Exhibit
10.18


 


EMPLOYMENT
AGREEMENT


 


THIS EMPLOYMENT AGREEMENT
(“Agreement”) is made as of the 8th day of March, 2001, by and between First
Capital Bank of Arizona, an Arizona corporation (“Company”), and Harold F.
Mosanko (“Employee”).


 


1.             EMPLOYMENT. Company hereby agrees to employ
Employee, and Employee hereby agrees to be employed by Company, as Chairman of
the Board of the Company and in such other or different executive capacities as
may be determined from time to time by the Board of Directors of Company.


 


2.             RESPONSIBILITIES OF EMPLOYMENT. During the term
of his employment, Employee:


 


(a)            shall diligently and faithfully
serve Company in the capacities described above, and shall devote his best
efforts and entire business time, services and attention to the advancement of
Company’s interests;


 


(b)           shall not, without the prior written
consent of the Board of Directors of Company (i) be employed by any other
person or (ii) engage in any other business, directly or indirectly, as a sole
proprietor, a member of a partnership or limited liability company, as a
director, officer, or shareholder of a corporation not affiliated with Company,
or as a consultant or otherwise, whether for compensation or otherwise, which
could reasonably be expected to or does interfere with Employee’s performance
of his duties hereunder or which business is in competition in any way with the
business then being conducted by Company; provided, however, that the
provisions of this subparagraph (b) shall not prohibit Employee’s ownership of
stock in any publicly owned corporation so long as Employee’s ownership,
directly and indirectly, when aggregated with the direct and indirect ownership
of all members of Employee’s family, does not exceed one percent (1%) of the
total outstanding stock of such publicly owned corporation, measured by
reference to either market value or voting power;


 


(c)            shall diligently and faithfully
carry out the policies, programs and directions of the Board of Directors of
Company;


 


(d)           shall fully cooperate with such other
officers of the Company as may be elected or appointed by the Board of
Directors of Company; and


 


(e)            shall report to the Chairman and
Chief Executive Officer of Company’s parent, Colorado Business Bankshares, Inc.
(“COBZ”).


 


3.             COMPENSATION. 
Company will compensate Employee for his services during the term of
this Agreement and his employment hereunder as follows:


 

















 


(a)           Basic Compensation.  Company shall pay to Employee as basic
compensation the sum of One Hundred Thirty Thousand and 08/100 Dollars
($130,000.08) per year, payable in equal monthly installments.  Employee’s basic compensation may be
increased from time to time in the sole discretion of Company’s Board of
Directors.


 


(b)           Benefits.  Employee shall be entitled to participate in
all benefit plans from time to time provided executive employees of Company,
including, without limitation, health, accident, hospitalization and life
insurance programs.


 


(c)           Reimbursement of Expenses.  Employee shall be entitled to reimbursement
of ordinary and necessary out-of-pocket expenses reasonably incurred by him on
behalf of Company in the course of performing his duties hereunder, subject to
his furnishing appropriate documentation relative to such expenses in form and
substance satisfactory to Company and subject to the Company’s expense
reimbursement policies as in effect from time to time.


 


(d)           Vacations.  Employee shall be entitled to four weeks
paid vacation each year, subject to Company’s general vacation policy.


 


(e)           Stock Option. COBZ has an
incentive stock option plan for key employees of COBZ and its
subsidiaries.  Employee shall be
eligible to participate in that plan.


 


4.                                       TERM
AND TERMINATION.


 


(a)           Term.  The term of this Agreement shall be four
years beginning on the date hereof, unless sooner terminated as provided
herein.  This Agreement and Employee’s
employment by Company will automatically terminate at the end of that term.


