U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
(Mark One)
X Quarterly report under Section 13 or 15(d) of the Securities Exchange Act
of 1934
For the quarterly period ended June 30, 1999
Transition report under Section 13 or 15(d) of the Exchange Act
For the transition period from ______________ to ______________
Commission file number 001-14853
JACKSONVILLE BANCORP, INC.
(Exact Name of Small Business Issuer as Specified in Its Charter)
Florida 59-3472981
- --------------------------------- -------------------
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
10325 San Jose Boulevard
Jacksonville, Florida 32257
----------------------------------------
(Address of Principal Executive Offices)
(904) 288-0793
------------------------------------------------
(Issuer's Telephone Number, Including Area Code)
---------------------------------------------------------------
(Former Name, Former Address and Former Fiscal Year, if Changed
Since Last Report)
Check whether the issuer: (1) filed all reports required to be filed by Section
12, 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days (The Company
has been subject to filing requirements since May 18, 1999).
YES NO X
State the number of shares outstanding of each of the issuer's classes of common
equity, as of the latest practicable date:
Common stock, par value $.01 per share 905,716
- -------------------------------------- --------------------------------------
(class) Outstanding at June 30, 1999
<PAGE>
JACKSONVILLE BANCORP, INC.
INDEX
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION
<S> <C>
Item 1. Financial Statements Page
Condensed Consolidated Balance Sheets (Unaudited) -
At June 30, 1999 and At December 31, 1998...................................... 2
Condensed Consolidated Statements of Operations (Unaudited) -
Three and Six Months ended June 30, 1999 and 1998.............................. 3
Condensed Consolidated Statement of Stockholders' Equity (Deficit) (Unaudited) -
Six Months ended June 30, 1999................................................. 4
Condensed Consolidated Statements of Cash Flows (Unaudited) -
Six Months ended June 30, 1999 and 1998........................................ 5
Notes to Condensed Consolidated Financial Statements (Unaudited).................... 6-8
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations...................................................... 9-10
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K........................................... 11
SIGNATURES.......................................................................... 12
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
JACKSONVILLE BANCORP, INC.
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Balance Sheets
(Unaudited)
June 30, December 31,
-------- ------------
Assets 1999 1998
<S> <C> <C>
Cash and due from banks .................................. $ 428,423 8,600
Interest bearing deposits ................................ 316,140 20,586
Federal funds sold ....................................... 5,016,000 --
----------- ---------
Cash and cash equivalents ................................ 5,760,563 29,186
Securities available for sale ............................ 1,500,000 --
Loans .................................................... 208,912 --
Premises and equipment, net .............................. 1,645,311 1,334,288
Deferred tax asset ....................................... 403,349 172,494
Accrued interest receivable and other assets ............. 83,128 95,293
----------- ---------
Total assets ............................................. $ 9,601,263 1,631,261
=========== =========
Liabilities and Stockholders' Equity (Deficit)
Liabilities:
Demand deposits .......................................... 332,482 --
Savings and NOW deposits ................................. 411,579 --
Money-market deposits .................................... 449,773 --
Time deposits ............................................ 296,022 --
----------- ---------
Total deposits ........................................... 1,489,856 --
Borrowings ............................................... -- 1,615,000
Official checks .......................................... 92,201 --
Accrued interest payable and other liabilities ........... 54,928 341,343
----------- ---------
Total liabilities ........................................ 1,636,985 1,956,343
----------- ---------
Stockholders' equity (deficit):
Preferred stock, $.01 value; 2,000,000 shares authorized,
none issued or outstanding ............................... -- --
Common stock, $.01 par value; 8,000,000 shares authorized,
905,716 shares issued and outstanding .................... 9,057 --
Additional paid-in capital ............................... 8,653,410 --
Accumulated deficit ...................................... (698,189) (325,082)
----------- ---------
Total stockholders' equity (deficit) ..................... 7,964,278 (325,082)
----------- ---------
Total liabilities and stockholders' equity (deficit) ..... $ 9,601,263 1,631,261
=========== =========
</TABLE>
See Accompanying Notes to Condensed Consolidated Financial Statements.
2
<PAGE>
JACKSONVILLE BANCORP, INC.
Condensed Consolidated Statements of Operations
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
------------------ ----------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Interest income:
Loans ....................................... $ 1,563 -- 1,563 --
Securities .................................. 1,700 -- 1,700 --
Other interest-earning assets ............... 73,937 345 74,108 1,225
--------- ------- -------- --------
Total interest income ....................... 77,200 345 77,371 1,225
--------- ------- -------- --------
Interest expense:
Deposits .................................... 1,702 -- 1,702 --
Other borrowings ............................ 25,074 6,565 44,876 10,532
--------- ------- -------- --------
Total interest expense ...................... 26,776 6,565 46,578 10,532
--------- ------- -------- --------
Net interest income (expense) ............... 50,424 (6,220) 30,793 (9,307)
--------- ------- -------- --------
Noninterest income-
Other fees and service charges .............. 22,804 -- 22,804 --
--------- ------- -------- --------
Noninterest expense:
Salaries and employee benefits .............. 216,658 54,854 375,954 100,332
Occupancy expense ........................... 36,828 3,833 48,748 6,458
Professional fees ........................... 105,008 15,140 159,810 18,640
Data processing ............................. 10,376 -- 10,376 --
Travel and entertainment .................... 7,534 3,854 13,621 9,595
Printing and office supplies ................ 4,090 1,702 6,453 2,456
Telephone expense ........................... 8,175 701 11,626 1,278
Application fees ............................ 788 10,000 788 25,159
Other ....................................... 19,220 3,933 30,183 4,381
--------- ------- -------- --------
Total noninterest expense ................... 408,677 94,017 657,559 168,299
--------- ------- -------- --------
Loss before income tax benefit .............. (335,449) (100,237) (603,962) (177,606)
Income tax benefit .......................... (130,163) (37,589) (230,855) (66,602)
--------- ------- -------- --------
Net loss .................................... $(205,286) (62,648) (373,107) (111,004)
========= ======= ======== ========
Loss per share, basic ....................... $ (.48) -- (1.69) --
========= ======= ======== ========
Weighted-average number of shares outstanding
for basic ................................... 430,545 -- 220,154 --
========= ======= ======== ========
</TABLE>
See Accompanying Notes to Condensed Consolidated Financial Statements.
3
<PAGE>
JACKSONVILLE BANCORP, INC.
Condensed Consolidated Statement of Stockholders' Equity (Deficit)
Six Months Ended June 30, 1999
(Unaudited)
<TABLE>
<CAPTION>
Total
Additional Stockholders'
Preferred Common Paid-In Accumulated Equity
Stock Stock Capital Deficit (Deficit)
----- ----- ------- ------- ---------
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1998 ............... $ -- -- -- (325,082) (325,082)
Issuance of common stock (905,716
shares), net of stock issuance costs
of $394,693 ........................ -- 9,057 8,653,410 -- 8,662,467
Net loss for the six months ended June
30, 1999 ........................... -- -- -- (373,107) (373,107)
------- ----- --------- -------- ---------
Balance at June 30, 1999 ................... $ -- 9,057 8,653,410 (698,189) 7,964,278
======= ===== ========= ======== =========
</TABLE>
See Accompanying Notes to Condensed Consolidated Financial Statements.
