Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT"), is made and entered into
between LANDMARK BANCSHARES, Inc., a Delaware corporation ("EMPLOYER"), and XXXX
X. XXXXXXXX ("EXECUTIVE") and shall be effective immediately upon the
consummation of the merger of MNB Bancshares, Inc., a Delaware corporation,
Landmark Bancshares, Inc., a Kansas corporation, and Landmark Merger Company, a
Delaware corporation (the "EFFECTIVE DATE").
RECITALS
A. Executive currently serves as Executive Vice President and Manhattan
Bank Manager of Security National Bank, a national banking association with its
main office located in Manhattan, Kansas, and a wholly-owned subsidiary of
Employer (the "BANK"), and Employer desires Executive to continue to serve in
such capacities.
B. Employer and Executive have made commitments to each other on a
variety of important issues concerning Executive's continued employment,
including the performance that will be expected of Executive, the compensation
that Executive will be paid, how long and under what circumstances Executive
will remain employed and the financial details relating to any decision that
either Executive or Employer might ever make to terminate this Agreement.
C. Employer recognizes that circumstances may arise in which a change
in control of Employer or the Bank through acquisition or otherwise may occur
thereby causing uncertainty of employment without regard to the competence or
past contributions of Executive which uncertainty may result in the loss of
valuable services of Executive and Employer and Executive wish to provide
reasonable security to Executive against changes in the employment relationship
in the event of any such change in control.
D. Employer and Executive believe that the commitments they have made
to each other should be memorialized in writing, and that is the purpose of this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements hereinafter contained, it is covenanted and agreed by and between
the parties hereto as follows:
AGREEMENTS
SECTION 1. POSITION AND DUTIES. Employer hereby employs Executive as
Executive Vice President and Manhattan Bank Manager of the Bank. During the
period of Executive's employment hereunder, Executive shall devote his best
efforts and full business time, energy, skills and attention to the business and
affairs of the Bank. Executive's duties and authority shall consist of and
include all duties and authority customarily performed and held by persons
holding equivalent positions with business organizations similar in nature and
size to the Bank, as such duties and authority are reasonably defined, modified
and delegated from time to time
by the Boards of Directors of the Bank. Executive shall have the powers
necessary to perform the duties assigned to him and shall be provided such
supporting services, staff, secretarial and other assistance, office space and
accoutrements as shall be reasonably necessary and appropriate in the light of
such assigned duties. Except as the context may clearly require otherwise, all
references in this Agreement to "Employer," shall include both Landmark
Bancshares, Inc. and the Bank.
SECTION 2. COMPENSATION. As compensation for the services to be
provided by Executive hereunder, Executive shall receive the following
compensation, expense reimbursement and other benefits:
(a) BASE COMPENSATION. Executive shall receive an aggregate
annual minimum base salary at the rate of Eighty-Five Thousand Dollars ($85,000)
payable in installments in accordance with the regular payroll schedule of the
Bank. Such base salary shall be subject to review annually commencing in the
year 2002 and such salary shall be maintained or increased during the term
hereof in accordance with Employer's established management compensation
policies and plans (as the same may be adjusted, "BASE COMPENSATION").
Notwithstanding anything contained herein to the contrary, Employer shall be
entitled in its sole and absolute discretion to allocate between Employer and
the Bank the amount of Base Compensation payable to Executive and to cause all
or any of such Base Compensation or any other benefits payable or to be provided
to Executive under the terms of this Agreement to be paid or provided directly
by the Bank to Executive.
(b) PERFORMANCE BONUS. Executive shall be entitled to receive
an annual performance bonus, payable within ninety (90) days after the end of
the fiscal year of Employer, which shall be based upon performance criteria
mutually agreed upon by Executive and the Executive Committee of the Bank's
Board of Directors (the "EXECUTIVE COMMITTEE"), and which shall not be deemed
earned, in whole or in part, until such time as the amount of such bonus is
determined by the Executive Committee. The amount (if any) of and the form of
payment (I.E., cash, stock options, stock grants or any combination thereof)
shall be determined by the Executive Committee.
