EXECUTIVE EMPLOYMENT AGREEMENT
This
EXECUTIVE
EMPLOYMENT AGREEMENT
("Agreement") is made and entered into as of this 4th day of September, 2007,
by
and between T Bancshares, Inc., a Texas corporation with its principal office
located at 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx (hereafter the
"Company"), and Xxxxxxx Xxxxxx, a resident of Texas (hereafter the
"Executive").
WHEREAS,
the
Company has chartered a national banking association named T Bank (the “Bank”),
and
WHEREAS,
the
Executive has considerable experience, expertise and training in management
related to banking and services offered by the Company; and
WHEREAS,
the
Company desires and intends to cause the Executive to be employed as Executive
Vice President and Chief Operating Officer of the Bank pursuant to the terms
and
conditions set forth in this Agreement; and
WHEREAS,
both
the Company 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 Company agree as follows:
A.
DURATION
1. This
Agreement shall continue in full force and effect for a period beginning on
the
date (the “Effective Date”) the Executive begins his employment with the Bank
and, subject to paragraph two (2) below, will expire and terminate by its own
terms one (1) year after the Effective Date (“Expiration Date”).
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.
This Agreement shall automatically renew at the end of each one-year term 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 Date. Both parties acknowledge and agree that, in the
event this Agreement does not renew, the employment of the Executive shall
automatically terminate on the Expiration Date without any additional liability
or obligation on the part of either party, except for the provisions of
Paragraphs 12, 13, [16] and 18 which will survive the termination of this
Agreement.
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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 first year following the Effective Date, the Bank agrees to compensate
the
Executive on a salary basis of $170,000 annually, payable semi-monthly in equal
amounts.
b. Subsequent
to the first year following the original Effective Date, for the remaining
term
of this Agreement the Executive's annual salary shall be reviewed by the Bank's
Board of Directors or a delegated committee thereof as of the anniversary of
the
original Effective Date of each year of the remaining term of this Agreement
and
increased as a result of such review and to provide reasonable cost of living
adjustments, all in the discretion of the Board of Directors, and when
consistent with safe and sound banking practices.
c. During
the term of this Agreement, the Executive shall be paid a bonus of fifteen
percent (15%) of the base annual salary if the Bank has an overall CAMEL rating
by the Bank’s governmental regulators of two (2) or better during that fiscal
year. Further, during the term of this Agreement, the Executive shall be paid
a
bonus of fifteen percent (15%) of the base annual salary during any fiscal
year
the Bank has a return on average assets of one percent (1%) or higher (net
of
any such bonuses referenced in this section). Executive shall also be entitled
to participate in any benefit programs (other than bonus plans) applicable
to
all employees of the Bank or to executive officers of the Bank in accordance
with Bank policy and the provisions of said benefit programs.
d. The
Company shall grant to the Executive a number of options exercisable within
ten
(10) years from the date of the grant of such options. Such options, upon the
grant of the options, will enable the Executive to purchase 25,000 shares of
the
Company’s common stock. The exercise price for the stock options to be received
by the Executive shall be the opening per share price as quoted on the over
the
counter bulletin board on the effective date.
4. The
Bank
and the Executive acknowledge and agree that the Bank shall provide the
Executive with a relocation/signing benefit of $40,000, (the “Relocation
Benefit”) to be payable at Executive’s discretion within nine (9) months
following the Effective Date. Executive, at his discretion, may submit actual
relocation expenses to be reimbursed by the Bank including, but not necessarily
limited to, commissions and closing costs associated with the sale or
acquisition of Executive’s residence(s), moving expenses, travel expenses
incurred by Executive or his family in connection with relocating, etc.
Executive shall provide receipts or other evidence of actual expenses incurred
for re-imbursement, which re-imbursements shall be made without tax withholdings
and shall not be recorded by Bank as salary expense to the Executive. In the
event such expenses exceed the Relocation Benefit, Bank shall have no obligation
to pay such excess. Executive may elect to receive a cash payment of all or
part
of the benefit, less any amounts previously paid for expense re-imbursement,
as
a cash bonus subject to applicable taxes. The Bank and the Executive further
agree that the Bank will pay for reasonable commuting expenses required based
on
timing between the Effective Date and actual relocation. The Bank and the
Executive further acknowledge and agree that the Bank shall provide the
Executive a cellular phone and laptop computer for use in the performance of
his
duties and obligations under this Agreement. The Bank shall also 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 or other appropriate
bank officer to verify such expenses prior to any reimbursements.
