EMPLOYMENT AGREEMENT
This
EMPLOYMENT
AGREEMENT
(this
“Agreement”)
is
made and entered into as of this 5th day of April, 2006, by and between
Intercontinental National Bank, a national bank chartered under the laws of
the
United States (the “Bank”),
Intercontinental Bank Shares Corporation, a Texas corporation (the “Company”),
and
Xxxxxx X. Xxxxxxxxx, a resident of Texas (the “Executive”).
WHEREAS,
Coastal
Bancshares Acquisition Corp., a Delaware corporation (“Coastal”),
Coastal
Merger Corp., a Texas corporation and wholly-owned subsidiary of Coastal
(“Merger
Sub”),
and
the Company, have entered into that certain Agreement and Plan of Merger, dated
as of April 5, 2006 (the “Merger
Agreement”),
pursuant to which Merger Sub will merge with and into the Company and the
separate corporate existence of Merger Sub will cease (the “Merger”);
WHEREAS,
the
Executive has considerable experience, expertise and training in management
related to banking and services offered by the Bank;
WHEREAS,
the
Bank and the Company desire and intend to cause the Executive to be employed
as
President of the San Antonio Division of the Bank pursuant to the terms and
conditions set forth in this Agreement; and
WHEREAS,
both
the Bank, 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 Bank agree as follows:
DURATION
1. This
Agreement shall continue in full force and effect for a period (the
“Term”)
beginning on the date the Merger is consummated (the “Effective
Date”),
and
will expire and terminate by its own terms on the third anniversary of the
consummation of the Merger (the “Expiration
Date”),
unless either party elects to terminate this Agreement prior to the Expiration
Date, in accordance with the TERMINATION
provisions
set forth below.
2. Both
the
Bank and the Executive acknowledge and agree that, subsequent to the Expiration
Date, the parties may agree to continue the employment relationship upon such
terms as they may mutually agree. However, both parties acknowledge and agree
that, in the event they fail to agree upon terms for the continuation of the
Executive’s employment subsequent to the Expiration Date, this Agreement shall
automatically terminate on the Expiration Date without any additional liability
or obligation on the part of either party, and the Executive shall become an
employee at-will.
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. For
the
Term of this Agreement, the Executive will receive a salary of $181,000 annually
(the “Base
Salary”),
payable in installments in accordance with the Bank’s payroll policies in effect
from time to time during the term of this Agreement.
b. In
addition to the Base Salary, the Executive shall receive a discretionary
employee bonus targeted at up to forty percent (40%) of the Base Salary if
all bonus targets are met in full; provided,
however,
that
the Compensation Committee of the Board of Directors of the Bank (the
“Compensation
Committee”)
shall
have the sole discretion to determine the discretionary bonus formula and when
bonuses will be paid thereunder.
c. (i) The
Company shall grant to the Executive, on the Effective Date, a number of stock
options exercisable within eight (8) years from the date of the grant of such
options. Such options will enable the Executive to purchase seventy-five
thousand (75,000) shares of Company common stock (“Company
Stock”).
The
exercise price for such stock options shall be equal to the fair market value
of
the Company Stock on the date of such grant. Such options will vest ratably
over
a period of four (4) years and the terms of the stock option plan under which
such options are granted shall control in the event of any conflict with the
terms of this Agreement.
(ii) The
Company shall issue to the Executive, on the Effective Date twenty-five thousand
(25,000) shares of Company Stock pursuant to the terms of a Restricted Stock
Agreement substantially in the form attached hereto as Exhibit
A.
