EXHIBIT 10.1
AMENDED
EMPLOYMENT AGREEMENT
THIS AMENDED EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 12th
day of January, 2004, effective as of July , 2003, between AmericasBank (the
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"Bank" or "Employer"), a Maryland-chartered commercial bank and a wholly owned
subsidiary of AmericasBank Corp, Inc., and Xxxx X. Xxxxxx, a resident of the
State of Maryland (the "Employee").
RECITALS:
The Employer desires to employ the Employee as the President and Chief
Executive Officer of the Employer and the Employee desires to accept such
employment.
In consideration of the above premises and the mutual agreements
hereinafter set forth, the parties hereby agree as follows:
1. DEFINITIONS. Whenever used in this Agreement, the following terms and their
variant forms will have the meaning set forth below:
1.1 "Agreement" means this Agreement and any exhibits incorporated herein
together with any amendments hereto made in the manner described in this
Agreement.
1.2 "Affiliate" means any business entity which controls the Employer, is
controlled by or is under common control with the Employer.
1.3 "Board" means the board of directors of the Bank.
1.4 "Business of the Employer" means the business conducted by the
Employer, which is community banking.
1.5 "Cause" shall include personal dishonesty, willful misconduct, breach
of fiduciary duty involving personal profit, intentional failure to perform
stated duties as set forth in Exhibit A, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or final cease
and desist order or a material breach of any material provision of this
Agreement, provided, however, that no termination of employment which is
triggered by a material breach of any material provision of this Agreement shall
constitute a termination of employment for Cause unless the Employer has first
provided the Employee with the opportunity to cure the event or conduct by
giving the Employee a written notice describing in sufficient detail the
Employer's belief that Cause exists and the Employer defers termination of
employment until the expiration of a ninety (90) day cure period, beginning with
the date such notice is received by the Employee. No act, or failure to act, on
the Employee's part shall be considered willful unless he has acted, or failed
to act, with an absence of good faith and without reasonable belief that his
action or failure to act was in the best interest of the Emnployer.
1.6 "Company" means any entity that controls the Bank
1.7 "Company Information" means Confidential Information and Trade Secrets.
1.8 "Confidential Information" means data and information relating to the
business of the Employer (which does not rise to the status of a Trade Secret)
and/or an Affiliate which is or has been disclosed to the Employee or of which
the Employee became aware as a consequence of or through the Employee's
relationship to the Employer and which has value to the Employer and is not
generally known to its competitors. Confidential Information does not include
any data or information that has been voluntarily disclosed to the public by the
Employer (except where such public disclosure has been made by the Employee
without authorization) or that has been independently developed and disclosed by
others, or that otherwise enters the public domain through lawful means.
1.9 "Change in Control" means any one of the following events:
(a) the acquisition, subsequent to the Recapitalization, by any person
or persons acting in concert of the then outstanding voting securities of
either the Bank or the Company, if, after the transaction, the acquiring
person (or persons) owns, controls or holds with power to vote fifty
percent (50%) or more of any class of voting securities of the Bank or the
Company, as the case may be, or such other transaction as may be described
under 12 C.F.R. Section 225.41(b)(1) or any successor thereto;
(b) the approval, subsequent to the Recapitalization, by the
stockholders of either the Bank or the Company of a reorganization, merger
or consolidation, with respect to which persons who were the stockholders
of either the Bank or the Company, as the case may be, immediately prior to
such reorganization, merger or consolidation do not, immediately
thereafter, own more than fifty percent (50%) of the combined voting power
entitled to vote in the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities;
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(c) the sale, transfer or assignment of all or substantially all of
the assets of the Company or the Bank to any third party; or
(d) within any twelve-month period (beginning one year after the
Effective Date) the persons who were directors of the Bank immediately
before the beginning of such twelve-month period (the "Incumbent
Directors") cease to constitute at least a majority of such board of
directors; provided that any director who was not a director as of the
Effective Date will be deemed to be an Incumbent Director if that director
was elected to such board of directors by, or on the recommendation of or
with the approval of, a majority of the directors who then qualified as
Incumbent Directors;
1.10 "Effective Date" means , 2003.
