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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
BETWEEN
TEAM FINANCIAL, INC.
AND
XXXXXXX X. XXXXXX
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TABLE OF CONTENTS
Section Page No.
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1. Term of Agreement and Definitions....................................................................... 1
2. Entire Agreement........................................................................................ 2
3. Validity............................................................................................... 2
4. Paragraphs and other headings............................................................................2
5. Successors...............................................................................................2
6. Designation of beneficiaries.............................................................................2
7. Duties...................................................................................................3
8. Salary, Bonus, Benefits, Additional Compensation.........................................................3
9. Protection of Company's Interests........................................................................5
10. Termination by Company...................................................................................5
11. Termination by Executive.................................................................................8
12. Consequences of Breach..................................................................................10
13. Mitigation and Offset...................................................................................10
14. Tax "Gross-Up" Provision.............................................................................. 10
15. Remedies................................................................................................10
16. Binding Agreement.......................................................................................10
17. Arbitration.............................................................................................11
18. Amendment; Waiver.......................................................................................11
19. Governing Law...........................................................................................11
20. Notices.................................................................................................11
Signatures.......................................................................................................12
(i)
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EMPLOYMENT AGREEMENT
BETWEEN
TEAM FINANCIAL, INC.
AND
XXXXXXX X. XXXXXX
This Agreement is made this 1st day of January, 1998, between Team Financial,
Inc., a Kansas corporation ("COMPANY") and Xxxxxxx X. Xxxxxx ("EXECUTIVE").
A. Executive is employed as President Acquisitions and Investments, has
rendered valuable services to Company and has acquired an extensive
background in and knowledge of Company's business.
B. Company desires to continue the services of Executive and Executive
desires to continue to serve Company as President Acquisitions and
Investments.
In consideration of the foregoing recitals and the agreements set forth
herein, Company and Executive agree as follows:
1. TERM OF AGREEMENT AND DEFINITIONS:
1.0 TERM OF AGREEMENT: Company shall employ Executive and Executive
accepts such employment for a period beginning on the date of this
Agreement and ending the 31st day of December, 2000, subject to the
terms and condition set forth herein, unless earlier termination of the
agreement shall occur in accordance with the subsequent provisions set
forth herein.
1.1 AUTOMATIC EXTENSION OF AGREEMENT TERM: Not withstanding the
foregoing, if this Agreement shall not have been terminated in
accordance with the provisions herein on or by the 31st day of
December, 2000; the term of this Agreement shall be extended
automatically without further action by either party such that at every
moment of time thereafter, the term shall be one year.
Provided, however, during such period of automatic extension of the
term, this Agreement may be terminated in accordance with the
termination provisions of this Agreement as set forth in Sections 10
and 11.
1.2 DEFINITIONS: The following definitions shall be used in the
interpretation of this Agreement.
1.2.1 EMPLOYMENT ON AN ACTIVE FULL TIME BASIS means the Executive's
professional services shall be substantially devoted to Company.
Although prior approval by the Company of Executive's employment by
third parties is not required, the Company shall have the right to
review any employment of Executive by any entity and shall have the
right to require Executive to abandon any unsuitable employment as may
be determined by Company or any activities competitive with Company.
The term "active full time basis" includes the requirement that
Executive refrain from any activities which interfere with Executive's
Company duties.
1.2.2 YEAR, MONTH, WEEK AND DAY, unless otherwise provided in this
agreement, the word "year" shall be construed to mean a calendar year
of 365 days, the word "month" shall be construed to mean a calendar
month, the word "week" shall be construed to mean a calendar week of 7
days, and the word "day" shall be construed to mean a period of 24
hours running from midnight to midnight.
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1.2.3 ANNUAL BASE SALARY is the sum of money regularly paid by Company
to Executive each year of the term of this Agreement pursuant to
provisions of Section 8.0 of this Agreement.
1.2.4 CUSTOMARY PAYROLL PRACTICES are those policies and procedures
routinely followed by the Company concerning the time and method of
payment of compensation to its employees as may from time to time be
adopted by the Company during course of this Agreement.
