EXHIBIT 10.8
FIRSTBANK
AND
ACCESS ANYTIME BANCORP, INC.
EMPLOYMENT AGREEMENT
AGREEMENT, made this 16th day of February, 2002, by and between FirstBank
(Bank), a federally chartered stock savings bank and ACCESS ANYTIME BANCORP,
INC. (Company) and Xxx X. Xxxxxxx (Officer).
The Officer is an employee of the Bank/Company and has been duly elected.
The Bank/Company desires to provide for the employment of the Officer in
order to reinforce and encourage his continued attention and dedication to
the growth and success of the Bank/Company as a member of the Bank management;
The Officer desires to serve the Bank/Company on the terms and conditions
to contained in this Agreement;
THEREFORE, in consideration of the premises and respective agreements
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. Employment. The Bank/Company agrees to employ and the Officer agrees
to serve the Bank/Company on the terms and conditions set forth in this
Agreement.
2. Term. The term of this Agreement shall commence on or before
February, 16 2002 and shall continue through August 1, 2004, subject to the
terms and conditions herein set forth. As required by Thrift Bulletin No.
27a(#RB 27a) the Board of Directors of the Bank/Company must review and
approve any renewals or extensions of this contract.
3. Position and Responsibilities. It is intended that at all times
during the term of this Agreement the Officer shall serve as Executive Vice
President and Chief Lending Officer and Director of the Bank, and Executive
Officer and Director of the Company. The Officer shall devote time and
attention to the business and affairs of the Bank/Company (excluding periods
of vacation, sickness, and permitted leaves of absence as provided for in the
Bank's personnel policies).
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(a) MAJOR DUTIES AND RESPONSIBILITIES. The Officer will provide
leadership and direction with the following duties/responsibilities that are
to be considered essential functions of Officer's position.
(i) Contribute to the effective, profitable operation of the
Bank/Company by participating in asset management, executive, investment,
stockholder, marketing activities, credit solicitation, review and approval,
and
(ii) Represent the Bank/Company and provide leadership in key
community activities, including business, charitable, civic, and social
organizations to maintain a proper responsible citizen stature for the
Bank/Company.
4. Compensation. During the period of the Officer's employment, the
Bank/Company shall provide said Officer with the following compensation and
other benefits:
(a) SALARY. The Bank/Company shall pay to the Officer a salary at
a rate not less than $110,000 per annum, payable in accordance with the
standard payroll practices of the Bank/Company. This salary may be increased
from time to time by the Board of Directors of the Bank/Company, taking into
account, among other things, individual performance and general business
conditions. Management will annually recommend allocation of Base Salary
between Bank and Company, provided, however, that Bank and Company are
jointly and severally responsible for payment of Officer's salary and other
compensation and benefits provided by this Agreement.
(b) INCENTIVE/BONUS COMPENSATION. The Officer shall be eligible
to participate in Board-approved incentive or bonus compensation plans.
(c) EMPLOYEE BENEFITS. The Officer shall be eligible to
participate in all benefit programs of the Bank/Company including but not
limited to profit sharing/employee stock ownership, 401K plan, deferred
compensation plan, group life insurance, separate life insurance plans, group
health insurance, sick leave, salary continuation, disability, vacation, and
holidays.
(d) PERQUISITES AND BUSINESS EXPENSES. The Officer shall be
entitled to prompt reimbursement of all reasonable expenses incurred by said
Officer in performing services hereunder and is to be provided additional
perquisites customary for the Bank/Company. The Bank/Company shall provide a
late model automobile for use by the Officer during the term of this
Agreement or equivalent car allowance.
(e) STOCK OPTION PLAN. The Board of Directors shall cause the
Bank/Company to grant under its stock option plan (FirstBank, 1997 Stock
Option and Incentive Plan) 5,000 shares of Company common stock to the
officer effective February 16, 2002. The option may be exercisable at the
fair market price of the common stock at the date
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of the grant, as indicated by the stock option plan with an expiration date
as determined by the plan.
