EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.7
This EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of this day
of , 2009, by and between Ventana National Bank of Arizona, a national banking
association (“Bank”), and Xxxxxxx X. Xxxx, an individual resident of the State of Arizona
(“Executive”).
WHEREAS, the Executive has considerable experience, expertise and training in management
related to banking and services offered by the Bank;
WHEREAS, the Bank desires for the Executive to be employed as the President and Chief
Executive Officer of the Bank, and Executive desires to accept employment, subject to and on the
terms and conditions set forth in this Agreement; and
WHEREAS, both the Bank and the Executive have read and understood the terms and provisions set
forth in this Agreement and have been afforded a reasonable opportunity to review this Agreement
with their respective legal counsel.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth in this
Agreement, the Executive and the Bank agree as follows:
A. DURATION
1. This Agreement shall become effective (the “Effective Date”) upon the date that the Bank
opens for business and, subject to Paragraph 2 below, will expire and terminate by its own terms
five (5) years after the Effective Date, unless earlier terminated as provided herein.
2. Both the Bank and the Executive acknowledge and agree that the parties may agree to
continue the employment relationship upon such terms as they may mutually agree. Following the
initial five-year term, this Agreement automatically shall renew annually for an additional one (1)
year term unless either party elects to terminate this Agreement by sending written notice of
non-renewal at least thirty (30) days prior to the expiration of the then current term. Both
parties acknowledge and agree that, in the event this Agreement does not renew, this Agreement
shall terminate automatically upon the expiration of the then current term without any additional
liability or obligation on the part of either party, except as expressly provided herein.
B. COMPENSATION
3. All payments of salary and other compensation to the Executive shall be payable in
accordance with the Bank’s ordinary payroll and other policies and procedures.
a. During the term of this Agreement, the Bank agrees to pay the Executive a base
salary of not less than $175,000 annually, appropriately prorated for partial months at the
commencement and end of the term of this Agreement.
b. The Bank shall have the right to deduct from any payment of compensation to the
Executive hereunder any federal, state or local taxes required by law to be withheld with
respect to such payments and any other amounts specifically authorized to be withheld or
deducted by the Executive.
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c. During the term of this Agreement, it is anticipated that the board of directors of
the Bank (“Board of Directors” or “Board”) or a delegated committee thereof will adopt an
executive incentive bonus plan based upon the asset growth and profitability of the Bank.
The Executive will be entitled to participate in such plan. The Executive shall also be
entitled to participate in any benefit programs applicable to all employees of the Bank or
to executive employees of the Bank in accordance with Bank policy and the provisions of said
benefit programs.
d. The Executive shall receive
( ) options to purchase shares of
common stock of United Business Holdings, Inc. (the “Company”), the Bank’s holding company,
at an exercise price of $10 per share. The options shall have a term of ten (10) years from
the date of issuance, which shall be the Effective Date, and to the extent permitted by law,
shall be treated as incentive stock options. The options shall vest ratably over a period
of five (5) years, beginning on the first anniversary date of the Effective Date. The
options shall be evidenced by a stock option agreement, which shall have such terms as are
consistent with those set forth above and such additional terms as may be set forth in the
stock option agreement or the stock option plan pursuant to which the options are granted.
4. The Bank shall provide the Executive with an automobile allowance of $1,000 per month, a
cellular phone and laptop computer for use in the performance of his duties and obligations under
this Agreement. The Bank also shall reimburse the Executive for all reasonable expenses, including,
but not limited to, travel expenses, lodging expenses, and meals and entertainment expenses, that
the Executive may incur in the performance of his duties and obligations under this Agreement;
provided, however, that the Executive shall be required to submit receipts or other acceptable
documentation to the cashier of the Bank or such other officer designated by the Board of Directors
to verify such expenses prior to any reimbursements. In addition to the reimbursement of expenses
listed in this Paragraph, the Bank shall pay, or reimburse the Executive, for reasonable initiation
fees for trade association memberships deemed to be acceptable and appropriate by the Board of
Directors.
5. Subject to the provisions of Paragraph 9 of this Agreement, the Executive shall be entitled
to receive employee and dependent health insurance, dental insurance, paid sick leave and four (4)
weeks of paid vacation per year, and any additional benefits provided to all Bank employees. The
Executive’s receipt of such benefits shall be in accordance with the Bank’s employment policies.
6. The Bank shall also provide the Executive with a salary continuation plan, with such terms
as are approved by Executive and the Board of Directors.
