EMPLOYMENT AGREEMENT
Exhibit 10.1
This Employment Agreement (this “Agreement”) is made and entered into as of January 26,
2007, by MetroCorp Bancshares, Inc. a Texas corporation (the “Employer”), and Xxxxxx X. Xxx,
an individual resident in Houston, Xxxxxx County, Texas (the “Executive”).
RECITALS
The Employer desires the Executive’s employment with the Employer, and the Executive
wishes to accept such employment, upon the terms and conditions set forth in this Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the meanings specified or
referred to in this section 1.
“Agreement” —— this Employment Agreement.
“Basic Compensation” — Salary and Benefits.
“Benefits” — as defined in Section 3.1(b).
“Board of Directors” — the Board of Directors of the Employer.
“Change in Control” — as defined in Section 6.4.
“Confidential Information” — any and all:
(a) trade secrets concerning the business and affairs of the Employer and its
subsidiaries, financial records, management systems, policies or procedures, including the
content of related forms and manuals, salary, bonuses and other personnel information, and
any other information, however documented, that is a trade secret within the meaning of law
of the State of Texas; and
(b) information concerning the business and affairs of the Employer and its
subsidiaries (which include historical financial statements, financial projections and
budgets,
historical and projected income, capital spending budgets and plans, the names and
backgrounds of key personnel, personnel training and techniques and materials however
documented); and
(c) notes, analysis, compilations, studies, summaries, and other material prepared
by or for the Employer or its subsidiaries containing or based, in whole or in part, on any
information included in the foregoing.
“Disability” — as defined in Section 6.2.
“Effective Date” — shall be January 26, 2007.
“Employment Period” — the term of the Executive’s employment under this Agreement.
“Fiscal Year” — the Employer’s fiscal year, as it exists on the Effective Date or
as changed from time to time.
“For Cause” — as defined in Section 6.3.
“Incentive Compensation” — as defined in Section 3.2.
“Person” — any individual, corporation (including any non-profit corporation),
general or limited partnership, limited liability company, join venture, estate, trust,
association, organization, or governmental body.
“Proprietary Items” — as defined in Section 7.2(d).
“Salary” — as defined in Section 3.1(a).
2. EMPLOYMENT TERMS AND DUTIES
2.1 EMPLOYMENT
The Employer hereby employs the Executive, and the Executive hereby accepts employment by
the Employer, upon the terms and conditions set forth in this Agreement.
2.2 TERM
Subject to the provisions of Section 6, the term of the Executive’s employment under this
Agreement will be five (5) years, beginning on the Effective Date and ending on the fifth
anniversary of the Effective Date.
2.3 DUTIES
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The Executive will serve as Chief Executive Officer of MetroBank, N.A., a national banking
association and wholly owned subsidiary of Employer (“MetroBank”) as well as President and
Chief Executive Officer of Employer and as Chairman of Metro United Bank, a California
banking corporation and wholly owned subsidiary of Employer (“Metro United”). The Executive
will devote his entire business time, attention, skill, and energy exclusively to the
business of the Employer, will use his best efforts consistent with the industry standards
to promote the success of the Employer’s business, and will cooperate fully with the Board
of Directors in the advancement of the best interests of the Employer. If the Executive is
elected as a director or officer of any of its affiliates, the Executive will fulfill his
duties as such director or officer without additional compensation.
3. COMPENSATION
3.1 BASIC COMPENSATION
(a) Salary. The Executive will be paid an annual salary of $285,000.00, subject to
adjustment as provided below (the “Salary”), which will be payable in equal periodic
installments according to the Employer’s customary payroll practices, but no less frequently
than monthly. The Salary will be reviewed by the Board of Directors not less frequently
than annually, and may be adjusted upward in the sole discretion of the Board of Directors,
but in no event will the Salary be less than $285,000.00 per year. A performance review is
to be conducted by the compensation committee no later than July of each year.
(b) Benefits, the Executive will, during the Employment Period, be permitted to
participate in such pension, profit sharing, bonus, life insurance, hospitalization, major
medical and other employee benefit plans of the Employer that may be in effect from time to
time, to the extent the Executive is eligible under the terms of those plans (collectively,
the “Benefits”).
3.2 INCENTIVE COMPENSATION
The Executive will be provided with a formal Incentive Compensation Plan (“Incentive
Compensation”) that allows Executive to earn up to 100% of Base Salary as Incentive
Compensation based on certain predetermined performance measures set forth in such plan.
