EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is entered into as of the 11h
day of February, 2008, by and between Lotus Bancorp, Inc. ("Company"), a
corporation organized under the laws of the State of Michigan, and Xxxxxxxx
Xxxxxxxx, an adult individual residing in the State of Michigan (hereafter the
"Executive").
WHEREAS, the Executive has considerable experience, expertise and training in
management related to banking and services to be offered by the Company and to
be offered through Lotus Bank, the subsidiary bank of the Company ("Bank");
WHEREAS, the Company desires and intends to cause the Executive to be employed
as Chief Lending Officer of the Bank and the Company and hold the title of
Executive Vice President pursuant to the terms and conditions set forth in this
agreement; and
WHEREAS, both the Company and the Executive have read and understood the terms
and provisions set forth in this Agreement, and have been afforded a reasonable
opportunity to review this Agreement with their respective legal counsel.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
in this Agreement, the Executive and the Company agree as follows:
DURATION
1. This Agreement shall continue in full force and effect for a period beginning
on February 11, 2008 and terminate by its own terms on the Expiration Date,
which is February 28, 2010, unless either party elects to terminate this
Agreement prior to the Expiration Date, in accordance with the TERMINATION
provisions set forth below.
2. Both the Company and the Executive acknowledge and agree that, subsequent to
the Expiration Date, the parties may agree to continue the employment
relationship upon such terms as they may mutually agree. Following the initial
term, this Agreement shall automatically renew annually for an additional one
(1) year term unless either party elects to terminate the Agreement by sending
written notice of non-renewal at least thirty (30) days prior to the expiration
of the then current term. Both parties acknowledge and agree that in the event
that the Agreement does not renew, this Agreement shall automatically terminate
upon expiration of the then current term without any additional liability or
obligation on the part of either party, except as expressly provided herein.
COMPENSATION
3. All payments of salary and other compensation to the Executive shall be
payable in accordance with the Company's or Bank's ordinary payroll and other
policies and procedures.
a. For the first year of the Agreement, the Executive will receive a salary
of $115,000.00, payable on a semi-monthly basis in equal amounts of
$4,791.67, and appropriately prorated for partial months at the
commencement and end of the term of the Agreement.
b. During the remaining term of the Agreement, the Executive's annual
salary shall be reviewed by the Company's Board of Directors as of the 31st
day of December of each year commencing December 31, 2008, as provided in
Paragraph 6 of this Agreement.
c. During the term of this Agreement, it is anticipated that a
disinterested majority of the Board of Directors of the Company will
consider the adoption of an executive discretionary bonus plan. The Board
will have the sole discretion whether to adopt such a bonus plan and, if
so, when bonuses will be paid there under.
d. The Company shall grant to the Executive a number of options exercisable
within ten (10) years from the date of the grant of such options. Such
options, upon grant of the options, will enable the Executive to purchase a
number of shares of Company stock equal to one quarter of one percent
(1/4%) of the total number of common shares issued in the initial stock
public offering. The exercise price for the stock options to be received by
the Executive shall be equal to the offering price of the Company's common
stock in its initial offering. The terms of the Company's stock option plan
shall control in the event of any conflict with the terms of this
Agreement. The options shall be evidenced by a stock option agreement,
which shall have terms as are consistent with those set forth above and
such additional terms
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as may be set forth in the stock option agreement or the stock option plan
pursuant to which the options are granted. To the maximum extent permitted
by law, the options will be treated as incentive stock options.
Both the Company and the Executive acknowledge that such compensation and
the other covenants and agreements of the Company contained herein are fair
and adequate compensation for the Executive's services, and for the mutual
promises described below.
e. Executive shall also be entitled to participate in any benefit programs
applicable to all employees of the Company or Bank, as applicable, or to
executive employees of the Company or Bank in accordance with Company or
Bank policy and the provisions of said programs. Such benefits may include
employee and dependent health and dental insurance, disability insurance
with coverage equal to the Executive's current salary at the time of any
disability, and profit sharing and other retirement plans.
f. The Company or Bank shall also provide the Executive with a salary
continuation plan, with such terms as are approved by the Board of
Directors of the Bank or the Company, as the case might be. The Company
shall also permit the Executive to participate in a 401K plan once such
plan is established by the Company or the Bank.
g. The Executive is eligible for an annual bonus in an amount to be
determined based on performance goals established annually by the Chief
Executive Officer and the Board of Directors; provided that the Executive
shall only be eligible for the annual bonus if the Bank's Composite CAMELS
rating is a 1 or 2 from the applicable bonus year.
