EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT
10.5
This
EXECUTIVE
EMPLOYMENT AGREEMENT
(“Agreement”) is made and entered into as of this ___ day of __________, 2006,
by and between Solera Bank, a national banking association (“Bank”), and Xxxxxx
X. Xxxxxx, an individual resident of the State of Colorado
(“Executive”).
WHEREAS,
the
Executive has considerable experience, expertise and training in management
related to banking and services offered by the Bank;
WHEREAS,
the
Bank desires for the Executive to be employed as the Chief Operating Officer
and
Chief Financial Officer (COO and CFO) of the Bank, and Executive desires
to
accept employment, subject to and on the terms and conditions set forth in
this
Agreement; and
WHEREAS,
both
the Bank 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:
A.
DURATION
1. This
Agreement shall become effective (the “Effective Date”) upon the date that the
Bank opens for business and,
subject to Paragraph 2
below, will expire and terminate by its own terms three years after the
Effective Date, unless earlier terminated as provided herein.
2. Both
the Bank and the Executive acknowledge and agree that the parties may agree
to
continue the employment relationship upon such terms as they may mutually
agree.
Following the initial three year term, this Agreement automatically shall
renew
annually for an additional one (1) year term unless either party elects to
terminate this Agreement by sending written notice of non-renewal at least
thirty (30) days prior to the expiration of the then current term. Both parties
acknowledge and agree that, in the event this Agreement does not renew, this
Agreement shall terminate automatically upon the expiration of the then current
term without any additional liability or obligation on the part of either
party,
except as expressly provided herein.
B.
COMPENSATION
3. All
payments of salary and other compensation to the Executive shall be payable
in
accordance with the Bank’s ordinary payroll and other policies and
procedures.
a. During
the term of this Agreement, the Bank agrees to pay the Executive a base salary
of not less than $175,000 annually, appropriately prorated for partial months
at
the commencement and end of the term of this Agreement.
b. The
Bank
shall have the right to deduct from any payment of compensation to the Executive
hereunder any federal, state or local taxes required by law to be withheld
with
respect to such payments and any other amounts specifically authorized to
be
withheld or deducted by the Executive.
c. During
the term of this Agreement, it is anticipated that the board of directors
of the
Bank (“Board of Directors” or “Board”) or a delegated committee thereof will
adopt an executive incentive bonus plan based upon asset growth, profitability
or other measurements deemed appropriate by the Board or a delegated committee
thereof of the Bank. The Executive will be entitled to participate in such
plan.
The Executive shall also be entitled to participate in any benefit programs
applicable to all employees of the Bank or to executive employees of the
Bank in
accordance with Bank policy and the provisions of said benefit
programs.
d. The
Executive shall receive options to purchase 2.8 % of the shares issued in
the
initial public offering of common stock of the Bank at an exercise price
of $10
per share. The options shall have a term of ten years from the date of issuance,
which shall be the Effective Date, and to the extent permitted by law, shall
be
treated as incentive stock options. So long as the Executive remains in Service
(as defined below), 25% of the options shall vest on the first anniversary
date
of the Effective Date and 1/36th
of the
remaining options shall vest monthly over the 36 months following the first
anniversary of the Effective Date; provided, however that the vesting of
all of
the options shall accelerate fully and be deemed to be 100% vested
(i) immediately prior to a change in control of the Bank (as defined in the
stock option agreement) and (ii) upon the death or permanent disability of
the
Executive. The options shall be evidenced by a stock option agreement, which
shall have such terms as are consistent with those set forth above and such
additional terms as may be set forth in the stock option agreement or the
stock
option plan pursuant to which the options are granted. For purposes of this
Agreement, the Executive shall be deemed to remain in “Service” for so long as
the Executive continues to render services to the Bank or any parent or
subsidiary corporation, whether as an employee, an officer, a director, or
a
non-employee member of the board of directors.
4. The
Bank
shall provide the Executive with a cellular phone and laptop computer for
use in
the performance of his or her duties and obligations under this Agreement.
The
Bank also shall reimburse the Executive for all reasonable expenses, including,
but not limited to, travel expenses, lodging expenses, and meals and
entertainment expenses, that the Executive may incur in the performance of
his
or her duties and obligations under this Agreement; provided, however, that
the
Executive shall be required to submit receipts or other acceptable documentation
to the cashier of the Bank or such other officer designated by the Board
of
Directors to verify such expenses prior to any reimbursements.
In
addition to the reimbursement of expenses listed in this Paragraph, the Bank
shall pay, or reimburse the Executive, for reasonable initiation fees for
trade
association memberships deemed to be acceptable and appropriate and which
have
been pre-approved by the Board of Directors.
