Exhibit 10(c)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into as of this 30th day of June, 1999, by and between Southern
Missouri Bank & Trust Co.(hereinafter referred to as the "Bank"),
and Xxxx Xxxxxxxx (the "Employee").
WHEREAS, the Employee is currently serving as President and
Chief Executive Officer of the Bank and the Chief Financial
Officer of Southern Missouri Bancorp, Inc., the parent company of
the Bank (the "Holding Company"); and
WHEREAS, the board of directors of the Bank ("Board of
Directors") recognizes that, as is the case with publicly held
corporations generally, the possibility of a change in control of
the Holding Company and/or the Bank may exist and that such
possibility, and the uncertainty and questions which it may raise
among management, may result in the departure or distraction of
key management personnel to the detriment of the Bank, the
Holding Company and their respective stockholders; and
WHEREAS, the Board of Directors believes it is in the best
interests of the Bank to enter into this Agreement with the
Employee in order to assure continuity of management of the Bank
and to reinforce and encourage the continued attention and
dedication of the Employee to the Employee's assigned duties
without distraction in the face of potentially disruptive
circumstances arising from the possibility of a change in control
of the Holding Company or the Bank, although no such change is
now contemplated; and
WHEREAS, the Board of Directors has approved and authorized
the execution of this Agreement with the Employee to take effect
as stated in Section 2 hereof;
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein, it is
AGREED as follows:
1. Definitions.
(a) The term "Change in Control" means (1) an event of
a nature that (i) results in a change in control of the Bank or
the Holding Company within the meaning of the Home Owners' Loan
Act of 1933 with respect to the Holding Company, or successor
statutes and regulations, and the Change in Bank Control Act, 12
U.S.C. 1817(j) and applicable regulations thereunder; or (ii)
would be required to be reported in response to Item 1 of the
current report on Form 8-K, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Securities Exchange Act of
0000 (xxx "Xxxxxxxx Xxx"); (2) any person (as the term is used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly of securities of the Bank or the
Holding Company representing 20% or more of the Bank's or the
Holding Company's outstanding securities; (3) individuals who are
members of the board of directors of the Bank or the Holding
Company on the date hereof (the "Incumbent Board") cease for any
reason to constitute at least a majority thereof, provided that
any person becoming a director subsequent to the date hereof
whose election was approved by a vote of at least three-quarters
of the directors comprising the Incumbent Board, or whose
nomination for election by the Holding Company's stockholders was
approved by the nominating committee serving under an Incumbent
Board, shall be considered a member of the Incumbent Board; or
(4) approval by the Holding Company's stockholders of a plan of
reorganization, merger or consolidation of the Bank or the
Holding Company, sale of all or substantially all of the assets
of the Bank or the Holding Company, a similar transaction in
which the Bank or the Holding Company is not the resulting
entity, or a transaction at the completion of which the former
stockholders of the acquired corporation become the holders of
more than 40% of the outstanding common stock of the Holding
Company and the Holding Company is the resulting entity of such
transaction; provided that the term "change in control" shall not
include an acquisition of securities by an employee benefit plan
of the Bank or the Holding Company. In the application of
regulations under the Change in Bank Control Act, determinations
to be made by the applicable federal banking regulator shall be
made by the Board of Directors.
(b) The term "Commencement Date" means the date of
this Agreement, as set forth on page 1.
(c) The term "Date of Termination" means the earlier
of (1) the date upon which the Bank gives notice to the Employee
of the termination of the Employee's employment with the Bank or
(2) the date upon which the Employee ceases to serve as an
employee of the Bank.
(d) The term "Involuntary Termination" means
termination of the employment of Employee without the Employee's
express written consent, and shall include a material diminution
of or interference with the Employee's duties, responsibilities
and benefits as President and Chief Executive Officer of the
Bank, including (without limitation) any of the following actions
unless consented to in writing by the Employee: (1) a change in
the principal workplace of the Employee to a location outside of
a 30 mile radius from the Bank's headquarters office as of the
date hereof; (2) a material demotion of the Employee; (3) a
material reduction in the number or seniority of other Bank
personnel reporting to the Employee or a material reduction in
the frequency with which, or in the nature of the matters with
respect to which, such personnel are to report to the Employee,
other than as part of a Bank- or Holding Company-wide reduction
in staff; (4) a material adverse change in the Employee's salary,
perquisites, benefits, contingent benefits or vacation, other
than as part of an overall program applied uniformly and with
equitable effect to all members of the senior management of the
Bank or the Holding Company; and (5) a material permanent
increase in the required hours of work or the workload of the
Employee. The term "Involuntary Termination" does not include
Termination for Cause or termination of employment due to
retirement, death, disability or suspension or temporary or
permanent prohibition from participation in the conduct of the
Bank's affairs under Section 8 of the Federal Deposit Insurance
Act ("FDIA").