4. The Company shall reimburse the Executive for all reasonable expenses
including, but not limited to, travel expenses, lodging expenses, meals and
entertainment expenses and trade association memberships. The Executive will
receive reimbursement for all business-related cell phone expenses in an amount
of $100.00 per month. The Executive shall be required to submit receipts or
other acceptable documentation to the Cashier or other appropriate bank officer
to verify such expenses prior to any reimbursements. In lieu of business mileage
reimbursement, the Executive shall receive an automobile allowance in an amount
of $500.00 per month.
5. Subject to the provisions of Paragraph 7 of this Agreement, the Executive
shall be entitled to four (4) weeks of paid vacation per calendar year
commencing 2008 on a non-cumulative basis.
6. During the term of this Agreement, the Executive's compensation will be
subject to an annual review consistent with safe and sound banking practices and
in the discretion of the Board of Directors of the Company but, in no event,
will the Executive's salary and vacation be less than the amounts set forth in
Paragraphs 3, 4, and 5 at any time during the term of this agreement.
7. All employee benefits provided to the Company or Bank incident to the
Executive's employment shall be governed by the applicable plan documents,
summary plan descriptions or employment policies, and may be modified, suspended
or revoked at any time, in accordance with the terms and provisions of the
applicable documents.
8. The Company shall have the right to deduct from any payment of compensation
to Executive hereunder any federal, state or local taxes required by law to be
withheld with respect to such payments and any other amounts specifically
authorized to withheld or deducted by Executive.
RESPONSIBILITIES
9. The Executive shall be employed as Chief Lending Officer of the Bank and the
Company and will hold the title of Executive Vice President. The Executive
covenants and agrees that he will faithfully devote his best efforts and his
primary focus to his positions with the Bank and the Company and their
respective subsidiaries.
10. The Executive acknowledges and agrees that the duties and responsibilities
of the Executive required by his position as Chief Lending Officer of the Bank
and the Company are wholly within the discretion of the Chief Executive Officer,
and may be modified, or new duties and responsibilities imposed by the Chief
Executive Officer, at any time, without the approval or consent of the
Executive. However, these new duties and responsibilities may not constitute
immoral or unlawful acts. In addition, the new duties and responsibilities must
be consistent with the Executive's role as Chief Lending Officer of a financial
institution.
11. The Executive acknowledges and agrees that, during the term of this
Agreement, he has a fiduciary duty of loyalty to the Company and the Bank, and
that he will not engage in any activity during the term of this Agreement, which
will or could, in any significant way, harm the business, business interests, or
reputation of the Company or the Bank.
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NONCOMPETITION
12. The Executive acknowledges and agrees that he will not, at any time during
the existence of the employment relationship between the Company or the Bank,
directly or indirectly engage in competition with the Company or the Bank, and
the Executive will not on his own behalf, or as another's agent, employee,
partner, shareholder or otherwise, engage, in any of the same or similar duties
and/or responsibilities required by the Executive's positions with the Company
or the Bank, other than as an employee of the Company or the Bank pursuant to
this Agreement, or as specifically approved by the Board of Directors. In
addition, without the prior written consent of the Board of Directors, Executive
shall not usurp for himself any corporate opportunity available to the Company
or the Bank.
The Executive covenants and agrees that for a period of six months subsequent to
a voluntary termination of this Agreement by the Executive, other than as a
result of a "constructive termination" as defined in Paragraph 17, the Executive
shall not directly or indirectly engage in competition with the Company or the
Bank, within Oakland County, (the "post voluntary termination non-compete area")
and the Executive will not on his own behalf, or as another's agent, employee,
partner, shareholder or otherwise, engage, within the post voluntary termination
non-compete area in any of the same or similar duties and/or responsibilities
required by the Executive's positions with the Company or the Bank. The
Executive acknowledges and agrees that the rights provided by this Paragraph to
the Company and the Bank are cumulative with other rights granted by the Company
or the Bank under this Agreement. The Company and the Bank covenant and agree
that if they choose to enforce the provisions of this Paragraph, the Executive
shall be entitled to payment of $57,500 or the equivalent of half the
Executive's then current salary, whichever is greater, less statutory payroll
deduction, payable in twelve (12) equal disbursements in accordance with
ordinary payroll policies and procedures, beginning with the first payroll after
the termination becomes effective.
