Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into this
3rd day of November, 1997, between Exchange National Bancshares,
Inc., a Missouri corporation (the "Company"), and Xxxxx X. Xxxxx
(the "Employee").
WITNESSETH:
WHEREAS, the Company is a bank holding company
controlling 100% of the issued and outstanding shares of common
stock of Union State Bank & Trust of Clinton, a Missouri trust
company (the "Bank"); and
WHEREAS, Employee desires to become employed by the
Company in an executive capacity as President of the Bank for a
period of at least three years, and the Company desires to employ
Employee to serve in such capacity, for the compensation and in
accordance with the terms and provisions contained herein; and
NOW, THEREFORE, in consideration of the foregoing and
the mutual promises and covenants contained herein, the Company
and Employee agree as follows:
1. Employment. The Company agrees to employ the
Employee and the Employee agrees to be employed by the Company in
an executive capacity upon the terms and conditions of this
Agreement for a period of three (3) years from and after the date
of this Agreement, and any extensions thereafter, unless earlier
terminated as provided in Section 9 hereof. At each anniversary
of the date of this Agreement prior to the sixty-second (62nd)
birthday of the Employee, this Agreement shall be automatically
extended for one additional year unless the Company or the
Employee gives the other party written notice of such party's
intention not to extend this Agreement at least thirty (30) days
prior to such anniversary date. Employee agrees that his
employment by the Bank shall satisfy the Company's employment
obligation hereunder and that he will accept employment as
President of the Bank, so long, during the term of this
Agreement, that the Bank's Board of Directors shall name him to
be elected to that position. The Employee's primary location of
employment during the term of this Agreement shall be in Clinton,
Missouri unless the Employee consents in writing to relocate to
another geographic location.
2. Compensation. For all services rendered by the
Employee to the Bank and the Company, the Bank and the Company
shall pay the Employee a salary of not less than one hundred and
ten thousand dollars ($110,000) per year, payable in accordance
with the customary payroll practices of the Bank and the Company,
but in no event less frequently than monthly. Salary payments
shall be subject to withholding and other applicable taxes.
Employee shall be eligible for merit-based increases in
compensation on terms and conditions offered to employees of the
Company generally having responsibilities commensurate to that of
Employee. Employee shall be eligible to participate in such
bonus or other incentive compensation plans as currently are or
may hereafter be established by the Company for employees
generally having responsibilities commensurate to that of
Employee, and which may relate to his contribution to the
profitability of the Bank. Employee shall receive board of
directors fees for his service to the Bank's board, which in any
event shall not be less than three hundred dollars ($300.00) for
each board of directors' meeting attended. Employee shall
receive the same board of directors fees for service on the
Company's board of directors or any other affiliated board as is
customarily paid to employees of the Bank and the Company serving
in such capacity.
3. Expenses. The Company shall reimburse the Employee
for all ordinary and necessary expenses incurred and paid by the
Employee in the course of the performance of the Employee's
duties pursuant to this Agreement and consistent with the
Company's policies in effect from time to time with respect to
travel, entertainment and other business expenses, and subject to
the Company's requirements with respect to the manner of
reporting such expenses.
4. Additional Benefits. The Employee shall be
eligible for such fringe benefits, if any, by way of insurance,
hospitalization and vacations normally provided to employees of
the Company generally having responsibility commensurate to that
of the Employee and such additional benefits as may be from time
to time agreed upon in writing between the Employee and the
Company. The Company shall provide to the Employee a new Company
owned or leased automobile of a year, make and model selected by
the Company befitting the executive office held by Employee with
Bank not less than every three years, and the Company shall pay
the expenses related to the use and upkeep thereof and insurance
related thereto. The tax treatment of all fringe benefits shall
be handled in a manner consistent with the customary practices of
the Bank and the Company.
5. Duties. The Employee agrees that so long as he is
employed under this Agreement he will (i) to the satisfaction of
the Company devote his best efforts and his entire business time
to further properly the interests of the Company, which shall
include all of Employee's current activities and participation in
the American Banker's Association, Missouri Banker's Association,
CSBS and other similar industry groups and organizations (and
such other additional activities and participation in such other
organizations as may be approved by the board of directors of the
Company), and the Company and the Bank acknowledge that such
listed activities shall, together with Employee's duties to the
Bank, constitute Employee's entire business time to further the
interests of the Company and the Bank, (ii) at all times be
subject to the direction and control of the Board of Directors of
his employer (which may be the Company or the Bank, as provided
in Section 1 hereof) with respect to his activities on behalf of
such employer, (iii) comply with all rules, orders and
regulations of the Company, (iv) truthfully and accurately
maintain and preserve such records and make all reports as the
Company may require, and (v) fully account for all monies and
other property of the Company of which he may from time to time
have custody and deliver the same to the Company whenever and
however directed to do so.
