Exhibit 10.10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of the 3rd
day of January, 1998, by and between Colorado Business Bankshares, Inc., a
Colorado corporation ("Company"), and Xxxxxxx X. Xxxxxx ("Employee").
WITNESSETH:
WHEREAS, Company desires Employee to become employed by Company and Employee
desires to become employed by Company upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT. Company hereby agrees to employ Employee, and Employee
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hereby agrees to be employed by Company, as (a) a Senior Vice President of
the Company, (b) Chief Financial Officer of the Company and (c) a Senior
Vice President and Chief Financial Officer of the Company's wholly-owned
subsidiary Colorado Business Bank, N.A.(the "Bank"), and (d) such other or
different executive capacities as may be determined from time to time by
the Boards of Directors of Company and the Bank.
2. RESPONSIBILITIES OF EMPLOYMENT. During the term of his employment,
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Employee:
(a) shall diligently and faithfully serve Company and the Bank in such
executive capacities as may be determined from time to time by the
Boards of Directors of Company and the Bank, and he shall devote
his best efforts and entire business time, services and attention
to the advancement of Company's interests;
(b) shall not, without the prior written consent of the Board of
Directors of Company, engage in any other employment or business,
directly or indirectly, as a sole proprietor, a member of a
partnership or limited liability company, as a director, officer,
employee or shareholder of a corporation not affiliated with
Company, or as a consultant or otherwise, whether for compensation
or otherwise, which could reasonably be expected to or does
interfere with Employee's performance of his duties hereunder or
which business is in competition in any way with the business then
being conducted by Company or the Bank; provided, however, that
the provisions of this subparagraph (b) shall not be deemed to
prohibit Employee's ownership of stock in any publicly owned
corporation so long as Employee's ownership, directly and
indirectly, when aggregated with the direct and indirect ownership
of all members of Employee's family, does not exceed one percent
(1%) of the total
outstanding stock of such publicly owned corporation, measured by
reference to either market value or voting power;
(c) shall diligently and faithfully carry out the policies, programs
and directions of the Boards of Directors of Company and the Bank;
(d) shall fully cooperate with such other officers of the Company and
the Bank as may be elected or appointed by the Boards of Directors
of Company and the Bank; and
(e) shall report to the Chief Executive Officer of Company.
3. COMPENSATION. Company will compensate Employee for his services during the
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term of this Agreement and his employment hereunder as follows:
(a) Basic Compensation. Company shall pay to Employee as basic
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compensation the sum of Ninety Thousand Dollars ($90,000.00) per
year, payable in equal monthly installments. Employee's basic
compensation may be increased from time to time in the sole
discretion of Company's Board of Directors.
(b) Benefits. Employee shall be entitled to use a Company automobile
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(model and year to be agreed upon from time to time by Employee
and Company's Chief Executive officer) in the course of performing
his duties hereunder and shall be entitled to participate in any
and all other benefits from time to time afforded executive
employees of Company, including, without limitation, health,
accident, hospitalization and life insurance programs. Company
shall additionally pay the monthly (not initial or initiation)
dues for Employee at a country, health or social club to be agreed
upon by Employee and Company's Chief Executive Officer.
(c) Reimbursement of Expenses. Employee shall be entitled to
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reimbursement of ordinary and necessary out-of-pocket expenses
reasonably incurred by him on behalf of Company in the course of
performing his duties hereunder, subject to his furnishing
appropriate documentation relative to such expenses in form and
substance satisfactory to Company.
(d) Vacations. Employee shall be entitled to four (4) weeks paid
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vacation each year, subject to Company's general vacation policy.
(e) Discretionary Bonus Plan. Company has a discretionary bonus plan
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for key executives. Employee shall be entitled to participate in
such discretionary bonus plan.
(f) Stock Option. Company has an Incentive Stock Option Plan (the
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"Plan") for key employees. Employee shall be entitled to
participate in the plan.
(g) Allocations. As Company and Employee intend that Employee will be
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a dual employee of Company and the Bank, and that Employee will be
devoting substantial time and attention to the affairs of the
Bank, Company may allocate to the Bank any portion of Employee's
basic and other compensation that Company and the Bank deem to be
a lawful and appropriate allocation,
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but no such allocation will relieve Company of any of its
obligations to Employee under this Agreement.