(c) AUTOMOBILE. Employer shall provide an automobile for
Executive's use in the performance of his duties hereunder and shall pay all
expenses for maintenance, repairs and insurance relating to that automobile,
PROVIDED, HOWEVER, that Executive shall pay for all fuel charges and be
reimbursed for business-related fuel expenses in accordance with the Employer's
policy regarding such reimbursements. Executive shall report his business and
personal use of the automobile in conformity with policies adopted by Employer
and his personal use shall be reflected annually on the IRS Form W-2 of
Executive as additional compensation for income tax purposes.
(d) CLUB MEMBERSHIP. Employer shall pay the Executive's monthly
membership dues at his current country club. If Executive changes country clubs,
reimbursement hereunder shall be subject to the Executive Committee's prior
written approval of the change to a new country club.
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(e) VACATIONS. Executive shall be entitled to an annual
vacation in accordance with the vacation policy of Employer, which vacation
shall be taken at a time or times mutually agreeable to Employer and Executive.
(f) OTHER BENEFITS. Executive shall be entitled to all benefits
specifically established for him and, when and to the extent he is eligible
therefor, to participate in all plans and benefits generally accorded to senior
executives of Employer and the Bank, including, but not limited to, pension,
profit-sharing, supplemental retirement, incentive compensation, bonus,
disability income, split-dollar life insurance, group life, medical and
hospitalization insurance, and similar or comparable plans, and also to
perquisites extended to senior executives, PROVIDED, HOWEVER, that such plans,
benefits and perquisites shall be no less than those made available to all other
employees of Employer and the Bank.
(g) REIMBURSEMENT OF EXPENSES. Executive shall be reimbursed,
upon submission of appropriate vouchers and supporting documentation, for all
travel, entertainment and other out-of-pocket expenses reasonably and
necessarily incurred by Executive in the performance of his duties hereunder,
and he shall be entitled to attend seminars, conferences and meetings relating
to the business of Employer consistent with Employer's established policies in
that regard.
(h) WITHHOLDING. Employer shall be entitled to withhold from
amounts payable to Executive hereunder, any federal, state or local withholding
or other taxes or charges which it is from time to time required to withhold.
Employer shall be entitled to rely upon the opinion of its legal counsel with
regard to any question concerning the amount or requirement of any such
withholding.
SECTION 3. CONFIDENTIALITY AND LOYALTY. Executive acknowledges that
during the course of his employment he may produce and have access to material,
records, data, trade secrets and information not generally available to the
public regarding Employer and its subsidiaries and affiliates (collectively,
"CONFIDENTIAL INFORMATION"). Accordingly, during and subsequent to termination
of this Agreement, Executive agrees to hold in confidence and not directly or
indirectly disclose, use, copy or make lists of any Confidential Information,
except to the extent that such information is or thereafter becomes lawfully
available from public sources, or such disclosure is authorized in writing by
Employer, required by a law or any competent administrative agency or judicial
authority, or otherwise as reasonably necessary or appropriate in connection
with performance by Executive of his duties hereunder. All records, files,
documents and other materials or copies thereof relating to the respective
businesses of Employer and its subsidiaries and affiliates that Executive shall
prepare or use, shall be and remain the sole property of Employer, and other
than in connection with performance by Executive of his duties hereunder, shall
not be removed from the premises of Employer or any of its subsidiaries or
affiliates without Employer's written consent, and shall be promptly returned to
Employer upon termination of Executive's employment hereunder. Executive agrees
to abide by Employer's reasonable policies, as in effect from time to time,
respecting avoidance of interests conflicting with those of Employer and its
subsidiaries and affiliates. For purposes of this Agreement, an affiliate of
Employer shall mean any
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corporation, partnership, bank, association, limited liability company, trust or
other business entity directly or indirectly controlling, controlled by, or
under common control with Employer.
SECTION 4. TERM AND TERMINATION.