7. The Bank also shall provide the Executive with term life insurance coverage in an initial
amount not to exceed 200% of the Executive’s base salary, and having a term not less than ten (10)
years. If, during the term of this Agreement, the Bank adopts a plan providing life insurance
benefits to other Bank employees and the maximum coverage under such plan exceeds the maximum
permissible coverage provided by this Paragraph, then notwithstanding the provisions of this
Paragraph, the Executive shall be entitled to participate in the Bank’s life insurance benefit plan
to the full extent that it is available to other Bank employees.
8. The Board of Directors or a delegated committee shall review the amount of the Executive’s
compensation, including his base salary, not less than annually and shall increase such base salary
as a result of such review and to provide reasonable cost of living adjustments, all in the
discretion of the Board of Directors or such committee and consistent with safe and sound banking
practices; provided however that the Executive’s base salary, bonuses, vacation and car allowance
shall not be less than the amounts set forth in Paragraphs 3, 4, and 5 at any time during the term
of this Agreement.
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9. All employee benefits provided to the Executive by the Bank incident to the Executive’s
employment shall be governed by the applicable plan documents, summary plan descriptions or
employment policies, and may be modified, suspended or revoked at any time, in accordance with the
terms and provisions of the applicable documents.
10. The parties hereto acknowledge that the compensation set forth herein and the other
covenants and agreements of the Bank contained herein are fair and adequate compensation for the
Executive’s services and for the covenants of the Executive as set forth herein.
C. RESPONSIBILITIES
11. The Executive shall be employed as the President and Chief Executive Officer of the Bank
and shall faithfully devote his best efforts and his primary focus to his positions with the Bank.
12. The Executive acknowledges and agrees that the duties and responsibilities of the
Executive required by his positions as the President and Chief Executive Officer of the Bank are
wholly within the discretion of its Board of Directors, and may be modified, or new duties and
responsibilities imposed by the Board of Directors, at any time, without the approval or consent of
the Executive. However, these new duties and responsibilities may not constitute immoral or
unlawful acts. In addition, the new duties and responsibilities must be consistent with the
Executive’s role as the President and Chief Executive Officer of a financial institution.
13. The Executive acknowledges and agrees that, during the term of this Agreement, he has a
fiduciary duty of loyalty to the Bank, and that he will not engage in any activity during the term
of this Agreement, which will or could, in any significant way, harm the business, business
interests, or reputation of the Bank or the reputation of the Board of Directors.
14. The Executive shall not directly or indirectly engage in competition with the Bank at any
time during the existence of the employment relationship between the Bank and the Executive, and
the Executive will not on his own behalf, or as another’s agent or employee, engage in any of the
same or similar duties and/or Bank-related responsibilities required by the Executive’s position
with the Bank, other than as an employee of the Bank pursuant to this Agreement or as specifically
approved by the Board of Directors. In addition, without the prior written consent of the Board of
Directors, Executive shall not usurp for himself any corporate opportunity available to the Bank.
D. NONINTERFERENCE
15. The Executive acknowledges that, as part of his employment with the Bank, he will become
familiar with the salary, pay scale, capabilities, experiences, skill and desires of the Bank’s
employees. The Executive agrees to maintain the confidentiality of such information. The
Executive further covenants and agrees that, for a period of one year subsequent to the termination
of this Agreement, whether such termination occurs at the insistence of the Bank or the Executive,
the Executive shall not recruit, hire, or attempt to recruit or hire, directly or by assisting
others, any employees of the Bank, nor shall the Executive contact or communicate with any
employees of the Bank for the purpose of inducing such employees of the Bank to terminate their
employment with the Bank. For purposes of this covenant, “employees of the Bank” shall refer to
employees who are still actively employed by or were employed by the Bank within the prior year at
the time of the attempted recruiting or hiring.
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16. In his position of employment, the Executive will be exposed to confidential information
and trade secrets (hereafter “Proprietary Information”) pertaining to, or arising from, the
business of the Bank and its affiliates (if any). The Executive hereby agrees and acknowledges
that such Proprietary Information is unique and valuable to the Bank’s business and that the Bank
would suffer irreparable injury if this information were publicly disclosed. Therefore, the
Executive agrees to keep in strict secrecy and confidence, both during and after the period of his
employment, any and all Proprietary Information which the Executive acquires, or to which the
Executive has access, during employment by the Bank, that has not been publicly disclosed by the
Bank. The Proprietary Information covered by this Agreement shall include, but shall not be
limited to: (i) the identities of the Bank’s existing and prospective customers or clients,
including names, addresses, credit status, and pricing levels; (ii) the buying and selling habits
and customs of the Bank’s existing and prospective customers or clients; (iii) financial
information about the Bank; (iv) product and systems specifications, concepts for new or improved
products and other product or systems data; (v) the identities of, and special skills possessed by,
the Bank’s employees; (vi) the identities of and pricing information about the Bank’s suppliers and
vendors; (vii) training programs developed by the Bank; (viii) pricing studies, information and
analyses; (ix) current and prospective products and inventories; (x) financial models, business
projections and market studies; (xi) the Bank’s financial results and business conditions; (xii)
business plans and strategies; (xiii) special processes, procedures, and services of the Bank and
its suppliers and vendors; and (xiv) computer programs and software developed by the Bank or its
consultants. The provisions and agreements entered into herein shall survive the term of the
Employee’s employment to the extent reasonably necessary to accomplish their purpose in protecting
the interests of the Bank in any Proprietary Information disclosed to, or learned by, the Executive
while employed.
