EXHIBIT 10.5
FORM OF EMPLOYMENT AGREEMENT BETWEEN VECTRA BANK COLORADO, NATIONAL
ASSOCIATION AND XXXX X. MARVEL
This EMPLOYMENT AGREEMENT (the "Agreement") made and entered into this [
] day of [ ], 2001, by and between XXXX X. MARVEL ("Executive") and VECTRA BANK
COLORADO, NATIONAL ASSOCIATION, a national banking association organized under
the laws of the United States ("Surviving Bank")
WITNESSETH THAT:
WHEREAS, the Agreement and Plan of Reorganization (the "Plan") dated as
of July 10, 2001 by and among Zions Bancorporation, a Utah corporation having
its principal office in Salt Lake City, Utah ("Zions Bancorp"), Surviving Bank,
Minnequa Bancorp, Inc., a Colorado corporation having its principal office in
Pueblo, Colorado, and The Minnequa Bank of Pueblo, a banking corporation
organized under the laws of the State of Colorado (the "Bank"), provides that
the Bank will be merged with and into Surviving Bank;
WHEREAS, Executive is President of the Bank;
WHEREAS, Surviving Bank desires to secure the employment of Executive
upon consummation of the transactions contemplated in the Plan;
WHEREAS, Executive is desirous of entering into the Agreement for such
periods and upon the terms and conditions set forth herein; and
WHEREAS, to assist in achieving the objectives of the transactions
described in the Plan, section 5.9 of the Plan contemplates that Executive will
enter into an employment agreement as a condition to the consummation of the
transactions described therein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements hereinafter set forth, the parties agree as follows:
1. EMPLOYMENT; RESPONSIBILITIES AND DUTIES.
(a) Surviving Bank hereby agrees to employ Executive, and Executive
hereby agrees to serve as an executive vice president of Surviving Bank and of
any depository institution which is successor-in-interest thereto ("Surviving
Bank" hereafter to include any depository institution which is
successor-in-interest thereto) during the Term of Employment. Executive shall
have such duties, responsibilities, and authority as shall be set forth in the
bylaws of Surviving Bank on the date of this Agreement or as may otherwise be
determined by Surviving Bank.
(b) Except as provided in section 1(c) of this Agreement, Executive
shall devote his full working time and best efforts to the performance of his
responsibilities and duties hereunder and to the retention of the customer
relationships to which the Bank has been a party prior to the date of this
Agreement. Except as provided in section 1(c) of this Agreement, during the Term
of Employment Executive shall not, without the prior written consent of the
President of Surviving Bank, render services as an employee, independent
contractor, or otherwise, whether or not compensated, to any person or entity
other than Surviving Bank or its affiliates.
(c) Executive may, where involvement in such activities does not
individually or in the aggregate significantly interfere with the performance by
Executive of his duties or violate the provisions of section 4 of this
Agreement:
(i) assist The First National Bank of Durango and the Bank of Monte
Vista in matters limited to bank administration, the sharing of Executive's
historical recollections with officers and employees of The First National Bank
of Durango and the Bank of Monte Vista, as applicable, and transition of The
First National Bank of Durango and the Bank of Monte Vista to new ownership,
provided that (A) such assistance to The First National Bank of Durango does not
on average require a commitment of more than approximately one business day per
month, and such assistance to the Bank of Monte Vista does not on average
require a commitment of more than approximately one business day per month, and
(B) such assistance to The First National Bank of Durango and the Bank of Monte
Vista does not involve contact with bank customers;
(ii) render services to charitable organizations,
(iii) manage his personal investments, and
(iv) with the prior permission of the President of Surviving Bank,
hold such other directorships or part-time academic appointments or have such
other business affiliations as would otherwise be prohibited under this section
1.
