EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.1
This EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) was originally made and entered into on May 1, 2019, by and between Tectonic Financial, Inc. (the “Company”),
and A. Xxxx Xxxxxxx, a resident of Texas (the “Executive”).
WHEREAS,
the Company is the direct or indirect parent of T Bancshares, Inc. (“TBI”), T Bank, N.A. (the “Bank”), Xxxxxxx Xxxxxx Xxxxxx, LLC (“SMH”), Tectonic Advisors, LLC (“TA”)
and HWG Insurance Agency, LLC (“HWG, and together with TBI, the Bank, SMH, TA and certain other direct or indirect subsidiaries that may be acquired
or formed in the future, the “Subsidiaries”);
WHEREAS,
the Company and Tectonic Holdings, LLC, a Texas limited liability company, entered into that certain Amended and Restated Agreement and Plan of Merger on March 28, 2019 (the “Merger Agreement”);
WHEREAS,
the parties desire to enter into this Agreement effective as of the closing of the transactions contemplated by the Merger Agreement (the “Effective Date”);
WHEREAS,
Company desires to employ the Executive as Chief Executive Officer of the Company pursuant to the terms and conditions set forth in this Agreement;
WHEREAS,
the Company desires to be assured that the unique and expert services of the Executive will be substantially available to the Company, and that the Executive is willing and able to render such services on the terms and conditions hereinafter set
forth, and that the Executive will perform all duties which, consistent with his position, the Boards of Directors of the Company (the “Board”)
delegates to the Executive;
WHEREAS,
the Company desires to be assured that the confidential information and goodwill of the Company will be preserved for the exclusive benefit of the Company; 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 have an
initial term of four (4) years commencing on the Effective Date and expiring on the fourth (4th) anniversary of the Effective Date (the “Initial Term”); provided, however, that the Initial Term shall be automatically extended for successive periods of one (1) year on a continuing basis unless either the Executive or the
Company shall give written notice not to so extend at least ninety (90) days prior to the end of the Initial Term or any renewal period (the “Term”).
Subject to the provisions contained in Sections F, G,
and H, either party may terminate this Agreement by sending written notice of such termination at least thirty (30) days prior to the termination date. Both parties acknowledge and agree that, in the
event this Agreement is terminated by either party, the provisions of Paragraphs 9 through 18, 22, 23, 24, 27, 28, 32, and 35 through 44 will survive the termination of this Agreement.
B. COMPENSATION
2. All payments of salary and other compensation
to the Executive shall be payable in accordance with the Company’s ordinary payroll and other policies and procedures.
|
a.
|
Base Salary. For all services rendered by the Executive under this Agreement, the Executive shall be paid a base salary of $300,000.00 Dollars per annum, payable in equal installments
in accordance with the Company’s normal payroll practices (the “Base Salary”), subject to (i) any increases authorized by the Compensation Committee or the Board or (ii) otherwise agreed to by the Company and the Executive. The amount of
the Base Salary may be reviewed at any time and from time to time by the Compensation Committee or the Board and shall be reviewed at least annually, but shall not be reduced.
|
|
b.
|
Annual Bonus Payment.
For each calendar year during the Term, the Executive shall be eligible for a performance-based bonus, measured against criteria the Compensation Committee shall agree upon and set forth from time to time. To the extent the performance
criteria are satisfied, such bonus will be considered earned as of December 31 of the calendar year to which the bonus is attributable, and will be paid in a lump sum no later than March 15th of the calendar year that immediately follows
the calendar year to which the bonus is attributable. No other compensation provided for in this Agreement shall be deemed a substitute for the Executive’s right to participate in such discretionary bonuses.
|
3. The Company and the Executive
acknowledge and agree that, subject to the provisions of Paragraph 4 of this Agreement, the Executive shall be entitled to receive employee and dependent health insurance, dental insurance, sick leave and vacation, and any additional benefits
provided to all Company employees and/or executives all in accordance with the Company’s employment policies and plans.