4
<PAGE>
JACKSONVILLE BANCORP, INC.
Condensed Consolidated Statements of Cash Flows
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
June 30,
----------------
1999 1998
---- ----
<S> <C> <C>
Cash flows from operating activities:
Net loss ................................................ $ (373,107) (111,004)
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation ............................................ 9,735 --
Credit for deferred income taxes ........................ (230,855) (66,602)
Decrease (increase) in accrued interest receivable and
other assets .................................... 12,165 (74,390)
(Decrease) increase in accrued interest payable and other
liabilities ..................................... (286,415) 9,828
----------- --------
Net cash used in operating activities ................... (868,477) (242,168)
----------- --------
Cash flows from investing activities:
Purchase of securities available for sale ............... (1,500,000) --
Net increase in loans ................................... (208,912) --
Net purchases of premises and equipment ................. (320,758) (633,709)
----------- --------
Net cash used in investing activities ................... (2,029,670) (633,709)
----------- --------
Cash flows from financing activities:
Net increase in noninterest-bearing demand,
savings, NOW and money-market deposits .................. 1,193,834 --
Net increase in time deposits ........................... 296,022 --
Net increase in official checks ......................... 92,201 --
Net (decrease) increase in borrowings ................... (1,615,000) 800,000
Net proceeds from issuance of common stock .............. 8,662,467 --
----------- --------
Net cash provided by financing activities ............... 8,629,524 800,000
----------- --------
Net increase (decrease) in cash and cash equivalents .... 5,731,377 (75,877)
Cash and cash equivalents at beginning of period ........ 29,186 114,533
----------- --------
Cash and cash equivalents at end of period .............. $ 5,760,563 38,656
=========== ======
Supplemental disclosure of cash flow information-
Cash paid during the period for:
Interest ................................................ $ 70,085 704
=========== ======
Income taxes ............................................ $ -- --
=========== ======
</TABLE>
See Accompanying Notes to Condensed Consolidated Financial Statements.
5
<PAGE>
JACKSONVILLE BANCORP, INC.
Notes to Condensed Consolidated Financial Statements (Unaudited)
(1) Description of Business and Summary of Significant Accounting Policies
General. Jacksonville Bancorp, Inc. (the "Holding Company") was
incorporated on October 24, 1997. The Holding company owns 100% of
the outstanding common stock of The Jacksonville Bank (the "Bank")
(collectively, the "Company"). The Holding Company's only business
is the ownership and operation of the Bank. The Bank is a Florida
state-chartered commercial bank and is insured by the Federal
Deposit Insurance Corporation. The Bank opened for business on May
28, 1999 and provides community banking services to businesses and
individuals in Jacksonville, Florida. The Company?s fiscal year ends
December 31.
In the opinion of the management of the Company, the accompanying
condensed consolidated financial statements contain all adjustments
(consisting principally of normal recurring accruals) necessary to
present fairly the financial position at June 30, 1999, the results
of operations for the three- and six-month periods ended June 30,
1999 and 1998 and cash flows for the six-month periods ended June
30, 1999 and 1998. The results of operations for the three and six
months ended June 30, 1999 are not necessarily indicative of the
results to be expected for the year ending December 31, 1999.
Basis of Presentation. The accompanying condensed consolidated financial
statements of the Company include the accounts of the Holding
Company and the Bank. All significant intercompany accounts and
transactions have been eliminated in consolidation. The accounting
and reporting practices of the Company conform to generally accepted
accounting principles and to general practices within the banking
industry.
Estimates. The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets
and liabilities and disclosure of contingent assets and liabilities
at the date of the financial statements and the reported amounts of
revenues and expenses during the reporting period. Actual results
could differ from those estimates.
Securities. Securities may be classified as either trading, held to
maturity or available for sale. Trading securities are held
principally for resale and recorded at their fair values. Unrealized
gains and losses on trading securities are included immediately in
earnings. Held-to-maturity securities are those which the Company
has the positive intent and ability to hold to maturity and are
reported at amortized cost. Available-for-sale securities consist of
securities not classified as trading securities nor as
held-to-maturity securities. Unrealized holding gains and losses,
net of tax, on available-for-sale securities are reported as a net
amount in a separate component of stockholders' equity until
realized. Gains and losses on the sale of available-for-sale
securities are determined using the specific-identification method.
Premiums and discounts on securities available for sale are
recognized in interest income using the interest method over the
period to maturity.
(continued)
6
<PAGE>
JACKSONVILLE BANCORP, INC.
Notes to Condensed Consolidated Financial Statements (Unaudited), Continued
(1) Description of Business and Summary of Significant Accounting Policies,
Continued
Loans Receivable. Loans receivable that management has the intent and
ability to hold for the foreseeable future or until maturity or
pay-off are reported at their outstanding principal adjusted for any
charge-offs, the allowance for loan losses, and any deferred fees or
costs on originated loans.
Loan origination fees and certain direct origination costs are
capitalized and recognized as an adjustment of the yield of the
related loan.
The accrual of interest on impaired loans is discontinued when, in
management's opinion, the borrower may be unable to meet payments as
they become due. When interest accrual is discontinued, all unpaid
accrued interest is reversed. Interest income is subsequently
recognized only to the extent cash payments are received.
The allowance for loan losses is increased by charges to income and
decreased by charge-offs (net of recoveries). Management's periodic
evaluation of the adequacy of the allowance is based on the
Company's past loan loss experience, known and inherent risks in the
portfolio, adverse situations that may affect the borrower's ability
to repay, the estimated value of any underlying collateral, and
current economic conditions.
Premises and Equipment. Land is carried at cost. Premises and equipment
are stated at cost less accumulated depreciation. Depreciation
expense is computed on the straight-line basis over the estimated
useful life of each type of asset.
Income Taxes. Deferred tax assets and liabilities are reflected at
currently enacted income tax rates applicable to the period in which
the deferred tax assets or liabilities are expected to be realized
or settled. As changes in tax laws or rates are enacted, deferred
tax assets and liabilities are adjusted through the provision for
income taxes.
Organizational and Preopening Costs. Net organizational and preopening
costs totaled $628,138, net of tax benefit of $378,978, and were
charged to expense as incurred.
Off-Balance-Sheet Instruments. In the ordinary course of business the
Company has entered into off-balance-sheet financial instruments
consisting of commitments to extend credit and unused lines of
credit. Such financial instruments are recorded in the financial
statements when they are funded.
Advertising. The Company expenses all media advertising as incurred.
