Exhibit 10.7.2
FIRSTBANK
AND
ACCESS ANYTIME BANCORP, INC.
EMPLOYMENT AGREEMENT
AGREEMENT, made this 29th day of July, 1999, by and between FIRSTBANK
(Bank), a federally chartered stock savings bank and ACCESS ANYTIME BANCORP,
INC. (Company) and Xxxxxx X. Xxxxxxx (Officer).
The Officer is an employee of the Bank/Company and has been duly
elected.
The Bank/Company desires to provide for the employment of the Officer
in order to reinforce and encourage his continued attention and dedication to
the growth and success of the Bank/Company as a member of the Bank management;
The Officer desires to serve the Bank/Company on the terms and
conditions to contained in this Agreement;
THEREFORE, in consideration of the premises and respective agreements
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. Employment. The Bank/Company agrees to employ and the Officer agrees
to serve the Bank/Company on the terms and conditions set forth in this
Agreement.
2. Term. The term of this Agreement shall commence on or before August
1, 1999 and shall continue for a period of three years through August 1, 2002,
subject to the terms and conditions herein set forth. As required by Thrift
Bulletin No. 27a(#RB 27a) the Board of Directors of the Bank/Company must review
and approve any renewals or extensions of this contract.
3. Position and Responsibilities. It is intended that at all times
during the term of this Agreement the Officer shall serve as Executive Vice
President and Strategic Planning Officer and Director of the Bank, and Chief
Executive Officer and Chairman of the Company. The Officer shall devote time and
attention to the business and affairs of the Bank/Company (excluding periods of
vacation, sickness, and permitted leaves of absence as provided for in the
Bank's personnel policies).
(a) MAJOR DUTIES AND RESPONSIBILITIES. The Officer will
provide leadership and direction in obtaining additional capital for the
Bank/Company, if required, coordinate the Bank/Company's strategic planning
activities, and guide the Bank/Company's investment activities to ensure the
short-term and long-term profitability and liquidity of the Bank/Company. The
following duties/responsibilities are considered to be essential functions of
Officer's position.
1
(i) Coordinate and guide the Bank/Company's
efforts to raise additional capital when and if required by working with
current stockholders and/or potential investors; and
(ii) Coordinate the efforts of the Bank/Company's
investment activities through guidance and direction of the investment
portfolio, interest rate risk management, and net interest margin management;
and
(iii) Contribute to the effective, profitable
operation of the Bank/Company by participating in asset management,
executive, investment, stockholder, and marketing activities, and
(iv) Represent the Bank/Company and provide
leadership in key community activities, including business, charitable,
civic, and social organizations to maintain a proper responsible citizen
stature for the Bank/Company.
4. Compensation. During the period of the Officer's employment, the
Bank/Company shall provide said Officer with the following compensation and
other benefits:
(a) SALARY. The Bank/Company shall pay to the Officer a salary
at a rate not less than $130,000 per annum, payable in accordance with the
standard payroll practices of the Bank/Company. This salary may be increased
from time to time by the Board of Directors of the Bank/Company, taking into
account, among other things, individual performance and general business
conditions. Management will annually recommend allocation of Base Salary between
Bank and Company, provided, however, that Bank and Company are jointly and
severally responsible for payment of Officer's salary and other compensation and
benefits provided by this Agreement.
(b) INCENTIVE/BONUS COMPENSATION. The Officer shall be
eligible to participate in Board-approved incentive or bonus compensation plans.
(c) EMPLOYEE BENEFITS. The Officer shall be eligible to
participate in all benefit programs of the Bank/Company including but not
limited to profit sharing/employee stock ownership, 401K plan, deferred
compensation plan, group life insurance, separate life insurance plans, group
health insurance, sick leave, salary continuation, disability, vacation, and
holidays.
(d) PERQUISITES AND BUSINESS EXPENSES. The Officer shall be
entitled to prompt reimbursement of all reasonable expenses incurred by said
Officer in performing services hereunder and is to be provided additional
perquisites customary for the Bank/Company. The Bank/Company shall provide a
late model automobile for use by the Officer during the term of this Agreement.
