EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into as
of April __, 1999, by and between Success National Bank, a national banking
organization ("Employer"), and Xxxxxx X. Xxxxxxxxxxxx ("Employee").
WHEREAS, Employer and Employee desire to enter into an employment
agreement governed by the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the provisions and undertakings set
forth herein, the parties, intending to be legally bound, hereby agree as
follows:
1. EMPLOYMENT.
1.1 Employment. Employer hereby retains and employs, and Employee
accepts such retention and employment, to provide services hereunder as Senior
Vice President and General Counsel of the Employer and Success Bancshares, Inc.
("Bancshares"). Employee shall be accountable to Employer through its Chief
Executive Officer and Board of Directors.
1.2 Duties and Obligations. As General Counsel, Employee shall perform
all legal, executive and managerial duties incumbent upon such position.
Employee will devote her full time and attention and give her best efforts to
the performance of such legal, executive and managerial duties. It is intended
that Employee may have other business investments or directorships and engage
in civic, charitable and other such activities so long as such activities do
not interfere with her duties hereunder. Employer shall not relocate Employee
to a location more than 40 miles from the Employer's Lincolnshire location.
1.3 Proprietary Property. Employee acknowledges that in the course of
her employment with Employer, Employer will provide Employee with, or access
to, customer lists, memoranda, files, records, trade secrets and such other
proprietary information and property (collectively, the "Proprietary Property")
as is necessary or desirable to assist Employee in her duties. Employee
acknowledges that the Proprietary Property is the sole and exclusive property
of Employer and is not available to the public at large. Employee agrees that
she shall not, while in the employ of Employer or thereafter, communicate or
divulge to, or use for the benefit of herself or any other person, firm or
corporation, without the prior written consent of Employer, any information
relating to the Proprietary Property. Upon termination of Employee's
employment with Employer, Employee shall thereupon return all Proprietary
Property in her possession or control to Employer.
2. FINANCIAL ARRANGEMENTS.
2.1 Compensation. As Employee's compensation for services provided
hereunder, Employer shall do the following:
(a) Salary. Employer shall pay Employee, pursuant to Employer's payroll
schedule, an annual salary in the amount of One Hundred Twenty-Five Thousand
Dollars ($125,000) during the term of this Agreement, subject to annual review
and increase, but not decrease, by the Board of Directors of Employer.
(b) Signing Bonus. Employer shall pay Employee promptly following the
commencement of employment a signing bonus in the amount of Ten Thousand
Dollars ($10,000).
(c) Incentive Stock Option. Employer shall grant to Employee an
incentive stock option to purchase five thousand (5,000) shares of Employee's
Common Stock on the usual terms and conditions provided with respect to grants
pursuant to Employees Stock Option Plan. The price per share for such option
shall be at the closing price on the date of Employee's April meeting of its
Board of Directors.
(d) Bonus Plan. Employee shall participate in Employer's Executive
Compensation Plan and Stock Option Plan, as adopted by Employer's Board of
Directors and Shareholders.
(e) Expenses. Employee shall be reimbursed on a monthly basis for all
reasonable business expenses incurred by her in the performance of her duties
hereunder, to the extent such expenses are substantiated and are consistent
with the general policies of Employer relative to expense reimbursement.
(f) Benefits. In addition to any compensation provided under this
Agreement, Employee shall be entitled to participate in and receive benefits
under any and all 401(k), pension, profit sharing and other employee benefit
plans, stock purchase plan, insurance programs and other benefit programs which
are, from time to time, maintained by Employer for its senior executive
officers, in accordance with the provisions of such plans or programs as from
time to time in effect.
(g) Vacations. Employee shall be entitled to twenty (20) paid vacation
days.
(h) Automobile Allowance. Employee shall receive a non-accountable
annual automobile expense allowance of Six Thousand Dollars ($6,000), payable
in monthly installments. Such amounts are paid to reimburse in full Employee
for all costs and expenses relating to the use and maintenance of her
automobile used in performing Employee's duties.
3. TERM AND TERMINATION.
3.1 Term. This Agreement shall be effective for a period of three (3)
years from the date hereof.
3.2 Termination. This Agreement may also be terminated on the first to
occur of any of the following events:
(a) Agreement. Written agreement by both parties to terminate this
Agreement.
(b) Negligence; Misconduct. (i) substantial neglect of her duties
hereunder by Employee, (ii) gross misconduct or (iii) any intentional act by
Employee constituting fraud, misappropriation, embezzlement, dishonesty or
similar act. Prior to termination of this Agreement under Section 3.2(b)(i)
and 3.2(b)(ii) only, Employer shall be required to provide written notice to
Employee of the act or omission complained of, giving reasonably specific
details in describing necessary corrective action, and Employee shall be given
a period of twenty (20) days in which to cure or correct such act or omission.
