 
in
 
connection
 
with
 
the
 
normal
 
and
customary
 
voting
 
powers
 
afforded
 
the
 
Executive
 
in
 
connection
 
with
 
any
 
permissible
 
equity
ownership).
 
(c)
Non-Solicitation of Employees.
 
During the Restricted Period, without the written
consent of
 
the Bank,
 
the Executive
 
shall not,
 
directly or
 
indirectly, solicit, induce
 
or hire,
 
or attempt
to solicit, induce
 
or hire, any
 
current employee of
 
the Employer,
 
or any individual
 
who becomes
an employee
 
during the
 
Restricted Period,
 
to leave
 
his or
 
her employment
 
with the
 
Employer or
join
 
or
 
become
 
affiliated
 
with
 
any
 
other
 
business
 
or
 
entity,
 
or
 
in
 
any
 
way
 
interfere
 
with
 
the
employment relationship between any employee and the Employer.
(d)
Non-Solicitation of Customers
. During the Restricted Period, without the written
consent of the Bank, the Executive shall not, directly or
 
indirectly, solicit
 
or induce, or attempt to
solicit
 
or
 
induce,
 
any
 
customer,
 
any
 
person
 
being
 
then
 
solicited
 
by
 
the
 
Bank
 
to
 
be
 
a
 
customer,
lender,
 
supplier,
 
licensee,
 
licensor
 
or
 
other
 
business
 
relation
 
of
 
the
 
Employer
 
to
 
terminate
 
its
relationship or contract
 
with the Employer,
 
to cease doing business
 
with the Employer,
 
or in any
way
 
interfere
 
with
 
the
 
relationship
 
between
 
any
 
such
 
customer,
 
lender,
 
supplier,
 
licensee
 
or
business relation
 
and the
 
Employer (including
 
making any
 
negative or
 
derogatory statements
 
or
communications concerning the Employer or its directors, officers or employees).
(e)
Intellectual
 
Property
.
 
Employee
 
will
 
disclose
 
to
 
Employer
 
all
 
work,
 
products
including ideas,
 
inventions, literary
 
property,
 
music, lyrics,
 
scripts, themes,
 
slogans, titles,
 
copy,
art
 
and
 
any
 
other
 
relevant
 
material
 
which
 
could
 
reasonably
 
be
 
used
 
by
 
Employer
 
or
 
any
 
of
 
its
clients (herein collectively
 
called "Intellectual Property")
 
which he may
 
create any time
 
during the
term
 
of
 
employment,
 
whether
 
created
 
during
 
or
 
after
 
working
 
hours.
 
Employer
 
and
 
Employee
agree
 
that
 
all
 
Intellectual
 
Property
 
shall
 
be
 
deemed
 
to
 
be
 
"works
 
made
 
for
 
hire"
 
and
 
the
 
sole
property of
 
Employer.
 
Employee
 
agrees
 
to
 
execute
 
and
 
deliver
 
all
 
documents
 
which
 
Employer
 
Table
 
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11
may deem
 
necessary or
 
advisable in
 
order
 
to confirm
 
such ownership
 
or
 
to
 
register
 
Intellectual
Property in
 
the name
 
of Employer
 
or any
 
of its
 
clients in
 
the United
 
States and
 
all foreign
 
countries.
(f)
Non-Disparagement.
The Executive agrees that he
 
shall not make, or cause
 
to be
made, any
 
disparaging or
 
critical remarks,
 
comments or
 
statements about
 
or against
 
the Bank
 
or
its subsidiaries
 
or affiliates
 
or any director,
 
officer,
 
employee or customer
 
of any such
 
entities at
any time in
 
the future, except
 
for any statements
 
by him made
 
pursuant to lawful
 
subpoena or legal
process. Executive
 
acknowledges that
 
the Employer’s
 
reputation and
 
image in
 
the market
 
is one
of
 
its
 
principal
 
assets
 
and
 
that
 
Employer
 
has
 
expended
 
substantial
 
time,
 
effort
 
and
 
money
 
in
building this reputation and image and that, accordingly, any action or comment by the Executive
which
 
is
 
damaging
 
to
 
or
 
in
 
any
 
way
 
diminishes
 
such
 
image
 
or
 
reputation
 
will
 
cause
 
Employer
irreparable injury.
(g)
Irreparable
 
Harm
.
 