Such
agreement shall provide that such shares shall vest one-third (⅓) on each of the
first three years’ anniversaries from the date of grant and the terms of the
incentive plan under which such shares are issued shall control in the event
of
any conflict with the terms of this Agreement.
d. In
addition to the compensation provided in this section, during the Term of this
Agreement, the Executive shall be entitled to participate in all fringe benefit
programs and plans established by the Bank for its employees, including medical
insurance, life insurance, pension and retirement programs, vacation pay,
company-paid holidays, and other similar benefits, if any. Subject to the
provisions of Section
3(e)
below,
the Bank reserves the right to modify, amend, or eliminate any of the
Executive’s benefits without his prior approval, as long as all
similarly-situated employees are treated similarly. The Executive’s entitlement
to participate in fringe benefit programs and plans established by the Bank
shall be governed by terms and conditions set forth in such plans.
e. During
the Term of this Agreement, the Bank shall (1) pay for a term life insurance
policy on the life of the Executive with a death benefit payable to Executive’s
designee of up to $1,000,000, (2) pay for club dues and membership costs of
the
Executive that the Bank was paying for on the date of the execution of the
Merger Agreement, up to a maximum amount of $10,000 per year, (3) pay for kidnap
insurance for the Executive in the amount of $500,000, and (4) provide for
the
ability of the executive to purchase first class air tickets on business trips
of the Executive to Mexico if upgrades to first class are not available for
any
particular business trip.
2
f. Both
the
Bank and the Executive acknowledge that such compensation and the other
covenants and agreements of the Bank contained herein are fair and adequate
compensation for the Executive’s services, and for the mutual promises described
below.
4. The
Bank
and the Executive acknowledge that, during the Term of this Agreement, the
Executive’s compensation will be subject to an annual review and annual
increase, consistent with safe and sound banking practices, and in the
discretion of the Compensation Committee.
5. 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.
RESPONSIBILITIES
6. The
Executive acknowledges and agrees that he shall be employed as President of
the
San Antonio Division of the Bank and as an Executive Vice President of the
Bank.
The Executive covenants and agrees that he will faithfully devote his best
efforts and his full-time focus to his positions with the Bank, except that
the
Executive may serve on up to three (3) civic or charitable boards.
7.
a. During
the Term of this Agreement, the Executive shall serve as President of the San
Antonio Division of the Bank. During the Term of this Agreement, subject to
the
supervision and control of the Board of Directors of the Bank, the Executive
shall perform the duties and have the powers and authority which are consistent
with and generally of the nature of the duties and the authority ordinarily
and
customarily delegated and granted to an employee in a similar position, and
the
Executive shall perform such other duties and have such other powers and
authority as may be prescribed by the Board of Directors of the Bank from time
to time. Any such other duties, powers and authority shall be consistent with
the Executive’s position and shall not violate any federal, state or local laws
or regulations. The Executive shall comply with all policies adopted from time
to time by the Bank.
b. Notwithstanding
the provisions of Section 7(a)
above,
but subject to the provisions of Section
13,
the
duties and responsibilities of the Executive may be changed or modified from
time to time by the Bank at the Bank’s sole discretion. Upon changes or
modifications to the Executive’s
duties
and responsibilities, the Executive’s employment with the Bank shall continue to
be governed by the terms of this Agreement.
8. 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 knowingly
engage in any activity during the Term of this Agreement which will or could,
in
any material way, harm the business, business interests, or reputation of the
Bank.
3
NONINTERFERENCE
9.
a. The
Executive acknowledges and agrees that he will not, at any time during the
Term
of this Agreement and (i) for the periods set out on Exhibit B
attached
hereto following the termination of this Agreement by the Bank for Good Cause
or
Executive’s termination of this Agreement for any reason other than for
Constructive Termination, and (ii) for the one (1) year period following
the termination of this Agreement by the Bank for any reason other than for
Good
Cause or the termination of this Agreement by the Executive as a result of
a
Constructive Termination (the periods set out in clauses
(i)
and
(ii)
above
being referred to as the “US
Restrictive Period”),
directly or indirectly, engage in competition with the Bank within the
geographic boundaries of Bexar County and the counties contiguous with it,
and
the Executive will not on his own behalf, or as another’s agent, employee,
partner, shareholder or otherwise, engage, within the geographic boundaries
of
Bexar County and the counties contiguous with it, in any of the same or similar
duties and/or responsibilities required by the Executive’s positions 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.
