AMERICAN NATIONAL SAVINGS BANK, F.S.B.
EMPLOYMENT AGREEMENT
This Agreement is made effective as of the 1st day of December,
1995 by and between American National Savings Bank, F.S.B., a federally-
chartered stock savings bank (the "Bank"), with its principal
administrative office at 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
00000-0000, and Xxxxx X. Xxxxxx (the "Executive"). Any reference to
"Company" herein shall mean American National Bancorp, Inc., the stock
holding company parent of the Bank or any successor thereto.
WHEREAS, the Bank wishes to assure itself of the services of
Executive for the period provided in this Agreement; and
WHEREAS, Executive is willing to serve in the employ of the Bank on
a full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided,
the parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES
During the period of his employment hereunder, Executive agrees to
serve as Senior Vice President and Chief Financial Officer of the Bank.
During said period, Executive also agrees to serve, if elected, as an
officer and director of any subsidiary or affiliate of the Bank.
Failure to reappoint Executive as Senior Vice President and Chief
Financial Officer in accordance with the terms of Section 2(a) without
the consent of the Executive during the term of this Agreement, shall
constitute an Event of Termination.
2. TERMS AND DUTIES
(a) The period of Executive's employment under this Agreement
shall begin as of the date first above written and shall continue for a
period of twenty-four (24) full calendar months thereafter. During said
term the Executive shall perform the normal and customary duties
associated with the position of Senior Vice President and Chief
Financial Officer. Commencing on the first anniversary date of this
Agreement, and continuing at each anniversary date thereafter, the
Agreement shall renew for an additional year such that the remaining
term shall be two (2) years unless written notice is provided to
Executive at least ten (10) days and not more than thirty (30) days
prior to any such anniversary date, that this Agreement shall not renew,
in which event this Agreement shall expire at the end of twenty-four
(24) months following such anniversary date. Prior to each notice
period for non-renewal, the disinterested members of the Board of
Directors of the Bank ("Board") will conduct a comprehensive performance
evaluation and review of the Executive for purposes of determining
whether to extend the Agreement, and the results thereof shall be
included in the minutes of the Board's meeting.
(b) During the period of his employment hereunder, except for
periods of absence occasioned by illness, reasonable vacation periods,
and reasonable leaves of absence, Executive shall devote substantially
all his business time, attention, skill, and efforts to the faithful
performance of his duties hereunder including activities and services
related to the organization, operation and management of the Bank;
provided, however, that, with the approval of the Board, as evidenced by
a resolution of such Board, from time to time, Executive may serve, or
continue to serve, on the boards of directors of, and hold any other
offices or positions in, business companies or business organizations,
which, in such Board's judgment, will not present any conflict of
interest with the Bank, or materially affect the performance of
Executive's duties pursuant to this Agreement (it being understood that
membership in social, religious, charitable or similar organizations
does not require Board approval pursuant to this Section 2(b)).
3. COMPENSATION AND REIMBURSEMENT
(a) The compensation specified under this Agreement shall
constitute the salary and benefits paid for the duties described in
Section 2(b). The Bank shall pay Executive as compensation a salary of
not less than $____________ per year ("Base Salary"). Such Base Salary
shall be payable biweekly. During the period of this Agreement,
Executive's Base Salary shall be reviewed at least annually. Such
review shall be conducted by a Committee designated by the Board, and
the Board may increase, but not decrease, Executive's Base Salary (any
increase in Base Salary shall become the "Base Salary" for purposes of
this Agreement). In addition to the Base Salary provided in this
Section 3(a), the Bank shall provide Executive with all such other
benefits as are provided uniformly to full-time employees of the Bank.
