EMPLOYMENT AND SUPPLEMENTAL BENEFITS AGREEMENT
EMPLOYMENT AND SUPPLEMENTAL BENEFITS AGREEMENT dated as of July 1, 2004
(the "Effective Date"), between Xxxxxx Xxxxxxx, having an office at Xxx
Xxxxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 ("Dansker"), and
Intervest Bancshares Corporation, a Delaware corporation having an office at Xxx
Xxxxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 (the "Corporation").
Background
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Commencing as of the Effective Date, the Corporation wishes to employ
Dansker to perform services for the Corporation in connection with the operation
of the business of the corporation, and Dansker wishes to perform such services.
W1TNESSETH, the parties hereto, in consideration of the premises, and the
mutual covenants and agreements herein contained, agree as follows:
1. Employment. The Corporation hereby employs Dansker and Dansker
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hereby accepts employment upon the terms and conditions hereinafter set forth.
2. Services.
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a. Duties. Dansker is engaged as Chief Executive Officer of the
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Corporation and, subject to the direction of the board of directors, Dansker
shall perform and discharge well and faithfully such duties as may be assigned
or delegated to him. Dansker shall have all requisite power and authority on
behalf of the Corporation to perform such duties, including, without limitation,
the authority to hire and fire employees and to retain the services of
independent contractors.
b. Time Devoted; Other Businesses. During the Term, Dansker shall
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devote so much of his time to the affairs of the Corporation as in his judgment
the conduct of his duties shall require. Nothing herein contained shall be
deemed to limit or preclude Dansker from engaging, directly or indirectly, in
any other business, or from directly or indirectly financing, purchasing,
acquiring, operating, leasing, holding, selling or otherwise disposing of real
property for his own account or for the account of any such other business, or
from performing services on behalf of any other corporation, partnership or
other business entity, including, but not limited to, any other business entity
with which any of the officers, directors or shareholders of the Corporation may
be affiliated, directly or indirectly. It is understood and agreed by the
Corporation that Dansker may participate in other ventures which are engaged in
the same or similar businesses as the Corporation. The Corporation shall not
have any right to participate in any such other businesses, transactions or
investments, or in any profits or income earned or derived by Dansker from the
conduct of any such businesses, transactions or investments and no compensation
or benefits derived from other activities or employment shall reduce in any way
anything due Dansker under this Agreement. The Corporation acknowledges and
understands that Dansker also renders services to and has a separate employment
agreement with Intervest Mortgage Corporation.
3. Compensation; Benefits.
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a. Salary. The Corporation shall pay to Dansker during the Term
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hereof, for his services to be performed pursuant hereto, a salary, which at the
inception of the Term shall be at the annual rate of $200,000 per annum, subject
to withholding for federal, state and local taxes, as required by law. Such
salary shall be increased annually, effective as of July 1 of each year, by an
amount equal to the greatest of: (1) the product obtained by multiplying the
salary for the preceding year (ending June 30) as adjusted in accordance with
this formula, by the six percent (6%), (2) the product obtained by multiplying
the salary for the preceding year (ending June 30) by that percentage which
shall be the percentage equivalent to a fraction, the numerator of which
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fraction shall be that amount, if any, by which the "Consumer Price Index" (as
hereinafter defined) as of the June 1 preceding the July 1 effective date of
such salary increase, shall exceed the Consumer Price Index as of June 1 of the
prior year, and the denominator of which fraction shall be the Consumer Price
Index as of such June 1 of the prior year; and (3) .015% of the Asset Size
Increase of the Corporation for the year ending June 30 preceding the July 1
effective date of such salary increase, provided that the Asset Size Increase
criteria shall only be applied if the Corporation had net income in such twelve
month period.
As used herein, "Consumer Price Index" shall mean the Consumer Price
Index for All Wage Earners and Clerical Workers for New York and NorthEastern
New Jersey, published by the Bureau of Labor Statistics of the United States
Department of Labor, (Base 1967 = 100). If the Consumer Price Index ceases to
use (1967 = 100) as the basis of calculation, or if the Consumer Price Index (as
herein defined) ceases to be published by the Bureau of Labor Statistics, then
the Corporation and Dansker shall substitute such index as they shall jointly
designate. As used herein, the Asset Size increase shall be the difference
between the total assets of the Corporation on a consolidated basis, as
reflected on the balance sheet of the Corporation as of June 30 of any year, as
compared with the total assets of the Corporation on a consolidated basis, as
reflected on the balance sheet of the Corporation as of June 30 of the prior
year.
The above salary shall be payable in arrears, in accordance with the
normal payroll cycle of the Corporation (but not less frequently than
monthly),with the initial payment being due on the first payroll cycle after the
Effective Date.
