EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made effective as of the
23rd day of February, 2010 (the "Effective Date"), by and between OmniAmerican
Bank (the "Bank"), a federally chartered stock savings bank with its principal
administrative office at 1320 S. University Dr., Suite 900, Fort Worth, Texas
76107, and Tim Carter ("Executive"). The Bank is a wholly-owned subsidiary of
OmniAmerican Bancorp, Inc., a Maryland corporation (the "Company"). The Company
has executed this Agreement for the sole purpose of guaranteeing the Bank's
financial performance hereunder.
WHEREAS, Executive is currently employed as the President and Chief
Executive Officer of the Bank, and the Bank wishes to assure itself of the
continued services of Executive as President and Chief Executive Officer of the
Bank for the period provided in this Agreement; and
WHEREAS, in order to induce Executive to remain in the employ of the Bank
and to provide further incentive for Executive to achieve the financial and
performance objectives of the Bank, the parties desire to enter into this
Agreement; and
WHEREAS, the Board of Directors of the Bank finds it to be in the best
interest of the Bank to enter into this Agreement with Executive.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. POSITION AND RESPONSIBILITIES
During the term of this Agreement, Executive agrees to serve as President
and Chief Executive Officer of the Bank, and will perform all duties and will
have all powers that are generally incident to the office of the President and
Chief Executive Officer. Without limiting the generality of the foregoing,
Executive will be responsible for the overall management of the Bank, and will
be responsible for establishing the business objectives, policies and strategic
plans of the Bank in conjunction with the Board of Directors (the "Board") of
the Bank. Executive also will be responsible for providing leadership and
direction to all departments or divisions of the Bank, and will be the primary
contact between the Board and other officers and employees of the Bank. As
President and Chief Executive Officer, Executive will report directly to the
Board.
Executive also agrees to serve, if appointed or elected, as a director
of the Bank or the Company, and as an officer and/or director of any subsidiary
or affiliate of the Bank or the Company.
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2. TERM
(a) Term and Annual Review. The term of this Agreement will begin as of the
Effective Date and will continue for thirty-six (36) full calendar months
thereafter. Commencing on the first anniversary date of this Agreement (the
"Anniversary Date") and continuing on each Anniversary Date thereafter, the
disinterested members of the Board may extend the term of this Agreement for an
additional year such that the remaining term shall be thirty-six (36) months,
unless written notice of non-renewal is provided to Executive at least thirty
(30) days prior to any such Anniversary Date, in which case the term of this
Agreement will become fixed and will terminate at the end of the thirty-six (36)
months following such Anniversary Date. Prior to each Anniversary Date, the
disinterested members of the Board will conduct a comprehensive performance
evaluation and review of Executive for purposes of determining whether to extend
this Agreement, and the results thereof will be included in the minutes of the
Board's meeting.
(b) Continued Employment Following Expiration of Term. Nothing in this
Agreement shall mandate or prohibit a continuation of Executive's employment
following the expiration of the term of this Agreement, upon such terms and
conditions as the Bank and Executive may mutually agree.
3. LOYALTY AND OUTSIDE ACTIVITIES
During the period of his employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive will devote all of his business time, attention,
skill and efforts to the faithful performance of his duties under this
Agreement, including activities and duties directed by the Board.
Notwithstanding the preceding sentence, subject to the approval of the Board,
Executive may serve as a member of the board of directors of business, community
and charitable organizations, provided that in each case such service shall not
materially interfere with the performance of his duties under this Agreement,
adversely affect the reputation of the Bank, or present any conflict of
interest. Executive will present annually to the Board for its review and
approval a list of organizations in which Executive is participating or proposes
to participate. The Bank will reimburse Executive his reasonable expenses
associated therewith, in accordance with the Bank's policy for such
reimbursements or as determined by the Bank's Board, to the extent the Bank
deems Executive's participation therein to be in the best interest of the Bank.
Notwithstanding the foregoing, the Bank shall pay the monthly dues of
Executive's membership in Colonial Country club, the Fort Worth Exchange Club,
the Fort Worth Club, and the Rotary Club of Fort Worth, all in Tarrant County,
Texas. Notwithstanding anything herein to the contrary, no reimbursement shall
be made later than March 15 of the calendar year following the calendar year in
which the expense was incurred.
4. COMPENSATION AND REIMBURSEMENT
(a) Base Salary. In consideration of Executive's performance of the
responsibilities and duties set forth in Section 1, the Bank will provide
Executive the compensation specified in this Agreement. The Bank will pay
Executive a salary of $450,000.00 per year ("Base Salary"). Such Base Salary
will be payable in accordance with the customary payroll practices of the Bank.