(e) The terms "Termination for Cause" and "Terminated
for Cause" mean termination of the employment of the Employee
because of the Employee's personal dishonesty, incompetence,
willful misconduct, breach of a fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful
violation of any law, rule, or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order,
or material breach of any provision of this Agreement. The
Employee shall not be deemed to have been Terminated for Cause
unless and until there shall have been delivered to the Employee
a copy of a resolution, duly adopted by the affirmative vote of
not less than a majority of the entire membership of the Board of
Directors at a meeting of the Board called and held for such
purpose (after reasonable notice to the Employee and an
opportunity for the Employee, together with the Employee's
counsel, to be heard before the Board), stating that in the good
faith opinion of the Board the Employee has engaged in conduct
described in the preceding sentence and specifying the
particulars thereof in detail.
2. Term. The term of this Agreement shall be a period of
one year commencing on the Commencement Date, subject to earlier
termination as provided herein. Beginning on the first
anniversary of the Commencement Date, and on each anniversary
thereafter, the term of this Agreement shall be extended for a
period of one year, provided that (1) the Bank has not given
notice to the Employee in writing at least 90 days prior to such
anniversary that the term of this Agreement shall not be extended
further; and (2) prior to such anniversary, the Board of
Directors of the Bank explicitly reviews and approves the
extension. Reference herein to the term of this Agreement shall
refer to both such initial term and such extended terms.
3. Employment. The Employee is employed as President and
Chief Executive Officer of the Bank. As such, the Employee shall
render administrative and management services as are customarily
performed by persons situated in similar executive capacities,
and shall have such other powers and duties of an officer of the
Bank as the Board of Directors may prescribe from time to time.
4. Compensation.
(a) Salary. The Bank agrees to pay the Employee
during the term of this Agreement the salary established by the
Board of Directors, which shall be at least the Employee's salary
in effect as of the Commencement Date. The amount of the
Employee's salary shall be reviewed by the Board of Directors,
beginning not later than the first anniversary of the
Commencement Date. Adjustments in salary or other compensation
shall not limit or reduce any other obligation of the Bank under
this Agreement. The Employee's salary in effect from time to
time during the term of this Agreement shall not thereafter be
reduced.
(b) Discretionary Bonuses. The Employee shall be
entitled to participate in an equitable manner with all other
executive officers of the Bank in discretionary bonuses as
authorized and declared by the Board of Directors to its
executive employees. No other compensation provided for in this
Agreement shall be deemed a substitute for the Employee's right
to participate in such bonuses when and as declared by the Board
of Directors.
(c) Expenses. The Employee shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred
by the Employee in performing services under this Agreement in
accordance with the policies and procedures applicable to the
executive officers of the Bank, provided that the Employee
accounts for such expenses as required under such policies and
procedures.
5. Benefits.
(a) Participation in Retirement and Employee Benefit
Plans. The Employee shall be entitled to participate in all
plans relating to pension, thrift, profit-sharing, group life
insurance, medical and dental coverage, education, cash bonuses,
and other retirement or employee benefits or combinations
thereof, in which the Bank's executive officers participate.
(b) Fringe Benefits. The Employee shall be eligible
to participate in, and receive benefits under, any fringe benefit
plans which are or may become applicable to the Bank's executive
officers.
6. Vacations; Leave. The Employee shall be entitled to
annual paid vacation in accordance with the policies established
by the Bank's Board of Directors for executive officers and to
voluntary leave of absence, with or without pay, from time to
time at such times and upon such conditions as the Board of
Directors may determine in its discretion.