17. The Executive expressly represents that he has no agreements with, or obligations to, any
party which conflict, or may conflict, with the interests of the Bank or with the Executive’s
duties as an employee of the Bank.
18. The Executive acknowledges that the special relationship of trust and confidence between
him, the Bank, and its clients and customers creates a high risk and opportunity for the Executive
to misappropriate the relationship and goodwill existing between the Bank and its clients and
customers. The Executive further acknowledges and agrees that it is fair and reasonable for the
Bank to take steps to protect itself from the risk of such misappropriation. The Executive further
acknowledges that, at the outset of his employment with the Bank and throughout his employment with
the Bank, the Executive will be provided with access to and informed of Proprietary Information,
which will enable him to benefit from the Bank’s goodwill and know-how.
19. The Executive acknowledges that it would be inevitable in the performance of his duties as
a director, officer, employee, investor, agent or consultant of any person, association, entity, or
company which competes with the Bank, or which intends to or may compete with the Bank, to disclose
and/or use Proprietary Information, as well as to misappropriate the Bank’s goodwill and know-how,
to or for the benefit of such other person, association, entity, or company. The Executive also
acknowledges that, in exchange for the execution of the non-solicitation restriction set forth in
these NONINTERFERENCE provisions, he has received substantial, valuable consideration, including:
(i) confidential trade secret and proprietary information relating to the identity and special
needs of the Bank’s current and prospective customers, the Bank’s current and prospective services,
the Bank’s business projections and market studies, the Bank’s business plans and strategies, the
Bank’s studies and information concerning special services unique to the Bank; (ii) employment; and
(iii) compensation and benefits as described in this Agreement. The Executive further acknowledges
and agrees that this consideration constitutes fair and adequate consideration for the execution of
the non-solicitation restriction set forth herein.
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20. In consideration for the above-recited valuable consideration, as well as to protect the
vital interests described in these NONINTERFERENCE provisions, the Executive understands and agrees
that during the continuation of this Agreement and for a period of one year following the
termination of this Agreement by either party, for any reason (other than for termination of the
Executive for circumstances described in Paragraph 25(e), below), the Executive will not be or
become engaged in any way (directly or indirectly), as an individual proprietor, beneficiary,
trustee, owner, partner, stockholder, officer, director, executive, investor, lender, sales
representative, or in any other capacity, whatsoever, in any activity or endeavor which competes or
conflicts with the Bank’s business or the business of the Bank or the business of any of their
respective affiliates (if any), as such business has been conducted during the years of the
Executive’s employment with the Bank, within the cities in which the Bank maintains a banking
office. It is the parties’ desire that these restrictions be enforced to the fullest extent
allowed by law.
21. The Executive agrees that the restrictions set forth in Paragraph 20 above are ancillary
to an otherwise enforceable agreement, are supported by independent valuable consideration, and
that the limitations as to time, geographical area, and scope of activity to be restrained by
Paragraph 20 are reasonable and acceptable, and do not impose any greater restraint than is
reasonably necessary to protect the goodwill and other business interests of the Bank. The
Executive further agrees that such restrictions do not create undue hardship for him or for the
public. The NONINTERFERENCE provisions in this Section D are not intended to be construed as a
general restraint from engaging in a lawful profession or a general covenant against competition.
Nothing herein will prohibit the Executive’s (i) beneficial ownership of less than 5% of the
publicly traded capital stock of a corporation listed on a national securities exchange so long as
this is not a controlling interest, or (ii) ownership of mutual fund investments. The Executive
may not avoid the purpose and intent of this paragraph by engaging in conduct within the
geographically limited area from a remote location through means such as telecommunications,
written correspondence, computer generated or assisted communications, or other similar methods.
The Executive agrees that if, at some later date, a court of competent jurisdiction determines that
the non-solicitation agreement set forth in this Section D does not meet the criteria set forth by
applicable law, then such agreement may be reformed by the court and enforced to the maximum extent
permitted under applicable law. The Executive understands that his obligations under this Section
D shall not be assignable by him.