1.2.5 COMPANY POLICIES are those written policies adopted by the
Company and/or customary practices routinely followed by the Company
which may from time to time be adopted by the Company during the course
of the Agreement. The parties acknowledge the Company may from time to
time reasonably enact new policies or alter existing policies.
1.2.6 ORGANIZATION as used herein shall be broadly defined to include
any business, civic or community group or entity.
1.2.7 WILLFUL MISCONDUCT is any act performed with a designed purpose
or intent on the part of a person to do wrong.
1.2.8 GROSS MISAPPROPRIATION OF FUNDS shall be any misappropriation of
company funds by any means which is intentional and not of an
inconsequential nature or amount.
2. ENTIRE AGREEMENT
2.0 With respect to the matters specified herein, this Agreement
contains the entire agreement between the parties and supersedes all
prior oral and written agreements, understandings and commitments
between the parties. This Agreement shall not affect the provisions of
any other compensation, retirement or other benefit programs of Company
to which Executive is a party or of which he is a beneficiary.
3. VALIDITY
3.0 In the event that any provision of this Agreement is held to be
invalid, void or unenforceable, the same shall not affect, in any
respect whatsoever, the validity of any other provision of the
Agreement.
4. PARAGRAPHS AND OTHER HEADINGS
4.0 Paragraphs and other headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
5. SUCCESSORS
5.0 The rights and duties of a party hereunder shall not be assignable
by that party; provided, however, that this Agreement shall be binding
upon and inure to the benefit of any successor of Company, and any such
successor shall be deemed substituted for Company under the terms of
this Agreement. The term "successor" as used herein shall include any
person, firm, corporation or other business entity which at any time,
by merger, purchase or otherwise, acquires all or substantially all of
the assets or business of Company.
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6. DESIGNATION OF BENEFICIARIES
6.0 If Executive should die during the term of this Agreement, all such
sums due to Executive hereunder shall be paid as designated by
Executive on the attached Beneficiary Designation Form.
6.1 The spouse of the Executive shall join in any designation of a
beneficiary other than the spouse.
6.2 If Executive wholly fails to designate a beneficiary as provided
for in this paragraph, or if the Executive's spouse at the time of his
death shall not have joined in the designation of a beneficiary, then
the sums due Executive shall be paid to his estate.
7. DUTIES
7.0 Company employs Executive upon an active full-time basis, as
President Acquisitions and Investments subject to the order and
direction of the Chief Executive Officer ("CEO") of Company.
7.1 During the term of this Agreement Executive shall devote
substantially all of his time, attention, and best efforts to the
business of Company and its subsidiaries. Executive shall perform such
duties and shall exercise such power and authority as delegated by the
CEO from time to time provided that such duties are commensurate with
the position of President Acquisitions and Investments. Executive may
engage in other non-business activities such as charitable,
educational, religious and similar types of activities so long as such
activities do not prevent the performance of Executive's duties herein
or conflict in any material way with the business of Company.
Notwithstanding the above, Executive shall be permitted to serve as a
Director or Trustee of other organizations, in accordance with the
policies of Company.
7.2 The duties of President Acquisitions and Investments shall be
defined using a written job definition, developed by CEO on behalf of
Company. The CEO shall consult with Executive in the development of the
written job definition. Executive and said written job definition shall
be subject to any systematic evaluation system(s) that the Company may
from time to time employ.
7.3 Executive's duties shall be performed principally at Company's
headquarters located in Paola, Kansas. During the term of the
Agreement, it is understood that Company expects to maintain its
principal place of business in Paola, Kansas.
8. SALARY, BONUS, BENEFITS, ADDITIONAL COMPENSATION
8.0 ANNUAL BASE SALARY.
Executive shall receive an annual base salary of $128,400.00 payable
according to the customary payroll practices of Company and subject to
all required withholding taxes. The Chief Executive Officer, in his
discretion, may increase this base salary upon relevant circumstances.
Executive will be reviewed at least annually. At least every two years
Company will review Executive's annual base salary for competitiveness
and appropriateness in the industry. Any increase in annual base salary
awarded to the Executive by the Company, shall constitute a new annual
base salary for the purpose of this Agreement. To be effective such
changes in the annual base salary shall be in writing signed by the
Company.
