EXHIBIT 10.2
EXECUTION COPY
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT
(this “Agreement”), made and entered into as of March
4, 2004 by and among 1st United Bancorp , a business
corporation organized and operating under the laws of the State of
Florida (the “Company”), 1st United Bank , a
commercial bank organized and operating under the laws of the State
of Florida (the “Bank”), and John Marino , an
individual residing at 14662 Rolling Rock Place, Wellington, FL
33414 (the “Executive”), is amended and restated,
effective December 18, 2008.
WITNESSETH:
WHEREAS , the Executive has agreed to serve the Company
in the capacities of President and Chief Operating Officer and the
Bank in the capacities of Chief Operating Officer and Chief
Financial Officer; and
WHEREAS , the Company, the Bank and the Executive
entered into an Employment Agreement dated March 4, 2004 (the
“Agreement”), as amended, January 1, 2007, and the
parties desire to amend the Agreement; and
WHEREAS , the Executive is willing to serve the Company
and the Bank on the terms and conditions hereinafter set
forth;
NOW , THEREFORE ,in consideration of the
Executive’s employment and the mutual covenants herein
contained, the Company, the Bank and the Executive hereby agree
that the terms of the Agreement are hereby modified and, to the
extent inconsistent with the terms of the Agreement, superseded as
follows. All other provisions of the Agreement remain as described
in the Agreement. All capitalized terms not defined herein shall
have the meanings ascribed to them in the Agreement:
Section 1.
Employment . Each of the Company and the Bank agrees to
employ the Executive as the President and Chief Operating Officer
of the Company and Chief Financial Officer and Chief Operating
Officer of the Bank, and the Executive hereby agrees to such
employment, during the period and upon the terms and conditions set
forth in this Agreement.
Section 2.
Employment Period; Remaining Unexpired
Employment Period .
(a) The
terms and conditions of this Agreement shall be and remain in
effect during the period of employment established under this
Section 2 (“Employment Period”). The Employment Period
shall be for an initial term of three (3) years beginning on the
date of this Agreement and ending on the third anniversary date of
this Agreement, plus such extensions, if any, as are provided
pursuant to Section 2(b).
(b) Beginning
on the date of this Agreement, the Employment Period shall
automatically be extended for one (1) additional day each day,
unless either the Company and the Bank, acting jointly, or the
Executive elects not to extend the Agreement further by
giving written notice to the
other parties, in which case the Employment Period shall end on the
third anniversary of the date on which such written notice is
given. For all purposes of this Agreement, the term
“Remaining Unexpired Employment Period” as of any date
shall mean the period beginning on such date and ending on: (i) if
a notice of non-extension has been given in accordance with
this
Section 2(b), the third anniversary
of the date on which such notice is given; and (ii) in all other
cases, the third anniversary of the date as of which the Remaining
Unexpired Employment Period is being determined. Upon termination
of the Executive’s employment with the Company and the Bank
for any reason whatsoever, any daily extensions provided pursuant
to this Section 2(b), if not therefore discontinued, shall
automatically cease.
(c) Subject
to Section 3, nothing in this Agreement shall be deemed to prohibit
the Company or the Bank from terminating the Executive’s
employment at any time during the Employment Period with or without
notice for any reason; provided, however, that the relative
rights and obligations of the Company, the Bank and the Executive
in the event of any such termination shall be determined under this
Agreement.
Section 3.
Duties . The Executive shall serve as President and Chief
Operating Officer of the Company and Chief Operating Officer and
Chief Financial Officer of the Bank, having such power, authority
and responsibility and performing such duties as are prescribed by
or under the Bylaws of the Company and the Bank and as are
customarily associated with such position. The Executive shall
devote his full business time and attention (other than during
weekends, holidays, approved vacation periods, and periods of
illness or approved leaves of absence) to the business and affairs
of the Company and the Bank and shall use his best efforts to
advance the interests of the Company and the Bank. The Executive
shall at all times report to the Boards of Directors of the Company
and the Bank. All decisions by the Boards of Directors of the
Company and the Bank concerning the Executive’s employment,
including without limitation, the termination of the Executive,
shall require the prior written consent of at least eighty percent
(80%) of the entire Board of Directors (not including the vote of
the Executive), and the Company and the Bank shall adopt and
maintain their Bylaws and other organizational documents to reflect
such vote requirement. The Company and the Bank shall provide
evidence of such written consent to the Executive as to any actions
that require such Written Consent.