(b) The Bank will provide Executive with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving benefit from
immediately prior to the beginning of the term of this Agreement, and
the Bank will not, without Executive's prior written consent, make any
changes in such plans, arrangements or perquisites which would adversely
affect Executive's rights or benefits thereunder. Without limiting the
generality of the foregoing provisions of this Section 3(b), Executive
will be entitled to participate in or receive benefits under any
employee benefit plans including but not limited to, retirement plans,
supplemental retirement plans, pension plans, profit-sharing plans,
health-and-accident plans, medical coverage or any other employee
benefit plan or arrangement made available by the Bank in the future to
its senior executives and key management employees, subject to and on a
basis consistent with the terms, conditions and overall administration
of such plans and arrangements. Executive will be entitled to incentive
compensation and bonuses as provided in any plan of the Bank in which
Executive is eligible to participate (and he shall be entitled to a pro
rata distribution under any incentive compensation or bonus plan as to
any year in which a termination of employment occurs, other than
termination for Cause). Nothing paid to the Executive under any such
plan or arrangement will be deemed to be in lieu of other compensation
to which the Executive is entitled under this Agreement.
(c) In addition to the Base Salary provided for by this Section
3(a), the Bank shall pay or reimburse Executive for all reasonable
travel and other reasonable expenses incurred by Executive performing
his obligations under this Agreement and may provide such additional
compensation in such form and such amounts as the Board may from time to
time determine in accordance with standards set by the Board of
Directors.
(d) Compensation and reimbursement to be paid pursuant to Sections
3(a), 3(b) and 3(c) shall be paid by the Bank and the Company,
respectively on a pro rata basis based upon the amount of service the
Executive devotes to the Bank and Company, respectively.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
The provisions of this Section shall in all respects be subject to
the terms and conditions stated in Sections 8 and 15.
(a) The provisions of this Section shall apply upon the occurrence
of an Event of Termination (as herein defined) during the Executive's
term of employment under this Agreement. As used in this Agreement, an
"Event of Termination" shall mean and include any one or more of the
following:
(i) the termination by the Bank or the Company of Executive's
full-time employment hereunder for any reason other than (A) Disability
or Retirement, as defined in Section 6 hereof, (B) following a Change in
Control, as defined in Section 5(a) hereof, or (C) Termination for Cause
as defined in Section 7 hereof; or
(ii) Executive's resignation from the Bank's employ, upon any:
(A) failure to elect or reelect or to appoint or reappoint
Executive as Senior Vice President and Chief Financial Officer
during the term of this Agreement in accordance with Section
2(a) of this Agreement,
(B) material change in Executive's function, duties, or
responsibilities, which change would cause Executive's
position to become one of lesser responsibility, importance,
or scope from the position and attributes thereof described in
Section 1, hereof,
(C) a relocation of Executive's principal place of employment
by more than 30 miles from its location at the effective date
of this Agreement, or a material reduction in the benefits and
perquisites to the Executive from those being provided as of
the effective date of this Agreement,
(D) liquidation or dissolution of the Bank or Company other
than liquidations or dissolutions that are caused by
reorganizations that do not affect the status of Executive, or
(E) breach of this Agreement by the Bank.
Upon the occurrence of any event described in clauses (ii) (A),
(B), (C), (D) or (E), of this Section 4(a), Executive shall have the
right to elect to terminate his employment under this Agreement by
resignation upon sixty (60) days prior written notice which must be
given by Executive within a reasonable period of time not to exceed four
calendar months after the initial event giving rise to said right to
elect, which shall be deemed to constitute an "Event of Termination."
Notwithstanding the preceding sentence, in the event of a continuing
breach of this Agreement by the Bank, the Executive, after giving due
notice within the prescribed time frame of an initial event specified
above, shall not waive any of his rights solely under this Agreement and
this Section 4 by virtue of the fact that Executive has submitted his
resignation but has remained in the employment of the Bank and is
engaged in good faith discussions to resolve any occurrence of an event
described in clauses (A), (B), (C), (D) and (E) of this Section 4(a).