LossPer Share. Basic loss per share has been computed on the basis of
the weighted-average number of shares of common stock outstanding
during the period. There were no common stock equivalents.
(continued)
7
<PAGE>
JACKSONVILLE BANCORP, INC.
Notes to Condensed Consolidated Financial Statements (Unaudited), Continued
(1) Description of Business and Summary of Significant Accounting Policies,
Continued
Future Accounting Requirements. Financial Accounting Standards 133 -
Accounting for Derivative Investments and Hedging Activities
requires companies to record derivatives on the balance sheet as
assets or liabilities, measured at fair value. Gains or losses
resulting from changes in the values of those derivatives would be
accounted for depending on the use of the derivatives and whether
they qualify for hedge accounting. The key criterion for hedge
accounting is that the hedging relationship must be highly effective
in achieving offsetting changes in fair value or cash flows. The
Company will be required to adopt this Statement January 1, 2001.
Management does not anticipate that this Statement will have a
material impact on the Company.
(2) Loan Impairment and Credit Losses. No loans were identified as impaired
at June 30, 1999. The Company did not record a provision for loan
losses during the three or six months ended June 30, 1999.
(3) Regulatory Matters. Banking laws and regulations limit the amount of
dividends that may be paid by the Bank. The FDIC requires insured
banks to maintain certain specified levels of capital.
Leverage-Capital Ratio. The FDIC requires banks to maintain a
minimum leverage-capital ratio of Tier I (as defined) to total
assets. The leverage-capital ratio generally ranges from 3% to 5%
based on the bank's rating under the regulatory rating system. The
Bank's required leverage-capital ratio at June 30, 1999 was 4%.
Risk-Weighted Assets Capital Ratios. The FDIC has also adopted a
risk-based capital statement of policy which imposes an additional
capital standard on insured banks. Under this regulation, a bank
must classify its assets and certain off-balance sheet activities
into categories, and maintain specified levels of capital for each
category. The amount of capital that is required is dependent upon
the amount of risk attributed to each category by the FDIC. A bank
must have a total risk-based capital ratio of no less than 8% and a
Tier I capital to risk-weighted assets ratio of no less than 4%.
Under the statement of policy, certain assets are required to be
deducted from risk-based capital. Such assets include certain
nonqualifying intangible assets, unconsolidated banking and finance
subsidiaries, investments in securities subsidiaries and reciprocal
holdings of capital instruments with other banks. In addition, the
FDIC may consider deducting other assets on a case-by-case basis or
investments in other subsidiaries on a case-by-case basis or based
on the general characteristics or functional nature of the
subsidiaries.
At June 30, 1999, the Bank was in compliance with all regulatory
capital requirements.
8
<PAGE>
JACKSONVILLE BANCORP, INC.
Item 2. Management's Discussion and Analysis
of Financial Condition and Results of Operations
Comparison of June 30, 1999 and December 31, 1998
General
The Jacksonville Bancorp, Inc. (the "Holding Company") was incorporated
on October 24, 1997. The Holding Company owns 100% of the outstanding
common stock of the Jacksonville Bank (the "Bank") (together, the
"Company"). The Holding Company was organized simultaneously with the
Bank and its only business is the ownership and operation of the Bank.
The Bank is a Florida state-chartered commercial bank and is insured by
the Federal Deposit Insurance Corporation. The Bank opened for business
on May 28, 1999 and provides community banking services to businesses
and individuals in Jacksonville, Florida.
Liquidity and Capital Resources
The Company's primary source of cash during the six months ended June
30, 1999 was from the net proceeds from the issuance of common stock of
$8.7 million and net deposit inflows of $1.5 million. Cash was used
primarily to repay borrowings of $1.6 million and purchase securities of
$1.5 million. At June 30, 1999, the Company had outstanding commitments
to originate new and existing loans of $242,000. It is expected that
these requirements will be funded from the sources described above. At
June 30, 1999, the Bank exceeded its regulatory liquidity requirements.
Common Stock Offering
As of June 30, 1999, the Company has sold 905,716 shares of common stock
for an aggregate of $8.7 million. The Company incurred $394,693 in
offering expenses relating to their public offering of the Company's
common stock. Offering expenses were deducted from the proceeds received
from the sale of common stock.
Results of Operations
General. Net losses for the three and six months ended June 30, 1999
were $205,286 and $373,107, respectively. The Bank commenced operations
on May 28, 1999. As of June 30, 1999, the Company had not achieved the
asset size to operate profitably. A discussion of operating results at
June 30, 1999 or for the three and six months ended June 30, 1999 and
1998 would not be meaningful.
9
<PAGE>
JACKSONVILLE BANCORP, INC.
Year 2000 Issues
The Company is acutely aware of the many areas affected by the Year 2000
computer issue and has given the Executive Committee of the Board of Directors
the responsibility for oversight of the Year 2000 issue. The Company is actively
involved in managing the Year 2000 computer challenges, following the guidance
provided by its regulatory bodies and documented in the interagency statements
issued by the Federal Financial Institutions Examination Council (?FFIEC?). The
Company has a Year 2000 Technology Plan, approved by the Board of Directors,
which includes multiple phases, tasks to be completed and target dates for
completion. Issues addressed therein include awareness, assessment, renovation,
validation, implementation, testing and contingency planning.
The Company has received a certification from its main service provider that
they are Year 2000 compliant. The Company routinely upgrades and purchases
technology advanced software and hardware on a continual basis. All future
purchases and upgrades will be Year 2000 compliant. The Company has determined
that the cost of making modifications to correct any Year 2000 issues will not
substantially affect reported operating results.
The Company also recognizes the importance of determining if its customers are
preparing for the Year 2000 problem. Questionnaires are completed to assess the
inherent risks. Customers will receive statement stuffers and informational
material in this regard. The Company plans to be prepared on a one-on-one basis
with significant borrowers who have been identified as having high Year 2000
risk exposure. The Company plans to continue in its efforts to be active in
informing its customers of the Year 2000 issue.
The Company has developed a Contingency Plan relative to the Year 2000 issue
which addresses a ?worst case scenario.? The plan covers various options for
handling interruptions of the internal and external mission critical systems and
services. The Company, for example, has developed plans for meeting unusually
high demands for cash generated by the publicity surrounding the Year 2000
issue. The Contingency Plan will be continuously monitored to incorporate and
address various operational elements as needed. Furthermore, the Company?s
Contingency Plan covers systems which can be handled manually on an interim
basis. Should outside service providers not be able to provide compliant
systems, the Company will terminate those relationships and transfer to other
vendors.
10
<PAGE>
JACKSONVILLE BANCORP, INC.
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K (UPDATE FROM ATTORNEY)
(a) Exhibits. The following exhibits are filed with or incorporated by
reference into this report. The exhibits which are marked by a single
asterisk (*) were previously filed as a part, and are hereby incorporated
by reference from the Company?s Registration Statement on Form SB-2, as
effective with the Securities and Exchange Commission on February 9, 1999,
Registration No. 333-64815.