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1.11 "Good Reason" means, any of the following events or conduct preceding
a termination of employment initiated by the Employee:
(a) a material diminution in the powers, responsibilities or duties of
the Employee hereunder, a material change as to whom Employee reports and
who reports to Employee, material interference by the Board in the
discharge of the duties of Employee as President and Chief Executive
Officer of the Bank; and/or a material deviation by the Board from a
previously adopted strategic plan unless such material deviation is
approved by the Board as being in the best interests of the shareholders of
the Bank and a proper exercise of the Board's fiduciary duty;
(b) the failure of the Board to elect the Employee as the President
and Chief Executive Officer of the Bank;
(c) a material breach of any provision of this Agreement by the
Employer;
(d) the failure of the Board to nominate the Employee for re-election
following expiration of each of the Employee's terms of service on the
Board that arises during the Term (as defined below);
(e) a change in the location of the principal office of Employee more
than thirty five (35) miles from its existing location;
(f) a regulatory agency with authority to declare the Bank insolvent
and appoint a receiver does declare the Bank insolvent and appoint a
receiver; or
(g) failure of the shareholders to elect Employee as a director of the
Bank.
provided, however, that no termination of employment which is triggered by any
conduct or event described in this Section 1.11 except for Section 1.11(f) shall
constitute a termination of employment for Good Reason unless the Employee has
first provided the Employer with the opportunity to cure the event or conduct by
giving the Employer a written notice describing in
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sufficient detail the Employee's belief that a Good Reason exists and the
Employee defers resigning until the expiration of a ninety (90) day cure period,
beginning with the date such notice is received by the Employer.
1.12 "Permanent Disability" means the total inability of the Employee to
perform the Employee's duties under this Agreement for a period of one hundred
and eighty (180) consecutive days as certified by a physician chosen by the
Employer and reasonably acceptable to the Employee.
1.13 "Recapitalization" means one or more sale or sales of stock for cash
or the issuance of one or more debt instrument or debt instruments in a
cumulative amount not to exceed $5,000,000 by Employer or an Affiliate of
Employer through one or more stock or debt offerings within 18 months of the
effective date.
1.14 "Trade Secrets" means information including, but not limited to,
technical or nontechnical data, formulas, patterns, compilations, programs,
devices, methods, techniques, drawings, processes, financial data, financial
plans, product plans or lists of actual or potential customers or suppliers
which:
(a) derives economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or use; and
(b) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
2. DUTIES.
2.1 The Employee is employed as the President and Chief Executive Officer
of the Bank, subject to the direction of the Board, must perform and discharge
well and faithfully the duties which may be assigned to him from time to time by
the Employer in connection with the conduct of its business. The duties and
responsibilities of the Employee are set forth on Exhibit A attached hereto.
2.2 In addition to the duties and responsibilities specifically assigned to
the Employee pursuant to Section 2.1 hereof, the Employee must:
(a) devote substantially all of the Employee's time, energy and skill
during regular business hours to the performance of the duties of the
Employee's employment (reasonable vacations and reasonable absences due to
illness excepted) and faithfully and industriously perform such duties;
(b) diligently follow and implement all management policies and
decisions communicated to him by the Board; and
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(c) timely prepare and forward to the Board all reports and accounting
as may be requested of the Employee.
2.3 The Employee must not during the Term of this Agreement be engaged
(whether or not during normal business hours) in any other business or
professional activity, whether or not such activity is pursued for gain, profit
or other pecuniary advantage; but this will not be construed as preventing the
Employee from:
(a) investing the Employee's personal assets in businesses which are
not in competition with the Business of the Employer and which will not
require any services on the part of the Employee in their operation or
affairs and in which the Employee's participation is solely that of an
investor;
(b) purchasing securities in any corporation whose securities are
regularly traded provided that such purchase will not result in him
collectively owning beneficially at any time five percent (5%) or more of
the equity securities of any business in competition with the Business of
the Employer; and
(c) materially participating in civic and professional affairs and
organizations and conferences, preparing or publishing papers or books or
teaching so long as the Board approves of such activities prior to the
Employee's engaging in them.
3. TERM AND TERMINATION.
3.1 Term. The term of this Agreement will initially be set at five (5)
years commencing on the date hereof. Commencing on the first anniversary date of
this Agreement (the "Anniversary Date"), and continuing on each Anniversary Date
thereafter, this Agreement shall renew for an additional year such that the
remaining term shall be five (5) years unless written notice of non- renewal is
provided to Employee at least ten (10) and not more than (30) days prior to such
Anniversary Date, that his employment shall cease at the end of five (5) years
following such Anniversary Date. Prior to each notice period for non-renewal,
the non-employee members of the Board will conduct a comprehensive performance
evaluation and review of the Employee for purposes of determining whether to
extend the Agreement, and the results thereof shall be included in the minutes
of the Board's meeting (as so calculated, the "Term").