4. The Executive acknowledges and agrees that any
employee benefits provided to the Executive by the Company 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
5. The Executive acknowledges and agrees that he
shall be employed as President and Chief Executive Officer of the Company and will report to the Board. The Executive covenants and agrees that he will faithfully devote his best efforts and his primary focus to his positions with the Company.
6. The Executive acknowledges and agrees that the
duties and responsibilities of the Executive required by his positions are wholly within the discretion of the Board, and may be modified, or new duties and responsibilities imposed by the Board 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 generally consistent with the Executive’s role as Chief Executive Officer of the
Company.
7. The Executive acknowledges and agrees that,
during the Term of this Agreement, he has a fiduciary duty to the Company and its Subsidiaries 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 Company, its Subsidiaries, its employees, or the Board. Notwithstanding the foregoing, the Executive may (A) serve on corporate boards, provided the Executive receives prior written permission from the Board; (B)
serve on civic, children sports organization or charitable boards without remuneration therefor; (C) participate in charitable, civic, educational, professional, community or industry affairs; and (D) manage personal investments (provided such
management does not materially interfere with the performance of his duties under this Agreement). Attached hereto as Exhibit “A” is a list of all current boards and/or material business interests and material personal investments of the Executive
as of the date hereof.
2
8. The Executive acknowledges and agrees that he
will not directly or indirectly engage in competition with the Company at any time during the existence of the employment relationship between the Company 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 Company-related responsibilities required by the Executive’s position with the Company, other than as an employee of the Company pursuant to this Agreement or as specifically approved by
the Board of the Company.
D. NONINTERFERENCE
9. In his position of employment, the Executive
will continue to be provided with certain of the Company’s confidential information and trade secrets (hereafter “Proprietary Information”) pertaining to, or
arising from, the business of the Company, and its affiliates (if any), upon execution of this Agreement and for the duration of the Executive’s employment with the Company. The Executive hereby agrees and acknowledges that such Proprietary
Information is unique and valuable to the Company’s business and that the Company would suffer irreparable injury if this information were publicly disclosed, or used for purposes other than on behalf of the Company. 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 Company, that has
not been publicly disclosed by the Company. The Proprietary Information covered by this Agreement shall include, but shall not be limited to, information relating to any financial information, processes policies, procedures, 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
Company.
10. During the Executive’s employment with the
Company and for a period of twenty-four (24) months after his termination of employment with the Company for any reason (regardless of when such termination occurs), the Executive shall not engage in the following acts of “solicitation”:
|
a.
|
directly or indirectly, whether as an individual for the Executive’s own account, or on behalf of any other person,
firm, corporation, partnership, joint venture or entity whatsoever, solicit, hire or endeavor to entice away from the Company or its Subsidiaries any employee who is employed by the Company or its Subsidiaries;
|
|
b.
|
directly or indirectly through any other individual or entity, solicit, entice, persuade or induce any individual
or entity to terminate, reduce or refrain from forming, renewing or extending its relationship, whether actual or prospective, with the Company or its Subsidiaries; or
|
|
c.
|
directly or indirectly through any other individual or entity, solicit, entice, persuade or induce any individual
or business that was a customer of Company or its Subsidiaries during the Term of the Executive’s employment with Company to do business with any individual or entity with respect to matters that the Company or its Subsidiaries did
business or was attempting to do with such customer either during the Term of the Executive’s employment with the Company or during the term of this solicitation prohibition.
|
3
The restrictions contained in Subsections (b and c) hereof are limited to customers, clients, or patrons of the
Company or its Subsidiaries with whom the Company or its Subsidiaries have done business, performed services for or on behalf of within the 12-month period preceding the Executive’s termination of employment with the Company or about whom the
Executive has Proprietary Information. Nothing in this Paragraph 10 will prevent the Executive from calling upon or soliciting those employees, customers or other persons having business relationships with the Company or its Subsidiaries to do
business with the Executive in any business of the Executive not related to banking, investment, fiduciary, or financial services offered by the Company or its Subsidiaries during the Term of this Agreement.