4. TERM AND TERMINATION.
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(a) Term. The term of Employee's employment shall be a one (1) year term
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beginning on the date hereof. Upon expiration of the stated term of
this Agreement, Employee's employment with Company shall revert to the
status of employment at will and shall thereafter be subject to
termination by either party and at any time subject to the rights and
obligations of employee as defined in 4(b).
(b) Termination. Upon termination of this Agreement by Company, by Employee
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or upon the death or disability of Employee, the rights and obligations
of Employee shall be as follows:
(i) Termination by Employee. In the event Employee elects to
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terminate his employment hereunder, this Agreement shall
immediately terminate without any further obligation on the part
of Company, except that Company shall pay to Employee such
compensation pursuant to Paragraph 3 hereof as may be accrued and
unpaid on the date of termination of employment.
(ii) Termination by Company for Cause. If Employee's employment
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hereunder is terminated by Company for cause, this Agreement
shall immediately terminate without any further obligation on the
part of Company, except that Company shall pay to Employee such
compensation pursuant to Paragraph 3 hereof as may be accrued and
unpaid on the date of such termination of employment. For
purposes of this Agreement, "cause" shall mean willful failure or
neglect of Employee to perform his duties as prescribed herein,
the conviction of a felony, theft, embezzlement or improper use
of corporate funds by Employee, self dealing detrimental to
Company, any attempt to obtain any personal profit from any
transaction in which Company has an interest or any breach of the
terms of Paragraphs 6 or 7 of this Agreement by Employee.
(iii) Termination by Company for Other Reasons. Company shall have
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the right at any time to terminate Employee' s employment
hereunder for any reason by giving him written notice (which
notice shall fix the date as of which Employee's employment is to
terminate) of its intention to do so. If Employee's employment
hereunder is terminated by Company other than for cause, Company
shall be obligated to pay Employee the severance benefits set
forth in Paragraph 4( c) hereof.
(iv) Constructive Discharge. If Employee is ever constructively
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discharged, he may terminate this Agreement and his employment
hereunder by delivering written notice to Company no later than
thirty (30) days before the effective date of termination. If
Employee is constructively discharged, Company shall be obligated
to pay Employee the severance benefits set forth in Paragraph 4
(c) hereof. For purposes of the foregoing, "constructive
discharge" means
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the occurrence of any one or more of the following: (i) Employee
is removed from all of the offices described in Paragraph 1
hereof; (ii) Company fails to vest with or removes from Employee
the duties, responsibilities, authority or resources that he
reasonably needs to competently perform the duties of his office;
(iii) Company decreases Employee's basic compensation or
arbitrarily and capriciously decreases Employee's bonus; or (iv)
Company transfers Employee to a location outside the Denver
metropolitan area: and in any of such events, Company fails to
cure any of the above within thirty (30) days after Employee gives
Company written notice of such breach.
(v) Termination Upon Change of Control. Employee may terminate this
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Agreement and his employment hereunder for any reason within two
(2) years after a Change of Control occurs by delivering written
notice of termination to Company or its successor no less than
thirty (30) days before the effective date of termination. After
two (2) years following the Change of Control, Employee may
terminate this Agreement and his employment hereunder only in
accordance with Paragraph 4 (b) (i) hereof. If Employee so
terminates, Company shall be obligated to pay Employee one and
ninety-nine hundredths (1.99) times the severance benefits set
forth in Paragraph 4 ( c) hereof, with the exception that the
Paragraph 4 ( c) (ii) bonus component shall be based upon a full
year and not prorated to the date of Employee's termination. (A) A
"Change of Control" will be deemed to have occurred if: a) any
person (as such term is defined in Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the "1934 Act") other
than a person who is a shareholder of Company as of the date of
this Agreement acquires beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the 0000 Xxx) of fifty percent
(50%) or more of the combined voting power of the then outstanding
voting securities of Company; or b) the individuals who were
members of Company's Board of Directors as of the date of this
Agreement (the "Current Board Members") cease for any reason to
constitute a majority of the Board of Directors of Company or its
successor; however, if the election or the nomination for election
of any new director of Company or its successor is approved by a
vote of a majority of the individuals who are Current Board
Members, such new director shall, for the purposes of this
paragraph, be considered a Current Board Member; or c) Company's
stockholders approve (1) a merger or consolidation of Company or
the Bank and the stockholders of Company immediately before such
merger or consolidation do not, as a result of such merger or
consolidation, own, directly or indirectly, more than fifty
percent (50%) of the combined voting power of the then outstanding
voting securities of the entity resulting from such merger or
consolidation in substantially the same proportion as their
ownership of the combined voting power of the outstanding
securities of Company immediately before such merger or
consolidation; or (2) a complete liquidation or dissolution or an
agreement for
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the sale or other disposition of all or substantially all of the
assets of Company or the Bank. (B) Notwithstanding and in lieu of
Paragraph 4(b)(v)(A), a Change of Control will not be deemed to
have occurred: a) solely because fifty percent (50%)or more of
the combined voting power of the then outstanding voting
securities of Company are acquired by (1) a trustee or other
fiduciary holding securities under one or more employee benefit
plans maintained for employees of Company or the Bank, or (2) any
person pursuant to the will or trust of any existing stockholder
of Company, or who is a member of the immediate family of such
stockholder, or (3) any corporation which, immediately prior to
such acquisition, is owned directly or indirectly by the
stockholders in the same proportion as their ownership of stock
immediately prior to such acquisition; or b) if Employee agrees
in writing to waive a particular Change of Control for the
purposes of this Agreement.