8.1 BONUS.
8.1.1 STANDARD COMPANY BONUSES. Executive shall be eligible to receive,
in addition to his salary, any contributions or sums specified as
additional compensation through any established plan or policy of the
Company which is available to senior executives as compensation over
and above established salaries.
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8.1.2 ANNUAL EXECUTIVE BONUS. In addition, Executive shall be entitled
to receive a yearly annual bonus. The amount of such bonus shall be
based upon criteria established by the CEO and may include either or
both stock and cash. Provided, however, such bonus shall not exceed
fifty percent (50%) of Executive's annual base salary in effect for the
period for which the bonus is granted. During the term of this
Agreement, the yearly annual bonus shall be paid not later than January
31 of the calendar year following annual bonus year.
8.2 BENEFITS.
8.2.0 Executive shall be entitled to receive all benefits generally
made available to executives of Company as may from time to time be in
effect.
8.2.1 Executive shall be entitled, in addition to life insurance
coverage in effect for all employees, to a life insurance policy in the
amount of $240,000.00 all premiums to be paid by Company.
8.2.2 Executive shall be entitled to participate, during the term of
the Agreement, under the terms and conditions thereof, in any group
life, medical, dental or other health and welfare plans generally
available to management personnel of Company which may be in effect
from time to time; provided that nothing herein shall require the
Company to establish or maintain such plans.
8.2.3 EXECUTIVE EXPENSES. Executive shall be entitled to reimbursement
for business expenses. Executive shall be expected to incur various
business expenses customarily incurred by persons holding like
positions, including but not limited to traveling, entertainment and
similar expenses, all of which are to be incurred by Executive for the
benefit of Company. Executive shall be subject to Company's policies
regarding the reimbursement and non-reimbursement of said expense.
Executive acknowledges that Company policies do not necessarily provide
for the reimbursement of all expenses.
8.2.4 SPECIAL EXECUTIVE ALLOWANCE. Company agrees to pay reasonable
room, board, travel, and sponsored event expenses of Executive's spouse
on two (2) business trips per year of Executive's choice. 8.2.5
ACCOUNTING. Executive shall account to Company for any reimbursement or
payment of such expenses in such a manner as Company practices may from
time to time require. Subject to Company's policy regarding the payment
of reimbursable expenses, Company shall reimburse Executive for such
expenses from time to time, at Executive's request.
8.2.6 Company shall indemnify and hold Executive harmless for any legal
fees and expenses incurred by Executive in the performance of his
duties as a result of civil or criminal actions against him in
accordance with the indemnification provisions of the Articles of
Incorporation and Bylaws of Company.
8.2.7 During (i) the term of this Agreement, (ii) the twelve month
period following the termination of this Agreement as a result of
death, (iii) a two year period following the termination of this
Agreement as a result of disability, (iv) a three year period following
termination of this Agreement by Executive for material breach or good
cause, and (v) a three year period following a termination of this
Agreement by Company without cause; Company shall pay to Executive, or
his estate if he be deceased, a sum as reimbursement for reasonable
out-of-pocket expenses incurred for third-party professional financial
and tax advice provided by a licensed professional of Executive's
choice. Provided, however, that in (i) above, the sum shall not exceed
fifteen percent (15%) of Executive's annual base salary for that year;
(ii) above, the sum shall not exceed twenty-five percent (25%) of
Executive's annual base salary for that year; (iii), (iv) and (v)
above, the sum shall not exceed twenty-five percent (25%), each year,
of Executive's annual base salary at the time of Executive's disability
or time of termination.
8.2.8 Executive shall be provided with a personal automobile under
arrangements equivalent to those
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currently in effect with respect to other Company executives and of
equivalent size and features as presently driving.
8.3 ADDITIONAL COMPENSATION.
Executive shall be eligible to receive, in addition to his salary, any
contributions or sums specified for additional compensation through any
established plan or policy of Company which is available to senior
executives as compensation over and above established salaries,
including but not limited to stock options.