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During the period of this Agreement, the Board, or a Committee designated by the
Board, will review Executive's Base Salary at least annually, and the Board may
increase, but not decrease Executive's Base Salary (except for a decrease that
is not in excess of any decrease that is generally applicable to "Executive
Officers" of the Bank, as such term is defined in 12 U.S.C. ss. 251.2(e)
(Regulation O)). Any increase in Base Salary will become the "Base Salary" for
purposes of this Agreement.
To the extent that Executive performs any services for the Company or an
affiliate or subsidiary, any compensation paid to Executive for such services
shall be paid to Executive by such entity and shall not be paid by the Bank
unless the Bank receives reimbursement for such payment from such entity, as
required by Section 23A and 23B of the Federal Reserve Act.
(b) Bonus and Incentive Compensation. Executive will be entitled to
participate in any incentive compensation and bonus plans or arrangements of the
Bank. Such incentive compensation will be paid in cash in accordance with the
terms of such plans or arrangements, or on a discretionary basis by the Board or
a Committee designated by the Board. Nothing paid to Executive under any such
plans or arrangements will be deemed to be in lieu of other compensation to
which Executive is entitled under this Agreement.
(c) Benefit Plans. Executive will be entitled to participate in all
employee benefit plans, arrangements and perquisites substantially equivalent to
those in which Executive was participating or otherwise deriving benefit from
immediately prior to the beginning of the term of this Agreement. The Bank will
not, without Executive's prior written consent, make any changes in such plans,
arrangements or perquisites which would adversely affect Executive's rights or
benefits thereunder (other than a change or reduction that would apply uniformly
to other participating officers and employees of the Bank). Without limiting the
generality of the foregoing provisions of this Section 4(c), Executive also will
be entitled to participate in or receive benefits under any employee benefit
plans including but not limited to, stock benefit plans, retirement plans,
supplemental retirement plans, pension plans, profit-sharing plans,
health-and-accident plans, medical coverage or any other employee benefit plan
or arrangement made available by the Bank in the future to its senior executives
and key management employees, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and arrangements.
(d) Life, Health, Dental and Disability Coverage. Bank shall provide
Executive with life, medical, dental and disability coverage made available by
the Bank to its senior executives and key management employees, subject to and
on a basis consistent with the terms and overall administration of such
coverage.
(e) Use of Automobile. During the term of the Agreement, the Bank shall
provide Executive with an automobile, or shall reimburse Executive for the use
of his personal automobile in accordance with the Bank's normal policy. In the
event an automobile is furnished by the Bank, it shall be fully maintained by
the Bank, and the Bank shall provide insurance against liability that results
from the use of such automobile. Executive shall be responsible for properly
preventing the loss, theft, or destruction of the automobile, including its
garaging at the Bank's place of business, the expense of which, however, shall
be paid by the Bank.
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(f) Vacation and Leave. Executive will be entitled to no less than four (4)
weeks paid vacation time each year during the term of this Agreement (measured
on a fiscal or calendar year basis, in accordance with the Bank's usual
practices), as well as sick leave, holidays and other paid absences in
accordance with the Bank's policies and procedures for senior executives. Any
unused paid time off during an annual period will be treated in accordance with
the Bank's personnel policies as in effect from time to time.
(e) Expense Reimbursements. During the term of this Agreement, the Bank
will reimburse Executive for all reasonable travel, entertainment and other
reasonable expenses incurred by Executive during the course of performing his
obligations under this Agreement, including, without limitation, fees for
memberships in such organizations as Executive and the Board mutually agree are
necessary and appropriate in connection with the performance of his duties under
this Agreement, upon substantiation of such expenses in accordance with
applicable policies and procedures of the Bank.
5. WORKING FACILITIES
Executive's principal place of employment will be at the Bank's principal
executive offices. The Bank will provide Executive at his principal place of
employment, a private office, secretarial and other support services and
facilities suitable to his position with the Bank and necessary or appropriate
in connection with the performance of his duties under this Agreement.
6. TERMINATION AND TERMINATION PAY
Subject to Section 7 of this Agreement which governs a termination in the
event of a Change in Control, Executive's employment under this Agreement may be
terminated in the following circumstances:
(a) Death. Executive's employment under this Agreement will terminate upon
his death during the term of this Agreement, in which event Executive's estate
or beneficiary will receive the compensation due to Executive through the last
day of the calendar month in which his death occurred. Upon Executive's death,
Executive's family shall be entitled to the continued health care coverage
rights provided under the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended ("COBRA") and Texas health care continuation laws for the
maximum period permitted under applicable law and, for the first 12 months of
such period, the Bank shall reimburse Executive's family for the premiums paid
no less frequently than quarterly and within 15 days following the end of each
quarter, such that premiums paid in the first quarter of a calendar year shall
be reimbursed by April 15, premiums paid in the second quarter shall be
reimbursed by July 15, etc.