11. 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 Company or with the Executive’s duties as an employee of the Company.
.
12. The Executive acknowledges and agrees that in
exchange for the execution of this Agreement, the Severance Payment, and agreement to the provisions of this Section D, the Executive will receive
substantial, valuable consideration including confidential trade secret and Proprietary Information relating to the identity and special needs of the Company’s current and prospective customers, the Company’s current and prospective services, the
Company’s business projections and market studies, the Company’s business plans and strategies, the Company’s studies and information concerning special services unique to the Company and that in the absence of the Executive’s agreements herein, he
would not have had access to such unique and valuable consideration. The Executive further acknowledges and agrees that his agreements in this Section D
are a material inducement to the Company’s agreement to enter into and continue this relationship. The Executive acknowledges and agrees that these items collectively constitute fair and adequate consideration for the execution of the
noninterference agreement set forth above.
13. In consideration for the above-recited
valuable consideration, and as a material inducement for the Company’s agreements herein, including the Company’s promise to furnish the Executive with access to its Proprietary Information, and except as set forth Exhibit “A,” the Executive
understands and agrees that from the Effective Date of this Agreement and continuing thereafter until a date that is the earlier to occur of
(i) twenty-four (24) months after the termination of the Executive’s employment with the Company for any reason, or (ii) the end of the Initial Term or Term, as applicable, the Executive shall not, directly or indirectly, for himself or on behalf
of or in conjunction with any other person, company, partnership, corporation, business, group, or other entity:
|
a.
|
serve, as an officer, director, shareholder, owner, partner, joint venturer, or in a managerial capacity,
whether as an employee, independent contractor, consultant, advisor, or sales representative, with an insured depository institution, finance company, investment advisor company, or other entity engaged in the same business as or a
business substantially similar to that of the Company or any Subsidiary thereof that has a location within the Dallas-Fort Worth or Houston-The Woodlands-Xxxxxxxxx metropolitan statistical area, in each case as defined by the US Office
of Management & Budget (the “Territory”);
|
|
b.
|
contact, solicit, or seek to divert the business or patronage of any person, association, corporation or
other business organization or entity with whom the Executive is familiar because of his employment with the Company and/or about whom the Executive has learned Proprietary Information during his/her employment at the Company, and that it
is agreed that doing business with such customers from remote locations, telephonically, electronically or otherwise is deemed to violate the geographic restrictions hereof; provided, however, that nothing in this subsection will prevent the Executive from calling upon or soliciting those customers or other persons having business relationships with the Company or its Subsidiaries
to do business with the Executive in any business of the Executive not related to banking, investment, or financial services offered by the Company or any of its Subsidiaries during the Term of this Agreement. It is the desire of the
Company and the Executive that these restrictions be enforced to the fullest extent allowed by law.
|
4
|
c.
|
The foregoing covenants shall not be deemed to prohibit the Executive from acquiring an ownership interest
in any publicly-traded depository institution or its holding company, so long as that ownership interest does not exceed one percent (1%) of the total number of shares outstanding of that depository institution, and/or invest in an
existing mutual fund that invests, directly or indirectly, in such insured depository institutions.
|
14. It is hereby further agreed by the Company and the Executive that if the non-solicitation covenants contained in this Section D 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 non-solicitation covenants contained herein shall remain in full force and effect as originally written.
15. Intentionally omitted.
E. REMEDIES
16. 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 Company may suffer immediate and irreparable harm. Consequently, the Executive acknowledges
and agrees that the Company shall be entitled to immediate injunctive relief, either by temporary or permanent injunction, to prevent such a violation, without regard to the application of Section D of this Agreement and that if the Executive is receiving payments pursuant to either Sections G
or H of this Agreement, the Company may after a court or arbitrator determines that a violation occurred, terminate such payments without limiting its right to specific performance, injunctive relief,
or any other category of relief or damages. The Executive agrees to repay any payments made pursuant to either Sections G (less that portion prorated from the date of payment to the date of violation) or H of this Agreement from
the date of violation determined by a court or arbitrator. The Executive further agrees that the restrictive period of each covenant determined to be violated shall be extended by a period of time equal to the period of violation by the Executive,
as determined by a court or arbitrator.
