UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): September 1, 2021
(Exact name of registrant as specified in its charter)
(State or Other Jurisdiction of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) | ||||||
(Address of Principal Executive Offices) | (Zip Code) | |||||||
(214 ) 365-6900
(Registrant’s telephone number, including area code)
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |||||
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |||||
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2b) | |||||
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4c) | |||||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||||||||
Item 5.02.Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
W. Bradley Voss Employment Agreement
As disclosed in the Company’s Current Report on Form 8-K filed on July 15, 2021, W. Bradley Voss was appointed Executive Vice President and Chief Financial Officer of the Company effective September 1, 2021, following the retirement of R. Bryce Fowler from such position effective as of the same date.
In connection with such appointment, Mr. Voss and the Company have entered into an Employment Agreement (the “Employment Agreement”), dated September 1, 2021 (the “Effective Date”). The Employment Agreement has an initial term commencing on the Effective Date and ending on December 31, 2021, subject to automatic renewal for successive one (1) year terms unless either party delivers 60 days’ prior written notice of non-renewal (and, in the event that a change in control occurs during the then-current term, such term shall be extended to end no earlier than the second anniversary of the change in control). The Employment Agreement provides for an annual base salary for Mr. Voss of $350,000 (prorated for 2021), which may be increased or decreased during the term, and specifies that Mr. Voss is eligible to participate in the annual and long-term incentive programs maintained by the Company to the same extent as other executives of the Company.
Either the Company or Mr. Voss may terminate his employment prior to the expiration of the then-current term in accordance with the terms and conditions of the Employment Agreement, and if such termination of employment is by the Company without “cause” (as defined in the Employment Agreement) or by Mr. Voss for “good reason” (as defined in the Employment Agreement) (a “qualifying termination”), then Mr. Voss shall be entitled to receive, subject to execution and non-revocation of a release of claims in favor of the Company, cash severance in the amount of 1.0 times his base salary as then in effect, as well as healthcare coverage continuation for 12 months. However, if the qualifying termination occurs within 24 months following a change in control, then the cash severance amount is increased to a multiple of 2.0 times Mr. Voss’s base salary as then in effect plus the trailing 3-year average bonus, and the healthcare coverage continuation period is increased to 24 months.
The Employment Agreement contains a better net after-tax cutback provision in respect of the excise tax imposed under Sections 280G and 4999 of the tax code, pursuant to which Mr. Voss’s change in control- related payments and benefits will be reduced to the extent necessary to prevent any portion of such payments and benefits from becoming subject to the excise tax, but only if, by reason of that reduction, the net after-tax benefit received by Mr. Voss exceeds the net after-tax benefit that the executive would receive if no reduction was made.
The Employment Agreement also contains certain restrictive covenants, including a perpetual confidentiality covenant, and non-compete, employee, client, and investor non-solicit, and business non-interference covenants that apply during employment and for the one-year period immediately following termination of employment for any reason.
The foregoing description of the Employment Agreement is qualified in its entirety by reference to the full text of the Employment Agreement, which is filed as Exhibit 10.1 hereto and incorporated herein by reference.
Mr. Voss has also entered into an indemnification agreement with the Company in substantially the same form as the indemnification agreement that was previously filed with the Securities and Exchange Commission as Exhibit 10.12 to the Company’s Registration Statement on Form S-1 (File No. 333-198838). The indemnification agreement provides, in general, that the Company will indemnify Mr. Voss to the fullest extent permitted by applicable law in connection with his service to the Company or on the Company’s behalf.
Fowler Consulting Agreement
In connection with his retirement as Executive Vice President and Chief Financial Officer of the Company, Mr. Fowler has entered into a Consulting Agreement with the Company, effective September 1, 2021 (the “Consulting Agreement”), whereby Mr. Fowler will provide certain consulting services related to various business and/or growth transactions, oversight and advice related to the Company’s regulatory relationships, transition matters from Mr. Fowler’s role as Executive Vice President and Chief Financial Officer, and provision of advice and support to the Company’s Risk Management and Audit Committees, in each case, as requested by the Company. In connection therewith, Mr. Fowler will be paid a consulting fee of $7,416.67 per month. The Consulting Agreement has a term of 36 months. The Consulting Agreement may be terminated at any time during the term by Mr. Fowler or the Company on 180 days prior written notice to
the other party thereto. The foregoing description of the Consulting Agreement is qualified in its entirety by reference to the full text of the Consulting Agreement, which is filed as Exhibit 10.2 hereto and incorporated herein by reference.
Following his retirement, Mr. Fowler is also expected to remain a member of the Board of Directors of the Company’s subsidiary bank, TBK Bank, SSB. In connection therewith, in addition to the consulting fees paid to Mr. Fowler pursuant to the Consulting Agreement, Mr. Fowler will also be paid board fees consistent with the other non-employee directors of TBK Bank, SSB.
Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements. Any statements about our expectations, beliefs, plans, predictions, forecasts, objectives, assumptions or future events or performance are not historical facts and may be forward-looking. You can identify forward-looking statements by the use of forward-looking terminology such as “believes,” “expects,” “could,” “may,” “will,” “should,” “seeks,” “likely,” “intends,” “plans,” “pro forma,” “projects,” “estimates” or “anticipates” or the negative of these words and phrases or similar words or phrases that are predictions of or indicate future events or trends and that do not relate solely to historical matters. You can also identify forward-looking statements by discussions of strategy, plans or intentions. Forward-looking statements involve numerous risks and uncertainties and you should not rely on them as predictions of future events. Forward-looking statements depend on assumptions, data or methods that may be incorrect or imprecise and we may not be able to realize them. We do not guarantee that the transactions and events described will happen as described (or that they will happen at all). The following factors, among others, could cause actual results and future events to differ materially from those set forth or contemplated in the forward-looking statements: business and economic conditions generally and in the bank and non-bank financial services industries, nationally and within our local market areas; the impact of COVID-19 on our business, including the impact of the actions taken by governmental authorities to try and contain the virus or address the impact of the virus on the United States economy (including, without limitation, the CARES Act), and the resulting effect of all of such items on our operations, liquidity and capital position, and on the financial condition of our borrowers and other customers; our ability to mitigate our risk exposures; our ability to maintain our historical earnings trends; changes in management personnel; interest rate risk; concentration of our products and services in the transportation industry; credit risk associated with our loan portfolio; lack of seasoning in our loan portfolio; deteriorating asset quality and higher loan charge-offs; time and effort necessary to resolve nonperforming assets; inaccuracy of the assumptions and estimates we make in establishing reserves for probable loan losses and other estimates; risks related to the integration of acquired businesses, including our acquisition of HubTran Inc. and developments related to our acquisition of Transport Financial Solutions and the related over-formula advances, and any future acquisitions; our ability to successfully identify and address the risks associated with our possible future acquisitions, and the risks that our prior and possible future acquisitions make it more difficult for investors to evaluate our business, financial condition and results of operations, and impairs our ability to accurately forecast our future performance; lack of liquidity; fluctuations in the fair value and liquidity of the securities we hold for sale; impairment of investment securities, goodwill, other intangible assets or deferred tax assets; our risk management strategies; environmental liability associated with our lending activities; increased competition in the bank and non-bank financial services industries, nationally, regionally or locally, which may adversely affect pricing and terms; the accuracy of our financial statements and related disclosures; material weaknesses in our internal control over financial reporting; system failures or failures to prevent breaches of our network security; the institution and outcome of litigation and other legal proceedings against us or to which we become subject; changes in carry-forwards of net operating losses; changes in federal tax law or policy; the impact of recent and future legislative and regulatory changes, including changes in banking, securities and tax laws and regulations, such as the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) and their application by our regulators; governmental monetary and fiscal policies; changes in the scope and cost of FDIC, insurance and other coverages; failure to receive regulatory approval for future acquisitions; and increases in our capital requirements.
While forward-looking statements reflect our good-faith beliefs, they are not guarantees of future performance. All forward-looking statements are necessarily only estimates of future results. Accordingly, actual results may differ materially from those expressed in or contemplated by the particular forward-looking statement, and, therefore, you are cautioned not to place undue reliance on such statements. Further, any forward-looking statement speaks only as of the date on which it is made, and we undertake no obligation to update any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to reflect the occurrence of unanticipated events or circumstances, except as required by applicable law. For a discussion of such risks and uncertainties, which could cause actual results to differ from those contained in the forward-looking statements, see “Risk Factors” and the forward-looking statement disclosure contained in the Company’s Annual Report on Form 10-K, filed with the Securities and Exchange Commission (“SEC”) on February 12, 2021.