Exhibit No. Description of Exhibit
- ----------- ----------------------
*3.1 Articles of Incorporation of the Company
*3.2 By-laws of the Company
*4.1 Specimen Common Stock Certificate
*10.4 Servicing Agreement with M&I Data Services
10.5 Employment Contract Gilbert J. Pomar, III
27 Financial Data Schedule (for SEC use only)
(b) Reports on Form 8-K. There were no Form 8-K?s filed during the three
months ended June 30, 1999.
11
<PAGE>
JACKSONVILLE BANCORP, INC.
PART II. OTHER INFORMATION
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
JACKSONVILLE BANCORP, INC.
(Registrant)
Date: August 13, 1999 By: /s/Price W. Schwenck
------------------------ -----------------------
Price W. Schwenck, Chief Executive
Officer
Date: August 13, 1999 By: /s/Cheryl L. Whalen
------------------------ -----------------------
Cheryl L. Whalen,
Executive Vice President
and Chief Financial Officer
12
<TABLE> <S> <C>
<ARTICLE> 9
<LEGEND>
This schedule contains summary financial information extracted from Form 10-QSB
for the period ended June 30, 1999 and is qualified in its entirety by reference
to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> JUN-30-1999
<CASH> 428
<INT-BEARING-DEPOSITS> 316
<FED-FUNDS-SOLD> 5,016
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 1,500
<INVESTMENTS-CARRYING> 0
<INVESTMENTS-MARKET> 0
<LOANS> 209
<ALLOWANCE> 0
<TOTAL-ASSETS> 9,601
<DEPOSITS> 1,490
<SHORT-TERM> 0
<LIABILITIES-OTHER> 147
<LONG-TERM> 0
0
0
<COMMON> 9
<OTHER-SE> 7,955
<TOTAL-LIABILITIES-AND-EQUITY> 9,601
<INTEREST-LOAN> 1
<INTEREST-INVEST> 2
<INTEREST-OTHER> 74
<INTEREST-TOTAL> 77
<INTEREST-DEPOSIT> 2
<INTEREST-EXPENSE> 46
<INTEREST-INCOME-NET> 31
<LOAN-LOSSES> 0
<SECURITIES-GAINS> 0
<EXPENSE-OTHER> 658<F1>
<INCOME-PRETAX> (604)
<INCOME-PRE-EXTRAORDINARY> (373)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (373)
<EPS-BASIC> (1.69)
<EPS-DILUTED> (1.69)
<YIELD-ACTUAL> 2.54
<LOANS-NON> 0
<LOANS-PAST> 0
<LOANS-TROUBLED> 0
<LOANS-PROBLEM> 0
<ALLOWANCE-OPEN> 0
<CHARGE-OFFS> 0
<RECOVERIES> 0
<ALLOWANCE-CLOSE> 0
<ALLOWANCE-DOMESTIC> 0
<ALLOWANCE-FOREIGN> 0
<ALLOWANCE-UNALLOCATED> 0
<FN>
<F1>Other expense includes: salaries and employee benefits of $376, occupancy of
$49, travel and entertainment of $14, professional fees of $160, telephone
expenses of $12, office supplies and expenses of $6, data processing of $10,
and other expenses which totaled $31.
</FN>
</TABLE>
EMPLOYMENT AGREEMENT
BY AND BETWEEN
THE JACKSONVILLE BANK, IN ORGANIZATION
AND
GILBERT JAMES POMAR, III
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into this 3rd day of
March 1999, by and between The Jacksonville Bank, In Organization (the "Bank")
and Gilbert James Pomar, III ("Employee"). The Bank and Employee are
collectively referred to herein as the "Parties."
RECITALS
WHEREAS, the Bank wishes to retain Employee as its President to perform the
duties and responsibilities as are described in this Agreement and as the Bank's
Board of Directors (the "Board") may assign to Employee from time to time; and
WHEREAS, Employee desires to be employed by the Bank and to serve as the
Bank's President in accordance with the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereto represent, warrant, undertake,
covenant and agree as follows:
OPERATIVE TERMS
1. Employment and Term. The Bank shall employ Employee pursuant to the
terms of this Agreement to perform the services specified in Section 2 herein.
The initial term of employment shall be for a period of twelve (12) months,
commencing on March 3, 1999, (the "Effective Date"). Upon each new day of the
twelve (12) month period of employment from the Effective Date until the
Employee's 65th (sixty- fifth) birthday, the term of this Agreement shall be
automatically extended for one (1) additional day, to be added to the end of the
then-existing twelve (12) month term. Accordingly, at all times prior to (i) the
Employee's attaining age sixty-five (65) or (ii) a Notice Of Termination, as
defined in Section 9(b) (or an actual termination) the term of this Agreement
shall be twelve (12) full months. However, either Party may terminate this
Agreement by giving the other Party written notice of intent not to renew. The
automatic extensions of the term of this Agreement shall immediately be
suspended upon an employment termination by reason of death or disability or
retirement, or an employment termination made voluntarily by the Employee (other
than for Good Reason as defined in Section 9(d), or involuntarily for Just Cause
as defined in Section 9(b)). Additionally, the Board shall, on an annual basis,
review Employee's performance to determine whether this Agreement should
continue to be extended. The Board's action will be reflected in the Board's
meeting minutes.
1
<PAGE>
In the event the Employee gives a Notice Of Termination, the term of this
Agreement shall expire upon the thirtieth (30th) day following the delivery to
the Bank of such Notice Of Termination. Except as otherwise provided in the
following paragraph with respect to a voluntary termination for Good Reason, a
voluntary employment termination by the Employee shall result in the termination
of the rights and obligations of the parties under this Agreement; provided,
however, that the terms and provisions of Section 12 shall continue to apply.
In the event the Bank desires to involuntarily terminate the employment of
Employee (for purposes of this Agreement, a voluntary employment termination by
the Employee for Good Reason shall be treated as an involuntary termination of
the Employee's employment without Just Cause), the Bank shall deliver to the
Employee a Notice Of Termination, and the following provisions shall apply:
(a) In the event the involuntary termination is for Just Cause, this
Agreement shall terminate immediately upon delivery to the Employee
of such Notice Of Termination. Such a termination for Just Cause
shall result in the termination of all rights and obligations of the
Parties under this Agreement.
(b) In the event the involuntary termination is without Just Cause, the
Employee shall be entitled to receive the severance benefits set
forth in Sections 9(f) and 9(g) herein.