7. Termination of Employment.
(a) Involuntary Termination. The Board of Directors
may terminate the Employee's employment at any time, but, except
in the case of Termination for Cause, termination of employment
shall not prejudice the Employee's right to compensation or other
benefits under this Agreement. In the event of the Involuntary
Termination of the Employee, if the Employee has offered to
continue to provide the specific services contemplated to be
provided by him pursuant to this Agreement and such offer has
been declined, then, as agreed upon liquidated damages and as the
sole and exclusive remedy of the Employee against the Bank under
this Agreement, but subject to the provisions of Section 7(b) and
(e) of this Agreement; during the period of the remaining term of
this Agreement (the "Liquidated Damage Period") the Bank shall
(i) pay to the Employee, monthly, one-twelfth of the employee's
salary at the annual rate in effect immediately prior to the Date
of Termination, and one-twelfth of the average annual amount of
cash bonus and cash incentive compensation of the Employee, based
on the average amounts of such compensation earned by the
Employee for the two full calendar years preceding the Date of
Termination and (ii) maintain substantially the same group life
insurance, hospitalization, medical, dental, prescription drug
and other health benefits, and long-term disability insurance (if
any) for the benefit of the Employee and his dependents and
beneficiaries who would have been eligible for such benefits if
the Employee had not suffered Involuntary Termination, on terms
substantially as favorable to the Employee including amounts of
coverage and deductibles and other costs to him in effect
immediately prior to such Involuntary Termination (the
"Employee's Health Coverage").
(b) Reduction of the Bank's Obligations Under Section
7(a).
(1) In the event the Employee becomes entitled to
receive a change in control payment pursuant to Section 7(e)
hereof and agreed upon liquidated damages pursuant to Section
7(a) hereof, then in that event (i) the Bank's obligation with
respect to cash damages under Section 7(a) hereof shall be
reduced (but not below zero) by the Employee's Cash Income (as
hereinafter defined), if any, earned from providing personal
services (other than to the Holding Company, the Bank or their
successors) during the Liquidated Damage Period; and (ii) the
Bank's obligation to maintain the Employee's Health Coverage
under Section 7(a) shall be reduced to the extent, if any, that
the Employee receives such benefits, on no less favorable terms,
from another employer during the Liquidated Damage Period. For
purposes hereof "Cash Income" means amounts of salary, wages,
bonuses, incentive compensation and fees paid to the Employee in
cash. To the extent the provisions of this Section 7(b)(1) are
applicable and an overpayment has been made to the Employee as of
the expiration of Liquidated Damage Period, the Employee shall
reimburse the Bank in an amount equal to the after tax benefit
realized by the Employee from such overpayment.
(2) The Employee agrees that in the event he
becomes entitled to a change in control payment under Section
7(e) hereof and agreed upon liquidated damages pursuant to
Section 7(a) hereof, throughout the Liquidated Damage Period, he
shall promptly inform the Bank of the nature and amounts of Cash
Income which he earns and the type of health benefits and
coverage he receives from providing services other than to the
Holding Company, the Bank or their successors, and shall provide
such documentation of such Cash Income and health benefits and
coverage as the Bank may request. In the event of changes to
such Cash Income or health benefits and coverage from time to
time during the Liquidated Damage Period, the Employee shall
inform the Bank of such changes, in each case within five days
after the change occurs, and shall provide such documentation
concerning the change as the Company may request.
(c) Termination for Cause. In the event of
Termination for Cause, the Bank shall pay the Employee the
Employee's salary through the Date of Termination, and the Bank
shall have no further obligation to the Employee under this
Agreement.
(d) Voluntary Termination. The Employee's employment
may be voluntarily terminated by the Employee at any time upon 90
days' written notice to the Bank or such shorter period as may be
agreed upon between the Employee and the Board of Directors of
the Bank. In the event of such voluntary termination, the Bank
shall be obligated to continue to pay to the Employee the
Employee's salary and benefits only through the Date of
Termination, at the time such payments are due, and the Bank
shall have no further obligation to the Employee under this
Agreement.
(e) Change in Control. In the event of Involuntary
Termination in connection with or within 12 months before or
after a Change in Control, the Bank shall, in addition to the
Bank's obligations under Section 7(a) of this Agreement and
subject to Section 8 of this Agreement, pay to the Employee in a
lump sum in cash within 25 business days after the Date of
Termination an amount equal to 299% of the Employee's "base
amount" as defined in Section 280G of the Internal Revenue Code
of 1986, as amended (the "Code"). The rights of the Employee
under this Section 7(e) shall survive a termination of this
Agreement.