Item 9.01.Financial Statements and Exhibits
(d)Exhibits.
| Exhibit | Description | ||||
| 10.1 | |||||
| 10.2 | |||||
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | ||||
EXHIBIT INDEX
| Exhibit | Description | ||||
| 10.1 | |||||
| 10.2 | |||||
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | ||||
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
TRIUMPH BANCORP, INC. | |||||
| By: | /s/ Adam D. Nelson | ||||
| Name: Adam D. Nelson Title: Executive Vice President & General Counsel | |||||
Date: September 1, 2021
Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into on September 1, 2021 (the “Effective Date”), by and between TRIUMPH BANCORP, INC., (the “Company”), and W. Bradley Voss (“Executive”).
RECITALS
WHEREAS, Executive has been appointed, and has agreed to serve, as the Executive Vice President and Chief Financial Officer of the Company and as Executive Vice President and Chief Financial Officer of the Company’s wholly-owned bank subsidiary, TBK Bank, SSB (the “Bank”); and
WHEREAS, Executive is willing to enter into this Agreement in consideration of his employment by the Company and the benefits that Executive will receive under the terms hereof.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1.EMPLOYMENT OF EXECUTIVE.
1.1Duties and Status. The Company hereby engages Executive as Executive Vice President and Chief Financial Officer of the Company for the Term (as defined in Section 3.1 hereof), and Executive accepts such employment, on the terms and subject to the conditions set forth in this Agreement. During the Term, Executive will faithfully exercise such authority and perform such duties on behalf of the Company as are normally associated with his title and position as Executive Vice President and Chief Financial Officer and such other duties or positions as Executive and the Company will mutually determine from time to time, including service as the President and Chief Financial Officer of the Bank and for such other affiliates of the Company as shall be mutually determined. In the capacity defined in this Section 1.1, Executive will report to the Chief Executive Officer of the Company.
1.2Time and Effort. During the Term, Executive will devote his full working time, energy, skill and commercially reasonable best efforts to the performance of his duties hereunder in a manner which will faithfully and diligently further the business and interests of the Company and its subsidiaries. Notwithstanding the foregoing, Executive may participate fully in social, charitable, civic activities and such other personal affairs of Executive as do not interfere with performance of his duties hereunder. The Parties have also agreed that Executive may continue to serve as a director for other entities, and may from time to time provide consulting or other services for remuneration unrelated to his services to the Company and its subsidiaries; however, as an express condition thereto, Executive will be required to fully disclose for consent all such directorships and consulting or services engagements to the Board of Directors of the Company in advance, and acknowledges and agrees that such consent may be withheld in the sole discretion of the Company.
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2.COMPENSATION AND BENEFITS.
2.1Annual Base Salary. For all of the employment rendered by Executive to the Company and its subsidiaries, the Company will pay Executive an annual base salary of $350,000 (the “Annual Base Salary”). Executive’s Annual Base Salary will be payable in equal installments in accordance with the practice of the Company and its subsidiaries in effect from time to time for the payment of salaries to officers of the Company and its subsidiaries, but in no event less than bi-monthly, and may be increased or decreased during the Term. Any increase or decrease in the amount will henceforth be the Annual Base Salary.
2.2Annual Incentive Program. Executive shall be eligible to participate in any annual incentive program maintained by the Company and its subsidiaries to the same extent as other executives of the Company and its subsidiaries and shall be eligible to receive cash incentive awards thereunder, as determined by the Board of Directors of the Company (as applicable, the “Board”) or a committee of the Board.
2.3Long-Term Incentive Program. Executive shall be eligible to participate in any long-term incentive program (“LTIP”) maintained by the Company and its subsidiaries to the same extent as other executives of the Company and its subsidiaries and shall be eligible to receive equity and long-term cash incentive awards (“LTI Awards”) thereunder, as determined by the Board or a committee of the Board.
2.4Expenses. The Company or its subsidiaries will timely pay or reimburse Executive for all reasonable travel, entertainment and other business expenses actually paid or incurred by Executive during the Term in the performance of Executive’s duties under this Agreement in accordance with the employee business expense reimbursement policies of the Company and its subsidiaries in effect from time to time, but in no event less than monthly.
2.5Perquisites and Other Benefits. To the extent the Company or its subsidiaries offer employee benefits plans including, without limitation, any pension, disability, group life, sickness, accident and health and dental insurance plans or programs, Executive will be entitled to participate in such employee benefit plans on such terms as determined by the Company. For the avoidance of doubt, Executive will not be reimbursed by the Company for any health-related expenses, unless otherwise agreed to by the Company. Executive shall also be entitled to such perquisites and other benefits as shall be reasonably related to Executives duties and approved by the Company from time to time.
2.6Paid Time Off. During the Term, Executive will be entitled to paid time off of at least four weeks per calendar year and leave of absence and leave for illness or temporary disability in accordance with the policies of the Company and its subsidiaries in effect from time to time.
2.7Indemnification. During the Term, the Company agrees to maintain one or more directors and officers liability insurance policies covering Executive pursuant to the terms of such policies.
3.TERM AND TERMINATION.
3.1Term. The term of employment hereunder will commence on the Effective Date and will terminate on the earlier of (a) December 31, 2021 (the “Original Term”) or (b) any termination of employment pursuant to Section 3.2 hereof; provided, however, if a Change in Control should occur at any time during the Term of the Agreement, then such Term shall end no earlier than the second anniversary of the date of such Change in Control (or
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if earlier, a termination of employment pursuant to Section 3.2 hereof). Thereafter, unless written notification is given by either the Company or Executive at least sixty (60) days before the expiration of the Original Term or any subsequent renewal term, the Term will automatically renew for successive one year periods (each, a “Renewal Term”). For purposes of this Agreement, when the word “Term” is used alone, it collectively refers to the Original Term and all Renewal Term(s). The Company’s decision not to extend the Term will not be considered termination of Executive’s employment, whether with or without Cause, as defined below. Notwithstanding any provision of this Agreement to the contrary, the nonrenewal of this Agreement in accordance with this Section 3.1 shall not discharge the Company’s obligation to pay any benefits that Executive became entitled to under this Agreement prior to such nonrenewal.
3.2Termination of Employment. Each party will have the right to terminate Executive’s employment hereunder before the Term expires to the extent, and only to the extent, permitted by this Section.
(a)By the Company for Cause. The Company will have the right to terminate Executive’s employment at any time upon delivery of written notice of termination for Cause to Executive (which notice will specify in reasonable detail the basis upon which such termination is made), such employment to terminate immediately upon delivery of such notice unless otherwise specified by the Company. In the event that Executive’s employment is terminated for Cause, Executive will be entitled to receive the payments referred to in Section 3.3(a) hereof. Notwithstanding the foregoing, if termination is pursuant to Section 6.2(iii), the Company shall provide Executive a written notice describing in detail the alleged neglected duties and Executive will be provided thirty (30) business days to defend and/or cure such alleged breach.
(b)By the Company Upon Total Disability. The Company will have the right to terminate Executive’s employment on thirty (30) days’ prior written notice to Executive if the Company determines in good faith that Executive is unable to perform his duties by reason of Total Disability, but any termination of employment pursuant to this subsection (b) will obligate the Company to make the payments referred to in Section 3.3(b) hereof.
(c)Due to Death of Executive. Executive’s employment hereunder will terminate upon the death of Executive. In such an event, Executive’s estate will be entitled to receive the payments referred to in Section 3.3(c) hereof.
(d)By Executive other than for Good Reason. If Executive terminates his employment other than for Good Reason Executive shall be entitled to receive the payments referred to in Section 3.3(d) hereof.
(e)By the Company Other Than for Cause, Death or Total Disability or By Executive For Good Reason. The Company will have the right to terminate Executive’s employment, other than for Cause, death or Total Disability, on sixty (60) days’ prior written notice to Executive in the Company’s sole discretion and Executive may terminate his employment for Good Reason pursuant to the notice requirements set forth in Section 6.5(c). In either event, Executive shall be entitled to receive the payments referred to in Section 3.3(e) or in Section 3.3(f), as applicable.
3.3Compensation and Severance Benefits Following Termination. Except as specifically provided in this Section, any and all obligations of the Company to make payments to Executive under this Agreement will cease as of the date the Term expires pursuant to Section 3.1 or as of the date Executive’s employment is terminated pursuant to Section 3.2, as the case may be. Executive will be entitled to receive only the following compensation and benefits following the termination of his employment hereunder:
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(a)Benefits Payable upon Termination For Cause. In the event that the Company terminates the employment of Executive pursuant to Section 3.2(a), Executive will be entitled to receive a lump-sum amount equal to the Standard Termination Payments within sixty (60) days of such termination of employment.