Performance at expected or budgeted performance consistent with opportunities in the market
place will result in Incentive Compensation of 50% of Base Salary, while maximum Incentive
Compensation will be earned for superior performance results. The performance criteria may
include, but not be limited to, EPS Growth, Asset Growth, Operating Efficiency, Return on
Equity, Loan Concentration, Asset Durability and Overall Performance Evaluation by the Board
of Directors.
3.3 STOCK OPTIONS
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The Compensation Committee of the Board of Directors, pursuant to the Employer’s 1998 Stock
Incentive Plan or any other equity incentive plan adopted by Employer’s shareholders, shall
grant to Executive 15,000 to 30,000 stock options annually based on performance of Executive
and Employer, as determined by the Compensation Committee and the Board of Directors, with
such grant to be evidenced by a stock option agreement between Executive and Employer. In
all events, Executive shall receive not less than 15,000 stock options per year during the
term hereof. Performance at expected or budgeted performance consistent with opportunities
in the market place will result in the award of 30,000 stock options annually. The
performance criteria may include, but not be limited to EPS growth, asset growth, operating
efficiency, return on equity, loan concentration, asset durability and overall performance
evaluation by the Board of Directors. In the event of any conflict between the terms of the
Agreement and any other oral or written representation regarding stock options, on the one
hand, and the terms of the applicable stock option agreement or the stock option plan on the
other hand, the terms of the latter two documents shall govern. Moreover, at termination of
Executive’s employment, Employer has the option, but not the obligation, to repurchase any
vested and unexercised options granted pursuant to the stock options granted pursuant to
this Agreement.
4. FACILITIES AND EXPENSES
4.1 GENERAL
The Employer will furnish the Executive office space, equipment, supplies, and such other
facilities and personnel, as the Employer deems necessary or appropriate for the performance
of the Executive’s duties under this Agreement. The Employer will pay the Executive’s dues
in such professional societies and organizations, and will pay on behalf of the Executive
(or reimburse the Executive for) reasonable expenses incurred by the Executive at the
request of, or on behalf of, the Employer in the performance of the Executive’s duties
pursuant to this Agreement, and in accordance with the Employer’s employment policies,
including reasonable expenses incurred by the Executive in attending conventions, seminars,
and other business meetings, in appropriate business entertainment activities, and for
promotional expenses. The Executive must file expense reports with respect to such expenses
in accordance with the Employer’s policies. Provided that the Executive submits timely
expense reports, Employer shall pay or reimburse such expenses no later than March 15 of the
calendar year immediately following the calendar year in which the expenses are incurred.
4.2 AUTOMOBILE
The Employer will pay the Executive a $500.00 per month automobile allowance (to be paid
bi-weekly in accordance with Employer’s normal payroll practices) during the term of the
Executive’s employment. The Executive will own his own automobile, and maintain and insure
it at his own expense, for his business use in connection with his employment under this
Agreement. The Executive will at his own expense maintain liability insurance on any
automobile used in connection with the Employer’s business. Executive will furnish proof of
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insurance to the Employer as requested by the Employer. Applicable federal income tax
withholding on such automobile allowance will be deducted.
5. VACATIONS AND HOLIDAYS
The Executive will be entitled to four (4) weeks paid vacation each Fiscal Year in
accordance with the vacation policies of the Employer in effect for its executive officers
from time to time. The Executive will also be entitled to the paid holidays set forth in
the Employer’s policies. Vacation days and holidays during any Fiscal Year that are not
used by the Executive during such Fiscal Year may be carry forward in accordance with
company’s policy. In addition to the four weeks paid yearly vacations, the Executive will
be granted a one month paid sabbatical every three years of continuous employment with the
first sabbatical period taking place during the calendar year of 2008 and continuing each
third year thereafter.