Section 4.
Cash Compensation . In consideration for the services to be
rendered by the Executive hereunder, the Company and/or the Bank,
in such combination thereof as may be agreed by the Boards of
Directors of the Company and the Bank, shall pay to the Executive a
salary at an initial annualized rate of ONE HUNDRED TWENTY-FIVE
THOUSAND AND NO/100 DOLLARS ($125,000.00), payable in approximately
equal installments in accordance with the Company’s and/or
the Bank’s customary payroll practices for senior officers
less applicable payroll taxes. Commencing on the first day of the
calendar month subsequent to the later to occur of (a) the day that
the Company and the Bank have consolidated total assets of at least
$150 million, and (b) the last day of the month during which the
Company achieves its first month of profitability on a consolidated
basis, the Executive’s salary shall be automatically
increased to a minimum annual rate of TWO HUNDRED FIFTY THOUSAND
AND NO/100 DOLLARS ($250,000.00), payable in approximately equal
installments in accordance with the Company’s and/or the
Bank’s customary payroll practices for senior officers. At
least annually during the Employment Period, the Board of Directors
of the Bank and/or the Company, or the Compensation Committees
thereof, shall review the Executive’s annual rate of salary
and may, in its or their
discretion, approve an increase therein. In no event shall the
Executive’s annual rate of salary under this Agreement in
effect at a particular time be reduced without his prior written
consent, which consent may be withheld in the Executive’s
sole discretion. In addition to his base salary, beginning with the
fiscal quarter of the Company during which the Company achieves its
first month of profitability on a consolidated basis, and for each
fiscal quarter thereafter, the
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Executive shall be paid additional
cash compensation (the “Cash Incentive Compensation”)
equal to two percent (2%) of the Company’s consolidated net
income before taxes for each such fiscal quarter (excluding
extraordinary items as defined in APB #30 (or any successor
bulletin) and excluding restructuring charges and other charges
relating to mergers, acquisitions or transactions of similar
effect) for financial reporting purposes. In the event that the
period for which the Cash Incentive Compensation payable to the
Executive is less than a full fiscal quarter ( e.g. , where
the effective date of termination of this Agreement is not as of
the end of a quarter), the amount of Cash Incentive Compensation
payable to the Executive shall be calculated by multiplying the
Cash Incentive Compensation to which the Executive would have been
entitled for such fiscal quarter (had he been employed for the
entire quarter) by a fraction, the numerator of which is the number
of days during such fiscal quarter up to and including the
effective date of termination, and the denominator of which is the
number of days in such fiscal quarter. Such Cash Incentive
Compensation shall be paid by the Company to the Executive
quarterly, within forty-five (45) days after the end of each such
calendar quarter. In addition to the foregoing salary and Cash
Incentive Compensation, the Executive may receive other cash
compensation from the Company and/or the Bank for services
hereunder at such times, in such amounts and on such terms and
conditions as the Boards may determine from time to time. The term
“Cash Compensation” shall mean the total of the
Executive’s salary and the Cash Incentive Compensation
unreduced by any 401(k) plan elective deferrals. The term
“Compensation” shall mean the aggregate of all taxable
compensation of any nature whatsoever unless clearly indicated to
the contrary in the context so used.
Section 5.
Employee Benefit Plans and Programs . During the Employment
Period, the Executive shall be treated as an employee of the
Company and the Bank and shall be entitled to participate in and
receive benefits pursuant to: (A) any and all employee pension
plans (“Employee Pension Benefit Plans” as that term is
defined in the Employee Retirement Income Security Act of 1974
(“ERISA”) and whether or not such plan is a plan
covered by ERISA), including but not limited to all qualified or
non-qualified retirement, pension, savings, profit-sharing or stock
bonus plans, and (B) any and all welfare benefit plans (Employee
Welfare Benefit Plans (as that term is defined in ERISA and whether
or not such plan is a plan covered by ERISA)) including but not
limited to group life, health (including hospitalization, medical
and major medical, prescription drug), dental, accident and
long-term disability insurance plans, and (C) any other employee
benefit and compensation plans (including, but not limited to, any
incentive compensation plans or programs, stock option and
appreciation rights plans and restricted stock plans) as may from
time to time be maintained by, or cover employees of, the Company
or the Bank, in accordance with the terms and conditions of such
employee benefit plans and programs and compensation plans and
programs and consistent with the Company’s and the
Bank’s customary practices and whether or not such plans are
ERISA plans. Such benefits or plans shall collectively be referred
to as “Employee Benefit Plans.”
