Exhibit 10.2
EMPLOYMENT AGREEMENT
This agreement ("Agreement") is made this 10th day of December, 2000
("Execution Date") between Xxxxxx X. Xxxxxxxx ("Executive") and CapSource
Financial, Inc. ("CapSource"), a Colorado corporation.
The parties agree as follows:
1. This Agreement is effective December 10, 2000.
2. CapSource agrees to continue to employ Executive for a period
commencing on the Effective Date and ending either 1) two (2) years after
CapSource delivers written notice to the Executive of CapSource's intention to
terminate this Agreement or 2) Executive's sixty-fifth (65) birthday, whichever
is earlier ("Term of Employment").
3. Executive shall serve as Vice President and General Counsel of
CapSource and in such additional capacities as may be determined from time to
time by the Board of Directors of CapSource and as agreed to by the Executive.
In addition, Executive shall serve as a member of the Boards of Directors of
CapSource and of subsidiaries and affiliates of CapSource.
4. CapSource shall provide Executive with adequate office facilities
within sixty (60) miles of St. Xxxx, Minnesota.
5. Notwithstanding any other provision of this Agreement, this
Agreement shall automatically terminate upon Executive's death and all benefits
payable hereunder shall cease except death benefits provided under CapSource's
employee benefit plans or as specifically provided in this Agreement.
6. Executive accepts employment with CapSource and will devote his full
time (subject to established CapSource practice for time off and outside
activities) and best efforts during reasonable business hours to the performance
of duties and responsibilities reasonably assigned to Executive during the Term
of Employment.
7. The compensation and benefits which CapSource will be obligated to
provide Executive for his services during the Term of Employment shall include
or be based upon the following:
a) base salary equal to $96,000 per year ("Base Salary"),
payable in installments twice monthly; provided however, if Executive's Base
Salary is increased by CapSource's Board of Directors after the Effective Date,
the amount of such increased Base Salary shall automatically become the
Executive's minimum Base Salary thereafter for all purposes of this Agreement
without amendment to this Agreement. During the Term of Employment the Executive
has the option but not the obligation to receive up to twenty-five percent (25%)
of the Base Salary in common stock of CapSource on the basis of one (1) share of
common stock for each $1.00 of Base Salary so designated to be paid in common
stock in lieu of such portion of Base Salary;
b) prior to January 1, 2002, the Board of Directors will
establish a new Base Salary for the Executive in an amount which reflects the
degree of attainment of CapSource of its business strategy and plans for growth;
c) participation in incentive compensation and stock option
plans of CapSource;
d) participation in any other compensation, insurance,
pension, savings, health and welfare plans offered by CapSource on or after the
Effective Date to executives of similar status.
8. Notwithstanding the provisions of this Agreement:
a) CapSource may terminate this Agreement immediately and
without prior notice to Executive for "cause" as defined below. If Executive is
terminated for cause, he forfeits all prospective benefits provided in this
Agreement, but without affecting benefits derived from any other plan or source.
Cause shall be defined as any
of the following events: i) Executive has misappropriated any funds or property
of CapSource; ii) Executive has been convicted of a felony; iii) Executive has
obtained personal profit from any CapSource transaction with a third party
without the prior approval of such profit from the CapSource Board of Directors;
or iv) Executive has obtained personal profit, or attempted to obtain personal
profit, from the sale of CapSource trade secrets or confidential information.
b) CapSource may terminate this Agreement at any time after
giving ninety (90) days written notice to Executive that Executive has breached
and continues to breach in any material respect any of his obligations under
Paragraphs 3 or 6 of this Agreement after Executive has been given written
notice of the nature of the initial breach. If Executive disputes the commission
by him of any act or acts asserted by CapSource to constitute Cause or the
occurrence and continuation of an alleged breach, either CapSource or Executive
may initiate binding arbitration proceedings to resolve whether the Executive
has committed an act or acts constituting Cause or has committed a continuing
breach. If the Executive does not dispute any termination for Cause within sixty
(60) days after such termination or does not dispute the occurrence and
continuation of an alleged breach within the ninety (90) day notice period,
Executive shall be conclusively presumed to have been terminated for cause or
for having committed and continued the breach. Executive forfeits all
prospective benefits provided in this Agreement if he is terminated for cause of
Executive's breach.
c) CapSource may terminate Executive's rights hereunder
without Cause and without breach at any time after giving ninety (90) days
written notice to Executive and if it does is responsible to Executive for all
payments and rights as set forth in Paragraph 7.
d) Executive may resign from CapSource and terminate this
Agreement after giving ninety (90) days written notice to CapSource that
CapSource has breached any of its commitments set forth in Paragraphs 3, 4 or 7
of this Agreement unless CapSource rectifies the breach within the ninety (90)
day notice period or disputes the occurrence of the alleged breach within such
ninety (90) day notice period. If CapSource disputes the occurrence of the
alleged breach either CapSource or the Executive may initiate binding
arbitration proceedings to resolve whether CapSource has committed a breach. If
CapSource does not dispute the occurrence of the alleged breach within the
ninety (90) day notice period, CapSource shall be conclusively presumed to have
committed the breach. If Executive resigns from CapSource pursuant to this
subparagraph and there has been no determination that CapSource did not breach
this Agreement, Executive shall be entitled to the benefits provided in
Paragraph 7 of this Agreement.