22. The Executive acknowledges that the covenants set forth in these NONINTERFERENCE
provisions are material conditions to the Bank’s willingness to execute and deliver this Agreement
and to provide Executive the compensation and benefits and other consideration provided hereunder.
The parties agree that the existence of any claim or cause of action of Executive against the Bank,
whether predicated on this Agreement or otherwise, will not constitute a defense to the enforcement
by the Bank of such covenants. It is specifically acknowledged that the periods following the
termination of employment stated in Paragraphs 15 and 20, during which the agreements and covenants
of Executive made in such Paragraphs are effective, are to be computed by excluding from such
computation any time during which Executive is in violation of any provision of Paragraph 15 or 20.
The covenants contained in these NONINTERFERENCE provisions will not be affected by any breach of
any other provision hereof by any party hereto. In addition, Executive’s obligations under these
NONINTERFERENCE provisions shall survive the termination of this Agreement and Executive’s
employment with the Bank. Executive’s obligations under these NONINTERFERENCE provisions are in
addition to, and not in limitation or preemption of, all other obligations of confidentiality which
he may have to Bank under general legal or equitable principles, or other the Bank policies.
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E. REMEDIES
23. In the event that the Executive violates any of the provisions set forth in this Agreement
relating to NONINTERFERENCE, Executive acknowledges that the Bank would suffer immediate and
irreparable harm and would not have an adequate remedy at law for money damages. Accordingly,
Executive agrees that, without the necessity of proving actual damages or posting bond or other
security, the Bank shall be entitled to temporary or permanent injunction or injunctions to prevent
breaches of such performance and to specific enforcement of such covenants in addition to any other
remedy to which the Bank may be entitled, at law or in equity. In such a situation, the parties
agree that the Bank may pursue any remedy available, including declaratory relief, concurrently or
consecutively in any order as to any breach, violation, or threatened breach or violation of any of
the provisions set forth in this Agreement relating to NONINTERFERENCE, and the pursuit of any
particular remedy or remedies shall not be deemed an election of remedies or waiver of the right to
pursue any other remedy.
F. TERMINATION
24. The Board of Directors shall be entitled to terminate this Agreement, for any reason, by
providing the Executive with thirty (30) days written notice of the termination. However, if this
Agreement is terminated by the Bank without Good Cause, as defined in this Agreement, the Bank
shall provide the Executive with the severance set forth in paragraph 34 of this Agreement.
25. For purposes of this Agreement, “Good Cause” shall be defined as the occurrence of one of
the following events:
a. The determination by the Board of Directors, in the exercise of its reasonable
judgment, that Executive has violated any provision of this Agreement or is grossly
negligent in the performance of his duties hereunder, and has failed to cure such violation
or the effects of such gross negligence within a reasonable period after written notice to
the Executive by the Bank specifying in reasonable detail the alleged violation;
b. The determination by the Board of Directors, in the exercise of its reasonable
judgment, that (i) Executive has failed to follow the policies adopted by the Board of
Directors and has failed to cure such failure within a reasonable period after written
notice to the Executive by the Bank specifying in reasonable detail the alleged failure; or
(ii) Executive has engaged in such actions or omissions that would constitute unsafe or
unsound banking practices;
c. The Executive is convicted of a misdemeanor involving moral turpitude or a felony;
d. The determination by the Board of Directors, in the exercise of its reasonable
judgment, that the Executive has engaged in gross misconduct in the course and scope of his
employment with the Bank including indecency, immorality, gross insubordination, dishonesty,
unlawful harassment, use of illegal drugs, or fighting;
e. The determination by the Board of Directors, in the exercise of its reasonable
judgment and in good faith, that the Executive’s job performance is substantially
unsatisfactory and that Executive has failed to cure such performance within a reasonable
period after written notice to the Executive by the Bank specifying in reasonable detail the
nature of the unsatisfactory performance; or
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f. The Executive is prohibited from engaging in the business of banking by any
governmental regulatory agency having jurisdiction over the Bank.
26. Executive shall be entitled to terminate this Agreement at any time, for any reason, with
or without cause, by providing thirty (30) days written notice to the Bank. The effective date of
such resignation shall be the 30th calendar day following the date the notice is given
or such other later date as may be set forth in the notice. Upon Executive’s resignation,
Executive shall be entitled to receive any base salary which has been earned by him through the
effective date of such resignation.
27. If Executive dies during the term of this Agreement and while in the employ of the Bank,
this Agreement will terminate automatically, without notice, on the date of the Executive’s death
and the Bank shall not have any further obligation to Executive or his estate under this Agreement
(other than death benefits payable under any benefit plans to which Executive is a party), except
that the Bank shall pay Executive’s estate that portion of Executive’s base salary accrued through
the date on which Executive’s death occurred. To the maximum extent, and for the term, permitted
by the health benefit provisions of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of
1986, if Executive dies during the term of this Agreement and while in the employ of the Bank, the
Bank shall provide or maintain health insurance benefits, at the Bank’s expense, for Executive’s
spouse.