(a) TERM. Executive's employment hereunder shall be for a term
of one (1) year commencing the Effective Date, and shall automatically extend
for one (1) additional year on each subsequent anniversary of the Effective Date
(the "AUTOMATIC EXTENSION"), unless the Automatic Extension is terminated by
either party effective by written notice to that effect delivered to the other
not less than ninety (90) days prior to such anniversary of the Effective Date.
If the Automatic Extension is terminated, then Executive's employment hereunder
shall terminate as of the last day of the then current one (1) year period.
(b) VOLUNTARY TERMINATION BY EXECUTIVE. If Executive
voluntarily terminates his employment under this Agreement, other than pursuant
to SECTION 4(d) (Constructive Termination) or SECTION 4(h) (Change in Control),
then Employer shall only be required to pay Executive his Base Compensation as
shall have accrued through the effective date of such termination, and Employer
shall not be obligated to pay any performance bonus with respect to the then
current fiscal year of Employer nor shall Employer have any further obligations
to Executive.
(c) PREMATURE TERMINATION BY EMPLOYER.
(i) In the event of the termination of this Agreement
by Employer prior to the last day of the then current term for any reason other
than a termination in accordance with the provisions of SECTION 4(h) (Change in
Control) or SECTION 4(e) (Termination for Cause), then notwithstanding any
mitigation of damages by Executive, Employer shall pay Executive an amount equal
to the sum of: (A) Executive's Base Compensation at the annual rate then payable
to Executive; (B) an amount equal to the average of the annual performance
bonuses paid to Executive during the most recent three (3) fiscal years of
Employer; and (C) an amount equal to the contributions made or credited by
Employer under all employee retirement plans for the benefit of Executive for
the most recently ended fiscal year of Employer. In addition, Employer shall
continue to provide coverage for Executive and his immediate family under any
health insurance programs maintained by Employer for one (1) year; PROVIDED,
HOWEVER, that if the continuation of such health insurance is not permitted
under the Employer's then current health insurance policy, then Employer agrees
to pay Executive's premiums to continue such coverage under the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA") until the earlier of the
date one (1) year from the date of termination, or the date such coverage
otherwise terminates under COBRA, the period of health insurance continuation
shall be credited against Executive's COBRA continuation rights and he will be
required to complete all COBRA election and other forms. The payment of amounts
under this subsection by Employer shall not offset or diminish any compensation
or benefits accrued as of the date of termination.
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(ii) Payment to Executive will be made on a monthly
basis during the remaining term of this Agreement. At the election of Employer,
payments may be made in a lump sum discounted to their present value using the
prime rate of interest as of the date of termination. Such payments shall not be
reduced in the event Executive obtains other employment following the
termination of employment by Employer.
(iii) If either Employer or the Bank is not in
compliance with its minimum capital requirements or if the payments required
under subsection (i) above would cause the capital of either Employer or the
Bank to be reduced below its minimum capital requirements, such payments shall
be deferred until such time as both Employer and the Bank are in capital
compliance.
(d) CONSTRUCTIVE TERMINATION. If at any time during the term of
this Agreement, except in connection with a termination pursuant to SECTION 4(h)
(Change in Control) or SECTION 4(e) (Termination for Cause), Executive is
Constructively Discharged (as hereinafter defined), then Executive shall have
the right, by written notice given to Employer not later than thirty (30) days
after such Constructive Discharge, to terminate his services hereunder,
effective as of thirty (30) days after the date of such notice, and Executive
shall have no rights or obligations under this Agreement other than as provided
in SECTION 3 (Confidentiality and Loyalty) and SECTION 5 (Non-Competition
Covenant). In such event, Executive shall be entitled to a lump sum payment of
compensation and continuation of the health insurance as if such termination of
his employment were pursuant to SECTION 4(c) (Premature Termination by
Employer).
For purposes of this Agreement, Executive shall be "CONSTRUCTIVELY DISCHARGED"
upon the occurrence of any one of the following events:
(i) Executive is not re-elected or is removed from
the positions with the Bank set forth in SECTION 1 (Position and Duties), other
than as a result of Executive's election or appointment to positions of equal or
superior scope and responsibility;
(ii) Executive shall fail to be vested by Employer
with the powers, authority and support services of any of said offices; or
(iii) Employer otherwise commits a material breach
of its obligations under this Agreement.