 


(b)           Termination. Notwithstanding
Paragraph 4(a), this Agreement and Employee’s employment with the Company can
be terminated by either party at any time as provided in this Paragraph
4(b).  Upon termination of this
Agreement by Company, by Employee or upon the death or disability of Employee,
the rights and obligations of Employee and the Company shall be as follows:


 


(i)            Termination by Employee.  In the event Employee terminates his
employment hereunder, except as provided in Paragraph 4(b)(iv) or (v), this
Agreement shall immediately terminate without any further obligation on the
part of Company, except that (A) Company shall pay to Employee such
compensation pursuant to Paragraph 3 hereof as may be accrued and unpaid on the
date of termination of employment and (B) if such termination occurs after the
first anniversary of the date of this Agreement, Company shall be obligated to
pay Employee the severance benefits set forth in Paragraph 4(c) hereof, except
that the period specified in clause (x) of Paragraph(c)(i) shall be one year
rather than two years.


 


(ii)           Termination by Company for Cause.  If Employee’s employment hereunder is
terminated by Company for cause, this Agreement shall immediately terminate
without any further obligation on the part of Company, except that Company
shall pay to


 


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Employee such compensation pursuant to Paragraph 3 hereof as may be
accrued and unpaid on the date of such termination of employment.  For purposes of this Agreement, “cause”
shall mean willful failure or neglect of Employee to perform his duties as
prescribed herein, the conviction of a felony, theft, embezzlement or improper
use of corporate funds by Employee, self dealing detrimental to Company, any
attempt to obtain any personal profit from any transaction in which Company has
an interest or any breach of the terms of Paragraphs 6 or 7 of this Agreement
by Employee.


 


(iii)          Termination by Company for Other
Reasons.  Company shall have the
right at any time to terminate Employee’ s employment hereunder for any reason
by giving him written notice of termination specifying the effective date of
the termination.  If Employee’s
employment hereunder is terminated by Company other than for cause, Company
shall be obligated to pay Employee the severance benefits set forth in
Paragraph 4(c) hereof.


 


(iv)          Termination by Employee Upon
Constructive Discharge.  If Employee
is constructively discharged, he may terminate this Agreement and his
employment hereunder by delivering written notice to Company no later than
thirty (30) days after the date of the constructive discharge.  Such notice shall specify the effective date
of the termination, which shall be no sooner than 30 days after the notice is
received by Company, and shall describe in reasonable detail the facts alleged
to constitute the constructive discharge. 
If a constructive discharge has occurred, and Company fails to eliminate
the conditions constituting a constructive discharge within 30 days after its
receipt of such notice from Employee, the termination shall be effective upon
the date specified in such notice.  If
this Agreement is terminated by Employee pursuant to this Paragraph 4(b)(iv),
Company shall be obligated to pay Employee, in addition to such compensation
pursuant to Paragraph 3 hereof as may be accrued and unpaid on the date of
termination of employment, the severance benefits set forth in Paragraph 4(c)
hereof.  For purposes of the foregoing,
“constructive discharge” means the occurrence of any one or more of the
following without Employee’s consent: (A) Employee is removed from all of the
offices described in Paragraph 1 hereof without cause; (B) Company fails to
provide Employee the authority or resources that he reasonably needs to
competently perform the duties of his office; (C) Company decreases Employee’s
basic compensation below that specified in Paragraph 3(a); or (D) Company
transfers Employee to a location outside the Phoenix, Arizona metropolitan
area.


 


(v)           Termination by Employee Upon
Change of Control.  If Employee
terminates his employment hereunder within one year after a Change of Control
occurs, this Agreement shall terminate on the effective date of such
termination of employment as specified in a written notice from Employee, which
shall not be less than 30 days after such notice is received by Company.  If Employee so terminates, Company shall be
obligated to pay Employee, in addition to such compensation pursuant to
Paragraph 3 hereof as may be accrued and unpaid on the date of termination of
employment, the severance benefits set forth in Paragraph 4(c) hereof.  For purposes of this Paragraph 4(b)(v), a
“Change of Control” will be deemed to have occurred if: a) any person (as such
term is defined in Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended (the “1934 Act”), other than a person who is a shareholder of
COBZ or Company as of the date of this Agreement, acquires beneficial ownership
(within the


 