28. This Agreement will terminate immediately, without notice, in the event the Executive is
prevented from performing his duties hereunder by reason of becoming physically or mentally
disabled. For purposes of this Agreement, the term “disabled” shall have the meaning set forth in
the Bank’s long-term disability plan or, if the Bank has no long-term disability plan in effect at
the time of the Executive’s disability, then “disabled” shall mean that Executive has become
physically or mentally incapable (excluding infrequent and temporary absences due to ordinary
illness) of performing the essential functions of his duties under this Agreement for a continuous
period of three (3) months, as determined by the Board of Directors upon the advice of a qualified
physician. In the event a dispute arises between Executive and the Bank concerning Executive’s
physical or mental ability to continue or return to the performance of his duties, then Executive
shall submit to an examination by a competent physician mutually agreeable to the parties. The
physician’s opinion as to the Executive’s capability to perform his duties will be final and
binding. During any period prior to termination during which the Executive fails to perform his
duties as a result of incapacity due to physical or mental illness, the Executive shall continue to
receive his full salary at the rate then in effect for such period until his employment terminates
pursuant to this Paragraph 28, provided that payments so made to the Executive during such period
shall be reduced by the sum of the amounts, if any, payable to the Executive under any disability
benefit plans of the Bank that were not previously applied to reduce such payment.
In the event of a termination pursuant to this Paragraph 28, the Bank shall be relieved of all
its obligations under this Agreement, except that Bank shall pay to the Executive, or to his estate
in the event of his subsequent death, the Executive’s base salary under Paragraph 3(a) through the
date on which such termination shall have occurred, reduced during such period by the amount of any
benefits received by Executive under any disability policy maintained by the Bank and by any death
benefits payable under the benefit plans referenced in Paragraph 3(c). All such payments to the
Executive or to his estate shall be made in the same manner as other payroll obligations.
29. Executive acknowledges that all memoranda, notes, records, reports, manuals, books,
papers, letters, client and customer lists, contracts, software programs, information and records,
drafts of instructions, guides and manuals, and other documentation (whether in draft or final
form), and other sales or financial information and aids relating to the Bank’s business, and any
and all other documents containing Propriety Information furnished to the Executive by any
representative of the Bank or otherwise acquired or developed by the Executive in connection with
his duties under this Agreement
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(collectively, the “Recipient Materials”) shall at all times be the property of the Bank.
Within three calendar days of the termination of this Agreement, the Executive shall return to the
Bank, all Recipient Materials (including all Proprietary Information) that is in his possession,
custody or control.
30. The provisions of provisions of Paragraphs 15, 16, 20-23, 29-34, 39, 43 and 45 shall
survive the termination of this Agreement.
G. CHANGE OF CONTROL
31. The parties acknowledge that the Executive has agreed to assume the positions of President
and Chief Executive Officer and to enter into this Agreement based on his confidence in the current
owners of the Bank and the Company, the direction of the Bank provided by the current Board of
Directors, and the direction of the Company provided by the current board of directors. Upon a
“Change of Control,” as defined below, the Executive may, at his option, notify the Bank within
sixty (60) days following such Change of Control that he intends to terminate this Agreement based
upon the Change of Control.
In the event that Executive is terminated by the Bank within sixty (60) days following such
Change of Control for any reason other than for Good Cause, Executive shall be entitled to elect to
receive as severance the lump sum amount determined pursuant to Paragraph 32 upon written notice to
the Bank, in which case the severance provisions of Paragraph 34 shall not apply.
32. In the event that the Executive elects to terminate this Agreement based upon the Change
of Control, the Bank shall pay to the Executive, within thirty (30) days of Bank’s receipt of a
notice of the Executive’s election to terminate this Agreement, a cash lump sum payment equal to
2.99 times his Base Amount as defined in section 280G(b)(3) of the Internal Revenue Code of 1986,
as amended (“Code”).
In the event that any compensation payable under this Agreement is determined to be a
“parachute payment” subject to the excise tax imposed by Section 4999 of the Code or any successor
provision (the “Excise Tax”), the Bank agrees to pay to the Executive an additional sum (the “Gross
Up”) in an amount such that the net amount retained by the Executive, after receiving both the
payment and the Gross Up and after paying: (i) any Excise Tax on the payment and the Gross Up, and
(ii) any federal, state, and local income taxes on the Gross Up, is equal to the amount of the
payment.