The
 
Executive
 
acknowledges
 
that:
 
(i)
 
the
 
Executive’s
compliance with Section 7
 
of this Agreement is
 
necessary to preserve and
 
protect the proprietary
rights, Trade Secrets, and the goodwill of the Employer as a going concern,
 
and (ii) any failure by
the
 
Executive
 
to
 
comply
 
with
 
the
 
provisions
 
of
 
this
 
Agreement
 
will
 
result
 
in
 
irreparable
 
and
continuing injury
 
for which
 
there will
 
be no
 
adequate remedy
 
at law. In
 
the event
 
that the
 
Executive
fails to comply with the
 
terms and conditions of this
 
Agreement, the obligations of the
 
Employer
to pay the severance benefits set forth in
 
Section 5 shall cease, and the
 
Employer will be entitled,
in addition
 
to other
 
relief that
 
may be
 
proper,
 
to all
 
types of
 
equitable relief
 
(including, but
 
not
limited to, the issuance of an injunction and/or temporary restraining order and the recoupment of
any severance previously paid) that
 
may be necessary to
 
cause the Executive to
 
comply with this
Agreement, to restore to the Employer their property, and to make the Employer whole.
(h)
Survival.
 
The provisions set
 
forth in this Section
 
7 shall survive termination
 
of this
Agreement.
(i)
Scope Limitations
. If
 
the scope,
 
period of
 
time or
 
area of
 
restriction specified
 
in
this Section 7 are or would be judged to be
 
unreasonable in any court proceeding, then the period
of
 
time,
 
scope
 
or
 
area
 
of
 
restriction
 
will
 
be
 
reduced
 
or
 
limited
 
in
 
the
 
manner and
 
to
 
the
 
extent
necessary to make
 
the restriction reasonable, so
 
that the restriction
 
may be enforced in
 
those areas,
during the period of time and in the scope that are or would be judged to be reasonable.
8.
 
Mitigation; Exclusivity of Benefits.
(a)
 
The
 
Executive
 
shall
 
not
 
be
 
required
 
to
 
mitigate
 
the
 
amount
 
of
 
any
 
benefits
hereunder by
 
seeking other
 
employment or
 
otherwise, nor
 
shall the
 
amount of
 
any such
 
benefits
be reduced
 
by any
 
compensation earned
 
by the
 
Executive as
 
a result
 
of employment
 
by another
employer after the Date of Termination or otherwise.
(b)
 
The specific arrangements referred to herein
 
are not intended to exclude
 
any other
benefits
 
which
 
may
 
be
 
available
 
to
 
the
 
Executive
 
upon
 
a
 
termination
 
of
 
employment
 
with
 
the
Employer pursuant to employee benefit plans of the Employer or otherwise.
9.
 
Withholding.
 
All payments required
 
to be made by
 
the Employer hereunder
 
to the
Executive shall
 
be subject
 
to the
 
withholding
 
of
 
such amounts,
 
if
 
any,
 
relating
 
to tax
 
and
 
other
 
Table
 
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12
payroll deductions as the Employer
 
may reasonably determine should be
 
withheld pursuant to any
applicable law or regulation.
10.
 
Assignability.
 
The Bank may assign this Agreement and
 
its rights and obligations
hereunder in whole, but not in part, to any corporation, bank or
 
other entity with or into which the
Bank may hereafter merge or
 
consolidate or to which the
 
Bank may transfer all or
 
substantially all
of its respective assets, if
 
in any such case said
 
corporation, bank or other entity shall
 
by operation
of law
 
or expressly
 
in writing
 
assume all
 
obligations of
 
the Employer
 
hereunder as
 
fully as
 
if it
had
 
been
 
originally
 
made
 
a
 
party
 
hereto,
 
but
 
may
 
not
 
otherwise
 
assign
 
this
 
Agreement
 
or
 
their
rights and obligations hereunder.
 
The Executive may not assign
 
or transfer this Agreement or
 
any
rights or obligations hereunder.
11.
 