2. Position, Responsibilities and Duties. During the term of this
Agreement, Employee shall serve in the following capacities and shall fulfill
the following responsibilities and duties:
(a) Specific Duties: Employee shall serve as the Bank's President,
through appointment by the Board. In such capacity, Employee shall
have the same powers, duties and responsibilities of supervision and
management of the Bank usually accorded to Presidents of similar
financial institutions. In addition, Employee shall use his best
efforts to perform the duties and responsibilities enumerated in
this Agreement and any other duties assigned to Employee by the
Board and to utilize and develop contacts and customers to enhance
the business of the Bank. Specifically, Employee shall devote his
full business time and attention and use his best efforts to
accomplish and fulfill the following duties and responsibilities, as
well as other duties assigned to Employee from time to time by the
Board:
(i) serve as the President of the Bank;
(ii) perform such executive services for the Bank as may be
consistent with his titles or be assigned to him by the Board;
(iii) serve on such committees as appointed by the Board from time
to time;
(iv) keep the other executives of the Bank and the Board informed
of important developments concerning the Bank's activities,
industry developments and regulatory initiatives affecting the
Bank;
(v) maintain adequate expense records relating to Employee's
activities on behalf of the Bank;
(vi) increase the business of the Bank;
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(vii) coordinate with the Bank's other executives to the extent
necessary to further the business of the Bank, keeping in
compliance with government laws and regulations and otherwise
keeping the Bank in as good a financial and legal posture as
possible; and
(viii)conduct and undertake all other activities, responsibilities,
and duties normally expected to be undertaken and accomplished
by a President of a financial institution similar in scope and
operation to the Bank's business.
(b) General Duties: During the term of this Agreement, and except for
illness, vacation periods and leaves of absences, Employee shall
devote all of his working time, attention, skill and best efforts to
accomplish and faithfully perform all of the duties assigned to
Employee on a full-time basis. Employee shall, at all times, conduct
himself in a manner that will reflect positively upon the Bank.
Employee shall obtain such licenses, certificates, accreditations
and professional memberships and designations as the Bank may
reasonably require. Employee shall join and maintain membership in
such social and civic organizations as Employee or the Board deems
appropriate to foster the Bank's contacts and business network in
the community.
3. Compensation. During the term of this Agreement, Employee shall be
compensated as follows:
(a) Base Salary: Employee shall receive an annual salary of $120,000.00
(the "Base Salary") in equal installments, in accordance with the
Bank's standard payroll practices, reduced appropriately by
deductions for federal income withholding taxes, social security
taxes and other deductions required by applicable laws. The Bank
will in good faith review the Employee's Base Salary on an annual
basis. In no event, however, will the Base Salary be reduced without
Employee's written concurrence.
(b) Incentive Compensation and Bonus: Employee shall receive a $25,000
signing bonus within seven days of the execution of this Agreement.
For the first year of this Agreement, Employee shall be eligible to
receive a bonus in an amount up to 25% of Employee's Base Salary,
subject to his meeting certain goals and objectives as determined by
the Board. Thereafter, Employee shall be entitled to participate in
any incentive compensation plans adopted by the Board of Directors.
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(c) Stock and Other Benefit Plans: During the term of this Agreement,
the Employee will be entitled to participate in and receive the
benefits of any stock option plans, stock ownership plans,
profit-sharing plans, 401(k) plans, or other plans, benefits and
privileges given to employees and executives of the Bank which are
currently in effect at the execution of this Agreement, or which may
come into existence thereafter, to the extent the Employee is
otherwise eligible and qualifies to so participate in and receive
such benefits or privileges. The Bank shall not make any changes in
such plans, benefits or privileges which would adversely affect the
Employee's rights or benefits thereunder, unless such change occurs
pursuant to a program applicable to all executive officers (Vice
President or above) of the Bank and does not result in a
proportionately greater adverse change in the rights of or benefits
to the Employee as compared with any other executive officer of the
Bank. Nothing paid to the Employee under any plan or arrangement
presently in effect or made available in the future shall be deemed
to be in lieu of the Base Salary payable to the Employee pursuant to
this Section 3.
4. Payment of Business Expenses. Employee is authorized to incur reasonable
expenses in performing his duties. The Bank will reimburse Employee for
authorized expenses, according to the Bank's established policies, promptly
after Employee's presentation of an itemized account of such expenditures.
5. Vacation and Perquisites. Employee is entitled to three (3) weeks paid
vacation time per year on a non-cumulative basis or as increased pursuant to the
Bank's policy. The Bank shall give Employee a monthly $400 automobile allowance
and shall pay for Employee's membership dues in the Timuquana Country Club.
6. Medical Benefits. Employee is entitled to participate in all medical and
health care benefit plans through health insurance, corporate funds, medical
reimbursement plans or other plans, if any, provided, or to be provided, by the
Bank for its employees; provided that regardless of the terms of such plans, the
Bank shall pay the costs of coverage for Employee. In addition, the Bank shall
reimburse Employee for any payments he makes for COBRA health insurance coverage
or life insurance coverage ($400,000 term insured) for the period before
Employee receives health insurance coverage or life insurance coverage from the
Bank.
7. Disability/Illness.
(a) Illness: Employee shall be paid his full Base Salary for any period
of his illness or incapacity: provided that such illness or
incapacity does not render Employee unable to perform his duties
under this Agreement for a period longer than three (3) consecutive
months. At the end of such three (3) month period, the Bank may
terminate Employee's employment and this Agreement.
(b) Disability: If the Bank terminates this Agreement pursuant to
Employee's disability as determined under Section 7(a) herein, the
Bank shall pay to Employee, as a disability payment, an amount equal
to Employee's monthly Base Salary, payable in accordance with the
Bank's standard payroll practices, commencing on the effective date
of Employee's termination and ending on the earlier of:
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(i) the date Employee returns to full time employment in his
capacity as the Bank's President;
(ii) Employee's full time employment by another employer;
(iii) three (3) months after the date of such termination, after
which Employee will be entitled to receive benefits under any
disability insurance plan provided by the Bank; or
(iv) the date of Employee's death.
The Bank may satisfy its obligations under this Section of this Agreement,
at its option, through the purchase of disability insurance. The provisions
of such policy will control the amounts paid to Employee. Such disability
insurance will be coordinated with any disability plans made available to
Employee pursuant to Section 6 of this Agreement.
(c) Continuation of Coverages: During any period of illness or
disability, the Bank will continue any other life, health and
disability coverages for Employee substantially identical to the
coverages maintained prior to Employee's termination for disability.
Such coverages shall cease upon the earlier of:
(i) Employee's full time employment by another employer;
(ii) one (1) year after the date of such termination (with the
exception of disability insurance coverage); or
(iii) the date of Employee's death.
(d) No Reduction in Base Salary: During the period in which Employee is
disabled or subject to illness or incapacity, other than as
described in Section 7(b) herein, there shall be no reduction in
Employee's Base Salary.
8. Death During Employment. In the event of Employee's death during the
term of this Agreement, the Bank's obligation to Employee shall be limited to
the portion of Employee's compensation which would be payable up to the first
working day of the first month after Employee's death and a pro rated portion of
any bonus Employee would have received for the year of his death, except that
any compensation payable to Employee under any benefit plan maintained by the
Bank will be paid pursuant to its terms.
