Exhibit 10.7
EMPLOYMENT AGREEMENT
This Agreement is made and is effective as of November 1, 2004 by and
between Community Bank of Nevada, a Nevada state banking corporation ("Bank"),
its parent company Community Bancorp, a Nevada corporation ("Bancorp") and
Xxxxxx X. Xxxxxxx ("Executive").
WHEREAS, the Bank wishes to employ Executive as its President and Chief
Executive Officer as specified herein and to benefit from Executive's services
for the period provided in this Agreement, and Executive wishes to serve in the
employ of the Bank as its President and Chief Executive Officer on a full-time
basis solely in accordance with the terms hereof for such purposes; and
WHEREAS, the Board of Directors of the Bank and Bancorp determined that
the best interests of the Bank would be served by Executive's employment with
the Bank and Bancorp under the terms of this Agreement;
NOW, THEREFORE, in order to effect the foregoing, the parties hereto wish
to enter into an employment agreement on the terms and conditions set forth
below. Accordingly, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Definitions.
(a) "Agreement" means this employment agreement and any amendments
hereto complying with Section 20(a) hereof.
(b) "Board" means the Board of Directors of the Bank and/or the
Board of Directors of Bancorp as the context requires.
(c) "Cause" shall mean Executive's:
(i) Breach or willful neglect of his duties and
responsibilities;
(ii) Conviction for a felony offense or a misdemeanor offense
involving moral turpitude under the laws of the United States or any
state;
(iii) Material breach of this Agreement;
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(iv) Acts of fraud, dishonesty, misappropriation or
embezzlement committed by Executive which result in his personal
enrichment or which damages or xxxxx the Bank or Bancorp;
(v) Breach of Executive's duty of loyalty and/or fiduciary
duties; and
(vi) Repeated willful failure to comply with Bank's or
Bancorp's orders or directives or company rules, regulations,
policies, procedures or practices.
(d) "Change in Control" means a change of control of the Bank or
Bancorp of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on
any similar schedule or form) promulgated under the Securities Exchange Act,
whether or not the Bank or Bancorp is then subject to such reporting
requirement; provided, however, that without limitation, a Change in Control
shall be deemed to have occurred if:
(i) there is a transfer, voluntarily or by hostile takeover,
by proxy contest (or similar action), operation of law, or
otherwise, of Control of the Bank or Bancorp;
(ii) any Person is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act
or any successor provisions thereof), directly or indirectly, of
securities of the Bank or Bancorp representing 20% or more of the
combined voting power of the Bank's or Bancorp's then outstanding
securities;
(iii) the individuals who were members of the Board
immediately prior to a meeting of the shareholders of the Bank or
Bancorp, which meeting involves a contest for the election of
directors, do not constitute a majority of such board following such
meeting or election;
(iv) a merger, consolidation or sale of all or substantially
all of the assets of the Bank or Bancorp; or
(v) there is a change, during any period of two consecutive
years, of a majority of the Board or of the Board of Directors of
Bancorp as constituted as of the beginning of such period, unless
the election of each director who is not a director at the beginning
of such period was approved by a vote of at least two-thirds of the
directors then in office who were directors at the beginning of such
period.
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(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(f) "Control" means the possession, direct or indirect, by any
Person or "group" (as defined in Section 13(d) of the Securities Exchange Act)
of the power to direct or cause the direction of the management policies of the
Bank or Bancorp, whether through ownership of voting securities, by contract or
otherwise, and in any case means the ability to determine the election of a
majority of the directors of the Bank or Bancorp.
(g) "Disability" means physical or mental illness resulting in
Executive's absence on a full-time basis from Executive's duties with the Bank
or Bancorp for 180 calendar days, subject to the procedure described in Section
7(a).
(h) "Expiration" means the termination of this Agreement (including
Executive's employment hereunder) and of any further obligations of the parties
(except as specified in this Agreement) upon completion of the Term.
(i) "Person" means an individual, a group acting in concert, a
corporation, a partnership, an association, a joint stock company, a trust, any
unincorporated organization, a government or political subdivision thereof, or
any other entity whatsoever.
(j) "Resign for Good Reason" or "Resignation for Good Reason" has
the meaning found in Section 7(d).
(k) "Term" means the initial term of this Agreement and any
extensions hereof, as provided in Section 4, whether prior to or following a
Change in Control.
(l) "Termination" or "Terminate(d)" means the termination of
Executive's employment hereunder for any of the following reasons unless the
context indicates otherwise:
(i) Retirement by Executive;
(ii) Death of Executive;
(iii) Disability;
(iv) Expiration;
(v) Resignation for Good Reason;
(vi) Resignation other than Resignation for Good Reason;
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(vii) Termination Without Cause; and
(viii) Termination for Cause.