(f) Death; Disability. In the event of the death of
the Employee while employed under this Agreement and prior to any
termination of employment, the Employee's estate, or such person
as the Employee may have previously designated in writing, shall
be entitled to receive from the Bank the salary of the Employee
through the last day of the calendar month in which the Employee
died. If the Employee becomes disabled as defined in the Bank's
then current disability plan, if any, or if the Employee is
otherwise unable to serve as President and Chief Executive
Officer, the Employee shall be entitled to receive group and
other disability income benefits of the type, if any, then
provided by the Bank for executive officers.
8. Certain Reduction of Payments by the Bank.
(a) Notwithstanding any other provision of this
Agreement, if the value and amounts of benefits under this
Agreement, together with any other amounts and the value of
benefits received or to be received by the Employee in connection
with a Change in Control would cause any amount to be
nondeductible by the Bank or the Holding Company for federal
income tax purposes pursuant to Section 280G of the Code, then
amounts and benefits under this Agreement shall be reduced (not
less than zero) to the extent necessary so as to maximize amounts
and the value of benefits to the Employee without causing any
amount to become nondeductible by the Bank or the Holding Company
pursuant to or by reason of such Section 280G. The Employee
shall determine the allocation of such reduction among payments
and benefits to the Employee.
(b) Any payments made to the Employee pursuant to this
Agreement, or otherwise, are subject to and conditioned upon
their compliance with 12 U.S.C. 1828(k) and any regulations
promulgated thereunder.
9. Attorneys Fees. In the event the Bank exercises its
right of Termination for Cause, but it is determined by a court
of competent jurisdiction or by an arbitrator pursuant to
Section 17 that cause did not exist for such termination, or if
in any event it is determined by any such court or arbitrator
that the Bank has failed to make timely payment of any amounts
owed to the Employee under this Agreement, the Employee shall be
entitled to reimbursement for all reasonable costs, including
attorneys' fees, incurred in challenging such termination or
collecting such amounts. Such reimbursement shall be in addition
to all rights to which the Employee is otherwise entitled under
this Agreement.
10. No Assignments.
(a) This Agreement is personal to each of the parties
hereto, and neither party may assign or delegate any of its
rights or obligations hereunder without first obtaining the
written consent of the other party; provided, however, that the
Bank shall require any successor or assign (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all
or substantially all of the business and/or assets of the Bank,
by an assumption agreement in form and substance satisfactory to
the Employee, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Bank
would be required to perform it if no such succession or
assignment had taken place. Failure of the Bank to obtain such
an assumption agreement prior to the effectiveness of any such
succession or assignment shall be a breach of this Agreement and
shall entitle the Employee to compensation from the Bank in the
same amount and on the same terms as the compensation pursuant to
Section 7(e) hereof. For purposes of implementing the provisions
of this Section 10(a), the date on which any such succession
becomes effective shall be deemed the Date of Termination.
(b) This Agreement and all rights of the Employee
hereunder shall inure to the benefit of and be enforceable by the
Employee's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If the Employee should die while any amounts would
still be payable to the Employee hereunder if the Employee had
continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this
Agreement to the Employee's devisee, legatee or other designee or
if there is no such designee, to the Employee's estate.
11. Notice. For the purposes of this Agreement, notices
and all other communications provided for in the Agreement shall
be in writing and shall be deemed to have been duly given when
personally delivered or sent by certified mail, return receipt
requested, postage prepaid, to the Bank at its home office, to
the attention of the Board of Directors with a copy to the
Secretary of the Bank, or, if to the Employee, to such home or
other address as the Employee has most recently provided in
writing to the Bank.
12. Amendments. No amendments or additions to this
Agreement shall be binding unless in writing and signed by both
parties, except as herein otherwise provided.
13. Headings. The headings used in this Agreement are
included solely for convenience and shall not affect, or be used
in connection with, the interpretation of this Agreement.
14. Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any
provision shall not affect the validity or enforceability of the
other provisions hereof.
15. Governing Law. This Agreement shall be governed by the
laws of the United States to the extent applicable and otherwise
by the laws of the State of Missouri.
16. Arbitration. Any dispute or controversy arising under
or in connection with this Agreement shall be settled exclusively
by arbitration in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered
on the arbitrator's award in any court having jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION
WHICH MAY BE ENFORCED BY THE PARTIES.
Attest: SOUTHERN MISSOURI BANK & TRUST C0.
/s/ Xxxxxx X. Xxxxx /s/Xxxxxxx X. Xxxxxx
Secretary By: Xxxxxxx X. Xxxxxx
Its: Chairman
Employee
/s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