(e) TERMINATION FOR CAUSE. This Agreement may be terminated for
cause as hereinafter defined. "CAUSE" shall mean: (i) Executive's death; (ii)
Executive's "PERMANENT DISABILITY," which shall mean Executive's inability, as a
result of physical or mental incapacity, substantially to perform his duties
hereunder for a period of six (6) consecutive months; (iii) a material violation
by Executive of any applicable material law or regulation respecting the
business of Employer or the Bank; (iv) Executive being found guilty of a felony
or an act of dishonesty in connection with the performance of his duties as an
officer of Employer or the Bank, or which disqualifies Executive from serving as
an officer or director of Employer or the Bank; (v) the willful or negligent
failure of Executive to perform
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his duties hereunder in any material respect; (vi) Executive engages in one or
more unsafe or unsound banking practices that have a material adverse effect on
the Bank; or (vii) Executive is removed or suspended from banking pursuant to
Section 8(e) of the Federal Deposit Insurance Act, as amended (the "FDIA"), or
any other applicable state or federal law. Executive shall be entitled to at
least thirty (30) days' prior written notice of Employer's intention to
terminate his employment for any cause (except Executive's death) specifying the
grounds for such termination, a reasonable opportunity to cure any conduct or
act, if curable, alleged as grounds for such termination, and a reasonable
opportunity to present to the Executive Committee his position regarding any
dispute relating to the existence of such cause. In the event of a dispute
regarding Executive's Permanent Disability, each of Executive and Employer shall
choose a physician who together will choose a third physician to make a final
determination thereof. Upon a termination of Executive's employment with
Employer for Cause, then Employer shall only be required to pay Executive his
Base Compensation as shall have accrued through the effective date of such
termination, and Employer shall not be obligated to pay any performance bonus
with respect to the then current fiscal year of Employer, or have any further
obligations to Executive.
(f) PAYMENTS UPON DEATH. In the event payments are due and
owing under this Agreement at the death of Executive, payment shall be made to
such beneficiary as Executive may designate in writing, or failing such
designation, to the executor of his estate, in full settlement and satisfaction
of all claims and demands on behalf of Executive. Such payments shall be in
addition to any other death benefits of Employer for the benefit of Executive
and in full settlement and satisfaction of all payments provided for in this
Agreement.
(g) PAYMENTS PRIOR TO PERMANENT DISABILITY. Executive shall be
entitled to the compensation and benefits provided for under this Agreement for
any period during the term of this Agreement and prior to the establishment of
Executive's Permanent Disability. Notwithstanding anything contained in this
Agreement to the contrary, until the date specified in a notice of termination
relating to Executive's Permanent Disability, Executive shall be entitled to
return to his positions with the Bank as set forth in this Agreement in which
event no Permanent Disability of Executive will be deemed to have occurred.
(h) PAYMENTS UPON CHANGE IN CONTROL.
(i) In the event of a Change in Control (as defined
below) of Employer and the termination of Executive's employment under either A
or B below, Executive shall be entitled to receive in lieu of any other payments
provided for in this Agreement a lump sum payment equal to two (2) times the sum
of: (A) Executive's Base Compensation at the annual rate then payable to
Executive; (B) an amount equal to the average of the annual performance bonuses
paid to Executive during the most recent three (3) fiscal years of Employer; and
(C) an amount equal to the contributions made or credited by Employer under all
employee retirement plans for the benefit of Executive for the most recently
ended fiscal year of Employer; such lump sum amount to be paid within five (5)
business days of Executive's termination. In addition, Employer shall continue
to provide
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coverage for Executive and his immediate family under any health insurance
programs maintained by Employer for two (2) years; PROVIDED, HOWEVER, that if
the continuation of such health insurance is not permitted under the Employer's
then current health insurance policy, then Employer agrees to pay Executive's
premiums to continue such coverage under the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA") until such coverage terminates under COBRA,
the period of continuation hereunder shall be credited against Executive's
continuation rights, and he will be required to complete all COBRA election and
other forms. Payments under this Section shall be subject to the limits of
SECTION 4(h)(iii). The following shall constitute termination of Executive's
employment within the meaning of this SECTION 4(h):
A. Executive terminates his employment under
this Agreement by a written notice to that effect delivered to the Board of
Directors of the Employer (the "BOARD") within six (6) months after the Change
in Control.