(b)Benefits Payable Upon Termination for Total Disability. In the event that the Company elects to terminate the employment of Executive pursuant to Section 3.2(b), (i) the Company will pay to Executive a lump-sum amount equal to the Standard Termination Payments within sixty (60) days of such termination of employment and (ii) Executive will be entitled to such disability and other employee benefits as may be provided under the terms of the employee benefit plans of the Company and its subsidiaries.
(c)Benefits Payable Upon Death. In the event that the Term terminates pursuant to Section 3.2(c), (i) the Company will pay to Executive’s surviving spouse or, if none, his estate, a lump-sum amount equal to Executive’s Standard Termination Payments within sixty (60) days of such termination of employment and (ii) death benefits, if any, under the employee benefit plans of the Company and its subsidiaries will be paid to Executive’s beneficiaries as properly designated in writing by Executive.
(d)Benefits Payable Upon Executive’s Voluntary Termination other than for Good Reason. In the event Executive elects to terminate his employment pursuant to Section 3.2(d), (i) the Company will pay to Executive a lump-sum amount equal to the Standard Termination Payments within sixty (60) days of such termination of employment and (ii) Executive will be entitled to such other employee benefits as may be provided under the terms of the employee benefit plans of the Company and its subsidiaries for the time period and in such amounts and forms as provided for in such plans.
(e)Benefits Payable Upon a Qualifying Termination Outside of a Change in Control.
(i)In the event of a Qualifying Termination prior to or more than 24 months following a Change in Control, (i) the Company will pay to Executive a lump-sum amount equal to the Standard Termination Payments within sixty (60) days of such Qualifying Termination and (ii) Executive will be entitled to such other employee benefits as may be provided under the terms of the employee benefit plans of the Company and its subsidiaries for the time period and in such amounts and forms as provided for in such plans.
(ii)In the event of a Qualifying Termination prior to or more than twenty-four (24) months following a Change in Control, and subject to Executive's execution of a full release of claims in a form satisfactory to the Company (“Release”) within 45 days following Executive’s Qualifying Termination, and provided there has been no revocation or attempted revocation of the Release of Claims during the statutory revocation period (the date after the lapse of such revocation period without a revocation or attempted revocation, the “Release Effective Date”) and subject to the terms of this Agreement, Executive will be eligible for the following benefits:
A. Cash Severance. A lump sum cash amount equal to the product of (x) and (y) where (x) is Executive’s Annual Base Salary as then in effect in accordance with Section 2.1 and (y) is 1.00.
B. Continuation of Health Care Coverage. The Executive (and his eligible dependents) shall be entitled to continued participation in the medical, dental and vision plans of the Company and its subsidiaries as in effect from time to time, at then-existing participation and coverage levels, for twelve (12) months immediately following Executive’s Qualifying Termination. For the avoidance of doubt, the Participant (and his eligible dependents) shall be responsible for paying all deductibles and other cost sharing items under such plans
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but shall not be responsible for the payment of premiums. If and to the extent that any benefit described in this paragraph (B) is not or cannot be paid or provided under a plan or arrangement of the Company or its subsidiaries, then the Company will pay or provide for the payments to Executive of such employee benefits. Nothing in this paragraph (B) shall be construed to impair or reduce Executive's rights under Consolidated Omnibus Reconciliation Act “COBRA” or other applicable law.
(f)Benefits Payable Upon a Qualifying Termination in the event of a Change in Control.
(i)Standard Termination Benefits In the event of Executive’s Qualifying Termination within twenty-four (24) months after a Change in Control, (i) the Company will pay to Executive a lump-sum amount equal to the Standard Termination Payments within sixty (60) days of such Qualifying Termination and (ii) Executive will be entitled to such other employee benefits as may be provided under the terms of the employee benefit plans of the Company and its subsidiaries for the time period and in such amounts and forms as provided for in such plans.
(ii)In the event of a Qualifying Termination within 24 months after a Change in Control, and subject to Executive’s execution of a Release within forty-five (45) days following such Qualifying Termination, and provided there occurs a Release Effective Date, and subject to the terms of this Agreement, Executive will be eligible for the following benefits:
A. Cash Severance. A lump sum cash amount equal to the product of (x) and (y) where (x) is the sum of Executive’s Annual Base Salary as then in effect in accordance with Section 2.1 and Executive’s Average Bonus and (y) is 2.0.
B. Continuation of Health Care Coverage. The Executive (and his eligible dependents) shall be entitled to continued participation in the medical, dental and vision plans of the Company and its subsidiaries as in effect from time to time, at then-existing participation and coverage levels, for twenty four (24) months immediately following Executive’s Qualifying Termination. For the avoidance of doubt, the Participant (and his eligible dependents) shall be responsible for paying all deductibles and other cost sharing items under such plans but shall not be responsible for the payment of premiums. If and to the extent that any benefit described in this paragraph (B) is not or cannot be paid or provided under a plan or arrangement of the Company or its subsidaries, then the Company will pay or provide for the payments to Executive of such employee benefits. Nothing in this paragraph (B) shall be construed to impair or reduce an Executive's rights under COBRA or other applicable law.
3.4Form and Time of Payment of Benefits Payable in the Event of a Qualifying Termination Outside of a Change in Control. Subject to the timely execution of the required Release, and the occurrence of the Release Effective Date, benefits provided under Section 3.3(e)(ii) shall be paid in accordance with the following provisions:
(a)Cash severance benefits under Section 3.3(e)(ii)(A) shall be paid to Executive in a lump sum no later than the 75th day following Executive’s Qualifying Termination.
(b)Any obligation of the Company to provide or to continue to provide Benefit Continuation under Section 3.3(e)(ii)(B), shall cease in the event that the Release Effective Date does not occur.
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(c)All payments and benefits under this Section 3.4 are subject to Executive’s continuing compliance with restrictive covenants set forth in Section 4 of this Agreement and the Company’s policies on recoupment, as in effect from time to time.
(d)For avoidance of doubt, if Executive is entitled to receive payment pursuant to this Section 3.4, then Executive will not also be entitled to receive any payments pursuant to any other section of this Agreement.
3.5Form and Time of Payment of Benefits in the Event of a Change in Control. Subject to the timely execution of the required Release, and the occurrence of the Release Effective Date, benefits provided under Section 3.3(f)(ii) shall be paid in accordance with the following provisions:
(a)Cash severance benefits under Section 3.3(f)(ii)(A) shall be paid to Executive in a lump sum no later than the 75th day following the Qualifying Termination.
(b)Any obligation of the Company to provide or to continue to provide Benefit Continuation under Section 3.3(e)(iii), shall cease in the event that the Release Effective Date does not occur.
(c)All payments and benefits under this Section 3.5 are subject to Executive’s continuing compliance with restrictive covenants set forth in Section 4 of the Agreement and the Company’s policies on recoupment, as in effect from time to time.
(d)For avoidance of doubt, if Executive is entitled to receive payment pursuant to this Section 3.5, then Executive will not also be entitled to receive any payments pursuant to any other section of this Agreement.
3.6Best Net.
(a)It is the object of this paragraph to provide for the maximum after-tax income to Executive with respect to any payment, benefit or distribution to or for the benefit of Executive, whether paid or payable or distributed or distributable or provided pursuant to this Agreement or any other plan, arrangement or agreement, that would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code (“Code”) or any similar federal, state or local tax that may hereafter be imposed (a “Payment”) (Section 4999 of the Code or any similar federal, state or local tax are collectively referred to as the “Excise Tax”). Accordingly, before any Payments are made, a determination will be made as to which of two alternatives will maximize such Executive’s after-tax proceeds, and the Company must notify Executive in writing of such determination. The first alternative is the payment in full of all Payments potentially subject to the Excise Tax. The second alternative is the payment of only a part of Executive’s Payments so that Executive receives the largest payment and benefits possible without causing the Excise Tax to be payable by Executive. This second alternative is referred to in this paragraph as “Limited Payment”. The Executive’s Payments shall be paid only to the extent permitted under the alternative determined to maximize Executive’s after-tax proceeds, and Executive shall have no rights to any greater payments on his or her Payments. If Limited Payment applies, Payments shall be reduced in a manner that would not result in Executive incurring an additional tax under Section 409A.
(b)Accordingly, Payments not constituting nonqualified deferred compensation under Section 409A shall be reduced first, in this order but only to the extent that doing so avoids the Excise Tax (e.g., accelerated vesting or payment provisions in any LTIP Award will be ignored to the extent that such provisions would not trigger the Excise Tax):
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(i)Payment of the severance amounts under Section 3.3(f) hereof to the extent such payments do not constitute deferred compensation under Section 409A.