5. Subject
to the provisions of Paragraph 9
of this
Agreement, the Executive shall be entitled to receive employee and dependent
health insurance, dental insurance, paid sick leave and four (4) weeks of
paid
vacation per year, and any additional benefits provided to all Bank employees.
The Executive’s receipt of such benefits shall be in accordance with the Bank’s
employment policies.
6. The
Board of Directors may determine to provide the Executive with a salary
continuation plan, with such terms as are approved by Executive and the Board
of
Directors.
7. The
Bank also shall provide the Executive with term life insurance coverage at
the
Bank’s expense in an initial amount of 200% of the Executive’s base salary, and
having a term not less than one year, which life insurance benefit will be
provided only for so long as the Executive is employed by the Bank. If, during
the term of this Agreement, the Bank adopts a plan providing life insurance
benefits to other Bank employees and the maximum coverage under such plan
exceeds the maximum permissible coverage provided by this Paragraph, then
notwithstanding the provisions of this Paragraph, the Executive shall be
entitled to participate in the Bank’s life insurance benefit plan to the full
extent that it is available to other Bank employees.
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8. The
Board
of Directors or a delegated committee shall review the amount of the Executive’s
compensation, including his or her base salary, not less than annually and
shall
consider increases to such base salary as a result of such review which
increases would be designed to provide reasonable cost of living adjustments,
all in the discretion of the Board of Directors or such committee and consistent
with safe and sound banking practices; provided however that the Executive’s
base salary, bonuses and vacation shall not be less than the amounts set
forth
in Paragraphs 3,
4,
and
5
at any
time during the term of this Agreement; provided, however, in the event that
the
Bank’s performance (i.e. as demonstrated by asset growth, profitability or other
measure of performance as set forth in Paragraph 3c) does not support the
continued payments of the amounts set forth in Paragraphs 3,
4,
and
5,
then
the Board of Directors shall have the discretion to reduce those amounts
in
order to strengthen such performance.
9. All
employee benefits provided to the Executive by the Bank incident to the
Executive’s employment shall be 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.
10. The
parties hereto acknowledge that the compensation set forth herein and the
other
covenants and agreements of the Bank contained herein are fair and adequate
compensation for the Executive’s services and for the covenants of the Executive
as set forth herein.
C.
RESPONSIBILITIES
11. The
Executive shall be employed as the COO and CFO of the Bank and shall faithfully
devote his or her best efforts and his or her primary focus to his or her
position(s) with the Bank.
12. The
Executive acknowledges and agrees that the duties and responsibilities of
the
Executive required by his or her position as the COO and CFO of the Bank
are
wholly within the discretion of its Board of Directors, and may be modified,
or
new duties and responsibilities imposed by the Board of Directors, at any
time,
without the approval or consent of the Executive. However, these new duties
and
responsibilities may not constitute immoral or unlawful acts. In addition,
the
new duties and responsibilities must be consistent with the Executive’s role as
the COO and CFO of a financial institution.
13. The
Executive acknowledges and agrees that, during the term of this Agreement,
he or
she has a fiduciary duty of loyalty to the Bank, and that he or she will
not
engage in any activity during the term of this Agreement, which will or could,
in any significant way, harm the business, business interests, or reputation
of
the Bank or the reputation of the Board of Directors.
14. The
Executive shall not directly or indirectly engage in competition with the
Bank
at any time during the existence of the employment relationship between the
Bank
and the Executive, and the Executive will not on his or her own behalf, or
as
another’s agent or employee, engage in any of the same or similar duties and/or
Bank-related responsibilities required by the Executive’s position with the
Bank, other than as an employee of the Bank pursuant to this Agreement or
as
specifically approved by the Board of Directors. In addition, without the
prior
written consent of the Board of Directors, Executive shall not usurp for
himself
or herself any corporate opportunity available to the Bank.
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D.
NONINTERFERENCE
15. The
Executive acknowledges that, as part of his or her employment with the Bank,
he
or she will become familiar with the salary, pay scale, capabilities,
experiences, skill and desires of the Bank’s employees. The Executive agrees to
maintain the confidentiality of such information. The Executive further
covenants and agrees that, for a period of one year subsequent to the
termination of this Agreement, whether such termination occurs at the insistence
of the Bank or the Executive, the Executive shall not recruit, hire, or attempt
to recruit or hire, directly or by assisting others, any employees of the
Bank,
nor shall the Executive contact or communicate with any employees of the
Bank
for the purpose of inducing such employees of the Bank to terminate their
employment with the Bank. For purposes of this covenant, “employees of the Bank”
shall refer to employees who are still actively employed by or were employed
by
the Bank within the prior year at the time of the attempted recruiting or
hiring.
16. In
his or
her position of employment, the Executive will be exposed to confidential
information and trade secrets (hereafter “Proprietary Information”) pertaining
to, or arising from, the business of the Bank and its affiliates (if any).
