Exhibit 10.5
OFFICER EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (“
Agreement ”) is entered into by and between
( “Officer”) and First State Bancorporation, a
New Mexico corporation (the “ Company ”),
effective as of
, (the “ Commencement Date ”).
WHEREAS, the Company desires to
provide for the service and employment of the Officer with the
Company and the Officer wishes to perform services for the Company,
all in accordance with the terms and conditions provided herein;
and
WHEREAS, the Officer is designated
an Executive Officer of the Company and as such has special
responsibilities and duties to the Company and its
subsidiaries.
NOW, THEREFORE, in consideration of
the mutual agreements hereinafter set forth, the Officer and the
Company hereby agree as follows:
Section 1. EMPLOYMENT . The
Company does hereby employ the Officer and the Officer does hereby
accept employment as
of the Company. The Officer shall have all the duties,
responsibilities and authority normally performed by the
and shall render services consistent with such position on the
terms set forth herein and shall report to the Chairman and CEO
(“CEO”) and the Board of Directors of the Company (the
“ Board ”). In addition, the Officer shall have
such other Officer and managerial powers and duties with respect to
the Company and its subsidiaries as may reasonably be assigned to
him by the CEO or the Board, to the extent consistent with his
position and status as
set forth above. The Officer agrees to devote all of his working
time and efforts to the business and affairs of the Company and its
subsidiaries, 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; provided ,
however , that this Agreement shall not be interpreted to
prohibit the Officer from serving on the board of directors of any
not for profit corporation or engaging in civic and community
service consistent with the public image of the Company.
Section 2. TERM OF AGREEMENT
. The term (the “ Term ”) of this Agreement
shall be for three (3) years from the Commencement Date (unless
earlier terminated pursuant to Section 5), and shall automatically
renew for a further three (3) year Term on the first anniversary of
the Commencement Date and for a further three (3) year Term each
year thereafter; provided that the Agreement shall not renew for a
further three (3) year Term if the Company gives Notice of
Non-Renewal (“ Notice of Non-Renewal ”) to the
Officer in accordance with Section 10 at least sixty (60) days
prior to the next anniversary of the Commencement Date.
Section 3. LOCATION . In
connection with the Officer’s employment by the Company, the
Officer shall be based at the headquarters of the Company in
Albuquerque, New Mexico except for required travel for the
Company’s business.
Section 4. COMPENSATION
.
(a) BASE SALARY . Effective
as of the Commencement Date, the Company shall pay the Officer a
base salary (“ Base Salary ”) at an initial rate
of $
per year, payable in accordance with the Company’s policies
relating to salaried employees. The Officer’s Base Salary may
be increased, but may not be decreased below this amount, by the
CEO with concurrence of the Compensation Committee of the Company
Board of Directors (the “ Compensation Committee
”) in their sole discretion.
(b) ANNUAL BONUS . Commencing
with the fiscal year of the Company (“ Fiscal Year
”) in which the Commencement Date occurs, the Officer shall
have the opportunity to earn a bonus (“Bonus”) for each
Fiscal Year as recommended by the Compensation Committee in
accordance with the bonus policies of the Compensation Committee
(“Bonus Plan”). The Officer shall be entitled to
receive such other bonuses as are determined in the discretion of
the Compensation Committee.
(c) FRINGE BENEFITS
.
(i) GENERAL . The Officer
shall be entitled to participate in each fringe, welfare, 401(k)
savings plan, deferred compensation plan, pension benefit and
incentive programs adopted from time to time by the Company for its
employees.
(ii) VACATION . The Officer
will receive four (4) weeks of paid vacation annually, subject to
the terms of the Company’s vacation policies as they relate
to senior officers.
(iii) INSURANCE . Officer
shall be covered under any life insurance, salary continuation and
long-term disability insurance programs, in accordance with their
terms, as in effect for senior officers from time to
time.
(iv) AUTOMOBILE . The Company
shall furnish Officer with a current model vehicle suitable to his
status as
.
Section 5. TERMINATION
.
(a) NOTICE OF TERMINATION .
“ Notice of Termination ” shall mean a notice in
accordance with Section 10 of an intention to terminate
Officer’s employment that shall state the specific
termination provision in this Agreement upon which the terminating
party relies.
(b) DATE OF TERMINATION .
“ Date of Termination ” shall mean:
(i) if the Officer’s
employment is terminated because of death, the date of the
Officer’s death; or
(ii) if the Officer’s
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.
(iii) if the agreement is terminated
by Notice of Non-Renewal, the date of which the agreement
terminates by expiration of the three (3) year Term.
(c) TERMINATION FOR CAUSE .
The Company may terminate the Officer’s employment under this
Agreement for Cause (as defined below) at any time, in which event
any rights of the Officer to continued employment under the
Agreement shall thereupon cease.
(i) “Cause” shall exist
if the Officer:
(A) fails, on a willful and
continuing basis, to devote his full business time to
Corporation’s business affairs (other than due to illness or
incapacity, vacations, incidental civic activities and incidental
personal time); or
(B) is convicted of a felony or a
crime involving dishonesty, or breach of trust; or
(C) participates in an act of fraud,
embezzlement or theft (regardless of whether a criminal conviction
is obtained); or
(D) makes an unauthorized disclosure
of confidential information that results in significant injury to
the Company; or
(E) is the subject of state or
federal regulatory action or is the substantial causative factor in
regulatory action against the Company or its
subsidiaries.