In addition to the salary described above, Dansker shall be entitled
to receive such bonuses or incentive compensation as may, from time to time, be
approved by the Board of Directors in connection with his performance of his
regular, assigned duties hereunder. Dansker shall also be entitled to receive
such bonuses or incentive compensation as may, from time to time, be approved
by the Board of Directors in connection with the performance of duties or
responsibilities beyond those assigned to Dansker in the ordinary course,
including but not limited to services in connection with the raising of capital
and acquisitions.
b. Expense Account. During the Term, the Corporation shall
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provide Dansker with an expense account, which at the inception of the Term
shall be in the amount of $500.00 per month, payable in arrears on the first day
of each month, commencing August 1, 2004. Such monthly expense account payment
shall increase annually, effective as of July 1 of each year, in the same
proportion as the increase in Dansker's salary for such year. The Corporation
and Dansker agree that such amount is a reasonable estimation of the normal,
recurring expenses (other than travel expenses) likely to be incurred by Dansker
in performing his duties for the Corporation. Accordingly, Dansker shall not be
required to account to the Corporation for such expenses. In addition to the
foregoing expense account, Dansker shall be entitled to reimbursement of all
travel expenses incurred by him in the performance of duties for the Corporation
or any of its subsidiaries or affiliated entities, including, without
limitation, travel in connection with attendance at conventions, trade
associations and similar meetings. Travel expenses shall include, without
limitation, registration and attendance fees, transportation, meals and lodging.
c. Vacation. Dansker shall be entitled to four (4) weeks paid
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vacation during the first two years of the Term; and five (5) weeks paid
vacation during each of the remaining years of the Term, such vacation to be
taken by Dansker at such times as he shall elect during such year. Unused
vacation, if not so taken, shall be paid to Dansker as accrued salary, in a lump
sum, upon the expiration of each annual period (July 1 to June 30).
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d. Other Benefits. Dansker shall be entitled to participate in
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employee benefit plans or programs of the Corporation, if any, to the extent
that his position, tenure, salary, age, health and other qualifications make him
eligible to participate, subject to the rules and regulations applicable
thereto.
e. Death or Disability of Dansker. In the event of the death or
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disability of Dansker, the Corporation shall make the following payments:
i. In the event of the disability of Dansker, the Corporation
shall pay to Dansker, or if he shall subsequently die, to Dansker's wife, if she
shall survive Dankser (but only for so long during the Distribution Term (as
hereafter defined) as Dansker's wife shall survive) and, if she shall not
survive Dansker or having survived Dansker, shall die prior to the expiration
of the Distribution Term, to Dansker's estate, the Distribution Amount (as
hereafter defined), at the times herein specified and for the Distribution Term;
ii. In the event of the disability of Dansker, Dansker shall
remain entitled, during the Distribution Term, to participate in employee
benefit plans or programs of the Corporation and shall, during the Distribution
Term, continue to receive the full benefit of this Agreement (except that the
Distribution Amount shall be paid in lieu of the salary specified by Section
3(a)); and
iii. In the event of the death of Dansker, the Corporation
shall pay to Dansker's wife, if she shall survive Dansker (but only for so long
during the Distribution Term as Dansker's wife shall survive), and, if she shall
not survive Dansker or having survived Dansker, shall die prior to the
expiration of the Distribution Term, to Dansker's estate, the Distribution
Amount, at the times provided for and for the Distribution Term.
The "Distribution Amount" shall be an amount equal to a
percentage of the amount which from time to time would have been paid monthly on
account of Dansker's salary, pursuant to the terms of this Employment Agreement,
had this Employment Agreement continued in force and effect for the whole or
that portion of the balance of the stated Term constituting the Distribution
Term. The percentage shall be fifty percent (50%) in the case of disability, and
twenty five percent (25%) in the case of death. The Distribution Amount (or the
balance of any remaining Distribution Amount if monthly payments have previously
commenced due to disability) shall, in the case of death, be paid to Dansker's
estate in a lump sum and shall, for these purposes, be calculated on the basis
of annual salary increases at the rate of six percent (6%). The Distribution
Amount shall, in the case of disability, be paid monthly during the Distribution
Term in an amount equal to fifty percent (50%) of the monthly payment which
would have been made in accordance with the terms of this Employment Agreement,
had such payments so continued. The Distribution Term shall be that period that
shall be equal to the greater of (i) three years, and (ii) the number of months
remaining in the stated Term of this Employment Agreement. The obligation of the
Corporation to pay the Distribution Amount shall survive the expiration of the
Term of this Employment Agreement.