2. TERM OF EMPLOYMENT.
(a) The term of this Agreement ("Term of Employment") shall be the
period commencing on the date of this Agreement (the "Commencement Date") and
continuing until the Termination Date, which shall mean the earliest to occur
of:
(i) July 10, 2002, unless the Term of Employment shall be extended
by mutual written agreement of Executive and Surviving Bank;
(ii) the death of Executive;
(iii) Executive's inability to perform his duties hereunder, as a
result of physical or mental disability as reasonably determined by the personal
physician of Executive, for a period of at least 180 consecutive days or for at
least 180 days during any period of twelve consecutive months during the Term of
Employment; or
(iv) the discharge of Executive by Surviving Bank "for cause,"
which shall mean one or more of the following:
(A) any willful or gross misconduct by Executive with respect
to the business and affairs of Surviving Bank, or with respect to any of its
affiliates for which Executive is assigned material responsibilities or duties;
(B) the conviction of Executive of a felony (after the earlier
of the expiration of any applicable appeal period without perfection of an
appeal by Executive or the denial of any appeal as to which no further appeal or
review is available to Executive) whether or not committed in the course of his
employment by Surviving Bank;
(C) Executive's willful neglect, failure, or refusal to carry
out his duties hereunder in a reasonable manner; or
(D) the breach by Executive of any representation or warranty
in section 6(a) of this Agreement or of any agreement contained in section 1, 4,
5, or 6(b) of this Agreement, which breach is material and adverse to Surviving
Bank or any of its affiliates for which Executive is assigned material
responsibilities or duties; or
(v) Executive's resignation from his position as an executive vice
president of Surviving Bank; or
(vi) the termination of Executive's employment by Surviving Bank
"without cause," which shall be for any reason other than those set forth in
subsections (i), (ii), (iii), (iv), or (v) of this section 2(a), at any time,
upon the thirtieth day following notice to Executive.
(b) In the event that the Term of Employment shall be terminated for
any reason other than that set forth in section 2(a)(vi) of this Agreement,
Executive shall be entitled to receive, upon the occurrence of any such event:
(i) any salary (as hereinafter defined) payable pursuant to section
3(a)(i) of this Agreement which shall have accrued as of the Termination Date;
and
(ii) such rights as Executive shall have accrued as of the
Termination Date under the terms of any plans or arrangements in which he
participates pursuant to section 3(b) of this Agreement, any right to
reimbursement for expenses accrued as of the Termination Date payable pursuant
to section 3(e) of this Agreement, and the right to receive the cash equivalent
of paid annual leave and sick leave accrued as of the Termination Date pursuant
to section 3(c) of this Agreement.
(c) In the event that the Term of Employment shall be terminated for the
reason set forth in section 2(a)(vi) of this Agreement, Executive shall be
entitled to receive:
(i) for the period commencing on the date immediately following the
Termination Date and ending upon and including July 10, 2002, salary payable at
the rate established pursuant to section 3(a)(i) of this Agreement, in a manner
consistent with the normal payroll practices of Surviving Bank with respect to
executive personnel as presently in effect or as they may be modified by
Surviving Bank from time to time; and
(ii) such rights as Executive may have accrued as of the
Termination Date under the terms of any plans or arrangements in which he
participates pursuant to section 3(b) of this Agreement, any right to
reimbursement for expenses accrued as of the Termination Date payable pursuant
to section 3(e) of this Agreement, and the right to receive the cash equivalent
of paid annual leave and sick leave accrued as of the Termination Date pursuant
to section 3(c) of this Agreement.
3. COMPENSATION. For the services to be performed by Executive for
Surviving Bank under section 1 of this Agreement, Executive shall be compensated
in the following manner:
(a) SALARY. During the Term of Employment Surviving Bank shall pay
Executive a salary at a rate of $220,000 per annum. Salary shall be payable in
accordance with the normal payroll practices of Surviving Bank with respect to
executive personnel as presently in effect or as they may be modified by
Surviving Bank from time to time.
(b) EMPLOYEE BENEFIT PLANS OR ARRANGEMENTS. During the Term of
Employment, Executive shall be entitled to participate in all employee benefit
plans of Surviving Bank, as presently in effect or as they may be modified by
Surviving Bank from time to time, under such terms as may be applicable to
officers of Executive's rank employed by Surviving Bank or its affiliates,
including, without limitation, plans providing retirement benefits, medical
insurance, life insurance, disability insurance, and accidental death or
dismemberment insurance.
(c) VACATION AND SICK LEAVE. During the Term of Employment, Executive
shall be entitled to paid annual vacation periods and sick leave in accordance
with the policies of Surviving Bank as in effect as of the Commencement Date or
as may be modified by Surviving Bank from time to time as may be applicable to
employees of Surviving Bank.
(d) WITHHOLDING. All compensation to be paid to Executive under this
section 3 shall be subject to required withholding and other taxes.