F. TERMINATION
17. The Executive acknowledges and agrees that the
Board of the Company reserves the right to terminate this 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 Company’s personnel records. Such notice shall be effective upon personal delivery or three days after mailing by certified U.S. mail. However, if this Agreement is terminated at the Company’s insistence without Cause (as
defined in this Agreement), or the Executive terminates his employment for Good Reason, the Company covenants and agrees to provide the Executive with the Severance Payment set forth in Section H of this Agreement.
18. The Executive acknowledges and agrees that the
Company may terminate this Agreement at any time, without notice, for Cause. The term “Cause” means the occurrence of any of the following:
5
|
a.
|
a material violation by the Executive of any material provision of this Agreement or his employment and the
Executive fails to cure, if able to be cured, such violation within thirty (30) days after written notice from the Company;
|
|
b.
|
The Executive engages in conduct that constitutes gross negligence or gross misconduct in carrying out the
Executive’s duties with respect to the Executive’s employment including indecency, immorality, gross insubordination, dishonesty, unlawful harassment, use of illegal drugs, or fighting;
|
|
c.
|
The Executive is convicted of, or pleads guilty or nolo contendere to, a felony or to a crime involving moral
turpitude;
|
|
d.
|
any act by the Executive involving dishonesty relating to the business of the Company that adversely and
significantly affects the business of the Company;
|
|
e.
|
a material breach by the Executive of the Company’s written code of ethics or any other material written policy or
regulation of the Company governing the conduct of its employees or contractors (which breach, if able to be cured, remains uncured or continues or recurs thirty (30) days after written notice from the Company);
|
|
f.
|
The Executive is prohibited from engaging in the business of banking or financial services by any governmental
regulatory agency having jurisdiction over the Company or any of its Subsidiaries or is in any way suspended or prohibited from participation in any government enhanced lending program by the applicable government agency.
|
Notwithstanding anything in this Section 18 a-f to the contrary, no such event or condition shall constitute Cause
unless (y) within ninety (90) days from the Board first acquiring actual knowledge of the existence of the Cause condition, the Board provides the Executive written notice of its intention to terminate the Executive’s employment for Cause and the
specific facts giving rise to such termination; and (z) the Board terminates the Executive’s employment with the Company immediately upon the date provided in such written notice or upon expiration of any such cure period, whichever occurs first.
For purposes of this Section, any attempt by the Executive to correct a stated Cause condition shall not be deemed an admission by the Executive that the Board’s assertion of Cause is valid.
If during his employment, the Executive is terminated for Cause or resigns his employment for any reason other than
for Good Reason (as defined below), the Executive 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 Company’s normal practice, and, at the Executive’s
expense, any health benefits to which the Company is required by law to provide and the Executive is entitled under the terms of the Company’s employee benefit plans and programs (“Standard Termination Payments”).
19. The Company acknowledges and agrees that the
Executive reserves the right to terminate this Agreement at any time, for any reason, with or without Good Reason, by providing thirty (30) days written notice, by personal delivery or certified U.S. mail, to the Company 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 U.S. mail. In the event of such termination, the Executive will be entitled to
receive the Standard Termination Payments.
20. 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 Company will pay to the Executive’s
estate the Standard Termination Payments.
6
22. 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 Company, the Executive will return to the Company within seventy-two (72) hours of the time when notice of
termination is communicated by either party, or sooner if requested by the Company, any Proprietary Information in his possession, custody or control, 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 Company,
as well as all machines, parts, equipment or other materials received from the Company or from any of its customers, agents or suppliers, in connection with such activities.