(b) Upon the occurrence of an Event of Termination, on the Date of
Termination, as defined in Section 8, the Bank shall pay Executive, or,
in the event of his subsequent death, his beneficiary or beneficiaries,
or his estate, as the case may be, as severance pay or liquidated
damages, or both, a sum equal to the greater of the payments due for the
remaining term of the Agreement or two (2) times the average of the five
preceding years' Base Salary, including bonuses and any other cash
compensation paid to the Executive during each of such years, and the
amount of any contributions made to any employee benefit plans, on
behalf of the Executive, maintained by the Bank during such years;
provided however, that if the Bank is not in compliance with its minimum
capital requirements or if such payments would cause the Bank's capital
to be reduced below its minimum capital requirements, such payments
shall be deferred until such time as the Bank is in capital compliance.
At the election of the Executive, which election is to be made on an
annual basis during the Month of January, and which election is
irrevocable for the year in which made and upon the occurrence of an
Event of Termination, any payments shall be made in a lump sum or paid
monthly during the remaining term of this Agreement following the
Executive's termination. In the event that no election is made, payment
to the Executive will be made on a monthly basis during the remaining
term of this Agreement. Such payments shall not be reduced in the event
the Executive obtains other employment following termination of
employment.
(c) Upon the occurrence of an Event of Termination, the Bank, in
its sole discretion, shall either (i) contribute the same amount as the
Bank contributed prior to such Event of Termination towards the purchase
for Executive of, or (ii) cause to be continued for Executive under the
Bank's existing employee benefit plans, life, medical, dental and
disability coverage substantially identical to the coverage maintained
by the Bank for Executive prior to his termination (provided nothing
herein shall be deemed to require the Bank to contribute more towards
such coverage than it contributed prior to such Event of Termination).
Such coverage shall cease upon the expiration of the greater of (i) the
remaining term of the Agreement or (ii) twenty-four (24) months.
5. CHANGE IN CONTROL
(a) No benefit shall be payable under this Section 5 unless there
shall have been a Change in Control of the Bank or Company, as set forth
below. For purposes of this Agreement, a "Change in Control" of the
Bank or Company shall mean an event of a nature that: (i) would be
required to be reported in response to Item 1(a) of the current report
on Form 8-K, as in effect on the date hereof, pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act'); or
(ii) results in a Change in Control of the Bank or the Company within
the meaning of the Home Owners' Loan Act of 1933 and the Rules and
Regulations promulgated by the Office of Thrift Supervision (or its
predecessor agency), as in effect on the date hereof; or (iii) without
limitation such a Change in Control shall be deemed to have occurred at
such time as (a) any "Person' (as the term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Bank or the Company representing 25% or more of the
Bank's or the Company's outstanding securities except for any securities
of the Bank purchased by the Company in connection with the conversion
of the Bank to the stock form and any securities purchased by the Bank's
employee stock ownership plan and trust; or (b) individuals who
constitute the Board on the date hereof (the "Incumbent Board") cease
for any reason to constitute at least a majority thereof, provided,
however, that this sub-section (b) shall not apply if the Incumbent
Board is replaced by the appointment by a Federal banking agency of a
conservator or receiver for the Bank and, provided further that any
person becoming a director subsequent to the date hereof whose election
was approved by a vote of at least two-thirds of the directors
comprising the Incumbent Board or whose nomination for election by the
Company's stockholders was approved by the same Nominating Committee
serving under an Incumbent Board, shall be, for purposes of this clause
(b), considered as though he were a member of the Incumbent Board; or
(c) a plan of reorganization, merger, consolidation, sale of all or
substantially all the assets of the Bank or the Company; or (d) a proxy
statement soliciting proxies from stockholders of the Company, by
someone other than the current management of the Company, seeking
stockholder approval of a plan of reorganization, merger or
consolidation of the Company or Bank or similar transaction with one or
more corporations as a result of which the outstanding shares of the
class of securities then subject to such plan or transaction are
exchanged for or converted into cash or property or securities not
issued by the Bank or the Company shall be distributed and the requisite
number of proxies approving such plan of reorganization, merger or
consolidation of the Company or Bank are received and voted in favor of
such transactions; or (e) a tender offer is made for 25% or more of the
outstanding securities of the Bank or Company and shareholders owning
beneficially or of record 25% or more of the outstanding securities of
the Bank or Company have tendered or offered to sell their shares
pursuant to such tender offer and such tendered shares have been
accepted by the tender offeror.