If the Company or the Bank believes, in good faith after consultation with its
counsel, that Executive is in violation or breach of this Agreement, the Company
or the Bank, as applicable, may refuse to make further non-compete payments
under this Paragraph 12 and may seek full restitution of all non-compete
payments previously paid by the Company or the Bank to Executive up to and
including the date of such violation or breach by Executive.
The Executive also acknowledges and agrees that in exchange for the
non-competition agreement set forth in this paragraph, the Executive shall
receive substantial, valuable consideration including: (i) confidential trade
secret and proprietary information relating to the identity and special needs of
the Company's and Bank's current and prospective customers, the Company's and
Bank's current and prospective services, the Company's and Bank's business
projections and market studies, the Company's and Bank's business plans and
strategies, the Company's and Bank's studies and information concerning special
services unique to the Company and the Bank; and (ii) compensation and benefits
as described in this Agreement.
The Executive acknowledges and agrees that the non-competition restriction set
forth above is ancillary to an otherwise enforceable agreement and supported by
independent valuable consideration as required by law. Executive further
acknowledges and agrees that the limitations as to time, geographical area, and
scope of activity to be restrained by this Paragraph are reasonable and
acceptable to him, and do not impose any greater restraint than is reasonable
necessary to protect the goodwill and other business interests of the Company
and the Bank. Executive acknowledges and agrees that the primary purpose of the
restrictive covenants contained herein is to protect the proprietary information
and goodwill of the Company and the Bank.
The Executive acknowledges and agrees that if, at some later date, a court of
competent jurisdiction determines that the non-competition agreement set forth
in this Paragraph does not meet the criteria set forth by law, this paragraph
may be reformed by the court and enforced to the maximum extent permitted under
the laws of the State of Michigan.
If the Executive is found to have violated any of the provisions of any
restrictive covenant contained herein, Executive agrees that the restrictive
period of each covenant so violated shall be extended by a period of time equal
to the period of such violation by Executive. It is the intent of this Paragraph
that the running of the restrictive covenant period of any covenant shall be
tolled during any period of violation of such covenant so that the Company may
obtain the full and reasonable protection for which it contracted and so that
Executive may not profit by breach thereof.
NONINTERFERENCE
13. The executive covenants and agrees that, for a period of six months
subsequent to the termination of this Agreement, whether such termination occurs
at the insistence of the Company or the Executive, the Executive shall not: (i)
recruit, hire, or attempt to recruit or hire, directly or by assisting others,
any other employees of the Company or the Bank (for purposes of this covenant,
"other employees" shall refer to employees who are still actively employed by,
or doing business with, the Company
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or the Bank at the time of the attempted recruiting or hiring) nor shall the
Executive contact or communicate with any other employees of the Company or the
Bank for the purpose of inducing other employees to terminate their employment
with the Company or the Bank or (ii) solicit, directly or by assisting others,
the banking business of any customers of the Company or the Bank as of the date
of such termination.
The Executive acknowledges and agrees that in exchange for the execution of the
noninterference agreement set forth above, the Executive shall receive
substantial, valuable consideration including: (i) confidential trade secret and
proprietary information relating to the identity and special needs of the
Company's and Bank's current and prospective customers, the Company's and Bank's
current and prospective services, the Company's and Bank's business projections
and market studies, the Company's and Bank's business plans and strategies, the
Company's and Bank's studies and information concerning special services unique
to the Company and the Bank; and (ii) compensation and benefits as described in
this Agreement. The Executive acknowledges and agrees that this constitutes fair
and adequate consideration for the execution of the noninterference agreement as
set forth above.
REMEDIES
14. In the event that the Executive violates any of the provisions set forth in
this Agreement relating to NONINTERFERENCE and NON-COMPETITION, the Executive
acknowledges and agrees that the Company and the Bank would suffer immediate and
irreparable harm and would not have an adequate remedy at law for money damages.
Accordingly, the Executive agrees that, without the necessity of proving actual
damages or posting bond or other security, the Company and the Bank shall be
entitled to temporary or permanent injunction or injunctions to prevent breaches
of such performance and to specific enforcement of such covenants in addition to
any remedy to which the Company or the Bank may be entitled, at law or in
equity. In such a situation, the parties agree that the Company or the Bank may
pursue any remedy available, including declaratory relief, concurrently or
consecutively in any order as to any breach, violation, or threatened breach or
violation of any of the provisions as set forth in this Agreement relation to
NONINTERFERENCE and NON-COMPETITION, and the pursuit of any particular remedy or
remedies shall not be deemed an election of remedies or waiver of the right to
pursue any other remedy.
