(Xxxxx X. Xxxxxxx)
THIS EMPLOYMENT AGREEMENT (hereinafter called the "Agreement") is
entered into as of April 1, 2000, by and between COLONIAL TRUST COMPANY, an
Arizona corporation (hereinafter called the "Company"), with its principal
office located at 0000 X. 00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, and Xxxxx X.
Xxxxxxx, residing at 00000 X. Xxxxxxxxxx Xxxx, Xxxxx, Xxxxxxx 00000
(hereinafter referred to as "Xxxxxxx").
Xxxxxxx is presently employed by the Company as Senior Vice President
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties do hereby agree as follows:
1. Employment. The Company hereby continues to employ Xxxxxxx and
Xxxxxxx hereby accepts continued employment by the Company as Senior Vice
President and Secretary to perform such duties and services of a senior
executive nature as may from time to time be assigned or delegated to him by
the Board of Directors and President of the Company.
Throughout the term of this Agreement, Xxxxxxx will devote his entire
working time, energy, skill and best efforts to the performance of his duties
hereunder in a manner which will faithfully and diligently further the business
interests of the Company. Notwithstanding the foregoing, Xxxxxxx shall be
permitted to serve as a director of additional organizations and participate in
other activities for other groups upon the prior approval by the Company, which
approval shall not unreasonably be withheld.
2. Term. This Agreement shall be for a term of three (3) years,
commencing on April 1, 2000, and ending on March 31, 2003, unless sooner
terminated as hereinafter provided. Unless either party elects to terminate this
Agreement at the end of the original or any renewal term by giving the other
party notice of such election at least sixty (60) days before the expiration of
the then current term, this Agreement shall be deemed to have been renewed for
an additional term of one (1) year commencing on the day after the expiration
of the then current term.
3. Compensation and Benefits.
(a) Salary. For the services rendered by Xxxxxxx to Company, Xxxxxxx
shall receive a base salary at the rate of $85,000 per year, payable in
accordance with the standard payroll practices of the Company. Additionally,
Xxxxxxx shall receive an annual performance and salary review from the President
of the Company.
(b) Bonus. Xxxxxxx shall be entitled to receive an annual bonus each
fiscal year in which the Company generates net income (after the payment of
income taxes), calculated according to the following formula: (y) after-tax net
income per share of Common Stock, multiplied by (z) a number of shares equal to
seven and one-half percent (7-1/2%) of the Company's total issued and
outstanding Common Stock at March 31, 2000. Shares of Common Stock which are
issuable upon the exercise of issued and outstanding (but unexercised) stock
options as of March 31, 2000 shall be excluded for purposes of calculating the
Company's issued and outstanding Common Stock in the foregoing formula. Such
bonus, if any, shall be paid within ninety (90) days from the end of the
Company's fiscal year. The Company and Xxxxxxx shall use their best efforts to
cause such bonus to be treated as an expense of the Company during the fiscal
year in which such bonus is earned, not the year in which bonus is paid.
(c) Stock Options. In addition to the monetary compensation set forth
above, Xxxxxxx will have the opportunity to acquire up to 5,000 shares of Common
Stock of the Company pursuant to the Company's Employee Stock Option Plan.
Options shall vest on August 11, 2000; the exercise price for all such options
shall be $2.50 per share. This is a continuation of a grant of options as
originally set forth in that certain Employment Agreement dated August 11, 1997,
but adjusted for the effect of a reverse stock split conducted during fiscal
(d) Medical Insurance. The Company will provide coverage for Xxxxxxx
and his dependents under the Company's health insurance policy.
(e) Life Insurance. The Company will procure and maintain in effect a
$500,000 term life insurance policy insuring Xxxxxxx'x life; provided, however,
if Xxxxxxx is not insurable at regular rates, the Company will purchase a term
life policy only in such amount as it may purchase by paying a premium equal to
the amount it would have paid for a $500,000 policy had Xxxxxxx been insurable
at regular rates. In the event of Xxxxxxx'x death, one-half of the face amount
of the policy shall be payable to the Company and the other half of the face
amount of the policy shall be payable to the beneficiaries designated by
(f) Disability Insurance, Disability Payments by Company. The
Company agrees that Xxxxxxx will be provided the same level of disability
coverage as the Company provides for its other senior executives.
4. Termination of this Agreement and Xxxxxxx'x Employment.
(a) Mandatory Termination. This Agreement shall terminate upon the
expiration of the then-existing term in the event that either party gives
notice of such party's election to then terminate the Agreement as set forth in
paragraph 2 hereof. Furthermore, this Agreement shall terminate in the event of
the death of Xxxxxxx subject to paragraph 3(e) hereof.
(b) Discretionary Termination For "Cause". The Company may
terminate this Agreement and Xxxxxxx'x employment at any time for "cause." For
purposes of this Agreement, "cause" shall mean the following:
(1) Subject to paragraph 3(f) hereof, Xxxxxxx'x inability to
perform his duties under this Agreement for a period of more than ninety
(90) consecutive days due to a total or partial disability;
(2) If Xxxxxxx fails to perform his duties to the Company
hereunder in the unanimous opinion of the Company's Board of Directors;
(3) Xxxxxxx commits such acts of dishonesty, theft, fraud or
misappropriation or is convicted of a crime that would, in the opinion
of the Board of Directors, prevent the effective performance of
Xxxxxxx'x duties hereunder; or
(4) Xxxxxxx breaches the terms and conditions of Section 5 of
Any termination of Xxxxxxx'x employment will be effective upon
Xxxxxxx'x receipt of written notice of such termination unless otherwise
provided in said notice, and such termination shall be without prejudice to any
other remedy to which the Company may be entitled either at law, in equity or
under this Agreement.
