EXHIBIT 10.6
RETENTION
AGREEMENT
This RETENTION AGREEMENT (the "Agreement") is made and entered into effective as
of the 30th day of September, 1999, by and among Woodcreek Bank, a Texas banking
association, Paradigm Bancorporation, Inc. a Texas corporation and a bank
holding company registered under the Bank Holding Company Act of 1956, as
amended, and Xxx X. Xxxxxx, Xx., a resident of Texas (hereinafter the
"Executive").
WHEREAS the Executive is president and chief executive officer of Woodcreek Bank
(the "Bank"); and
WHEREAS the Executive is Chief Credit Officer of Paradigm Bancorporation, Inc.
(the "Company"); and
WHEREAS the Bank and the Company could suffer financial hardship if the
Executive were to leave the employment of either entity.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein the Executive, the Bank, and the Company agree as follows:
1. Term. The term of this Agreement is for a period of twelve months and shall
automatically renew under the same terms and conditions subject to the right of
the Boards of the Bank and the Company to refuse renewal by giving the Executive
60 days notice prior to September 30, 2000 and the like date thereafter. This
Agreement is subject to the termination provisions of Sections 4, 5 and 6.
2. Change in Control. If the Bank or the Company should sell or experience a
change in control, i.e. more than 34% of the stock be sold to an individual,
group or company not a shareholder as of September 1, 1999 ("Change in
Control"), the Executive shall at the option of the Bank and the Company (i) be
employed at the Bank and the Company in substantially equivalent positions with
substantially equivalent duties and responsibilities at his annual salary in
effect at the time of the Change in Control and with substantially similar
benefits for a period of twelve months following the Change in Control or (ii)
receive from the Bank and the Company the remainder of the Executive's
compensation for the twelve months from the date of the Change in Control based
upon his annual salary in effect at the time of the Change in Control. The
obligations of the Bank and Company are subject to the provisions of Sections 4,
5 and 6 below. Should the Bank or the Company elect to terminate the
Executive's employment during the twelve month period following the Change in
Control other than as permitted in Sections 4 and 5, the Executive shall have
the option of receiving the remaining months of compensation either monthly or
in a lump sum, subject to withholding requirements.
3. Additional Benefits. In addition to the compensation in Section 2 above,
the Executive shall continue to receive insurance benefits for the twelve months
following the Change in Control should the Bank or the Company terminate the
Executive within twelve months after the Change in Control.
4. Termination for Cause. The Bank and the Company may terminate the employment
of the Executive for Cause (as defined below) and the obligations of the Bank
and the Company shall be limited to the unpaid portion of (i) the Executive's
salary through the date of termination and (ii) all other amounts or benefits
owing or accrued to, vested in, or earned by the Executive through the date of
termination under the then existing or applicable plans, programs, arrangements,
and policies of Bank and the Company (other than severance policies). Such
payment will be made in cash in one lump sum within thirty (30) days after the
date of termination.
As used in this Agreement, the term "Cause" means (i) willful misconduct by the
Executive, (ii) the gross neglect by the Executive of his duties as an officer
of the Bank or the Company (iii) the commission by the Executive of an act,
other than an act taken in good faith within the course and scope of the
Executive's employment, which is directly detrimental to Bank or the Company and
which act exposes Bank or the Company to material liability, (iv) the Executive
having been indited for or convicted of any felony or other crime involving
moral turpitude, or (v) the current illegal use of narcotics, illegal drugs or
controlled substances by the Executive, or the current use of alcohol by the
Executive to an extent which materially impairs the performance of the
Executive's duties.
5. Termination for Death or Disability. The Executive's employment shall
terminate upon the death of the Executive and, at the option of the Bank and the
Company, will terminate upon the Executive's Disability (as defined below). If
the Executive's employment is terminated by reason of the Executive's death or
Disability, the Bank and the Company shall pay to the Executive's legal
representatives cash in one lump sum within thirty (30) days after the date of
Executive's death or Disability (i) the Executive's salary through the date of
the death or Disability and (ii) all other amounts or benefits owing or accrued
to, vested in, or earned by the Executive through the date of the death or
Disability under the then existing or applicable plans, programs, arrangements,
and policies of Bank and the Company (other than severance policies). Anything
in this Agreement to the contrary notwithstanding, the Executive's legal
representatives or beneficiaries shall be entitled to receive benefits provided
under the then existing or applicable plans, programs, or arrangements and
policies of Bank and the Company relating to death or disability.