TERMINATION
15. The Chief Executive Officer and Board of Directors of the Company shall be
entitled to terminate this Agreement, for any reason, by providing the Executive
with thirty (30) days' written notice of the termination, delivered in person,
or by certified U.S. mail to the Executive's last known address reflected in the
Company's personnel records. Such notice shall be effective upon personal
delivery or three days after mailing by certified mail. However, if the
Agreement is terminated at the Company's insistence without "good cause" as
defined in this Agreement, the Company covenants and agrees to provide the
Executive with the SEVERANCE set forth below in this Agreement.
16. For purposes of this Agreement, "good cause" shall be defined as the
occurrence of one of the following events:
(a) The Executive violates any provision of this Agreement or is grossly
negligent in the performance of his duties hereunder, and fails to cure
such violation or the effects of such gross negligence within ten (10) days
after written notice to the Executive by the Company specifying in
reasonable detail the alleged violation;
(b) The Executive is indicted for a felony, or a misdemeanor involving
moral turpitude;
(c) A bank regulatory agency having jurisdiction over the Company or the
Bank has issued a notice of intent (i.e. a "15 day letter") to pursue the
suspension or removal of Executive by bank regulatory authorities; or
(d) The Chief Executive Officer and/or the Board of Directors, in the
exercise of his or its reasonable judgment and in good faith, determines
that the Executive's job performance is substantially unsatisfactory and
the Executive has failed to cure such performance within a reasonable
period after written notice to the Executive by the Company or the Bank
specifying in reasonable detail the nature of the unsatisfactory
performance.
17. The Executive shall be entitled to terminate this Agreement at any time, for
any reason, with or without cause, by providing thirty (30) days written notice,
by personal delivery or certified U.S. mail, to the Company at its principal
business address of the Executive's intention to terminate this Agreement. Such
notice shall be effective upon personal delivery or three days after mailing by
certified mail. In the event that the Executive does so because of a
"constructive termination" as defined in this Agreement, the Company covenants
and agrees to provide the Executive with the SEVERANCE set forth below in this
Agreement. "Constructive termination" shall mean any circumstance pursuant to
which Executive's compensation is materially diminished, his job title is
changed to a position of lesser importance, or his responsibilities are
materially reduced.
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18. In the event of the Executive's death, this Agreement will terminate
immediately, without notice, on the date of the Executive's death. The Executive
acknowledges and agrees that, in the event of his death, the Company will pay to
the Executive's estate all compensation due and owing through the date of the
Executive's death.
19. This Agreement will terminate immediately, without notice, in the even the
Executive becomes physically or mentally disabled, as defined by 29 CFR Section
1630.2(g)(1), and cannot perform the essential functions of his position, with
or without reasonable accommodation for the period designated by the Executive's
disability insurance after which disability payments will begin.
20. The Executive acknowledges and agrees that in the event of termination of
this Agreement, for whatever reason, whether at the insistence of the Executive
or at the insistence of the Company, the Executive will return to the Company
within seventy-two (72) hours of the time when notice of termination is
communicated by either party, or sooner if requested by the Company, any and all
equipment, literature, documents, data, information, order forms, memoranda,
correspondence, customer and prospective customer lists, customer's orders,
records, cards or notes acquired, compiled or coming into the Executive's
knowledge, possession or control in connection with his activities as an
employee of the Company or the Bank, as well as all machines, parts, equipment
or other materials received from the Company or the Bank or from any of their
respective customers, agents or suppliers, in connection with such activities.
21. The provisions of Paragraphs 12-14, 20-25, 30 and 36 shall survive the
termination of this Agreement.
CHANGE IN CONTROL
22. The parties acknowledge that the Executive has agreed to assume the position
of Executive Vice President and Chief Lending Officer and to enter into this
Agreement based on his confidence in the current owners of the Company and the
direction of the Company provided by the current Board of Directors. If the
Company should undergo a "Change in Control", as defined below, and there is a
material change in the Executive's responsibilities, duties, terms or location
of employment, then the Executive, at his option, may notify the Company at any
time within sixty (60) days following such Change in Control, by personal
delivery or certified U.S. mail, that he intends to terminate this Agreement
based upon the Change in Control. Notice of termination shall be effective upon
delivery or three (3) days after mailing by certified mail.
23. In the event that the Executive elects to terminate this Agreement based
upon a Change in Control, the Company covenants and agrees to pay the Executive
cash payments in an aggregate amount equal to 125% of Executive's then current
annual salary or $143,750, whichever is greater, less statutory payroll
deductions. Such compensation shall be payable in equal disbursements in
accordance with the Company's ordinary payroll policies and procedures.