9. Termination.
(a) Illness, Incapacity or Death: This Agreement shall terminate upon
Employee's illness, incapacity or death in accordance with the
provisions of Sections 7 and 8 herein.
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(b) Termination for Just Cause: The Bank shall have the right, at any
time, upon prior written Notice Of Termination satisfying the
requirements of Section 11 herein, to terminate the Employee's
employment hereunder, including termination for Just Cause. For the
purpose of this Agreement, termination for Just Cause shall mean
termination for personal dishonesty, willful misconduct, material
breach of fiduciary duty, intentional failure to perform the duties
stated in this Agreement, willful violation of any law, rule or
regulation (other than traffic violations or misdemeanors not
related to theft or dishonesty, or that would not reflect poorly on
the Bank), willful violation of a final cease-and-desist order,
willful or intentional breach or negligence or misconduct in the
performance of such duties or material breach of any provision of
this Agreement as determined by a court of competent jurisdiction or
in final agency action by a federal or state regulatory agency
having jurisdiction over the Bank. For purposes of this Section, no
act, or failure to act, on the Employee's part shall be considered
"willful" unless done, or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission was
in the best interest of the Bank; provided that any act or omission
to act by the Employee in reasonable reliance upon an opinion of
counsel to the Bank shall not be deemed to be willful. In the event
Employee is terminated for Just Cause, Employee shall have no right
to compensation or other benefits for any period after such date of
termination.
(c) Involuntary Termination: If the Employee is terminated by the Bank
other than for Just Cause or in connection with a Change In Control
(as defined in Section 9(e) herein), Employee's right to
compensation and other benefits under this Agreement shall be as set
forth in Sections 9(f)(i) and 9(g) herein. In the event the Employee
is terminated by the Bank in connection with a Change In Control,
Employee's right to compensation and other benefits under this
Agreement shall be as set forth in Section 9(f)(ii) and 9(g) herein.
(d) Termination for Good Reason: Employee may terminate his employment
hereunder for Good Reason. For purposes of this Agreement, Good
Reason shall mean (i) a failure by the Bank to comply with any
material provision of this Agreement, which failure has not been
cured within ten (10) days after a notice of such noncompliance has
been given by the Employee to the Bank; or (ii) subsequent to a
Change In Control as defined in Section 9(e) herein and without the
Employee's express written consent, any of the following shall
occur: the assignment to the Employee of any duties inconsistent
with the Employee's positions, duties, responsibilities and status
with the Bank immediately prior to a Change In Control; a change in
the Employee's reporting responsibilities, titles or offices as in
effect immediately prior to a Change In Control; any removal of the
Employee from, or any failure to re-elect the Employee to, any of
such positions, except in connection with a termination of
employment for Just Cause, disability, death, or removal pursuant to
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Sections 9(a) or 9(b) herein; a reduction by the Bank in the
Employee's annual salary as in effect immediately prior to a Change
In Control; the failure of the Bank to continue in effect any bonus,
benefit or compensation plan, life insurance plan, health and
accident plan or disability plan in which the Employee is
participating at the time of a Change In Control, or the taking of
any action by the Bank which would adversely affect the Employee's
participation in or materially reduce the Employee's benefits under
any of such plans, or the transfer of the Employee to any location
outside of Duval or Clay Counties, Florida or the assignment of
substantial duties to the Employee to be completed outside Duval or
Clay Counties, Florida.
(e) Change In Control: For purposes of this Agreement, a Change In
Control shall mean a Change In Control of the Bank or its parent
holding company Jacksonville Bancorp, as defined in 12 C.F.R.
Section 574.4(a) or (b).
(f) Severance Payment:
(i) if the Employee shall terminate his employment for Good Reason
as defined in Section 9(d) herein, or if the Employee is
terminated by the Bank for other than Just Cause pursuant to
Section 9(c) herein, then in lieu of any further salary
payments to the Employee for periods subsequent to the date of
termination, the Employee shall be paid, as severance, an
amount equal to Employee's annual Base Salary, plus any
incentive compensation or bonus which the Employee would have
been entitled to hereunder; and
(ii) in the event Employee's employment is terminated as a result
of a Change In Control or a Change In Control occurs within
twelve (12) months of the Employees' involuntary termination
or termination for Good Reason, Employee shall be entitled to
a severance payment equal to two and ninety- nine hundredths
(2.99) times his current annual Base Salary plus any incentive
compensation or bonus which the Employee would have been
entitled to hereunder.
Any payment under Subsections 9(f)(i) and 9(f)(ii) shall be made in
substantially equal semi-monthly installments on the fifteenth and last
days of each month until paid in full.
(g) Additional Severance Benefits: Unless the Employee is terminated for
Just Cause pursuant to Section 9(b) herein, pursuant to Section
10(b) herein, or pursuant to a termination of employment by the
Employee for other than Good Reason, the Bank shall maintain in full
force and effect, for the continued benefit of the Employee for the
remaining term of this Agreement, or twelve (12) months (whichever
is longer), all employee benefit plans and programs in which the
Employee was entitled to participate immediately prior to the date
of termination; provided, however, that the Employee's continued
participation is possible under the general terms and provisions of
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such plans and programs. Further, the Bank shall pay for the same or
similar benefits if such benefits are available to the Employee on
an individual or group basis as a result of contractual or statutory
provisions requiring or permitting such availability including, but
not limited to, health insurance covered under COBRA.
(h) Mitigation: Employee shall not be required to mitigate the amount of
any payment provided for in Sections 9(f) and 9(g) of this Agreement
by seeking other employment or otherwise.
10. Required Provisions by Regulation. The Bank and Employee acknowledge
that the laws and regulations governing the Parties require that certain
provisions be provided in each employment agreement with officers and employees
of the Bank. The Parties agree to be bound by the following provisions:
(a) If Employee 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. Section 1818[e][3]
and Section 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 may, in its discretion: (i) pay Employee 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 Employee 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. Sections 1818[e][4] and [g][1]), all obligations of the
Employee and the Company under this Agreement shall terminate as of
the effective date of the order, but vested rights of the Employee
and of the Bank, as of the date of termination, shall not be
affected.
(c) All obligations under this Agreement may be terminated pursuant to
12 C.F.R. Section 563.39(b)(5) (except to the extent that it is
determined that continuation of the Agreement for the continued
operation of Bank is necessary): (i) by the Director of the Office
of Thrift Supervision ("OTS"), or his/her designee, at the time the
Federal Deposit Insurance Corporation ("FDIC") enters into an
agreement to provide assistance to or on behalf of Bank under the
authority contained in Section 13(c) of the FDIA (12 U.S.C. Section
1823[c]); or (ii) by the Director of the OTS, or his/her designee,
at the time the Director or his/her designee approves a supervisory
merger to resolve problems related to operation of Bank or when Bank
is determined by the Director of the OTS in final agency action to
be in an unsafe or unsound condition, but vested rights of the
Employee and of the Bank, as of the date of termination, shall not
be affected.