The
Executive hereby agrees and acknowledges that such Proprietary Information
is
unique and valu-able to the Bank’s business and that the Bank would suffer
irreparable injury if this information were publicly disclosed. Therefore,
the
Executive agrees to keep in strict secrecy and confidence, both during and
after
the period of his or her employment, any and all Proprietary Information
which
the Executive acquires, or to which the Executive has access, during employment
by the Bank, that has not been publicly disclosed by the Bank, until such
time
as such Proprietary Information becomes generally known to the public other
than
pursuant to a breach of this Paragraph 16 by the Executive. The Proprietary
Information covered by this Agreement shall include, but shall not be limited
to: (i) the identities of the Bank’s existing and prospective customers or
clients, including names, addresses, credit status, and pricing levels;
(ii) the buying and selling habits and customs of the Bank’s existing and
prospective customers or clients; (iii) financial information about the
Bank; (iv) product and systems specifications, concepts for new or improved
products and other product or systems data; (v) the identities of, and
special skills possessed by, the Bank’s employees; (vi) the identities of
and pricing information about the Bank’s suppliers and vendors;
(vii) training programs developed by the Bank; (viii) pricing studies,
information and analyses; (ix) current and prospective products and
inventories; (x) financial models, business projections and market studies;
(xi) the Bank’s financial results and business conditions;
(xii) business plans and strategies; (xiii) special processes,
procedures, and services of the Bank and its suppliers and vendors; and
(xiv) computer programs and software developed by the Bank or its
consultants. The
provisions and agreements entered into herein shall survive the term of the
Employee’s employment to the extent reasonably necessary to accomplish their
purpose in protecting the interests of the Bank in any Proprietary Information
disclosed to, or learned by, the Executive while employed.
17. The
Executive expressly represents that he or she has no agreements with, or
obligations to, any party which conflict, or may conflict, with the inter-ests
of the Bank or with the Executive’s duties as an employee of the
Bank.
18. The
Executive acknowledges that the special relationship of trust and confidence
between him or her, the Bank, and its clients and customers creates a high
risk
and opportunity for the Executive to misappropriate the relationship and
goodwill existing between the Bank and its clients and customers. The Executive
further acknowledges and agrees that it is fair and reasonable for the Bank
to
take steps to protect itself from the risk of such misappropriation. The
Executive further acknowledges that, at the outset of his or her employment
with
the Bank and throughout his or her employment with the Bank, the Executive
will
be provided with access to and informed of Proprietary Information, which
will
enable him or her to benefit from the Bank’s goodwill and know-how.
19. The
Executive acknowledges that it would be inevitable in the performance of
his or
her duties as a director, officer, employee, investor, agent or consultant
of
any person, association, entity, or company which competes with the Bank,
or
which intends to or may compete with the Bank, to disclose and/or use
Proprietary Information, as well as to misappropriate the Bank’s goodwill and
know-how, to or for the benefit of such other person, association, entity,
or
company. The Executive also acknowledges that, in exchange for the execution
of
the non-solicitation restriction set forth in these NONINTERFERENCE provisions,
he or she has received substantial, valuable consideration, including:
(i) confidential trade secret and proprietary information relating to the
identity and special needs of the Bank’s current and prospective customers, the
Bank’s current and prospective services, the Bank’s business projections and
market studies, the Bank’s business plans and strategies, the Bank’s studies and
information concerning special services unique to the Bank;
(ii) employment; and (iii) compensation and benefits as described in this
Agreement. The Executive further acknowledges and agrees that this consideration
constitutes fair and adequate consideration for the execution of the
non-solicitation restriction set forth herein.
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20. In
consideration for the above-recited valuable consideration, as well as to
protect the vital interests described in these NONINTERFERENCE provisions,
the
Executive understands and agrees that during the continuation of this Agreement
and for a period of one year following the termination of this Agreement
by
either party, for any reason (other than for termination of the Executive
for
circumstances described in Paragraph 25(e),
below), the Executive will not be or become engaged in any way (directly
or
indirectly), as an individual proprietor, beneficiary, trustee, owner, partner,
stockholder, officer, director, executive, investor, lender, sales
representative, or in any other capacity, whatsoever, in any activity or
endeavor which competes or conflicts with the business of the Bank or any
of its
subsidiaries, as such business has been conducted during the years of the
Executive’s employment with the Bank, within twenty (20) miles of the primary
office of Executive upon the termination of Executive’s employment with the
Bank. It is the parties’ desire that these restrictions be enforced to the
fullest extent allowed by law.