3.2 Termination. The employment of the Employee under this Agreement may be
terminated prior to the expiration of the Term only as follows, subject to the
conditions set forth below:
3.2.1 By the Employer:
(a) for Cause at any time, subject to the notice and cure period
contained in Section 1.6 hereof and a determination of Cause by
two-thirds of the Board non-employee Board members, in which event the
Employer will have no further obligation to the Employee except for
the payment of any amounts due and owing under Section 4 on the
effective date of the termination;
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(b) without Cause any time, provided that the Employer gives the
Employee sixty (60) days' prior written notice of its intent to
terminate, in which event the Employer will be required to make the
termination payments under Section 3.6.1; or
(c) upon the Permanent Disability of Employee in which event the
Employer will have no further obligation to the Employee except for
the payment of any amounts due and owing under Section 4 on the
effective date of the termination.
3.2.2 By the Employee:
(a) for Good Reason in which event the Employer will be required
to make the termination payments under Section 3.6.1;
(b) without Good Reason , provided that the Employee gives the
Employer sixty (60) days' prior written notice of the Employee's
intent to terminate, in which event the Employer will have no further
obligation to the Employee except for future payment of any amounts
due and owing under Section 4 on the effective date of the
termination; or
(c) upon the Permanent Disability of the Employee in which event
the Employer will have no further obligation to the Employee except
for the payment of any amounts due and owing under Section 4 on the
effective date of the termination.
3.2.3 By the Employee: within six (6) months following a Change in
Control; provided that the Employee gives at least thirty (30) days'
prior written notice to the Employer of the Employee's intention to
terminate this Agreement with such resignation to be effective
immediately, in which event the Employer will be required to make a
termination payment under Section 3.6.2; or
3.2.4 At any time upon mutual, written agreement of the parties, in
which event the Employer will have no further obligation to the
Employee except for the payment of any amounts due and owing under
Section 4 on the effective date of termination unless otherwise set
forth in the written agreement.
3.2.5 Immediately upon the Employee's death, in which event the
Employer will have no further obligation to the Employee except for
the payment of any amounts due and owing under Section 4 on the
effective date of termination.
3.3 Effect of Termination. Termination of the employment of the Employee
pursuant to Section 3.2 will be without prejudice to any right or claim which
may have previously accrued to either the Employer or the Employee hereunder and
will not terminate, alter, supersede or otherwise affect the terms and covenants
and the rights and duties prescribed in this Agreement.
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3.4 Suspension Without Pay. If Employee is suspended and/or temporarily
prohibited from participating in the conduct of the Employer's affairs by a
notice served under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance
Act, the Employer's obligations under this Agreement will be suspended as of the
date of service thereof, unless stayed by appropriate proceedings. If the
charges in such notice are dismissed, the Employer will in its discretion:
(a) pay Employee all or part of the compensation withheld while its
contract obligations were suspended; and/or
(b) reinstate (in whole or in part) any of its obligations which were
suspended.
3.5 Other Regulatory Requirements. If the Bank is in default, as defined in
Section (3)(x)(1) of the Federal Deposit Insurance Act, all obligations under
this Agreement will terminate as the date of such default, but no vested rights
of the Employee will be affected. Further, all obligations under this Agreement
will be terminated, except, to the extent determined that continuation of the
Agreement is necessary for the continued operation of the Bank:
(a) by the Director (the "Director") of the Federal Deposit Insurance
Corporation ("FDIC") or his or her designee, at the time the FDIC enters
into an agreement to provide assistance to or on behalf of the Bank under
the authority of the Federal Deposit Insurance Act; or
(b) by the Director or his or her designee, at the time the Director
or his or her designee approves a supervisory merger to resolve problems
relating to the operation of the Bank or when the Bank is determined by the
Director to be in an unsafe or unsound condition.
3.6 Termination Payments.
3.6.1. In the event and only in the event this Agreement is terminated
by the Employer pursuant to Section 3.2.1(b) or by the Employee pursuant to
Section 3.2.2(a), a Change in Control has not occurred within the immediately
preceding six (6) months, and the Bank has less than a .75% return on average
assets, as defined under general accounting principals ("ROAA") for the
immediately preceding twelve (12) month period, then commencing with the first
payroll date immediately following the effective date of such termination, the
Employer will pay to the Employee as severance pay and liquidated damages an
amount equal to the then current Base Salary divided by 12 (the "Base Monthly
Salary") in twelve (12) installments for a period equal to one (1) year. In the
event this Agreement is terminated by the Employer pursuant to Section 3.2.1(b)
or by the Employee pursuant to Section 3.2.2(a), a Change in Control has not
occurred within the immediately preceding six (6) months, and the Bank has a
greater than .75% but less than 1% ROAA for the immediately preceding twelve
(12) month period, then commencing with the first payroll date immediately
following the effective date of such termination, the Employer will pay to the
Employee as severance pay and liquidated damages an amount equal to the Base
Monthly Salary in eighteen (18) installments for a period equal to eighteen (18)
months. In the event this Agreement is terminated by the Employer pursuant to
Section 3.2.1(b) or by the Employee pursuant to Section 3.2.2(a), a Change in
Control has not occurred within the immediately preceding six (6) months, and
the
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Bank has a greater than 1% ROAA for the immediately preceding twelve (12) month
period, then commencing with the first payroll date immediately following the
effective date of such termination, the Employer will pay to the Employee as
severance pay and liquidated damages an amount equal to the Base Monthly Salary
in twenty four (24) installments for a period equal to two (2) years.