6. TERMINATION
6.1 EVENTS OF TERMINATION
The Employment Period, the Executive’s Basic Compensation, and any and all other
rights of the Executive under this agreement or otherwise as an employee of the
Employer will terminate (except as otherwise provided in this Section 6):
| (a) | upon the death of the Executive; | |
| (b) | upon the disability of the Executive (as defined in Section 6.2) immediately upon notice from either party to the other; | |
| (c) | for cause (as defined in Section 6.3), immediately upon notice from the Employer to the Executive, or at such later time as such notice may specify; | |
| (d) | upon the voluntary resignation by the Executive; or | |
| (e) | on Change of Control (as defined in Section 6.4). |
6.2 DEFINITION OF DISABILITY
For purpose of Section 6.1, the Executive will be deemed to have a “disability” if,
for physical or mental reasons, the Executive is unable to perform the essential functions of
the Executive’s duties under this Agreement for 120 consecutive days, or 180 days during
any twelve month period, as determined in accordance with this Section 6.2. A medical
doctor selected by written agreement of the Employer and the Executive upon the request of
either party by notice to the other will determine the disability of the Executive. If the
Employer
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and the Executive cannot agree on the selection of a medical doctor, each of them will
select a medical doctor and the two medical doctors will select a third medical doctor who
will determine whether the Executive has a disability. The determination of the medical
doctor selected under this Section 6.2 will be binding on both parties. The Executive must
submit to a reasonable number of examinations by the medical doctor making the determination
of disability under this Section 6.2, and the Executive hereby authorizes the disclosure and
release to the Employer under proper confidentiality safeguard of such determination and all
supporting medical records. If the Executive is not legally competent, the Executive’s
legal guardian or duly authorized attorney-in-fact will act in the Executive’s stead, under
this Section 6.2, for the purposes of submitting the Executive to the examinations, and
providing the authorization of disclosure, required under this Section 6.2.
6.3 DEFINITION OF “FOR CAUSE”
For purposes of Section 6.1, the phrase “for cause” means: (a) the Executive’s material
breach of this Agreement or failure to materially carry out the duties described in Section
2.3 and the Executive’s failure to cure such breach within a thirty days period after
receipt of notification of such breach given by the board of directors; (b) the Executive’s
failure to adhere to any written policy of Employer, MetroBank or Metro United if the
Executive has been given a reasonable opportunity to comply with such policy or cure his
failure to comply (which reasonable opportunity must be granted during the ten-day period
preceding termination of this Agreement); (c) the appropriation (or attempted appropriation)
of a material business opportunity of the Employer, MetroBank or Metro United, including
attempting to secure or securing any personal profit in connection with any transaction
entered into on behalf of the Employer, MetroBank or Metro United; (d) the Executive’s
acting in a grossly negligent manner, or has engaged in reckless or willful misconduct with
respect to Employer, MetroBank or Metro United which results or could have resulted in
material harm to the standing of Employer, MetroBank or Metro United among customers,
suppliers, employees and other business relationships; (e) the misappropriation (or
attempted misappropriation) of any of the funds or property of Employer, MetroBank or Metro
United; or (f) the conviction of, the indictment for (or its procedural equivalent), or the
entering of a guilty plea or plea of no contest with respect to a felony or the equivalent
thereof.
6.4 DEFINITION OF “CHANGE OF CONTROL”
For purposes of Section 6.1, the phrase “Change of Control” means the following: (a) the
occurrence of a transaction whereby the MetroBank or the Employer shall not be the surviving
entity in any merger or consolidation (or survives only as a subsidiary of an entity other
than a previously wholly-owned subsidiary of Employer); (b) the MetroBank or the Employer
sells, leases or exchanges or agrees to sell, lease or exchange all or substantially all of
its assets to any other persons or entities (other than to a wholly-owned subsidiary of
Employer); or (c) the total sale or dissolution of the Employer or MetroBank.
6.5 TERMINATION PAY
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Effective upon the termination of this Agreement for the reasons set forth in this
Agreement, the Employer will be obligated to pay the Executive (or, in the event of his
death, his designated beneficiary as defined below) only such compensation as is provided in
this Section 6.5, and in lieu of all other amounts and in settlement and complete release of
all claims the Executive may have against the Employer for termination pursuant to Section 6
hereof. For purposes of this Section 6.5, the Executive’s designated beneficiary will be
such individual beneficiary or trust, located at such address, as the Executive may
designate by notice to the Employer from time to time or, if the Executive fails to give
notice to the Employer of such a beneficiary, the Executive’s estate. Notwithstanding the
preceding sentence, the Employer will have no duty, in any circumstances, to attempt to open
an estate on behalf of the Executive, to determine whether any beneficiary designated by the
Executive is alive or to ascertain the address of any such beneficiary, to determine the
existence of any trust, to determine whether any person or entity purporting to act as the
Executive’s personal representative (or the trustee of a trust established by the Executive)
is duly authorized to act in the capacity, or to locate or attempt to locate any
beneficiary, personal representative or trustee.