b. (i)
The
Executive acknowledges and agrees that he will not, at any time during the
Term
of this Agreement and for the first (1st)
year
following the termination of this Agreement by the Bank or the Executive for
any
reason, directly or indirectly, engage in competition with the Bank within
the
geographic boundaries of the United Mexican States, on his own behalf, or as
another’s agent, employee, partner, shareholder or otherwise, including, without
limitation, by soliciting or attempting to solicit customers of the Bank or
any
of their affiliates, or soliciting or attempting to solicit persons or entities
(or any of their affiliates) that are not customers of the Bank, but that have
been customers of the Bank or that are prospective customers of the Bank, or
engage in any of the same or similar duties and/or responsibilities required
by
the Executive’s positions 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.
(ii) The
Executive acknowledges and agrees that he will not, at any time during the
Term
of this Agreement and for the second (2nd)
and
third (3rd)
years
(each of the periods in clauses
(i),
and
(ii),
together with the US Restrictive Period, collectively referred to as the
“Restrictive
Period”)
following the termination of this Agreement by the Bank for Good Cause or the
Executive’s termination of this Agreement for any reason other than Constructive
termination, directly or indirectly, (x) within a fifty (50) mile radius of
those cities within the United Mexican States where the Bank has customers,
or
has previously had customers, engage in competition with the Bank, and, on
his
own behalf, or as another’s agent, employee, partner, shareholder or otherwise,
engage in any of the same or similar duties and/or responsibilities required
by
the Executive’s positions 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, or (y) within the geographic boundaries of the United
Mexican States, solicit or attempt to solicit customers of the Bank or any
of
their affiliates, or solicit or attempt to solicit persons or entities (or
any
of their affiliates) that are not customers of the Bank, but that have been
customers of the Bank or that were, as of the date of the termination of this
Agreement, prospective customers of the Bank previously solicited by the
Executive or that the Executive was aware of (based upon written records) have
been previously solicited by the Bank; provided, however, that sub-clause
(x)
of this
clause
(ii)
shall
not apply in the third (3rd)
year,
if any, of the Restrictive Period. The parties acknowledge and agree that the
enumeration of the items in clause
(y)
of this
Section is not intended to imply that such activities are not competitive with
the Bank for purposes of clause
(x)
of this
Section, but are enumerated for the convenience of the parties.
4
c. The
Executive also covenants and agrees that during the Restrictive Period, the
Executive shall not: (i) recruit, hire, or attempt to recruit or hire,
directly or by assisting others, any other employees or independent
representatives of the Bank (for purposes of this covenant, “other employees”
shall refer to employees who are still actively employed by, or doing business
with, the Bank at the time of the attempted recruiting or hiring), nor shall
the
Executive contact or communicate with any other employees or independent
representatives of the Bank for the purpose of inducing other employees or
independent representatives to terminate their employment or relationship with
the Bank; or (ii) solicit, directly or by assisting others, the banking
business of any customers of the Bank as of the date of such termination.
Notwithstanding
the preceding, with respect to independent representatives who conduct business
in Mexico, the Executive shall continue to be entitled to communicate and
conduct business with such independent representatives after the
first
(1st)
year
following the termination of this Agreement, provided
that such communication or business complies with the Restrictions set
forth in clause
(b)(ii)
of this
Section.
d. 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 Bank, including, without
limitation, 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 (the “Confidential
Information”);
(ii) employment; and (iii) compensation and benefits as described in
this Agreement. The Executive acknowledges and agrees that this constitutes
fair
and adequate consideration for the execution of the noninterference agreement
set forth above.
REMEDIES
10. 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 and without the necessity of posting a bond or proving
actual damages, to prevent such a violation.
TERMINATION
11. The
Executive acknowledges and agrees that the Board of Directors of the Bank
reserves the right to terminate this Agreement, for any reason, by providing
the
Executive with 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 (3) 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 Section 17
of this
Agreement.