The Bank's obligation to make any payments under this Section 3.6.1 will
immediately terminate upon Employee becoming an employee with an entity other
than Employer except to the extent that the total compensation payable to
Employee is less than the compensation payable under Section 3.6.1 in which
event the Bank's obligation under this Section 3.6.1 will be the difference
between the compensation payable under Section 3.6.1 and the total compensation
paid to Employee by an entity other than the Bank.
3.6.2. In the event and only in the event a Change in Control has
occurred as described in Sections 1.9 (a), (b) or (c) and this Agreement is
terminated by Employer or by Employee pursuant to Section 3.2.3, the Employee
shall be entitled to the following:
(a) if the price paid by the entity or entities acquiring voting
securities, voting control or assets as described in Sections 1.9 (a), (b) or
(c) is less than the then current book value of the Bank or the Company,
Employee will receive a lump sum payment equal to his then current base salary;
(b) if the price paid by the entity or entities acquiring voting securities,
voting control or assets as described in Sections 1.9 (a), (b) or (c) is equal
or greater than book value but less then two (2) times book value Employee will
receive a lump sum payment using the calculations contained in Section 3.6.1
hereof; and (c) if the price paid by the entity or entities acquiring voting
securities, voting control or assets as described in Sections 1.9 (a), (b) or
(c) is equal or greater than two (2) times book value Employee will receive a
lump sum payment equal to 2.99 times his Average Base Salary and shall be paid
such lump sum payment by Employer within 30 days of the effective date of
termination of this Agreement. As used herein, the term "Average Base Salary"
means the Employee's average Base Salary paid by the Employer during the most
recent five (5) taxable years ending before the date the Change in Control
occurs (or such portion of such period during which the Employee was employed by
the Employer.
3.6.3. In the event and only in the event a Change in Control has
occurred as described in Sections 1.9 (d) and this Agreement is terminated by
Employer or by Employee pursuant to Section 3.2.3, the Employee shall be
entitled to a lump sum payment using the calculations contained in Section 3.6.1
hereof.
3.6.4. Notwithstanding any other provisions to this Agreement to the
contrary, if the aggregate of the payments provided for in this Agreement and
other payments and benefits which the Employee has the right to receive from the
Employer (the "Total Payments") would constitute a "parachute payment," as
defined in Section 280G(b)(2) of the Internal Revenue Code, the Employee shall
receive the Total Payments unless (a) the after-tax amount that would be
retained by the Employee (after taking into account all federal, state and local
income taxes payable by the Employee and the amount of any excise taxes payable
by the Employee under Section 4999 of the Internal Revenue Code that would be
payable by the Employee (the "Excise Taxes")) if the Employee were to receive
the Total Payments has an aggregate value less than
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(b) the after-tax amount that would be retained by the Employee (after taking
into account all federal, state and local income taxes payable by the Employee)
if the Employee were to receive the Total Payments reduced to the largest amount
as would result in no portion of the Total Payments being subject to Excise
Taxes (the "Reduced Payments"), in which case the Employee shall be entitled
only to the Reduced Payments. If the Employee is to receive the Reduced
Payments, the Employee shall be entitled to determine which of the Total
Payments, and the relative portions of each, are to be reduced.
3.6.5. Any payments made to Employee pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with Section U.S.C.
Section 1828(k) and FDIC regulation 12 C.F.R. Part 359, Golden Parachute and
Indemnification Payments.
4. COMPENSATION AND BENEFITS.
4.1 Compensation. The Employee will receive the following salary and
benefits:
(a) Base Salary. During the Term, the Employee will receive a base
salary at the rate of $125,000 per annum, payable in substantially equal
installments in accordance with the Bank's regular payroll practices and as
may be increased by the Bank ("Base Salary"). The Employee's Base Salary
will be reviewed annually by the Compensation Committee of the Board or the
Board if a Compensation Committee does not exist, and the Employee will be
entitled to receive annually an increase of at least 5% of the then current
Base Salary if the employee receives a satisfactory performance evaluation
as may be determined by the Compensation Committee or the Board. The Base
Salary will be renegotiated upwards when the Bank achieves a 1% ROAA for
any fiscal year.