8.4 TAX LIABILITY.
Any tax liability which these benefits create for Executive will be the
sole responsibility of Executive.
9. PROTECTION OF COMPANY'S INTERESTS
9.0 During the term of this Agreement Executive shall not directly or
indirectly engage in competition with, or not own any interest in any
business which competes with, any business of Company; provided,
however, that the provisions of this Section 9 shall not prohibit his
ownership of not more than 5% of voting stock of any publicly held
corporation.
9.1 Except for actions taken in the course of his employment hereunder,
at no time shall Executive divulge, furnish or make accessible to any
person any information of a confidential or proprietary nature obtained
by him while in the employ of Company. Upon termination of his
employment by Company, Executive shall return to Company all such
information which exists in writing or other physical form and all
copies thereof in his possession or under his control.
9.2 Company, its successors and assigns, shall, in addition to
Executive's services, be entitled to receive and own all of the results
and proceeds of said services (including, without limitation, literary
material and other intellectual property) produced or created during
the term of Executive's employment hereunder. Executive will, at the
request of Company, execute such assignments, certificates or other
instruments as Company may from time to time deem necessary or
desirable to evidence, establish, maintain, protect, enforce or defend
its right or title to any such material.
10. TERMINATION BY COMPANY
10.0 Company shall have the right to terminate this Agreement under
the following circumstances:
(i) Upon the death of Executive;
(ii) Upon the disability of Executive;
(iii) Upon material breach or good cause; and
(iv) Upon written notice by Company without cause.
(v) Upon written notice by Company, during the period of
automatic extension of the term, of Company's
intention to have this Agreement expire in one year.
10.1 If executive dies before his employment with Company is otherwise
terminated, Company shall pay to the designated beneficiary of
Executive, or in the absence of a designated beneficiary, to the estate
of the Executive, at the time of his death, the sum of $500,000.00.
Company may purchase life insurance to cover all or any part of its
obligations contained in this paragraph and Executive agrees to take a
physical examination to facilitate the placement of such insurance. In
the event that Executive is uninsurable, Company may elect to disperse
the funds due in equal monthly payments over the remaining period of
the year of Executive's death, or if less than six (6) months, over a
period of twelve (12) consecutive months.
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Executive's dependents will also be entitled to:
(i) All Company insured and self insured medical and dental
plans in which Executive was participating immediately prior
to termination,
provided, however, that if Company so elects, or such continued
participation is not possible under the general terms and conditions of
such plans or under such policies, Company shall, in lieu of the
foregoing, arrange to have issued for the benefit of Executive's
dependents equivalent benefits (on an after-tax basis); provided,
further that, in no event shall Executive's dependents be required to
pay any premiums or other charges in an amount greater than that which
Executive would have paid in order to participate in Company's plans
and policies.
Entitlement (i) above shall be maintained in effect for the continued
benefit of Executive's dependents for a period of six (6) months after
the date of termination due to death.
10.2 For the purposes of this Agreement, Executive shall be deemed to
have become disabled, if, during any year of the term of this
Agreement, because of ill health, physical or mental impairment, or for
other causes beyond Executive's control, Executive shall have been
continuously unable or unwilling, or shall have failed to perform his
duties under this Agreement for ninety (90) consecutive days, or if,
during any calendar year of the term of this Agreement, Executive shall
have been unable or unwilling or shall have failed to perform his
duties for a total period of one hundred eighty (180) days,
irrespective of whether or not such days are consecutive. With respect
to any termination by Company for disability, the specifics of the
basis of termination shall be communicated to Executive in writing at
least thirty (30) days before the date on which the termination is
proposed to take effect. Executive shall have until the effective date
of the notice to cure or remedy such disability and or correct the
misconception of the disability. If this Agreement is terminated for
disability, any questions as to the existence of the Total and
Permanent disability of Executive as to which Executive and Company
cannot agree shall be determined in writing by a qualified independent
physician mutually acceptable to Executive and Company. If Executive
and Company cannot agree as to a qualified independent physician, each
shall appoint such a physician and those two physicians shall select a
third who shall make such determination in writing. If there is a
disagreement between Executive and Company as to the disability of
Executive, the effective date of the termination will be extended a
reasonable time to allow for a determination by a physical, as
described above. Any refusal by Executive to submit to a medical
examination for the purpose of certifying disability under this section
shall be deemed to constitute evidence of Executive's disability. If
Executive is disabled before his employment with Company is otherwise
terminated, Company shall pay to the Executive, or if the Executive is
totally incapacitated, to his appointed guardian, at the time he is
determined to be disabled, the sum of $500,000.00. Whenever
compensation is payable to Executive hereunder, during a time when he
is disabled, pursuant to the terms of any insurance provided by
Company, the compensation payable to him hereunder shall be inclusive
of any such disability insurance and shall not be in addition thereto.
