EXHIBIT 10.2
EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT (this
“ Agreement ”) dated this 16 th day of January, 2007, by and between
TRINITY CAPITAL CORPORATION, a New Mexico corporation (“
Trinity ”), LOS ALAMOS NATIONAL BANK, a national
banking association (“ LANB ”), TITLE GUARANTY
& INSURANCE COMPANY, a New Mexico corporation (“ Title
Guaranty ”), each with their principal offices in Los
Alamos, New Mexico (collectively, the “ Companies
”), and STEVE W. WELLS (“ Wells
”).
WHEREAS, the Companies believe it is
in their best interests that Wells continue to be employed by the
Companies on the terms and conditions contained herein, and Wells
is willing to be so employed.
NOW, THEREFORE, in consideration of
the mutual covenants, promise and agreements contained herein, and
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereto agree as
follows:
A.
Employment.
1.
Positions
. Subject
to the terms and conditions herein, LANB agrees to employ Wells as
President and Wells agrees to serve the Companies in such capacity,
and/or in such other capacities as Trinity and Wells may agree
upon, on the terms set out in this Agreement.
2.
Duties and
Responsibilities . Wells shall have all
the duties, responsibilities and authority normally performed by
the president and shall render services consistent with such
positions on the terms set forth herein. Wells shall report
to the Chief Executive Officer of Trinity (the “
CEO ”). Wells shall
have such other executive and managerial powers and duties with
respect to Trinity and its subsidiaries as may reasonably be
assigned to him by the CEO.
3.
Directorship
. Wells
shall serve on the Board of directors of Trinity, LANB and Title
Guaranty during the term of this Agreement, subject to election by
the Companies’ shareholders.
4.
Devotion of
time and Effort . Wells agrees to
devote all of his business time, attention, skill and efforts to
the Companies, subject to periods of vacation and sick leave to
which he is entitled, and shall not engage in activities that
substantially interfere with such performance. Wells shall
avoid all actual or potential conflicts of interest or the
appearance of a conflict of interest and any outside activities
that would leave him unable to fulfill his job duties.
Nothing in the foregoing shall prohibit Wells from serving on the
BOARD of directors for other non-profit, governmental or for-profit
entities; provided, no violation of this provision shall occur as a
result. Wells may retain director fees or other compensation
received for such service.
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B .
Term . The term of this Agreement shall be for
three (3) years from the Effective Date (the “ Initial
Term ”). The term, including any extensions
thereof, shall extend for one (1) additional year on the first and
each subsequent anniversary of the Effective Date (“
Renewal Term ”), unless earlier terminated pursuant to
Section D herein.
C.
Compensation.
1.
Base
Salary . Trinity shall pay
Wells a base salary of $241,084.30 per year (“
Base Salary ”), payable in
accordance with Trinity’s policies relating to salaried
employees. Based upon an evaluation of Wells’ and the
Companies’ performance conducted no less frequently than once
annually by the CEO, Wells’ Base Salary may be adjusted at
such rate and at such times as may be fixed by the CEO in his or
her sole discretion.
2.
Bonus . Wells may be granted
a bonus at the end of each fiscal year as determined at the sole
discretion of the CEO (“ Bonus ”). The CEO may
establish target or performance-based criteria for the Bonus at his
or her sole discretion.
3.
Incentive
Compensation and Deferred compensation . Wells shall be
eligible to participate in the Trinity’s 1998 Option Plan,
the Trinity Capital Corporation 2005 Stock Incentive Compensation
Plan, the Trinity Capital Corporation 2005 Deferred Compensation
Plan and any other plan adopted by Trinity. Stock Incentive
grants may be awarded at the sole discretion of the Board.
Participation in the Trinity’s Deferred Compensation Plan is
permitted pursuant to the limitations established by the Board from
time to time.
4.
Fringe
Benefits . Wells shall be
entitled to participate on the same basis as all other employees in
each fringe, welfare, 401(k) savings plan, pension benefit and
incentive program adopted from time to time by Trinity for the
benefit of all employees. In addition, Wells shall be
entitled to the following:
a.
Vacation and
Sabbatical . Wells shall receive
three (3) weeks paid vacation annually, and two (2) weeks of paid
sick leave annually and shall be entitled to the same sabbatical
benefits as all other employees of Trinity.
b.
Insurance
. Wells
shall be covered under any life insurance, salary continuation and
long-term disability insurance programs, in accordance with their
terms and required premiums, as in effect for employees of Trinity
from time to time.
c.
Expenses
. The
Companies, as applicable, shall reimburse, upon submission of
appropriate receipts and supporting documentation, the actual,
reasonable and customary expenses of Wells pursuant to the
Companies’ current policies and practices.
5.
Restitution
. Wells agrees to
make restitution or repay Trinity for any compensation as required
by Securities laws or any other applicable statutes.
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D.
Termination.
1.
Notice of
Termination . “
Notice of Termination
” shall
mean a notice in accordance with this Section D of an intention to terminate
Wells’ employment that shall state the specific termination
provision in this Agreement upon which the terminating party
relies.
2.
Date of
Termination . “
Date of Termination
” shall
mean:
a.
If Wells’
employment is terminated because of death, the date of Wells’
death; or
b.