G. CHANGE IN CONTROL
23. The parties acknowledge that the Executive has
agreed to assume the position of Chief Executive Officer of the Company and to enter into this Agreement based on his confidence in the current owners of the Company and the direction of the Company provided by the current Board. In the event of a
Change in Control, the Company agrees and acknowledges that the Executive (or his beneficiaries, if applicable) shall have the right to receive a cash lump sum payment equal to 2.99 times his Base Amount as defined in Section 280G(b)(3) of the
Internal Revenue Code of 1986, as amended (“Code”), paid by the Company within thirty (30) days upon a Change in Control or under such other terms as may be
mutually agreed. In the event that the Executive is also entitled to any payment under Section H of this Agreement, payment under this Section G shall be offset by such amount. As a condition of his right to receive the payment described in this Section G, the Executive acknowledges and agrees that he will execute, and will not revoke, and deliver a general release and waiver of claims in a form provided by the Company at the time of
termination.
24. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not be required to pay any benefit under this Agreement if, upon the advice of counsel, the Company 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 other regulations regarding employee compensation promulgated by any regulatory agency having jurisdiction over the Company 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 Company shall reduce the benefit paid under this
Agreement to the maximum benefit so as to not create a non-deductible excess parachute payment under Section 280G of the Code or trigger an excise tax under Section 280G of the Code. Any such reduction of payments and benefits pursuant to this
Section 24, if applicable, shall be made by reducing payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time
and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction
in the amount of the payments and benefits provided hereunder is necessary shall be made by applying principles, assumptions and procedures consistent with Section 280G of the Code by an accounting firm or law firm of national reputation that is
selected for this purpose by the Company (the “280G Firm”). In performing such determination, and for the purpose of assessing whether payments under this
Agreement or otherwise qualify as reasonable compensation that is exempt from being a parachute payment under Section 280G of the Code, the 280G Firm or the Company may retain the services of an independent valuation expert.
7
|
a.
|
The Company or any Subsidiary thereof is merged or consolidated with another entity 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 entity are owned in the aggregate by the former shareholders of the Company; and
|
|
b.
|
The Company sells all or substantially all of its assets to another entity.
|
Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred if (y) as a result of an
initial public offering of the capital stock of the Company or any of its Subsidiaries, or (z) the Company or any of its Subsidiaries are combined or merged under one holding company or an internal reorganization.
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, or such termination otherwise occurred in connection with,
or in anticipation of, a Change in Control, 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.
26. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any one (1) or more of the following:
.
|
a.
|
a
material diminution in the Executive’s position, duties, responsibilities, or reporting requirements from those held and/or assigned to the Executive, or the assignment of duties materially inconsistent with the Executive’s position or
status with the Company; however, removal from or failure to be re-nominated for a Board position will not constitute a material diminution in the Executive’s position, duties, responsibilities;
|
|
b.
|
a material reduction in the Executive’s annual base salary or benefits, other than with the consent of the
Executive or any across-the-board reduction of cash compensation or benefits applicable to all senior executives of the Company;
|
|
c.
|
the Company requires that the Executive be based at any office or location that is located more than twenty-five
(25) miles outside of the city limits of Houston, Texas;
|
|
d.
|
a material breach by the Company of its obligations under this Agreement or any equity award agreement with the
Executive; or
|
|
e.
|
a failure of the Company to assign this Agreement in a Change in Control of the Company to a successor employer, or
the failure of a successor employer in a Change in Control of the Company to explicitly assume and agree to be bound by this Agreement; or
|
8
|
f.
|
the failure of the Compensation Committee to approve the Equity Compensation specified on Confidential Exhibit A.
|
No event or condition described in this Section 26 shall constitute Good Reason unless, (x) within ninety (90) days
from the Executive first acquiring actual knowledge of the existence of the Good Reason condition described in this Section 26, the Executive provides the Board written notice of the Executive’s intention to terminate the Executive’s employment for
Good Reason and the specific grounds for such termination; (y) such grounds for termination (if susceptible to correction) are not corrected by the Board within thirty (30) days of the Board’s receipt of such notice (or, in the event that such
grounds cannot be corrected within such thirty-day (30) period, the Board has not taken all reasonable steps within such thirty-day (30) period to correct such grounds as promptly as practicable thereafter); and (z) the Executive terminates the
Executive’s employment with the Company immediately following expiration of such thirty-day (30) period. For purposes of this Section 26, any attempt by the Board to correct a stated Good Reason shall not be deemed an admission by the Board that
the Executive’s assertion of Good Reason is valid.