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meaning of Rule 13d-3 promulgated under the 1934 Act) of fifty percent
(50%) or more of the combined voting power of the then outstanding voting
securities of COBZ or Company; or b) the individuals who were members of COBZ’s
Board of Directors as of the date of this Agreement (the “Current Board
Members”) cease for any reason to constitute a majority of the Board of Directors
of COBZ or its successor; provided, however, if the election or the nomination
for election of any new director of COBZ or its successor is approved by a vote
of a majority of the individuals who are Current Board Members, such new
director shall, for the purposes of this paragraph, be considered a Current
Board Member; or c) COBZ’s or Company’s stockholders approve (1) a merger or
consolidation of COBZ or Company and the stockholders of COBZ or Company
immediately before such merger or consolidation do not, immediately after such
merger or consolidation, own, directly or indirectly, more than fifty percent
(50%) of the combined voting power of the then outstanding voting securities of
the entity resulting from such merger or consolidation in substantially the
same proportion as their ownership of the combined voting power of the
outstanding securities of COBZ or Company immediately before such merger or
consolidation; or (2) a complete liquidation or dissolution or an agreement for
the sale or other disposition of all or substantially all of the assets of COBZ
or Company.  Notwithstanding the
foregoing, a Change of Control will not be deemed to have occurred: a) solely
because fifty percent (50%) or more of the combined voting power of the then
outstanding voting securities of COBZ are acquired by (1) a trustee or other
fiduciary holding securities under one or more employee benefit plans
maintained for employees of COBZ or its subsidiaries, or (2) any person
pursuant to the will or trust of any existing stockholder of COBZ, or who is a
member of the immediate family of such stockholder, or (3) any corporation
which, immediately prior to such acquisition, is owned directly or indirectly
by the stockholders in the same proportion as their ownership of stock
immediately prior to such acquisition; or b) if Employee agrees in writing to
waive a particular Change of Control for the purposes of this Agreement.


 


(vi)        Termination Upon Employee’s
Disability.  In the event Employee’s
employment is terminated by Company due to Employee’s disability, Company shall
be obligated to pay Employee the severance benefits set forth in Paragraph 4 (
c) hereof.  For purposes of the
foregoing, “disability,’ shall mean Employee’s inability due to illness or
other physical or mental disability to perform the essential functions of his
position, with or without reasonable accommodation, for a period exceeding any
medical leave allowed by Company policies mandated by applicable law, and any
action to be taken hereunder based on disability shall not be effective until
the expiration of such medical leave.


 


(vii)         Termination Upon Employee’s Death.  In the event that Employee dies while
employed by Company, then Company shall he obligated to pay Employee’s estate
the severance benefits set forth in Paragraph 4(c) hereof.


 


(viii)        Continuing Obligations of Employee.  Notwithstanding anything to the contrary
contained herein, termination of this Agreement or Employee’s employment
hereunder, for whatsoever reason or for no reason at all, by Employee or
otherwise, shall not be deemed in any way to affect Employee’s obligations
under Paragraphs 6 and 7 of this Agreement, with respect to which he shall
remain bound.


 


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(ix)           Company’s Right to Accelerate
Effective Date.  In any case in
which this Agreement provides that a termination by Employee shall become
effective not less than a specified number of days following notice of
termination, the Company may accelerate the effective date of termination by
notice to Employee.


 


(c)           Severance Benefits. Provided
Employee is in compliance with Paragraph 4(b)(viii) hereof, in the
circumstances provided in Paragraphs 4(b)(iii), (iv), (v), (vi) and (vii),
Company will pay or provide the following severance benefits to Employee in
lieu of any separation payments otherwise provided upon termination of
employment under any other severance pay or similar plan or policy of Company:


 


(i)            Company shall continue to pay
Employee his basic compensation under Paragraph 3(a) at the rate in effect
immediately prior to Employee’s termination for a period equal to the shorter
of (x) two years following the termination (except as provided in Paragraph
4(b)(i)(B)) or (y) the remainder of the four-year term specified in Paragraph
4(a):


 