(m) "Termination Without Cause" or "Terminate(d) Without Cause"
means the cessation of Executive's employment hereunder for any reason except:
(i) A resignation by Executive;
(ii) Termination for Cause;
(iii) Retirement;
(iv) Disability;
(v) Death; or
(vi) Expiration.
2. Employment. Employment of Executive by Bancorp, as provided in Section
3 below, is upon the terms and conditions hereinafter set forth. In this
Agreement, notwithstanding the foregoing, in the event of any Termination
Without Cause pursuant to Section 7 of this Agreement, all severance and other
benefits provided for in Section 8 of this Agreement shall be provided by the
Bank to the Executive in lieu of any other severance, compensation or benefits
(except that Executive shall be permitted to exercise his right to seek
continuing health benefits under COBRA).
3. Position and Responsibilities. The Executive shall serve as President
and Chief Executive Officer of the Bank and President and Chief Executive
Officer of the Bancorp and, subject to the provisions of Section 5 below, shall
have such responsibilities, duties and authority set forth in the Articles of
Incorporation and Bylaws of Bank and the Articles of Incorporation and Bylaws of
Bancorp and as are generally associated with such positions and as may from time
to time be assigned to the Executive by the Board that are consistent with such
responsibilities, duties and authority. During the Term of this Agreement, the
Executive shall devote all his time, attention, skill and efforts during normal
business hours to the business and affairs of the Bank and Bancorp.
4. Term of Agreement. Subject to the terms and provisions of this
Agreement, this Agreement and the period of Executive's employment shall be
deemed to have commenced as of November 1, 2004, and shall continue for an
initial term of two (2) calendar years and 61 days thereafter and any extensions
thereafter, expiring on December 31, 2006, unless extended as
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provided herein. The initial term shall automatically be extended for an
additional one (1) full calendar year without further action by the parties on
January 1, 2005, and on each succeeding January 1 thereafter, such that as of
each such January 1, this Agreement shall have a remaining term of three (3)
calendar years. Each party, Bank, Bancorp or Executive, may stop an automatic
calendar year extension, however, by serving written notice ("Notice of
Non-Renewal") upon the other within 90 calendar days prior to January 1, 2005 or
within 90 calendar days prior to January 1 of any succeeding year, as the case
may be, of such party's intention that this Agreement shall expire at the end of
such Term. In the event the Bank or Bancorp retains Executive as an employee
following the expiration of the Term, such employment, absent a written
agreement to the contrary, will be on an at-will basis with such compensation
and upon such terms as the parties may then agree, subject to termination at any
time with or without cause, and without liability. If the Bank or Bancorp does
not retain Executive as an employee after the Expiration of the Term,
Executive's employment shall cease without further liability of the parties to
each other. Executive's employment shall also terminate, and the Term of this
Agreement will expire, upon Executive's resignation (unless resignation is for
Good Reason after a Change in Control), retirement, death or Disability, or upon
Executive's Termination for Cause or Termination Without Cause.
5. Duties.
(a) Bank and Bancorp and Executive hereby agree that, subject to the
provisions of this Agreement, the Bank or Bancorp shall employ Executive, and
Executive shall serve the Bank and Bancorp (from date of appointment) as
President and Chief Executive Officer for the Term of this Agreement.
(b) During the Term hereof, Executive shall devote substantially all
of his or her business time, attention, skill and efforts to the faithful
performance of the business of the Bank and Bancorp to the fullest extent
necessary to properly discharge his or her duties and responsibilities
hereunder. Executive's position and duties with the Bank and Bancorp shall be as
identified from time to time by the Boards. Further, with the approval of the
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, companies or
charitable, political or civic organizations, which, in such Board's judgment,
will not present any material conflict of interest with the Bank and Bancorp and
will not unfavorably affect the performance of Executive's duties pursuant to
this Agreement.
6. Salary, Bonus Payments and Related Matters.
(a) Salary. During the period of the Executive's employment
hereunder, the Bank shall pay to the Executive a base salary of $260,000 per
year. All base salary owed to Executive shall be payable at regular intervals in
accordance with the Bank's normal payroll
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practices now or hereafter in effect. Executive's salary shall be reviewed at
least annually by the Board or a committee designated by the Board and shall be
adjusted based upon Executive's job performance and the Bank's financial
condition and performance; provided, however, that in no event shall Executive's
monthly salary be lower than the initial amount set forth above unless, in the
good faith judgment of the Board, the financial condition of the Bank requires a
general decrease in the salaries of all executive officers of the Bank. The
first such salary review shall be undertaken no later than December 1, 2004 and
completed no later than January 15, 2005. Notwithstanding the foregoing, if
there is a Change in Control, Executive's salary shall not be less than
Executive's annual salary for the year immediately preceding the Change in
Control. It is agreed to by Bank, Bancorp and Executive that all compensation
(other than stock options) earned and payable to Executive under this Agreement
be paid by Bank and not by Bancorp.