(ii)LTIP Awards the vesting of which is subject to the satisfaction of one or more performance conditions (“Performance-Based Awards”), but excluding such LTI Awards subject to Section 409A.
(iii)LTIP Awards the vesting of which is subject to the satisfaction of a service condition (“Service-Based Awards”), but excluding such LTIP Awards subject to Section 409A.
(iv)Awards of stock options and stock appreciation rights under any LTIP.
(c)Then, if the foregoing reductions are insufficient, Payments constituting deferred compensation under Section 409A shall be reduced, in this order:
(i)Payment of the severance amounts under Section 3.3(f) hereof to the extent such payments constitute deferred compensation under Section 409A.
(ii)Performance-Based Awards subject to Section 409A.
(iii)Service-Based Awards subject to Section 409A.
(d)In the event of conflict between the order of reduction under this Agreement and the order provided by any other Company document governing a Payment, then the order under this Agreement shall control.
(e)All determinations required to be made under this Section 3.6 shall be made by Company’s external auditor (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within ten (10) business days of the termination of employment giving rise to benefits under the Plan, or such earlier time as is requested by the Company. All fees, costs and expenses (including, but not limited to, the costs of retaining experts) of the Accounting Firm shall be borne by the Company. In the event the Accounting Firm determines that the Payments shall be reduced, it shall furnish Executive with a written opinion to such effect. The determination by the Accounting Firm shall be binding upon the Company and Executive.
3.7All Payments. All payments made to Executive upon the termination of Executive’s employment will be made in U.S dollars and are in lieu of all other termination or severance payments available at law or otherwise.
4.RESTRICTIVE COVENANTS.
4.1Access to Confidential Information. Executive understands and agrees that in the course of performing work on behalf of the Company, he will continue to have access to, and will continue to be given Confidential Information relating to the business of the Company and its affiliates. Executive acknowledges and agrees that such Confidential Information includes, but is not limited to financial information pertinent to the Company and its customers, and investors, customer lists, customer and investor identities and their preferences, confidential banking and financial information of both the Company, its subsidiaries, and its and their customers and investors, and information that Executive may create or prepare certain information related to his duties. Executive hereby expressly agrees to maintain in strictest confidence and not to access without proper business purposes (including repetitive unnecessary access), use (including without limitation in any future business or personal
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relationship of Executive), publish, disclose or in any way authorize anyone else to use, publish or disclose in any way, any Confidential Information relating in any manner to the business or affairs of the Company and its customers and investors, except for legitimate business-related reasons while performing duties on behalf of the Company and its affiliates. Executive agrees further not to remove or retain any figures, financial information, personnel data, calculations, letters, documents, lists, papers, or copies thereof, which embody Confidential Information of the Company, and to return any such information in Executive’s possession at the conclusion of Executive’s use of such information and at the conclusion of Executive’s employment with the Company.
For purposes of this Agreement, “Confidential Information” includes, but is not limited to, information in the possession of, prepared by, obtained by, compiled by, or that is used by Company, its customers, investors and/or vendors, or is prepared by, obtained by, compiled by or that is used by Executive in conjunction with his duties, and (1) is proprietary to, about, or created by the Company, its customers, investors and/or vendors; (2) is information the disclosure of which might be detrimental to the interest of the Company, its investors or customers; or (3) is not typically disclosed by the Company, its customers, investors and/or vendors, or known by persons who are not associated with the Company. For purposes of this Section 4, all references to the Company shall, unless the context clearly indicates otherwise, include the Company and its affiliates, including the Bank.
4.2Non-Competition. Executive acknowledges that, as a result of Executive’s service with the Company, a special relationship of trust and confidence will develop between Executive, the Company and its clients and customers, and that this relationship will generate a substantial amount of good will between the Company and its clients and customers. Executive further acknowledges and agrees that it is fair and reasonable for the Company to take steps to protect it from the loss of its Confidential Information or its customer goodwill. Executive further acknowledges that throughout his service with the Company, Executive will be provided with access to and informed of confidential, proprietary and highly sensitive information relating to the Company’s clients and customers, which is a competitive asset of the Company, and which enables Executive to benefit from the goodwill and know-how of the Company. Therefore, as a material condition to the Company’s willingness to perform its obligations hereunder, Executive agrees that, during Executive’s employment with the Company, and for a period of twelve (12) months following the date of the termination of Executive’s employment with the Company (whether by the Company or by Executive) for any reason, Executive will not, either for himself or in conjunction with others:
(a)compete or engage anywhere in the geographic area comprised of any Metropolitan Statistical Area, as defined by the US Office of Management & Budget, in which Executive has performed duties on behalf of the Company during the preceding twelve (12) months, whether such duties were performed in person, telephonically, electronically or otherwise (“Market Area”), in any business that is the same or similar, or offers competing products and services as those offered by the Company;
(b)take any action to invest in, own, manage, operate, control, participate in, be employed or engaged by, or be connected in any manner with any partnership, corporation or other business or entity engaging in a business the same or similar, or which offers competing products and services as those offered by the Company anywhere within the Market Area; notwithstanding the foregoing, Executive is permitted hereunder to own, directly or indirectly, up to five percent (5%) of the issued and outstanding securities of any publicly traded financial institution conducting business within the Market Area;
(c)solicit, divert, take away, do business with, or provide information about, or attempt to solicit, divert, take away or do business with in any fashion any of the Company’s customers, clients, business or patrons about whom Executive has Proprietary Information, or with whom Executive has done business or attempted to do business on behalf of the Company;
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(d)(i) offer employment to, enter into a contract for the employment of, or attempt to entice away from the Company, any individual who is at the time of such offer or attempt, or has been during the twelve months prior to such offer or attempt, an employee of the Company, (ii) procure or facilitate the making of any such offer or attempt described in the preceding clause (i) by any other person, (iii) interfere with the material business relationships of the Company, or entice away any material suppliers or contractors, or (iv) solicit, directly or through any other person, any investor of the Company for purposes of facilitating any investment, partnership or business opportunity unrelated to the Company. This restriction in Section 4.2(d)(iv) shall not apply to any investor with which Executive had a preexisting relationship prior to becoming employed by the Company.
(e)(i) enter into employment, consultancy, association or affiliation with any entity that provides Conflicting Services (as defined below) if any former employee of the Company with whom Executive had contact as part of his or her duties with the Company (a “Covered Person”) has become employed by, associated or affiliated with, or a consultant of such entity during the twelve (12) month period preceding Executive’s termination of employment with the Company; or (ii) continue employment, consultancy, association or affiliation with any entity that provides Conflicting Services if any Covered Person becomes employed by, associated or affiliated with, or a consultant to such entity during the twelve (12) month period subsequent to Executive’s termination of employment with the Company. It is the intention of the parties to prevent the irreparable harm to the Company that would occur from the pooling of information that two or more former Covered Persons can provide to a competing entity or the misuse of Confidential Information. As used herein, “Conflicting Services” is defined as services that are the same or substantially similar to those services of Company or its affiliates and subsidiaries (x) which were provided by Executive (directly or indirectly) during the twelve (12) months preceding Executive’s termination from employment by Company or (y) about which Executive acquired Confidential Information during Executive’s employment by Company.
4.3Non-Competition Period. The restrictions on Executive’s activities identified in Section 4.2 hereof will apply for twelve (12) months after the termination of Executive’s employment with the Company, regardless of reason for the termination of such employment.
4.4Representations of Executive. EXECUTIVE REPRESENTS AND WARRANTS THAT THE KNOWLEDGE, SKILLS AND ABILITIES HE POSSESSES AT THE TIME OF COMMENCEMENT OF EMPLOYMENT HEREUNDER ARE SUFFICIENT TO PERMIT HIS, IN THE EVENT OF TERMINATION OF HIS EMPLOYMENT HEREUNDER, TO EARN A LIVELIHOOD SATISFACTORY TO HIMSELF WITHOUT VIOLATING ANY PROVISION OF SECTION 4 HEREOF, FOR EXAMPLE, BY USING SUCH KNOWLEDGE, SKILLS AND ABILITIES, OR SOME OF THEM, IN THE SERVICE OF A NON COMPETITOR.
4.5Severable Provisions. The provisions of this Agreement are severable and the invalidity of any one or more provisions shall not affect the validity of any other provision. In the event that a court of competent jurisdiction shall determine that any provision of this Agreement or the application thereof is unenforceable in whole or in part because of the duration or scope thereof, the parties hereto agree that said court in making such determination shall have the power to reduce the duration and scope of such provision to the extent necessary to make it enforceable, and that the Agreement in its reduced form shall be valid and enforceable to the full extent permitted by law.
