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Ceo Employment Agreement

This is an actual contract by United Western Bancorp.

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Sectors: Financial Services
Governing Law: Colorado , View Colorado State Laws
Effective Date: October 15, 2008
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Exhibit 10.1





EMPLOYMENT AGREEMENT



This Agreement is between United Western Bancorp, Inc. (" Company" ) and ScotT. Wetzel (" Executive" ), and shall be effective as of October 15, 2008 (the " Effective Date" ).



1.Appointment. Company hereby appoints Executive to serve as Company's President and Chief Executive Officer (" CEO" ) throughout the Term specified below. Throughout the Term, Company will also recommend to the Nominating and Corporate Governance Committee of Company's Board of Directors (the " Board" ) that Executive be nominated to serve on the Board. Throughout the Term, if and to the extent permitted by applicable banking regulations and banking regulatory authorities, Company shall also cause Executive to be appointed and to serve as the President and CEO of United Western Bank (" Bank" ) and shall cause him to be elected to serve as the Chairman of Bank's board of directors (the " Bank Board" ).



2.Compensation.



a.Salary and Salary Review. Company shall pay or cause Bank to pay Executive a total base salary from Company and Bank (the " Base Salary" ) of $400,000 per year, which shall be payable in equal installments in accordance with Company's standard payroll practice, less customary or legally required withholdings and deductions. Company may, in its sole discretion, increase Executive's base salary, as and when Company deems appropriate, in which case new Executive's base salary shall not thereafter be reduced. Executive shall receive directors fees or other compensation for serving as a director of Company or Bank if and to the extent that it is the general policy of Company or Bank to pay such fees to employee directors, in which event Executive shall be entitled to receive the same fees as would any other employee director serving in the same position.



b.Cash Bonuses. Executive will be eligible to participate in Company's Executive Incentive Plan, as it may be amended, modified, or changed from time to time by the Compensation Committee of the Board of Directors.



c.Contract Expenses. Company shall reimburse Executive for the costs and expenses, including reasonable legal fees that he incurs in connection with the review, drafting and negotiation of this Agreement and any other contemporaneous written agreements between Executive and Company contemplated by this Agreement. The Executive shall submit amounts to be reimbursed pursuant to this paragraph to the Company within 30 days of receipt of an invoice for such expense, and the Company shall reimburse Executive within 30 days of receipt from the Executive. Notwithstanding the foregoing, any expense that is not reimbursed to the Executive within two and a half months following the calendar year in which the expense was incurred shall not be reimbursed by the Company.In no event shall the Companydelay payment of any invoice timely submitted byExecutivefor the purpose of avoiding reimbursing expensesincurred by Executive that otherwise would be reimbursable under this Section 2(c).





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3.Fringe Benefits.



a.Insurance. Executive and Executive's dependents shall be eligible for coverage under the group insurance plans made available from time to time to Company's executive and management employees. The premiums for the coverage of Executive and Executive's dependents under that plan shall be paid pursuant to the formula in place for other executive and management employees covered by Company's group insurance plans.



b.Vehicle Allowance and Travel Reimbursements. Company shall provide Executive with a vehicle allowance of $750 per month, payable in equal installments at the same time Executive's salary installments are paid. Such payments shall be in addition to, and not a substitute for, Company's obligation to reimburse Executive for business travel that Executive conducts in Executive's personal vehicle at the same rates as are set from time to time by the Board for business travel by its executive and management employees pursuant to Section 3.c below.



c.Expenses. Subject to Company's policies and procedures for the reimbursement of business expenses incurred by its executive and management employees, Company shall reimburse Executive for all reasonable and necessary expenses incurred by Executive in connection with Executive's performance of Executive's duties under this Agreement, including expenses incurred as a director of Company or of Bank, all in accordance with its policies and procedures relating to executive employee expense reimbursements.



d.Country Club. Company shall pay all annual membership dues and incidental fees associated with Executive's membership and use of privileges at one country club of Executive's choosing.



e.Professional Organizations. Company shall pay directly, or reimburse Executive for, dues, membership fees and incidental expenses associated with Executive's membership in and participation in professional or service organizations, including the Young President's Organization, that in Executive's reasonable discretion relate to or advance his effectiveness in serving Company.



f.Life Insurance. Company shall provide Executive with life insurance benefits comparable to those afforded to its other executive employees.



g.Miscellaneous Benefits. Executive shall receive all fringe benefits that Company may from time to time make available generally to its executive and management employees.



4.Paid Leave.



a.Vacation. During each year of continuous, full-time employment, Executive shall earn four (4) weeks per year of paid vacation time, which vacation time shall accrue in accordance with Company policy applicable to Company's executive and management employees as set forth in Company's Employee Handbook as in effect from time to time.