(a) Termination by Change of Control. Upon the happening of a “Change Of Control,”
after the date of signing this Agreement, the Employer will pay the Executive (i) the
Executive’s Salary for the remainder, if any, of the calendar month in which the Change of
Control occurs, plus an additional payment in one lump sum equal to three years Salary, and
(ii) an amount equal to the Executive’s Incentive Compensation for the previous Fiscal Year
times three (3), payable in one lump sum. The payments described in the preceding sentence
shall be made no later than March 15 of the calendar year immediately following the calendar
year in which the Change of Control occurs. In addition, if the Executive’s employment is
terminated within twelve (12) months of a Change of Control, the Employer shall pay the
premiums for the Executive’s continued participation in the life insurance plan of the
Employer in which the Executive was entitled to participate prior to the date of termination
for a period of two (2) years after such termination of employment, and the Employer shall
pay the premiums for the Executive’s continued participation in the medical insurance plan
of the Employer in which the Executive was entitled to participate prior to the date of
termination until the earlier of (i) the expiration of two (2) years after such termination
of employment, or (ii) the expiration of the Employer’s obligation to offer continued
coverage under such plan under applicable law. The Employer’s payment of such premiums
shall be taxable income to the Executive;
(b) Termination by the Employer for Cause or Voluntary Resignation by Executive. If
the Employer terminates this Agreement for cause or the Executive voluntarily resigns, the
Executive will be entitled to receive his Salary only through the date such termination is
effective, and will not be entitled to any Incentive Compensation for the Fiscal Year during
which such termination occurs or any subsequent Fiscal Year.
(c) Termination upon Disability. If this Agreement is terminated by either party as
a result of the Executive’s disability, as determined under Section 6.2, the Employer will
pay the Executive his Salary through the remainder of the calendar month during which such
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termination is effective and for the lesser of (i) three (3) consecutive months thereafter,
or (ii) the period until disability insurance benefits commence under the disability
insurance coverage furnished by the Employer to the Executive. Notwithstanding the
foregoing, the payments under this paragraph shall be accelerated as necessary so that all
such payments are completed no later than March 15 of the calendar year immediately
following the calendar year in which Executive’s employment terminates.
(d) Termination upon Death. If this Agreement is terminated because of the
Executive’s death, the Executive’s estate will be entitled to receive his Salary through the
end of the calendar month in which his death occurs, and that part of the Executive’s
Incentive Compensation, if any, for the Fiscal Year during which his death occurs, prorated
through the end of the calendar month during which his death occurs. All payments under
this paragraph shall be made no later than March 15 of the calendar year immediately
following the calendar year in which Executive’s death occurs.
(e) Benefits. The Executive’s accrual of, or participation in plans providing for,
the Benefits will cease at the effective date of the termination of this Agreement and the
Executive will be entitled to accrued Benefits pursuant to such plans only as provided in
such plans. The Executive will not receive, as part of his termination pay pursuant to this
Section 6, any payment or other compensation for any vacation, holiday, sick leave, or other
leave unused on the date the notice of termination is given under this Agreement.
(f) Code Section 409A. Notwithstanding any provision of this Agreement to the
contrary, if at the time of the Executive’s termination of employment with the Employer, he
is a “specified employee” as defined in Section 409A of the Internal Revenue Code of 1986,
as amended (the “Code”), no payment or benefit will be provided under this Section 6 until
the earliest of (A) the date which is 6 months after the date of the Executive’s termination
of employment, or (B) the date of the Executive’s death. If the preceding sentence is
applicable, all payments to which the Executive is entitled will be delayed by six (6)
months. The first sentence of this paragraph shall apply only to the extent required to
avoid the Executive’s incurrence of any additional tax or interest under Section 409A of the
Code or any regulations or Treasury guidance promulgated thereunder. In addition, if any
provision of this Agreement (or of any award of compensation) would cause the Executive to
incur any additional tax or interest under Section 409A of the Code or any regulations or
Treasury guidance promulgated thereunder, the Employer shall reform such provision; provided
that the Employer shall (i) maintain, to the maximum extent practicable, the original intent
of the applicable provision without violating the provisions of Section 409A of the Code and
(ii) notify and consult with the Executive regarding such amendments or modifications prior
to the effective date of any such change.