(b) Bonuses. Executive may receive certain annual bonus compensation
during the Term of this Agreement as follows:
(i) Incentive Bonus. During each year of the Term Executive
shall receive a bonus in an amount which is equal to the Executive's
portion of the Bank's Senior Management Plan as determined by the
Bank's Board of Director's annually, provided that the requirements
of said Senior Management Plan have been satisfied for each such
year. This bonus shall be paid within ninety (90) days of the end of
the calendar year for which the bonus is earned even if a payment is
due after the expiration of the Term.
(ii) Discretionary Bonus. Executive may also, in the
discretion of the Board of Directors, receive an additional bonus
based on individual merit and performance. The amount of this bonus,
if any, in any such year shall be determined by the Board of
Directors, in its sole discretion.
(c) Expenses. During the period of the Executive's employment
hereunder, the Executive shall be entitled to receive prompt reimbursement for
all reasonable and customary expenses incurred by the Executive in performing
services hereunder in accordance with the general policies and procedures
established by the Bank.
(d) Employee Benefits and Perks. During the period of the
Executive's employment hereunder, the Executive shall be entitled to participate
in all employee benefits plans or arrangements of the Bank on the same basis as
other employees of the Bank including, without limitation, plans or arrangements
providing medical insurance, dental insurance, life insurance, disability
insurance, sick leave, vacation or retirement. Executive shall also be entitled
to (i) an automobile for business and personal use, (ii) use of a Bank provided
credit card(s), cell phone and car telephone, (iii) membership in a country club
of Executive's choice with all membership dues and costs paid by the Bank, and
(iv) such other perks (if such are being
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so provided) upon the terms and conditions previously in effect.
7. Termination.
(a) Resignation, Retirement, Death or Disability. Executive's
employment hereunder shall cease at any time by Executive's resignation (other
than a resignation for Good Reason as provided in Section 7(d)), or by
Executive's retirement, death or Disability. If Employee's employment terminates
as a result of Employee's death or permanent disability, no compensation or
payments will be made other than accrued compensation and benefits. Disability
shall be determined in accordance with the terms of the Company's policies and
procedures and applicable law.
(b) Termination for Cause. Executive's employment shall cease upon a
good faith finding of Cause by the Board; provided, however, that Executive
shall be given written notice of the Board's finding of conduct by Executive
amounting to Cause for such termination. Said notice shall be accompanied by a
copy of a resolution duly adopted by the affirmative vote of not less than a
majority of a quorum of the Board at a duly-noticed meeting of the Board,
finding that in the good faith opinion of the Board, Executive was guilty of
conduct amounting to Cause and specifying the particulars thereof; provided,
however, that after a Change in Control, such resolution may be adopted only by
the affirmative vote of not less than a majority of a committee composed of at
least three (3) disinterested outside directors of the Bank or Bancorp. In the
absence of at least three (3) disinterested outside directors, a determination
of Cause shall be submitted to and made by an arbitrator(s) pursuant to Section
19 hereof.
(c) Termination Without Cause. Executive's employment may be
terminated Without Cause pursuant to this Section 7(c) upon 30 days' notice for
any reason, subject to the payment of all amounts required by Section 8 hereof.
(d) Resignation for Good Reason. Following a Change in Control
during the Term hereof, Executive may Resign for Good Reason within 90 days of
Executive's discovery of the occurrence of one or more of the following events,
any of which shall constitute "Good Reason" for such Resignation for Good
Reason:
(i) Without Executive's express written consent, the
assignment to Executive of any duties materially inconsistent with
Executive's position, duties, responsibilities and status with the
Bank or Bancorp immediately prior to the Change in Control, or any
subsequent removal of Executive from or any failure to re-elect him
to any such position;
(ii) Without Executive's express written consent, the
termination
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and/or material reduction in Executive's facilities (including
office space and general location) and staff reporting and available
to Executive immediately prior to the Change in Control;
(iii) A material reduction (ten percent or greater) by the
Bank of Executive's base salary or of any bonus compensation
applicable to him as in effect immediately prior to the Change in
Control;
(iv) A failure by the Bank to maintain any of the employee
benefits and perks to which Executive was entitled immediately prior
to the Change in Control at a level substantially equal to or
greater than the value of those employee benefits and perks in
effect immediately prior to the Change in Control; or the taking of
any action by the Bank which would materially affect Executive's
participation in or reduce Executive's benefits under any such
benefits or `perks' plans, programs or policies, or deprive
Executive of any material fringe benefits enjoyed by him immediately
prior to the Change in Control;
(v) The Bank or Bancorp requiring Executive to be based
anywhere other than in the county in which the Bank's or Bancorp's
principal business location is currently situated, except for
required travel on the Bank's or Bancorp's behalf to an extent
substantially consistent with Executive's present business travel
obligations;
(vi) Any purported Termination of Executive's employment by
the Bank other than those effected in good faith pursuant to
Sections 7(a) and 7(b);
(vii) The failure of the Bank or Bancorp to obtain the
assumption of this Agreement by any successor; or
(viii) Receipt by Executive of a Notice of Non-Renewal.