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b.Sick Leave and Holidays. Executive shall receive paid sick leave and holidays under the guidelines for such leave applicable from time to time to Company's executive and management employees.



5.Term and Termination.



a.Term. Unless earlier terminated pursuant to this Section 5, the initial term of this Agreement shall be three (3) years beginning on the date of this Agreement. Upon the expiration of the initial term, or any subsequent renewal term, this Agreement shall automatically renew for a renewal term of 1 year, unless no fewer than three (3) months before the expiration of the initial term, or any subsequent renewal term, either party gives the other written notice of its or his intention not to renew this Agreement upon its expiration (the initial term together with any renewal terms are referred to herein as the " Term" ).



b.Termination by Consent. This Agreement may be terminated at any time by the parties' mutual agreement, expressed in writing.



c.Termination by Executive.



i.Executive may terminate this Agreement before the end of its initial term or any renewal term upon thirty (30) days' prior written notice, in which case Company's only obligation to Executive with respect to compensation shall be payment of salary, accrued, unused vacation compensation earned as of the last date bona fide services are performed for Company under this Agreement (the " Termination Date" ).



ii.Executive may, by written notice to Company made not less than sixty (60) days before the Termination Date, elect to terminate his employment on the basis of " good reason" if (a) Company commits a material breach of its obligations under Section 1 of this Agreement; or (b) there is a material reduction of Executive's duties, authority or status other than reductions or limitations imposed by law or regulatory authority; or (c) a material change of the principal location in which Executive is required to perform his duties hereunder without Executive's prior consent (it being agreed that any location within the Denver, Colorado metropolitan area shall not be deemed a material change); or (d) a material reduction in (or a failure to pay or provide) Executive's compensation or benefits payable under this Agreement; or (e) any other material breach by Company of this Agreement. Any such notice of termination by Executive for " good reason" shall specify the circumstances constituting " good reason." Within 48 hours of the delivery of the Executive' s written notice of resignation for good reason, the Company may notify the Executive of the Company' s intent to convene a meeting of the Company' s board of directors to review and consider the Executive' s election to terminate for good reason with the purpose of exploring the adequacy of the Executive' s good reason (a " Company Review" ), which meeting may be held telephonically. If the Company elects to commence a Company Review, the meeting to conduct the Company Review will be held within three business days of the date of the Company' s notice of the same to the Executive. The Executive will present his arguments in support of the termination for good reason to the Company at the Company Review and the Company will be permitted to provide rebuttal to the Executive' s arguments. With prior notice to the Company, the Executive' s personal attorney will be allowed to attend the Company Review. No later than two business days following the Company Review, the Executive will determine and communicate to the Company the Executive' s decision to rescind the election to terminate for good reason or to affirm his election to terminate for good reason. If the Executive confirms his election to terminate for good reason following any Company Review, or if no Company Review is held following the Executive' s election to terminate for good reason, he shall afford Company an opportunity to cure such circumstances at any time within the thirty (30) day period following the date of such Company review or Executive' s notice, as applicable. If Company does cure such circumstances within said thirty (30) day period, the notice of termination shall be withdrawn by Executive and of no further force and effect. In the event that the circumstances cited in Executive's notice are not cured within the thirty (30) days after the notice, this Agreement shall be terminated sixty (60) days after Executive's original written notice and such termination shall be treated in all respects as if it had been a termination of employment by Company without cause under Section 5.d of this Agreement.



iii.If at any time during the Term of this Agreement: (i)the Chairman of the Board of the Company' s board of directors is removed or resigns, other than as the result of any order of or agreement with any federal or state regulatory agency having jurisdiction over the Company or its subsidiaries; and (ii) the Executive is not named as the succeeding Chairman of the Board of the Company' s board of directors, Executive may, by written notice to the Company during the 60-day period ending no later than 195 days after the appointment of any new Chairman of the Board (such appointment occurring on the " Appointment Date" ) of the Company' s board of directors, elect to terminate his employment as of a date that is at least 180 days after the Appointment Date, and the termination shall be treated for all purposes as a termination on the basis of " good reason" within the meaning of the preceding paragraph; provided, however, that if Executive has resigned for good reason as provided for under this paragraph and the Company notifies the Executive of its desire for a cooling off period within two business days of the delivery to the Company of the Executive' s notice under this paragraph, Executive will accord the Company a cooling off period, commencing on the date of Executive' s notice to the Company as contemplated in this paragraph and ending on the 270th day after the Appointment Date (the " Cooling Off End-Date" ), during which time both the Executive and the Company will negotiate in mutual good faith to determine if the Executive' s objections to continued to employment with the Company can be overcome. The Executive shall continue in his employment during any cooling off period at his then base salary. If the Company imposes any cooling off period under this paragraph, the effective date of the Executive' s resignation for good reason under this paragraph shall be the first business day following the Cooling Off End-Date.