5
12. The
Executive acknowledges and agrees that the Bank may terminate this Agreement
at
any time, without notice, for “Good
Cause,”
which
is defined as the following:
a. conviction
of, or a plea of nolo
contendere,
by the
Executive to a felony or to fraud, embezzlement or misappropriation of funds;
b. the
commission by the Executive of a fraudulent act or insider abuse with regard
to
the Bank;
c. a
knowing
omission, breach of trust or fiduciary duty by the Executive;
d. substantial
and direct responsibility by the Executive for the insolvency of, the
appointment of a conservator or receiver for, or the troubled condition, as
defined by applicable regulations of the appropriate federal banking agency,
of
the Bank;
e. a
material violation by the Executive of any applicable federal banking law or
regulation that has had a material adverse effect on the Bank;
f. the
Executive’s intentional violation or conspiracy to violate section 215,
656, 657, 1005, 1006, 1007, 1014, 1032, or 1344 of title 18 of the United States
Code, or section 1341 or 1343 of such title affecting a federally insured
financial institution as defined in title 18 of the United States
Code;
g. the
willful failure by the Executive to adhere to the Bank’s written policies, which
causes a material monetary injury or other material harm to the
Bank;
h. the
willful failure by the Executive to substantially perform material stated duties
of the position with the Bank;
i. the
removal or suspension from the performance of duties of the Executive by any
bank regulatory authority;
j. appointment
of a conservator or receiver for the Bank by applicable bank regulatory
authorities as a result of the Executive’s misconduct;
k. the
declaration by federal bank regulators that the Bank is in a “troubled
condition” as a result of the Executive’s misconduct, and while the Bank is in
such a “troubled condition” as a result of the Executive’s misconduct, the Bank
engages in a Change in Control transaction; or
l. the
receipt by the Bank of a formal written administrative action or cease and
desist order issued by a federal bank regulator, which formal action or order
resulted from the Executive’s misconduct.
6
Notwithstanding
the foregoing, the Executive shall not be deemed to have been terminated by
reason of violating Section 12(b),
(c),
(e),
(g),
or
(h)
until
the Executive is notified in writing by the Bank (or its successor entity)
of a
determination by the Bank of a violation of Section 12(b),
(c),
(e),
(g),
or
(h),
specifying the particulars thereof in reasonably sufficient detail, and giving
the Executive a reasonable opportunity (of not less than thirty (30) days),
together with counsel, to explain to the Bank why there has been no violation
of
Section 12(b),
(c),
(e),
(g),
or
(h),
followed by a finding by the Bank, to be detailed in writing within a Notice
of
Termination, (1) that in the good faith opinion of the Bank (or its
successor entity) the Executive has committed an act described in Section 12(b),
(c),
(e),
(g),
or
(h)
above,
(2) specifying the particulars thereof in detail, and (3) determining
in good faith that such violation has not been corrected, or is not capable
of
correction. Nothing herein shall limit the Executive’s right to contest the
validity or propriety of any such determination.
13. 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 (3) days after mailing by certified mail. In the
event that the Executive does so because of a Constructive Termination (as
defined in this Agreement), the Bank covenants and agrees to provide the
Executive with the SEVERANCE
set
forth below in this Agreement.
“Constructive
Termination”
shall
mean the Bank, without the prior written consent of the Executive:
a. materially
and adversely changes the Executive’s duties, responsibilities and status with
the Bank, or materially and adversely changes the Executives’ reporting
responsibilities, titles or offices, or removes the Executive from or fails
to
re-elect the Executive to, any of such positions, except in connection with
the
Executives’ termination for “Good Cause” or disability, or as a result of the
Executive’s death;
b. reduces
the Executive’s base compensation benefits as in effect on the Effective Date or
as the same may be increased from time to time, other than as part of a
reduction applicable generally to all or substantially all of the Bank’s
executive employees, or when base compensation benefits are replaced by other
compensation or benefits of equal or greater value; or
c. acts,
or
fails to act, in a manner that adversely affects the Executive’s participation
in, or materially reduces, in the aggregate, the Executive’s benefits under,
employee benefit and compensation plans, other than as part of a reduction
applicable generally to all or substantially all of the Bank’s executive
employees, or when the Executive’s benefits and/or base compensation benefits
are replaced by base compensation benefits of equal or greater
value.