(b) Retirement. This Agreement will terminate upon Executive's "Retirement"
under the retirement benefit plan or plans of the Bank in which he participates.
Executive will not be entitled to the termination benefits specified in Section
6 or 7 hereof in the event of termination due to Retirement. For purposes of
this Agreement, termination of Executive's employment based on Retirement shall
include termination of Executive's employment by the Board for any reason after
Executive attains the age of sixty-five (65).
(c) Disability.
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(i) The Board may terminate Executive's employment after having determined
that Executive is "Disabled." For purposes of this Agreement, Executive will be
considered "Disabled" and the Board will have the right to terminate this
Agreement due to Executive's Disability in any case in which it is determined:
(A) by a duly licensed physician selected by the Bank that Executive is unable
to engage in any substantial gainful employment for which he is reasonably
suited by education, training or experience by reason of any medically
determinable physical or mental impairment which can be expected to result in
death, or last for a period of not less than 12 months, (B), or by reason of the
condition described in "(A)," the Executive is receiving income replacement
benefits for a period of not less than three months under an accident and health
plan covering employees of the Bank, or (C) by the Social Security
Administration that Executive is disabled.
(ii) In the event the Board determines that Executive is Disabled,
Executive will no longer be obligated to perform services under this Agreement.
Upon Executive's termination due to Disability, the Bank will cause to be
continued for a period of three (3) years, life insurance coverage substantially
comparable to the coverage maintained by the Bank for Executive prior to his
termination. Notwithstanding the foregoing, with respect to the
individually-owned life insurance policy for which the Bank co-pays the premium
for Executive, the Bank shall only be obligated to continue to make such
payments for such three year period in accordance with the same co-pay
arrangement in effect immediately prior to Executive's Disability. In addition,
Executive shall also have the right to purchase such continued health care
coverage for himself and his family as is customarily available to employees of
the Bank under COBRA and Texas health care continuation laws for the maximum
period provided by law and the Bank shall reimburse the Executive for the
premiums paid by Executive no less frequently than quarterly and within 15 days
following the end of a quarter, such that premiums paid in the first quarter of
a calendar year shall be reimbursed by April 15, premiums paid in the second
quarter shall be reimbursed by July 15, etc.
(d) Termination for Cause.
(i) The Board may, by written notice to Executive in the form and manner
specified in this paragraph, immediately terminate his employment at
any time for "Cause." Executive shall have no right to receive
compensation or other benefits for any period after termination for
Cause, except for already vested benefits. Termination for Cause shall
mean termination because of, in the good faith determination of the
Board, Executive's:
(1) personal dishonesty;
(2) incompetence;
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(3) willful misconduct;
(4) breach of fiduciary duty involving personal profit;
(5) material breach of the Bank's Code of Ethics;
(6) material violation of the Sarbanes-Oxley requirements for
officers of public companies that in the reasonable opinion of
the Board will likely cause substantial financial harm or
substantial injury to the reputation of the Bank;
(7) intentional failure to perform stated duties under this
Agreement;
(8) willful violation of any law, rule or regulation (other than
traffic violations or similar offenses), any felony conviction,
any violation of law involving moral turpitude, or any violation
of a final cease-and-desist order; or
(9) material breach by Executive of any provision of this Agreement.
(ii) Notwithstanding the foregoing, Executive's termination for Cause will
not become effective unless Executive has received a notice of
termination as required by Section 8 hereof, following a meeting of
the Board at which a majority of the entire membership of the Board
has determined that, in the good faith opinion of the Board, Executive
was guilty of the conduct described above. In lieu of such meeting,
such determination can be made in any other method permitted by the
By-laws of the Bank.
(e) Voluntary Termination by Executive. In addition to his other rights to
terminate his employment under this Agreement, Executive may voluntarily
terminate employment during the term of this Agreement upon at least sixty (60)
days prior written notice to the Board. Upon Executive's voluntary termination,
he will receive only his compensation and vested rights and benefits to the date
of his termination. Following his voluntary termination of employment under this
Section 6(e), Executive will be subject to the restrictions set forth in
Sections 9(a) and 9(b) of this Agreement.
(f) Termination Without Cause or With Good Reason.
(i) In addition to termination pursuant to Sections 6(a) through 6(e), the
Board may, by written notice to Executive, immediately terminate his
employment at any time for a reason other than Cause (a termination
"Without Cause"), and Executive may, by written notice to the Board,
terminate this Agreement at any time within sixty (60) days following
an event constituting "Good Reason," as defined below (a termination
"With Good Reason"); provided, however, that the Bank shall have
thirty (30) days to cure the "Good Reason" condition, but the Bank may
waive its right to cure. Any termination of Executive's employment,
other than Termination for Cause, shall have no effect on or prejudice
the vested rights of Executive under the Bank's qualified or
non-qualified retirement, pension, savings, thrift, profit-sharing or
stock bonus plans, group life, health (including hospitalization,
medical and major medical), dental, accident and long term disability
insurance plans or other employee benefit plans or programs, or
compensation plans or programs in which Executive was a participant.