4.6Intellectual Property. Executive agrees to disclose and assign to the Company any and all material of a proprietary nature, particularly including, without limitation, material subject to protection as trade secrets or as patentable ideas or copyrightable works, that Executive may conceive, invent, author or discover, either solely or
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jointly with another or other during Executive’s employment and that relates to or is capable of use in connection with the business of the Company or any employment or products offered, manufactured, used, sold or being developed by the Company at the time said material is developed. Executive will, upon request of the Company, either during or at any time after Executive’s employment ends, regardless of how or why Executive’s employment ends, execute and deliver all papers, including applications for patents and registrations for copyrights, and do such other legal acts (entirely at the Company’s expense) as may be necessary to obtain and maintain proprietary rights in any and all countries and to vest title thereto in the Company.
4.7Remedy. Executive understands and acknowledges that the Company has a legitimate business interest in preventing Executive from taking any actions in violation of this Section 4 and that this Section 4 is intended to protect the business and goodwill of the Company. Executive further acknowledges that a breach of this Section 4 will irreparably and continually damage the Company and that monetary damages alone will be inadequate to compensate the Company for such breach. Executive therefore agrees that in the event Executive violates any of the terms of this Section 4, the Company will be entitled to, in addition to any other remedies available to it in law or in equity, seek temporary, preliminary and permanent injunctive relief and specific performance to enforce the terms of Section 4 without the necessity of proving inadequacy of legal remedies or irreparable harm or posting bond. If Executive does take actions in violation of Section 4 of this Agreement, Executive understands that the time periods set forth in those paragraphs will run from the date on which Executive’s violations of those sections, whether by injunction or otherwise, ends and not from the date that Executive’s employment ends. In the event any lawsuit, claim or other proceeding is brought to enforce the terms of this Section 4, or to determine the validity of its terms, then the prevailing party will be entitled to recover from the non-prevailing party its reasonable attorneys’ fees and court costs incurred in obtaining enforcement of, or determining the validity of, this Section 4.
4.8Waiver. Executive understands and agrees that in the event the Company waives or allows any breach of this Section 4, such waiver or allowance will not constitute a waiver or allowance of any future breach, whether of a similar or dissimilar nature.
4.9Tolling. If the Company files a lawsuit in any court of competent jurisdiction alleging a breach of the non-disclosure or non-solicitation provisions of this Agreement by Executive, then any time period set forth in this Agreement relating to the post-termination restrictions on the activities of Executive will be deemed tolled as of the time the lawsuit is filed and will remain tolled until the dispute is finally resolved, either by written settlement agreement resolving all claims raised in the lawsuit, or by entry of a final judgment and final resolution of any post-judgment appellate proceedings.
5.MISCELLANEOUS.
5.1Governing Law; Dispute Resolution. This Agreement will be governed by and construed in accordance with the laws of the State of Texas excluding that body of law known as conflicts of law. The Parties will endeavor to settle amicably by mutual discussions any disputes or claims related to this Agreement (“Dispute”). Failing such settlement, and excepting such claims as may be brought pursuant to Section 4 hereof in a state or federal court having jurisdiction, any other Dispute will finally be settled by arbitration in accordance with the rules of the American Arbitration Association then applicable to employment-related disputes. The Parties will agree upon a single arbitrator. The Arbitrator will not have authority to award punitive damages to either Party. Each Party will bear its own expenses, but the Company will bear the fees and expenses of the arbitrator. This Agreement will be enforceable, and any arbitration award will be final. In any such arbitration, the decision in any prior arbitration under this Agreement will not be deemed conclusive of the rights as among themselves of the Parties hereunder. The arbitration
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will be held in Dallas, Texas. Any notices, including a demand for arbitration will be deemed served when delivered to the address indicated in Section 5.6.
5.2Tax Withholding. All payments and benefits under this Agreement shall be subject to, and made net of, applicable deductions and withholdings.
5.3Non-Payment of Benefits Due to Prohibition under 12 C.F.R. Part 359. Notwithstanding anything in this Agreement to the contrary, the Company will not be required to pay any benefit under this Agreement if the Company reasonably determines that the payment of such benefit would be prohibited by 12 C.F.R. Part 359 or any successor regulations regarding employee compensation promulgated by any regulatory agency having jurisdiction over the Company or its affiliates.
5.4Code Section 409A.
(a)It is the intent of the parties that this Agreement be interpreted and administered in compliance with the requirements of Code section 409A to the extent applicable. In this connection, the Company will have authority to take any action, or refrain from taking any action, with respect to this Agreement that is reasonably necessary to ensure compliance with Code section 409A (provided that the Company will choose the action that best preserves the value of the payments and benefits provided to Executive under this Agreement), and the parties agree that this Agreement will be interpreted in a manner that is consistent with Code section 409A.
(b)In furtherance, but not in limitation of the foregoing paragraph (a): (i) in the event that Executive is a “specified employee” within the meaning of Code section 409A, payments which constitute a “deferral of compensation” under Code section 409A and which would otherwise become due during the first six (6) months following Executive’s termination of employment will be delayed and all such delayed payments will be paid in full in the seventh (7th) month after Executive’s termination of employment, and all subsequent payments will be paid in accordance with their original payment schedule, provided that the above delay will not apply to any payments that are excepted from coverage by Code section 409A, such as those payments covered by the short-term deferral exception described in Treasury Regulations section 1.409A-1(b)(4); (ii) notwithstanding any other provision of this Agreement, a termination of Executive’s employment hereunder will mean, and be interpreted consistent with, a “separation from service” within the meaning of Code section 409A; and (iii) with respect to the reimbursement of fees and expenses provided for herein, the following will apply: (A) unless a specific time period during which such expense reimbursements may be incurred is provided for herein, such time period will be deemed to be Executive’s lifetime; (B) the amount of expenses eligible for reimbursement hereunder in any particular year will not affect the expenses eligible for reimbursement in any other year; (C) the right to reimbursement of expenses will not be subject to liquidation or exchange for any other benefit; and (D) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the calendar year in which the expense was incurred or the tax was remitted, as the case may be.
(c)If the maximum period within which Executive must sign and not revoke the Release could begin in one calendar year and expire in the following calendar year, then any payments contingent on the occurrence of the Release Effective Date shall be made in such following calendar year (regardless of the year of execution of such release) if payment in such following calendar year is required in order to comply with Section 409A. If the Release Effective Date has not occurred by the 60th day following Executive’s termination of employment, Executive will not be entitled to any amounts that are subject to the timely execution of the Release and the occurrence of the Release Effective Date.
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5.5Headings. The headings and captions set forth herein are for convenience of reference only and will not affect the construction or interpretation hereof.
5.6Notices. Any notice or other communication required, permitted, or desirable hereunder will be hand delivered (including delivery by a commercial courier service) or sent by United States registered or certified mail, postage prepaid, by facsimile or by electronic mail addressed as follows:
If to the Company: Triumph Bancorp, Inc.
Physical address: 12700 Park Central Drive, Suite 1700 Dallas, Texas 75251
Attn: Chief Executive Officer
If to Executive: W. Bradley Voss
Physical address: 3971 Cobblestone Circle
Dallas, TX 75229
or such other addresses as will be furnished in writing by the parties. Any such notice or communication will be deemed to have been given as of the date so delivered in person or three business days after so mailed.
5.7Successors and Assigns. The Company may assign its rights under this Agreement to any successor to its business (by merger, acquisition of substantially all of the Company’s assets or otherwise), provided that such successor entity expressly assumes, in a writing reasonably acceptable to Executive, this Agreement and all obligations and undertakings of the Company hereunder. Executive may not assign his rights or delegate his duties under this Agreement without the prior written consent of the Company. Executive understands and agrees that this Agreement will be binding upon and inure to the benefit of the Company and its legal representatives, successors and assigns. Executive also understands and agrees that this Agreement will be binding upon and inure to the benefit of Executive’s heirs and executors or administrators.
5.8Entire Agreement; Amendments. This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof, and there are no other contemporaneous written or oral agreements, undertakings, promises, warranties or covenants not specifically referred to or contained herein. This Agreement specifically supersedes any and all prior agreements and understandings of the parties with respect to the subject matter hereof, all of which prior agreements and understandings (if any) are hereby terminated and of no further force and effect. This Agreement may be amended, modified or terminated only by a written instrument signed by the parties hereto.
5.9Execution of Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or portable document format (.pdf)) for the convenience of the parties hereto, each of which will be deemed an original, but all of which together will constitute one and the same instrument. No signature page to this Agreement evidencing a party’s execution hereof will be deemed to be delivered by such party to any other party hereto until such delivering party has received signature pages from all parties signatory to this Agreement.