If the Agreement
is terminated by Notice of Non-Renewal, the date on which the
Agreement terminates by expiration of the Initial or Renewal Term;
or
c.
If Wells’
employment is terminated for any other reason, the date specified
in the Notice of Termination, which shall not be a date prior to
the date such Notice of Termination is given or the expiration of
any required notice period.
3.
Termination
For Cause . Trinity may terminate
Wells’ employment under this Agreement for Cause (as defined
here) at any time, upon the good faith determination of the
existence of Cause as defined herein, in which event the rights of
Wells to continued employment under this Agreement shall thereupon
cease immediately. Following termination for Cause, Trinity
shall pay Wells any earned and unpaid Base Salary and vacation pay
earned as of the Date of Termination, and shall have no further
obligations to Wells under this Agreement.
a.
“Cause” shall
exist if Wells:
i.
Fails, on a
willful and continuing basis, to devote his full business time to
the Companies’ business affairs (other than due to illness,
incapacity or vacation) or to otherwise willfully fail to perform
his duties; or
ii.
Is convicted of a
felony or a crime involving dishonesty or breach of trust;
or
iii.
Participates in
an act of fraud, embezzlement or theft (regardless of whether a
criminal conviction is obtained) or engages in willful misconduct
involving activities related to or connected with the any one of
the Companies; or
iv.
Makes an
unauthorized disclosure of confidential information that results in
significant injury to any one of the Companies or misappropriates
or intentionally materially damages property or business of the
Companies; or
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v.
Engages in a
material violation of this Agreement or any other agreement with
any one of the Companies; or
vi.
Engages in a
material breach of Trinity’s Code of Business Conduct and
Business Ethics or any other policies, rules or regulations
promulgated by or imposed upon any one of the Companies;
or
vii.
Is the subject of
state or federal regulatory action or is the substantial causative
factor in regulatory action against Trinity or its
subsidiaries.
b.
Upon
determination of the appropriateness, in the sole discretion of the
CEO, Wells may be granted a thirty (30) day period in which to cure
failures or events constituting Cause under subsections 3 a.i.,
a.v., or a.vi. Should the failures or events be rectified to
the satisfaction of the CEO within the cure period, the CEO may
continue Wells’ employment under the terms and conditions of
this Agreement.
4.
Termination
Other than For Cause . Trinity may terminate
Wells’ employment under this Agreement without Cause at any
time upon sixty (60) days prior written notice. Upon
termination without Cause, Trinity shall pay Wells an amount equal
to his annual Base Salary in one lump sum within thirty (30) days
of termination of employment. In addition, Trinity shall pay
Wells any earned and unpaid Base Salary and vacation pay earned as
of the Date of Termination, and shall have no further obligations
to Wells under this Agreement.
5.
Voluntary
Termination by Wells . Wells may terminate
his employment upon sixty (60) days prior written notice to
Trinity. Upon Wells’ voluntary termination of
employment, other than pursuant to Section 6 hereof, Trinity shall
pay Wells any earned and unpaid Base Salary and vacation pay earned
as of the Date of Termination, and shall have no further
obligations to Wells under this Agreement.
6.
Termination
Following Change of Control . If Wells’
employment is terminated by Trinity, or any successor of Trinity,
without Cause within twelve (12) months following a Change of
Control or if Wells elects to terminate his employment following a
Detrimental within twenty-four (24) months following a Change
of Control and a Detrimental Change in Duties, Trinity or its
successor, as applicable, shall pay to Wells, within thirty (30)
days of termination, a lump sum amount equal to eighteen (18)
months’ Base Salary (as in effect as of the Date of
Termination).
a.
Definitions:
i.
Detrimental
Change in Duties is defined as (A) without Wells’ written
consent, a significant and material reduction in duties, titles,
working conditions or responsibilities solely caused by a Change of
Control; (B) changes in reporting relationship such
that
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Wells is no
longer directly reporting to the CEO; or (C) a material breach of
this Agreement by Trinity, or its successor, as
applicable.
ii.
Change of Control
is defined as the occurrence of any of the following:
(A)
the consummation of the
acquisition by any person (as such term is defined in Section 13(d)
or 14(d)(2) of the Exchange Act) of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of
fifty percent (50%) or more of the combined voting power of the
then outstanding voting securities of Trinity;
(B)
the individuals who, as of the
Effective Date, are members of the Board (the “
Continuing Directors ”)
cease for any reason to constitute a majority of the Board, unless
the election, or nomination for election by the stockholders of
Trinity, of any new director was approved by a vote of a majority
of the Continuing Directors, and such new director shall, for
purposes of this Agreement, be considered as a Continuing Director;
or
(C)
consummation by Trinity of:
(I) a merger or consolidation if the stockholders of Trinity,
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; or (II) a complete
liquidation or dissolution or an agreement for the sale or other
disposition of two-thirds or more of the consolidated assets of
Trinity. Notwithstanding the foregoing, a Change of Control
shall not be deemed to occur solely because (x) fifty percent (50%)
or more of the combined voting power of the then outstanding
securities of Trinity is acquired by a trustee or other fiduciary
holding securities under one or more employee benefit plans
maintained for employees of the Trinity or its Affiliates; or (y)
the transaction is a merger or consolidation effected to implement
a recapitalization of Trinity
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