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(d) If Bank is in default, as defined in Section 3(x)(1) of the FDIA (12
U.S.C. Section 1818[x][1]) to mean an adjudication or other official
determination by any court of competent jurisdiction, the
appropriate federal banking agency or other public authority
pursuant to this Agreement shall terminate as of the date of
default, but vested rights of the Employee as of the date of
termination, shall not be affected.
(e) Golden Parachute: Any payments made to the Employee pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their
compliance with 12 U.S.C. Section 1828(k) and any regulations
promulgated thereunder.
11. Notice of Termination.
(a) Employee's Notice: Employee shall have the right, upon prior written
notice of termination of not less than thirty (30) days, to
terminate his employment hereunder. In such event, Employee shall
have no right after the date of termination to compensation or other
benefits as provided in this Agreement, unless such termination is
for Good Reason, as defined in Section 9(d) herein. If the Employee
provides a Notice Of Termination for Good Reason, the date of
termination shall be the date on which the Notice Of Termination is
given.
(b) Specificity: Any termination of the Employee's employment by the
Bank or by Employee shall be communicated by written Notice Of
Termination to the other Party hereto. For purposes of this
Agreement, a Notice Of Termination shall mean a dated notice which
shall: (i) indicate the specific termination provision in the
Agreement relied upon; (ii) set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the
Employee's employment under the provision so indicated; and (iii)
set forth the date of termination, which shall be not less than
thirty (30) days nor more than forty-five (45) days after such
Notice Of Termination is given, except in the case of the Bank's
termination of the Employee's employment for Just Cause, in which
case date of termination shall be the date such Notice Of
Termination is given.
(c) Delivery of Notices: All notices given or required to be given
herein shall be in writing, sent by United States first-class
certified or registered mail, postage prepaid, by way of overnight
carrier or by hand delivery. If to the Employee (or to the
Employee's spouse or estate upon the Employee's death) notice shall
be sent to Employee's last-known address, and if to the Bank, notice
shall be sent to the corporate headquarters. All such notices shall
be effective when deposited in the mail if sent via first-class
certified or registered mail, or upon delivery if by hand delivery
or sent via overnight carrier. Either Party, by notice in writing,
may change or designate the place for receipt of all such notices.
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12. Post-Termination Obligations. The Bank shall pay to Employee such
compensation as is required pursuant to this Agreement; provided, however, any
such payment shall be subject to Employee's post-termination cooperation. Such
cooperation shall include the following:
(i) Employee shall furnish such information and assistance as may be
reasonably required by the Bank in connection with any litigation or
settlement of any dispute between the Bank, a borrower and/or any
other third parties (including without limitation serving as a
witness in court or other proceedings);
(ii) Employee shall provide such information or assistance to the Bank in
connection with any regulatory examination by any state or federal
regulatory agency; and
(iii) Employee shall keep the Bank's trade secrets and other proprietary
or confidential information secret to the fullest extent
practicable, subject to compliance with all applicable laws.
Upon submission of proper receipts, the Bank shall promptly reimburse
Employee for any reasonable expenses in current by Employee in complying with
the provisions of this Section. Such cooperation is to be furnished without
additional compensation during such period Employee is receiving severance
payments pursuant to this Agreement. Should such cooperation be required during
such period that Employee is not receiving severance payments pursuant to this
Agreement, the Bank shall pay Employee an hourly fee comparable to that charged
by banking industry consultants.
13. Attorney's Fees/Advanced Costs. In the event that the Employee is
terminated in a manner which violates any provisions of this Agreement, as
determined by a court of competent jurisdiction, the Employee shall be entitled
to reimbursement for all reasonable costs, including attorneys fees, in
challenging such termination. Further, because of economic disparity between the
Bank and Employee, the Bank agrees to pay for Employee's reasonable attorneys'
fees and costs up to $10,000 to enforce the terms of this Agreement or recovered
damages for breach of this agreement as follows: $5,000 at the commencement of
litigation or the mediation proceedings and an additional $5,000 six (6) months
thereafter. In the event the Employee is unsuccessful in his claim or defense,
the Employee shall reimburse the Bank for any attorney' fees, expenses and costs
that have been advanced. If the Employee is successful, any attorneys' fee award
will be reduced by the amount of attorney's fees and costs that have been
advanced. Such reimbursement shall be in addition to all rights to which the
Employee is otherwise entitled under this Agreement.
14. Indebtedness. If during the term of this Agreement, Employee becomes
indebted to the Bank for any reason, the Bank may, at its election, set off and
collect any sums due Employee out of any amounts which the Bank may owe Employee
from his Base Salary or other compensation. Furthermore, upon the termination of
this Agreement, all sums owed by Employee shall become immediately due and
payable. Employee shall pay all expenses and attorney's fees actually or
necessarily incurred by the Bank in connection with any collection proceeding
for Employee's indebtedness to us. Notwithstanding any of the foregoing, any
indebtedness to us secured by a mortgage on Employee's residence shall not be
subject to the foregoing provisions, and shall be governed by the loan documents
evidencing such indebtedness.
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15. Maintenance of Trade Secrets and Confidential Information. Employee
shall use his best efforts and utmost diligence to guard and protect all of the
Bank's trade secrets and confidential information. Employee shall not, either
during the term or after termination of this Agreement, for whatever reason,
use, in any capacity, or divulge or disclose in any manner, to any Person, the
identity of the Bank's customers, or its customer lists, methods of operation,
marketing and promotional methods, processes, techniques, systems, formulas,
programs or other trade secrets or confidential information relating to the
Bank's business. Upon termination of this Agreement or Employee's employment,
for any reason, Employee shall immediately return and deliver to the Bank all
records and papers and all matters of whatever nature which bear trade secrets
or confidential information relating to the Bank.
16. Competitive Activities.
(a) Limitation on Outside Activities: Employee agrees that during the
term of this Agreement, except with the express consent of the
Board, Employee will not, directly or indirectly, engage or
participate in, become a director of, or render advisory or other
services for, or in connection with, or become interested in, or
make any financial investment in any firm, corporation, business
entity or business enterprise competitive with or to any business of
the Bank; provided, however, that Employee shall not be precluded or
prohibited from owning passive investments, including investments in
the securities of other financial institutions, so long as such
ownership does not require Employee to devote substantial time to
management or control of the business or activities in which
Employee has invested.
(b) Agreement Not to Compete: Employee acknowledges that by virtue of
his employment with the Bank, Employee will acquire an intimate
knowledge of the activities and affairs of the Bank, including trade
secrets and other confidential matters. Employee, therefore, agrees
that during the term of this Agreement, and for a period of six (6)
months after the termination of his employment for any reason,
Employee shall not become employed, directly or indirectly, whether
as an employee, independent contractor, consultant, or otherwise, in
the financial services industry with any business enterprise or
business entity, or person whose intent is to organize another
financial institution in Duval or Clay Counties, Florida; provided,
however, that such prohibition shall be for three (3) months if this
Agreement is terminated due to a Change In Control.