(f) 12 USC 1828(k) COMPLIANCE. Any payments made to the Officer
pursuant to this Agreement, or otherwise, are subject to, and conditioned
upon, their compliance with 12 USC 1828(k) and any regulations promulgated
thereunder.
5. Termination
The following events shall constitute grounds for termination:
(a) DISABILITY OR DEATH. If, as a result of the Officer's
incapacity due to physical or mental illness, the Officer shall have been
unable to perform the essential functions of his position as described in
PARAGRAPH 3(a) above on a full-time basis for 150 consecutive business days,
then the Bank/Company shall be entitled to deliver written notice of
termination to the Officer, and if, within 30 days after any such written
notice of termination is given, the Officer remains unable to perform the
essential functions of his position on a full-time basis, the Bank/Company
may terminate the Officer's employment hereunder. Upon the death of the
Officer, the Bank/Company shall continue to pay the Officer's estate the Base
Salary for a period of 180 days following the Officer's death, following
which the obligations of the Bank/Company hereunder shall terminate.
Termination hereunder shall not affect the Officer's entitlement to any
vested benefits of the Officer hereunder or under any plan or arrangement
contemplated by Section 4 above.
(b) CAUSE. The Bank/Company may terminate the Officer's
employment at any time, but any termination by the Bank/Company other than
termination for cause, shall not prejudice the Officer's right to receive
compensation or other benefits under this Agreement. The Officer shall not
have a right to receive compensation or other benefits for any period after
termination for cause. Termination for cause shall include termination
because of the Officer's personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule, or
regulation (other than traffic violations or similar offenses), or breach of
any provision of this Agreement.
If the Officer is suspended and/or temporarily prohibited from
participation in the conduct of the Bank/Company's affairs by a notice served
under Section 8(e)(3) or (g)(1) of [the] Federal Deposit Insurance Act (12
U.S.C. 1818(e)(3) or (g)(1)) the Bank/Company'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/Company may, at its discretion, (i) pay the Officer all or part of the
compensation withheld while its Contract (Agreement) obligations were
suspended and (ii) reinstate (in whole or in part) any of its obligations
which were suspended.
If the Officer is removed and/or permanently prohibited from
participating in the conduct in the Bank/Company's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. 1818(e)(3) or (g)(1)), all obligations of the
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Bank/Company under this Agreement shall terminate as of the effective date of
the order, but vested rights of the contracting parties shall not be affected.
The Bank/Company shall exercise its right to terminate the Officer's
employment for cause by giving him a prompt written notice of termination
specifying in reasonable detail the circumstances constituting such cause and
specifying such date of termination as the Bank/Company shall determine.
In the event of a termination for cause, the Bank/Company shall have
no further liability for payment (other than previously accrued and unpaid
compensation) under Section 4 of this Agreement.
(c) DEFAULT. If the Bank/Company is in default (as defined in
Section 3(x)(1) of the Federal Deposit Insurance Act), all obligations under
this Agreement shall terminate as of the date of default, but this paragraph
shall not affect any vested right of the contracting parties.
Further, all obligations under this Agreement shall be terminated,
except to the extent determined that continuation of this Agreement is
necessary [for] the continued operation of the Bank/Company.
(i) by the Director of the Office Thrift Supervision or his or
her designee, at the time the Federal Deposit Insurance Corporation enters
into an agreement to provide assistance to or on behalf of the Bank/Company
under the authority contained in Section 13(c) of the Federal Deposit
Insurance Act; or
(ii) by the Director of the Office of Thrift Supervision or his
or her designee, at the time the Director or his or her designee approves a
supervisory merger to resolve problems related to operation of the
Bank/Company or when the Bank/Company is determined by the Director to be in
an unsafe or unsound condition.
(d) OTHER. The Bank/Company may terminate the Officer's
employment for reasons other than for cause. In such circumstances, the
Bank/Company shall pay to said Officer salary and employee benefits for the
remainder of the term of the Agreement, unless otherwise prohibited herein.
(e) TOTAL COMPENSATION. The compensation to the Officer upon
departure, for any reason, will not exceed three times the Officer's average
annual compensation as described in PARAGRAPH 4(a) and (b) above, based on
the five most recent taxable years. In the case of termination for cause,
however, no payments will be made.