10.3 For purposes of this Agreement, material breach and good cause
shall mean willful misconduct in following the legitimate directions of
the Chief Executive Officer; commission of a significant act of
dishonesty, deceit or breach of fiduciary duty in the performance of
Executive's duties; gross misappropriation of Company funds or
property; habitual drunkenness; excessive absenteeism not related to
illness, sick leave or vacations. Provided, however, Executive shall be
entitled to notice of any acts which the CEO considers to be misconduct
or excessive absenteeism as described in this paragraph. Such notice
shall include the specifics of the basis for possible termination and
shall be communicated to Executive in writing at least thirty (30) days
prior to any such intended termination. Prior to any such termination,
if requested before the effective date of the intended termination,
Executive shall be given a reasonable period of time in which to show
that he has corrected any specified deficiencies. Upon the cure or
remedy of such deficiencies, the Company shall rescind its notice of
termination. If there is any question about the effective
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correction of the deficiencies, a decision will be sought from a lawyer
agreed to by Company and Executive. If the Company and Executive cannot
agree on a lawyer, each will pick a lawyer who will together pick a
lawyer who will render a decision.
If this agreement is terminated for material breach or good cause,
Executive shall be entitled to:
(i) All Company insured and self insured medical and dental
plans in which Executive was participating immediately prior
to termination; and
(ii) The group individual life insurance and disability
policies of Company then in effect for Executive;
provided, however, that if Company so elects, or such continued
participation is not possible under the general terms and conditions of
such plans or under such policies, Company shall, in lieu of the
foregoing, arrange to have issued for the benefit of Executive and
Executive's dependents equivalent benefits (on an after-tax basis);
provided, further that, in no event shall Executive be required to pay
any premiums or other charges in an amount greater than that which
Executive would have paid in order to participate in Company's plans
and policies.
Entitlement of (i) and (ii) of this section shall be maintained in
effect for the continued benefit of the Executive and his dependents
for a period of six (6) months after the date of termination or until
the commencements of each equivalent benefit from Executive's new
employer, but not to be provided longer than six (6) months.
10.4 Company shall be entitled to terminate this Agreement without
cause upon ninety (90) days written notice to Executive. If Company
shall so terminate this Agreement, Executive shall be entitled to:
(i) All Company insured and self insured medical and dental
plans in which Executive was participating immediately prior
to termination; and
(ii) The group individual life insurance and disability
insurance policies of Company then in effect for Executive;
provided, however, that if Company so elects, or such continued
participation is not possible under the general terms and conditions of
such plans or under such policies, Company shall, in lieu of the
foregoing, arrange to have issued for the benefit of Executive and
Executive's dependents equivalent benefits (on an after-tax basis);
provided, further that, in no event shall Executive be required to pay
any premiums or other charges in an amount greater than that which
Executive would have paid in order to participate in Company's plans
and policies.
Entitlement of (i) and (ii) of this section shall be maintained in
effect for the continued benefit of Executive and his dependents for a
period of three (3) years after the date of termination or until the
commencement of each equivalent benefit from Executive's new employer,
but not to be provided longer than three (3) years after the date of
termination.
(iii) A furnished office, like his Company office, from which
to operate for a period of one (1) year or until Executive
accepts employment with another employer, which ever occurs
first. Executive's office will be provided, at Company's
expense, with a desk; phone; access to fax for outgoing and
incoming faxes; computer, software, and access to a printer.