(ii)           Until Employee’s 65th
birthday, Company will continue to provide, at Company’s expense, medical and
dental insurance to Employee and Employee’s dependents under the plans, if any,
from time to time maintained by Company for its executive employees and in
which Employee was participating at the time of the termination, subject to the
same co-payment and other obligations that are applicable to other executive
employees, to the extent that such continued participation is allowed by the
terms of the plans.  If such continued
participation is not allowed by the terms of the plans (or under COBZ’s plans
pursuant to Paragraph 9), and Employee elects to continue coverage through the
plans (or through COBZ’s plans) pursuant to COBRA, Company shall reimburse
Employee for the premiums paid by Employee pursuant to COBRA for as long as
such COBRA rights continue or, if less, until his 65th
birthday.   If Employee’s
eligibility  for participation under the
plans (and COBZ’s plans), both directly and through COBRA, ends before his 65th
birthday, Company shall continue to pay Employee until his 65th
birthday the amount that he would be required to pay under COBRA to continue
coverage under the plans if he were still eligible to do so.  All amounts paid by the Company to Employee
(rather than directly to an insuror for coverage under a plan) under this
Paragraph 4(c)(ii) shall be increased by Employee’s estimated federal and state
income tax liability on such payment, based on the highest applicable marginal
federal and state income tax rates, so that the after-tax amount available to
Employee equals the amount of the payment due hereunder.  This provision shall not obligate Company
(or COBZ) to continue unchanged any employee benefit plan that it would
otherwise amend or discontinue and Employee’s right to participate in such
plans is subject to the Company’s or (COBZ’s) absolute right to amend or
discontinue any plan at any time. 
Employee’s right to participate in Company’s plans hereunder shall
terminate at such time as reasonably equivalent coverage becomes available to
Employee from a subsequent employer.


 


(iii)          Except as provided in Paragraph
4(c)(ii), Company will be obligated to make all payments that become due to
Employee under this Paragraph 4(c) whether or not he obtains other employment
following termination.


 


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(iv)          Company may elect to defer any
payments that may become due to Employee under this Paragraph 4 ( c) if, at the
time the payments become due, Company or the Bank is not in compliance with any
regulatory-mandated minimum capital requirements or if making the payments
would cause Company’s or the Bank’s capital to fall below such minimum capital
requirements.  In this event, Company
will resume making the payments as soon as it can do so without violating such
minimum capital requirements.


 


(v)           Notwithstanding any other provision
of this Agreement, the obligation of the Company to make any payment under this
Paragraph 4(c) is subject to the express condition that Employee shall execute
an agreement waiving and releasing any and all legal and equitable claims
(under statute, regulation or common law) against the Company, its subsidiaries
and affiliated businesses, and their respective directors, officers, employees,
agents or attorneys, and their respective buyers, successors, heirs and
assigns, in form and content acceptable to the Company, pursuant to legal
procedures to make the agreement fully and completely enforceable as to the
waiver and release of all such claims. 
If the Employee does not execute an agreement and follow legal
procedures as required by this Paragraph 4(c)(v), the Company shall have no
obligation to pay any amount under this Paragraph 4(c).


 


5.             SALE OR REORGANIZATION OF COMPANY. This Agreement
shall not restrict the sale, transfer, consolidation, liquidation,
reorganization or disposition of the assets of Company.


 


6.             RESTRICTIVE COVENANT.  It is mutually recognized and agreed that the services to be
rendered pursuant to this Agreement by Employee are special, unique and of
extraordinary character.  Therefore, as
a condition to Company’s obligations hereunder, Employee agrees that without
Company’s prior written consent, during the term of this Agreement and for a
period ending on the fourth anniversary of the date of termination of his
employment hereunder, regardless of cause, he will not in any manner, directly
or indirectly, solicit or induce any employee or agent of Company or COBZ to
terminate employment with Company or COBZ, as the case may be, or solicit or
induce any customer of Company or COBZ to become a customer of any person,
firm, partnership, corporation, trust or other entity that owns, controls or is
a bank, savings and loan association, credit union or similar financial
institution.  Furthermore, Employee will
at no time during or subsequent to the term of his employment by Company make
any statements or take any actions which could reasonably be expected to damage
the reputation or business of Company or COBZ. 
It is further recognized and agreed that irreparable injury will result
to Company or COBZ, its businesses and property in the event of a breach of
this covenant by Employee, that damages covered by such breach would be
difficult if not impossible to ascertain, and that any remedy at law for any
breach by Employee of this covenant will be inadequate, and Company or COBZ
shall be entitled to temporary and permanent injunctive relief without the
necessity of proving actual damage to Company or COBZ by reason of any such
breach.  In addition, in the event of a
breach of this covenant by Employee, Company or COBZ shall also be entitled to
recover reasonable costs and attorneys’ fees incurred in connection with the
enforcement of its rights hereunder. 
Whenever used herein, Company shall be deemed to include any successors
or any other person or entity which may hereafter acquire the business of
Company or COBZ.  The foregoing
notwithstanding, should the assets of