(e) Supervisory Suspension. If the Executive is suspended and/or
temporarily prohibited from participating in the conduct of the Bank's or
Bancorp's affairs by a notice served under Sections 8(e) or (g) of the Federal
Deposit Insurance Act or similar statute, rule or regulation, the Bank's or
Bancorp'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 shall, (i) pay the Executive all or part of the
compensation withheld while its obligations under this Agreement were suspended
and (ii) reinstate (in whole or in part) any of its obligations which were
suspended.
(f) Regulatory Removal. If the Executive is removed and/or
permanently
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prohibited from participating in the conduct of the Bank's or Bancorp's affairs
by an order issued under Sections 8(e) or (g) of the Federal Deposit Insurance
Act or similar statute, rule or regulation, all obligations of the Bank and
Bancorp under this Agreement shall terminate as of the effective date of the
order.
8. Payments to Executive Upon Termination.
(a) Death, Disability or Retirement. In the event of Termination of
this Agreement due to Executive's death, Disability or retirement, Executive or
Executive's spouse and/or estate shall be entitled to all benefits generally
available to Bank and Bancorp employees, or their spouses and/or estates, as of
the date of such death, Disability or retirement, without reduction.
(b) Resignation Without Good Reason or Expiration. In the event of
Executive's resignation (other than a Resignation for Good Reason), or upon
Expiration, the Bank and Bancorp shall have no further obligations to Executive
under this Agreement or otherwise, except as may be expressly required by law.
In addition, Executive will also be entitled to collect any vested retirement
benefits pursuant to the terms of the plan and accrued vacation benefits.
(c) Termination for Cause. In the event Executive is Terminated for
Cause, the Bank or Bancorp shall have no further obligations to Executive under
this Agreement or otherwise, except as may be expressly required by law. In
addition, Executive will also be entitled to collect any vested retirement
benefits pursuant to the terms of the plan and accrued vacation benefits.
(d) Termination Without Cause Prior to a Change in Control. Upon the
occurrence of a Termination Without Cause prior to a Change in Control, as
severance pay and in lieu of damages for breach of this Agreement, Bank shall
pay Executive accrued compensation and benefits at the time of such termination;
all vested retirement benefits will paid in accordance with the terms of the
retirement plan; and, upon the execution and delivery of a full and complete
release of claims by Executive (in a form acceptable to Bank and Bancorp), Bank
shall pay Executive, in the aggregate, a lump sum severance payment equal to (i)
twenty-four (24) months base salary then in effect plus (ii) two (2) times the
amount of Executive's bonus for the year preceding the termination, less
applicable state and federal withholdings. Such lump sum shall be paid not later
than the tenth (10th) day following the date of Termination Without Cause.
Notwithstanding the foregoing, if a Change in Control occurs during the twelve
(12) months following any termination of Executive pursuant to Section 7(c),
Executive shall be entitled to receive the amount of the lump sum severance
payment provided in Section 8(e) hereof less the amount of any payments already
received pursuant to this Section 8(d).
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(e) Termination Without Cause or Resignation for Good Reason, After
a Change in Control. If in the 24 month period following a Change in Control,
Executive (i) Resigns for Good Reason or (ii) is otherwise Terminated Without
Cause, Bank shall pay Executive accrued compensation and benefits at the time of
such termination; all vested retirement benefits will paid in accordance with
the terms of the retirement plan; and, upon the execution and delivery of a full
and complete release of claims by Executive (in a form acceptable to Bank and
Bancorp), Bank shall pay Executive, in the aggregate, a lump sum severance
payment equal to (A) thirty six (36)months base salary then in effect plus (B)
three (3) times the amount of Executive's bonus for the year preceding the
termination. Such lump sum shall be paid not later than the tenth (10th) day
following the date of Termination Without Cause or a Resignation for Good
Reason. In addition, the Bank will continue to pay the Employer portion of the
health insurance continuation premiums for the Executive (COBRA) for a period of
twelve (12) months following termination. Executive will be responsible for
paying his or her portion of the premium, plus the 1.0% COBRA administration fee
during said period.
(f) Source of Payments. All payments provided in Section 8 shall be
paid in cash from the general funds of the Bank, and no special or separate fund
need be established and no other segregation of assets need be made to assure
payment.
(g) Consistent Returns. The Bank, Bancorp and Executive agree that
the payments being made under this Agreement represent reasonable compensation
for services and that neither the Bank nor Executive will file any returns or
reports which take a contrary position.