(ii) The Company may not terminate
Officer’s employment for Cause unless and until a
determination that Cause exists is made and approved by a majority
of the Board (excluding the Officer), Officer is given at least
fifteen (15) days’ written notice of the Board meeting called
to make such determination and an opportunity to cure during such
notice period, and Officer is given the opportunity to address such
meeting.
(d) TERMINATION OTHER THAN FOR
CAUSE . The Company may terminate the Officer’s
employment under this Agreement without Cause at any time. The
Officer’s right to continued employment under the Agreement
shall cease, subject to the Section 6 and other provisions of this
Agreement.
(e) TERMINATION BY REASON OF
OFFICER’S DISABILITY . “ Disability ”
shall be deemed the reason for the termination by the Company of
the Officer’s employment if, as a result of the
Officer’s incapacity due to physical or mental illness, the
Officer shall have been absent from the full-time performance of
the Officer’s duties with the Company for a period of six (6)
consecutive months, the Company shall have given the Officer a
Notice of Termination for Disability, and, within thirty (30) days
after such Notice of Termination is given, the Officer shall not
have returned to the full-time performance of the Officer’s
duties.
(f) TERMINATION BY THE
OFFICER .
(i) Prior to a Change of
Control . The Officer may terminate his employment hereunder
voluntarily at any time upon at least thirty (30) days’ prior
notice to the Company.
(ii) Upon Change of Control .
The Officer may terminate his employment hereunder at his sole
discretion during the twenty-four (24) month period following a
Change of Control (as defined below) upon thirty (30) days prior
notice to the Company.
(g) NON-RENEWAL OF AGREEMENT
.
(i) Prior to a Change of
Control . Upon Notice of Non-Renewal of the agreement, the
Officer shall be entitled to all severance benefits provided by
Section 6(b).
(ii) Upon a Change of Control
. Upon Notice of Non-Renewal of the agreement, the Officer shall be
entitled to all severance benefits provided by Section
6(c).
(iii) Survival of
Entitlements . The severance payments and benefits provided by
Sections 6(b) and (c) shall survive the non-renewal of the
agreement.
Section 6. SEVERANCE PAYMENTS
.
(a) ACCRUED AND UNPAID
BENEFITS . Following the termination of the Officer’s
employment with the Company at any time for any reason, the Officer
shall receive:
(i) any earned, but unpaid, Base
Salary,
(ii) any earned, but unpaid, bonus
for any Fiscal Year that ended prior to the Fiscal Year in which
the Date of Termination occurs,
(iii) the cash equivalent of any
accrued, but unused, vacation; and
(iv) any vested and accrued employee
benefits, subject to the terms of the applicable employee benefit
plans.
The amounts payable under
subparagraphs 6(a)(i), (ii) and (iii) shall be paid within thirty
(30) days following the Date of Termination.
(b) SEVERANCE BENEFITS PRIOR TO A
CHANGE OF CONTROL . If the Company terminates the
Officer’s employment with the Company for any reason other
than (i) the Officer’s death, (ii) the Officer’s
Disability or (iii) Cause, the Officer shall be entitled to the
following:
(i) All amounts payable pursuant to
Section 6(a);
(ii) An amount equal to the sum of
(A) the Officer’s Base Salary in effect at the time of the
termination and (B) without proration, the most recent annual bonus
paid pursuant to Section 4(b) hereof. Such payment shall be made in
accordance with the Company’s normal payroll procedures
applicable to senior officers at the time of such termination as if
the Officer had continued to be employed.
(iii) Continued participation in the
Company’s fringe benefits; provided, however, that such
continuation of benefits after termination shall not apply to those
fringe benefits which require a minimum number of hours of
employment for participation, such as 401k, bank owned life
insurance and other employee insurance. The Company shall reimburse
Officer for COBRA payments for continued medical benefits and
insurance for the severance period to the extent
incurred.
(c) SEVERANCE BENEFITS FOLLOWING
A CHANGE OF CONTROL . If during the twelve (12) month period
following a Change of Control the Company terminates the
Officer’s employment with the Company for any reason other
than Cause, or if the Officer terminates his employment with the
Company, by resignation, death or disability, the Officer shall be
entitled to the following:
(i) All amounts payable pursuant to
Section 6(a);
(ii) An amount equal to three (3)
times the sum of (A) the Officer’s Base Salary in effect at
the time of the termination and without proration, (B) the most
recent Bonus paid pursuant to Section 4(b) hereof (without
deduction for any contributions by the Company for the
Officer’s benefit to any retirement or other investment
plans). Such payment shall be made in a lump sum in cash within
thirty (30) days after the Date of Termination;
(iii) All of the Officer’s
outstanding options, restricted stock or other equity related
grants under the Company’s 2003 Equity Incentive Plan
(including amended plans or substitute plans) to purchase Company
common stock shall become fully vested and nonforfeitable as of the
Date of Termination;
(iv) Continued participation in the
Company’s fringe benefits; provided, however, that such
continuation of benefits after termination shall not apply to those
fringe benefits which require a minimum number of hours of
employment for participation, such as 401k, bank owned life
insurance and other employee insurance. The Company shall reimburse
Officer for COBRA p