(iv) A cash payment equal to the present value (based on a
discount rate of 9%) of Executive's annual base salary
hereunder for the remainder of the term of the Agreement, or
for one (1) year, which ever is longer, payable within thirty
(30) days of the date of such termination;
(v) All such Bonuses and Other Compensation as provided for in
Section 8 above, it being understood, however, that all such
payments due, if made pursuant to this clause shall be paid in
cash within thirty (30) days of the date of termination. All
stock options granted by Company to Executive under any
provision of Section 8 or granted by Company to Executive
prior to the date hereof will accelerate and become
immediately exercisable;
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(vi) A sum as reimbursement for reasonable out-of-pocket
expenses incurred for third-party professional financial and
tax advice provided by a licensed professional of Executive's
choice for a period of three (3) years after the date of
termination, sum not to exceed, in any one year, twenty-five
percent (25%) and in the aggregate, seventy-five percent (75%)
of Executive's base salary, as provided in Section 8;
(vii) A sum as reimbursement for reasonable out-of-pocket
expenses incurred for out-placement advice and counseling
provided by a professional placement agency and/or recruiter
of Executive's choice for a period of twelve (12) months after
date of termination, sum not to exceed fifty percent (50%) of
Executive's base salary, as provided in Section 8;
(viii) Company shall pay Executive a sum to pay for a Country
Club membership dues for one (1) year;
(ix) Company shall transfer to Executive title of the personal
car, furnished Executive by Company, in use at the time of the
termination.
10.5 Company shall be entitled to terminate this Agreement during the
period of automatic extension of the term as set forth in section 1.1,
by giving written notice to Executive of the company's intention to
have the term of this Agreement expire one year from the date of such
notification. If Company shall so terminate this agreement, Executive
shall be entitled only to those benefits provided under existing law.
10.6 Company may purchase life insurance to cover all or any part of
its obligations contained in this paragraph and Executive agrees to
take a physical examination to facilitate the placement of such
insurance. In the event that Executive is uninsurable, Company may
elect to disperse the funds due in equal monthly payments over the
remaining period of the year due, or if less than six (6) months, over
a period of twelve (12) consecutive months.
11. TERMINATION BY EXECUTIVE
11.0 Executive shall have the right to terminate this Agreement
under the following circumstances:
(i) Upon material breach or good cause; and
(ii) Upon written notice to the Chief Executive Officer
without cause.
11.1 For purposes of this Agreement, a material breach by Company of
the terms of this Agreement shall entitle Executive, upon written
notice to the Company, to terminate his services under this Agreement
effective thirty (30) days from and after receipt of such notice by
Company. Such notice shall include a specific description of such
breach and the Company shall have until the effective date of the
notice to cure or remedy such breach. Upon the cure or remedy of such
breach, the Executive shall rescind his notice of termination. For
purposes of this Agreement, a termination for good cause by Executive
shall be based upon the following action by the Company: a failure,
without good cause to continue Executive as President Acquisitions and
Investments of Company; a failure, without good cause to continue to
vest Executive with the power and authority of President Acquisitions
and Investments of Company; the loss, without good cause of Executive's
consent, of any significant duties or responsibilities attending such
office. Provided, however, Executive's title, duties and
responsibilities shall be deemed to be altered with good cause by the
Chief Executive Officer if Company is (or substantially all of its
assets are) sold to or combined with another entity and Executive shall
thereafter continue to have the same significant duties and
responsibilities with respect to Company's continuing business and if
Executive shall report to the Chief Executive Officer of the continuing
Company with a like Agreement, for a term no less than that remaining
on this Agreement or two (2) years, whichever is longer. Upon the
occurrence of any happening which would authorize Executive to
terminate his employment for good cause, Executive shall notify the
Chief Executive Officer in writing within sixty (60) days following
such occurrence or Executive shall be deemed to have waived his right
to terminate this Agreement for such occurrence. The Chief Executive
Officer shall have until the effective
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date of the notice to cure or remedy such good cause occurrence. Upon
the cure or remedy of such good cause occurrence, the Executive shall
rescind his notice of termination. Upon termination of employment by
Executive for material breach or good cause, Executive shall be
entitled to:
(i) All company insured and self insured medical and dental
plans in which Executive was participating immediately prior
to termination; and
(ii) The group individual life insurance and disability
insurance policies of Company then in
effect for Executive; provided, however, that if Company so elects, or
such continued participation is not possible under the general terms
and conditions of such plans or under such policies, Company shall, in
lieu of the foregoing, arrange to have issued for the benefit of
Executive and Executive's dependents equivalent benefits (on an
after-tax basis); provided, further that, in no event shall Executive
be required to pay any premiums or other charges in an amount greater
than that which Executive would have paid in order to participate in
Company's plans and policies.