(e) EXPENSES. During the Term of Employment, Executive shall be
reimbursed for reasonable travel and other expenses incurred or paid by
Executive in connection with the performance of his services under this
Agreement, upon presentation of expense statements or vouchers or such other
supporting information as may from time to time be requested, in accordance with
such policies of Surviving Bank as are in effect as of the Commencement Date and
as may be modified by Surviving Bank from time to time, under such terms as may
be applicable to officers of Executive's rank employed by Surviving Bank or its
affiliates.
4. CONFIDENTIAL BUSINESS INFORMATION; NON-COMPETITION.
(a) Executive acknowledges that certain business methods, creative
techniques, and technical data of Zions Bancorp and Surviving Bank and their
affiliates and the like are deemed by Surviving Bank to be and are in fact
confidential business information either of Zions Bancorp or Surviving Bank or
their affiliates or are entrusted to third parties. Such confidential
information includes but is not limited to procedures, methods, sales
relationships developed while in the service of Surviving Bank or its
affiliates, knowledge of customers and their requirements, marketing plans,
marketing information, studies, forecasts, and surveys, competitive analyses,
mailing and marketing lists, new business proposals, lists of vendors,
consultants, and other persons who render service or provide material to Zions
Bancorp or Surviving Bank or their affiliates, and compositions, ideas, plans,
and methods belonging to or related to the affairs of Zions Bancorp or Surviving
Bank or their affiliates. In this regard, Surviving Bank asserts proprietary
rights in all of its business information and that of its affiliates except for
such information as is clearly in the public domain. Notwithstanding the
foregoing, information that would be generally known or available to persons
skilled in Executive's fields shall be considered to be "clearly in the public
domain" for the purposes of the preceding sentence. Executive agrees that he
will not disclose or divulge to any third party, except as may be required by
his duties hereunder, by law, regulation, or order of a court or government
authority, or as directed by Surviving Bank, nor shall he use to the detriment
of Surviving Bank or its affiliates or use in any business or on behalf of any
business competitive with or substantially similar to any business of Zions
Bancorp or Surviving Bank or their affiliates, any confidential business
information obtained during the course of his employment by Surviving Bank. The
foregoing shall not be construed as restricting Executive from disclosing such
information to the employees of Zions Bancorp or Surviving Bank or their
affiliates.
(b) Executive hereby agrees that from the Commencement Date until the
second anniversary of the Termination Date, except as provided in section 4(g)
of this Agreement, Executive will not (i) engage in the banking business other
than on behalf of Zions Bancorp or Surviving Bank or their affiliates within the
Market Area (as hereinafter defined), (ii) directly or indirectly own, manage,
operate, control, be employed by, or provide management or consulting services
in any capacity to any firm, corporation, or other entity (other than Zions
Bancorp or Surviving Bank or their affiliates) engaged in the banking business
in the Market Area, or (iii) directly or indirectly solicit or otherwise
intentionally cause any employee, officer, or member of the respective Boards of
Directors of Surviving Bank or any of its affiliates to engage in any action
prohibited under (i) or (ii) of this section 4(b).
(c) Executive acknowledges and agrees that irreparable injury will
result to Surviving Bank in the event of a breach of any of the provisions of
this section 4 (the "Designated Provisions") and that Surviving Bank will have
no adequate remedy at law with respect thereto. Accordingly, in the event of a
material breach of any Designated Provision, and in addition to any other legal
or equitable remedy Surviving Bank may have, Surviving Bank shall be entitled to
the entry of a preliminary and permanent injunction (including, without
limitation, specific performance) by a court of competent jurisdiction in Denver
County, Colorado, or elsewhere, to restrain the violation or breach thereof by
Executive or any affiliates, agents, or any other persons acting for or with
Executive in any capacity whatsoever, and Executive submits to the jurisdiction
of such court in any such action.
(d) Vectra Bank and Executive agree that the scope of the Market Area,
as set forth in section 4(f), is reasonable, and Vectra Bank and Executive
Parties further agree that the duration of the restricted period set forth in
section 4(b) is reasonable.
(e) It is the desire and intent of the parties that the provisions of
this section 4 shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, if any particular provision of this section 4 shall be
adjudicated to be invalid or unenforceable, such provision shall be deemed
amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such deletion to apply only with respect to the operation of such
provision in the particular jurisdiction in which such adjudication is made. In
addition, should any court determine that the provisions of this section 4 shall
be unenforceable with respect to scope, duration, or geographic area, such court
shall be empowered to substitute, to the extent enforceable, provisions similar
hereto or other provisions so as to provide to Surviving Bank, to the fullest
extent permitted by applicable law, the benefits intended by this section 4.