B. The Executive is terminated by Employer
or its successor without Cause (as defined in SECTION 4(e)) within one (1) year
after the Change in Control.
(ii) For purposes of this Section, the term "CHANGE
IN CONTROL" shall mean the following:
A. The consummation of the acquisition by
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")) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the 0000 Xxx) of
thirty-three percent (33%) or more of the combined voting power of the then
outstanding voting securities of Employer;
B. The individuals who, as of the date
hereof, are members of the Board cease for any reason to constitute a majority
of the Board, unless the election, or nomination for election by the
stockholders, of any new director was approved by a vote of a majority of the
Board, and such new director shall, for purposes of this Agreement, be
considered as a member of the Board; or
C. Consummation of: (1) a merger or
consolidation to which Employer is a party if the stockholders immediately
before such merger or consolidation do not, as a result of such merger or
consolidation, own, directly or indirectly, more than sixty-seven percent (67%)
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 Employer's voting
securities outstanding immediately before such merger or consolidation; or (2) a
complete liquidation or dissolution or sale or other disposition of all or
substantially all of the assets of Employer or the Bank.
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because thirty-three percent (33%) or more of the combined
voting power of Employer's then outstanding securities is acquired by: (1) a
trustee or other fiduciary holding securities under one or more employee benefit
plans maintained for employees of the entity; or (2) any
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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.
(iii) It is the intention of Employer and Executive
that no portion of any payment under this Agreement, or payments to or for the
benefit of Executive under any other agreement or plan, be deemed to be an
"EXCESS PARACHUTE PAYMENT" as defined in Section 280G of the Internal Revenue
Code of 1986, as amended (the "CODE"), or its successors. It is agreed that the
present value of and payments to or for the benefit of Executive in the nature
of compensation, receipt of which is contingent on the Change in Control of
Employer, and to which Section 280G of the Code applies (in the aggregate "TOTAL
PAYMENTS") shall not exceed an amount equal to one dollar ($1.00) less than the
maximum amount which Employer may pay without loss of deduction under Section
280G(a) of the Code. Present value for purposes of this Agreement shall be
calculated in accordance with Section 280G(d)(4) of the Code. Within ninety (90)
days following the earlier of the giving of the notice of termination or the
giving of notice by Employer to Executive of its belief that there is a payment
or benefit due Executive which will result in an excess parachute payment as
defined in Section 280G of the Code, Executive and Employer, at Employer's
expense, shall obtain the opinion of such legal counsel and certified public
accountants as Executive may choose (notwithstanding the fact that such persons
have acted or may also be acting as the legal counsel or certified public
accountants for Employer), which opinions need not be unqualified, which sets
forth (A) the amount of the includable compensation of Executive for the base
period, as determined under Section 280G of the Code, (B) the present value of
Total Payments and (C) the amount and present value of any excess parachute
payments. In the event that such opinions determine that there would be an
excess parachute payment, the payment hereunder or any other payment determined
by such counsel to be includable in Total Payments shall be modified, reduced or
eliminated as specified by Executive in writing delivered to Employer within
sixty (60) days of his receipt of such opinions or, if Executive fails to so
notify Employer, then as Employer shall reasonably determine, so that under the
bases of calculation set forth in such opinions there will be no excess
parachute payment. The provisions of this subsection, including the
calculations, notices and opinions provided for herein shall be based upon the
conclusive presumption that (x) the compensation and benefits provided for in
SECTION 2 (Compensation) and (y) any other compensation earned by Executive
pursuant to Employer's compensation programs which would have been paid in any
event, are reasonable compensation for services rendered, even though the timing
of such payment is triggered by the Change in Control; PROVIDED, HOWEVER, that
in the event such legal counsel so requests in connection with the opinion
required by this subsection, Executive and Employer shall obtain, at Employer's
expense, and the legal counsel may rely on in providing the opinion, the advice
of a firm of recognized executive compensation consultants as to the
reasonableness of any item of compensation to be received by Executive. In the
event that the provisions of Sections 280G and 4999 of the Code are repealed
without succession, this subsection shall be of no further force or effect.