Notwithstanding
the foregoing, the Executive shall not be deemed to have incurred a
“constructive termination” of employment unless the Executive first shall have
notified the Board in writing that the Executive has incurred a “constructive
termination” of employment, specifying the particulars thereof in reasonably
sufficient detail, and giving the Bank a reasonable opportunity (of not less
than thirty (30) days), together with its counsel, to explain to the
Executive that the Executive has not incurred a “constructive termination” of
employment, such finding to be detailed to the Executive in writing, or to
cure
such constructive termination.
7
14. 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.
15. 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.
16. 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 two
(2)
business days of the time when notice of termination is communicated by either
party, 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.
SEVERANCE
17. The
Executive and the Bank acknowledge and agree that, if the Bank elects to
terminate this Agreement at any time prior to the Expiration Date for any reason
other than “Good Cause,” as defined in this Agreement or the Executive
terminates this Agreement because of a Constructive Termination, the Executive
shall be entitled to severance pay. Such severance pay shall be equal to
$181,000, or the equivalent of the Executive’s then current annual salary,
whichever is greater, less statutory payroll deductions, payable over a
twelve (12) month period in accordance with the Bank’s ordinary payroll
policies and procedures, beginning on the date that the notice of termination
becomes effective (the “Termination
Date”).
In
addition, the Executive shall be entitled to participate in the medical
insurance benefits of the Bank, effective on the Termination Date, for a period
of twelve (12) months beginning on the Termination Date. The Executive’s
entitlement to any severance pay under this Agreement is strictly contingent
on the Executive complying with the terms of the restrictive covenants set
out
in Section 9
and
Section
28
of this
Agreement, and any material breach by the Executive of the terms of the
restrictive covenants set out in Section 9
or
Section
28
shall
allow the Bank to immediately cease payment of any installments of such
severance pay not yet paid at the time of the breach, and Bank shall have no
further obligations to the Executive. This remedy is in addition to others
available to the Bank under law or as provided in this Agreement for any breach
of the restrictive covenants contained herein. Any termination of severance
pay
pursuant to the above provisions shall not be interpreted to limit or alter
the
scope or duration of the Executive’s obligations pursuant to Section 9.
8
SEVERABILITY
18. 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.
WAIVER
19. 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.
SUCCESSORS
AND ASSIGNS
20. 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.
21. 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.
CHOICE
OF LAW
22. Both
parties acknowledge and agree that the law 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.
MODIFICATION
23. Both
parties acknowledge and agree that this Agreement and the stock option plan
and
stock grants set forth in Section 3(c)
of this
Agreement constitute the complete and entire agreement between the parties;
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.
9
24. 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; (a) is in writing; (b) contains an express provision
referencing this Agreement; (c) is signed by the Executive; and (d) is
approved by a majority of the Board of Directors of the Bank.
INDEMNIFICATION
25. 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 Bank’s Articles of
Incorporation, and may purchase such indemnification insurance as the Board
of
Directors may from time to time determine.
LEGAL
CONSULTATION
26. The
Executive and the Bank acknowledge and agree that both parties have been
accorded a reasonable opportunity to review this Agreement with legal counsel
prior to executing the agreement.
NOTICES
27. 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:
Xxxxxx
X.
Xxxxxxxxx
000
Xxxxxxxx Xxxxx Xxxx
Xxx
Xxxxxxx, Xxxxx 00000
BANK:
Intercontinental
National Bank
000
Xxxxxxxx Xxxxx Xxxx
Xxx
Xxxxxxx, Xxxxx 00000
CONFIDENTIALITY
28. The
Executive acknowledges that he will have access, during the course of service
to
the Bank, to Confidential Information and products of the Bank. The Executive
acknowledges that all Confidential Information provided to the Executive is
provided in confidence and trust and that the Bank’s maintenance of the
confidentiality of its proprietary Confidential Information to the fullest
extent possible is extremely important. The Executive agrees not to use,
disclose, disseminate or otherwise make available to any third party, either
directly or indirectly, any Confidential Information at any time or in any
manner, except as expressly authorized in writing by the Bank. The Executive
agrees to take all reasonable precautions to prevent inadvertent or other
disclosure, use or transfer of any of the Confidential Information. The
provisions of this Section
28
shall
survive the termination of this Agreement.