Entitlement of (i) and (ii) of this section shall be maintained in
effect for the continued benefit of Executive and his dependents for a
period of three (3) years after the date of termination or until the
commencement of each equivalent benefit from Executive's new employer,
but not to be provided longer than three (3) years after the date of
termination.
(iii) A furnished office, like his Company office, from which
to operate for a period of one (1) year or until Executive
accepts employment with another employer, which ever occurs
first. Executive's office will be provided, at Company
expense, with a desk; phone; access to fax for outgoing and
incoming faxes; computer, software, and access to printer.
(iv) A cash payment equal to the present value (based on a
discount rate 9%) of Executive's base salary hereunder for the
remainder of the term of the Agreement, or for one (1) year,
which ever is longer, payable within thirty (30) days of the
date of such termination;
(v) All such Bonuses and Other Compensation as provided for
the Section 8 above, it being understood, however, that all
such payments due, if made pursuant to this clause shall be
paid in cash within thirty (30) days of the date of
termination. All stock options granted by Company to Executive
under any provision of Section 8 or granted by Company to
Executive prior to the date hereof will accelerate and become
immediately exercisable;
(vi) A sum as reimbursement for reasonable out-of-pocket
expenses incurred for third-party professional financial and
tax advice provided by a licensed professional of Executive's
choice for a period of three (3) years after date of
termination, sum not to exceed, in any one year, twenty five
percent (25%) and in the aggregate, seventy five percent (75%)
of Executive's base salary, as provided in Section 8;
(vii) A sum as reimbursement for reasonable out-of-pocket
expenses incurred for out-placement advice and counseling
provided by a professional placement agency and/or recruiter
of Executive's choice for a period of twelve (12) months after
date of termination, sum not to exceed fifty (50) percent of
Executive's base salary.
(viii) Company shall pay Executive a sum to pay for Country
Club membership dues for one (1) year; and
(ix) Company shall transfer to Executive title of the personal
car, furnished Executive by company, in use at the time of the
termination.
11.2 Company may purchase life insurance to cover all or any part of
its obligations contained in this paragraph and Executive agrees to
take a physical examination to facilitate the placement of such
insurance. In the event that Executive is uninsurable, Company may
elect to disperse the funds due in equal monthly payments over the
remaining period of the year due, or if less than six (6) months, over
a period of twelve (12) consecutive months.
11.3 Executive shall be entitled to terminate this Agreement without
cause upon ninety (90) days written
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notice to Company. If Executive shall so terminate this Agreement,
Executive shall be entitled to those benefits provided under existing
law.
12. CONSEQUENCES OF BREACH
12.0 If this Agreement is terminated pursuant to Section 11.01 hereof,
or if Company shall terminate Executive's employment under this
Agreement in any other way that is a breach of this Agreement by
Company, the following shall apply:
(i) The parties believe that because of the limitations of
Section 11 the payments to Executive do not constitute "Excess
Parachute Payments" under Section 280G of the Internal Revenue
Code of 1954, as amended (the "Code"). Notwithstanding such
belief, if any benefit under the preceding paragraph is
determined to be an "Excess Parachute Payment" Company shall
pay Executive an additional amount ("Tax Payment") such that
(x) the excess of all Excess Parachute Payments (including
payments under this sentence) over the sum of excise tax
thereon under Section 4999 of the Code and income tax thereon
under Subtitle A of the Code and under applicable state law is
equal to (y) the excess of all Excess Parachute Payments
(excluding payments under this sentence) over income tax
thereon under Subtitle A of the Code and under applicable
state law.