(e) STOCK OPTION PLAN. The Board of Directors shall cause the
Bank/Company to grant under its stock option plan (FIRSTBANK, 1997 Stock Option
and Incentive Plan) 6,000 shares of Company common stock to the officer
effective July 30, 1999.
2
The option may be exercisable at the fair market price of the common stock at
the date of the grant, as indicated by the stock option plan with an
expiration date as determined by the plan.
(f) 12 USC 1828(k) COMPLIANCE. Any payments made to the
Officer pursuant to this Agreement, or otherwise, are subject to, and
conditioned upon, their compliance with 12 USC 1828(k) and any regulations
promulgated thereunder.
5. Termination.
The following events shall constitute grounds for termination:
(a) DISABILITY OR DEATH. If, as a result of the Officer's
incapacity due to physical or mental illness, the Officer shall have been
unable to perform the essential functions of his position as described in
PARA 3(a) above on a full-time basis for 150 consecutive business days, then
the Bank/Company shall be entitled to deliver written notice of termination
to the Officer, and if, within 30 days after any such written notice of
termination is given, the Officer remains unable to perform the essential
functions of his position on a full-time basis, the Bank/Company may
terminate the Officer's employment hereunder. Upon the death of the Officer,
the Bank/Company shall continue to pay the Officer's estate the Base Salary
for a period of 180 days following the Officer's death, following which the
obligations of the Bank/Company hereunder shall terminate. Termination
hereunder shall not affect the Officer's entitlement to any vested benefits
of the Officer hereunder or under any plan or arrangement contemplated by
Section 4 above.
(b) CAUSE. The Bank/Company may terminate the Officer's
employment at any time, but any termination by the Bank/Company other than
termination for cause, shall not prejudice the Officer's right to receive
compensation or other benefits under this Agreement. The Officer shall not have
a right to receive compensation or other benefits for any period after
termination for cause. Termination for cause shall include termination because
of the Officer's personal dishonesty, incompetence, willful misconduct, breach
of fiduciary duty involving personal profit, intentional failure to perform
stated duties, willful violation of any law, rule, or regulation (other than
traffic violations or similar offenses), or breach of any provision of this
Agreement.
If the Officer is suspended and/or temporarily prohibited from
participation in the conduct of the Bank/Company's affairs by a notice served
under Section 8(e)(3) or (g)(1) of [the] Federal Deposit Insurance Act (12
U.S.C. 1818(e)(3) and (g)(1)) the Bank/Company's obligations under this
Agreement shall be suspended as of the date of service unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, the
Bank/Company may, at its discretion, (i) pay the Officer all or part of the
compensation withheld while its Contract (Agreement) obligations were suspended
and (ii) reinstate (in whole or in part) any of its obligations which were
suspended.
If the Officer is removed and/or permanently prohibited from
participating in the conduct in the Bank/Company's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
1818(e)(3) or (g)(1)), all obligations of the Bank/Company under this Agreement
shall terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
3
The Bank/Company shall exercise its right to terminate the
Officer's employment for cause by giving him a prompt written notice of
termination specifying in reasonable detail the circumstances constituting such
cause and specifying such date of termination as the Bank/Company shall
determine.
In the event of a termination for cause, the Bank/Company
shall have no further liability for payments (other than previously accrued and
unpaid compensation) under Section 4 of this Agreement.
(c) DEFAULT. If the Bank/Company is in default (as defined in
Section 3(x)(1) of the Federal Deposit Insurance Act), all obligations under
this Agreement shall terminate as of the date of default, but this paragraph
shall not affect any vested rights of the contracting parties.
Further, all obligations under this Agreement shall be
terminated, except to the extent determined that continuation of this Agreement
is necessary [for] the continued operation of the Bank/Company.
(i) by the Director of the Office of Thrift
Supervision or his or her designee, at the time the Federal Deposit Insurance
Corporation enters into an agreement to provide assistance to or on behalf of
the Bank/Company under the authority contained in Section 13(c) of the
Federal Deposit Insurance Act; or
(ii) by the Director of the Office of Thrift
Supervision or his or her designee, at the time the Director or his or her
designee approves a supervisory merger to resolve problems related to
operation of the Bank/Company or when the Bank/Company is determined by the
Director to be in an unsafe or unsound condition.