Without regard to the foregoing, the
Executive shall affirmatively be provided the following Employee
Benefit Plans during the Employment Period commencing as of
the Employment Effective Date
without regard to the respective eligibility or terms or conditions
of the Employee Benefit Plans:
(a) The
Executive shall be granted by the Company, pursuant to terms as
contained in stock option agreements, stock options in an amount
equal to three and one-third percent (3.33%) of the issued and
outstanding common stock of the Company from time to time (not
including any
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common stock outstanding as a result
of the exercise by the Executive of options granted to him. Any
options issued under this provision on or after January 1, 2007
shall be granted with an exercise price equal to the fair market
value (as defined in Section 409A of the Internal Revenue Code of
1986 (the “Code”)) of the underlying shares of common
stock and shall vest and become exercisable in five (5) equal
increments on the 12, 24, 36, 48 and 60 month anniversaries after
the date of grant; provided, however, that notwithstanding any
other provision in the Agreement to the contrary, in the event (i)
the Executive is terminated by the Company not for
“cause” as defined in Section 10(a)(i) of the
Agreement, (ii) of a Change of Control, (iii) of the death of the
Executive, or (iv) of the Disability of the Executive, then any
unvested outstanding options granted under this provision upon the
date of one of these events shall become immediately vested and
exercisable upon such date. Such options may be exercised through
net share settlements ( i.e. , the Company delivers to the
Executive an amount of shares of common stock with a current fair
value equal to the gain) pursuant to the terms of the applicable
stock option agreement entered into between the Executive and the
Company.
(b) The
Company shall provide group medical insurance coverage to the
Executive, his spouse and his dependent children, and such plan
shall include reasonable coverage for medical, hospital, surgical,
prescription drug coverage and major medical expenses. The Company
and/or the Bank shall pay all premium expenses of the Executive,
his spouse and his dependent children in connection with such group
medical insurance.
(c) The
Company shall provide and pay the premium costs of short-term and
long-term disability policies to compensate the Executive in the
event of his incapacity due to physical or mental illness, with
coverage in an amount equal to at least seventy-five percent (75%)
of the Executive’s highest aggregate annualized Cash
Compensation in the three (3) fiscal years immediately preceding
the determination of disability.
(d) During
the Employment Period, the Executive shall be entitled to six (6)
weeks (thirty business days) of vacation in each calendar year, and
shall be compensated with respect thereto in accordance with the
Company’s and the Bank’s normal vacation policies. The
Executive shall also be entitled to all paid holidays in accordance
with the Company’s and the Bank’s normal holiday
policies.
(e) The
Company or the Bank shall own and pay the costs of premiums on
guaranteed renewable straight term life insurance insuring the life
of the Executive in an amount equal to the lesser of (i) two (2)
times the Executive’s base salary or (ii) $250,000.00, and
the Company or Bank shall designate the beneficiary of such policy
as such person or persons named by the Executive from time to
time.
(f) At
the Executive’s election, the Company shall provide to the
Executive either (i) an automobile allowance in the amount of
$1,000.00 for each calendar month or portion thereof during the Employment Period, or (ii)
the full-time use of a company car, to be selected by the
Executive, which company car shall be replaced at its 24-month
anniversary by another company car to be selected by the Executive.
The Executive shall also be provided with a credit card to purchase
gasoline for the company car. Allowances under this Section 5(f)
may be made pursuant to either an accountable or non-accountable
expense plan for federal income tax purposes as the Executive may
determine.
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(g) In
addition to reimbursements for memberships described in Section 8,
the Company and/or the Bank shall reimburse the Executive for the
costs associated with one (1) country club membership and one (1)
dining club membership of the Executive’s
choosing.
(h) Commencing
on the first day of the calendar month following the first month
that the Company and the Bank have consolidated total assets of at
least $250 million, the Company will begin to accrue for the
Supplemental Executive Retirement Plan (the “SERP”),
attached hereto as Exhibit A , for the Executive.
Section 6.
Indemnification and Insurance
.
(a) During
the Employment Period and for a period of six (6) years thereafter,
the Company and the Bank shall cause the Executive to be covered by
and named as an insured under any policy or contract of insurance
obtained by either to insure its directors and officers against
personal liability for acts or omissions in connection with service
as an officer or director of the Company or the Bank or service in
other capacities at the request of the Company or the Bank. The
coverage provided to the Executive pursuant to this Section 6 shall
be of the same scope and on the same terms and conditions as the
coverage (if any) provided to other officers or directors of the
Company and the Bank.
