Exhibit 10.2(a)
THIS EMPLOYMENT AGREEMENT IS
SUBJECT TO ARBITRATION PURSUANT TO THE SOUTH CAROLINA
UNIFORM ARBITRATION ACT, SECTION 15-48-10 ET SEQ., AS
AMENDED.
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “
Agreement ”) is made as of the 9th day of
April, 2008, by and between Coastal Carolina Bancshares, Inc.
a South Carolina corporation (the “ Company ”),
and Joel P. Foster (“ Employee ”) to be
effective as of the date hereof. Upon the formation of the
Company’s proposed national bank association subsidiary, this
Agreement shall be assigned to said proposed national bank
subsidiary (the “ Bank ”) (the Company and the
Bank are collectively referred to herein as “ Employer
”) pursuant to the provisions set forth herein.
W I T N
E S S E T H
WHEREAS, the Company (as successor by merger to
Coastal Carolina Dream Team, LLC) and the Employee are parties to
an employment agreement dated February 14th , 2008
(the “Current Agreement”); and
WHEREAS, the Company and the Employee desire to
terminate the Current Agreement and replace it with this Agreement
which shall amend and restate in its entirety the Current
Agreement.
NOW
THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and intending to be legally bound hereby, the
parties agree as follows:
1.
Termination of Current Agreement; Position and Duties.
The Current Agreement is hereby terminated effective as of the date
hereof and amended, restated and replaced with this
Agreement. Employer agrees, effective upon the date the Bank
receives its charter from the Office of the Comptroller of the
Currency (the “OCC”), to employ the Employee as CLO and
SVP of the proposed Bank. Prior to the date the Bank receives
its charter, Employee shall aide Employer in organizing the
Bank.
Employee will have such managerial and
operational duties as directed by the President and Chief Executive
Officer (“CEO”) of the Employer. Further,
Employee agrees to serve, without additional compensation, if
elected, in any other senior executive position of the Company or
the Bank that may be reasonably required of him, including as an
officer or director or both of any subsidiary or affiliate of the
Company or the Bank in accordance with Section 7 below.
The Employee shall at all times comply with all laws,
rules and regulations which may be applicable to the
Employer.
Employee shall devote his full-time and best
efforts to his employment with the Employer and shall apply
substantially that degree of skill and diligence in rendering
services to the Employer as would be applied by a person of
ordinary prudence and comparable experience under similar
circumstances. Notwithstanding the foregoing,
Employee may
devote a reasonable amount of his time to his personal investments
and to civic and charitable activities; provided, however, Employee
shall not accept any position as a director of any unaffiliated
for-profit business organization without the prior approval of the
Company’s President and CEO.
2.
Compensation.
(a) Annual Salary . During
the term (as defined in Section 8), Employee shall be entitled
to receive an annual base salary of $150,000 per year (the “
Annual Salary ”), payable in accordance with
Employer’s instituted payroll practice, prorated for any
partial employment period. The Annual Salary may be increased
from time to time by the Board of Directors of the Bank based on
recommendation by the Bank’s CEO, but shall not be decreased
without the written consent of Employee. The CEO, in making
any recommendation, shall consider Employee’s annual
performance in light of the specific goals and objectives for
Employee which shall be established annually in writing, after
consultation with the CEO.
(b) Stock Options. Upon the
Company receiving approval from the appropriate governmental
regulatory agencies to acquire the Bank and the Company selling
stock in its initial public stock offering, Employee shall be
entitled to receive the following stock options to be granted to
Employee on the date the Bank opens for business pursuant to the
terms of a to-be-established stock option plan:
(i) If the Company receives capital from
its initial stock offering, in the amount of not less than
$20,000,000.00 Dollars to $20,999,999.00 Dollars, Employee shall be
entitled to receive options for 30,000 shares of Company common
stock;
(ii) If the Company receives capital from
its initial stock offering, in the amount of not less than
$21,000,000.00 Dollars to $24,999,000.00, Dollars, Employee shall
be entitled to receive options for 35,250 shares of Company common
stock;
(iii) If the Company receives capital,
from its initial stock offering, in the amount of not less than
$25,000,000.00 Dollars to $29,999,000.00 Dollars, Employee shall be
entitled to receive options for 37,500 shares of Company common
stock; or
(iv) If the Company receives capital,
from its initial stock offering, in the amount of not less than
$30,000,000.00 Dollars, Employee shall be entitled to receive
options for 38,700 shares of Company common stock.
The
stock option agreement, when prepared, shall provide, among other
things, that Employee’s options, as above provided, shall be
subject to a five year vesting period with no more than 20 percent
vesting each year.
(c) Equity Based Compensation.
In each year of employment, Employee shall be eligible to
receive appropriate awards of stock options, restricted stock
and/or other equity based compensation under such terms and
conditions as determined by the Company’s Board of Directors,
in its sole discretion.
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3.
Fringe Benefits, Vacation Time, Expenses and Perquisites.
During the Term (as defined in Section 8 below):
(a) Benefit Plan Participation
. Employer anticipates it will establish and implement
appropriate benefit plans and programs, that will contain such
terms and conditions as are selected by the Company’s Board
of Directors, in its discretion. Subject thereto, Employee shall be
eligible to participate in or receive benefits under all corporate
employment benefit plans made available by Employer to its
executives and key management employees.
(b) Vacation Time Allowances
. Employee shall be entitled each calendar year to twenty
(20) business days of vacation, prorated for any partial year,
during which time Employee’s compensation will continue to be
paid. Employee shall take ten (10) of the twenty (20)
vacation days consecutively each year. Unused vacation days
shall not accumulate from year to year.