(b) If any of the events described in Section 5(a) hereof
constituting a Change in Control have occurred, Executive shall be
entitled to the benefits provided in paragraphs (c), (d), (e), (f), (g)
and (h) of this Section 5 upon his subsequent termination of employment
at any time during the term of this Agreement (regardless of whether
such termination results from (i) his resignation, provided such
resignation occurs within one year of a change of control, or (ii) his
dismissal), unless such termination is because of his death, normal
retirement, termination for Cause or termination for Disability. Upon
the Change in Control, Executive shall have the right to elect to
terminate his employment with the Bank for a period of one year
following a change of control, for any reason, during the term of this
Agreement.
(c) Upon the occurrence of a Change in Control followed by the
Executive's termination of employment, the Bank shall pay Executive, or
in the event of his subsequent death, his beneficiary or beneficiaries,
or his estate, as the case may be, as severance pay or liquidated
damages, or both, a sum equal to the greater of the payments due for the
remaining term of the Agreement or two (2) times the average of the five
preceding years' Base Salary, including bonuses and any other taxable
compensation paid or attributable to the Executive during such years.
At the election of the Executive, which election is to be made on an
annual basis during the month of January, and which election is
irrevocable for the year in which made and upon the occurrence of an
Event of Termination, such payment may be made in a lump sum or paid in
equal monthly installments during the twenty-four (24) months following
the Executive's termination. In the event that no election is made,
payment to the Executive will be made on a monthly basis during the
remaining term of the Agreement.
(d) Upon the occurrence of a Change in Control followed by the
Executive's termination of employment, the Bank, in its sole discretion,
shall either (i) contribute the same amount as the Bank contributed
prior to such termination of employment towards the purchase for
Executive of, or (ii) cause to be continued for Executive under the
Bank's existing employee benefit plans, life, medical, dental and
disability coverage substantially identical to the coverage maintained
by the Bank for Executive prior to his termination (provided nothing
herein shall be deemed to require the Bank to contribute more towards
such coverage than it contributed prior to such termination of
employment). Such coverage and payments shall cease upon the expiration
of twenty-four (24) months.
(e) Upon the occurrence of a Change in Control, Executive will be
entitled to any benefits granted to him pursuant to any Stock Option
Plan of the Bank or Company.
(f) Upon the occurrence of a Change in Control the Executive will
be entitled to any benefits awarded to him under the Bank's Recognition
and Retention Plan arising from a Change in Control.
(g) Notwithstanding the preceding paragraphs of this Section 5, in
the event that:
(i) the aggregate payments or benefits to be made or afforded
to Executive under said paragraphs (the "Termination
Benefits") would be deemed to include an "excess
parachute payment" under Section 280G of the Code or any
successor thereto, and
(ii) if such Termination Benefits were reduced to an amount
(the "Non-Triggering Amount"), the value of which is one
dollar ($1.00) less than an amount equal to the total
amount of payments permissible under Section 280G of the
Code or any successor thereto.
then the Termination Benefits to be paid to Executive shall be
so reduced so as to be a Non-Triggering Amount.
(h) Notwithstanding the foregoing, there will be no reduction in
the compensation otherwise payable to Executive during any period during
which Executive is incapable of performing his duties hereunder by
reason of temporary disability; provided, however, that any amounts
actually paid to Executive pursuant to any disability insurance or other
such similar program which the Bank has provided or may provide on
behalf of its employees or pursuant to any worker's compensation or
social security disability program shall reduce the compensation to be
paid to the Executive pursuant to this paragraph.