(vi) Termination Upon Employee's Disability. In the event Employee's
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employment is terminated by Company due to Employee's disability,
Company shall be obligated to pay Employee the severance benefits
set forth in Paragraph 4 ( c) hereof. For purposes of the
foregoing, "disability,' shall mean Employee's inability due to
illness or other physical or mental disability to substantially
perform his duties as prescribed herein for a period of forty-
five (45) days within any consecutive six (6) month period, and
any action to be taken hereunder based on disability shall not be
effective until the expiration of such forty-five (45) day
period.
(vii) Termination Upon Employee's Death. In the event that Employee
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dies while employed by Company, then Company shall he obligated
to pay Employee's estate the severance benefits set forth in
Paragraph 4 ( c) hereof.
(viii) Continuing Obligations of Employee. Notwithstanding anything to
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the contrary contained herein, termination of this Agreement or
Employee's employment hereunder, for whatsoever reason or for no
reason at all, by Employee or otherwise, shall not be deemed in
any way to affect Employee's obligations under Paragraphs 6 and 7
of this Agreement, with respect to which he shall remain bound.
(c) Severance Benefits. Provided Employee is in compliance with Paragraph
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4(b)(viii) hereof, Company will pay or provide the following severance benefits
to Employee in lieu of any separation payments otherwise provided upon
termination of employment under any other severance pay or similar plan or
policy of Company:
(i) Twelve (12) consecutive monthly payments each equal to one-
twelfth (1/12th) of Employee's annual basic compensation in
effect immediately prior to Employee's termination;
(ii) Twelve (12) consecutive monthly payments each equal to one-
twelfth (1/12th) of the higher of (A) Employee's discretionary
bonus for the previous calendar year, or (B) the average of
Employee's discretionary bonus for the previous three (3)
calendar years (or such fewer calendar years as Employee
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has been employed), in each case prorated to the date of
Employee's termination;
(iii) For the twelve (12) month period following the date of
termination of Employee's employment, Company will maintain in
full force and effect for the continued benefit of Employee each
employee benefit plan in which Employee was a participant
immediately prior to the date of Employee's termination, unless
an essentially equivalent and no less favorable benefit is
provided by a subsequent employer at no additional cost to
Employee. If the terms of any employee benefit plan of Company
do not permit continued participation by Employee, then Company
will arrange to provide to Employee (at Company's cost) a
benefit substantially similar to and no less favorable than the
benefit Employee was entitled to receive under such plan at the
end of the period of coverage. (This provision specifically is
not applicable to Employee's automobile and club dues, which
benefits end upon Employee's date of termination of employment.)
(iv) For the twelve (12) month period following the date of
termination of Employee's employment, Company will treat
Employee for all purposes as an Employee under all of Company's
retirement plans in which Employee was a participant on the date
of termination of Employee's employment or under which Employee
would become eligible during such twelve (12) month period
(hereinafter referred to collectively as the "Plan") . Benefits
due to Employee under the Plan shall be computed as if Employee
had continued to be an Employee of Company for the twelve (12)
month period following termination of employment. If under the
terms of the Plan such continued coverage is not permitted,
Company will pay to Employee or Employee's estate a supplemental
benefit in an amount which, when added to the benefits that
Employee is entitled to receive under the Plan, shall equal the
amount that Employee would have received under the Plan had
Employee remained an employee of Company during such twelve (12)
month period.