21. The
Executive agrees that the restrictions set forth in Paragraph 20
above
are ancillary to an otherwise enforceable agreement, are supported by
independent valuable consideration, and that the limitations as to time,
geographical area, and scope of activity to be restrained by Paragraph
20
are
reasonable and acceptable, and do not impose any greater restraint than is
reasonably necessary to protect the goodwill and other business interests
of the
Bank. The Executive further agrees that such restrictions do not create undue
hardship for him or her or for the public. The NONINTERFERENCE provisions
in
this Section D are not intended to be construed as a general restraint from
engaging in a lawful profession or a general covenant against competition.
Nothing herein will prohibit the Executive’s (i) beneficial ownership of less
than 5% of the publicly traded capital stock of a corporation listed on a
national securities exchange so long as this is not a controlling interest,
or
(ii) ownership of mutual fund investments. The Executive may not avoid the
purpose and intent of this paragraph by engaging in conduct within the
geographically limited area from a remote location through means such as
telecommunications, written correspondence, computer generated or assisted
communications, or other similar methods. The Executive agrees that if, at
some
later date, a court of competent jurisdiction determines that the
non-solicitation agreement set forth in this Section D does not meet the
criteria set forth by applicable law, then such agreement may be reformed
by the
court and enforced to the maximum extent permitted under applicable
law.
The Executive
understands that his or her obligations under this Section D shall not be
assignable by him or her.
22. The
Executive acknowledges that the covenants set forth in these NONINTERFERENCE
provisions are material conditions to the Bank’s willingness to execute and
deliver this Agreement and to provide Executive the compensation and benefits
and other consideration provided hereunder. The parties agree that the existence
of any claim or cause of action of Executive against the Bank, whether
predicated on this Agreement or otherwise, will not constitute a defense
to the
enforcement by the Bank of such covenants. It is specifically acknowledged
that
the periods following the termination of employment stated in Paragraphs
15
and
20,
during
which the agreements and covenants of Executive made in such Paragraphs are
effective, are to be computed by excluding from such computation any time
during
which Executive is in violation of any provision of Paragraph 15
or
20.
The
covenants contained in these NONINTERFERENCE provisions will not be affected
by
any breach of any other provision hereof by any party hereto. In addition,
Executive’s obligations under these NONINTERFERENCE provisions shall survive the
termination of this Agreement and Executive’s employment with the Bank.
Executive’s obligations under these NONINTERFERENCE provisions are in addition
to, and not in limitation or preemption of, all other obligations of
confidentiality which he or she may have to Bank under general legal or
equitable principles, or other the Bank policies.
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E.
REMEDIES
23. In
the
event that the Executive violates any of the provisions set forth in this
Agreement relating to NONINTERFERENCE, Executive acknowledges that the Bank
would suffer immediate and irreparable harm and would not have an adequate
remedy at law for money damages. Accordingly, Executive agrees that, without
the
necessity of proving actual damages or posting bond or other security, the
Bank
shall be entitled to temporary or permanent injunction or injunctions to
prevent
breaches of such performance and to specific enforcement of such covenants
in
addition to any other remedy to which the Bank may be entitled, at law or
in
equity. In such a situation, the parties agree that the Bank may pursue any
remedy available, including declaratory relief, concurrently or consecutively
in
any order as to any breach, violation, or threatened breach or violation
of any
of the provisions set forth in this Agreement relating to NONINTERFERENCE,
and
the pursuit of any particular remedy or remedies shall not be deemed an election
of remedies or waiver of the right to pursue any other remedy.
To the
extent that the provisions of this Paragraph 23 could be read to increase
the
geographic, temporal or other scope of the restrictions set forth in this
Agreement relating to NONINTERFERENCE, such reading is not intended by the
parties.
F.
TERMINATION
24. The
Board
of Directors shall be entitled to terminate this Agreement, for any reason,
by
providing the Executive with thirty (30) days written notice of the termination.
However, if this Agreement is terminated by the Bank without Good Cause,
as
defined in this Agreement, the Bank shall provide the Executive with the
severance set
forth
in paragraph 34
of this
Agreement. The Executive will not receive any severance payments if the
termination of this Agreement by the Board of Directors is made on the basis
of
Good Cause as defined in Paragraph 25 below. However, if the Executive is
terminated by the Board of Directors under the provisions of paragraph 25(e)
within the first twelve months of this Agreement, the Executive shall be
entitled to a severance payment in an amount equal to the base salary that
would
have been due to the Executive had he or she remained employed for six (6)
months following termination.