For purposes of determining the Gross Up, the Executive shall be deemed to pay federal, state,
and local income taxes at the highest marginal rate of taxation in his filing status for the
calendar year in which the payment is to be made based upon the Executive’s domicile on the date of
the event that triggers the Excise Tax. The determination of whether such Excise Tax is payable
and the amount of such Excise Tax shall be based upon the opinion of tax counsel selected by the
Bank, subject to the reasonable approval of the Executive. If such opinion is not finally accepted
by the Internal Revenue Service, then appropriate adjustments shall be calculated (with additional
Gross Up determined based on the principals outlined in the previous paragraph, if applicable) by
such tax counsel based upon the final amount of Excise Tax so determined together with any
applicable penalties and interest. The final amount shall be paid, if applicable, within thirty
(30) days after such calculations are completed, but in no event later than April 1st of
the year following the event that triggers the Excise Tax. Such compensation shall be payable in
equal disbursements in accordance with the Bank’s ordinary payroll policies and procedures.
33. As used in this Agreement, a “Change of Control” shall be deemed to have occurred in each
of the following instances:
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a. A reorganization, merger, consolidation or other corporate transaction involving the
Bank or the Company, in each case, with respect to which the shareholders of the Bank or the
Company, immediately prior to such transaction do not, immediately after the transaction,
own more than fifty percent (50%) of the combined voting power of the reorganized, merged or
consolidated bank’s then outstanding voting securities.
b. The sale, transfer or assignment of all or substantially all of the assets of the
Bank or the Company to any third party.
c. The acquisition by any individual, entity or “group,” within the meaning of Section
13(d)(3) or Section 14(d)(2) of the Exchange Act (a “Person”), of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of voting securities
of the Bank or the Company where such acquisition causes any such Person to own twenty
percent (20%) or more of the combined voting power of the Bank’s or the Company’s then
outstanding capital stock then entitled to vote generally in the election of directors;
provided however, that a Change of Control shall not be deemed to have occurred if a Person
becomes the beneficial owner of twenty percent of the combined voting power of the Bank’s or
the Company’s then outstanding capital stock solely as a result of the repurchase of voting
securities by the Bank or the Company.
d. During any period of two consecutive years, the persons who were directors of the
Bank or the Company immediately before the beginning of the two year period (the “Incumbent
Directors”) shall cease to constitute at least a majority of the Board of Directors of the
Bank or the board of directors of the Company; provided that any individual becoming a
director subsequent to the beginning of such two year period whose election, or nomination
for election by the Bank’s or the Company’s shareholders, was approved by at least
two-thirds of the directors then comprising the Incumbent Directors shall be considered as
though such individual were an Incumbent Director unless such individual’s initial
assumption of office occurs as a result of either an actual or threatened election contest
(as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act).
Notwithstanding anything contained herein to the contrary, if Executive’s employment is
terminated and he reasonably demonstrates that such termination was at the request of a third party
who has indicated an intention of taking steps reasonably calculated to effect a Change of Control
and who effects a Change of Control, or such termination otherwise occurred in connection with, or
in anticipation of, a Change of Control which later actually occurs, then for all purposes hereof,
a Change of Control shall be deemed to have occurred on the day immediately prior to the date of
such termination of his employment.
X. XXXXXXXXX
34. Except as otherwise expressly provided herein, if Bank terminates Executive’s employment
for any reason other than Good Cause (as defined in this Agreement), then Executive shall be
entitled to severance pay in an amount not less than the base salary that would have been due the
Executive had he remained employed for twelve (12) months following termination. In the event that
the Executive is entitled to any payment under Section G, above, no payment shall be due under this
Section H. Any severance pay due to Executive pursuant to this Section H shall be paid in
accordance with the terms of normal payroll procedure of the Bank.
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I. SEVERABILITY
35. If any term or other provision of this Agreement is held to be illegal, invalid or
unenforceable by any rule of law or public policy: (A) such term or provision shall be fully
severable and this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision were not a part hereof; (B) the remaining provisions of this Agreement
shall remain in full force and effect and shall not be affected by such illegal, invalid or
unenforceable provision or by its severance from this Agreement; and (C) there shall be added
automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid
or unenforceable provision as may be possible and still be legal, valid and enforceable. If any
provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only as broad as is enforceable.
J. WAIVER
36. The parties acknowledge and agree that the failure of either party to enforce any
provision of this Agreement shall not constitute a waiver of that particular provision, or of any
other provisions of this Agreement.
K. SUCCESSORS AND ASSIGNS
37. The Executive acknowledges and agrees that this Agreement may be assigned by the Bank to
any successor-in-interest and shall inure to the benefit of, and be fully enforceable by, any
successor and/or assignee; and this Agreement will be fully binding upon, and may be enforced by
the Executive against, any successor and/or assignee of the Bank.