(b) Incentive Compensation.
(i) In addition to Employee's Base Salary under Section 4.1(a),
Employee shall be entitled to participate in such incentive plans as
are described on Exhibit B.
(ii) The Employee will also be entitled to participate in such
other bonus, incentive and other executive compensation programs as
are made available to senior management of the Employer from time to
time.
The bonus amounts which may be payable to the Employee pursuant to this
Section 4.1(b) is referred to herein as "Incentive Compensation".
4.2 Compensation as a Director. The Employee will not be compensated for
attendance at regular and special Board meetings.
4.3 Business Expenses. The Employer specifically agrees to reimburse the
Employee for reasonable business (including travel) expenses incurred by the
Employee in the performance of the Employee's duties hereunder, as approved from
time to time by the Board provided, however, that the Employee must, as a
condition of reimbursement, submit verification of the nature and amount of such
expenses in accordance with reimbursement policies from time to time adopted
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by the Employer and in sufficient detail to comply with rules and regulations
promulgated by the Internal Revenue Service.
4.4 Vacation. On a non-cumulative basis the Employee will be entitled to
four weeks vacation in each year of this Agreement in accordance with the
procedures set forth in the Bank's vacation policy as then in effect, during
which the Employee's Base Salary will be paid in full.
4.5 Benefits. In addition to the Base Salary and Incentive Compensation,
the Employee will be entitled to such benefits as are described on Exhibit C.
All such benefits will be awarded and administered in accordance with the
Employer's standard policies and practices.
4.6 Withholding. The Employer may deduct from each payment of compensation
hereunder all amounts required to be deducted and withheld in accordance with
applicable federal and state income, FICA and other withholding requirements.
5. COMPANY INFORMATION.
5.1 Ownership of Information. All Company Information received or developed
by the Employee while employed by the Employer will remain the sole and
exclusive property of the Employer.
5.2 Obligations of the Employee. The Employee agrees (a) to hold Company
Information in strictest confidence, and (b) not to use, duplicate, reproduce,
distribute, disclose or otherwise disseminate, either intentionally or in a
grossly negligent manner, Company Information or any physical embodiments
thereof and may in no event take any action causing or fail to take any action
necessary in order to prevent any Company Information from losing its character
or ceasing to qualify as Confidential Information or a Trade Secret. In the
event that the Employee is required by law to disclose any Company Information,
the Employee will not make such disclosure unless (and then only to the extent
that) the Employee has been advised by the Company's legal counsel that such
disclosure is required by law and then only after prior written notice is given
to the Employer when the Employee becomes aware that such disclosure has been
requested and is required by law. This Section 5 will survive the termination of
this Agreement with respect to Confidential Information for so long as it
remains Confidential Information, but for no longer than three (3) years
following termination of this Agreement, and this Section 5 will survive
termination of this Agreement with respect to Trade Secrets for so long as is
permitted by the then-current Maryland Trade Secrets Act.
5.3 Delivery upon Request or Termination. Upon request by the Employer, and
in any event upon termination of employment with the Employer, the Employee will
promptly deliver to the Employer all property belonging to the Employer,
including without limitation, all Company Information then in the Employee's
possession or control.
6. NON-COMPETITION. The Employee agrees that during the Term hereunder and, in
the event of the Employee's termination of employment for any reason, thereafter
for a period equal to the greater of (a) six (6) months; or (b) the period
during which the Employee is to be paid monthly termination payments, if any, in
accordance with Section 3.6 hereof, the Employee will not (except on behalf of
or with the prior written consent of the Employer), within the geographic area
encompassed in a radius of 20 miles of the main office of the Employer, either
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directly or indirectly, on the Employee's own behalf or in the service or on
behalf of others, as a principal, partner, officer, director, manager,
supervisor, administrator, executive employee or in any other capacity which
involves duties and responsibilities similar to those undertaken for the
Employer, engage in any business which is the same as or essentially the same as
the Business of the Employer.