Employee hereby agrees that the duration of the anticompetitive covenant
set forth herein is reasonable, and its geographic scope is not unduly
restrictive.
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17. Remedies for Breach.
(a) Injunctive Relief: The Parties acknowledge and agree that the
services to be performed by Employee are special and unique and that
money damages cannot fully compensate the Bank in the event of
Employee's violation of the provisions of Section 16 of this
Agreement. Thus, in the event of a breach of any of the provisions
of such Section, Employee agrees that the Bank, upon application to
a court of competent jurisdiction, shall be entitled to an
injunction restraining Employee from any further breach of the terms
and provision of such Section. Should the Bank prevail in an action
seeking an injunction restraining Employee, Employee shall pay all
costs and reasonable attorneys fees incurred by the Bank in and
relating to obtaining such injunction. Such injunctive relief may be
obtained without bond and Employee's sole remedy, in the event of
the entry of such injunction, shall be the dissolution of such
injunction. Employee hereby waives any and all claims for damages by
reason of the wrongful issuance of any such injunction.
(b) Cumulative Remedies: Notwithstanding any other provision of this
Agreement, the injunctive relief described in Section 17(a) herein
and all other remedies provided for in this Agreement which are
available to the Bank as a result of Employee's breach of this
Agreement, are in addition to and shall not limit any and all
remedies existing at or in equity which may also be available to the
Bank.
18. Assignment. This Agreement shall inure to the benefit of and be binding
upon the Employee, and to the extent applicable, his heirs, assigns, executors,
and personal representatives, and to the Bank, and to the extent applicable, its
successors, and assigns, including, without limitation, any person, partnership,
or corporation which may acquire all or substantially all of the Bank's assets
and business, or with or into which the Bank may be consolidated or merged, and
this provision shall apply in the event of any subsequent merger, consolidation,
or transfer, unless such merger or consolidation or subsequent merger or
consolidation is a transaction of the type which would result in termination
under Sections 10(c) and 10(d) herein.
19. Stock Option. Notwithstanding any other provision contained herein,
Employee shall be entitled under this Agreement, and the Bank hereby agrees,
subject to a Stock Option Plan being adopted by the Board and subsequently
approved by the shareholders of the Bank, to grant Employee qualified stock
options, as defined by the Internal Revenue Code as amended, to acquire shares
of the Bank's common stock as follows:
(a) Options shall be granted on a sliding scale, with options for 25,000
shares granted if in the Bank's initial public offering, the Bank's
minimum offering is obtained ($8,000,000) and options for up to
50,000 shares granted if the maximum offering is obtained
($15,000,000).
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(b) Options shall be vested in three (3) equal installments. The first
such installment shall be vested on March 1, 2000, and subsequent
installments shall be vested annually on March 1 of each year
thereafter, until and including March 1, 2002.
(c) Each installment may be exercised in full or in part at anytime
following the vesting date for a period of seven (7) years from such
date at which time any unexercised options shall expire.
(d) The stock option price shall be $10.00 per share.
(e) In the event of a Change In Control, any options not yet vested
pursuant to subsection (b) of this Section shall be automatically
vested on the day immediately preceding the effective date of the
Change In Control occurrence.
(f) Vested options may be exercised by Employee by presenting an Option
Purchase Form to the Bank indicating the number of shares to be
acquired and accompanied by a check in the proper amount.
(g) In the event Employee's employment is terminated by the Bank for
Just Cause or by Employee for any reason other than for Good Reason,
Employee may only exercise options vested hereunder for thirty (30)
days following such termination.
20. Miscellaneous.
(a) Amendment of Agreement: Unless as otherwise provided herein, this
Agreement may not be modified or amended except in writing signed by
the Parties.
(b) Certain Definitions: For purposes of this Agreement, the following
terms whenever capitalized herein shall have the following meanings:
(i) "Person" shall mean any natural person, corporation,
partnership (general or limited), trust, association or any
other business entity; and
(ii) "Attorneys Fees" shall include the legal fees and
disbursements charged by attorneys and their related travel
and lodging expenses, court costs, paralegal fees, etc.
incurred in settlement, trial, appeal or in bankruptcy
proceedings.
(c) Headings for Reference Only: The headings of the Sections and the
Subsections herein are included solely for convenient reference and
shall not control the meaning of the interpretation of any of the
provisions of this Agreement.
(d) Governing Law/Jurisdiction: This Agreement shall be construed in
accordance with and governed by the laws of the State of Florida.
Any litigation involving the Parties and their rights and
obligations hereunder shall be brought in the appropriate federal or
state courts in Duval County, Florida.
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(e) Severability: If any of the provisions of this Agreement shall be
held invalid for any reason, the remainder of this Agreement shall
not be affected thereby and shall remain in full force and effect in
accordance with the remainder of its terms.
(f) Entire Agreement: This Agreement and all other documents
incorporated or referred to herein, contain the entire agreement of
the Parties and there are no representations, inducements or other
provisions other than those expressed in writing herein. This
Agreement amends, supplants and supersedes any and all prior
agreements between the Parties. No modification, waiver or discharge
of any provision or any breach of this Agreement shall be effective
unless it is in writing signed by both Parties. A Party's waiver of
the other Party's breach of any provision of this Agreement, shall
not operate, or be construed, as a waiver of any subsequent breach
of that provision or of any other provision of this Agreement.
(g) Waiver: No course of conduct by the Bank or Employee and no delay or
omission of the Bank or Employee to exercise any right or power
given under this Agreement shall: (i) impair the subsequent exercise
of any right or power, or (ii) be construed to be a waiver of any
default or any acquiescence in or consent to the curing of any
default while any other default shall continue to exist, or be
construed to be a waiver of such continuing default or of any other
right or power that shall theretofore have arisen. Any power and/or
remedy granted by law and by this Agreement to any Party hereto may
be exercised from time to time, and as often as may be deemed
expedient. All such rights and powers shall be cumulative to the
fullest extent permitted by law.
(h) Pronouns: As used herein, words in the singular include the plural,
and the masculine include the feminine and neuter gender, as
appropriate.
(i) Recitals: The Recitals set forth at the beginning of this Agreement
shall be deemed to be incorporated into this Agreement by this
reference as if fully set forth herein, and this Agreement shall be
interpreted with reference to and in light of such Recitals.
14
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first written above.
EMPLOYEE THE JACKSONVILLE BANK, IN ORGANIZATION
/s/ Gilbert James Pomar, III By: /s/ John W. Rose
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Gilbert James Pomar, III, Employee John Rose
On behalf of the Board of Directors
/s/ Richard Margulies /s/ Luette G. Monaco
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Witness Witness