(h) Reduction or Limitation on Payments.
(i) Notwithstanding anything in the foregoing to the contrary,
if the payments made to Executive following a Termination Without
Cause or Resignation For Good Reason or any of the other payments
provided for in this Agreement, together with any other payments
which Executive has the right to receive from the Bank or Bancorp
would constitute a "parachute payment" (as defined in Section 280G
of the Code), the payments pursuant to this Agreement shall be
reduced to the largest amount as will result in no portion of such
payments being subject to the excise tax imposed by Section 4999 of
the Code; provided, however, that the determination as to whether
any reduction in the payments under this Agreement pursuant to this
proviso is necessary shall be made in good faith by the Bank's and
Bancorp's independent auditors or if such firm is no longer
providing tax services to Bank or Bancorp to such other tax advisor
as shall be mutually acceptable to Bank, Bancorp and Executive, and
such determination shall be conclusive and binding on the Bank,
Bancorp and Executive with respect to the treatment of the payment
for tax reporting purposes.
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(ii) This Agreement, and any payments or benefits hereunder,
are made expressly subject to and conditioned upon compliance with
all federal and state law, regulations and policies relating to the
subject matter of this Agreement, including but not limited to the
provisions of law codified at 12 U.S.C. Section 1828(k), the
regulations of the FDIC codified as 12 C.F.R. Part 359, and any
successor or similar federal or state law or regulation applicable
to the Bank or Bancorp. Employee acknowledges that he understands
the sections of law and regulations cited above and that the Bank's
and Bancorp's obligations to make payments hereunder are expressly
relieved if such payments violate any federal or state law or
regulation applicable to the Bank or Bancorp.
9. Nondisclosure of Confidential Information. Executive acknowledges that,
in the course of employment with the Bank, Executive will have access to
confidential information. "Confidential Information" includes, but is not
limited to, information about the Bank and Bancorp, its affiliates and its
clients, pricing information, financing arrangements, research materials,
manuals, computer programs, formulas, techniques, data, marketing plans and
tactics, technical information, lists of asset sources and customers, the
processes and practices of the Bank and Bancorp, and their affiliates, all
information contained in electronic or computer files, all financial
information, salary and wage information, and any other information that is
designated by the Bank and Bancorp, or their affiliates as confidential or that
Executive knows or should know is confidential. Confidential Information also
includes information provided by third parties that the Bank and Bancorp, or
their affiliates are obligated to keep confidential; and all other proprietary
information of the Bank and Bancorp, or their affiliates. Executive acknowledges
that all Confidential Information is and shall continue to be the exclusive
property of the Bank and Bancorp or their affiliates, as applicable, whether or
not prepared in whole or in part by Executive and whether or not disclosed to or
entrusted to Executive in connection with employment by the Bank. Executive
agrees not to disclose Confidential Information, directly or indirectly, under
any circumstances or by any means, to any third persons without the prior
written consent of the Bank or their affiliates, as applicable, both during his
employment with the Bank and Bancorp and after his employment has ended.
Executive agrees that he will not copy, transmit, reproduce, summarize, quote,
or make any commercial or other use whatsoever of Confidential Information,
except as may be necessary to perform work done by Executive for the Bank and
Bancorp. Executive agrees to exercise the highest degree of care in safeguarding
confidential information against loss, theft or other inadvertent disclosure and
agrees generally to take all steps necessary or requested by the Bank and
Bancorp or their affiliates to ensure maintenance of the confidentiality of the
Confidential Information. Executive agrees that, unless compelled by law,
Executive shall not, during or after employment with the Bank, make any comments
or other communications contrary to the interests of, or disparaging the
goodwill or reputation of, the Bank and Bancorp, their business or any of their
products, services, controlling persons, affiliates, officers, directors, or
executives. Executive agrees, in addition to the specific
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covenants contained herein, to comply with all of Bank's and Bancorp's policies
and procedures for the protection of Confidential Information.
10. Exclusions. Paragraph 9 shall not apply to the following information:
(a) information now and hereafter voluntarily disseminated by the Bank or
Bancorp to the public or which otherwise becomes part of the public domain
through lawful means; (b) information already known to Executive as documented
by written records which predate Executive's employment with the Bank but that
was not subject to any obligation of confidentiality; (c) information
subsequently and rightfully received from third parties and not subject to any
obligation of confidentiality; and (d) information independently developed by
Executive after termination of his employment.
11. Confidential, Proprietary and Trade Secret Information of Others.
Executive represents and warrants that he is not under any pre-existing
obligation that conflicts or is in any way inconsistent with the provisions of
this Agreement. Executive represents and warrants that he has not granted any
rights or licenses to any intellectual property or technology that would
conflict with Executive's obligations under this Agreement. Executive further
represents and warrants that he has disclosed to the Bank and Bancorp any
agreement to which Executive is or has been a party regarding the confidential
information of others and Executive understands that Executive's employment by
the Bank and Bancorp will not require Executive to breach any such agreement.