25. For
purposes of this Agreement, “Good Cause” shall be defined as the occurrence of
one of the following events:
a. The
determination by the Board of Directors, in the exercise of its reasonable
judgment, that Executive has violated any provision of this Agreement or
is
grossly negligent in the performance of his or her duties hereunder, and
has
failed to cure such violation or the effects of such gross negligence within
a
reasonable period after written notice to the Executive by the Bank specifying
in reasonable detail the alleged violation;
b. The
determination by the Board of Directors, in the exercise of its reasonable
judgment, that (i) Executive has failed to follow the policies adopted by
the
Board of Directors and has failed to cure such failure within a reasonable
period after written notice to the Executive by the Bank specifying in
reasonable detail the alleged failure; or (ii) Executive has engaged in such
actions or omissions that would constitute unsafe or unsound banking
practices;
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c. The
Executive is convicted of a misdemeanor involving moral turpitude or a
felony;
d. The
determination by the Board of Directors, in the exercise of its reasonable
judgment, that the Executive has engaged in gross misconduct in the course
and
scope of his or her employment with the Bank including indecency, immorality,
gross insubordination, dishonesty, unlawful harassment, use of illegal drugs,
or
fighting;
e. The
determination by the Board of Directors, in the exercise of its reasonable
judgment and in good faith, that the Executive’s job performance is
substantially unsatisfactory and that Executive has failed to cure such
performance within a reasonable period after written notice to the Executive
by
the Bank specifying in reasonable detail the nature of the unsatisfactory
performance; or
f. The
Executive is prohibited from engaging in the business of banking by any
governmental regulatory agency having jurisdiction over the Bank.
26. Executive
shall be entitled to terminate this Agreement at any time, for any reason,
with
or without cause, by providing thirty (30) days written notice to the Bank.
The
effective date of such resignation shall be the 30th
calendar
day following the date the notice is given or such other later date as may
be
set forth in the notice. Upon Executive’s resignation, Executive shall be
entitled to receive any base salary which has been earned by him or her through
the effective date of such resignation.
27. If
Executive dies during the term of this Agreement and while in the employ
of the
Bank, this Agreement will terminate automatically, without notice, on the
date
of the Executive’s death and the Bank shall not have any further obligation to
Executive or his or her estate under this Agreement (other than death benefits
payable under any benefit plans to which Executive is a party), except that
the
Bank shall pay Executive’s estate that portion of Executive’s base salary
accrued through the date on which Executive’s death occurred plus an additional
three (3) months base salary. To
the maximum extent, and for the term, permitted by the health benefit
provisions
of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of
1986,
if Executive dies during
the term of this Agreement and while in the employ of the Bank,
the Bank shall provide or maintain health insurance benefits, at the Bank’s
expense, for Executive’s spouse.
28. This
Agreement will terminate immediately, without notice, in the event the Executive
is prevented from performing his or her duties hereunder by reason of becoming
physically or mentally disabled. For purposes of this Agreement, the term
“disabled” shall have the meaning set forth in the Bank’s long-term disability
plan or, if the Bank has no long-term disability plan in effect at the time
of
the Executive’s disability, then “disabled” shall mean that Executive has become
physically or mentally incapable (excluding infrequent and temporary absences
due to ordinary illness) of performing the essential functions of his or
her
duties under this Agreement for a continuous period of three (3) months,
as
determined by the Board of Directors upon the advice of a qualified physician.
In the event a dispute arises between Executive and the Bank concerning
Executive’s physical or mental ability to continue or return to the performance
of his or her duties, then Executive shall submit to an examination by a
competent physician mutually agreeable to the parties. The physician’s opinion
as to the Executive’s capability to perform his or her duties will be final and
binding. During any period prior to termination during which the Executive
fails
to perform his or her duties as a result of incapacity due to physical or
mental
illness, the Executive shall continue to receive his or her full salary at
the
rate then in effect for such period until his or her employment terminates
pursuant to this Paragraph 28, provided that payments so made to the Executive
during such period shall be reduced by the sum of the amounts, if any, payable
to the Executive under any disability benefit plans of the Bank that were
not
previously applied to reduce such payment.
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In
the
event of a termination pursuant to this Section 28, the Bank shall be relieved
of all its obligations under this Agreement, except that Bank shall pay to
the
Executive, or to his or her estate in the event of his or her subsequent
death,
the Executive’s base salary under Paragraph 3(a) through the date on which such
termination shall have occurred, reduced during such period by the amount
of any
benefits received by Executive under any disability policy maintained by
the
Bank. All such payments to the Executive or to his or her estate shall be
made
in the same manner as other payroll obligations.
29. Executive
acknowledges that all memoranda, notes, records, reports, manuals, books,
papers, letters, client and customer lists, contracts, software programs,
information and records, drafts of instructions, guides and manuals, and
other
documentation (whether in draft or final form), and other sales or financial
information and aids relating to the Bank’s business, and any and all other
documents containing Propriety Information furnished to the Executive by
any
representative of the Bank or otherwise acquired or developed by the Executive
in connection with his or her duties under this Agreement (collectively,
the
“Recipient Materials”) shall at all times be the property of the Bank. Within
three calendar days of the termination of this Agreement, the Executive shall
return to the Bank, all Recipient Materials (including all Proprietary
Information) that is in his or her possession, custody or control.