7. NON-DISCLOSURE COVENANT
7.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
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The Executive acknowledges that (a) during the Employment Period and as a part of his
employment the Executive will be afforded access to Confidential Information; (b) public
disclosure of such confidential Information could have an adverse effect on the Employer and
its business; and (c) the provisions of this Section 7 are reasonable and necessary to
prevent the improper use or disclosure of confidential Information.
7.2 AGREEMENT OF THE EXECUTIVE
In consideration of the compensation and benefits to be paid or provided to the Executive by
the Employer under this Agreement the Executive covenants as follows:
Confidentiality
(a) During and following the Employment Period, the Executive will hold in confidence the
Confidential Information and will not disclose it to any person except with the specific
prior written consent of the Employer or except as otherwise expressly permitted by the
terms of this Agreement.
(b) Any trade secret of the Employer will be entitled to all of the protections and benefits
under the trade secret laws of the State of Texas and any other applicable law. If any
information that the Employer deems to be a trade secret is found by a court of competent
jurisdiction not to be a trade secret for purposes of this Agreement, such information will,
nevertheless, be considered Confidential Information for purposes of this Agreement. The
Executive hereby waives any requirement that the Employer submits proof of the economic
value of any trade secret or posts a bond or other security.
(c) None of the foregoing obligations and restrictions applies to any part of the
Confidential Information that the Executive demonstrates was or became generally available
to the public other than as a result of a disclosure by the Executive, any Confidential
Information known to Executive prior to his employment hereunder or any Confidential
Information required to be disclosed by legal process.
(d) The Executive will not remove from the Employer’s premises (except to the extent such removal is for purposes of the performance of the Executive’s duties at home or
while traveling, or except as otherwise specifically authorized by the Employer) any
document, record, notebook plan, model, component, device, or computer software or code, whether
embodied in a disk or in any other form (collectively, the “proprietary Items”).
The Executive recognizes that, as between the Employer and the Executive, all of the Proprietary Items, whether or not developed by the Executive, are the exclusive property
of the Employer. Upon termination of this Agreement by either party, or upon the request
of the Employer during the Employment Period, the Executive will return to the Employer all of
the Proprietary Items in the Executive’s possession or subject to the Executive’s control,
and the Executive shall not retain any copies, abstracts, sketches, or other physical
embodiment of any of the Proprietary Items.
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7.3 DISPUTES OR CONTROVERSIES
The Executive recognizes that should a dispute or controversy arising from or relating to
this Agreement be submitted for adjudication to any court, arbitration panel, or other third
party, the preservation of the secrecy of Confidential Information maybe jeopardized. All
pleading, documents, testimony, and records relating to any such adjudication during the
pendency of such proceeding will be maintained in secrecy and will be available for
inspection by the Employer, the Executive, and their respective attorneys and experts, who
will agree, in advance and in writing, to receive and maintain all such information in
secrecy, except as may be limited by them in writing.
8. GENERAL PROVISIONS
8.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
The Executive acknowledges that the injury that would be suffered by the Employer as a
result of a breach of the provisions of this Agreement (including any provision of Section
7) would be irreparable and that an award of monetary damages to the Employer for such a
breach would be an inadequate remedy. Consequently, the Employer will have the right, in
addition to any other rights it may have, to obtain injunctive relief to restrain any breach
or threatened breach or otherwise to specifically enforce any provision of this Agreement
and the Employer will not be obligated to post bond or other security in seeking such
relief.
8.2 COVENANTS OF SECTION 7 ARE ESSENTIAL AND INDEPENDENT COVENANTS
The Covenants by the Executive in Section 7 are essential elements of this Agreement, and
without the Executive’s agreement to comply with such covenants, the Employer would not have
entered into this Agreement. The Employer and the Executive have independently consulted
their respective counsel and have been advised in all respects concerning the reasonableness
and propriety of such covenant, with specific regard to the nature of the business conducted
by the Employer.
The Executive’s covenants in Section 7 are independent covenants and the existence of any
claim by the Executive against the Employer under this Agreement or otherwise, will not
excuse the Executive’s breach of any covenant in Section 7.
If the Executive’s employment hereunder expires or is terminated, this Agreement will
continue in full force and effect as is necessary or appropriate to enforce the covenants
and agreements of the Executive in Section 7.