e) Executive may resign from CapSource following a Change in
Control after giving ninety (90) days written notice. For purpose of this
Agreement, a Change of Control means and occurs on the date (i) on which a
majority of the members of the CapSource Board of Directors is not composed of
members of the CapSource Board of Directors as of the Effective Date or (ii) on
such date as the Executive no longer serves as a member of the CapSource Board
of Directors if he has resigned after giving written notice to the Board of
Directors that he is not in agreement with the current business plan of
CapSource, whichever date first occurs. If Executive resigns from CapSource
pursuant to this subparagraph, Executive will be entitled to the benefits
provided in Paragraph 7 of this Agreement.
f) Executive may voluntarily resign from CapSource in absence
of a breach by CapSource of any of its commitments set forth in Paragraphs 3, 4
or 7 of this Agreement after giving ninety (90) days written notice of his
intention to resign. If Executive voluntarily resigns pursuant to this
subparagraph, he forfeits all prospective benefits provided in this Agreement.
g) If Executive's rights are terminated without cause or
without breach on the part of the Executive or otherwise in accordance with the
terms of subparagraphs (c), (d) or (e) of this Paragraph: (i) at his election,
Executive will receive a lump sum of cash immediately upon termination of
employment in an amount equal to the total Base Salary and any applicable
incentive compensation payments which would have been payable to him during the
Term of Employment had his employment not been terminated and without any
discount by reason of early payment, or continuing twice monthly salary payments
plus any applicable incentive compensation payments; and (ii) Executive and his
eligible dependents will continue to participate in CapSource's medical,
insurance and other welfare plans during the remaining Term of Employment and
thereafter to the extent such plans provide benefits for retired employees; and
(iii) Executive will continue to enjoy all rights created to any pension,
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savings or profit-sharing plans; and (iv) Executive may elect to have CapSource
purchase all shares of common stock of CapSource owned by Executive or his
affiliates at the greater of $1.00 per share or the fair market value of such
shares; and (v) Executive may elect to have CapSource purchase any outstanding
warrants for common stock by paying him the difference, if any, between the
warrant exercise price and the fair market value of such shares; and (vi) the
failure of the Executive to make either of the elections specified in (iv) or
(v) of this Paragraph shall not deprive him of the shares or warrants and he
shall be permitted to exercise the warrants in accordance with the terms under
which such warrants were originally issued as if he had continued to be an
employee of CapSource.
For purposes of calculating salary or service for such plans referenced
in (iii) above, all compensation payments under this Agreement and the Term of
Employment shall be considered as payments for compensated service during the
Term of Employment. Further, CapSource shall continue to make any contributions
to such plans referenced in (iii) above for the benefit of the Executive during
the Term of Employment as if his employment had not been terminated and
Executive shall be fully vested in all such plans referenced in (iii) above upon
termination of Executive's employment without cause or without breach on the
part of the Executive or otherwise in accordance with the terms of subparagraphs
(c), (d) or (e) of this Paragraph.
9. If CapSource shall at any time be merged or consolidated into or
with any other corporation, or if substantially all of the assets thereof are
transferred to another corporation, the provisions of this Agreement shall be
binding upon and inure to the benefit of the corporation resulting from such
merger or consolidation or acquiring such assets, and this Paragraph shall apply
in the event of any subsequent merger or consolidation or transfer of assets.
10. In the event of any merger, consolidation or sale of assets
described above, nothing contained in this Agreement shall detract from or
otherwise limit Executive's right to or privilege of participation in any stock
option or warrant plan or any bonus, profit-sharing, pension, insurance, medical
or other incentive or benefit plan arrangement which may be or becomes
applicable to the officers of the corporation resulting from such merger or
consolidation or the corporation acquiring the assets of CapSource.
11. No change or modification of this Agreement shall be made except in
writing.
12. If any of the provisions of this Agreement should be deemed
unenforceable, the remaining provisions shall remain in full force and effect.
13. The validity, interpretation and effect of this Agreement shall be
governed by the law of the State of Colorado.
14. Any notice required or permitted to be given under this Agreement
shall be in writing and shall be addressed: (a) if to CapSource at its principal
place of business, attention Chairman of the Board; (b) if to Executive at his
home mailing address on file with CapSource.
15. CapSource acknowledges and agrees that it is entering into this
Agreement in order to assure the continued service of the Executive and that it
would be necessary to enter into a similar agreement in order to attract and
retain any replacement for Executive having comparable talent and experience.
Accordingly, should the Internal Revenue Service (IRS) seek to treat any
payments required by this Agreement as "excess parachute payments" subject to
the 20% excise tax, CapSource agrees that at its sole expense it will contest
such position taken by the IRS and if unsuccessful to pay Executive an amount
equal to the excise tax assessed the Executive in order to make the Executive
whole.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
10th day of December, 2000.
EXECUTIVE: CAPSOURCE FINANCIAL, INC.:
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Xxxxxx X. Xxxxxxxx By: Xxxxxxxx X. Xxxxxx
Director
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