(i) Notwithstanding the foregoing, if after the application of
subparagraph (g) above, it is determined that the Executive received an
excess parachute payment despite the reduction in the Executive's
Termination Benefits, the excess of such Termination Benefits paid to
the Executive over 2.99 times the Executive's "base amount", as defined
in Section 280G of the Code, shall be treated as a loan to the Executive
and the Executive shall be required to repay such amount to the Bank or
the Company, or the successor of the Bank or the Company, within ten
years of the date of such determination, with interest at the prime
rate, as set forth from time to time in The Wall Street Journal.
(j) The Executive shall not be entitled to any payments pursuant
to this Section 5 if the Bank is not in compliance with its minimum
capital requirements or if such payments would cause the Bank's capital
to be reduced below its minimum capital requirements, such payments
shall be deferred until such times as the Bank is in capital compliance,
provided, however, that the severance compensation paid by the Bank
shall in no event exceed the amount permitted by OTS RB27a.
6. TERMINATION UPON RETIREMENT, DISABILITY OR DEATH
Termination by the Bank of the Executive based on "Retirement"
shall mean termination in accordance with the Bank's retirement policy
or in accordance with any retirement arrangement established with
Executive's consent with respect to him. Upon termination of Executive
upon Retirement, Executive shall be entitled to all benefits under any
retirement plan of the Bank and other plans to which Executive is a
party.
Termination by the Bank of Executive's employment based on
"Disability" shall mean termination because of any physical or mental
impairment which qualifies Executive for disability benefits under the
applicable long-term disability plan maintained by the Bank, or if no
such plan applies, which would qualify Executive for disability benefits
under the federal social security system. In the event Executive is
unable to perform his duties under this Agreement on a full-time basis
for a period of six (6) consecutive months by reason of Disability, the
Bank may terminate this Agreement, provided that the Bank shall continue
to be obligated to pay the Executive his Base Salary, including bonuses
and any other cash compensation paid to Executive during such period,
for the remaining term of the Agreement, or one year, whichever is the
longer period of time, and provided further that any amounts actually
paid to Executive pursuant to any disability insurance or other such
similar program which the Bank has provided or may provide on behalf of
its employees or pursuant to any worker's compensation or social
security disability program shall reduce the compensation to be paid to
the Executive pursuant to this paragraph.
In the event of Executive's death during the term of the Agreement,
his estate, legal representatives or named beneficiaries (as directed by
Executive in writing) shall be paid Executive's Base Salary as defined
in Paragraph 3(a) at the rate in effect at the time Executive's death
for a period of one (1) year from the date of the Executive's death.
7. TERMINATION FOR CAUSE
The term "Termination for Cause" shall mean termination because of
the Executive's personal dishonesty, incompetence, willful misconduct,
any 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, regulations that do not
adversely affect the Bank, the Company, or their employees, or similar
offenses) or final cease-and-desist order, or material breach of any
provision of this Agreement. In determining incompetence, the acts or
omissions shall be measured against standards generally prevailing in
the savings institutions industry. For purposes of this paragraph, no
act or failure to act on the part of Executive shall be considered
"willful" unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that the Executive's action or
omission was in the best interest of the Bank. Notwithstanding the
foregoing, Executive shall not be deemed to have been Terminated for
Cause unless and until there shall have been delivered to him a copy of
a resolution duly adopted by the affirmative vote of not less than
three-fourths of the members of the Board at a meeting of the Board
called and held for that purpose (after reasonable notice, in writing,
to Executive and an opportunity for him, together with counsel, to be
heard before the Board), finding that in the good faith opinion of the
Board, Executive was guilty of conduct justifying Termination for Cause
and specifying the particulars thereof in detail. The Executive shall
not have the right to receive compensation or other benefits for any
period after Termination for Cause. Any stock options granted to
Executive under any stock option plan of the Bank, the Company or any
subsidiary or affiliate thereof, shall not be exercisable from the date
of the written notice to Executive set forth above, unless and until the
matter is successfully resolved in the Executive's favor, and such stock
options shall become entirely null and void effective upon a
determination in arbitration that termination was for cause.
8. NOTICE
(a) Any purported termination by the Bank or by Executive shall be
communicated by Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a
written notice which shall indicate the specific termination provision
in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination
of Executive's employment under the provision so indicated.