X. XXXXXXXXX
27. The
Executive and the Company acknowledge and agree that, if, and only if, the Company terminates the Executive’s employment at any time for any reason other than for Cause, or the Executive terminates his employment for Good Reason, the Executive
shall be entitled to (A) receive the Standard Termination Payments, (B) any health benefits to which the Executive is receiving from the Company immediately prior to such termination at the same expense as other employees for such selected employee
benefit plans and programs for a period of twenty four (24) months (unless otherwise covered by another plan), and (C) the Severance Payment to be paid in twenty-four (24) equal monthly installments (the “Severance Term”); provided, that the Executive executes, and does not revoke,
and timely delivers a general release and waiver of claims in a form provided by the Company at the time of termination. The “Severance Payment”
shall be an amount of cash equal to two times the sum of (x) the Executive’s Base Salary at the time of termination, (y) the average annual bonus (excluding change of control payments) paid to the Executive with respect to each of the three (3)
prior fiscal years, plus (z) a pro-rated annual bonus for the year in which the Executive’s employment terminates. In the event that the Executive
is entitled to any payment under Section G, no Severance Payment shall be due under this Section H; provided, however, the Executive shall be entitled to (A) and (B) of this Section
H.
I. SEVERABILITY
28. 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
29. 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
30. The Executive acknowledges and agrees that
this Agreement may be assigned by the Company 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 Company.
9
31. The Executive acknowledges and agrees that his
obligations, duties and responsibilities under this Agreement are personal and shall not be assignable, and that this Agreement shall be enforceable by the Executive only. In the event of the Executive’s death, this Agreement shall be enforceable
by the Executive’s estate, executors and/or legal representatives, only to the extent provided herein.
L. CHOICE OF LAW
32. 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 Company and the Executive.
M. MODIFICATION
33. Both parties acknowledge and agree that this
Agreement constitute the complete and entire agreement between the parties regarding the employment of the 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.
34. 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 majority of the Board of the Company.
N. INDEMNIFICATION
35. During the Term of this Agreement, the
Company, TBI 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 Company to the
fullest extent permissible under the law, including, without limitation, the National Banking Act, Article 2.02-1 of the Texas Business Organization Code, the Company’s or TBI’s Certificate of Formation and Bylaws, the Company’s Articles of
Association and Bylaws, and may purchase such indemnification insurance as the Board may from time to time determine.
O. ARBITRATION
36. 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 Company acknowledge and agree that
nothing in this Agreement shall be construed to require the arbitration of any claim or controversy arising under Section D of this Agreement. These
provisions shall be enforceable by any court of competent jurisdiction and shall not be subject to this Section O. The Executive and the Company further
acknowledge and agree that nothing in this Agreement shall be construed to require arbitration of any claim for workers’ compensation or unemployment compensation.
10
P. LEGAL CONSULTATION
37. 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
38. The Executive shall make himself available,
upon the request of the Company, to testify or otherwise assist in litigation, arbitration, or other disputes involving the Company, or any of the directors, officers, employees, subsidiaries, affiliates 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.
39. 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.
40. 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.
41. 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.
42. This Agreement will not be in effect until the
date this Agreement is fully executed by the Executive and the Company.