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5. The
Bank
and the Executive acknowledge and agree that, subject to the provisions of
Paragraph 7 of this Agreement, the Executive shall be entitled to receive as
partial consideration for this Agreement, and the Bank shall be obligated to
provide employee and dependent health insurance, dental insurance, sick leave
and vacation, and any additional benefits provided to all Bank employees all
in
accordance with the Bank's employment policies and plans.
6. The
Bank
and the Executive acknowledge that, upon completion of the Executive’s first
year of employment following the Effective Date, the Executive's compensation
will be subject to an annual review and adjustment by the Board of Directors
of
the Bank in accordance with the terms of this Agreement, but in no event will
the Executive's salary and bonuses be less than the amounts set forth in
Paragraphs 3 and 4 at any time during the employment of the Executive
pursuant to this Agreement.
7. The
Executive acknowledges and agrees that any employee benefits provided to the
Executive by the Bank incident to the Executive's employment are 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.
C.
RESPONSIBILITIES
8. The
Executive acknowledges and agrees that he shall be employed as Executive Vice
President and Chief Operating Officer of the Bank. The Executive covenants
and
agrees that he will faithfully devote his best efforts and his primary focus
to
his positions with the Bank.
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9. The
Executive acknowledges and agrees that the duties and responsibilities of the
Executive required by his position as Executive Vice President and Chief
Operating 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 Bank's 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 Executive Vice President or Chief
Operating Officer of a financial institution.
10. 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.
11. The
Executive acknowledges and agrees that he will 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 of the
Bank.
D.
NONINTERFERENCE
12. The
Executive 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 other employees of
the
Bank, nor shall the Executive contact or communicate with any other employees
of
the Bank for the purpose of inducing other employees to terminate their
employment with the Bank. For purposes of this covenant, "other employees"
shall
refer to employees who are still actively employed by or were employed by the
Bank within the prior year, or doing business with, the Bank at the time of
the
attempted recruiting or hiring.
13. In
his
position of employment, the Executive will be provided with confidential
information and trade secrets (hereafter "Proprietary Information") pertaining
to, or arising from, the business of the Bank, and its affiliates (if any),
upon
execution of this Agreement and for the duration of Executive’s employment with
the Bank. 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,
or
used for purposes other than on behalf of the Bank. 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 that 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,
information relating to any financial information, processes, pricing, plans,
devices, compilations of information, technical data, mailing lists, methods
of
distributing, names of suppliers, and customers, arrangements entered into
with
suppliers, vendors, and customers, marketing strategies, and other trade secrets
of the Bank.
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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.
14. 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.
15. The
Executive acknowledges and agrees that in exchange for the execution of the
noninterference agreement set forth above, the Executive will receive
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; (iii) compensation and benefits as
described in this Agreement; and (iv) Severance. The Executive acknowledges
and
agrees that these four items collectively constitute fair and adequate
consideration for the execution of the noninterference agreement set forth
above.
16. In
consideration for the above-recited valuable consideration, and as a material
inducement for the Bank’s agreements herein, including the Bank’s promise to
furnish Executive with access to its Proprietary Information, the Executive
understands and agrees that during the continuation of this Agreement and for
a
period of one year following the termination of his employment with the Bank
by
either party, for whatever reason (both of which periods shall collectively
be
referred to as the ("Restricted Period")), the Executive will not directly
or
indirectly, alone or for his/her own account, or as owner, partner, investor,
member, trustee, officer, director, shareholder, employee, consultant,
distributor, advisor, representative or agent of any partnership, joint venture,
corporation, trust, or other business organization or entity, contact, solicit,
or seek to divert the business or patronage of any person, association,
corporation or other business organization or entity with whom Executive is
familiar and about whom Executive has learned Proprietary Information during
his/her employment at the Bank. It is the parties' desire that these
restrictions be enforced to the fullest extent allowed by law.
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17. It
is
hereby further agreed by the parties that if the nonsolicitation covenants
contained in this NONINTERFERENCE section should be held by any court or other
constituted legal authority to be void or otherwise unenforceable in any
particular area or jurisdiction despite those modifications outlined above,
then
the parties shall consider this Agreement to be amended and modified in that
particular area or jurisdiction so as to eliminate therefrom any part of or
the
entire covenant that the particular area or jurisdiction finds void or otherwise
unenforceable, but as to all other areas and jurisdictions covered by this
Agreement, the nonsolicitation covenants contained herein shall remain in full
force and effect as originally written.
18. If
Executive is found to have violated any of the provisions of this Section D,
Executive agrees that the restrictive period of each covenant so violated shall
be extended by a period of time equal to the period of violation by him. Nothing
in this Paragraph shall reduce or abrogate the Executive's obligations under
any
other section this Agreement.