(b) To
the maximum extent permitted under applicable law, during the
Employment Period and for a period of six (6) years thereafter, the
Company and the Bank shall indemnify the Executive against, and
hold him harmless from and pay, any costs, liabilities, losses and
exposures to the fullest extent and on the most favorable terms and
conditions that similar indemnification is offered to any director
or officer of the Company, the Bank or any subsidiary or affiliate
of either of them, and the Company and the Bank shall advance such
expenses absent an initial determination by the Company and the
Bank that the Executive shall have acted in bad faith.
Section 7.
Other Activities .
(a) The
Executive may serve as a member of the boards of directors of such
business, community and charitable organizations as he may disclose
to and as may be approved by the Board of Directors of the Company
or the Bank (which approval shall not be unreasonably withheld);
provided, however, that any such service shall not
materially interfere with the performance of his duties under this
Agreement. The parties hereby approve the Executive’s
activities with the organizations listed on Exhibit B . The
Executive may also engage in personal business and investment
activities which do not materially interfere with the performance
of his duties hereunder; provided , however , that
such activities are not prohibited under any code of
conduct or investment or securities
trading policy established by the Company or the Bank and generally
applicable to all similarly situated executives.
(b) If
the Executive is discharged or suspended, or is subject to any
regulatory prohibition or restriction with respect to participation
in the affairs of the Bank, he shall (subject to the
Company’s powers of termination hereunder) continue to
perform services for the Company in accordance with this Agreement
but shall not directly or indirectly provide services to or
participate in the affairs of the Bank in a manner inconsistent
with the terms of such discharge or suspension or any applicable
regulatory order.
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Section 8.
Working Facilities and Expenses . The Executive’s
principal place of employment shall be at the Company’s and
the Bank’s principal offices, or at such other location
within Palm Beach County, Florida at which the Company or the Bank
shall maintain executive offices, or at such other location as the
Company, the Bank and the Executive may mutually agree upon. The
Company and the Bank shall provide the Executive at his principal
place of employment with a private office, secretarial services and
other support services and facilities suitable to his positions
with the Company and the Bank and necessary or appropriate in
connection with the performance of his assigned duties under this
Agreement. The Company or the Bank shall reimburse the Executive
for his ordinary and necessary business expenses, including,
without limitation, all fees for memberships in such clubs (except
only one (1) country club membership and one (1) dining club
membership, as described in Section 5(g) above) and organizations
as the Executive and the Company and Bank shall mutually agree are
necessary and appropriate for business purposes, continuing
education and his travel and entertainment expenses incurred in
connection with the performance of his duties under this Agreement,
in each case upon presentation to the Company or the Bank of an
itemized account of such expenses in such form as the Company or
Bank may reasonably require.
Section 9.
Termination of Employment With Severance
Benefits .
(a) The
Executive shall be entitled to the severance benefits described
herein in the event that his employment with the Company and the
Bank terminates during the Employment Period under any of the
following circumstances:
(i) The
Executive’s voluntary resignation from employment with the
Company and the Bank within ninety (90) days following:
(A) The
failure of the Board of Directors of either the Company or the Bank
to appoint or re-appoint or elect or re-elect the Executive to the
office of President of the Company and Chief Operating Officer and
Chief Financial Officer of the Bank (or a more senior office, if
any);
(B) The
failure of the stockholders of the Company or Bank to elect or
re-elect the Executive to the Board of Directors of the Company or
the Bank, respectively, or the failure of the Board of Directors of
the Company or the Bank (or the nominating committees thereof) to
nominate the Executive for such election or re-election;
(C) The
expiration of a thirty (30) day period following the date on which
the Executive gives written notice to the Company or the Bank (i)
of its or their material failure, whether by amendment of the
Company’s or the Bank’s Articles of Incorporation or
Bylaws, action of the Company’s or the Bank’s Board of
Directors or the Company’s or the Bank’s stockholders
or otherwise, to vest in the Executive the functions, duties or
responsibilities prescribed in Section 3 of this Agreement as of
the date hereof, or (ii) that the Company or the Bank has or have
prohibited, prevented or otherwise made it reasonably impracticable
for the Executive to perform his functions, duties or
responsibilities as prescribed in Section 3 of this Agreement,
unless, in either event, during such thirty (30) day period, the
Company or the Bank cures such failure in a manner determined by
the Executive, in his discretion, to be satisfactory;
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(D) The
expiration of a thirty (30) day period following the date on which
the Executive gives written notice to the Company or the Bank of
its material breach of any term, condition or covenant contained in
this Agreement (including, without limitation, any reduction of the
Executive’s rate of base salary in effect from time to time
and any adverse change in the terms and conditions to the Executive
of any Employee Pension Benefit Plan or Employee Welfare Benefit
Plan or as to any other compensation or benefit program in which
the Executive participates which, either individually or together
with other changes, has or could have a material adverse effect on
the aggregate value of his total compensation package), unless,
during such thirty (30) day period, the Company or the Bank cures
such failure in a manner determined by the Executive, in his
discretion, to be satisfactory; or
(E) The
relocation of the Executive’s principal place of employment,
without his written consent (which may be withheld in the sole
discretion of the Executive), to a location outside of Palm Beach
County, Florida.