(b) "Date of Termination" shall mean (A) if Executive's employment
is terminated for Disability, thirty (30) days after a Notice of
Termination is given (provided that he shall not have returned to the
performance of his duties on a full-time basis during such thirty (30)
day period), and (B) if his employment is terminated for any other
reason, the date specified in the Notice of Termination (which, in the
case of a Termination for Cause, shall not be less than thirty (30) days
from the date such Notice of Termination is given).
(c) If, within thirty (30) days after any Notice of Termination
for Cause is given, the Executive notifies the Bank that a dispute
exists concerning the termination, the Date of Termination shall be the
date on which the dispute is finally determined, either by mutual
written agreement of the parties or by a binding arbitration award, and
provided further that the Date of Termination shall be extended by a
notice of dispute only if such notice is given in good faith and the
party giving such notice pursues the resolution of such dispute with
reasonable diligence. No compensation or benefits shall be paid to
Executive during the pendency of any such dispute. In the event that it
is determined by arbitration that "cause" for termination did not exist
or such dispute is otherwise decided in Executive's favor, the Executive
shall be entitled to receive all compensation and benefits which should
have been paid under either Section 4 or 5, with interest at the prime
rate on such cash payments that should have been made during such
period.
9. POST-TERMINATION OBLIGATIONS
(a) All payments and benefits to Executive under this Agreement
shall be subject to Executive's compliance with paragraph (b) of this
Section 9 during the term of this Agreement and for one (1) full year
after the expiration or termination hereof.
(b) Executive shall, upon reasonable notice, furnish such
information and assistance to the Bank as may reasonably be required by
the Bank in connection with any litigation in which it or any of its
subsidiaries or affiliates is, or may become, a party.
10. NON-COMPETITION
(a) Upon any termination of Executive's employment hereunder as a
result of which the Bank is paying Executive benefits under Section 4,
Executive agrees not to compete with the Bank and/or the Company for a
period of one (1) year following such termination in any city, town or
county in which the Bank and/or the Company has an office or has filed
an application for regulatory approval to establish an office,
determined as of the effective date of such termination, except as
agreed to pursuant to a resolution duly adopted by the Board. Executive
agrees that during such period and within said cities, towns and
counties, Executive shall not work for or advise, consult or otherwise
serve with, directly or indirectly, any entity whose business materially
competes with the depository, lending or other business activities of
the Bank and/or the Company. The parties hereto, recognizing that
irreparable injury will result to the Bank and/or the Company, its
business and property in the event of Executive's breach of this Section
10(a) agree that in the event of any such breach by Executive, the Bank
and/or the Company will be entitled, in addition to any other remedies
and damages available, to an injunction to restrain the violation hereof
by Executive, Executive's partners, agents, servants, employers,
employees and all persons acting for or with Executive. Executive
represents and admits that Executive's experience and capabilities are
such that Executive can obtain employment in a business engaged in other
lines and/or of a different nature than the Bank and/or the Company, and
that the enforcement of a remedy by way of injunction will not prevent
Executive from earning a livelihood. Nothing herein will be construed
as prohibiting the Bank and/or the Company from pursuing any other
remedies available to the Bank and/or the Company for such breach or
threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of
the business activities and plans for business activities of the Bank
and affiliates thereof, as it may exist from time to time, is a
valuable, special and unique asset of the business of the Bank.
Executive will not, during or after the term of his employment, disclose
any knowledge of the past, present, planned or considered business
activities of the Bank or affiliates thereof to any person, firm,
corporation, or other entity for any reason or purpose whatsoever
(except for such disclosure as may be required to be provided to the
Securities Exchange Commission ("SEC"), the OTS, the Federal Deposit
Insurance Corporation ("FDIC"), or other federal or state banking agency
with jurisdiction over the Bank, the Company or Executive).
Notwithstanding the foregoing, Executive may disclose any knowledge of
banking, financial and/or economic principles, concepts or ideas which
are not solely and exclusively derived from the business plans and
activities of the Bank, and Executive may disclose any information
regarding the Bank or the Company which is otherwise publicly available.