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(ii) In the event of termination under this Section 6(f), Executive will
receive a cash lump sum payment equal to three (3) times the sum of
(i) his Base Salary and (ii) average rate of bonus paid during the
three years prior to his termination of employment. Such severance
payment shall be paid within thirty (30) days following Executive's
termination of employment.
(iii) In addition, the Bank will reimburse Executive for a period of three
(3) years at no cost to Executive, for life insurance coverage
substantially comparable to the coverage maintained by the Bank for
Executive prior to his termination, and with respect to the group term
life insurance coverage provided to Executive, subject to all of the
provisions of the group term life insurance policy provided by
OmniAmerican Bank to its employees as of the date of termination.
Notwithstanding the foregoing, with respect to the individually-owned
life insurance policy for which the Bank co-pays the premium for
Executive, the Bank shall only be obligated to continue to make such
payments for such three year period in accordance with the same co-pay
arrangement as in effect immediately prior to Executive's termination
of employment. In addition, Executive shall have the right to purchase
such continued health care coverage for himself and his family as is
customarily available to employees of the Bank under COBRA and Texas
health care continuation laws for the maximum period permitted by law
and the Bank shall reimburse the Executive for the premiums paid by
Executive no less frequently than quarterly and within 15 days
following the end of a quarter, such that premiums paid in the first
quarter of a calendar year shall be reimbursed by April 15, premiums
paid in the second quarter shall be reimbursed by July 15, etc.
Following the end of the applicable COBRA and Texas health care
continuation periods and for the remainder of the three year period
following Executive's termination of employment, the Bank shall
reimburse Executive, on a quarterly basis by no later than the 15th
day following the end of such quarter, the cost of purchasing
individual coverage for himself and his family, up to $5,000 per
month. In the event Executive obtains employment elsewhere and is
eligible for and is offered health care coverage as an employee of
such new employer, the Bank's obligation to provide health care
coverage hereunder shall cease.
(iv) "Good Reason" exists if, without Executive's express written consent,
any of the following occurs:
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(1) a failure to elect or reelect or to appoint or reappoint
Executive as President and Chief Executive Officer;
(2) a material change in Executive's position to become one of lesser
responsibility, importance, or scope from the position and
attributes thereof described in Section 1 above;
(3) a liquidation or dissolution of the Bank other than liquidations
or dissolutions that are caused by reorganizations that do not
affect the status of Executive;
(4) a material reduction in Executive's Base Salary; provided
however, that except following a Change in Control, any decrease
that is not in excess of a decrease that is generally applicable
to Executive Officers as a group shall not violate this
provision;
(5) a material reduction in the aggregate welfare and/or fringe
benefits provided to Executive from those provided at the
effective date of this Agreement, provided however, that except
following a Change in Control, any elimination or modification of
any fringe benefit program that is applicable to Executive
Officers as a group shall not violate this provision; or
(6) a relocation of Executive's principal place of employment by more
than 50 miles from its location as of the date of this Agreement
without the Executive's express written consent.
(v) Notwithstanding anything else in this Section 6(f), Executive's
employment shall not be deemed to have been terminated pursuant to
this Section 6(f) or for purposes of Code Section 409A, unless and
until the Executive has a Separation from Service within the meaning
of Section 409A of the Internal Revenue Code of 1986, as amended (the
"Code"). For purposes of this Agreement, a "Separation from Service"
shall have occurred if the Bank and Executive reasonably anticipate
that either no further services will be performed by Executive after
the date of the termination (whether as an employee or as an
independent contractor) or the level of further services performed
will not exceed 49% of the average level of bona fide services in the
thirty-six (36) months immediately preceding the termination. For all
purposes hereunder, the definition of Separation from Service shall be
interpreted consistent with Treasury Regulation Section
1.409A-1(h)(ii). If Executive is a "Specified Employee," as defined in
Code Section 409A, to the extent necessary to avoid penalties under
Code Section 409A, such payment or a portion of such payment (to the
minimum extent possible) shall be delayed and shall be paid on the
first day of the seventh month following Executive's Separation from
Service.
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(g) Termination and Board Membership. To the extent Executive is a member
of the Board on the date of termination of employment with the Bank (other than
a termination due to Retirement or in connection with a Change in Control),
Executive will resign from the Board immediately following such termination of
employment with the Bank. Executive will be obligated to tender this resignation
regardless of the method or manner of termination (other than termination due to
Retirement or in connection with a Change in Control), and such resignation will
not be conditioned upon any event or payment.