7. NON-SOLICITATION OF CUSTOMERS. The Employee agrees that during the Term
hereunder and, in the event of the Employee's termination of employment for any
reason, thereafter for a period equal to the greater of (a) twelve (12) months;
or (b) the period during which the Employee is to be paid monthly termination
payments, if any, in accordance with Section 3.6 hereof, the Employee will not
(except on behalf of or with the prior written consent of the Employer), within
the geographic area encompassed in a radius of 20 miles of any office or
facility maintained by the Employer, on the Employee's own behalf or in the
service or on behalf of others, solicit or divert or attempt to solicit or
divert, directly or by assisting others, any business from any of the Employer's
customers, including actively sought prospective customers, with whom the
Employee has or had material contact during the last two (2) years of the
Employee's employment, for purposes of providing products or services that are
competitive with those provided by the Employer.
8. NON-SOLICITATION OF EMPLOYEES. The Employee agrees that during the Term
hereunder and, in the event of the Employee's termination of employment for any
reason, thereafter for a period equal to the greater of (a) twelve (12) months;
or (b) the period during which the Employee is to be paid monthly termination
payments, if any, in accordance with Section 3.6hereof, the Employee will not,
except for Employee's Administrative Assistant, within the geographic area
encompassed in a radius of 20 miles of any office or facility maintained by the
Employer , on the Employee's own behalf or in the service or on behalf of
others, solicit, recruit or hire away or attempt to solicit, recruit or hire
away, directly or by assisting others, any employee of the Employer or its
Affiliates, whether or not such employee is a full-time employee or a temporary
employee of the Employer or its Affiliates and whether or not such employment is
pursuant to written agreement and whether or not such employment is for a
determined period or is at will.
9. REMEDIES. The Employee agrees that the covenants contained in Sections 5
through 8 of this Agreement are of the essence of this Agreement; that each of
the covenants is reasonable and necessary to protect the business, interests and
properties of the Employer; and that irreparable loss and damage will be
suffered by the Employer should the Employee breach any of the covenants.
Therefore, the Employee agrees and consents that, in addition to all the
remedies provided by law or in equity, the Employer will be entitled to a
temporary restraining order and temporary and permanent injunctions to prevent a
breach or contemplated breach of any of the covenants. The Employer and the
Employee agree that all remedies available to the Employer or the Employee, as
applicable, will be cumulative.
10. SEVERABILITY. The parties agree that each of the provisions included in this
Agreement is separate, distinct and severable from the other provisions of this
Agreement and that the invalidity or unenforceability of any Agreement provision
will not affect the validity or enforceability of any other provision of this
Agreement. Further, if any provision of this Agreement is ruled invalid or
unenforceable by a court of competent jurisdiction because of a
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conflict between the provision and any applicable law or public policy, the
provision will be redrawn to make the provision consistent with and valid and
enforceable under the law or public policy.
11. NO SET-OFF BY THE EMPLOYEE. The existence of any claim, demand, action or
cause of action by the Employee against the Employer, or any Affiliate of the
Employer, whether predicated upon this Agreement or otherwise, will not
constitute a defense to the enforcement by the Employer of any of its rights
hereunder. The existence of any claim, demand, action or cause of action by the
Employer against the Employee whether predicated upon this Agreement or
otherwise, will not constitute a defense to the enforcement by the Employee of
any of its rights hereunder.
12. NOTICE. All notices and other communications required or permitted under
this Agreement will be in writing and, if mailed by prepaid first-class mail or
certified mail, return receipt requested, will be deemed to have been received
on the earlier of the date shown on the receipt or three (3) business days after
the postmarked date thereof. In addition, notices hereunder may be delivered by
hand, facsimile transmission or overnight courier, in which event the notice
will be deemed effective when delivered or transmitted. All notices and other
communications under this Agreement must be given to the parties hereto at the
following addresses:
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13.
(i) If to the Employer, to it at:
Xxx X. Xxxxxx, Chairman
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
(ii) If to the Employee, to the Employee at:
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
14. ASSIGNMENT. Employee may not assign or delegate this Agreement or any of its
rights and obligations hereunder without the written consent of the other party
hereto.
15. WAIVER. A waiver by the Employer of any breach of this Agreement by the
Employee will not be effective unless in writing, and no waiver will operate or
be construed as a waiver of the same or another breach on a subsequent occasion.
16. ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, will be settled by binding arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. The decision of the arbitration panel will be final and binding on
the parties, and judgment upon the award rendered by the arbitration panel may
be entered by any court having jurisdiction thereof.
17. ATTORNEYS' FEES. All reasonable legal fees paid or incurred by Employee
pursuant to any dispute or question of interpretation relating to this Agreement
shall be paid or reimbursed by the Bank, provided that the dispute or
interpretation has been settled by the Employee and the Bank or resolved in the
Employee's favor.