10
THIRD
PARTY BENEFICIARY
29. Coastal
is intended to be a third party beneficiary of this Agreement. This Agreement
will not be terminated or amended, or any provision hereof waived, without
the
express written consent of Coastal.
11
EXECUTED
ON THIS 5th day of April, 2006, in San Antonio, Texas.
|
EXECUTIVE:
|
||||
|
|
/s/
Xxxxxx X. Xxxxxxxxx
|
|||
|
WITNESS
|
Xxxxxx
X. Xxxxxxxxx
|
|
BANK:
INTERCONTINENTAL
NATIONAL BANK
|
||||
|
By:
|
/s/
Xxxxx X. Xxxxxx
|
|||
|
WITNESS
|
Name:
Xxxxx
X. Xxxxxx
Title:
Secretary
|
|||
|
COMPANY:
INTERCONTINENTAL
BANK SHARES CORPORATION
|
||||
|
By:
|
/s/
Xxxxx X. Xxxxxx
|
|||
|
WITNESS
|
Name:
Xxxxx
X. Xxxxxx
Title:
Secretary
|
|||
[Signature
Page to Xxxxxx X. Xxxxxxxxx Employment Agreement]
EXHIBIT
A
Restricted
Stock Agreement
This
RESTRICTED
STOCK AGREEMENT
(“Agreement”),
is by
and between Xxxxxx X. Xxxxxxxxx residing
at ______________, _______ (the
“Recipient”),
and
Coastal Bancshares Acquisition Corp., a Delaware corporation (the “Company”),
which
parties, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, agree as follows:
1. Introduction.
The
Recipient is an employee of the Company, and the Company and the Recipient
have
entered into an employment agreement (the “Employment
Agreement”)
which
sets forth the terms and conditions of the employment relationship between
the
Company and the Employee. The Company has determined to issue shares of its
common stock, par value $.01 per share (the “Common
Stock”),
to
certain of its key employees, including the Recipient, in order to aid in
securing and retaining the employment of such employees, and to provide
additional incentive to such employees to exert their best efforts on behalf
of
the Company. Capitalized terms not otherwise defined herein shall be defined
as
set forth in the Employment Agreement.
2. Grant
of Stock.
In
accordance with and subject to the terms, conditions, and restrictions contained
in this Agreement, the Company hereby grants to the Recipient 25,000 shares
(the
“Shares”)
of the
Common Stock, effective as of ______________ (the “Date
of Grant”).
As
long as the Shares are subject to the Restrictions (as such term is defined
in
Section
5
of this
Agreement), the Shares shall be deemed to be, and are referred to in this
Agreement as “Restricted
Shares.”
3. Certificates
for Shares.
Certificates evidencing Restricted Shares shall be deposited with the Company
to
be held in escrow until such Shares are released from the Restrictions
(“Non-Restricted
Shares”)
or are
forfeited in accordance with this Agreement. The Recipient shall, simultaneously
with the execution and delivery of this Agreement, deliver to the Company a
stock power, in blank, executed by the Recipient. Upon any Restricted Shares
becoming Non-Restricted Shares, the Company shall issue and deliver to the
Recipient a stock certificate or certificates evidencing the Non-Restricted
Shares, and shall reissue a stock certificate or certificates evidencing any
remaining Restricted Shares to be held in escrow in accordance with the terms
of
this Agreement. If any Restricted Shares are forfeited, the certificate or
certificates evidencing any such Restricted Shares shall be cancelled and the
Shares represented thereby shall be returned to the Company’s
treasury.
4. Adjustments
in Restricted Shares.