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(i) REGULATORY SUSPENSION AND TERMINATION.
(i) If Executive is suspended from office and/or
temporarily prohibited from participating in the conduct of the affairs of
Employer or the Bank by a notice served under Section 8(e)(3) (12 U.S.C. Section
1818(e)(3)) or 8(g) (12 U.S.C. Section 1818(g)) of the FDIA, Employer's
obligations under this contract shall be suspended as of the date of service,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, Employer may in its discretion: (A) pay Executive all or part of the
compensation withheld while their contract obligations were suspended; and (B)
reinstate (in whole or in part) any of the obligations which were suspended.
(ii) If Executive is removed and/or permanently
prohibited from participating in the conduct of the affairs of Employer or the
Bank by an order issued under Section 8(e) (12 U.S.C. Section 1818(e)) or 8(g)
(12 U.S.C. Section 1818(g)) of the FDIA, all obligations of Employer under this
contract shall terminate as of the effective date of the order, but vested
rights of the contracting parties shall not be affected.
(iii) If either Employer or the Bank is in default as
defined in Section 3(x) (12 U.S.C. Section 1813(x)(1)) of the FDIA, all
obligations of Employer under this contract shall terminate as of the date of
default, but this subsection shall not affect any vested rights of the
contracting parties.
(iv) All obligations of Employer under this Agreement
shall be terminated, except to the extent determined that continuation of the
contract is necessary for the continued operation of the institution by the
Federal Deposit Insurance Corporation (the "FDIC"), at the time the FDIC enters
into an agreement to provide assistance to or on behalf of Employer or the Bank
under the authority contained in Section 13(c) (12 U.S.C. Section 1823(c)) of
the FDIA, or when Employer or the Bank is determined by the FDIC to be in an
unsafe or unsound condition. Any rights of the parties that have already vested,
however, shall not be affected by such action.
(v) All obligations of Employer under this Agreement
shall be terminated, except to the extent determined that continuation of this
Agreement is necessary for the continued operation of the Bank: (A) by the
Office of the Comptroller of the Currency (the "OCC") at the time that the FDIC
enters into an agreement to provide assistance to or on behalf of the Bank under
the authority contained in Section 13(c) (12 U.S.C. Section 1823(c)) of the
FDIA; or (B) by the OCC at the time that the OCC approves a supervisory merger
to resolve problems related to operation of the Bank or when the Bank is
determined by the OCC to be in an unsafe or unsound condition. Any rights of the
parties that have already vested, however, shall not be affected by such action.
(vi) Any payments made to Executive pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with Section 18(k) (12 U.S.C. Section828(k)) of the FDIA.
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SECTION 5. NON-COMPETITION COVENANT.
(a) RESTRICTIVE COVENANT. Employer and Executive have jointly
reviewed the customer lists and operations of Employer and the Bank and have
agreed that the primary service area of the lending and deposit taking functions
of Employer or the Bank in which Executive has participated and will continue to
actively participate extends to an area which encompasses a fifty (50) mile
radius from each of the offices of Employer and the Bank (the "RESTRICTIVE
AREA"). Therefore, as an essential ingredient of and in consideration of this
Agreement and the payment of the amounts described in SECTION 2 (Compensation),
Executive hereby agrees that, except with the express prior written consent of
Employer, for a period of one (1) year after the termination of Executive's
employment with Employer (the "RESTRICTIVE PERIOD"), he will not directly or
indirectly compete with the business of Employer or the Bank, including, but not
by way of limitation, by directly or indirectly owning, managing, operating,
controlling, financing, or by directly or indirectly serving as an employee,
officer or director of or consultant to, or by soliciting or inducing, or
attempting to solicit or induce, any employee or agent of Employer or the Bank
to terminate employment with Employer and become employed by any person, firm,
partnership, corporation, trust or other entity which owns or operates, a bank,
savings and loan association, credit union or similar financial institution (a
"FINANCIAL INSTITUTION") within the Restrictive Area (the "RESTRICTIVE
COVENANT"). If Executive violates the Restrictive Covenant and Employer or the
Bank brings legal action for injunctive or other relief, Employer or the Bank
shall not, as a result of the time involved in obtaining such relief, be
deprived of the benefit of the full period of the Restrictive Covenant.