(c) Business Expense Reimbursement
. During the term, Employee shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by him
(in accordance with the policies and procedures established by
Employer) in performing services hereunder, provided that Employee
properly accounts therefor in accordance with company
policy.
(d) Automobile Allowance .
Employee shall receive a monthly automobile allowance in the amount
of Seven Hundred Fifty Dollars ($750.00).
(e) Club Dues . Employer
will pay the dues for Employee’s membership in the Dunes Club
and a membership with the Sertoma Club.
(f) Cell Phone . Employer
will provide Employee with a cell phone and shall pay the monthly
fees in connection therewith.
(g) Health Insurance. From
the date hereof until thirty (30) days following the Bank opening
date, Employer shall reimburse Employee one-half (1/2) of his
monthly COBRA payments upon Employee presenting the necessary
documentation that he has paid such.
4.
Confidential Information and Restrictive Covenants.
Employee
acknowledges that he has performed services or will perform
services hereunder which directly affect the Employer’s
business. Accordingly, the parties deem it necessary to enter
into the protective provisions set forth below, the terms and
conditions of which have been negotiated by and between the parties
hereto.
(a) Non-Competition .
Employee expressly covenants and agrees that during the Term and
for a period of eighteen (18) full months after termination of his
association with the Employer, for any reason other than pursuant
to subsection (d), (e), (g) or (h) of Section 9
hereof, Employee shall not directly or indirectly, either as a
principal, agent, employee, employer, stockholder, organizer,
director, co-partner or in any other individual or representative
capacity whatsoever, engage in the banking and financial services
business, which includes, but is not limited to, the commercial
banking, insurance agency, wealth management, trust, savings and
loan, and mortgage banking
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businesses,
and any other business in which the Employer or any of its
subsidiaries is engaged, or efforts to organize a banking or other
financial services business, anywhere within Horry, Georgetown,
Florence, and Williamsburg Counties in South Carolina and Brunswick
and Pender Counties in North Carolina; provided, however, that
Employee shall not be prohibited hereunder from passively investing
in a business similar to the banking and other financial business
activities of the Employer or any of its subsidiaries, if such
investment is limited to less than one percent of the capital stock
or other securities of any such corporation or other
entity.
(b) Non-Solicitation of Employees
. Employee agrees that, during the Term and for a period of
eighteen (18) full months thereafter he will (i) not solicit,
entice, persuade or induce any other employee of the Employer or
any of its subsidiaries to leave the employ or association of such
entity, and (ii) refrain from recruiting or hiring, or
attempting to recruit or hire, directly or by assisting others, any
individual who is employed by the Employer or any of its
subsidiaries at the time of the attempted recruiting or
hiring.
(c) Non-Solicitation of Customers
. Employee agrees that, during the Term and for a period of
eighteen (18) full months thereafter, he will not, directly or
indirectly, solicit any business from any of the customers of the
Employer or any of its subsidiaries, or actively seek prospective
customers of the Employer or any of its subsidiaries, with whom
Employee had material direct or indirect contact within the last
twenty-four (24) months of Employee’s association hereunder
for purposes of providing products or services that are similar to
or competitive with those provided by the Employer or any of its
subsidiaries, if the Employer or any of its subsidiaries is also
then still engaged in such business.
5.
Unauthorized Disclosure. Employee shall not, without the
written consent of the Board of Directors of the Company or the
Bank, or a person authorized thereby knowingly disclose to any
person, other than an employee of Employer or a person to whom
disclosure is reasonably necessary or appropriate in connection
with the performance by Employee of his duties hereunder or as
required by law, any material confidential information obtained by
him while in the employ of Employer with respect to any of
Employer’s services, products, improvements, formulas,
designs or styles, processes, customers, methods of distribution or
any business practices the disclosure of which he knows or
reasonably should know will or is likely to be damaging to
Employer; provided, however, that confidential information shall
not include any information known generally to the public (other
than as a result of unauthorized disclosure by Employee) or any
information of a type not otherwise considered confidential by
persons engaged in the same business or a business similar to that
conducted by Employer.
The
covenants contained in this Section 5 shall survive the
termination of Employee’s employment hereunder for any reason
for a period of two years; provided, however, that with respect to
those items of confidential information which constitute a trade
secret under applicable law, Employee’s obligations of
confidentiality and non-disclosure as set forth in this
Section 5 shall continue to survive after said two-year period
to the greatest extent permitted by applicable law. These
rights of Employer are in
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addition to
those rights Employer has under the common law or applicable
statutes for the protection of trade secrets.
6.
Injunctive Relief. It is understood and agreed by
the parties hereto that the services to be rendered by Employee
hereunder are of a special, unique, extraordinary and intellectual
character, which gives them a peculiar value, the loss of which may
not be reasonably or adequately compensated in damages, and
additionally that a breach by Employee of the covenants set out in
Sections 4 and 5 of this Agreement will cause Employer great and
irreparable injury and damage. Employee hereby expressly
agrees that Employer shall be entitled to the remedies of
injunction, specific performance and other equitable relief to
prevent a breach of Sections 4 or 5 of this Agreement by
Employee. This provision shall not, however, be construed as
a waiver of any of the remedies which Employer may have for damages
or otherwise.
7.
Subsidiaries . It is understood and agreed
by the parties hereto that, at the election and direction of
Employer and without modification of the terms and provisions
hereof, Employee may also serve as an executive officer or director
or both of any one or more subsidiaries of the Company or the Bank,
when and as so determined by Employer.
8.
Term of Employment . E
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