5.10Severability. If any provision, clause or part of this Agreement, or the applications thereof under certain circumstances, is held invalid or unenforceable for any reason, the remainder of this Agreement, or the application of such provision, clause or part under other circumstances, will not be affected thereby.
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5.11Incorporation of Recitals. The Recitals to this Agreement are an integral part of, and by this reference are hereby incorporated into, this Agreement.
6.DEFINITIONS.
6.1Average Bonus. “Average Bonus” shall mean the average of the annual cash bonuses earned (regardless of when paid) by Executive during the three fiscal years immediately preceding the fiscal year in which Executive terminated employment; provided, however, if (a) such annual cash bonuses related to a fiscal year prior to the fiscal year in which Effective Date occurred or (b) Executive was not eligible to participate in the annual cash bonus program of the Company and its subsidiaries (either due to the fact Executive was not an employee of the Company or its subsidiaries during such fiscal year or any other reason) during each such fiscal year, then Average Bonus shall mean the average of the annual cash bonuses earned (regardless of when paid) by Executive (x) for fiscal year from and after the fiscal year in which Effective Date occured and (b) during the fiscal years that Executive was a participant in the annual cash bonus program of the Company and its subsidiaries.
6.2Cause. “Cause” shall mean the Company’s determination in good faith that Executive: (i) has misappropriated, stolen or embezzled funds or property from the Company or any of its subsidiaries or affiliates, or secured or attempted to secure personally any profit in connection with any transaction entered into on behalf of the Company or any of its subsidiaries or affiliates, (ii) has been indicted or arrested on a felony, (iii) has neglected his duties hereunder, (iv) has materially violated a provision of Section 4 hereof, (v) has willfully violated or breached any material provision of this Agreement in any material respect or violated any material law or regulation or (vi) any other misconduct by Executive that is injurious to the financial condition or business reputation of the Company or any of its subsidiaries or affiliates.
6.3Change in Control. A “Change in Control” shall mean the first to occur:
(a)A direct or indirect acquisition by an individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (a “Person”) of beneficial ownership of shares of Company common stock which, together with other direct or indirect acquisitions or beneficial ownership by such Person, results in aggregate beneficial ownership by such Person of more than fifty percent (50%) of the combined voting power of the then outstanding voting securities of the Company (the “Outstanding Company Voting Securities”); excluding, however, the following:
(i)any acquisition directly from the Company, other than an acquisition by virtue of the exercise of a conversion privilege unless the security being so converted was itself acquired directly from Company,
(ii)any acquisition by the Company or a wholly owned subsidiary,
(iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company any entity controlled by the Company, or
(iv) any acquisition by any entity pursuant to a transaction which complies with Section 6 .3(c)(i), (ii) or (iii); or
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(b)A change in the composition of the Board of the Company over a 12-month period such that the individuals who, as of the date of the beginning of the period (the “Effective Incumbency Date”), constitute the Board of the Company (the “Incumbent Board”) cease for any reason to constitute a majority of the Board of the Company; provided, however, that any individual who becomes a member of the Board of the Company subsequent to the Effective Incumbency Date, whose election, or nomination for election by the Company’s stockholders, was approved by a vote of a majority of those individuals then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board; but, provided further, that any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board of the Company shall not be so considered as a member of the Incumbent Board; or
(c)The consummation of a Corporate Transaction; excluding, however, such a Corporate Transaction pursuant to which:
(i)all or substantially all of the individuals and entities who are the beneficial owners of the Outstanding Company Voting Securities immediately prior to such Corporate Transaction will beneficially own, directly or indirectly, more than fifty percent (50%) of the combined voting power of the then outstanding voting securities of the surviving or acquiring entity resulting from such Corporate Transaction or a direct or indirect parent entity of the surviving or acquiring entity (including, without limitation, an entity which as a result of such transaction owns all or substantially all of Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions (as compared to each other) as their ownership, immediately prior to such Corporate Transaction, of the Outstanding Company Voting Securities,
(ii)no Person (other than the Company, any wholly owned subsidiary, any employee benefit plan (or related trust) sponsored or maintained by the Company, any entity controlled by the Company, such surviving or acquiring entity resulting from such Corporate Transaction or any entity controlled by such surviving or acquiring entity or a direct or indirect parent entity of the surviving or acquiring entity that, after giving effect to the Corporate Transaction, beneficially owns, directly or indirectly, 100% of the outstanding voting securities of the surviving or acquiring entity) will beneficially own, directly or indirectly, thirty percent (30%) or more of the outstanding voting securities of such entity, except to the extent that such ownership existed prior to the Corporate Transaction; or
(iii)individuals who were members of the Incumbent Board will constitute a majority of the members of the board of directors (or similar governing body) of the surviving or acquiring entity resulting from such Corporate Transaction or a direct or indirect parent entity of the surviving or acquiring entity.
6.4Corporate Transaction. “Corporate Transaction” shall mean a
(a)dissolution or liquidation of the Company,
(b)sale of all or substantially all of the assets of the Company,
(c)merger or consolidation of the Company with or into any other corporation, regardless of whether Company is the surviving corporation or
(d)statutory share exchange involving capital stock of the Company.
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6.5 Good Reason.
(a)In the case of a voluntary termination of employment not occurring on or after a Change in Control, “Good Reason” shall mean:
(i)a material reduction in Executive’s base salary as in effect immediately prior to Executive’s “Good Reason Notice of Termination” as defined below unless such reduction is made in accordance with a uniform reduction in base salaries of the Company’s executive officers; or
(ii)a material reduction in Executive’s target annual bonus opportunity as in effect immediately prior to Executive’s Good Reason Notice of Termination unless such reduction is made in accordance with a uniform reduction in target annual bonus opportunity of the Company’s executive officers.
(b)In the case of a voluntary termination of employment occurring on or after a Change in Control, “Good Reason” shall mean:
(i)a material reduction in Executive’s position, authority, duties or responsibilities relative to such position, authority, duties or responsibilities immediately prior to the Change in Control;
(ii)a material reduction in Executive’s base salary opportunity as in effect immediately prior to the Change in Control;
(iii)a material reduction in Executive’s target annual bonus opportunity as in effect immediately prior to the Change in Control;
(iv)receipt of notice by Executive with regard to the mandatory relocation of the office at which Executive is to perform the majority of his duties following the Change in Control to a location more than 50 miles from the location at which Executive performed such duties prior to the Change in Control; provided that such new location is farther from Executive’s residence than the prior location; or
(v)the failure at any time of a successor to the Company explicitly to assume and agree to be bound by this Agreement.
(c)Notwithstanding anything in this Agreement to the contrary, no act, omission or event shall constitute grounds for a voluntary termination due to “Good Reason” under either paragraph (a) or (b) immediately above unless:
(i)Executive provides the Company thirty (30) day advance written notice of his intent to termination employment for Good Reason which notice must describe the claimed act, omission or event giving rise to Good Reason (“Good Reason Notice of Termination”);
(ii)the Good Reason Notice of Termination is given within ninety (90) days of Executive’s first actual knowledge of such act, omission or event;
(iii)the Company fails to cure such act, omission or event within the thirty (30) day period after receiving the Good Reason Notice of Termination; and
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(iv)Executive’s termination of employment for Good Reason actually occurs at the end of such 30-day cure period if the Good Reason is not cured.
6.6Qualifying Termination. A “Qualifying Termination” shall mean (i) Executive’s involuntary termination of employment without Cause or (ii) Executive’s voluntary termination for Good Reason.
6.7Standard Termination Payments. “Standard Termination Payments” shall mean earned and unpaid salary through the date of Executive’s termination of employment, any bonus definitively earned by Executive but not yet paid to Executive, additional salary in lieu of Executive’s accrued and unused vacation (to the extent such is paid in accordance with the Company’s policies for its executives generally) , any unreimbursed business and entertainment expenses, each in accordance with the policies of the Company and its subsidiaries, and any unreimbursed employee benefit expenses that are reimbursable in accordance with the employee benefit plans of the Company and its subsidiaries through the date of Executive’s termination of employment. For the avoidance of doubt, the Standard Termination Payments do not include any unvested portion of any annual or long-term incentive compensation or bonus.
6.8Total Disability. “Total Disability” shall mean the inability of Executive, due to a physical or a mental condition, to perform the essential functions of Executive’s job, with or without accommodation, for any period of 180 consecutive days; provided that the return of Executive to his duties for periods of 15 days or less will not interrupt such 180-day period.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of the day and year first above written.