(h) Release. Notwithstanding the foregoing, Executive shall not be entitled
to any payments or benefits under this Section 6 unless and until Executive
executes a release of his claims against the Bank, the Company and any
affiliate, and their officers, directors, successors and assigns, releasing said
persons from any and all claims, rights, demands, causes of action, suits,
arbitrations or grievances relating to the employment relationship, including
claims under the Age Discrimination in Employment Act, but not including claims
for benefits under tax-qualified plans or other benefit plans in which Executive
is vested, claims for benefits required by applicable law or claims with respect
to obligations set forth in this Agreement that survive the termination of this
Agreement.
(i) No Duplication of Benefits. In the event Executive becomes entitled to
severance benefits under this Agreement due to a termination of employment
compensable under this Section 6 or Section 7, Executive shall receive such
benefits under this Section or under Section 7 below, as applicable, but shall
not be entitled to receive benefits under both Sections of this Agreement.
7. TERMINATION IN CONNECTION WITH A CHANGE IN CONTROL
(a) Change in Control Defined. For purposes of this Agreement, a "Change in
Control" means any of the following events:
(i) Merger: The Company or the Bank merges into or consolidates with
another entity, or merges another bank or corporation into the Bank or
the Company, and as a result, less than a majority of the combined
voting power of the resulting corporation immediately after the merger
or consolidation is held by persons who were stockholders of the
Company or the Bank immediately before the merger or consolidation;
(ii) Acquisition of Significant Share Ownership: There is filed, or is
required to be filed, a report on Schedule 13D or another form or
schedule (other than Schedule 13G) required under Sections 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended, if the
schedule discloses that the filing person or persons acting in concert
has or have become the beneficial owner of 25% or more of a class of
the Company's or the Bank's voting securities; provided, however, this
clause (ii) shall not apply to beneficial ownership of the Company's
or the Bank's voting shares held in a fiduciary capacity by an entity
of which the Company directly or indirectly beneficially owns 50% or
more of its outstanding voting securities;
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(iii) Change in Board Composition: During any period of two consecutive
years, individuals who constitute the Company's or the Bank's Board of
Directors at the beginning of the two-year period cease for any reason
to constitute at least a majority of the Company's or the Bank's Board
of Directors; provided, however, that for purposes of this clause
(iii), each director who is first elected by the board (or first
nominated by the board for election by the stockholders or
corporators) by a vote of at least two-thirds (2/3) of the directors
who were directors at the beginning of the two-year period shall be
deemed to have also been a director at the beginning of such period;
or
(iv) Sale of Assets: The Company or the Bank sells to a third party all or
substantially all of its assets.
(b) Termination. If after a Change in Control, (i) the Bank terminates
Executive's employment Without Cause, or (ii) Executive voluntarily terminates
his employment With Good Reason, the Bank will, within ten (10) calendar days of
the termination of Executive's employment, make a lump-sum cash payment to him
equal to three (3) times the sum of (i) Executive's Base Salary and (ii) highest
rate of bonus paid during the calendar year in which termination occurs or any
of the three years prior to his termination of employment. Such severance
payment shall be paid within thirty (30) days following Executive's termination
of employment. In addition, the Bank will provide, at no cost to Executive, life
insurance coverage substantially comparable to the coverage maintained by the
Bank for Executive prior to his termination for a period of three (3) years, and
with respect to the group term life insurance coverage provided to Executive,
subject to all of the provisions of the group term life insurance policy
provided by OmniAmerican Bank to its employees as of the date of termination.
Notwithstanding the foregoing, with respect to the individually-owned life
insurance policy for which the Bank co-pays the premium for Executive, the Bank
shall only be obligated to continue to make such payments for such three year
period in accordance with the same co-pay arrangement as in effect immediately
prior to Executive's termination of employment. In addition, the Bank shall pay
for or, if the Bank is self-insured at such time, Executive shall have the right
to purchase such continued health care coverage for himself and his family as is
customarily available to employees of the Bank under COBRA and Texas health care
continuation laws for the maximum period permitted by law. If Executive pays for
such coverage, the Bank shall reimburse the Executive for the premiums paid by
Executive no less frequently than quarterly, within 15 days following the end of
a quarter, such that premiums paid in the first quarter of a calendar year shall
be reimbursed by April 15, premiums paid in the second quarter shall be
reimbursed by July 15, and so on. Following the end of the applicable COBRA and
Texas health care continuation periods and for the remainder of the three year
period following Executives termination of employment, the Bank shall reimburse
Executive, on a quarterly basis by no later than the 15th day following the end
of such quarter, the cost of purchasing individual coverage for himself and his
family, up to $5,000 per month.