E.
REMEDIES
19. In
the
event that the Executive violates any of the provisions set forth in this
Agreement relating to NONINTERFERENCE, the Executive acknowledges and agrees
that the Bank may suffer immediate and irreparable harm. Consequently, the
Executive acknowledges and agrees that the Bank shall be entitled to immediate
injunctive relief, either by temporary or permanent injunction, to prevent
such
a violation.
F.
TERMINATION
20. The
Executive acknowledges and agrees that the Board of Directors of the Bank
reserves the right to terminate this Executive Agreement, for any reason, by
providing the Executive with thirty (30) days' written notice of the
termination, delivered in person, or by certified U.S. mail to the Executive's
last known address reflected in the Bank's personnel records. Such notice shall
be effective upon personal delivery or three days after mailing by certified
mail. However, if the Agreement is terminated at the Bank's insistence without
Good Cause, as defined in this Agreement, the Bank covenants and agrees to
provide the Executive with the severance set
forth
in paragraph thirty (30) of this Agreement.
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21. The
Executive acknowledges and agrees that the Bank may terminate this Agreement
at
any time, without notice, for any "Good Cause" defined as the
following:
| a. |
In
the event the Executive violates any provision of this Agreement or
is
grossly negligent in the performance of his duties hereunder in the
reasonable judgment of the Board, and fails 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 of the Board of Directors of the Bank in the exercise
of its
reasonable judgment, that (i) the Executive has failed to follow the
policies adopted by the Board of Directors and fails to cure such breach
or violation within a reasonable period after written notice to Executive
by the Bank specifying in reasonable detail the alleged breach or
violation or (ii) that Executive has engaged in such actions or omissions
that would constitute unsafe or unsound banking
practices;
|
| c. |
In
the event the Executive is convicted of a felony, or a misdemeanor
involving moral turpitude;
|
| d. |
In
the event the Executive engages 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. |
In
the event a majority of the Board of Directors of the Bank determines,
in
good faith, that the Executive’s job performance is unsatisfactory as
measured against performance standards previously provided to the
Executive and mutually agreed upon, and has given the Executive written
notice of such determination which specifically enumerates the reason(s)
for such determination and a reasonable opportunity, which shall not
be
less than 180 days, to correct such unsatisfactory performance;
or
|
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| f. |
In
the event the Executive is prohibited from engaging in the business
of
banking by any governmental regulatory agency having jurisdiction over
the
Bank.
|
If
during
his employment, Executive is terminated for Good Cause or resigns his employment
for any reason other than for Good Reason (as defined below); Employee will
be
entitled only to receive base salary through the date of such termination,
pay
in lieu of any unused vacation in accordance with the Bank’s normal practice,
and any benefits to which Executive is entitled under the terms of the Bank’s
employee benefit plans and programs.
22. The
Bank
acknowledges and agrees that the Executive reserves the right to terminate
this
Agreement at any time, for any reason, with or without cause, by providing
thirty (30) days written notice, by personal delivery or certified United States
mail, to the Bank at its principal business address of the Executive's intention
to terminate this Agreement. Such notice shall be effective upon personal
delivery or three days after mailing by certified mail.
23. The
Executive acknowledges and agrees that in the event of the Executive's death,
this Agreement will terminate immediately, without notice, on the date of the
Executive's death. The Executive acknowledges and agrees that, in the event
of
his death, the Bank will pay to the Executive's estate all compensation due
and
owing through the date of the Executive's death.
24. The
Executive acknowledges and agrees that this Agreement will terminate
immediately, without notice, in the event the Executive becomes physically
or
mentally disabled, as defined by 29 C.F.R. § 1630.2(g)(1), and cannot
perform the essential functions of his position, with or without reasonable
accommodation for the period designated by the Executive's disability insurance
after which disability payments will begin.
25. The
Executive acknowledges and agrees that in the event of termination of this
Agreement, for whatever reason, whether at the insistence of the Executive
or at
the insistence of the Bank, the Executive will return to the Bank within
seventy-two (72) hours of the time when notice of termination is communicated
by
either party, or sooner if requested by the Bank, any and all equipment,
literature, documents, data, information, order forms, memoranda,
correspondence, customer and prospective customer lists, customer's orders,
records, cards or notes acquired, compiled or coming into the Executive's
knowledge, possession or control in connection with his activities as an
employee of the Bank, as well as all machines, parts, equipment or other
materials received from the Bank or from any of its customers, agents or
suppliers, in connection with such activities.