Notice.
 
For the purposes of this Agreement, notices and all other communications
provided for
 
in this
 
Agreement shall
 
be in
 
writing and
 
shall be
 
deemed to
 
have been
 
duly given
when delivered or mailed
 
by certified or registered
 
mail, return receipt requested,
 
postage prepaid,
addressed to the respective addresses set forth below:
 
To the Bank:
 
Chairman of the Board
 
U.S. Century Bank
 
2301 N.W.
 
87
th
 
Avenue
 
Doral, Florida 33172
 
To the Executive:
 
Luis de la Aguilera
 
At the address last appearing on
 
the personnel records of the Employer
12.
 
Amendment; Waiver.
 
No provisions of
 
this Agreement may
 
be modified, waived
or discharged unless
 
such waiver,
 
modification or discharge
 
is agreed to
 
in writing signed
 
by the
Executive and such officer or officers as may be specifically
 
designated by the Board of Directors
of the Employer to sign on their behalf.
 
No waiver by any party hereto at any time of
 
any breach
by any other party hereto of, or compliance with, any condition or provision of this Agreement to
be performed by such
 
other party shall be
 
deemed a waiver
 
of similar or
 
dissimilar provisions or
conditions at the same or at any prior or subsequent time.
13.
 
Governing Law.
 
The validity, interpretation, construction
 
and performance
 
of this
Agreement shall be governed by the laws of the
 
United States where applicable and otherwise by
the substantive laws of the State of Florida.
14.
 
Nature
 
of
 
Obligations.
 
Nothing
 
contained
 
herein
 
shall
 
create
 
or
 
require
 
the
Employer to create a trust of any
 
kind to fund any benefits which may
 
be payable hereunder,
 
and
to the extent that the
 
Executive acquires a right to receive
 
benefits from the Employer hereunder,
such right shall be no greater than the right of any unsecured general creditor of the Employer.
15.
 
Headings.
 
The
 
section
 
headings
 
contained
 
in
 
this
 
Agreement
 
are
 
for
 
reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
 
Table
 
of Contents
13
16.
 
Validity.
 
The
 
invalidity
 
or
 
unenforceability
 
of
 
any
 
provision
 
of
 
this
 
Agreement
shall not affect
 
the validity
 
or enforceability
 
of any
 
other provisions of
 
this Agreement,
 
which shall
remain in full force and effect.
17.
 
Counterparts.
 
This Agreement
 
may be
 
executed in
 
one or
 
more counterparts,
 
each
of which
 
shall be
 
deemed to
 
be an
 
original but
 
all of
 
which together
 
will constitute
 
one and
 
the
same instrument.
18.
 
Regulatory Actions.
 
The following
 
provisions shall
 
be applicable
 
to the
 
parties
hereto or any
 
successor thereto, and
 
shall be
 
controlling in
 
the event of
 
a conflict with
 
any other
provision of this Agreement, including without limitation Section 5 hereof.
(a)
 
If
 
the
 
Executive
 
is
 
suspended
 
from
 
office
 
and/or
 
temporarily
 
prohibited
 
from
participating in the
 
conduct of the
 
Bank’s
 
affairs pursuant
 
to notice served
 
under Section 8(e)(3)
or
 
Section
 
8(g)(1)
 
of
 
the
 
Federal
 
Deposit
 
Insurance
 
Act
 
(“FDIA”)(12
 
U.S.C.
 
§§1818(e)(3)
 
and
1818(g)(1)),
 
the
 
Bank’s
 
obligations
 
under
 
this
 
Agreement
 
shall
 
be
 
suspended
 
as
 
of
 
the
 
date
 
of
service, unless stayed
 
by appropriate proceedings.
 