(ii) The
termination of the Executive’s employment with the Company or
the Bank by the Company or the Bank for any other reason not
described in Section 10(a).
In such event, the Company or the
Bank shall provide the benefits and pay to the Executive the
amounts described in Section 9(b).
(b) Upon
the termination of the Executive’s employment with the
Company and/or the Bank prior to a Change of Control under any of
the events set forth in Sections 9(a)(i) or (ii) during the
Employment Period; or upon a Change of Control (as hereinafter
defined), the Company and/or the Bank (jointly and/or severally)
shall pay and provide to the Executive (or, upon death then to the
Executive’s estate) the following Severance
Benefits:
(i) The
Executive’s earned but unpaid Cash Compensation (as
determined pursuant to Section 4) in effect as of the applicable
Triggering Event Date (as defined below), such payment to be made
at the time and in the manner prescribed by law applicable to the
payment of wages but in no event later than thirty (30) days after
the applicable Triggering Event Date ( provided that if the
Executive has made an irrevocable election under any deferred compensation
arrangement subject to Section 409A of the Code to defer any
portion of such Cash Compensation, the terms of the applicable
arrangement shall apply to distribution of such portion);
and
(ii) If
the Triggering Event Date is a termination of employment, the
Executive’s vested, accrued benefits in all Employee Benefit
Plans to which the Executive was entitled pursuant to this
Agreement as of the date of termination, payable in accordance with
the terms of the applicable Employee Benefit Plan; and
(iii) Within
thirty (30) days following the effective date of any of the
triggering events referred to in the first sentence in this Section
9(b) (the “Triggering Event Date”), payment of a lump
sum amount equal to the Cash Compensation that the Executive would
have earned if he had continued working for the Company and the
Bank for a period of 1,095 days after the Triggering Event Date and
at the highest annual or annualized, rate of Cash Compensation
achieved during that portion of the Employment Period prior to
the
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Triggering Event Date. Such lump sum
shall not be reduced to a present value and shall be paid in
addition to any other Compensation payments otherwise provided
hereunder; and
(iv) Within
thirty (30) days following the Triggering Event Date, payment of a
lump amount equal to the excess, if any, of:
(A) The
present value of both the current and future accrued benefits in
each Employee Pension Benefit Plan that is a defined benefit plan
to which the Executive would have been entitled (which shall be
computed at the highest annual or annualized rate of Cash
Compensation in effect during the Employment Period and at the same
rate of Employee Pension Benefit Plan funding and/or benefit
accrual, determined separately for each such Employee Pension
Benefit Plan or as historically had been contributed, whichever is
greater, for an Employment Period concluding on the third
anniversary of the Triggering Event Date as if the Executive had
continued working for the Company and the Bank for the Employment
Period consisting of such three additional plan years. Such
benefits shall be determined separately for each such Employee
Pension Benefit Plan in effect as of the termination date;
over
(B) The
present value of the accrued benefits to which the Executive is
actually entitled under each such Employee Pension Benefit Plan
that is a defined benefit plan as of the Triggering Event Date
using comparable actuarial assumptions (where applicable) as then
being utilized by such respective plan. In computing the present
value of such lump sum payment, the annualized rate of interest
prescribed by the Pension Benefit Guaranty Corporation for the
computation of the value of lump sum payments otherwise payable
under terminating single employer defined benefit plans for the
month in which the Executive’s termination of employment
occurs (“Applicable PBGC Rate”) shall be utilized;
and
(v) Within
thirty