In the event of a breach or threatened breach by Executive of this
Section 10, the Bank will be entitled to an injunction restraining
Executive from disclosing, in whole or in part, the knowledge of the
past, present, planned or considered business activities of the Bank or
affiliates thereof, or from rendering any services to any person, firm,
corporation, other entity to whom such knowledge, in whole or in part,
has been disclosed or is threatened to be disclosed. Nothing herein
will be construed as prohibiting the Bank from pursuing any other
remedies available to the Bank for such breach or threatened breach,
including the recovery of damages from Executive.
11. SOURCE OF PAYMENTS
All payments provided in this Agreement shall be timely paid in
cash or check from the general funds of the Bank. The Company, however,
guarantees payment and provision of all amounts and benefits due
hereunder to Executive and, if such amounts and benefits due from the
Bank are not timely paid or provided by the Bank, such amounts and
benefits shall be paid or provided by the Company.
12. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS
This Agreement contains the entire understanding between the
parties hereto and supersedes any prior employment agreement between the
Bank or any predecessor of the Bank and Executive, except that this
Agreement shall not affect or operate to reduce any benefit or
compensation inuring to the Executive of a kind elsewhere provided. No
provision of this Agreement shall be interpreted to mean that Executive
is subject to receiving fewer benefits than those available to him
without reference to this Agreement.
13. NO ATTACHMENT
(a) Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to execution, attachment, levy, or similar process or
assignment by operation of law, and any attempt, voluntary or
involuntary, to affect any such action shall be null, void, and of no
effect.
(b) This Agreement shall be binding upon, and inure to the benefit
of, Executive and the Bank and their respective successors and assigns.
14. MODIFICATION AND WAIVER
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be any estoppel against the enforcement of
any provision of this Agreement, except by written instrument of the
party charged with such waiver or estoppel. No such written waiver
shall be deemed a continuing waiver unless specifically stated therein,
and each such waiver shall operate only as to the specific term or
condition waived and shall not constitute a waiver of such term or
condition for the future as to any act other than that specifically
waived.
15. REQUIRED PROVISIONS
(a) The Bank's Board of Directors may terminate the Executive's
employment at any time, but any termination by the Bank's Board of
Directors, other than Termination for Cause, shall not prejudice
Executive's right to compensation or other benefits under this
Agreement. Executive shall not have the right to receive compensation
or other benefits for any period after Termination for Cause as defined
in Section 7 herein above.
(b) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank's affairs by a
notice served under Section 8(e)(3) (12 U.S.C. Section 1818(e)(3)) or 8(g)
(12 U.S.C. Section 1818(g)) of the Federal Deposit Insurance Act, as amended
by the Financial Institutions Reform, Recovery and Enforcement Act of
1989, the Bank's obligations under this contract 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 the Executive all or part of the compensation withheld while
their contract obligations were suspended and (ii) reinstate (in whole
or in part) any of the obligations which were suspended.
(c) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e) (12 U.S.C. Section 1818(e)) or 8(g) (12 U.S.C. Section
1818(g)) of the Federal Deposit Insurance Act, as amended by the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, all
obligations of the Bank under this contract shall terminate as of the
effective date of the order, but vested rights of the contracting
parties shall not be affected.
(d) If the Bank is in default as defined in Section 3(x) (12
U.S.C. Section 1813(x)(1)) of the Federal Deposit Insurance Act, as
amended by the Financial Institutions Reform, Recovery and Enforcement
Act of 1989, all obligations of the Bank under this contract shall
terminate as of the date of default, but this paragraph shall not affect
any vested rights of the contracting parties.