30. The
provisions of Paragraphs 15,
16,
20-23,
29-34,
39,
43,
45,
46 and
47 shall survive the termination of this Agreement.
G.
CHANGE
OF CONTROL
31. The
parties acknowledge that the Executive has agreed to assume the position
of COO
and CFO and to enter into this Agreement based on his or her confidence in
the
current owners of the Bank and the direction of the Bank provided by the
current
Board of Directors. Upon a “Change of Control,” as defined below, the Executive
may, at his or her option, notify the Bank within sixty (60) days following
such
Change of Control that he or she intends to terminate this Agreement based
upon
the Change of Control.
In
the
event that Executive is terminated by the Bank within sixty (60) days following
such Change of Control for any reason other than for Good Cause, with the
exception of Paragraph 25e, Executive shall be entitled to elect to receive
as
severance the lump sum amount determined pursuant to Paragraph 32
upon
written notice to the Bank, in which case the severance provisions of Paragraph
34
shall
not apply.
32. In
the
event that the Executive elects to terminate this Agreement based upon the
Change of Control, the Bank shall pay to the Executive, within thirty (30)
days
of Bank’s receipt of a notice of the Executive’s election to terminate this
Agreement, a cash lump sum payment equal to 1.99 times his or her Base Amount
as
defined in section 280G(b)(3) of the Internal Revenue Code of 1986, as amended
(“Code”).
In
the
event that any compensation payable under this Agreement is determined to
be a
“parachute payment” subject to the excise tax imposed by Section 4999 of the
Code or any successor provision (the “Excise Tax”), the Bank agrees to pay to
the Executive an additional sum (the “Gross Up”) in an amount such that the net
amount retained by the Executive, after receiving both the payment and the
Gross
Up and after paying: (i) any Excise Tax on the payment and the Gross Up,
and
(ii) any federal, state, and local income taxes on the Gross Up, is equal
to the
amount of the payment.
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For
purposes of determining the Gross Up, the Executive shall be deemed to pay
federal, state, and local income taxes at the highest marginal rate of taxation
in his or her filing status for the calendar year in which the payment is
to be
made based upon the Executive’s domicile on the date of the event that triggers
the Excise Tax. The determination of whether such Excise Tax is payable and
the
amount of such Excise Tax shall be based upon the opinion of tax counsel
selected by the Bank, subject to the reasonable approval of the Executive.
If
such opinion is not finally accepted by the Internal Revenue Service, then
appropriate adjustments shall be calculated (with additional Gross Up determined
based on the principals outlined in the previous paragraph, if applicable)
by
such tax counsel based upon the final amount of Excise Tax so determined
together with any applicable penalties and interest. The final amount shall
be
paid, if applicable, within thirty (30) days after such calculations are
completed, but in no event later than April 1st
of the
year following the event that triggers the Excise Tax. Such compensation
shall
be payable in equal disbursements in accordance with the Bank’s ordinary payroll
policies and procedures.
33. As
used
in this Agreement, a “Change of Control” shall be deemed to have occurred in
each of the following instances:
a. A
reorganization, merger, consolidation or other corporate transaction involving
the Bank (other than the Bank’s initial public offering of common stock), in
each case, with respect to which the shareholders of the Bank, immediately
prior
to such transaction do not, immediately after the transaction, own more than
fifty percent (50%) of the combined voting power of the reorganized, merged
or
consolidated bank’s then outstanding voting securities; provided, however that a
Change of Control shall not be deemed to have occurred upon the formation
of a
holding company for the Bank if each shareholder of the Bank immediately
prior
to the formation of the holding company retains substantially the same
percentage ownership of the holding company following such formation as he
or
she owned of the Bank prior the formation.
b. The
sale,
transfer or assignment of all or substantially all of the assets of the Bank
to
any third party.
Notwithstanding
anything contained herein to the contrary, if Executive’s employment is
terminated and he or she 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 of Control and who effects a Change
of
Control, or such termination otherwise occurred in connection with, or in
anticipation of, a Change of Control which later actually occurs, then for
all
purposes hereof, a Change of Control shall be deemed to have occurred on
the day
immediately prior to the date of such termination of his or her
employment.
X.
XXXXXXXXX
34. Except
as
otherwise expressly provided herein, if Bank terminates Executive’s employment
for any reason other than Good Cause (as defined in this Agreement), then
Executive shall be entitled to severance pay in an amount not less than the
base
salary that would have been due the Executive had he or she remained employed
for twelve (12) months following termination. In the event that the Executive
is
entitled to any payment under Section G, above, no payment shall be due under
this Section H.
Any
severance pay due to Executive pursuant to this Section H shall be paid in
accordance with the terms of normal payroll procedure of the Bank.
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I.