 


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Company he disposed of in such a manner that no purchaser thereof has
acquired a going business, then Employee shall not be bound by the covenants
expressed in this paragraph.


 


7.             TRADE SECRETS AND CONFIDENTIAL
INFORMATION.  Employee hereby
covenants and agrees that he will not, except as may be required in connection
with his employment under this Agreement, directly or indirectly, use or
disclose to any other person, firm or corporation, whether during or subsequent
to the term of his employment by Company, irrespective of the time, manner or
cause of the termination of his employment, any information of a proprietary or
confidential nature belonging to Company, or which could be reasonably expected
to have an adverse effect on Company, its businesses, property or financial
condition, including but not limited to records, data, documents, processes,
specifications, methods of operation, techniques and know-how, plans, policies,
customer lists, the names and addresses of suppliers or representatives, investigations
or other matters of any kind or description relating to the products, services,
suppliers, customers, sales or businesses of Company.  All records, files, documents, equipment and the like relating to
Company’s businesses which Employee shall prepare, use or observe shall be and
remain the sole property of Company, and upon termination of this Agreement or
his employment hereunder for any reason, Employee shall return to the
possession of Company any items of that nature and any copies thereof which he
may have in his possession.


 


8.             INDEMNITY.


 


(a)           Indemnification.  Company will indemnify Employee (and, upon
his death, his heirs, executors and administrators) to the fullest extent
permitted by law against all expenses, including reasonable attorneys’ fees,
court and investigative costs, judgments, fines and amounts paid in settlement
(collectively, “Expenses”) reasonably incurred by him in connection with or
arising out of any pending, threatened or completed action, suit or proceeding
in which he may become involved by reason of his having been an officer of
Company.  The indemnification rights
provided for herein are not exclusive and will supplement any rights to
indemnification that Employee may have under any applicable bylaw or charter
provision of Company, or any resolution of Company, or any applicable statute.


 


(b)           Advancement of Expenses. In
the event that Employee becomes a party, or is threatened to be made a party,
to any pending, threatened or completed action, suit or proceeding for which
Company is permitted or required to indemnify him under this Agreement, any
applicable bylaw or charter provision of Company, any resolution of Company, or
any applicable statute, Company will, to the fullest extent permitted by law,
advance all Expenses incurred by Employee in connection with the investigation,
defense, settlement or appeal of any threatened, pending or completed action,
suit or proceeding, subject to receipt by Company of a written undertaking from
Employee to reimburse Company for all Expenses actually paid by Company to or
on behalf of Employee in the event it shall be ultimately determined that
Company cannot lawfully indemnify Employee for such Expenses, and to assign to
Company all rights of Employee to indemnification under any policy of
directors, and officers, liability insurance to the extent of the amount of
Expenses actually paid by Company to or on behalf of Employee.


 


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(c)           Litigation.  Unless precluded by an actual or potential
conflict of interest, Company will have the right to control the defense of any
claim covered by this Section 8, using counsel selected by Company and
reasonably satisfactory to Employee.  In
the event that a conflict of interest prevents Company from defending the
claim, Employee shall do so at Company’s expense with counsel reasonably
satisfactory to Company, but Company shall be entitled to participate in the
defense.  Company shall not settle any
claim defended by it unless the settlement includes an unconditional release of
Employee from liability thereon or unless Employee consents to the settlement,
which consent shall not be unreasonably withheld or delayed.  Employee shall not settle any claim defended
by Employee without the consent of Company, which consent shall not be
unreasonably withheld or delayed.  If
Company wishes to accept any settlement offer with respect to a claim and
Employee refuses to consent, Company shall not be obligated to indemnify Employee
beyond the amount of the settlement so offered.  Each party shall promptly notify the other party of, and at all
times keep the other informed with respect to, any claim covered by this
Section 8.