(v) If any excise tax imposed under Internal Revenue Code Section
4999 or any successor provision, as amended after the date
hereof, is due and owing by Employee as a result of any amount
paid or payable pursuant to this Paragraph 4 (c), Company shall
indemnify and hold Employee harmless against all such excise
taxes and any interest, penalties or costs with respect thereto.
(vi) Company will be obligated to make all payments that become due
to Employee under this Paragraph 4 (c) whether or not he obtains
other employment following termination. The payments and other
benefits provided for in this Paragraph 4 (c) are intended to
supplement any compensation or other benefits that have accrued
or vested with respect to Employee or his account as of the
effective date of termination.
(vii) Company may elect to defer any payments that may become due to
Employee under this Paragraph 4 (c) if, at the time the payments
become due, Company
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or the Bank is not in compliance with any regulatory mandated
minimum capital requirements or if making the payments would
cause Company's or the Bank's capital to fall below such minimum
capital requirements. In this event, Company will resume making
the payments as soon as it can do so without violating such
minimum capital requirements.
5. SALE OR REORGANIZATION OF COMPANY. This Agreement shall not restrict the
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sale, transfer, consolidation, liquidation, reorganization or disposition
of the assets of Company and to the extent that the business of Company is
conducted in another form or through another entity or entities, such
entity or entities shall be obligated to fulfill Company's obligations
hereunder.
6. RESTRICTIVE COVENANT. It is mutually recognized and agreed that the
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services to be rendered pursuant to this Agreement by Employee are special,
unique and of extraordinary character. Therefore, as a condition to
Company's obligations hereunder, Employee agrees that without Company's
prior written consent, during the term of this Agreement and for a period
ending on the first anniversary of the date of termination of his
employment hereunder, regardless of cause, he will not engage in any
manner, directly or indirectly, to solicit or induce any employee or agent
of Company or the Bank to terminate employment with Company or the Bank, as
the case may be, or solicit or induce any customer of Company or the Bank
to become a customer of any person, firm, partnership, corporation, trust
or other entity that owns, controls or is a bank, savings and loan
association, credit union or similar financial institution. Furthermore,
Employee will at no time during or subsequent to the term of his employment
by Company make any statements or take any actions which could reasonably
be expected to damage the reputation or business of Company. It is further
recognized and agreed that irreparable injury will result to Company, its
businesses and property in the event of a breach of this covenant by
Employee, that such injury would be difficult if not impossible to
ascertain, and therefore, any remedy at law for any breach by Employee of
this covenant will be inadequate and Company shall be entitled to temporary
and permanent injunctive relief without the necessity of proving actual
damage to Company by reason of any such breach. In addition, in the event
of a breach of this covenant by Employee, Company shall also be entitled to
recover reasonable costs and attorneys' fees incurred in connection with
the enforcement of its rights hereunder. Whenever used herein, Company
shall be deemed to include any successors or any other person or entity
which may hereafter acquire the business of Company or the Bank. The
foregoing notwithstanding, should the assets of Company he disposed of in
such a manner that no purchaser thereof has acquired a going business, then
Employee shall not be bound by the covenants expressed in this paragraph.
7. TRADE SECRETS AND CONFIDENTIAL INFORMATION. Employee hereby covenants and
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agrees that he will not, except as may be required in connection with his
employment under this Agreement, directly or indirectly, use or disclose to
any other person, firm or corporation, whether during or subsequent to the
term of his employment by Company,
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irrespective of the time, manner or cause of the termination of his
employment, any information of a proprietary nature belonging to Company,
or which could be reasonably expected to have an adverse effect on Company,
its businesses, property or financial condition, including but not limited
to records, data, documents, processes, specifications, methods of
operation, techniques and know-how, plans, policies, customer lists, the
names and addresses of suppliers or representatives, investigations or
other matters of any kind or description relating to the products,
services, suppliers, customers, sales or businesses of Company. All
records, files, documents, equipment and the like relating to Company's
businesses which Employee shall prepare, use or observe shall be and remain
the sole property of Company, and upon termination of this Agreement or his
employment hereunder for any reason, Employee shall return to the
possession of Company any items of that nature and any copies thereof which
he may have in his possession.