As used herein "Disability" shall mean the inability to
perform the services called for hereunder by reason of mental or physical
illness for a continuous period of six (6) months, provided. that should any
such disability cease, Dansker may, at his election, resume the performance of
duties hereunder, in which case he shall be fully reinstated (including salary,
benefits and authority) to the position he occupied prior to the date of his
cessation of services as a result of disability.
f. No Impairment. Nothing herein contained shall limit or impair
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the right, power and authority of the Corporation to confer upon or award to
Dansker, on account of the services performed or to be performed by Dansker on
behalf of the Corporation (whether or not
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pursuant to this Employment Agreement), any bonus, stock options, warrants or
any other form of benefit or compensation.
g. Tax Payments. Annually, on or before April 15 of each year,
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the Corporation shall pay to Dansker or Dansker's wife, as the case may be, an
amount which is equal to the sum of (A) the federal, state and local taxes that
would be due in connection with the value of any benefit or payment hereunder
(other than salary or Distribution Amounts), and (B) the federal, state and
local taxes payable as a result of the payment set forth in (A) above, in each
case based upon the highest tax bracket then applicable to individual taxpayers
under federal, state and local tax laws for the then marital status of the
recipient of the amounts,
h. Legal Representative. Should Dansker or Dansker's wife have a
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legal representative appointed for any reason, such representative shall be
empowered to make any elections or decisions which Dansker or Dansker's wife may
have otherwise been permitted to make.
i. Affiliates. To the extent deemed necessary or appropriate by
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the Corporation, payments due pursuant to this Agreement may be made by the
Corporation or any of its subsidiaries and benefits prescribed hereunder may be
furnished pursuant to the plans of the Corporation or any of its subsidiaries.
j. No Relocation. In no event shall Dansker be required to
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relocate outside of the City of New York.
4. Term. The term of this Employment Agreement (the "Term") shall
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commence on the effective date and shall expire June 30, 2014, unless terminated
by Dansker upon thirty (30) days' prior notice (in which case the respective
obligations of the parties hereunder shall terminate upon the payment of accrued
entitlements and which termination shall not include Dansker's death or
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disability)
5. Indemnification.
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a. To the fullest extent permitted by law, the Corporation shall
indemnify and hold harmless Dansker against all losses, claims, damages or
liabilities (including legal fees, disbursements, and any other expenses
incurred in investigating or defending against any such loss, claim, damage or
liability) arising (i) by reason of any acts or omissions or any alleged acts or
omissions arising out of Dansker's activities in connection with the conduct of
the business of the Corporation (or any of its subsidiaries or affiliated
entities), (ii) by reason of the performance by Dansker of the services to be
performed by Dansker, pursuant to the terms of this Employment Agreement, (iii)
by reason of any claim or allegation of failure to perform such services in
accordance with the terms of this Employment Agreement, or (iv) by reason of the
performance of services alleged to be beyond the scope of the authority
conferred upon Dansker pursuant to the terms of this Employment Agreement. This
indemnity shall not cover losses, claims, damages or liabilities arising under
subdivisions (i), (ii) or (iii) of the preceding sentence, in each such instance
aforesaid to the extent that such loss, claim, damage or liability results from
the gross negligence or willful misconduct of Dansker, The indemnification
provided in this section 5: (i) shall survive the expiration or earlier
termination of this Employment Agreement; (ii) shall be in addition to, and not
a limitation of any common law or contractual rights of indemnification
available to Dansker at law or in equity; and (iii) shall include all costs and
expenses of enforcing this indemnity.
b. All costs and expenses paid or incurred by Dansker in
investigating, defending or settling any claim, loss, damage or liability, that
may be subject to a right of indemnification hereunder, shall be paid by the
Corporation upon the request of Dansker.
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6. Change of Control. In the event of any sale of assets, sale of
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stock, merger, reorganization or other transaction involving the Corporation,
the successor to the Corporation shall, as a condition to the consummation of
such transaction, expressly assume and perform this Agreement.
7. Miscellaneous,
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a. Governing Law. This agreement shall be governed by, and
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construed and enforced in accordance with the laws of the State of New
b. Entire Agreement. This agreement constitutes the entire
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agreement between the parties with respect to the subject matter hereof, and
supersedes any prior agreement or understanding between them with respect to
such subject matter.
c. Arbitration. Any controversy or claim arising out of, or
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relating to this agreement, or the breach thereof, shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction.
d. Successors and Assigns. No party may assign, pledge or
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encumber its rights or obligations under this Agreement. This Agreement shall be
binding upon and may be enforced by the parties hereto and their legal
representatives.
e. Counterparts. This Agreement may be executed in one or more
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counterparts, all of which shall constitute one and the same instrument.
f. Headings. The section headings in this Agreement are for
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convenience of reference only, and shall not be deemed to alter or affect the
meaning or interpretation of any provisions hereof.
g. Compliance. In performing services hereunder, Dansker shall
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comply with all applicable laws and regulations that may apply to the
Corporation and its subsidiaries, including any code of ethics that may, from
time to time, be approved by the Corporation
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of
the date first above written.
INTERVEST BANCSHARES CORPORTION
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, President
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
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