If the charges
 
in the notice
 
are dismissed, the
Bank will:
 
(i) pay
 
the
 
Executive
 
all or
 
part
 
of
 
the
 
compensation
 
withheld
 
while its
 
obligations
under this Agreement were suspended,
 
and (ii) reinstate (in whole
 
or in part) any of
 
its obligations
which were suspended.
(b)
 
If
 
the
 
Executive
 
is
 
removed
 
from
 
office
 
and/or
 
permanently
 
prohibited
 
from
participating
 
in
 
the
 
conduct
 
of
 
the
 
Bank’s
 
affairs
 
by
 
an
 
order
 
issued
 
under
 
Section
 
8(e)(4)
 
or
Section 8(g)(1) of
 
the FDIA (12
 
U.S.C. §§1818(e)(4) and
 
(g)(1)), all obligations
 
of the Bank
 
under
this
 
Agreement
 
shall
 
terminate
 
as
 
of
 
the
 
effective
 
date
 
of
 
the
 
order,
 
but
 
vested
 
rights
 
of
 
the
Executive and the Bank as of the date of termination shall not be affected.
(c)
 
If
 
the
 
Bank
 
is
 
in
 
default,
 
as
 
defined
 
in
 
Section
 
3(x)(1)
 
of
 
the
 
FDIA
 
(12
 
U.S.C.
§1813(x)(1)), all
 
obligations
 
under this
 
Agreement
 
shall terminate
 
as of
 
the
 
date of
 
default,
 
but
vested rights of the Executive and the Bank as of the date of termination shall not be affected.
19.
 
Regulatory Prohibition.
 
Notwithstanding any other provision of
 
this Agreement
to the contrary, any payments made to
 
the Executive pursuant to this
 
Agreement, or otherwise, are
subject
 
to
 
and
 
conditioned
 
upon
 
their
 
compliance
 
with
 
Section
 
18(k)
 
of
 
the
 
FDIA
 
(12
 
U.S.C.
§1828(k)) and 12 C.F.R. Part 359.
20.
Arbitration.
Any controversy or claim
 
arising out of or
 
relating to this
 
Agreement,
or the
 
breach thereof,
 
shall be
 
settled by
 
arbitration before a
 
single arbitrator
 
in accordance
 
with
the
 
rules
 
then
 
existing
 
under
 
the
 
Employment
 
Dispute
 
Resolution
 
Rules
 
of
 
the
 
American
Arbitration Association (“AAA”)
 
conducted at the
 
district office of
 
the AAA located
 
nearest to the
home
 
office
 
of
 
the
 
Bank,
 
and
 
judgment
 
upon
 
the
 
award
 
rendered
 
may
 
be
 
entered
 
in
 
any
 
court
having
 
jurisdiction
 
thereof,
 
except
 
to
 
the
 
extent
 
that
 
the
 
parties
 
may
 
otherwise
 
reach
 
a
 
mutual
settlement of such issue.
 
Each party to the arbitration shall bear its own expenses.
21.
 
Entire Agreement.
 
This Agreement
 
embodies the
 
entire agreement
 
between the
Employer
 
and
 
the
 
Executive
 
with
 
respect
 
to
 
the
 
matters
 
agreed
 
to
 
herein.
 
All
 
prior
 
agreements
between the Employer
 
and the
 
Executive with
 
respect to the
 
matters agreed to
 
herein are
 
hereby
superseded and shall have no force or effect.
 
exhibit102p14i1.jpg exhibit102p14i0.jpg
Table
 
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14
IN WITNESS
 
WHEREOF,
 
this Agreement
 
has been
 
executed as
 
of the
 
date first
 
written
above.
 
U.S. CENTURY BANK
 
By:
 
 
EXECUTIVE
 
By:
 
 
Table
 
of Contents
A-1
Exhibit A
The financial targets constituting “Cause” under Section 1(b)(iv):
1.
For the fiscal year
 
ended December 31, 2017 and
 
each fiscal year thereafter, the Bank fails
to earn an annual return on average assets of in excess of .50%;
2.
As
 
of
 
December
 
31,
 
2017
 
and
 
each
 
quarter
 
thereafter,
 
the
 
Bank’s
 
total
 
nonperforming
assets exceeds
 
an average
 
of 2.0%
 
of total
 
assets.
 
For purposes
 
of the
 
calculation of
 
the
ratio of nonperforming assets,
 
the Bank shall calculate
 
the nonperforming asset ratio
 
on a
trailing nine-month
 
basis using
 
the nonperforming
 
assets and
 
total asset
 
amounts for
 
the
quarter in question and the two prior quarters.