SEVERABILITY
35. If
any
term or other provision of this Agreement is held to be illegal, invalid
or
unenforceable by any rule of law or public policy: (A) such term or provision
shall be fully severable and this Agreement shall be construed and enforced
as
if such illegal, invalid or unenforceable provision were not a part hereof;
(B)
the remaining provisions of this Agreement shall remain in full force and
effect
and shall not be affected by such illegal, invalid or unenforceable provision
or
by its severance from this Agreement; and (C) there shall be added automatically
as a part of this Agreement a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and still be legal,
valid
and enforceable.
If any
provision of this Agreement is so broad as to be unenforceable, the provision
shall be interpreted to be only as broad as is enforceable.
J.
WAIVER
36. The
parties acknowledge and agree that the failure of either party 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
37. 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.
38. The
Executive acknowledges and agrees that his or her 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
39. THIS
AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND ALL QUESTIONS
CONCERNING THE CONSTRUCTION, VALIDITY, INTERPRETATION AND PERFORMANCE OF
THIS
AGREEMENT SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF COLORADO, WITHOUT
GIVING EFFECT TO PROVISION THEREOF REGARDING CONFLICT OF LAWS. IT IS STIPULATED
THAT COLORADO HAS A COMPELLING STATE INTEREST IN THE SUBJECT MATTER OF THIS
AGREEMENT, AND THAT THE EXECUTIVE HAS OR WILL HAVE REGULAR CONTACT WITH THE
STATE OF COLORADO IN THE PERFORMANCE OF THIS AGREEMENT.
M.
MODIFICATION
40. The
parties acknowledge and agree that this Agreement and the other agreements
and
plans referenced herein constitute the complete and entire agreement between
the
parties; that each executed this Agreement based upon the express terms and
provisions set forth herein; that, in accepting employment with the Bank,
the
Executive has 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. No waiver shall be deemed a continuing waiver
or a
waiver of any subsequent breach or default, either of a similar or different
nature, unless expressly so stated in writing.
-10-
41. Except
as
otherwise expressly provided in this Agreement, no conditions, usage of trade,
course of dealing or performance, understanding or agreement purporting to
modify, vary, explain or supplement the terms or conditions of this Agreement
unless hereafter made (i) in writing, (ii) referencing an express
provision in this Agreement, (iii) signed by the party to be bound, , and
(iv) in the case of the Bank, approved by a disinterested majority of the
Board of Directors.
N.
INDEMNIFICATION
42. During
the term of this Agreement, so long as the Executive has demonstrated good
judgment and diligence in performing his duties, 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 or her employment by the Bank to the fullest extent permissible
under the law, including, without limitation, federal and/or state banking
laws
and regulations, the Colorado Banking Code, as amended, the Colorado
Corporations and Associations Act, as amended, and the Bank’s Articles of
Incorporation. To the extent permitted by law, the Bank may purchase such
indemnification insurance as the Board of Directors may from time to time
determine.
O.
ARBITRATION
43. Any
dispute, controversy, or claim arising out of or relating to this Agreement
or
breach thereof, or arising out of or relating in any way to the employment
of
the Executive or the termination thereof, shall be submitted to arbitration
in
accordance with the Employment Dispute Arbitration Rules of the American
Arbitration Association. Judgment upon the award rendered by the arbitrator
may
be entered in any court of competent jurisdiction. In reaching his or her
decision, the arbitrator shall have no authority to ignore, change, modify,
add
to or delete from any provision of this Agreement, but instead is limited
to
interpreting this Agreement. Notwithstanding the arbitration provisions set
forth in this Agreement, the Executive and the Bank acknowledge and agree
that
nothing in this Agreement shall be construed to require the arbitration of
any
claim or controversy arising under the NONINTERFERENCE provisions of this
Agreement. These provisions shall be enforceable by any court of competent
jurisdiction and shall not be subject to this Paragraph of the Agreement.
The
Executive and the Bank further acknowledge and agree that nothing in this
Agreement shall be construed to require arbitration of any claim for workers’
compensation or unemployment compensation.
P.
LEGAL
CONSULTATION
44. Each
party acknowledges that it has carefully read this Agreement, that it has
had an
opportunity to consult with his, her or its attorney concerning the meaning,
import and legal significance of this Agreement, that it understands the
terms
of the Agreement, that all understandings and agreements between Executive
and
the Bank relating to the subjects covered in this Agreement are contained
in it,
and that it has entered into the Agreement voluntarily and not in reliance
on
any promises or representations by the other than those contained in this
Agreement.
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Q.
MISCELLANEOUS
45. The
Executive shall make himself or herself available, upon the request of the
Bank,
to testify or otherwise assist in litigation, arbitration, or other disputes
involving the Bank, or any of the directors, officers, employees, subsidiaries,
or parent corporations of the Bank, at no additional cost during the term
of
this Agreement and at any time following the termination of this Agreement,
with
any expenses related to the foregoing to be promptly reimbursed by the
Bank.