(f) As used herein, "Market Area" shall mean Pueblo County, Colorado.
(g) Neither the performance of the activities described in section 1(c)
of this Agreement in conformity with all of the applicable conditions and
restrictions contained in section 1(c) of this Agreement, nor the ownership by
Executive as an investor of not more than five percent of the outstanding shares
of stock of any corporation whose stock is listed for trading on any securities
exchange or is quoted on the automated quotation system of the National
Association of Securities Dealers, Inc., or the shares of any investment company
as defined in section 3 of the Investment Company Act of 1940, as amended, shall
in itself constitute a violation of Executive's obligations under section 4(b)
of this Agreement.
(h) For Executive's performing his obligations under section 4(b) of
this Agreement, during each of the first twelve months following the Termination
Date, Surviving Bank shall pay monthly compensation to Executive in the amount
of $8,333.33, such monthly compensation to be payable in accordance with the
normal payroll practices of Surviving Bank with respect to executive personnel
as presently in effect or as they may be modified by Surviving Bank from time to
time; provided, however, that if the Termination Date has occurred for any
reason other than a reason set forth in sections 2(a)(i) or 2(a)(vi), no
compensation will be payable under this section 4(h). All compensation to be
paid to Executive under this section 4(h) shall be subject to required
withholding and other taxes.
5. LIFE INSURANCE. In light of the unusual abilities and experience of
Executive, Surviving Bank in its discretion may apply for and procure as owner
and for its own benefit insurance on the life of Executive, in such amount and
in such form as Surviving Bank may choose. Surviving Bank shall make all
payments for such insurance and shall receive all benefits from it. Executive
shall have no interest whatsoever in any such policy or policies but, at the
request of Surviving Bank, shall submit to medical examinations and supply such
information and execute such documents as may reasonably be required by the
insurance company or companies to which Surviving Bank has applied for
insurance.
6. REPRESENTATIONS AND WARRANTIES.
(a) Executive represents and warrants to Surviving Bank that his
execution, delivery, and performance of this Agreement will not result in or
constitute a breach of or conflict with any term, covenant, condition, or
provision of any commitment, contract, or other agreement or instrument,
including, without limitation, any other employment agreement, to which
Executive is or has been a party.
(b) Executive shall indemnify, defend, and hold harmless Surviving Bank
for, from, and against any and all losses, claims, suits, damages, expenses, or
liabilities, including court costs and counsel fees, which Surviving Bank has
incurred or to which Surviving Bank may become subject, insofar as such losses,
claims, suits, damages, expenses, liabilities, costs, or fees arise out of or
are based upon any failure of any representation or warranty of Executive in
section 6(a) of this Agreement to be true and correct when made.
7. NOTICES. All notices, consents, waivers, or other communications
which are required or permitted hereunder shall be in writing and deemed to have
been duly given if delivered personally or by messenger, transmitted by telex or
telegram, by express courier, or sent by registered or certified mail, return
receipt requested, postage prepaid. All communications shall be addressed to the
appropriate address of each party as follows:
If to Surviving Bank:
Vectra Bank Colorado, National Association
0000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0-0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxxx
President and Chief Executive Officer
With a required copy to:
Xxxxx X. Xxxxxx, Esq.
Duane, Morris & Heckscher LLP
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
If to Executive:
Xx. Xxxx X. Marvel
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
All such notices shall be deemed to have been given on the date delivered,
transmitted, or mailed in the manner provided above.
8. ASSIGNMENT. Neither party may assign this Agreement or any rights or
obligations hereunder without the consent of the other party.
9. GOVERNING LAW. This Agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of Colorado, without giving
effect to the principles of conflict of law thereof. The parties hereby
designate Denver County, Colorado to be the proper jurisdiction and venue for
any suit or action arising out of this Agreement. Each of the parties consents
to personal jurisdiction in each of such venues for such a proceeding and agrees
that he or it may be served with process in any action with respect to this
Agreement or the transactions contemplated thereby by certified or registered
mail, return receipt requested, or to its registered agent for service of
process in the State of Colorado. Each of the parties irrevocably and
unconditionally waives and agrees, to the fullest extent permitted by law, not
to plead any objection that it may now or hereafter have to the laying of venue
or the convenience of the forum of any action or claim with respect to this
Agreement or the transactions contemplated thereby brought in the courts
aforesaid.
10. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between Surviving Bank and Executive relating to the subject
matter of this Agreement. Any previous agreements or understandings between the
parties hereto or between Executive and the Bank or any of its affiliates or
Surviving Bank or any of its affiliates regarding the subject matter of this
Agreement, including without limitation the terms and conditions of employment,
compensation, benefits, retirement, competition following employment, and the
like, are merged into and superseded by this Agreement. Neither this Agreement
nor any provisions of this Agreement can be modified, changed, discharged, or
terminated except by an instrument in writing signed by the party against whom
any waiver, change, discharge, or termination is sought.
11. SEVERABILITY. If any provision or provisions of this Agreement shall
be held to be invalid, illegal, or unenforceable for any reason whatsoever:
(a) the validity, legality, and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of any
section of this Agreement containing any such provision held to be invalid,
illegal, or unenforceable) shall not in any way be affected or impaired thereby;
and
(b) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any section of this Agreement
containing any such provisions held to be invalid, illegal, or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal, or unenforceable.
12. ARBITRATION. Subject to the right of each party to seek specific
performance (which right shall not be subject to arbitration), if a dispute
arises out of or related to this Agreement, or the breach thereof, such dispute
shall be referred to arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association ("AAA"). A dispute subject to the
provisions of this section will exist if either party notifies the other party
in writing that a dispute subject to arbitration exists and states, with
reasonable specificity, the issue subject to arbitration (the "Arbitration
Notice"). The parties agree that, after the issuance of the Arbitration Notice,
the parties will try in good faith to resolve the dispute by mediation in
accordance with the Commercial Rules of Arbitration of AAA between the date of
the issuance of the Arbitration Notice and the date the dispute is set for
arbitration. If the dispute is not settled by the date set for arbitration, then
any controversy or claim arising out of this Agreement or the breach of this
Agreement shall be resolved by binding arbitration and judgment upon any award
rendered by arbitrator(s) may be entered in a court having jurisdiction. Any
person serving as a mediator or arbitrator must have at least ten years'
experience in resolving commercial disputes through arbitration. In the event
any claim or dispute involves an amount in excess of $100,000, either party may
request that the matter be heard by a panel of three arbitrators; otherwise all
matters subject to arbitration shall be heard and resolved by a single
arbitrator. The arbitrator shall have the same power to compel the attendance of
witnesses and to order the production of documents or other materials and to
enforce discovery as could be exercised by a United States District Court judge
sitting in the District of Colorado. In the event of any arbitration, each party
shall have a reasonable right to conduct discovery to the same extent permitted
by the Federal Rules of Civil Procedure, provided that such discovery shall be
concluded within ninety days after the date the matter is set for arbitration.
Any provision in this Agreement to the contrary notwithstanding, this section
shall be governed by the Federal Arbitration Act and the parties have entered
into this Agreement pursuant to such Act.
13. COSTS OF LITIGATION. In the event litigation is commenced to enforce
any of the provisions of this Agreement, or to obtain declaratory relief in
connection with any of the provisions of this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys' fees. In the event this
Agreement is asserted in any litigation as a defense to any liability, claim,
demand, action, cause of action, or right asserted in such litigation, the party
prevailing on the issue of that defense shall be entitled to recovery of
reasonable attorneys' fees.
14. PAYMENTS CONTRARY TO LAW. Anything in this Agreement to the contrary
notwithstanding, this Agreement is not intended and shall not be construed to
require any payment to Executive which would violate any federal or state
statute or regulation, including without limitation the "golden parachute
payment regulations" of the Federal Deposit Insurance Corporation codified to
Part 359 of title 12, Code of Federal Regulations.
15. AFFILIATION. A company will be deemed to be "affiliated" with Zions
Bancorp, Surviving Bank, or the Bank according to the definition of "Affiliate"
set forth in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended.
16. HEADINGS. The section and subsection headings herein have been
inserted for convenience of reference only and shall in no way modify or
restrict any of the terms or provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto executed or caused this Agreement
to be executed as of the day and year first above written.
VECTRA BANK COLORADO, NATIONAL ASSOCIATION
By: __________________________
Xxxxx X. Xxxxxxxxx
President and Chief Executive Officer
XXXX X. MARVEL