24. As used in this Agreement, a "Change in Control" shall be deemed to have
occurred in any one of the following circumstances:
(a) the Company or the Bank is merged or consolidated with another
corporation and as the result of such merger or consolidation is less than
fifty percent (50%) of the outstanding voting securities (on a fully
diluted basis) of the surviving or resulting corporation are owned in the
aggregate by the former shareholders of the Company;
(b) the Company or the Bank sell all or substantially all of its assets to
another corporation; or
(c) there is an acquisition of more than fifty percent (50%) of the
outstanding voting securities of the Company pursuant to any transaction or
combination of transactions by any person or group within the meaning of
such terms in the Securities Exchange Act of 1934, as amended.
SEVERANCE
25. If the Company elects to terminate this Agreement at any time prior to the
Expiration date for any reason other than "good cause" as defined in this
Agreement, or if Executive terminates this Agreement as a result of a
"constructive termination," the Executive shall be entitled to severance pay.
Such severance pay shall be equal to $57,500.00 or the equivalent of half the
Executive's then current salary, whichever is greater, less statutory payroll
deductions, payable in twelve (12) equal disbursements in accordance with the
Company's ordinary payroll policies and procedures, beginning on the date that
the notice of termination becomes effective. In the event that the Executive is
entitled to payment under the CHANGE IN CONTROL or NON-COMPETITION provisions
above, no payment shall be due under this SEVERANCE provision.
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SEVERABILITY
26. The Executive acknowledges and agrees that each covenant and/or provision of
the Agreement shall be enforceable independently of every other covenant and/or
provision. Furthermore, the Executive acknowledges and agrees that, in the event
any covenant and/or provision of this Agreement is determined to be
unenforceable for any reason, the remaining covenants and/or provisions will
remain effective, binding and enforceable.
WAIVER
27. The parties acknowledge and agree that the failure of either to enforce any
provision of this Agreement shall not constitute a waiver of that particular
provision, or of any other provisions of this Agreement.
SUCCESSORS AND ASSIGNS
28. The Executive acknowledges and agrees that this Agreement may be assigned by
the Company to any successor-in-interest and shall inure to the benefit of, and
be fully enforceable by, any successor and/or assignee; and this Agreement will
be fully binding upon, and may be enforced by the Executive against, any
successor and/or assignee of the Company.
29. The Executive acknowledges and agrees that his obligations, duties and
responsibilities under this Agreement are personal and shall not be assignable,
and that this Agreement shall be enforceable by the Executive only. In the event
of the Executive's death, this Agreement shall be enforceable by the Executive's
estate, executors and/or representatives, only to the extent provided herein.
CHOICE OF LAW
30. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT THE LAW OF THE STATE OF MICHIGAN
WILL GOVERN THE VALIDITY, INTERPRETATION AND EFFECT OF THIS AGREEMENT, AND ANY
OTHER DISPUTE RELATING TO, OR ARISING OUT OF, THE EMPLOYMENT RELATIONSHIP
BETWEEN THE COMPANY AND THE EXECUTIVE.
MODIFICATION
31. Both parties acknowledge and agree that this Agreement and the other
agreements and plans referenced herein constitute the complete and entire
agreement between the parties; that the parties have executed this Agreement
based upon the express terms and provisions set forth herein; that the parties
have not relied upon any representations, oral or written, which are not set
forth in this Agreement; that no previous agreement, oral or written, shall have
any effect on the terms and provisions of this Agreement; and that all previous
agreements, either oral or written, are expressly superseded and revoked by this
Agreement.
32. Both p[arties acknowledge and agree that the covenants and/or provisions of
this Agreement may not be modified by any subsequent agreement unless the
modifying agreement; (i) is in writing; (ii) contains an express provision
referencing this Agreement; (iii) is signed by the Executive; and (iv) is
approved by the Chief Executive Officer and a disinterested majority of the
Board of Directors.
INDEMNIFICATION
33. During the term of this Agreement, the Company shall indemnify the Executive
against all judgments, penalties, fines, amounts paid in settlement and
reasonable expenses (including, but not limited to, attorney's fees) relating to
his employment by the Company to the fullest extent permissible under the
Company's Articles of Incorporation and the Bank's Articles of Association and
may purchase such indemnification insurance as the Board of Directors may from
time to time determine.