If such act or omission is cured or corrected, the right of Employer to
terminate this Agreement under Sections 3.2(b)(i) and 3.2(b)(ii) shall be
extinguished.
(c) Breach. Excluding actions or events which may cause termination of
this Agreement as provided in Section 3.2(b), in the event of the breach of any
of the terms and conditions of this Agreement by either party and the failure
of the breaching party to correct such breach within ten (10) business days
after receipt of written notice of such breach by the breaching party, such
other party may terminate this Agreement immediately upon written notice of
such termination to the breaching party.
(d) Death or Disability. In the event Employee dies or becomes disabled,
to the extent that she is physically or materially incapacitated for more than
six (6) months in the aggregate over a period of twenty-four (24) months so
that Employee is unable to perform her essential duties and functions
hereunder, this Agreement may be terminated by Employer upon written notice to
Employee.
3.3 Effects of Termination. In the event of termination of this
Agreement pursuant to Sections 3.1, 3.2(a), 3.2(b) or 3.2(d) hereof or
termination by Employer pursuant to Section 3.2(c) hereof, Employer shall have
no continuing obligation to Employee hereunder. In the event of termination by
Employee pursuant to Section 3.2(c) hereof or termination by Employer for any
reason not set forth in Section 3.1 or 3.2 hereof, Employer shall continue to
pay Employee salary, bonus, if any is due, and benefits for the duration of the
term.
4. CHANGE OF CONTROL, SALE.
4.1 Payment Upon Termination. Upon a Change of Control or an
Announcement (as each is defined herein) of Employer or Bancshares, Employer
shall pay Employee the sum of one times Employee's base salary in one lump sum
payment or, if such payment is not permissible as a matter of law, then such
other maximum payment, not to exceed one times Employee's base salary, as is
lawful; provided, however, that such payment shall only be made if Employee is
an employee of the Employer immediately prior to the public announcement of a
definitive event which will cause such Change of Control ("Announcement") and
either: (a) within three hundred sixty (360) days following such Announcement,
Employee is terminated by Employer as an employee of the Employer for any
reason; or (b) within one hundred eighty (180) days following such Change of
Control, Employee terminates her employment with the Employer as a result of
her reasonable determination that she is not comfortable continuing to work for
Employer.
4.2 Change of Control Defined. For purposes of this Agreement, a "Change
of Control" shall be deemed to have occurred upon any of the following events:
(a) The consummation of any of the following transactions: (i) a merger,
recapitalization or other business combination of Employer or Bancshares with
or into another corporation pursuant to which Employer or Bancshares,
respectively, is not the continuing or surviving corporation or pursuant to
which shares of the Common Stock of Employer or Bancshares, as the case may be,
are converted into cash, securities of another corporation or other entity or
other property, other than a transaction in which the holders of such Common
Stock immediately prior to such transaction (including any preliminary or other
transaction relating to such transaction) will continue to own at least fifty
(50%) percent of the total voting power of the then-outstanding securities of
the surviving or continuing corporation immediately after such transaction or
(ii) any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all, or substantially all, of the assets of
Employer or Bancshares.
(b) A transaction in which any person (including any "person" as defined
in Section 13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), corporation or other entity (other than Employer
or Bancshares, an affiliate thereof or any profit-sharing, employee ownership
or other employee benefit or similar plan sponsored by Employer or Bancshares
or any subsidiaries thereof, or any trustee of or fiduciary with respect to any
such plan when acting in such capacity, or any group comprised solely of such
entities): shall become, through purchase or otherwise, the "beneficial owner"
(as such term is defined in Rule 13d-3 under the Exchange Act), directly or
indirectly (in one transaction or a series of related transactions), of
securities of Employer or Bancshares, as the case may be, representing fifty
(50%) percent or more of the total voting power of the then-outstanding
securities of Employer or Bancshares, respectively, ordinarily (and apart from
the rights accruing under special circumstances) having the right to vote in
the election of the directors of either Employer or Bancshares.
(c) If, during any period of two (2) consecutive years, individuals who
at the beginning of such period constituted the entire board of directors
("Board") and any new director whose election by the Board or nomination for
election by the stockholders of Employer or Bancshares, as the case may be, was
approved by a vote of eighty (80%) percent of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election by the stockholders was previously so
approved, cease for any reason to constitute a majority thereof.
4.3 Survival. The provisions of this Section 4 shall survive the
expiration of this Agreement until such time as Employee shall no longer be an
employee of the Employer.
5. PAYMENT BY HOLDING COMPANY
In view of Employee's contribution to Bancshares, any compensation or
benefit provided for herein to Employee may, upon the approval of both the
Boards of Directors of Employer and Bancshares, be paid by Bancshares.