46. 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.
47. 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.
48. 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.
49. The
Bank
shall have no obligation to set aside, earmark or entrust any fund or money
with
which to pay its obligations under this Agreement. The Executive or any
successor-in-interest to the Executive shall be and remain simply a general
creditor of the Bank in the same manner as any other creditor having a general
unsecured claim. For purposes of the Code, the Bank intends this Agreement
to be
an unfunded, unsecured promise to pay on the part of the Bank. For purposes
of
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), the Bank
intends that this Agreement not be subject to ERISA. If it is deemed subject
to
ERISA, it is intended to be an unfunded arrangement for the benefit of a
select
member of management, who is a highly compensated employee of the Bank for
the
purpose of qualifying this Agreement for the “top hat” plan exception under
sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. At no time shall the
Executive have or be deemed to have any lien nor right, title or interest
in or
to any specific investment or to any assets of the Bank. If the Bank elects
to
invest in a life insurance, disability or annuity policy upon the life of
the
Executive, then the Executive shall assist the Bank by freely submitting
to a
physical examination and supplying such additional information necessary
to
obtain such insurance or annuities.
50. When
a
reference is made in this Agreement to a Paragraph or a Section, such references
shall be to a Paragraph or a Section of this Agreement unless otherwise
indicated. The headings contained
in this Agreement are for convenience of reference only and shall not affect
in
any way the meaning or interpretation of this Agreement. Whenever the words
“include,” “includes” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation.” The words “hereof,”
“herein” and “hereunder” and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision
in
this Agreement. Each use herein of the masculine, neuter or feminine gender
shall be deemed to include the other genders.
Each
use
herein of the plural shall include the singular and
vice
versa, in each case as the context requires or as is otherwise appropriate.
The
word “or” is used in the inclusive sense. Any agreement or instrument defined or
referred to herein or in any agreement or instrument that is referred to
herein
means such agreement or instrument as from time to time amended, modified
or
supplemented, including by waiver or consent.
References to a person are also to its permitted successors or
assigns.
-12-
51. Executive
represents that his or her service as an employee of the Bank will not violate
any agreement: (i) he or she has made that prohibits him or her from disclosing
any information he or she acquired prior to him or her becoming employed
by the
Bank; or (ii) he or she has made that prohibits him or her from accepting
employment with the Bank or that will interfere with his or her compliance
with
the terms of this Agreement. Executive further represents that he or she
has not
previously, and will not in the future, disclose to Bank any proprietary
information or trade secrets belonging to any previous employer. Executive
acknowledges that the Bank has instructed him or her not to disclose to it
any
proprietary information or trade secrets belonging to any previous
employer.
R.
NOTICES
52. All
notices and other communications required or permitted to be given or delivered
hereunder or by reason of the provisions of this Agreement shall be in writing
and shall be deemed to have been given properly if (a) delivered personally,
(b)
delivered by a recognized overnight courier service, (c) sent by United States
mail, postage prepaid, or (d) sent by facsimile transmission followed by
a
confirmation copy delivered by recognized overnight courier service the next
day. Such notices, requests, consents and other communications shall be sent
to
the respective parties as follows (or at such other address for a party as
shall
be specified by like notice to the other party):
If
to the
Bank:
Solera
Bank, N.A.
000
X.
Xxxxxx Xxx. Xxxxx 000
Xxxxxx,
Xxxxxxxx 00000
Attention:
Chairman
If
to
Executive:
Xxxxxx
X. Xxxxxx
000
Xxxxxxxxx Xx.
Xxxxxx
Xxxx, Xxxxxxxx 00000
53. Any
notice or other communication given pursuant to this Agreement shall be
effective (i) in the case of personal delivery, telex or facsimile transmission,
when received; (ii) in the case of mail, upon the earlier of actual receipt
or
five (5) business days after deposit with the United States Postal Service,
first class certified or registered mail, postage prepaid, return receipt
requested; and (iii) in the case of a recognized overnight courier service,
one
(1) business day after delivery to the courier service together with all
appropriate fees or charges and instructions for overnight delivery.
[signature
page follows]
-13-
[signature
page to Employment Agreement]
EXECUTED
AS OF THE DATE FIRST WRITTEN ABOVE IN DENVER, COLORADO.
| EXECUTIVE | |||
|
WITNESS
|
|||
| Print Name: |
Xxxxxx
X. Xxxxxx
|
||
| Solera Bank, N.A. | |||
| By: |
|
||
|
WITNESS
|
|||
| Name: |
Xxxxx
X. Xxxxxx
|
||
| Title: |
Chairman
|
||
-14-