(c) Termination Upon Change of Control. In the event that
Xxxxxxx'x employment is terminated upon or within two (2) years after a change
of control either by the Company for any reason other than the reasons set
forth in Paragraph 4(a), 4(b)(1), (3) or (4) or as a result of the resignation
of Xxxxxxx as a result of:
(1) a material breach by the Company of its obligations under
(2) a reduction in Xxxxxxx'x base salary; or
(3) a relocation of the Company's business offices without
Xxxxxxx'x consent to a location which is outside the general
metropolitan area in which the Company was located immediately prior to
the change of control;
then the Company would pay to Xxxxxxx in consideration of such termination the
(1) an amount equal to the remaining portion of the base
salary due under the term of this agreement, but not less than two
times Xxxxxxx'x annual base salary in effect either immediately prior
to the termination of employment or immediately prior to the change of
control, whichever is the greatest; and
(2) an amount equal to the spread (ie. The excess of market
value over the exercise price) on any stock options held by Xxxxxxx,
whether or not such options were exercisable at the date of
termination. Upon the payment of such compensation, such stock options
shall be cancelled.
For purposes of this provision of this Agreement, "change of
control" shall mean:
(1) The acquisition by an individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, amended (the "Exchange Act") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 20% or more of either the then outstanding shares of common stock of
the Company or the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
(2) Individuals who, as of the date hereof, constitute the
Board of Directors (the "Incumbent Board") cease for any reason to
constitute at least a majority of the board; provided however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the directors the
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board; or
(3) Approval by the shareholders of the Company of a
reorganization, merger or consolidation or sale or other disposition of
all or substantially all of the assets of the Company (a "Business
(4) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company; or
(5) A majority of the Board otherwise determines that a Change
in Control shall have occurred.
5. Confidential Information, Non-Solicitation.
(a) Confidential Information, Non-Solicitation. All information
furnished to Xxxxxxx by the Company, learned by Xxxxxxx from the Company or
developed by Xxxxxxx on behalf of the Company or at the Company's direction or
for the Company's use or otherwise in connection with Xxxxxxx'x employment
hereunder, are and shall remain the
sole and confidential property of the Company; provided, however, the foregoing
shall not apply to any such information in the public domain other than by
reason of a breach of this Paragraph 5. If the Company requests the return of
information or any such materials at any time during or at the termination of
Xxxxxxx'x employment, Xxxxxxx shall immediately deliver the same to the Company.
During the term of this Agreement and at all times thereafter, Xxxxxxx shall not
use for his personal benefit, or disclose, communicate or divulge to, or use for
the direct or indirect benefit of any person, firm association or company other
than the Company, any material referred to in this Paragraph 5 or any
confidential information regarding the business methods, business policies,
procedures, techniques, trade secretes or other knowledge or processes of or
developed by the Company or any names and addresses of customers or clients or
any other confidential information relating to pay, present or prospective
business operations or activities of the Company, made known to Xxxxxxx or
learned or acquired by Xxxxxxx while in the employ of the Company.
(b) Non-Solicitation. During the term of this Agreement and for a
period of one (1) year after the termination of his employment with the Company
for any reason whatsoever, Xxxxxxx shall not, directly or indirectly, solicit,
induce, encourage or attempt to influence any client, customer, employee,
consultant, independent contractor, salesman or supplier of the Company
(including without limitation any broker/dealer with whom the Company does or
has done business) to cease to do business with or to terminate his employment
with the Company and shall not utilize for any such purpose any names and
addresses of customers or clients of the Company or any data on or relating to
past, present or prospective (at the time of termination of Xxxxxxx'x
employment) customers or clients of the Company.
6. Arbitration of Disputes. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration in accordance with the rules of the American Arbitration
Association. Judgment upon the award rendered by the arbitrator may be entered
in any court having jurisdiction thereof.
7. Modification of Contract. No waiver or modification of this Agreement
shall be valid unless it is in writing and duly executed by both parties.
8. Severability. All agreements and covenants contained herein are
severable, and in the event any of them shall be held to be valid by any court
of competent jurisdiction, this Agreement shall be interpreted as if such
invalid agreements and covenants were not contained herein.
9. Governing Law, Venue for Arbitration. This Agreement takes effect upon
its acceptance and execution by the Company in Phoenix, Arizona, and shall be
interpreted and construed under the laws of the State of Arizona, which laws
shall prevail in the event of any conflict of law. This Agreement and the
obligations hereunder are made and
performable in Maricopa County, Arizona, which shall be the exclusive venue for
any arbitration hereunder.
10. Notice. Any notice to be given hereunder by either party to
the other shall be in writing and may be transmitted by personal delivery or by
mail, registered or certified, postage prepaid with return receipt requested to
their respective addresses hereinabove provided, or to the Company or Xxxxxxx at
its or his last known address.
11. Entire Agreement. This Agreement contains the complete
agreement between the Company and Xxxxxxx concerning the employment arrangement
between the Company and Xxxxxxx. The parties acknowledge that any statements or
representations that may have been made previously by either one of them to the
other (other than those contained in this Agreement) are of no effect and that
neither of them has relied on such considerations in executing this Agreement.
IN WITNESS WHEREOF, the parties have executed or caused this Agreement
to be executed as of the date, month and year first above written.
COLONIAL TRUST COMPANY
BY: /s/ XXXX X. XXXXXXX
Xxxx X. Xxxxxxx
President and Chief Executive Officer
BY: /s/ XXXXX X. XXXXXXX
Xxxxx X. Xxxxxxx