Accordingly, the Restrictive Covenant shall be deemed to have the duration
specified in this Section 5(a) computed from the date the relief is granted but
reduced by the time between the period when the Restrictive Period began to run
and the date of the first violation of the Restrictive Covenant by Executive. In
the event that a successor assumes and agrees to perform this Agreement, this
Restrictive Covenant shall continue to apply only to the Restrictive Area as it
existed immediately before such assumption and shall not apply to any of the
successor's other offices. The foregoing Restrictive Covenant shall not prohibit
Executive from owning directly or indirectly capital stock or similar securities
which are listed on a securities exchange or quoted on the Nasdaq which do not
represent more than one percent (1%) of the outstanding capital stock of any
Financial Institution.
(b) REMEDIES FOR BREACH OF RESTRICTIVE COVENANT. Executive
acknowledges that the restrictions contained in SECTION 3 (Confidentiality and
Loyalty) and SECTION 5 (Non-Competition Covenant) of this Agreement are
reasonable and necessary for the protection of the legitimate business interests
of Employer and the Bank, that any violation of these restrictions would cause
substantial injury to Employer and the Bank and such interests, that Employer
would not have entered into this Agreement with Executive without receiving the
additional consideration offered by Executive in binding himself to these
restrictions and that such restrictions were a material inducement to Employer
to enter into this Agreement. In the event of any violation or threatened
violation of these restrictions, Employer and the Bank, in addition to and not
in limitation of, any other rights, remedies or damages available to Employer
and the Bank under this Agreement or otherwise at law or in equity, shall be
entitled to preliminary and permanent injunctive relief to prevent or restrain
any such violation by
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Executive and any and all persons directly or indirectly acting for or with him,
as the case may be.
SECTION 6. INTERCORPORATE TRANSFERS. If Executive shall be voluntarily
transferred to an affiliate of Employer, such transfer shall not be deemed to
terminate or modify this Agreement and the employing corporation to which
Executive shall have been transferred shall, for all purposes of this Agreement,
be construed as standing in the same place and stead as Employer as of the date
of such transfer.
SECTION 7. INTEREST IN ASSETS. Neither Executive nor his estate shall
acquire hereunder any rights in funds or assets of Employer or the Bank,
otherwise than by and through the actual payment of amounts payable hereunder;
nor shall Executive or his estate have any power to transfer, assign,
anticipate, hypothecate or otherwise encumber in advance any of said payments;
nor shall any of such payments be subject to seizure for the payment of any
debt, judgment, alimony, separate maintenance or be transferable by operation of
law in the event of bankruptcy, insolvency or otherwise of Executive.
SECTION 8. INDEMNIFICATION.
(a) INSURANCE. Employer shall provide Executive (including his
heirs, personal representatives, executors and administrators) for the term of
this Agreement with coverage under a standard directors' and officers' liability
insurance policy at its expense.
(b) HOLD HARMLESS. In addition to the insurance coverage
provided for in this Section, Employer shall hold harmless and indemnify
Executive (and his heirs, executors and administrators) to the fullest extent
permitted under applicable law against all expenses and liabilities reasonably
incurred by him in connection with or arising out of any action, suit or
proceeding in which he may be involved by reason of his having been an officer
of Employer or the Bank (whether or not he continues to be an officer at the
time of incurring such expenses or liabilities), such expenses and liabilities
to include, but not be limited to, judgments, court costs and attorneys' fees
and the cost of reasonable settlements.