18. APPLICABLE LAW. This Agreement will be construed and enforced under and in
accordance with the laws of the State of Maryland only to the extent not
superseded by federal law. The parties agree that any appropriate state court
located in Baltimore County, Maryland, will have jurisdiction of any case or
controversy arising under or in connection with this Agreement and will be a
proper forum in which to adjudicate such case or controversy. The parties
consent to the jurisdiction of such courts.
19. INTERPRETATION. Words importing the singular form shall include the plural
and vice versa. The terms "herein", "hereunder", "hereby", "hereto", "hereof"
and any similar terms refer to this Agreement. Any captions, titles or headings
preceding the text of any article, section or subsection herein are solely for
convenience of reference and will not constitute part of this Agreement or
affect its meaning, construction or effect.
13
20. ENTIRE AGREEMENT. This Agreement embodies the entire and final agreement of
the parties on the subject matter stated in the Agreement. No amendment or
modification of this Agreement will be valid or binding upon the Employer or the
Employee unless made in writing and signed by both parties. All prior
understandings and agreements relating to the subject matter of this Agreement
are hereby expressly terminated.
21. RIGHTS OF THIRD PARTIES. Nothing herein expressed is intended to or will be
construed to confer upon or give to any person, firm or other entity, other than
the parties hereto and their permitted assigns, any rights or remedies under or
by reason of this Agreement.
22. SURVIVAL. The obligations of the Employee pursuant to Sections 5, 6, 7, 8
and 9 will survive the termination of the employment of the Employee hereunder
for the period designated under each of those respective sections.
22. SOURCE OF PAYMENTS. The Bank will maintain in escrow account (the, "Escrow
Account") at a financial institution in an amount equal to the Base Salary for
the Employee. The Escrow Account will be the source or partial source of
payments in the event that termination payments are due by the Bank under
Section 3.6.1.
23. REGULATORY APPROVAL. This Agreement and the obligation of the parties
thereunder is contingent upon the approval or nonobjection of the employment of
Employee as described herein by regulatory bodies with jurisdiction over
Employee.
IN WITNESS WHEREOF, the Employer and the Employee have executed and
delivered this Agreement as of this 12th day of January, 2004, effective as of
July , 2003.
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THE EMPLOYER:
AmericasBank
By: /s/ Xxx X. Xxxxxx
-------------------------------
Name: Xxx X. Xxxxxx
Title: Chairman
THE EMPLOYEE:
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
14
EXHIBIT A
AmericasBank
JOB DESCRIPTION
JOB TITLE: PRESIDENT/CHIEF EXECUTIVE OFFICER
FSLA: EXEMPT
REPORTS TO: BOARD OF DIRECTORS
SUMMARY:
Plan, develop, and establish policies, objectives, and strategies to prudently
grow the bank, increase profitability, promote service quality, and to ensure
the safe and sound operation of the bank in accordance with federal and state
laws, rules and regulations, Board directives, the charter of the corporation,
and generally accepted industry standards for liquidity, asset quality, leverage
and interest rate sensitivity.
ESSENTIAL DUTIES AND RESPONSIBILITIES: Specific duties are listed below. Other
duties may be assigned.
Confers with corporate managers to plan business objectives, to develop
organizational policies, to coordinate functions and operations between
divisions and departments, and to establish responsibilities and procedures for
attaining objectives.
Provides leadership to the board of directors and its committees. Contributes to
the effective, profitable operation of the corporation by participation in
Liquidity and Asset/Liability Management, Loan Committee, Public Relations
/Marketing Committee, and Asset Review Committee activities.
Ensures that the spirit and intent of regulatory and supervisory trusts and
concerns are met or exceeded.
Keeps the Board informed concerning major developments and consults with same
regarding major decisions affecting the bank or holding company.
Represents the bank and provides leadership in community activities, including
business, charitable, civic, and social organizations to maintain a proper
responsible citizen stature for the bank.
Reviews activity reports and financial statements to determine progress and
status in attaining objectives and revises objectives and plans in accordance
with current conditions.
Directs and coordinates the formulation of financial programs to provide funding
for new or continuing operations to maximize returns on investments and to
increase productivity.
Plans and develops labor and public relations policies designed to improve
bank's image and relations with customers, employees, and the public.
Evaluates performance of executives for compliance with established policies and
objectives of bank.
SUPERVISORY RESPONSIBILITY:
Manages subordinate supervisors in the Lending, Deposit, and Mortgage Banking,
Finance and Operations functions. Is responsible for the overall direction,
coordination, and evaluation of these units.
Provides direct guidance on personnel activities which affect the key bank
management team, including salary administration, management incentive,
performance objectives, and compliance with established policies to ensure solid
team efforts toward the attainment of department, bank, and corporation goals.