 


9.             APPOINTMENT
AS A DIRECTOR OF COBZ. Upon the execution of this Agreement, Employee has been
appointed as a director of COBZ in the class of directors whose term expires at
the 2001 annual meeting of COBZ’s shareholders.  At that annual meeting, COBZ agrees to nominate Employee for
re-election as a director to serve a term of three years, whether or not this
Agreement has previously been terminated. 
If Company is unable to provide medical and dental insurance to Employee
during any period that is it is required to do so under Paragraph 4(c), and if
Employee is then a director of COBZ, COBZ will provide such insurance to
Employee in his capacity as a director, to the extent permissible under its
insurance plans as then in effect.  COBZ
shall have no liability to Employee if he is not re-elected at the 2001 annual
meeting.  COBZ is a signatory to the
Agreement solely for the purposes of this Paragraph 9.


 


10.           ARBITRATION. Any disputes arising out
of this Agreement or connected with Employee’s employment shall be submitted by
Employee and Company to arbitration by the American Arbitration Association or
its successor, and the determination of the American Arbitration Association or
its successor shall be final and absolute; provided, however, that Company
shall be entitled to apply to any court of competent jurisdiction for temporary
or permanent injective relief or other equitable relief to enforce Paragraph 6
or 7..  The arbitrator shall be governed
by the duly promulgated rules and regulations of the American Arbitration
Association or its successor, and the pertinent provisions of the laws of the State
of Arizona relating to arbitration.  The
decision of the arbitrator may be entered as a judgment in any court of
competent jurisdiction.


 


11.           INTERPRETATION. This Agreement
shall be construed in accordance with the internal laws of the State of Arizona.  The titles of the paragraphs have been
inserted as a matter of convenience of reference only and shall not be
construed to control or affect the meaning or construction of this Agreement.


 


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12.           SEVERABILITY. In the event
that any portion of this Agreement is found to be in violation of or conflict
with any federal or state law, the parties agree that said portion shall be
modified only to the extent necessary to enable it to comply with such law.


 


13.           ASSIGNMENT. This Agreement
shall not be assignable by Employee, but shall be binding upon and inure to the
benefit of the successors and assigns of Company.


 


14.           NOTICES. All notices or other
communications in connection with this Agreement shall be in writing and shall
be deemed to have been duly given when delivered, sent by professional courier
or mailed first class, postage prepaid and addressed as follows:


 


(i)           If to Company, addressed to:


 


First Capital Bank
of Arizona


2700 North Central
Avenue


Phoenix, AZ  895004


Attn: Chairman of the
Board


 


with a copy to:


 


Colorado Business
Bankshares, Inc.


821 – 17th
Street


Denver, Colorado 80202


Attn:       Steven Bangert


 


(ii)          If to Employee, addressed to:


 


Harold F. Mosanko


23743 N. 113th
Way


Scottsdale,
AZ  85255


 


or such other address or addressed to the attention of
such other person or persons as either of the parties may notify the other in
accordance with the provisions of this paragraph.


 


15.           ENTIRE AGREEMENT.  This Agreement is the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof
and supersedes any and all prior and contemporaneous negotiations,
understandings and agreements with regard to the subject matter hereof, whether
oral or written.  No representation, inducement,
agreement, promise or understanding altering, modifying, taking from or adding
to the terms and conditions hereof shall have any force or effect unless the
same is in writing and validly executed by the parties hereto.


 


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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the day and year first above
written.


 


 


	
   

  	
  First Capital Bank of Arizona

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Print Name: 

  	
   

  	
   

  
	
   

  	
  Title: 

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Harold F. Mosanko

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Solely for the purposes of Paragraph 9:

  
	
   

  	
  Colorado Business Bankshares, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Steve Bangert

  
						



 


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