(d) OTHER. The Bank/Company may terminate the Officer's
employment for reasons other than for cause. In such circumstances, the
Bank/Company shall pay to said Officer salary and employee benefits for the
remainder of the term of the Agreement, unless otherwise prohibited herein.
(e) TOTAL COMPENSATION. The compensation to the Officer upon
departure, for any reason, will not exceed three times the Officer's average
annual compensation as described in PARA 4(a) and (b) above, based on the five
most recent taxable years. In the case of termination for cause, however, no
payments will be made.
6. Termination by the Officer.
(a) GOOD REASON. The Officer may terminate his employment for
good reason if: (i) any other corporation or entity acquires all or
substantially all of the business of the Bank/Company; (ii) he is not reelected
an officer; or (iii) he is assigned duties inconsistent with his duties as an
officer or inconsistent with his experience.
The Officer shall exercise his right to terminate his
employment for Good Reason by giving the Bank/Company a prompt written notice of
termination specifying in
4
reasonable detail the circumstances constituting such Good Reason and
specifying such date of termination as the Officer shall determine.
In the event of a termination for Good Reason, the
Bank/Company shall pay to the Officer salary and employee benefits for the
balance of the term of the Agreement.
7. Other Miscellaneous Covenants.
(a) TAX WITHHOLDING. The Bank/Company shall have the right to
deduct from any payment required to be made to the Officer or said Officer's
estate or beneficiaries, any federal, state, or local taxes of any kind required
by law to be withheld with respect to such payments.
(b) NOTICES. Any notice hereunder to the Bank/Company shall be
addressed to Chairman of the Board of Directors of the Bank and Chairman of the
Company, X.X. Xxx 0000, Xxxxxx, Xxx Xxxxxx 00000-0000. Any notice to the Officer
shall be directed to said officer at Officer's last known address contained in
the Bank/Company's files. Either party may designate an address at any time
hereafter in writing.
(c) ENTIRE AGREEMENT.This Agreement sets forth the entire
Agreement and understanding of the parties with respect to the subject matter
herein.
(d) SUCCESSORS: ASSIGNS. Except as herein expressly provided,
the respective rights and obligations of the Officer and the Bank/Company under
this Agreement shall not be assigned by either party without the written consent
of the other party but shall inure to the benefit of, and be binding upon, the
parties or its permitted successors or assigns. With respect to the
Bank/Company, successors shall include any other corporation or entity with
which the Bank/Company may be merged or otherwise combined or which may acquire
all or substantially all of the business (ownership) of the Bank/Company. With
respect to the Officer, successors shall include Officer's estate,
beneficiaries, or other legal representatives. Nothing herein expressed or
implied is intended to confer on any person other than the parties hereto any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement.
(e) AMENDMENT; WAIVER. No provision of this Agreement may be
amended or waived without written authorization of both the Board of Directors
and the Officer.
(f) SEVERABILITY. In the event that any provision of this
Agreement shall be determined to be invalid or unenforceable, the remaining
provisions of the Agreement shall remain in full force and effect.
(g) GOVERNING LAW. This Agreement shall be deemed a Contract
under, and for all purposes shall be construed with, the laws of the State of
New Mexico.
(h) ARBITRATION. Any dispute or disagreement arising under
this Agreement shall be settled by arbitration conducted by a member of the
American Arbitration Association in accordance with the rules of said
association. Judgment may be entered on the arbitrator's award in any court
having jurisdiction. The expense of such arbitration, including arbitrator's
fees, cost, and reasonable attorney fees incurred by Officer, shall be borne by
the
5
Bank/Company if the Officer receives a judgment in said Officer's favor
against the Bank/Company.
(i) INVESTMENTS. Nothing contained in this contract shall
prevent the Officer from investing or trading stocks, bonds, securities, real
estate, or other forms of investment for said Officer's own benefit (directly or
indirectly), provided such investments do not significantly interfere or
conflict with Officer's services to be rendered hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day, month and year first written above.
FIRSTBANK ACCESS ANYTIME BANCORP, INC.
By: ______________________________ By: _____________________________
Xxxxxx "Xxxx" Xxxxxx, Chairman Xxx Xxxx, Xx., President
Board of Directors
OFFICER
By: _______________________________
Xxxxxx X. Xxxxxxx
6