Carries out supervisory responsibilities in accordance with the organization's
policies and applicable laws. Responsibilities include interviewing, hiring, and
training employees; planning, assigning, and directing work; appraising
performance; rewarding and disciplining employees; and addressing complaints and
resolving problems.
CRA REQUIREMENT:
Expected to understand the bank's obligations under the Community Reinvestment
Act and how to fulfill them. Expected to cooperate with and support the bank's
CRA program and to maintain a Satisfactory CRA rating
PRODUCT AND KNOWLEDGE REQUIREMENT:
Should know and understand the products and services that are provided by the
Bank and give quality service at all times to our customers.
QUALIFICATION REQUIREMENTS:
To perform this job successfully, an individual must be able to perform each
essential duty satisfactorily. The requirements listed below are representative
of the knowledge, skill, and/or ability required.
EDUCATION AND/OR EXPERIENCE:
College graduate or graduate of recognized graduate banking school or
equivalent; ten years related experience and/or training; or equivalent
combination of education and experience.
LANGUAGE SKILLS:Ability to read, analyze, and interpret common technical
journals, financial reports, and legal documents. Ability to respond to
common inquiries or complaints from customers, regulatory agencies, or
members of the community. Ability to to effectively communicate policies,
procedures, staff objectives, and information to top management, public
groups, and/or boards of directors.
ANALYTICAL SKILLS:
A high level of analytical, mathematical and reasoning skills to assess and
evaluate the operation of subordinate areas of responsibility, participate
in establishing bank-wide financial goals, and draft operational reports to
the board.
PERFORMANCE EXPECTATIONS:
ORGANIZATIONAL EXPECTATIONS:
Understands that the position exists to ultimately serve the customer
either directly or indirectly through assisting front-line personnel to
answer customer inquiries quickly.
Practices a high degree of professionalism and sets an example for others
to follow.
Uses creativity and initiative to recommend quality enhancements when
relevant and appropriate.
Has satisfactory attendance within policy guidelines and is punctual.
Manages time effectively. Completes assigned duties within reasonable
deadlines.
FINANCIAL EXPECTATIONS:
Makes recommendations to the Board of Directors concerning budgetary needs
of the bank.
Within parameters of job, uses good judgment related to Bank income
opportunities and expense control.
RELATIONSHIP EXPECTATIONS:
Conducts in-bank and public relationships in a manner that enhances the
image and marketing efforts of the Bank.
Participates in community organizations, activities, and projects.
Contributes to an overall team effort by being an effective team player.
This job description is not intended to be and should not be construed as an
all-inclusive list of the responsibilities, skills, or working conditions
associated with the position. While this job description is intended to
accurately reflect the position's activities and requirements, management
reserves the right to modify, add, or remove duties and assign other duties as
necessary.
EXHIBIT B
AmericasBank
Term Sheet
Management Incentive Plan
Purpose: To attract, retain and reward the senior executive officers of
the bank and other key employees designated by the President
and Chief Executive Officer.
Securities: To be determined. It is contemplated the securities could
include: restricted stock awards and stock options, including
discounted options, phantom stock options, incentive stock
options under qualified and non qualified plans.
Plan Scope: To fully align the interest of management, directors and
shareholders in creating value in the Company. Management
would be granted ownership rights in a pool of securities and
options that would only increase in value if management
successfully increases the market value of the Company. The
structure and number of shares in the initial securities pool
is to be determined.
Plan Term: 10 years
Option Price: To be determined based on 100% of the per share value
established by a new valuation.
Vesting: 10% of the total shares awarded will vest upon the hire of the
employee or the adoption of the Plan. The remaining shares
will vest within ten years of hire based on a schedule to be
determined. Vesting will be tied to earnings performance,
balance sheet growth, asset quality, and the composite rating
assigned by the bank's regulatory authorities. Shares that do
not vest in one period may vest in subsequent periods so long
as the requirements for vesting in subsequent periods are
attained.
Effective Date: After completion of capital raising offering but not later
than March 31, 2004.
EXHIBIT C
Group Benefits
Medical: Family Coverage at the Expense of the Bank
Dental: Family Coverage at the Expense of the Bank
Life Insurance
Short and Long Term Disability
401K Plan (or other retirement program)
Vacation: Four weeks
Other Benefits
Competitive SERP (once Bank achieves 1.0% ROAA)
Competitive Bonus Plan (if Bank exceeds profitability hurdles) - To Be Developed
Automobile/Club Allowance of $750 per month
TEC Dues (once bank breaks even - currently $910 per month