(c) Separation from Service. Notwithstanding Sections 7(a) or 7(b) above,
Executive shall not be deemed to have been terminated following a Change in
Control unless and until the Executive has a Separation from Service within the
meaning of Code Section 409A. For purposes of this Agreement, a "Separation from
Service" shall have occurred if the Bank and Executive reasonably anticipate
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that eitherno further services will be performed by the Executive after the date
of the termination (whether as an employee or as an independent contractor) or
the level of further services performed will not exceed 49% of the average level
of bona fide services in the thirty-six (36) months immediately preceding the
termination. For all purposes hereunder, the definition of Separation from
Service shall be interpreted consistent with Treasury Regulation Section
1.409A-1(h)(ii). If Executive is a "Specified Employee," as defined in Code
Section 409A, then to the extent necessary to avoid penalties under Code Section
409A, such payment or a portion of such payment (to the minimum extent possible)
shall be delayed and shall be paid on the first day of the seventh month
following Executive's Separation from Service.
(d) Survival. The provisions of this Section 7 and Sections 10 through 20,
including the defined terms used in such sections, shall continue in effect
until the later of the expiration of this Agreement or one year following a
Change in Control.
8. NOTICE
(a) Notice of Termination. A "notice of termination" shall mean a written
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under the
provision so indicated.
(b) Date of Termination. "Date of termination" shall mean (i) if
Executive's employment is terminated for Disability, thirty (30) days after a
notice of termination is given (provided that he shall not have returned to the
performance of his duties on a full-time basis during such thirty (30) day
period), or (ii) if Executive's employment is terminated for any other reason,
the date specified in the notice of termination.
(c) Good Faith Resolution. If the party receiving a notice of termination
desires to dispute or contest the basis or reasons for termination, the party
receiving the notice of termination must notify the other party within thirty
(30) days after receiving the notice of termination that such a dispute exists,
and shall pursue the resolution of such dispute in good faith and with
reasonable diligence pursuant to Section 17 of this Agreement. During the
pendency of any such dispute, the Bank shall not be obligated to pay Executive
compensation or other payments beyond the date of termination. Any amounts paid
to Executive upon resolution of such dispute under this Section shall be offset
against or reduce any other amounts due under this Agreement.
9. POST-TERMINATION OBLIGATIONS/NON-COMPETE.
(a) Non-Solicitation/Non-Compete. Executive hereby covenants and agrees
that, for a period of two (2) years following his termination of employment with
the Bank (other than a termination of employment following a Change in Control),
he shall not, without the written consent of the Bank, either directly or
indirectly:
(i) solicit, offer employment to, or take any other action intended
(or that a reasonable person acting in like circumstances would
expect) to have the effect of causing any officer or employee of
the Bank, or of any holding
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company of the Bank, or any of their respective subsidiaries or
affiliates, to terminate his or her employment and accept
employment or become affiliated with, or provide services for
compensation in any capacity whatsoever to, any business
whatsoever that competes with the business of the Bank, or of any
holding company of the Bank, or any of their direct or indirect
subsidiaries or affiliates, that has headquarters or offices
within twenty-five (25) miles of any location(s) in which the
Bank, or any holding company of the Bank, has business operations
or has filed an application for regulatory approval to establish
an office;
(ii) become an officer, employee, shareholder (except Executive shall
be permitted to own non-voting preferred stock or up to 5% of the
outstanding common stock of any entity if such common stock is
publicly traded), consultant, director, independent contractor,
agent, joint venturer, partner or trustee of any savings bank,
savings and loan association, savings and loan holding company,
credit union, bank or bank holding company, insurance company or
agency, any mortgage or loan broker or any other entity that
competes with the business of the Bank, or any holding company of
the Bank, or any of their direct or indirect subsidiaries or
affiliates that: (i) has a headquarters within twenty-five (25)
miles of any location(s) in which the Bank, or any holding
company of the Bank, has business operations or has filed an
application for regulatory approval to establish an office (the
"Restricted Territory") or (ii) has one or more offices, but is
not headquartered, within the Restricted Territory, but in the
latter case, only if Executive would be employed, conduct
business or have other responsibilities or duties within the
Restricted Territory; or
(iii) solicit, provide any information, advice or recommendation or
take any other action intended (or that a reasonable person
acting in like circumstances would expect) to have the effect of
causing any customer of the Bank or its affiliates to terminate
an existing business or commercial relationship with the Bank.