As used herein, "Disabled" shall mean total disability as determined pursuant
to the Bank's long-term disability plan, or if no such plan shall be in
effect, by the Boards of Directors of Bank and the Company in accordance with
their reasonable business judgment and the normal personnel practices of the
Bank and the Company.
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6. Voluntary Termination. If the Executive terminates his employment other
than due to a breach of this agreement by the Bank or the Company, the
obligations of the Bank and the Company, shall be limited to the unpaid portion
of (i) the Executive's salary through the date of termination and (ii) all other
amounts or benefits owing or accrued to, vested in, or earned by the Executive
through the date of termination under the then existing or applicable plans,
programs, arrangements, and policies of Bank and the Company (other than
severance policies). Such payment will be made in cash in one lump sum within
thirty (30) days after the date of termination.
7. Employment at Will. The Executive acknowledges that this Agreement does not
alter the Executive's status as an employee at will. Further, the Executive
acknowledges that this agreement is solely intended to provide protection in the
event of a Change in Control of the Bank or the Company.
8. Consideration. The Bank, the Company and the Executive agree that the
Executive's continued performance in his professional capacity shall be adequate
consideration for this Agreement.
9. Notice. Any notice under this Agreement must be in writing and may be given
by certified or registered mail, postage prepaid, addressed to the party or
parties to be notified with return receipt requested, or by delivering the
notice in person. For purposes of notice, the address of Executive or any
administrator, executor or legal representative of Executive or his estate, as
the case may be, shall be the last address of the Executive on the records of
the Bank. The address of the Bank and the Company shall be their principal
business address.
10. Applicable Law. This Agreement shall be governed by the laws of the State
of Texas.
11. Amendment. This Agreement contains the entire agreement of the parties and
may only be amended in writing signed by all parties; provided, that no
amendment to this Agreement shall be effective unless authorized by resolution
of the Board of Directors and signed on behalf of Bank and the Company by a duly
authorized officer of Bank and the Company other than Executive.
12. Validity. If any provision of this Agreement is declared by a court of
last resort to be invalid, the Bank, the Company and the Executive agree that
such declaration shall not affect the validity of the other provisions of this
Agreement. If any provision of this Agreement were capable to two
constructions, one of which would render the provision void and the other of
which would render the provisions valid, then the provision shall have the
construction which renders it valid.
13. Best Efforts. The Executive shall use his best efforts to preserve the
business and organization of the Bank and the Company, to keep available to the
Bank and the Company the services of its present employees and to preserve the
business relations of the Bank and the Company with suppliers, distributors,
customers and others. The
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Executive shall not commit any act, which would injure the Bank or the Company.
The Executive shall observe and fulfill proper standards of fiduciary
responsibility attendant upon his offices.
14. Assignability. This Agreement is personal to the Executive and without the
prior written consent of the Bank and the Company shall not be assignable by the
Executive other than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives and heirs. This Agreement shall inure to the benefit of
and be binding upon Bank, the Company and their successors and assigns. The
Bank and the Company shall require any corporation, entity, individual or other
person who is successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization, or otherwise) to all or substantially all of the
business or assets of Bank and the Company to expressly assume and agree to
perform, by a written agreement in form and substance satisfactory to Executive,
all of the obligations of the Bank and the Company under this Agreement. As
used in this Agreement, the term "Bank" and "Company" shall mean the Bank and
the Company as hereinbefore defined and any successor to their business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, written agreement, or otherwise.
15. Waiver. The waiver by a party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver by
the waiving party of any subsequent breach of the other party.
16. Revocation of Prior Agreements. Any and all previous employment agreements
existing between the Bank, the Company and the Executive are revoked and
canceled.
17. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, and all of which shall constitute one
instrument.
IN WITNESS WHEREOF, this Agreement is executed as of the 30th day of
September, 1999.
"EXECUTIVE" WOODCREEK BANK
By:
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Xxx X. Xxxxxx Name:
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Title:
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PARADIGM BANCORPORATION, INC.
By:
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Name:
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Title:
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