8. INDEMNITY.
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(a) Indemnification. Company will indemnify Employee (and, upon his death,
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his heirs, executors and administrators) to the fullest extent
permitted by law against all expenses, including reasonable attorneys'
fees, court and investigative costs, judgments, fines and amounts paid
in settlement (collectively, "Expenses") reasonably incurred by him in
connection with or arising out of any pending, threatened or completed
action, suit or proceeding in which he may become involved by reason of
his having been an officer or director of Company or the Bank. The
indemnification rights provided for herein are not exclusive and will
supplement any rights to indemnification that Employee may have under
any applicable bylaw or charter provision of Company or the Bank, or
any resolution of Company or the Bank, or any applicable statute.
(b) Advancement of Expenses. In the event that Employee becomes a party, or
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is threatened to be made a party, to any pending, threatened or
completed action, suit or proceeding for which Company or the Bank is
permitted or required to indemnify him under this Agreement, any
applicable bylaw or charter provision of Company or the Bank, any
resolution of Company or the Bank, or any applicable statute, Company
will, to the fullest extent permitted by law, advance all Expenses
incurred by Employee in connection with the investigation, defense,
settlement or appeal of any threatened, pending or completed action,
suit or proceeding, subject to receipt by Company of a written
undertaking from Employee to reimburse Company for all Expenses
actually paid by Company to or on behalf of Employee in the event it
shall be ultimately determined that Company or the Bank cannot lawfully
indemnify Employee for such Expenses, and to assign to Company all
rights of Employee to indemnification under any policy of directors,
and officers, liability insurance to the extent of the amount of
Expenses actually paid by Company to or on behalf of Employee.
(c) Litigation. Unless precluded by an actual or potential conflict of
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interest, Company will have the right to recommend counsel to Employee
to represent him in connection
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with any claim covered by this Section 8. Further, Employee's choice of
counsel, his decision to contest or settle any such claim, and the
terms and amount of the settlement of any such claim will be subject to
Company's prior reasonable approval in writing.
9. ARBITRATION. Any disputes arising out of this Agreement or connected with
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Employee's employment shall be submitted by Employee and Company to
arbitration by the American Arbitration Association or its successor, and
the determination of the American Arbitration Association or its successor
shall be final and absolute. The arbitrator shall be governed by the duly
promulgated rules and regulations of the American Arbitration Association
or its successor, and the pertinent provisions of the laws of the State of
Colorado relating to arbitration. The decision of the arbitrator may be
entered as a judgment in any court in the State of Colorado or elsewhere.
The prevailing party shall be entitled to receive reasonable attorneys'
fees incurred in connection with such arbitration in addition to such other
costs and expenses as the arbitrators may award.
10. INTERPRETATION. This Agreement shall be construed in accordance with the
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internal laws of the State of Colorado. The titles of the paragraphs have
been inserted as a matter of convenience of reference only and shall not be
construed to control or affect the meaning or construction of this
Agreement.
11. SEVERABILITY. In the event that any portion of this Agreement is found to
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be in violation of or conflict with any federal or state law, the parties
agree that said portion shall be modified only to the extent necessary to
enable it to comply with such law.
12. ASSIGNMENT. This Agreement shall not be assignable by Employee, but shall
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be binding upon and inure to the benefit of the successors and assigns of
Company.
13. NOTICES. All notices or other communications in connection with this
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Agreement shall be in writing and shall be deemed to have been duly given
when delivered, sent by professional courier or mailed first class, postage
prepaid and addressed as follows:
(i) If to Company, addressed to:
Colorado Business Bankshares, Inc.
000 - X0xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
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with a copy to:
Xxxxxx & Coff
Suite 4100
55 X. Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
(ii) If to Employee, addressed to:
Xxxxxxx X. Xxxxxx
00000 X. Xxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
with a copy to:
__________________
__________________
__________________
or such other address or addressed to the attention of such other person or
persons as either of the parties may notify the other in accordance with the
provisions of this paragraph.
14. ENTIRE AGREEMENT. This Agreement is the entire agreement and understanding
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of the parties hereto with respect to the subject matter hereof and
supersedes any and all prior and contemporaneous negotiations,
understandings and agreements with regard to the subject matter hereof,
whether oral or written. No representation, inducement, agreement, promise
or understanding altering, modifying, taking from or adding to the terms
and conditions hereof shall have any force or effect unless the same is in
writing and validly executed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
Colorado Business Bankshares, Inc.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxx
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Xxxxxxx X. Xxxxxx Xxxxxx Xxxxxxx
Chief Executive Officer
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