Executive will not disclose protected confidential information of third parties
to the Bank or Bancorp nor induce the Bank and Bancorp to use any such protected
confidential information received from another under an agreement or
understanding prohibiting such use or disclosure.
12. No Unfair Competition. Executive hereby acknowledges that the sale or
unauthorized use or disclosure of any of the Bank's or Bancorp's Confidential
Information obtained by Executive by any means whatsoever, at any time before,
during, or after the Term shall constitute unfair competition. Executive shall
not engage in any unfair competition with the Bank or Bancorp either during the
Term or at any time thereafter.
13. Ownership of Copyrights. Executive agrees that all original works of
authorship not otherwise within the scope of Paragraph 14 that are conceived or
developed during Executive's employment with the Bank, either alone or jointly
with others, if on the Bank's time, using Bank or Bancorp facilities, or
relating to the Bank and Bancorp are "works for hire" to the greatest extent
permitted by law and shall be owned exclusively by the Bank and Bancorp, and
Executive hereby assigns to the Bank or Bancorp all of Executive's right, title,
and interest in all such original works of authorship and mask works. Executive
agrees that the Bank and Bancorp shall be the sole owner of all rights
pertaining thereto, and further agrees to execute all documents that the Bank
and Bancorp reasonably determines to be necessary or convenient for establishing
in the Bank's or Bancorp's name the copyright to any such original works of
authorship. Executive shall claim no interest in any inventions, copyrighted
material, patents, or
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patent applications unless Executive demonstrates that any such invention,
copyrighted material, patent, or patent application was developed before he
began any employment with the Bank or Bancorp. This provision is intended to
apply only to the extent permitted by applicable law.
14. Ownership of Records. Any written record that Executive may maintain
of inventions, discoveries, improvements, trade secrets, formulae, processes, or
know-how, whether or not patentable and whether or not reduced to practice, and
any such records relating to original works of authorship or mask works made by
Executive, alone or jointly with others, in the course of Executive's employment
with the Bank and Bancorp shall remain the property of the Bank and Bancorp.
Executive shall furnish the Bank and Bancorp any and all such records
immediately upon request.
15. Return of Bank's Property and Materials. Upon termination of
employment with the Bank, Bancorp and Executive shall deliver to the Bank and
Bancorp all Bank and Bancorp property and materials that are in Executive's
possession or control, including all of the information described as
Confidential Information in Paragraph 9 of this Agreement and including all
other information relating to any inventions, discoveries, improvements, trade
secrets, formulae, processes, know-how, original works of authorship, or mask
works of the Bank or Bancorp.
16. Waivers not to be Continued. Any waiver by a party of any breach of
this Agreement by the other party shall not be construed as a continuing waiver
or as a consent to any subsequent breach by the other party.
17. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, return receipt
requested, with postage prepaid, to the following addresses or to such other
address as either party may designate by like notice.
A. If to the Bank, to:
Community Bank of Nevada
000 X. 0xx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: Chairman of the Board
B. If to Bancorp, to:
Community Bank of Nevada
000 X. 0xx Xxxxxx, Xxxxx 000
00
Xxx Xxxxx, Xxxxxx 00000
Attn: Chairman of the Board
C. If to Executive, to:
Xxxxxx Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
18. Indemnification. To the maximum extent and when permitted by
applicable law, the Articles of Incorporation and Bylaws of Bank and the
Articles of Incorporation and Bylaws of Bancorp and resolutions of the Boards of
Directors of the Bank and Bancorp in effect from time to time (except as limited
below), the Bank and Bancorp shall indemnify Executive against liability or loss
arising out of Executive's actual or asserted misfeasance or non-feasance in the
performance of Executive's duties or out of any actual or asserted wrongful act
against, or by, the Bank or Bancorp including but not limited to judgments,
fines, settlements and expenses incurred in the defense of actions, proceedings
and appeals therefrom. In the event there is any conflict between the provisions
governing indemnification for the Bank or Bancorp, it is intended by the parties
that the broadest protections of each be afforded to Executive. However, the
Bank and Bancorp shall have no duty to indemnify Executive with respect to any
claim, issue or matter as to which Executive has been finally adjudged to be
liable to the Bank or Bancorp in the performance of his duties, unless and only
to the extent that the court in which such action was brought shall determine
upon application that, in view of all of the circumstances of the case,
Executive is fairly and reasonably entitled to indemnification for the expenses
which such court shall determine. The Bank and Bancorp shall endeavor to
maintain Directors and Officers Liability Insurance to indemnify and insure the
Bank, Bancorp and Executive from and against the aforesaid liabilities. The
provisions of this Section 18 shall apply and inure to the benefit of the
estate, executor, administrator, heirs, legatees or devisees of Executive.