LEGAL CONSULTATION
34. The Executive and the Company acknowledge and agree that both parties have
been accorded a reasonable opportunity to review this Agreement with legal
counsel prior to executing this Agreement. The Executive acknowledges that he is
not represented by Xxxxxx & Xxxxxx, P.C. in connection with the preparation and
negotiation of this Agreement, and that Xxxxxx & Xxxxxx, P.C. represents the
Company.
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NOTICES
35. Any and all notices of documents or other notices required to be delivered
under the terms of this Agreement shall be addressed to each party as follows:
EXECUTIVE
Xxxxxxxx X. Xxxxxxxx
000 Xxxx Xxxxx
Xxxxxx Xxxxxx xxxxx, XX 00000
COMPANY
Lotus Bancorp, Inc.
Lotus Bank
00000 Xxxxx Xxxxx Xxx.
Xxxx, XX 00000
MISCELLANEOUS
36. The Executive shall make himself available, upon the request of the Company
or the Bank, to testify or otherwise assist in litigation, arbitration, or other
disputes involving the Company or the Bank, or any of the directors, officers,
employees, subsidiaries, or parent corporations of either, at no additional cost
during the term of this Agreement and at any time following the termination of
this Agreement.
37. The Executive shall not be required to mitigate the amount of any payment
provided for in this Agreement by seeking other employment or otherwise, nor
shall the amount of any payment provided for in this Agreement be reduced by any
compensation earned by the Executive as the result of employment by another
employer after the date of termination, or otherwise.
38. In the event either party institutes litigation to enforce or protect its
rights under this Agreement, the prevailing party in such litigation shall be
entitled, in addition to all other relief, to reasonable attorney fees,
out-of-pocket costs, disbursements, and fees relating to such litigation.
39. This Agreement shall be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same Agreement.
40. Neither the Company nor the Bank shall have any obligation to set aside,
earmark or entrust any fund or money with which to pay its obligations under
this Agreement. The Executive or any successor-in-interest to Executive shall be
and remain simply a general creditor of the Company or the Bank in the same
manner as any other creditor having a general unsecured claim. For purposes of
the Code, the Company intends this Agreement to be an unfunded, unsecured
promise to pay on the part of the Company. For purposes of Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), the Company intends that this
Agreement shall not be subject to ERISA. If it is deemed to be subject to ERISA,
it is intended to be an unfunded arrangement for the benefit of a select member
of management, who is a highly compensated employee of the Company for the
purpose of qualifying this Agreement for the "top hat" plan exception under
sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. At no time shall the
Executive have or be deemed to have any lien nor right, title or interest in or
to any specific investment or to any assets of the Company or the Bank. If the
Company or Bank elects to invest in a life insurance, disability or annuity
policy upon the life of the Executive, the Executive shall assist the Company
and Bank by freely submitting to a physical examination and supplying such
additional information necessary to obtain such insurance or annuities.
41. When a reference is made in this Agreement to a Paragraph, such reference
shall be to a Paragraph of this Agreement unless otherwise indicated. The
headings contained in this Agreement are for convenience of reference only and
shall not affect in any way the meaning or interpretation of this Agreement.
Whenever the words "include", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation." The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision in this Agreement. Each use herein of the
masculine, neuter or feminine gender shall be deemed to include the other
genders. Each use herein of the plural shall include singular and vice-versa, in
each case as the
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context requires or as is otherwise appropriate. The word "or" is used in the
inclusive sense. Any agreement or instrument defined or referred to herein or in
any agreement or instrument that is referred to herein mean such agreement or
instrument as from time to time amended, modified, or supplemented, including by
waiver or consent. References to a person are also to its permitted successors
or assigns.
42. Executive represents that his service as an employee of the Company and Bank
will not violate any agreement: (i) he has made that prohibits him from
disclosing any information he acquired prior to his becoming employed by the
Company or the Bank; or (ii) he has made that prohibits him from accepting
employment with the Company or the Bank or that will interfere with his
compliance with the terms of this Agreement. Executive further represents that
he has not previously, and will not in the future, disclose to the Company or
the Bank any proprietary information or trade secrets belonging to any previous
employer. Executive acknowledges that the Company and the Bank have instructed
him not to disclose to it any proprietary information or trade secrets belonging
to any previous employer.
EXECUTED ON THIS DATE FIRST WRITTEN ABOVE IN _____________________________.
"EXECUTIVE"
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------- ----------------------------------------
Witness Xxxxxxxx X. Xxxxxxxx
"COMPANY"
LOTUS BANCORP, INC.
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx Xxxxx
------------------------------------- ----------------------------------------
Witness Xxxxxx Xxxxx
President & CEO
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