In the
event of any change in the outstanding Common Stock by reason of a stock
dividend or distribution, recapitalization, merger, consolidation, split-up,
combination, exchange of shares or the like, the Company shall make equitable
adjustments in the Shares corresponding to adjustments made by the Company
in
the number and class of shares of Common Stock. Any new, additional, or
different securities to which the Recipient shall be entitled in respect of
Restricted Shares by reason of such adjustment shall be deemed to be Restricted
Shares and shall be subject to the same terms, conditions, and restrictions
as
the Restricted Shares so adjusted.
5. Restrictions.
During
applicable periods of restriction determined in accordance with Section
6
of this
Agreement, Restricted Shares and all rights with respect to such Shares, may
not
be sold, assigned, transferred, exchanged, pledged, hypothecated, or otherwise
encumbered or disposed of and shall be subject to the risk of forfeiture
contained in Section
6
of this
Agreement (such limitations on transferability and risk of forfeiture being
herein referred to as “Restrictions”),
but
the Recipient shall have all other rights of a stockholder, including, but
not
limited to, the right to vote and receive dividends on Restricted
Shares.
6. Forfeiture
of Restricted Shares.
In the
event that the Recipient’s employment with the Company terminates for Good Cause
or as a result of the termination by the Recipient for any reason other than
a
Constructive Termination, such event shall constitute an “Event
of Forfeiture”
and
all
Shares which at that time are Restricted Shares shall thereupon be forfeited
by
the Recipient to the Company without payment of any consideration by the
Company, and neither the Recipient nor any successor, heir, assign, or personal
representative of the Recipient shall have any right, title, or interest in
or
to such Restricted Shares or the certificates evidencing them.
7. Lapse
of Restrictions.
The
Restrictions on the Restricted Shares granted under this Agreement shall lapse
ratably in accordance with the following schedule: (1) thirty-three and
one-third percent (33-1/3%) upon the twelve-month anniversary of the Date of
Grant; (2) thirty-three and one-third percent (33-1/3%) upon the
twenty-four-month anniversary of the Date of Grant; and (3) thirty-three and
one-third percent (33-1/3%) upon the thirty-six-month anniversary of the Date
of
Grant. In the event of a Change of Control the Restrictions shall lapse on
all
of the Restricted Shares (if not already lapsed pursuant to the preceding
sentence).
8. Withholding
Requirements.
Whenever Restrictions lapse with respect to Restricted Shares, the Company
shall
have the right to withhold from sums due to the Recipient (or to require the
Recipient to remit to the Company) an amount sufficient to satisfy any Federal,
state or local withholding tax requirements prior to delivering any certificate
evidencing such Shares.
9. Change
in Control.
Notwithstanding any other provision of this Agreement, upon any Change in
Control, as defined below, the Restrictions with respect to any Restricted
Shares shall lapse and such Restricted Shares shall become Non-Restricted Shares
upon the effective date of the Change of Control. For purposes of this
Agreement, a “Change
in Control”
of
the
Company shall be deemed to have occurred if: (a) any person, as such term is
used in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934,
as amended, becomes a beneficial owner (within the meaning of Rule 13d-3 under
such Act) of fifty percent (50%) or more of the Company’s outstanding Common
Stock; or (b) the Company is merged, consolidated, or reorganized into or with,
or sells all or substantially all of its assets to, another corporation or
other
entity, and immediately after such transaction less than fifty percent (50%)
of
the voting power of the then-outstanding securities of such corporation or
other
entity immediately after such transaction is held in the aggregate by holders
of
the Company’s Common Stock immediately before such transaction.
2
10. Effect
of Employment.
Nothing
contained in this Agreement shall confer upon the Recipient the right to
continue in the employment of the Company or affect any right that the Company
may have to terminate the employment of the Recipient.
11. Notices.
All
notices and other communications under this Agreement shall be in writing.