(e) All obligations of the Bank under this contract shall be
terminated, except to the extent determined that continuation of the
contract is necessary for the continued operation of the institution,
(i) by the Director of the OTS, or his or her designee, at the time the
FDIC or the Resolution Trust Corporation ("RTC") enters into an
agreement to provide assistance to or on behalf of the Bank under the
authority contained in Section 13(c) (12 U.S.C. Section 1823(c)) of the
Federal Deposit Insurance Act, as amended by the Financial Institutions
Reform, Recovery and Enforcement Act of 1982; or (ii) by the Director of
the OTS or his or her designee, at the time the Director or his or her
designee approves a supervisory merger to resolve problems related to the
operations of the Bank or when the Bank is determined by the OTS to be
in an unsafe or unsound condition. Any rights of the parties that have
already vested, however, shall not be affected by such action.
(f) Any payments made to Executive 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.
16. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part of
any provision, is held invalid, such invalidity shall not affect any
other provision of this Agreement or any part of such provision not held
so invalid, and each such other provision and part thereof shall to the
full extent consistent with law continue in full force and effect. In
the event of any conflict or discrepancies between any provision of the
Agreement and existing federal or state laws and/or regulations, such
laws and regulations shall prevail, and the Agreement shall be construed
to be consistent therewith.
17. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely
for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
18. GOVERNING LAW
This Agreement shall be governed by the laws of the State of
Maryland but only to the extent not superseded by federal law.
19. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before
a panel of three arbitrators sitting in a location selected by the Bank
within twenty-five (25) miles from the location of the Bank, in
accordance with the rules of the American Arbitration Association then
in effect. Judgment may be entered on the arbitrator's award in any
court having jurisdiction; provided, however, that Executive shall be
entitled to seek specific performance of his right to be paid until the
Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
20. PAYMENT OF LEGAL FEES
All reasonable legal fees paid or incurred by Executive pursuant to
any dispute or question of interpretation relating to this Agreement
shall be paid or reimbursed by the Bank and/or the Company, provided
that the dispute or interpretation has been settled by Executive and the
Bank and/or the Company or resolved in the Executive's favor.
21. INDEMNIFICATION
The Bank shall provide Executive (including his heirs, executors
and administrators) with coverage under a standard directors' and
officers' liability insurance policy at its expense, and shall
indemnify Executive (and his heirs, executors and administrators) to the
fullest extent permitted under federal law against all expenses and
liabilities reasonably incurred by him in connection with or arising out
of any action, suit or proceeding in which he may be involved by reason
of his having been a director or officer of the Bank (whether or not he
continues to be a director or officer at the time of incurring such
expenses or liabilities), such expenses and liabilities to include, but
not be limited to, judgments, court costs and attorneys' fees and the
cost of reasonable settlements (such settlements must be approved by the
Board of Directors of the Bank). If such action, suit or proceeding is
brought against Executive in his capacity as an officer or director of
the Bank, however, such indemnification shall not extend to matters as
to which Executive is finally adjudged to be liable for willful
misconduct in the performance of his duties. No Indemnification shall
be paid that would violate 12 U.S.C. Section 1828(K) or any regulations
promulgated thereunder, or 12 C.F.R. Section 545.121.
22. SUCCESSOR TO THE BANK
The Bank shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank or the Company,
expressly and unconditionally to assume and agree to perform the Bank's
obligations under this Agreement, in the same manner and to the same
extent that the Bank would be required to perform if no such succession
or assignment had taken place.
[Remainder of Page Intentionally Left Blank]
SIGNATURES
IN WITNESS WHEREOF, the Bank and the Company have caused this
Agreement to be executed by their duly authorized officers, and
Executive has signed this Agreement, on the day and date first above
written.
ATTEST: AMERICAN NATIONAL SAVINGS BANK, F.S.B.
/s/ Xxxx Xxxxxxxx By: /s/ A. Xxxxx Xxxxxx
Secretary A. Xxxxx Xxxxxx, President
ATTEST: AMERICAN NATIONAL BANCORP, INC.
/s/ Xxxx Xxxxxxxx By: /s/ A. Xxxxx Xxxxxx
Secretary A. Xxxxx Xxxxxx, President
WITNESS: EXECUTIVE:
/s/ Xxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