6. Termination by the Officer.
(a) GOOD REASON. The Officer may terminate his employment for good
reason if: (i) any other corporation or entity acquires all or substantially
all of the business of
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the Bank/Company; (ii) he is not reelected an officer; or (iii) he is
assigned duties inconsistent with his duties as an officer or inconsistent
with his experience.
The Officer shall exercise his right to terminate his employment for
Good Reason by giving the Bank/Company a prompt written notice of termination
specifying in reasonable detail the circumstances constituting such Good
Reason and specifying such date of termination as the Officer shall determine.
In the event of a termination for Good Reason, the Bank/Company shall
pay to the Officer salary and employee benefits for the balance of the term
of the Agreement.
7. Other Miscellaneous Covenants.
(a) TAX WITHHOLDING. The Bank/Company shall have the right to
deduct from any payment required to be made to the Officer or said Officer's
estate or beneficiaries, any federal, state, or local taxes of any kind
required by law to be withheld with respect to such payments.
(b) NOTICES. Any notice hereunder to the Bank/Company shall be
addressed to Chairman of the Board of Directors of the Bank and Chairman of
the Company, X.X. Xxx 0000, Xxxxxx, Xxx Xxxxxx 00000-0000. Any notice to the
Officer shall be directed to said officer at Officer's last known address
contained in the Bank/Company's files. Either party may designate an address
at any time hereafter in writing.
(c) ENTIRE AGREEMENT. This Agreement sets forth the entire
Agreement and understanding of the parties with respect to the subject matter
herein.
(d) SUCCESSORS: ASSIGNS. Except as herein expressly provided, the
respective rights and obligations of the Officer and the Bank/Company under
this Agreement shall not be assigned by either party without the written
consent of the other party but shall inure to the benefit of, and be binding
upon, the parties or its permitted successors or assigns. With respect to
the Bank/Company, successors shall include any other corporation or entity
with which to the Bank/Company may be merged or otherwise combined or which
may acquire all or substantially all of the business (ownership) of the
Bank/Company. With respect to the Officer, successors shall include
Officer's estate, beneficiaries, or other legal representatives. Nothing
herein expressed or implied is intended to confer on any person other than
the parties hereto any rights, remedies, obligations, or liabilities under or
by reason of this Agreement.
(e) AMENDMENT: WAIVER. No provision of this Agreement may be
amended or waived without written authorization of both the Board of
Directors and the Officer.
(f) SEVERABILITY. In the event that any provision of this
Agreement shall be determined to be invalid or unenforceable, the remaining
provisions of the Agreement shall remain in full force and effect.
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(g) GOVERNING LAW. This Agreement shall be deemed a Contract
under, and for all purposes shall be construed with, the laws of the State of
New Mexico.
(h) ARBITRATION. Any dispute or disagreement arising under this
Agreement shall be settled by arbitration conducted by member of the American
Arbitration Association in accordance with the rules of said association.
Judgment may be entered on the arbitrator's award in any court having
jurisdiction. The expense of such arbitration, including arbitrator's fees,
cost, and reasonable attorney fees incurred by Officer, shall be borne by the
Bank/Company if the Officer receives a judgment in said Officer's favor
against the Bank/Company.
(i) INVESTMENTS. Nothing contained in this contract shall prevent
the Officer from investing or trading stocks, bonds, securities, real estate,
or other forms of investment for said Officer's own benefit (directly or
indirectly), provided such investments do not significantly interfere or
conflict with Officer's services to be rendered hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day,
month and year first written above.
FIRSTBANK ACCESS ANYTIME BANCORP, INC.
By: /s/ Xxxxxx Xxxx Xxxxxx By: /s/ Xxxx Xxxxxxx
-------------------------- -----------------------------
Xxxxxx Xxxx Xxxxxx, Chairman Xxxx Xxxxxxx, Chairman
Board of Directors Board of Directors
EXECUTIVE OFFICER
By: /s/ Xxx X. Xxxxxxx
--------------------------
Xxx X. Xxxxxxx
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