8.3 REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE
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The Executive represents and warrants to the Employer that the execution and delivery by the
Executive of this Agreement do not and the performance by the Executive of the Executive’s
obligations hereunder will not, with or without the giving of notice or the passage of time,
or both; (a) violate any judgment, writ, injunction, or order of any court, arbitrator, or
governmental agency applicable to the Executive; or (b) conflict with, result in the breach
of any provisions of or the termination of, or constitute a default under, any agreement to
which the Executive is a party or by which the Executive is or nay be bound.
8.4 OBLIGATIONS CONTINGENT ON PERFORMANCE
The obligations of the Employer hereunder, including its obligation to pay the compensation
provided for herein, are contingent upon the Executive’s performance of the Executive’s
obligations hereunder.
8.5 WAIVER
The rights and remedies of the parties to this Agreement are cumulative and not alternative.
Neither the failure nor any delay by either party in exercising any right, power, or
privilege under this Agreement will operate as a waiver of such right power, or privilege,
and no single or partial exercise of any such right, power, or privilege will preclude any
other or further exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim
or right arising out of this Agreement can be discharged by one party, in whole or in part,
by a waiver or renunciation of the claim or right unless in writing signed by the other
party; (b) no waiver that may be given by a party will be applicable except in the specific
instance for which it is given; and (c) no notice to or demand on one party will be deemed
to be a waiver of any obligation of such party or of the right of the party giving such
notice or demand to take further action without notice or demand as provided in this
Agreement.
8.6 BINDING EFFECT, DELEGATION OF DUTIES PROHIBITED
This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto
and their respective successors, assigns, heirs, and legal representatives, including any
entity with which the Employer may merge or consolidate or to which all or substantially all
of its assets may be transferred. The duties and covenants of the Executive under this
Agreement, being personal, may not be delegated.
8.7 NOTICES
All notices, consents, waiver, and other communications under this Agreement must be in
writing and will be deemed to have been duly given when (a) delivered by hand (with written
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conformation of receipt), (b) sent by facsimile (with written confirmation of receipt),
provided that a copy is mailed by registered mail, return receipt requested, or (c) when
received by the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile numbers set
forth below.
If to Employer: |
MetroCorp
Bancshares, Inc. 0000 Xxxxxxxx Xxxx., Xxxxx 000 Xxxxxxx, Xxxxx 00000 Attention: Xx. Xxxxxx X. Xxxxx |
If to Executive: |
Xx. Xxxxxx X. Xxx 0000 Xxxxxxxx Xxxx., Xxxxx 000 Xxxxxxx, Xxxxx 00000 |
8.8 ENTIRE AGREEMENT: AMENDMENTS
This Agreement contains the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings, oral or written,
between the parties hereto with respect to the subject matter hereof. This Agreement may
not be amended orally, but only by an agreement in writing signed by the parties hereto.
8.9 GOVERNING LAW
This Agreement will be governed by the laws of the State of Texas.
8.10 JURISDICTION
Any action or proceeding seeking to enforce any provision of, or based on any right arising
out of, this Agreement may be brought against either of the parties in the courts of the
State of Texas, County of Xxxxxx, or, if it has or can acquire jurisdiction, in the United
States District court for the Southern District of Texas, and each of the parties consents
to the jurisdiction of such courts (and of the appropriate appellate courts) in any such
action or proceeding and waives any objection to venue laid therein. Process in any action
or proceeding referred to in the preceding sentence may be served on either party anywhere
in the world.
8.11 SECTION HEADINGS, CONSTRUCTION
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The headings of Sections in this Agreement are provided for convenience only and will not
affect its construction or interpretation. All references to “Section” or Sections” refer
to the corresponding Section or Sections of this Agreement unless otherwise specified. All
words used in this Agreement will be construed to be of such gender or number, as the
circumstances require. Unless otherwise expressly provided, the word “including” does not
limit the preceding words or terms.
8.12 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Agreement will remain in full force and
effect. Any provision of this Agreement held invalid or unenforceable only in part or
degree will remain in full force and effect to the extent not held invalid or unenforceable.
8.13 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which will be deemed to
be an original copy of this Agreement and all of which, when taken together, will be deemed
to constitute one and the same Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date
above first written above.
| EMPLOYER: METROCORP BANCSHARES, INC. |
||||
| DATE: January 26, 2007 | BY: | /s/ Xxx X. Xxxx | ||
| Xxx X. Xxxx | ||||
| Chairman of the Board | ||||
| EXECUTIVE: |
||||
| DATE: January 26, 2007 | BY: | /s/ Xxxxxx X. Xxx | ||
| Xxxxxx X. Xxx | ||||
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