38. The Executive acknowledges and agrees that his obligations, duties and responsibilities
under this Agreement are personal and shall not be assignable, and that this Agreement shall be
enforceable by the Executive only. In the event of the Executive’s death, this Agreement shall be
enforceable by the Executive’s estate, executors and/or legal representatives, only to the extent
provided herein.
L. CHOICE OF LAW
39. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND ALL QUESTIONS
CONCERNING THE CONSTRUCTION, VALIDITY, INTERPRETATION AND PERFORMANCE OF THIS AGREEMENT SHALL BE
GOVERNED BY, THE LAWS OF THE STATE OF ARIZONA, WITHOUT GIVING EFFECT TO PROVISION THEREOF REGARDING
CONFLICT OF LAWS. IT IS STIPULATED THAT ARIZONA HAS A COMPELLING STATE INTEREST IN THE SUBJECT
MATTER OF THIS AGREEMENT, AND THAT THE EXECUTIVE HAS OR WILL HAVE REGULAR CONTACT WITH THE STATE OF
ARIZONA IN THE PERFORMANCE OF THIS AGREEMENT.
M. MODIFICATION
40. The parties acknowledge and agree that this Agreement and the other agreements and plans
referenced herein constitute the complete and entire agreement between the parties; that each
executed this Agreement based upon the express terms and provisions set forth herein; that, in
accepting employment with the Bank, the Executive has not relied on any representations, oral or
written, which are not set forth in this Agreement; that no previous agreement, either oral or
written, shall have any effect on the terms or provisions of this Agreement; and that all previous
agreements, either oral or written, are expressly superseded and revoked by this Agreement. No
waiver shall be deemed a continuing waiver or
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a waiver of any subsequent breach or default, either of a similar or different nature, unless
expressly so stated in writing.
41. Except as otherwise expressly provided in this Agreement, no conditions, usage of trade,
course of dealing or performance, understanding or agreement purporting to modify, vary, explain or
supplement the terms or conditions of this Agreement unless hereafter made (i) in writing, (ii)
referencing an express provision in this Agreement, (iii) signed by the party to be bound, and (iv)
in the case of the Bank, approved by a disinterested majority of the Board of Directors.
N. INDEMNIFICATION
42. During the term of this Agreement, the Bank shall indemnify the Executive against all
judgments, penalties, fines, amounts paid in settlement and reasonable expenses (including, but not
limited to, attorneys’ fees) relating to his employment by the Bank to the fullest extent
permissible under the law, including, without limitation, federal and/or state banking laws and
regulations, Title 6 of the Arizona Revised Statutes, as amended, Title 10 of the Arizona Revised
Statutes, as amended, and the Bank’s Articles of Association. To the extent permitted by law, the
Bank may purchase such indemnification insurance as the Board of Directors may from time to time
determine.
O. ARBITRATION
43. Any dispute, controversy, or claim arising out of or relating to this Agreement or breach
thereof, or arising out of or relating in any way to the employment of the Executive or the
termination thereof, shall be submitted to arbitration in accordance with the Employment Dispute
Arbitration Rules of the American Arbitration Association. Judgment upon the award rendered by the
arbitrator may be entered in any court of competent jurisdiction. In reaching his or her decision,
the arbitrator shall have no authority to ignore, change, modify, add to or delete from any
provision of this Agreement, but instead is limited to interpreting this Agreement.
Notwithstanding the arbitration provisions set forth in this Agreement, the Executive and the Bank
acknowledge and agree that nothing in this Agreement shall be construed to require the arbitration
of any claim or controversy arising under the NONINTERFERENCE provisions of this Agreement. These
provisions shall be enforceable by any court of competent jurisdiction and shall not be subject to
this Paragraph of the Agreement. The Executive and the Bank further acknowledge and agree that
nothing in this Agreement shall be construed to require arbitration of any claim for workers’
compensation or unemployment compensation.
P. LEGAL CONSULTATION
44. Each party acknowledges that it has carefully read this Agreement, that it has had an
opportunity to consult with his attorney concerning the meaning, import and legal significance of
this Agreement, that it understands the terms of the Agreement, that all understandings and
agreements between Executive and the Bank relating to the subjects covered in this Agreement are
contained in it, and that it has entered into the Agreement voluntarily and not in reliance on any
promises or representations by the other than those contained in this Agreement.
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Q. MISCELLANEOUS
45. The Executive shall make himself available, upon the request of the Bank, to testify or
otherwise assist in litigation, arbitration, or other disputes involving the Bank, or any of the
directors, officers, employees, subsidiaries, or parent corporations of either, at no additional
cost during the term of this Agreement and at any time following the termination of this Agreement.