43. Notwithstanding anything in this Agreement or
any other agreement to the contrary, the Executive agrees (i) to abide by any compensation recovery, recoupment, anti-hedging, or other policy applicable to executives of the Company and its affiliates that is hereafter adopted by the Board or a
duly authorized committee thereof to comply with applicable law as required by the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act of 2010 (the “Xxxx-Xxxxx Act”), the Xxxxxxxx-Xxxxx Act of 2002 (“Xxxxxxxx-Xxxxx”), or other applicable
law; and (ii) that the terms and conditions of this Agreement shall be deemed automatically and unilaterally amended to the minimum extent necessary to ensure compliance by the Executive and this Agreement with such policies, the Xxxx-Xxxxx Act,
Xxxxxxxx-Xxxxx, and any other applicable law.
44. This Agreement is intended to either avoid the
application of, or comply with, Section 409A of the Code. To that end this Agreement shall at all times be interpreted in a manner that is consistent with Section 409A of the Code. Notwithstanding any other provision in this Agreement to the
contrary, the Company shall have the right, in its sole discretion, to adopt such amendments to this Agreement or take such other actions (including amendments and actions with retroactive effect) as it determines is necessary or appropriate for
this Agreement to comply with Section 409A of the Code. Further:
11
|
(a)
|
Any reimbursement of any costs and expenses by the Company to the Executive under this Agreement shall be made by the
Company in no event later than the close of the Executive’s taxable year following the taxable year in which the cost or expense is incurred by the Executive. The expenses incurred by the Executive in any calendar year that are eligible
for reimbursement under this Agreement shall not affect the expenses incurred by the Executive in any other calendar year that are eligible for reimbursement hereunder and the Executive’s right to receive any reimbursement hereunder shall
not be subject to liquidation or exchange for any other benefit.
|
|
(b)
|
Any payment following a separation from service that would be subject to Section 409A(a)(2)(A)(i) of the Code as a
distribution following a separation from service of a “specified employee” (as defined under Section 409A(a)(2)(B)(i) of the Code) shall be made on the first to occur of (i) ten (10) days after the expiration of the six-month (6) period
following such separation from service, (ii) death, or (iii) such earlier date that complies with Section 409A of the Code.
|
|
(c)
|
Each payment that the Executive may receive under this Agreement shall be treated as a “separate payment” for
purposes of Section 409A of the Code.
|
|
(d)
|
A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement
providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from
service” within the meaning of Section 409A of the Code and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” or like terms shall mean “separation from service.”
|
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:
A. Xxxx Xxxxxxx
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
COMPANY:
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: President
[Signature Page Follows]
12
IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement on the date set forth above.
|
By:
|
/s/ Xxxxxxx Xxxxxx
|
|
Xxxxxxx Xxxxxx
|
|
|
Title:
|
President and Chief Executive Officer
|
|
T BANCSHARES, INC.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxxx
|
|
Xxxxxxx Xxxxxx
|
|
|
Title:
|
President and Chief Executive Officer
|
|
T BANK, N.A.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxxx
|
|
Xxxxxxx Xxxxxx
|
|
|
Title:
|
President and Chief Executive Officer
|
|
EXECUTIVE
|
|
|
By:
|
/s/ A. Xxxx Xxxxxxx
|
|
Name:
|
A. Xxxx Xxxxxxx
|
EXHIBIT “A”
Bigfoot Energy Services, LLC - co-owner/manager
Iron Mountain Energy, LLC - co-owner/manager
Bigfoot Disposal Services, LLC - co-owner/manager
Other Bigfoot related entities - co-owner/manager
Boxwood Containers, LLC - co-owner/manager
Xxxxxxx FLP LP - limited partner
Xxxxxxx Tectonic FLP LP - limited partner and general partner
Xxxxxxx Family Holdings, LLC (the general partner of Xxxxxxx FLP LP) - co-owner and CEO
Xxxxxxx Family Irrevocable Trust - trustee and beneficiary
Xxxxxxx 2018 Irrevocable Trust - trustee and beneficiary
Episcopal High School - trustee (slated to be Executive Chairman in 2021)
St. John’s the Divine Episcopal Church Endowment Board - trustee
Hilltop Holdings Inc. (bank holding company) (NYSE: HTH) - board member