(c) ADVANCEMENT OF EXPENSES. In the event Executive becomes a
party, or is threatened to be made a party, to any action, suit or proceeding
for which Employer has agreed to provide insurance coverage or indemnification
under this Section, Employer shall, to the full extent permitted under
applicable law, advance all expenses (including reasonable attorneys' fees),
judgments, fines and amounts paid in settlement (collectively "EXPENSES")
incurred by Executive in connection with the investigation, defense, settlement,
or appeal of any threatened, pending or completed action, suit or proceeding,
subject to receipt by Employer of a written undertaking from Executive: (i) to
reimburse Employer for all Expenses actually paid by Employer to or on behalf of
Executive in the event it shall be ultimately determined that Executive is not
entitled to indemnification by Employer for such Expenses; and (ii) to assign to
Employer all rights of Executive to indemnification, under any policy of
directors' and officers' liability insurance or otherwise, to the extent of the
amount of Expenses actually paid by Employer to or on behalf of Executive.
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SECTION 9. GENERAL PROVISIONS.
(a) SUCCESSORS; ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of Executive, Employer and his and its respective
personal representatives, successors and assigns, and any successor or assign of
Employer shall be deemed the "EMPLOYER" hereunder. Employer shall require any
successor to all or substantially all of the business and/or assets of Employer,
whether directly or indirectly, by purchase, merger, consolidation, acquisition
of stock, or otherwise, by an agreement in form and substance satisfactory to
Executive, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent as Employer would be required to perform if no
such succession had taken place. Notwithstanding anything contained herein to
the contrary, Executive further agrees that the Bank is an intended beneficiary
of the Executive's obligations under SECTION 3 (Confidentiality and Loyalty) and
SECTION 5 (Non-Competition Covenant) and the same may be enforced by the Bank in
the same manner, and to the same extent, as the same is enforceable hereunder by
Employer.
(b) ENTIRE AGREEMENT; MODIFICATIONS. This Agreement constitutes
the entire agreement between the parties respecting the subject matter hereof,
and supersedes all prior negotiations, undertakings, agreements and arrangements
with respect thereto, whether written or oral. Except as otherwise explicitly
provided herein, this Agreement may not be amended or modified except by written
agreement signed by Executive and Employer.
(c) ENFORCEMENT AND GOVERNING LAW. The provisions of this
Agreement shall be regarded as divisible and separate; if any of said provisions
should be declared invalid or unenforceable by a court of competent
jurisdiction, the validity and enforceability of the remaining provisions shall
not be affected thereby. This Agreement shall be construed and the legal
relations of the parties hereto shall be determined in accordance with the laws
of the State of Kansas without reference to the law regarding conflicts of law.
(d) ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three arbitrators sitting in a location selected by
Executive within fifty (50) miles from the location of the Bank's main office,
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; PROVIDED, HOWEVER, that Executive shall be entitled to seek
specific performance of his right to be paid through the date of termination
during the pendency of any dispute or controversy arising under or in connection
with this Agreement.
(e) LEGAL FEES. All reasonable legal fees paid or incurred by
Employer or Executive pursuant to any dispute or question of interpretation
relating to this Agreement shall be paid or reimbursed by the party who or which
is not successful on the merits pursuant to a legal judgment, arbitration or
settlement.
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(f) WAIVER. No waiver by either party at any time of any breach
by the other party of, or compliance with, any condition or provision of this
Agreement to be performed by the other party, shall be deemed a waiver of any
similar or dissimilar provisions or conditions at the same time or any prior or
subsequent time.
(g) NOTICES. Notices pursuant to this Agreement shall be in
writing and shall be deemed given when received; and, if mailed, shall be mailed
by United States registered or certified mail, return receipt requested, postage
prepaid; and if to Employer, addressed to the principal headquarters of
Employer, attention: Chairman; or, if to Executive, to the address set forth
below Executive's signature on this Agreement, or to such other address as the
party to be notified shall have given to the other.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
LANDMARK BANCSHARES, INC. XXXX X. XXXXXXXX
By:
--------------------------- ---------------------------------
Name:
---------------------- ---------------------------------
Title:
--------------------- ---------------------------------
(Address)
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