19. Arbitration.
(a) Policy. In order to encourage the speedy, cost effective resolution of
any disputes between the Bank and Bancorp and its employees concerning all
disputes that may arise in connection with, arise out of or relate to this
Agreement, or any dispute that relates in any way, in whole or in part, to
hiring by, employment with or separation from Bank or Bancorp, or any other
dispute by and between Bank or Bancorp, its parent and subsidiary corporations,
their affiliates
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and each of their respective officers, directors, agents and employees, on the
one hand, and Executive, on the other hand, shall be submitted to binding
arbitration. Such arbitration supplants, replaces and waives any right that the
employee or the Bank or Bancorp may have to pursue any dispute, claim or
controversy relating to employment with, or as a result of the termination of
employment from, the Bank or Bancorp (including claims for employment
discrimination and harassment), in any court, agency, tribunal or other forum,
including a civil action before any jury. Notwithstanding the foregoing, nothing
herein is intended to nor shall preclude any employee from filing any
administrative charge of discrimination with any governmental agency.
(b) Procedure:
(i) Except to the extent specifically modified herein, all
arbitrations under this policy shall be conducted in accordance with the
JAMS Arbitration Rules and Procedures for Employment Disputes as are in
effect at the time the dispute arises, and such rules are specifically
incorporated herein by this reference. Copies of the Arbitration Rules
shall be made available to employees upon request.
(ii) Either Executive or the Bank and Bancorp may initiate
arbitration. Executive may initiate arbitration by delivering to the Bank
and Bancorp through personal delivery, certified or registered mail, a
written demand for arbitration. The demand shall include a concise
statement of the issue(s) to be arbitrated, along with a statement setting
forth the relief requested. Along with the demand for arbitration,
Executive shall submit a check or money order payable to "JAMS" in the
amount of one hundred fifty dollars ($150) as his or her portion of the
administrative fees of the arbitration. Thereafter, the remaining costs of
the arbitration, such as the arbitrator's fees, costs of a court reporter,
and room rental fees, if any, shall be paid by the Bank and Bancorp. Any
remaining fees and costs, including but not limited to attorneys fees
shall, subject to any remedy to which the prevailing party may be entitled
to under the law, be borne by each party to the same extent as that party
would be responsible for such fees and costs should the matter be
litigated in court.
(iii) If the Bank or Bancorp initiates arbitration, it shall do so
by delivering to Executive, through personal delivery, certified or
registered mail, a written demand for arbitration. The demand shall
contain a concise statement of the issue(s) to be arbitrated, along with a
statement setting forth the relief requested. In all respects, any
arbitration initiated by the Bank and Bancorp shall proceed in the same
manner as set forth in paragraph (ii) above, with the exception that
Executive shall not be required to pay the initial $150 administrative
fee.
(iv) The Arbitrator shall be empowered to award either party any
remedy at
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law or in equity that the prevailing party would otherwise have been
entitled to had the matter been litigated in court, including but not
limited to, general, special and punitive damages, recoverable costs,
attorneys fees (where provided by statute or contract) and injunctive
relief; provided, however, that the authority to award any remedy is
subject to whatever limitations, if any, exist in the applicable law on
such remedies. The arbitrator shall have no jurisdiction to issue any
award contrary to or inconsistent with law.
(v) In any arbitration conducted pursuant to this policy, either
party may request the presence of a court reporter for the hearing, the
costs of which shall be allocated as provided in paragraph (ii) above.
Following the evidentiary portion of the hearing, either party shall have
the right to prepare and file with the arbitrator a post-hearing brief,
not to exceed fifty (50) pages in length. Any such brief shall be served
on the arbitrator and the other party within thirty (30) days of the close
of the evidentiary portion of the hearing, unless the parties agree to
some other time period. Either party may also request and shall be granted
one extension of this time period not to exceed fifteen (15) days. The
arbitrator shall have the authority to grant other extensions, or to
increase the page limitation set forth above, upon the request of any
party for good cause shown.
(vi) Any disputes concerning the enforcement, scope, and/or
applicability of this section 19 shall in the first instance be determined
by the arbitrator. Should either the Bank and Bancorp or Executive
disregard this Section 19 and pursue an action subject hereto in any court
or administrative agency, upon application of the aggrieved party to a
court of competent jurisdiction, the court shall order the matter to
arbitration and shall award the prevailing party in any such hearing its
reasonable costs and attorney's fees incurred in connection therewith.
Notwithstanding the foregoing, either party shall retain the right to seek
a provisional remedy pending arbitration from a court of competent
jurisdiction pursuant to and consistent with Nevada law.