6. NON-SOLICITATION/NON-COMPETITION
6.1 Non-Solicitation. Employee shall not, during the term of Employee's
employment with Employer and for a period of six (6) months after the
termination or expiration thereof, directly or indirectly, hire, offer to hire,
divert, entice away, solicit or in any other manner persuade or attempt to
persuade ("Solicitation") any person who is, or was, at any time within the
twelve (12) months prior to such Solicitation, an officer, director, employee,
agent, lessor, lessee, licensor, licensee, customer, prospective customer or
supplier of Employer or Bancshares to discontinue, cease or alter his, her or
its relationship with Employer or Bancshares.
6.2 Non-Competition. Employee shall not, during the term of Employee's
employment with Employer and for a period of six (6) months after the
termination or expiration thereof, except in the event that (a) such
termination occurs upon a Change of Control and otherwise as set forth in
Section 4.1 of this Agreement or (b) Employee is terminated by Employer as an
employee of the Employer for any reason other than one described in Sections
3.2(a), 3.2(b)(i), (ii) or (iii) or 3.2(c), directly or indirectly, with
respect to any business or activity whose principal place of business is
located within ten (10) miles of the three (3) largest then-existing offices of
Employer: (i) engage in any business or activity that competes with the
business of Employer or Bancshares; (ii) enter the employ of any person engaged
in any business or activity that competes with the business of Employer or
Bancshares other than as a lawyer, or render any services to any person for use
in competing with the business of Employer or Bancshares; or (iii) have an
interest in any person engaged in any business or activity that competes with
the business of Employer or Bancshares, directly or indirectly, in any
capacity, including, without limitation, as an individual, partner,
shareholder, officer, director, principal, agent, employee, trustee, creditor
or consultant or any other relationship or capacity. Anything to the contrary
notwithstanding, the Employer and Employee agree that nothing set forth in this
Section 6 shall prohibit or limit Employee's future practice or retention as an
attorney.
6.3 Remedies Upon Breach. Employee acknowledges and agrees that (a)
Employer shall be irreparably injured in the event of a breach by Employee of
any of Employee's obligations under this Section 6.3; (b) monetary damages
shall not be an adequate remedy for any such breach; (c) Employer shall be
entitled to injunctive relief, in addition to any other remedy which it may
have, in the event of any such breach; and (d) the existence of any claims
which Employee may have against Employer, whether under this Agreement or
otherwise, shall not be a defense to the enforcement by Employer of any of its
rights under this Section 6.3.
6.4 Enforcement. The covenants and obligations of Employee contained in
this Section 6 shall be in addition to, and not in lieu of, any covenants and
obligations which Employee may have with respect to the subject matter hereof,
whether by contract, as a matter of law or otherwise, and such covenants and
obligations, and their enforceability, shall survive the termination of this
Agreement.
6.5 Survival. The provisions of this Section 6 shall survive until the
later of (a) six (6) months following the expiration of this Agreement and (b)
six (6) months following the termination of Employee's employment with
Employer.
7. MISCELLANEOUS
7.1 Assignment. This Agreement and all rights and benefits hereunder are
personal to Employee and to Employer. Accordingly, no rights, interests or
benefits hereunder shall be sold, transferred or assigned without the prior
written consent of the other party.
7.2 Employment Status of Employee. It is expressly acknowledged that
Employee, in the performance of her services hereunder, is an employee of
Employer. Accordingly, Employer shall deduct from the compensation paid to
Employee any sums for income tax, social security or any other withholding
taxes as are required by law.
7.3 Extension of Employment. Employer and Employee agree to discuss in
good faith to continuation of Employee's employment in at a reasonable time
prior or six (6) months before the expiration of the term as set forth in
paragraph 3.1 hereof.
7.4 Changes or Modifications. No change or modification of this
Agreement shall be valid unless the same shall be in writing signed by Employer
and Employee. No waiver of any provision hereof shall be valid unless in
writing and signed by the party against whom charged.
7.5 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties with respect to the matters set forth herein. This
Agreement supersedes any and all other agreements between the parties with
respect to the subject matter.
7.6 Notices. Notice required herein shall be effective when delivered in
person or sent by United States Certified Mail, postage prepaid and addressed
to or such other address as notified:
Employer: Board of Directors
Success National Bank
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000-0000
Employee: Xxxxxx X. Xxxxxxxxxxxx
000 Xxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
7.7 Governing Law. This Agreement shall be interpreted, construed and
enforced in accordance with the internal laws of Illinois.
7.8 Separability. The inability or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
7.9 Waiver of Breach. The waiver by either party of a breach or
violation of any provision hereof shall not operate as a waiver of any
subsequent breach of the same or any other provision hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the last date written below.
EMPLOYER:
SUCCESS NATIONAL BANK
By:____________________________
Xxxxxx X. Xxxxxx, Chairman
EMPLOYEE:
_______________________________
Xxxxxx X. Xxxxxxxxxxxx