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G.
CHANGE
IN CONTROL
26. The
parties acknowledge that the Executive has agreed to assume the position of
Executive Vice President and Chief Operating Officer and to enter into this
Agreement based on his confidence in the current owners of the Bank and the
direction of the Bank provided by the current Board of Directors. If the Bank
should undergo a "Change of Control," as defined below, then the Executive,
may
be entitled to certain compensation and benefits under the following
circumstances. If,
during the term: (i) Executive voluntarily terminates his employment with the
Company (or its successor) after a minimum of six (6) months following a Change
in Control (as defined below), or (ii) Executive’s employment is terminated by
the Company (or its successor) without Good Cause, or Employee terminates his
employment for Good Reason (as defined below), in either case within twenty-four
(24) months following a Change in Control, Employee shall be entitled to receive
the compensation and benefits described in this Section. Executive shall notify
the Bank of such election by personal delivery or certified U.S. mail, that
he
intends to terminate this Agreement based upon the Change of Control. Notice
of
termination shall be effective upon delivery or three (3) days after mailing
by
certified mail.
27. In
the
event that the Executive elects to terminate this Agreement based upon a Change
in Control, the Bank agrees and acknowledges that the Executive (or his
Beneficiaries, if applicable) shall have the right to receive a cash lump sum
payment equal to 99% of his Base Amount as defined in Section 280G(b)(3) of
the
Internal Revenue Code of 1986, as amended (“Code”) paid by the Bank upon a
“Triggering Termination,” which shall mean the Executive’s termination of
employment with the Bank on or within two (2) years after a Change in Control.
The Bank shall make payment within thirty (30) days of the Triggering
Termination date. In the event that the Executive is entitled to any payment
under Section H, no payment shall be due under this Section G.
Notwithstanding
any provision of this Agreement to the contrary, the Bank shall not be required
to pay any benefit under this Agreement if, upon the advice of counsel, the
Bank
determines that the payment of such benefit, when aggregated with payments
the
Executive receives under other agreements, would be prohibited
by
12
C.F.R.
Part 359 or any successor regulations regarding employee compensation
promulgated by any regulatory agency having jurisdiction over the Bank or its
affiliates, or to the extent any benefit would be a non-deductible excess
parachute payment under Section 280G of the Code, or create an excise tax under
the excess parachute rules of Sections 280G and 4999 of the Code. To the extent
possible, the Bank shall reduce the benefit paid under this Agreement to the
maximum benefit that would be deductible and would not result in any such excise
tax.
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28. As
used
in this Agreement, a "Change of Control" shall be deemed to have occurred in
any
of the following instances:
|
a.
|
the
Company or the Bank is merged or consolidated with another corporation
and
as a result of such merger or consolidation less than fifty percent
(50%)
of the outstanding voting securities (on a fully diluted basis) of
the
surviving or resulting corporation are owned in the aggregate by
the
former shareholders of the Company;
|
| b. |
the
Company or the Bank sells all or substantially all of its assets to
another corporation;
|
| c. |
(i)
any person or group within the meaning of the Securities Exchange Act
of
1934, as amended (the “Securities Exchange Act”), including without
limitation existing shareholders of the Company, acquires or otherwise
becomes the owner of fifty percent (50%) or more of the outstanding
voting
securities of the Company and (ii) if such Person causes, encourages
or
otherwise provides for an employee, officer, representative or agent
of
such Person to be elected to the Board.;
or
|
Notwithstanding
the foregoing, a Change in Control shall not be deemed to have occurred if
a
Person (as defined by the Securities Exchange Act) becomes a beneficial owner,
directly or indirectly, of securities representing fifty percent (50%) or more
of the combined voting power of the Company’s then outstanding securities solely
as a result of an acquisition by the Company of its own voting securities which,
by reducing the number of shares outstanding, increases the proportionate number
of shares beneficially owned by such Person.
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| d. |
During
any period of two consecutive years, individuals who, at the beginning
of
such period constituted the members of the Board of Directors of the
Bank,
cease for any reason to constitute at least a majority of such Board
of
Directors., unless the election, or the nomination for election by
the
Company’s shareholders, of each new Director was approved by a vote of at
least two-thirds of the Directors still in office who were Directors
at
the beginning of the period; provided, however, that no individual
shall
be considered a member of the Board of Directors of the Company at
the
beginning of such period if such individual initially assumed office
as
the result of either an actual or threatened election contest or proxy
contest.
|
Furthermore,
notwithstanding anything contained herein to the contrary, if the 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 in Control and who effects a
Change in Control, or such termination otherwise occurred in connection with,
or
in anticipation of, a Change in Control which actually occurs, then for all
purposes hereof, a Change in Control shall be deemed to have occurred on the
day
immediately prior to the date of such termination of his
employment.