(vii) Any demand for arbitration by the Bank and Bancorp or
Executive shall be filed within the statute of limitation that is
applicable to the claim(s) upon which arbitration is sought or required.
Any failure to demand arbitration within this time frame and according to
these rules shall constitute a waiver of all rights to raise any claims in
any forum arising out of any dispute that was subject to arbitration.
(viii) By executing this Agreement, Executive represents that he has
reviewed this Section 19 and understands the terms and conditions
contained herein.
(ix) Notwithstanding any provision to the contrary in this
Agreement, should any part of this Section 19 be declared by a court of
competent jurisdiction to be invalid, unlawful or otherwise unenforceable,
the remaining parts shall not be affected thereby, and the parties shall
arbitrate their dispute without reference to or reliance upon the
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invalid, unlawful or unenforceable part of this Section 19.
20. General Provisions.
(a) Entire Agreement. This Agreement constitutes the entire
agreement by the parties with respect to the subject matter hereof, and
supersedes and replaces all prior employment agreements (but not stock option or
other separate benefit agreements) among or between the parties. No amendment,
waiver or termination of any of the provisions hereof shall be effective unless
in writing and signed by the party against whom it is sought to be enforced. Any
written amendment, waiver, or termination hereof executed by the Bank, Bancorp
and Executive shall be binding upon them and upon all other Persons, without the
necessity of securing the consent of any other Person, and no Person shall be
deemed to be a third-party beneficiary under this Agreement.
(b) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same Agreement.
(c) No Waiver. Except as otherwise expressly set forth herein, no
failure on the part of any party hereto to exercise and no delay in exercising
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or remedy hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy.
(d) Headings. The headings of the Sections of this Agreement have
been inserted for convenience of reference only and shall in no way restrict or
modify any of the terms or provisions hereof.
(e) Severability. If for any reason any provision of this Agreement
is held invalid or unenforceable, such invalidity or unenforceability shall not
affect the validity or enforceability of any other provision of this Agreement.
If any provision of this Agreement shall be held invalid or unenforceable in
part, such invalidity or unenforceability shall in no way affect the rest of
such provision not held so invalid, and the rest of such provision, together
with all other provisions of this Agreement, shall to the full extent consistent
with law continue in full force and effect.
(f) Governing Law. This Agreement shall be governed and construed
and the legal relationships of the parties determined in accordance with the
laws of the State of Nevada applicable to contracts executed and to be performed
solely in the State of Nevada.
(g) Assumption. The Bank and Bancorp shall require any successor in
interest
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(whether direct or indirect or as a result of purchase, merger, consolidation,
Change in Control or otherwise) to all or substantially all of the business
and/or assets of the Bank or Bancorp to expressly assume and agree to perform
the obligations under this Agreement in the same manner and to the same extent
that the Bank or Bancorp would be required to perform it if no such succession
had taken place.
(h) Advice of Counsel. Executive acknowledges that (i) he has been
encouraged to consult with legal counsel of his choosing concerning the terms of
this Agreement prior to executing this Agreement and (ii) Reitner & Stuart has
not served as counsel to Executive in connection with this Agreement. Any
failure by Executive to consult with competent counsel prior to executing this
Agreement shall not be a basis for rescinding or otherwise avoiding the binding
effect of this Agreement. The parties acknowledge that they are entering into
this Agreement freely and voluntarily, with full understanding of the terms of
this Agreement. Interpretation of the terms and provisions of this Agreement
shall not be construed for or against either party on the basis of the identity
of the party who drafted the terms or provisions in question.
(i) Binding Agreement. This Agreement and all rights of Executive
hereunder shall inure to the benefit of and be enforceable by Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. Executive's duties and obligations under
this Agreement are personal to and may not be assigned by Executive. This
Agreement shall inure to the benefit of and be fully enforceable by the Bank or
Bancorp's successors or assigns.
(j) Voluntary Agreement. Executive acknowledges, warrants and
represents that (a) he has read and understands each of the terms and conditions
of this Agreement, including, without limitation, the provisions set forth in
Sections 9 through 15, above; (b) he is entering into this Agreement, including,
without limitation, the provisions set forth in Sections 9 through 15, above,
and freely, voluntarily and knowingly and without any coercion or duress; and
(c) Executive expressly intends that each of the terms and conditions of this
Agreement be fully enforceable and enforced by any court that may later review
this Agreement, if ever, and Executive never will attempt to establish, argue or
otherwise claim that any of the terms and conditions of this Agreement are void,
voidable or otherwise unenforceable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
ATTEST: COMMUNITY BANK OF NEVADA
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___________________________ By:______________________________
Witness Its:_____________________________
Print Name:______________________
COMMUNITY BANCORP
____________________________ By:______________________________
Witness Its:_____________________________
Print Name:______________________
THE EXECUTIVE
____________________________ _________________________________
Witness Xxxxxx X. Xxxxxxx
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