TRIUMPH BANCORP, INC. | |||||
| By: | /s/ Aaron P. Graft | ||||
| Name: | Aaron P. Graft | ||||
| Title: | Chief Executive Officer | ||||
| EXECUTIVE: W. BRADLEY VOSS | |||||
/s/ W. Bradley Voss | |||||
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Exhibit 10.2
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this “Agreement”) dated as of September 1, 2021 to be effective as of the Effective Date, by and between TRIUMPH BANCORP, INC., a Texas corporation (the “Company”), and R. BRYCE FOWLER (“Consultant”).
WHEREAS, Consultant currently serves as the Executive Vice President and Chief Financial Officer of the Company; and
WHEREAS, Consultant has resigned as the Executive Vice President and Chief Financial Officer of the Company, effective as of September 1, 2021 (the “Effective Date”); and
WHEREAS, Consultant desires to be retained as a consultant to the Company and the Company desires Consultant’s services after the Effective Date on the terms and conditions as set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises, the mutual agreements herein set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1.Retention of Consultant; Services to be Performed.
(a)Services. Effective on the Effective Date, the Company shall retain Consultant to provide consulting services related to (i) various business and/or growth transactions; (ii) oversight and advice related to the Company’s regulatory relationships, (iii) transition matters from Consultant’s role as Executive Vice President and Chief Financial Officer of the Company prior to the Effective Date, and (iv) provision of advice and support to the Company’s Risk Management and Audit Committees, in each case, as requested by the Company (collectively, the “Services”). Consultant accepts such engagement upon the terms and conditions set forth in this Agreement. Requests for consulting services will be delivered to the Consultant by the Chief Executive Officer of the Company (the “CEO”).
(b)Availability to Perform Services. Consultant and the Company agree that the time spent by Consultant in performance of the Services will be determined by agreement between Consultant and the CEO.
(c)Standard of Care. Consultant shall perform the Services with the same level of care and diligence with which he has performed services for the Company prior to the Effective Date.
(d)Independent Contractor. Consultant and the Company understand, acknowledge, and agree that this Agreement constitutes a service contract and that Consultant is acting as an independent contractor in performing the Services. Nothing in this Agreement shall constitute a partnership, joint venture, or employer/employee relationship between Consultant and the Company, and Consultant is not the agent of the Company. Consultant has no authority to bind or otherwise obligate the Company in any manner, nor shall Consultant represent to anyone that Consultant has a right to do so, except as specifically authorized from time to time in writing by the Company’s CEO. Consultant shall have the exclusive responsibility for determining the means and manner in which the Services are to be performed. Consultant shall provide their own equipment (phone, laptop, etc.) necessary for provision of the Services. Consultant agrees, however, that while Consultant operates independently, Consultant shall, in all aspects of performing the Services, comply with applicable law, rules and regulations and perform the
Services professionally, ethically, and in a way that he reasonably believes is not opposed to the Company’s best interests.
Consultant understands, acknowledges, and agrees that, as an independent contractor, Consultant is not covered by or eligible to participate in any of the Company’s employee benefits programs, including, but not limited to, accident and health insurance, life insurance, disability income insurance, medical expense reimbursement, wage continuation plans, or other fringe benefits provided to employees.
(e)Taxes. Consultant and the Company agree that Consultant is fully responsible, at Consultant’s own expense, to discharge all tax and related obligations imposed by federal, state, and local law and regulation with respect to the Consulting Fee (as defined below) and any other compensation paid to Consultant for his services hereunder, and shall indemnify and hold the Company harmless on account of the Consultant’s failure to do so. In addition, Consultant shall: (i) pay all applicable social security taxes, federal and state unemployment insurance and similar taxes and workers compensation premiums; (ii) pay all other applicable assessments, taxes, contributions, or sums payable, whether based on income or otherwise; and (iii) at all times comply with applicable federal, state, and local laws and regulations with respect to the payment of taxes. Consultant acknowledges he is solely responsible for filing all necessary federal, state, and local taxes, including timely payment of estimated income taxes and self-employment taxes.
(f)Term. Unless terminated at an earlier date in accordance with Section 6, this Agreement shall become effective on the Effective Date and will continue for 36 months following the Effective Date (the “Term”). Thereafter, this Agreement shall terminate unless prior to the expiration of the Term it is renewed upon written agreement of the parties.
2.Compensation. As compensation in full for Consultant providing the Services hereunder, the Company shall pay Consultant: (a) a consulting fee at the rate of $7,416.67 per month (the “Consulting Fee”). The Consulting Fee shall be payable to Consultant in arrears at the end of each calendar month during the Term and, subject to the provisions of Section 6, a prorated portion of the Consulting Fee shall be payable upon termination of this Agreement if such termination occurs other than at the end of a month.
3.Expenses. The Company will reimburse Consultant for all reasonable and necessary out-of-pocket expenses incurred by him in the performance of his duties under this Agreement, subject to the Company’s normal policies for reimbursement and expense verification.
4.Confidential Information. Except as directed by the Company, Consultant shall not divulge, furnish or make accessible to anyone or use in any way (other than in the ordinary course of the business of the Company), during the Term or at any time thereafter, any confidential information of the Company that Consultant has acquired or become acquainted with, whether developed by himself or by others, including but not limited to any trade secrets, confidential, proprietary or secret information or data, processes, formulae, plans, devices or material (whether or not patented or patentable) used in any aspect of the business of the Company, any customer or supplier lists of the Company, any confidential development or research work of the Company, or any other confidential information or confidential aspects of the business of the Company (all such confidential or secret knowledge and information referred to in this sentence, the “Confidential Information”). Consultant acknowledges that the Confidential Information constitutes a unique and valuable asset of the Company and represents a substantial investment of time and expense and the creation of goodwill by the Company, and that any disclosure or other use of such knowledge or information other than for the sole benefit of the Company would be wrongful and would cause
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irreparable harm to the Company. The foregoing obligations of confidentiality shall not apply: (a) to any knowledge or information that is now published or which subsequently becomes generally publicly known in the form in which it was obtained from the Company, other than as a direct or indirect result of the breach of this Agreement by Consultant; and (b) as set forth in the following paragraph.
Consultant also shall be authorized to disclose Confidential Information: (i) as may be required by law or legal process after providing the Company with prior written notice and an opportunity to respond to such disclosure (unless such notice is prohibited by law); (ii) in any criminal proceeding against him after providing the Company with prior written notice and an opportunity to seek protection for such Confidential Information (at the Company’s sole expense); and (iii) with the prior written consent of the CEO.
5.Nondisparagement. Neither party, which in case of the Company shall be deemed to be actions taken by its directors and executive officers, shall make to any third party, including but not limited to, with respect to Consultant, competitors and customers of the Company, any statement that disparages the other party or, with respect to Consultant, any of the Company’s officers, directors, or employees.
6.Termination of Services.
(a)This Agreement shall be automatically terminated upon the death or Disability of Consultant. As used herein, “Disability” shall be deemed to occur if Consultant is incapacitated and unable to perform the Services for four consecutive months or for at least 180 days (which need not be consecutive) during any 12-month period, as determined in the discretion of the Company.
(b)This Agreement may be terminated for any reason by either Consultant or the Company upon 180 days prior written notice to the other party (the “Notice Period”). The Company, upon providing notice of termination to Consultant or upon receiving notice of termination by Consultant, may elect to require that Consultant not perform the Services during the Notice Period. If the Company makes such election, it will continue to pay the Monthly Fee as if Consultant was still under contract through the duration of the Notice Period.
(c)If not terminated earlier by either party pursuant to Section 6(a) or (b) or renewed by mutual written agreement of Consultant and the Company in advance of the last day of the Term, this Agreement shall terminate as of the close of business on the last day of the Term.
7.Resolution of Disputes.
(a)Except as provided in Section 7(b), any controversy arising out of or relating to this Agreement, its enforcement or interpretation, or because of an alleged breach, default, or misrepresentation in connection with any of its provisions, shall be submitted to arbitration in Dallas, Texas, before a single arbitrator to be mutually agreed upon by the parties and shall be conducted in accordance with the JAMS Employment Arbitration Rules and Procedures (“JAMS”). Consultant acknowledges that he has reviewed such rules prior to executing this Agreement. The Company shall bear those expenses peculiar to arbitration including the administrative costs of the arbitration and the arbitrator’s fees to the extent required by Texas law and the JAMS rules. Each party in the arbitration shall bear its or his own attorneys’ fees and legal costs; however, if any party prevails on a statutory claim which affords the prevailing party attorneys’ fees and/or legal costs, the arbitrator may award reasonable attorneys’ fees and/or legal costs to the prevailing party consistent with applicable law. The parties agree to file any demand for arbitration within the time limit established by the applicable statute of limitations for the asserted claims. Failure to demand arbitration within the prescribed time period shall result in waiver of said
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claims. This Agreement does not prohibit either party from seeking provisional injunctive relief, including to prevent irreparable harm, in any court of competent jurisdiction. Final resolution of any dispute through arbitration may include any remedy or relief which the arbitrator deems just and equitable. Any award or relief granted by the arbitrator hereunder shall be final and binding on the parties hereto and may be enforced by any court of competent jurisdiction.