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d.Termination by Company Without Cause. Company may in its sole discretion terminate Executive's employment at any time without cause. In such an event, the following terms will apply:





i. If the Executive delivers to Company a Release within the 6th month period following the Executive's Separation from Service, Company shall pay Executive severance compensation equal to Executive's Total Annual Compensation or, if greater, Executive' s Total Compensation attributable to the remaining term of this Agreement. No severance compensation payments pursuant to this paragraph shall be made totheExecutive until the 6th month anniversary of the Executive's Separation from Service.Payment of Executive' s Total Annual Compensation or the Total Compensation, as applicable, shall be paid by the Company in a single sum (less required deductions and withholdings) on the 6th month anniversary of the Executive's Separation from Service or as soon as administratively practicable thereafter. As used in this Agreement, (A) Total Annual Compensation shall mean the average of the amount displayed (or to be displayed) in the total compensation column in the Summary Compensation Table of the Company' s proxy statement for the two calendar years immediately preceding Executive' s date of Separation from Service; (B) Total Compensation is Total Annual Compensation multiplied by the number determined by dividing the number of whole months and fractions thereof in the remaining term of this Agreement as of Executive' s date of employment termination by 12; and (C) Separation from Service shall have the meaning assigned to it by Code Sec. 409A and the Treasury regulations promulgated thereunder. Release shall mean a complete release of any claims against Company, its officers, directors, employees, agents or affiliates arising out of or related, directly or indirectly, to Executive's employment by Company or Bank or this Agreement in exactly the form attached hereto as Exhibit A.Notwithstanding the foregoing, nothing contained in the Release shall operate to release, waive or limit Executive's rights to continuing coverage under Company's directors and officers insurance under Section 6 of this Agreement or to indemnification and advancement of expenses from Company under the indemnification Agreement between Company and Executive attached hereto as Exhibit B or otherwise.



ii If and to the extent that Executive remains eligible after such termination to receive cash bonuses under the terms of Company's Executive Incentive Plan, as it is in effect at the time of Executive's termination without cause, on account of services provided to Company by Executive prior to the date of such termination, then Executive shall be awarded and paid a cash bonus in accordance with the terms of the Executive Incentive Plan, proportionately reduced to reflect any partial year of employment.Any amount payable under the terms of Company' s Executive Incentive Plan shall be paid to the Executive no later than two and a half months following the calendar year in which the Executive' s Separation from Service occurs.



iii. If Executive elects continuation of coverage under COBRA for Executive and his covered dependents, Company shall pay the portion of Executive's premiums that Company paid immediately preceding the Executive's Termination Date for all health coverage and other benefits described in Section 3 above that are subject to COBRA, to Company's plan administrator or benefit provider for a period equal to the maximum period permitted by COBRA. However, in no event shall premium payments continue beyond December 31 of the second calendar year following the calendar year in which Executive has a Separation from Service.



iv. Company shall permit Executive to exercise all options to purchase Company's stock that had vested as of the Termination Date for a period of thirty (30) days after the Termination Date or such longer period as may be permitted by the Plan, the Special Plan or Company's Compensation Committee; however, Executive shall not be permitted to exercise any option to purchase Company's stock beyond the maximum full term of the option. Notwithstanding the foregoing, Executive's exercise of options and sale of Company stock shall at all times be subject to all restrictions made applicable by any securities law or regulations to persons holding positions such as Executive holds with Company.





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e.Termination by Company With Cause. Company may terminate this Agreement effective immediately, with Company's only obligation being the payment of salary and accrued, unused vacation compensation earned as of the date of termination, by written notice to Executive if Executive: (i) commits a material violation of this Agreement; or (ii)engages in any of the following forms of misconduct: commission of any material act involving dishonesty or moral turpitude; theft of Company's property; or willful misconduct, including but not limited to willful disregard of any directive of the Chairman of the Board or the Board (either of (i) or (ii) being deemed to be " with cause" hereunder). The written notice from Company to Executive shall disclose, in reasonable detail, the basis on which Company believes that Executive's termination is with cause. If Executive provides written notice to Company of Executive's intent to dispute the existence of such cause within twenty four (24) hours of Executive's receipt of Company's notice of termination with cause, Company shall permit Executive to appear at a Board meeting (which meeting may be telephonic) to present Executive's response to the written notice. With prior notice to the Company, Executive's personal attorney will be allowed to attend such Board meeting. No later than two (2) business days after such meeting, the Board shall determine whether (a) to rescind its termination of Executive's employment, (b) to reclassify such termination as a termination without cause, or (c) to affirm the termination with cause. Company shall promptly notify Executive of any such determination in writing. If Executive does not dispute the existence of cause for his termination, such termination shall be effective on the date set forth in the original notice of termination. If Executive disputes the existence of cause for his termination before the Board and such termination is not rescinded, such termination shall be effective on the first to occur of (i) the date set forth in the original notice of termination or (ii) the date of the Board's determination to reclassify or affirm the termination.