(b) Confidentiality. Executive recognizes and acknowledges that the
knowledge of the business activities, plans for business activities, and all
other proprietary information of the Bank, or any holding company of the Bank,
as it may exist from time to time, are valuable, special and unique assets of
the business of the Bank, or any holding company of the Bank. Executive will
not, during or after the term of his employment, disclose any knowledge of the
past, present, planned or considered business activities or any other similar
proprietary information of the Bank, or any holding company of the Bank, to any
person, firm, corporation, or other entity for any reason or purpose whatsoever
unless expressly authorized by the Board or required by law. Notwithstanding the
foregoing, Executive may disclose any knowledge of banking, financial and/or
economic principles, concepts or ideas which are not solely and exclusively
derived from the business plans and activities of the Bank, or any holding
company of the Bank. Further, Executive may disclose information regarding the
business activities of the Bank, or any holding company of the Bank, to any bank
regulator having regulatory jurisdiction over the activities of the Bank, or any
holding company of the Bank, pursuant to a formal regulatory request. In the
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event of a breach or threatened breach by Executive of the provisions of this
Section, the Bank, or any holding company of the Bank, will be entitled to an
injunction restraining Executive from disclosing, in whole or in part, the
knowledge of the past, present, planned or considered business activities of the
Bank, or any holding company of the Bank, or any other similar proprietary
information, or from rendering any services to any person, firm, corporation, or
other entity to whom such knowledge, in whole or in part, has been disclosed or
is threatened to be disclosed. Nothing herein will be construed as prohibiting
the Bank, or any holding company of the Bank, from pursuing any other remedies
available to the Bank, or any holding company of the Bank, for such breach or
threatened breach, including the recovery of damages from Executive.
(c) Information/Cooperation. Executive shall, upon reasonable notice,
furnish such information and assistance to the Bank as may be reasonably
required by the Bank, in connection with any litigation in which it or any of
its subsidiaries or affiliates is, or may become, a party; provided, however,
that Executive shall not be required to provide information or assistance with
respect to any litigation between the Executive and the Bank or any of its
subsidiaries or affiliates.
(d) Reliance. All payments and benefits to Executive under this Agreement
shall be subject to Executive's compliance with this Section 9, to the extent
applicable. The provisions of this Section 9 shall survive the termination of
this Agreement. The parties hereto, recognizing that irreparable injury will
result to the Bank, its business and property in the event of Executive's breach
of this Section 9, agree that, notwithstanding Section 17 hereof, in the event
of any such breach by Executive, the Bank will be entitled, in addition to any
other remedies and damages available, to an injunction to restrain the violation
hereof by Executive and all persons acting for or with Executive. Executive
acknowledges that, without the necessity of proving actual damages or posting
bond or other security, the Bank shall be entitled to temporary or permanent
injunction or injunctions to prevent breaches of such performance and to
specific enforcement of such covenants in addition to any other remedy to which
the Bank may be entitled, at law or in equity. Executive represents and admits
that Executive's experience and capabilities are such that Executive can obtain
employment in a business engaged in other lines of business than the Bank, and
that the enforcement of a remedy by way of injunction will not prevent Executive
from earning a livelihood. Nothing herein will be construed as prohibiting the
Bank, or any holding company of the Bank, from pursuing any other remedies
available to them for such breach or threatened breach, including the recovery
of damages from Executive.
10. SOURCE OF PAYMENTS
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank, provided, however, that the Company
hereby guarantees payment and provision of all amounts and benefits due
hereunder to Executive.
11. REQUIRED REGULATORY PROVISIONS
(a) If Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) (12 USC ss.1818(e)(3)) or 8(g)(1) (12 USC ss.1818(g)(1)) of the
Federal Deposit Insurance Act ("FDIA"), the Bank's obligations under this
Agreement shall be suspended as of the date of service, unless stayed by
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appropriate proceedings. If the charges in the notice are dismissed, the Bank
may in its discretion (i) pay Executive all or part of the compensation withheld
while its contract obligations were suspended and (ii) reinstate (in whole or in
part) any of its obligations which were suspended.
(b) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) (12 U.S.C. ss.1818(e)(4)) or 8(g)(1) (12 U.S.C. ss.1818(g)(1))
of FDIA, all obligations of the Bank under this Agreement shall terminate as of
the effective date of the order, but vested rights of the contracting parties
shall not be affected.
(c) If the Bank is in default as defined in Section 3(x)(1) (12 U.S.C.
ss.1813(x)(1)) of FDIA, all obligations under this Agreement shall terminate as
of the date of default, but this paragraph shall not affect any vested rights of
the contracting parties.