(b)For avoidance of doubt, Section 7(a) shall have no application to claims by the Company asserting a violation of Section 4 or claims by either party asserting a violation of Section 5 of this Agreement, or seeking to enforce, by injunction or otherwise, the terms of Section 4 by the Company or Section 5 by either party.
8.Releases.
(a)Consultant understands that this Section 8 is a knowing and voluntary waiver of claims by Consultant related to Consultant’s employment with the Company. In exchange for the consideration set forth in this Agreement and other good and valid consideration, and except for matters specifically reserved in this Agreement, Consultant, for himself and on behalf of his representatives, successors and assigns, hereby releases and forever discharges the Company, its subsidiaries and affiliates and their respective shareholders, directors, officers, employees and agents (collectively, the “Company Released Parties”), from any and all claims, demands, damages, losses, obligations, rights and causes of action, whether known or unknown, against any Company Released Party, including but not limited to, all claims, causes of action that Consultant now has or has ever had against any Company Released Party based upon or arising out of any offer, agreement, matter, occurrence or event existing or occurring prior to the execution of this Agreement, including anything relating to Consultant’s employment with the Company or to the termination of such employment, which release expressly includes, but is not limited to, any claim or cause of action arising under 42 U.S.C. § 1981; Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991; the Americans with Disabilities Act; the Age Discrimination in Employment Act (“ADEA”); The Older Workers Benefit Protection Act (“OWBPA”); the Employee Retirement Income Security Act of 1974; The Fair Labor Standards Act, as amended; and any other federal, state and local statute or rule; provided that Consultant is not releasing: (i) any claim or right under this Agreement; (ii) any right to compensation for services owing to Consultant that have accrued but not yet been paid in the ordinary course of business; (iii) any deposits (as defined in 12 USC §1813(1)) of Consultant that constitute a deposit liability of a Company Released Party; or (iv) any right of indemnification and related benefits pursuant to any applicable law, the articles of incorporation or bylaws of Company or its subsidiaries or to claim insurance coverage or to be defended under any directors’ and officers’ insurance coverage that applies to or benefits directors or officers of Company or its subsidiaries to the extent such coverage applies Consultant. Consultant agrees not to bring any lawsuits against any Company Released Party relating to the claims that Consultant has released nor will Consultant allow any to be brought or continued on his behalf or in his name. This Agreement does not affect Consultant’s right to file a charge with or participate before the Equal Employment Opportunity Commission; however, Consultant is waiving the right to recover damages and attorney’s fees from such a proceeding. Subject to Sections 8(b) and 8(c), this Section 8(a) shall survive any expiration or termination of this Agreement.
Without limiting the foregoing, Consultant hereby acknowledges that he knowingly and voluntarily is providing the release set forth in this Section 8(a) with the purpose of waiving and releasing any claims under the ADEA and the OWBPA, and as such, he acknowledges and agrees that:
(1) this Agreement is worded in an understandable way;
(2) any rights or claims arising under the ADEA and OWBPA are waived;
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(3) claims under the ADEA and OWBPA that may arise after the date of this Agreement are not waived;
(4) the rights and claims waived in this Agreement are in exchange for additional consideration over and above anything to which Consultant was already undisputedly entitled; and
(5) Consultant has been advised in writing to consult with an attorney prior to executing this Agreement, and has had an opportunity to do so.
(b)Consultant has 21 days from receipt of this Agreement to review and consider this Agreement before signing and returning it; therefore, Consultant understands that he must give his written acceptance within 21 days to the Company. Consultant understands that he may use as much of this 21 day period as he wishes prior to signing. In the event Consultant signs this Agreement before the expiration of the 21 days, Consultant hereby states that Consultant has voluntarily and knowingly decided to shorten the time period and that no released party has induced him to do so.
(c)Consultant may revoke (i.e., cancel) this Agreement for any reason within seven days after signing it. Consultant understands and agrees that such revocation must be in writing and hand-delivered or mailed to the Company. If mailed, the revocation must be sent by certified mail, return receipt requested, and postmarked within the seven-day period. This revocation should be properly addressed to the Company at the address set forth in Section 9(f). Consultant understands that he will not receive any payment under this Agreement if he revokes it.
9.Miscellaneous.
(a)Entire Agreement. This Agreement contains the entire understanding between the parties hereto with respect to the subject matter hereof and thereof and supersedes any prior understandings, agreements or representations, written or oral, relating to the subject matter hereof and thereof.
(b)Counterparts. This Agreement may be executed in separate counterparts, each of which will be an original and all of which taken together shall constitute one and the same agreement, and either party hereto may execute this Agreement by signing any such counterpart.
(c)Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law and to carry out each provision herein to the greatest extent possible, but if any provision of this Agreement is held to be void, voidable, invalid, illegal or for any other reason unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not be affected or impaired, and will be interpreted so as to effect, as closely as possible, the intent of the parties hereto. Furthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as part of this Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
(d)Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by Consultant without the prior written consent of the Company.
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(e)Modification, Amendment, Waiver or Termination. No provision of this Agreement may be modified, amended, waived or terminated except by an instrument in writing signed by the parties to this Agreement. No course of dealing between the parties will modify, amend, waive or terminate any provision of this Agreement or any rights or obligations of any party under or by reason of this Agreement.
(f)Notices. Any notice or communication required or permitted to be given to the parties shall be delivered personally or sent by email or by United States registered or certified mail, postage prepaid and return receipt requested, and addressed or delivered as follows, or to such other address as the party addressed may have substituted by notice pursuant to this Section 9(f):
If to Consultant:
R. Bryce Fowler
4616 Parma Ln.
R. Bryce Fowler
4616 Parma Ln.
Frisco, TX 75034
If to the Company:
Triumph Bancorp, Inc.
12700 Park Centra Drive, Suite 1700
Dallas, Texas 75251
Attn: Chief Executive Officer
Triumph Bancorp, Inc.
12700 Park Centra Drive, Suite 1700
Dallas, Texas 75251
Attn: Chief Executive Officer
(g)Headings. The headings and any table of contents contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
(h)Governing Law. All matters relating to the interpretation, construction, validity and enforcement of this Agreement shall be governed by the internal laws of the State of Texas, without giving effect to any choice of law provisions thereof.
(i)Waiver of Jury Trial. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(j)Advice of Counsel. Consultant expressly acknowledges that the Company has advised him to discuss all aspects of this Agreement with an attorney before signing this Agreement and that he has discussed, or in the alternative, has freely elected to waive any further opportunity to discuss, this Agreement with an attorney before signing it.
(k)No Waiver. No delay on the part of any party in exercising any right hereunder shall operate as a waiver of such right. No waiver, express or implied, by any party of any right or any breach by another party shall constitute a waiver of any other right or breach.
(l)Effect on Outstanding Equity Awards. The Company and Consultant acknowledge and agree that the provision of Consultant’s services hereunder shall be considered continued service to the Company such that a Termination of Service (as defined in the Company’s 2014 Omnibus Incentive Plan) shall not be deemed to have occurred with respect to any time-based vesting equity award held by the Consultant as of the Effective Date, which awards shall continue to vest subject to the Consultant’s provision of services under this Agreement, but
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that Consultant shall be deemed to have retired from the Company as of the Effective Date for the purposes of determining treatment of any performance-based equity awards held by the Consultant as of the Effective Date.
(m)Section 409A. This Agreement is intended to comply with the provisions of Section 409A of the Code and the Treasury regulations relating thereto or an exception to Section 409A of the Code. For purposes of compliance with Section 409A of the Code, each payment of compensation under this Agreement shall be treated as a separate payment of compensation, and in no event may the Consultant, directly or indirectly, designate the calendar year of any payment under this Agreement. All reimbursements provided under this Agreement shall be provided in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that (a) the amount of expenses eligible for reimbursement during one calendar year shall not affect the amount of expenses eligible for reimbursement in any other calendar year; (b) the reimbursement of an eligible expense shall be made no later than the last day of the calendar year following the calendar year in which the expense is incurred; and (c) the right to any reimbursement shall not be subject to liquidation or exchange for another benefit.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth in the first paragraph hereof.
TRIUMPH BANCORP, INC. | |||||
| By: | /s/ Aaron P. Graft | ||||
| Name: | Aaron P. Graft | ||||
| Title: | Chief Executive Officer | ||||
| CONSULTANT | |||||
/s/ R. Bryce Fowler | |||||
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