Notices shall be hand delivered or sent by United States mail, postage prepaid,
certified or registered mail, return receipt requested, or by internationally
recognized courier service. Any notice so delivered or sent shall be deemed
given on the date of the receipt or first attempted delivery. Notices shall
be
sent to the following addresses:
|
To
the Company:
|
|
|
0000
Xxxx Xxxxxx
|
|
|
Xxxxxxx,
Xxxxx 00000
|
|
|
Attn:
Chief Executive Officer
|
|
|
cc:
|
Jenkens
& Xxxxxxxxx, P.C.
|
|
0000
Xxxx Xxxxxx, Xxxxx 0000
|
|
|
Xxxxxx,
Xxxxx 00000
|
|
|
Attn:
Xxxxxxx X. Xxxxxxx, Esq.
|
|
|
To
the Recipient:
|
000
Xxxxxxxx Xxxxx Xxxx
|
|
Xxx
Xxxxxxx, Xxxxx 00000
|
Either
party may designate a different address by giving the new address to the other
party.
12. Severability.
Each
provision of this Agreement shall be interpreted in such a manner so as to
be
valid under applicable law. If any provision of this Agreement shall be invalid
under applicable law, such provision shall be ineffective to the extent of
such
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
13. Entire
Agreement.
The
parties acknowledge that there are no written or oral agreements between the
Recipient and the Company regarding the subject matter hereof other than this
Agreement. This Agreement may not be amended or supplemented except by written
instrument executed by the parties.
14. Assignment.
This
Agreement may not be assigned by the Recipient. This Agreement may not be
assigned by the Company without the prior written consent of the
Recipient.
15. Construction.
The
headings in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Whenever required
by
the context any gender shall include any other gender, the singular shall
include the plural, and the plural shall include the singular.
16. Choice
of Law.
This
Agreement shall be governed by the laws of the State of Delaware, without
reference to the choice of law principles thereunder.
3
17. Conditions
upon Issuance.
The
Shares that have been awarded to the Recipient are not registered under the
Securities Act of 1933, as amended. Therefore, as a condition of such award,
the
Recipient makes the following representations to the Company: (a) that any
shares of Common Stock acquired by the Recipient pursuant to this Agreement
will
not be sold except pursuant to an effective registration statement under the
Securities Act of 1933, as amended, or pursuant to an exemption from
registration under such Act, and (b) that the Recipient has acquired such shares
of Common Stock for the Recipient’s own account and not with a view to the
distribution thereof.
18. Waiver.
Any
waiver of any provision of this Agreement shall be effective only if in writing,
and no waiver of any provision of this Agreement shall constitute a waiver
of
any other provision of this Agreement, nor shall such waiver constitute a waiver
of any subsequent breach of such provision.
19. Plan.
This
Agreement, and the Shares issued pursuant hereto, are governed by the terms
and
conditions of the Company's Stock Incentive Plan [Note:
The actual name of the plan will be filled in upon approval by the Company's
Board of Directors] (the
"Plan")
and
the terms of the Plan shall control in the event of any conflict with the terms
of this Agreement.
Executed
as of _______________, 2006.
*
* * * *
4
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Signed:
|
|||
EXHIBIT
B
Restrictive
Periods
If
the Employment Agreement terminated by the Bank for Good Cause or by the
Executive for any reason other than Constructive Termination during the period
ended:
|
(1)
|
on
or prior to the one (1) year anniversary of the Effective
Date;
|
|
(2)
|
subsequent
to the one (1) year anniversary of the Effective Date but on or prior
to
the two (2) year anniversary of the Effective
Date;
|
|
(3)
|
subsequent
to the two (2) year anniversary of the Effective Date but on or prior
to
the three (3) year anniversary of the Effective Date;
and
|
|
(4)
|
subsequent
to the three (3) year anniversary of the Effective
Date.
|
Then
the Restrictive Period is:
|
(1)
|
three
(3) years from the date of
termination;
|
|
(2)
|
two
and one-half (2½) years from the date of
termination;
|
|
(3)
|
two
(2) years from the date of termination;
and
|
|
(4)
|
one
(1) year from the date of
termination.
|