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29. For
purposes of this Agreement, “Good Reason” shall mean any one or more of the
following occurrences: (i) Executive’s base salary or bonus structure as defined
in 3.c. of this Agreement or as it may be increased subsequent to the Effective
Date, is reduced; (ii) Executive’s status or responsibilities with the Bank are
materially reduced, or Executive is assigned duties which are inconsistent
with
such status or responsibilities, or Executive’s business location is materially
changed; (iii) the Bank (or its successor) fails to continue in effect any
pension, health care or executive compensation plan or arrangement in which
Executive was participating, or the Bank (or their successors) takes some action
which materially reduces Executive’s benefits under any such plan or program,
without (in either such case) providing Executive with substantially similar
benefits; or (iv) any successor to the Bank in connection with a Change in
Control does not, prior to the Change in Control, expressly assume this
Agreement.
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X.
XXXXXXXXX
30. The
Executive and the Bank acknowledge and agree that, if the Bank terminates
Executive’s employment at any time for any reason other than Good Cause, as
defined in this Agreement, or Executive terminates his employment for Good
Reason, as defined above, the Executive shall be entitled to severance pay
to be
paid in accordance with the normal payroll procedure of the Bank. Such severance
pay shall be equal to the base salary that would have been due the Executive
had
he remained employed for the remaining term of this Agreement, but in no event
less than one year’s base salary. In the event that the Executive is entitled to
any payment under Section G, no payment shall be due under this Section H.
I.
SEVERABILITY
31. The
Executive acknowledges and agrees that each covenant and/or provision of this
Agreement shall be enforceable independently of every other covenant and/or
provision. Furthermore, the Executive acknowledges and agrees that, in the
event
any covenant and/or provision of this Agreement is determined to be
unenforceable for any reason, the remaining covenants and/or provisions will
remain effective, binding and enforceable.
J.
WAIVER
32. The
parties acknowledge and agree that the failure of either 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
33. 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.
34. 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.
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L.
CHOICE
OF LAW
35. Both
parties acknowledge and agree that the law of the state of Texas will govern
the
validity, interpretation and effect of this Agreement, and any other dispute
relating to, or arising out of, the employment relationship between the Bank
and
the Executive.
M.
MODIFICATION
36. Both
parties acknowledge and agree that this Agreement and the stock option plan
and
stock grants set forth in Paragraph 3.f. of this Agreement constitute the
complete and entire agreement between the parties regarding the employment
of
Executive; that the parties have executed this Agreement based upon the express
terms and provisions set forth herein; that the parties have 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.
37. Both
parties acknowledge and agree that the covenants and/or provisions of this
Agreement may not be modified by any subsequent agreement unless the modifying
agreement; (i) is in writing; (ii) contains an express provision
referencing this Agreement; (iii) is signed by the Executive; and
(iv) is approved by a disinterested majority of the Board of Directors of
the Bank.
N.
INDEMNIFICATION
38. During
the term of this Agreement, the Company and 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, the National Banking Act, Article 2.02-1
of the Texas Business Corporation Act, the Company’s Articles of Incorporation,
and the Bank's Articles of Association, and may purchase such indemnification
insurance as the Board of Directors may from time to time
determine.
O.
ARBITRATION
39. 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 section of this
Agreement. These provisions shall be enforceable by any court of competent
jurisdiction and shall not be subject to this section 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.
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P.
LEGAL
CONSULTATION
40. The
Executive and the Company acknowledge and agree that both parties have been
accorded a reasonable opportunity to review this Agreement with legal counsel
prior to executing the agreement.
Q.
MISCELLANEOUS
41. 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.
42. 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.
43. 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.
44. 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.
15
R.
NOTICES
45. Any
and
all notices of documents or other notices required to be delivered under the
terms of this Agreement shall be addressed to each party as
follows:
EXECUTIVE:
Xxxxxxx
Xxxxxx
COMPANY:
T
Bancshares, Inc.
President
00000
Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
16
EXECUTED
ON THIS DATE FIRST WRITTEN ABOVE IN DALLAS, TEXAS.
|
“EXECUTIVE”
|
||
|
WITNESS
|
Xxxxxxx
Xxxxxx
|
|
|
“COMPANY”
|
||
|
T
BANCSHARES, INC.
|
||
|
WITNESS
|
President
|