13. MITIGATION AND OFFSET
13.0 Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking employment or
otherwise, nor to offset the amount of any payment provided for in this
Agreement by amounts earned as a result of Executive's employment or
self-employment during the period he is entitled to such payment.
14. TAX "GROSS-UP" PROVISION
14.0 If any payment due Executive under this Agreement results in
Executive's liability for an excise tax ("parachute tax") under Section
49 of the Internal Revenue Code of 1986, as amended (the "Code"), the
Company will pay to Executive, after deducting any Federal, state or
local income tax imposed on the payment, an amount sufficient to fully
satisfy the "parachute tax" liability. Such payment shall be made to
Executive no later than thirty (30) days prior to the due date of the
"parachute tax".
15. REMEDIES
15.0 Company recognizes that because of Executive's special talents,
stature and opportunities in the financial services industry, in the
event of termination by Company hereunder (except under Section 10.0),
or in the event of termination by Executive under Section 11, before
the end of the agreed term, Company acknowledges and agrees that the
provisions of this Agreement regarding further payments of base salary,
bonuses and the exerciseability of stock options constitute fair and
reasonable provisions for the consequences of such termination, do not
constitute a penalty, and such payments and benefits shall not be
limited or reduced by amounts Executive might earn or be able to earn
from any other employment or ventures during the remainder of the
agreed term of this Agreement.
16. BINDING AGREEMENT
16.0 This Agreement shall be binding upon and inure to the benefit of
Executive, his heirs, distributes and assigns and company, its
successors and assigns. Executive may not, without the express written
permission of the Company, assign or pledge any rights or obligations
hereunder to any person, firm or corporation.
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17. ARBITRATION
17.0 Company and Executive agree that any dispute or claim concerning
this Agreement, or the terms and conditions of employment under this
Agreement, shall be settled by arbitration. The arbitration proceedings
will be conducted under the Commercial Arbitration Rules of the
American Arbitration Association in effect at the time a demand for
arbitration under the Rules is made. The decision of the arbitrators,
including determination of the amount of any damages suffered, will be
exclusive, final and binding on Company and Executive, their heirs,
executors, administrators, successors and assigns. Each party will bear
that party's own expenses in the arbitration proceedings for
arbitrators' fees and attorney fees, for that party's witnesses, and
other expenses of presenting the case. Other arbitration costs,
including administrative fees and fees for records or transcripts, will
be borne equally by Company and Executive.
18. AMENDMENT; WAIVER
18.0 This instrument contains the entire agreement of the parties with
respect to the employment of Executive by Company and supersedes any
prior Agreement between Company and Executive (it being understood,
however, that this agreement shall not affect any stock options granted
to Executive prior to the date hereof). No amendment or modification of
this Agreement shall be valid unless evidenced by a written instrument
executed by the parties hereto. No waiver by either party of any breach
by the other party of any provision or condition of this Agreement
shall be deemed a waiver of any similar or dissimilar provision or
condition at the same or any prior or subsequent time.
19. GOVERNING LAW
19.0 This Agreement shall be governed by and construed in accordance
with the laws of the State of Kansas.
20. NOTICES
20.0 All notices which a party is required or may desire to give to the
other party under or in connection with this Agreement shall be given
in writing by addressing the same to the other party as follows:
If to Executive, to:
Xxxxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxx
Xxxxx, Xxxxxx 00000
If to Company, to:
Team Financial, Inc.
Chairman of the Board
0 Xxxx Xxxxxx
Xxxxx, Xxxxxx 00000
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or at such other place as may be designated in writing by like notice.
Any notice shall be deemed to have been given within forty-eight (48)
hours after being addressed as required herein and deposited,
first-class postage prepaid, in the United States mail.
IN WITNESS THEREOF, the parties have executed this agreement this ____
day of _____________, 1998, effective as of the day and year first
above written.
TEAM FINANCIAL, INC.
By:
-----------------------------------
Chief Executive Officer
XXXXXXX X. XXXXXX
--------------------------------------
Executive
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