46. The Executive shall not be required to mitigate the amount of any payment provided for in
this Agreement by seeking other employment or otherwise, nor shall the amount of any payment
provided for in this Agreement be reduced by any compensation earned by the Executive as the result
of employment by another employer after the date of termination, or otherwise.
47. In the event either party institutes arbitration or litigation to enforce or protect its
rights under this Agreement, the prevailing party in such arbitration or litigation shall be
entitled, in addition to all other relief, to reasonable attorneys fees, out-of-pocket costs,
disbursements, and arbitrator’s fees relating to such arbitration or litigation.
48. This Agreement may be executed simultaneously in two or more counterparts, each of which
shall be deemed an original, but all of which shall together constitute one and the same Agreement.
49. The Bank shall have no obligation to set aside, earmark or entrust any fund or money with
which to pay its obligations under this Agreement. The Executive or any successor-in-interest to
the Executive shall be and remain simply a general creditor of the Bank in the same manner as any
other creditor having a general unsecured claim. For purposes of the Code, the Bank intends this
Agreement to be an unfunded, unsecured promise to pay on the part of the Bank. For purposes of
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), the Bank intends that this
Agreement not be subject to ERISA. If it is deemed subject to ERISA, it is intended to be an
unfunded arrangement for the benefit of a select member of management, who is a highly compensated
employee of the Bank for the purpose of qualifying this Agreement for the “top hat” plan exception
under sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. At no time shall the Executive have or be
deemed to have any lien nor right, title or interest in or to any specific investment or to any
assets of the Bank. If the Bank elects to invest in a life insurance, disability or annuity policy
upon the life of the Executive, then the Executive shall assist the Bank by freely submitting to a
physical examination and supplying such additional information necessary to obtain such insurance
or annuities.
50. When a reference is made in this Agreement to a Paragraph or a Section, such references
shall be to a Paragraph or a Section of this Agreement unless otherwise indicated. The headings
contained in this Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or
“including” are used in this Agreement, they shall be deemed to be followed by the words “without
limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any particular provision in this
Agreement. Each use herein of the masculine, neuter or feminine gender shall be deemed to include
the other genders. Each use herein of the plural shall include the singular and vice versa, in
each case as the context requires or as is otherwise appropriate. The word “or” is used in the
inclusive sense. Any agreement or instrument defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement or instrument as from time to time
amended, modified or supplemented, including by waiver or consent. References to a person are also
to its permitted successors or assigns.
51. Executive represents that his service as an employee of the Bank will not violate any
agreement: (i) he has made that prohibits him from disclosing any information he acquired prior to
him
12
becoming employed by the Bank; or (ii) he has made that prohibits him from accepting
employment with the Bank or that will interfere with his compliance with the terms of this
Agreement. Executive further represents that he has not previously, and will not in the future,
disclose to Bank any proprietary information or trade secrets belonging to any previous employer.
Executive acknowledges that the Bank has instructed him not to disclose to it any proprietary
information or trade secrets belonging to any previous employer.
R. NOTICES
52. All notices and other communications required or permitted to be given or delivered
hereunder or by reason of the provisions of this Agreement shall be in writing and shall be deemed
to have been given properly if (a) delivered personally, (b) delivered by a recognized overnight
courier service, (c) sent by United States mail, postage prepaid, or (d) sent by facsimile
transmission followed by a confirmation copy delivered by recognized overnight courier service the
next day. Such notices, requests, consents and other communications shall be sent to the
respective parties as follows (or at such other address for a party as shall be specified by like
notice to the other party):
If to the Bank:
00 Xxxx Xxx Xxxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chairman
If to Executive:
00 Xxxx Xxx Xxxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chairman
If to Executive:
53. Any notice or other communication given pursuant to this Agreement shall be effective (i)
in the case of personal delivery, telex or facsimile transmission, when received; (ii) in the case
of mail, upon the earlier of actual receipt or five (5) business days after deposit with the United
States Postal Service, first class certified or registered mail, postage prepaid, return receipt
requested; and (iii) in the case of a recognized overnight courier service, one (1) business day
after delivery to the courier service together with all appropriate fees or charges and
instructions for overnight delivery.
[signature page follows]
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[signature page to Employment Agreement]
EXECUTED AS OF THE DATE FIRST WRITTEN ABOVE IN
, 2009.
| EXECUTIVE | |||||
| |
|||||
VENTANA NATIONAL BANK OF ARIZONA |
|||||
| By: | |||||
| WITNESS | Name: | ||||
| Title: | |||||
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