(d) All obligations under this Agreement shall be terminated, except to the
extent determined that continuation of this Agreement is necessary for the
continued operation of the Bank, (i) by the Director of OTS 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 contained in Section 13(c) (12
U.S.C. ss.1823(c)) of FDIA; or (ii) by the Director of OTS or his or her
designee at the time the Director of OTS or his or her designee approves a
supervisory merger to resolve problems related to operations of the Bank or when
the Bank is determined by the Director of OTS or his or her designee to be in an
unsafe or unsound condition. Any rights of the parties that have already vested,
however, shall not be affected by such action.
(e) Notwithstanding anything herein to the contrary, any payments to
Executive by the Company or the Bank, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with Section
18(k) of FDIA, 12 U.S.C. Section 1828(k), and the regulations promulgated
thereunder in 12 C.F.R. Part 359.
(f) Notwithstanding anything herein to the contrary, payments to or for the
benefit of Executive hereunder shall not exceed three times Executive's annual
average compensation for the five most recent taxable years, within the meaning
of Section 310 of the Office of Thrift Supervision Examination Handbook.
12. NO ATTACHMENT; SUCCESSORS AND ASSIGNS
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of
Executive, the Bank and the Bank's successors and assigns.
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13. ENTIRE AGREEMENT; MODIFICATION AND WAIVER
(a) This Agreement contains the entire agreement of the parties relating to
the subject matter hereof, and supercedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof, except that the parties acknowledge that this Agreement shall not affect
any of the rights and obligations of the parties under any agreement or plan
entered into with or by the Bank pursuant to which the Executive may receive
compensation or benefits except as set forth in Section 6(d) hereof.
(b) This Agreement may not be modified or amended except by an instrument
in writing signed by each of the parties hereto.
(c) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
14. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
15. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
16. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Texas but only
to the extent not superseded by federal law.
17. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement, other than a dispute arising under Section 9 hereof, shall be settled
exclusively by binding arbitration, as an alternative to civil litigation and
without any trial by jury to resolve such claims, conducted by a single
arbitrator, mutually acceptable to the Bank and Executive, sitting in a location
selected by the Bank within fifty (50) miles from the main office of the Bank,
in accordance with the rules of the American Arbitration Association's National
Rules for the Resolution of Employment Disputes ("National Rules") then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction.
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18. PAYMENT OF LEGAL FEES
All reasonable legal fees paid or incurred by Executive 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 Executive and the Bank or resolved in Executive's favor, and such
reimbursement shall occur no later than sixty (60) days after the end of the
year in which the dispute is settled or resolved in Executive's favor.
19. INDEMNIFICATION
(a) Indemnification. The Bank agrees to indemnify Executive (and his heirs,
executors, and administrators), and to advance expenses related to this
indemnification, to the fullest extent permitted under Section 11(e) of this
Agreement and applicable law and regulations, including 12 C.F.R. Section
545.121, against any and all expenses and liabilities that Executive reasonably
incurs in connection with or arising out of any action, suit, or proceeding in
which he may be involved by reason of his service as a director or officer of
the Bank or any of its subsidiaries (whether or not he continues to be a
director or officer at the time of incurring any such expenses or liabilities).
Covered expenses and liabilities include, but are not limited to, judgments,
court costs, and attorneys' fees and the costs of reasonable settlements,
subject to Board approval, if the action is brought against Executive in his
capacity as an officer or director of the Bank or any of its subsidiaries.
Indemnification for expenses will not extend to matters related to Executive's
termination for Cause. Notwithstanding anything in this Section 19 to the
contrary, the Bank will not be required to provide indemnification prohibited by
applicable law or regulation. The obligations of this Section 19 will survive
the term of this Agreement by a period of six (6) years.
(b) Insurance. During the period for which the Bank must indemnify
Executive, the Bank will provide Executive with coverage under a directors' and
officers' liability policy at the Bank's expense, that is at least equivalent to
the coverage provided to directors and senior executives of the Bank.
20. SUCCESSORS AND ASSIGNS
The Bank shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank, expressly and
unconditionally to assume and agree to perform the Bank's obligations under this
Agreement, in the same manner and to the same extent that the Bank would be
required to perform if no such succession or assignment had taken place.
[Remainder of Page Intentionally Blank]
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SIGNATURES
IN WITNESS WHEREOF, the Bank and the Company have caused this Agreement to
be executed by their duly authorized officers, and Executive has signed this
Agreement, on the day and date first above written.
/a/ Mary-Margaret Lemons By: /s/ Wayne Burchfield
------------------------------------
Name Wayne Burchfield
Title Board Chair
ATTEST: OMNIAMERICAN BANCORP, INC.
/s/ Mary-Margaret Lemons By: /s/ Wayne Burchfield
------------------------------------
Name Wayne Burchfield
Title Board Chair
WITNESS: EXECUTIVE
/s/ Mary-Margaret Lemons By: /s/ Tim Carter
-------------------------------------
Tim Carter,
President and Chief Executive Officer
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