f.Gross Up for Excise Tax and 409A Tax.



i.If any payment or benefit provided by Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including, by example and not by way of limitation, acceleration by the Company or otherwise of the date of payment under any plan, program, arrangement or agreement of Company (a " Payment" ) is subject to the excise tax imposed by Code section 4999 or any interest or penalties with respect to such excise tax (the " Excise Tax" ), then Company shall make such additional payments to Executive (the " Excise Tax Gross Up Payments" ) as are necessary to provide Executive with enough funds to pay the Excise Tax, as well as any additional taxes (other than the 409A Tax, as defined below), including but not limited to additional Excise Tax, attributable to or resulting from the payment of the Excise Tax Gross Up Payments, with the end result that Executive shall be in the same position with respect to his tax liability (other than the 409A Tax) as he would have been in if no Excise Tax had ever been imposed.The Company shall make any payments required by this paragraph no later than the last day of Executive' s taxable year next following the Executive' s taxable year in which the Excise Tax is remitted to the taxing authority.



ii.If any Payment provided to Executive pursuant to this Agreement is subject to adverse tax consequences under Code section 409A, then Company shall make such additional payments to Executive (the " 409A Gross Up Payments" ) as are necessary to provide Executive with enough funds to pay the additional taxes, interest, and penalties imposed by Code section 409A (collectively, the " 409A Tax" ), as well as any additional taxes, including but not limited to additional 409A Tax, attributable to or resulting from the payment of the 409A Gross Up Payments, with the end result that Executive shall be in the same position with respect to his tax liability as he would have been in if no 409A Tax had ever been imposed; provided, however, that the Company' s obligation to make payments under this paragraph 5.f.ii shall be limited to an amount equal to three times the 409A Tax (not including for this purpose 409A Tax attributable to the payment of any portion of the 409A Gross Up Payment).The Company shall make any payments required by this paragraph no later than the last day of Executive' s taxable year next following the Executive' s taxable year in which the 409A Tax is remitted to the taxing authority.





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g.Limitation on Certain Payments Pursuant to Section 111 of the Emergency Economic Stabilization Act of 2008.Notwithstanding any provision of this Agreement to the contrary, in no event shall the Company make a payment to Executive under this Agreement or otherwise that would cause a violation ofSection 111 of the Emergency Economic Stabilization Act of 2008 (a " 111 Violation" ).If more than one type of payment under this Agreement would cause a 111 Violation requiring the elimination of a portion of the payments, then to the extent necessary to avoid a 111 Violation first payments pursuant to Section 7.c. shall be reduced, if such payment relates to a period longer than six months, to a payment period no less than six months, and there shall be a corresponding reduction in the Non-Compete Period.Following the reduction described in the preceding sentence or if no reduction is possible under the preceding sentence, payments pursuant to Section 5.f.i. and then Section 5.f.ii. shall be reduced or eliminated.



6.Indemnification and Directors and Officers' Insurance.



a.A copy of the Indemnification Agreement between Company and the CEO, executed contemporaneously with this Agreement, is attached hereto as Exhibit B.



b.Company shall provide and maintain directors' and officers' liability insurance policies in a commercially reasonable amount, as determined by Company's Board of Directors in its discretion, covering Executive to the same extent that Company provides such coverage for its other executive officers. Such insurance coverage shall continue as to Executive even if he has ceased to be a director, employee or agent of Company with respect to acts or omissions that occurred prior to his cessation of employment with Company. Notwithstanding the foregoing, however, if Company shall cease to maintain directors' and officers' liability insurance policies covering Executive and other executive officers by reason of: (i) a consolidation, merger, sale or other reorganization of Company; (ii) any person or entity or group of persons or entities acting in concert acquiring management control of Company; or (iii) the insurers providing such insurance canceling or refusing to renew such insurance, then Executive shall have coverage only to the extent provided in any run-off policies extending the period during which Company or Executive may give the insurers notice of a claim under the terminated directors' and officers' liability insurance policies. Company shall take all reasonable actions to ensure that it obtains such
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