6. Covenant Not to Disclose Confidential Information.
The Employee acknowledges that during the course of his
employment with the Company he has or will have access to and
knowledge of certain information and data which the Company
considers confidential and that the release of such information
or data to unauthorized persons would be extremely detrimental to
the Company. As a consequence, the Employee hereby agrees and
acknowledges that he owes a duty to the Company not to disclose,
and agrees that, during or after the term of his employment,
without the prior written consent of the Company he will not
communicate, publish or disclose, to any person anywhere or use
any Confidential Information (as hereinafter defined) for any
purpose other than carrying out his duties as contemplated by
this Agreement. The Employee will use his best efforts at all
times to hold in confidence and to safeguard any Confidential
Information from falling into the hands of any unauthorized
person and, in particular, will not permit any Confidential
Information to be read, duplicated or copied. The Employee will
return to the Company all Confidential Information in the
Employee's possession or under the Employee's control when the
duties of the Employee no longer require the Employee's
possession thereof, or whenever the Company shall so request, and
in any event will promptly return all such Confidential
Information if the Employee's relationship with the Company is
terminated for any or no reason and will not retain any copies
thereof. For purposes hereof the term "Confidential Information"
shall mean any information or data used by or belonging or
relating to the Company that is not known generally to the
banking community, including without limitation, any and all
proprietary data and information relating to the Company's or the
Bank's past, present or future business plans, services offered,
financial information, customer lists, and other information
concerning customers, depositors and borrowers of the Company or
any subsidiary of the Company, whether or not reduced to writing,
or information or data which the Company advises the Employee
should be treated as confidential information.
7. Covenant Not to Compete. The Employee agrees that
during the term of his employment by the Company and for a period
of two (2) years from and after the voluntary or involuntary
termination of such employment for any reason other than a
termination by the Employee pursuant to Section 9(c), he will
not, directly or indirectly, without the express written consent
of the Company:
(a) own, manage, operate, control or participate
in the ownership, management, operation , control or
financing of, or have any interest, financial or
otherwise, in or act as an officer, director, partner,
principal, employee, agent, representative, consultant
or independent contractor of, or in any way assist any
bank, savings and loan, savings bank or other financial
institution (other than the Bank) that is located or
has an office in or within fifteen (15) miles from any
boundary of Xxxxx or St. Clair County, Missouri;
(b) solicit for employment or hire any employees
of the Bank; or
(c) solicit, or interfere with, any contracts or
business relationships with any customer, depositor or
borrower of the Bank.
8. Remedies. Recognizing that irreparable damage will
result to the Company in the event of the breach or threatened
breach of any of the foregoing covenants and assurances by the
Employee contained in Sections 6 or 7 hereof, and that the
Company's remedies at law for any such breach or threatened
breach will be inadequate, the Company and its successors and
assigns, in addition to such other remedies which may be
available to them, shall be entitled to an injunction, including
a mandatory injunction, to be issued by any court of competent
jurisdiction ordering compliance with this Agreement or enjoining
and restraining the Employee, and each and every person, firm or
company acting in concert or participation with him, from the
continuation of such breach and, in addition thereto, he shall
pay to the Company all ascertainable damages, including costs and
reasonable attorneys' fees sustained by the Company by reason of
the breach or threatened breach of said covenants and assurances.
The obligations of the Employee and the rights of the Company,
its successors and assigns under Sections 6 and 7 of this
Agreement shall survive the termination of this Agreement. The
covenants and obligations of the Employee set forth in Sections 6
and 7 hereof are in addition to and not in lieu of or exclusive
of any other obligations and duties of the Employee to the
Company, whether express or implied in fact or in law.
9. Termination.
(a) This Agreement shall terminate immediately
upon the death, disability or adjudication of legal
incompetence of the Employee. For purposes of this
Agreement, the Employee shall be deemed to be disabled
when the employee has become unable, by reason of
physical or mental disability, to satisfactorily
perform his essential job duties and there is no
reasonable accommodation that can be provided to enable
him to be a qualified individual with a disability
under applicable law. Such matters shall be determined
by, or to the reasonable satisfaction of, the Board of
Directors of the Company.
(b) This Agreement may be terminated by the
Company upon notice to the Employee for "Cause." For
purposes of this Agreement, "Cause" shall mean the
occurrence of any of the following events:
(i) Performance by the Employee of
illegal or fraudulent acts, criminal conduct
or willful misconduct or gross negligence
relating to the activities of the Company or
the Bank;
(ii) Performance by the Employee of any
criminal acts involving moral turpitude
having a material adverse effect upon the
Company or the Bank, including, without
limitation, upon their profitability,
reputation or goodwill;
(iii) Failure by the Employee to
perform his duties in a manner which he
knows, or has reason to know, to be in the
Company's or the Bank's best interests, which
he fails to cure promptly after receiving
written notice thereof;
(iv) Continued conduct by the Employee
that is damaging to the business, employee or
customer relations of the Company or the Bank
after receiving written notice from the
Company or the Bank to cease such conduct; or
(v) Any other material breach of the
Employee's obligations hereunder which is
incurable or which he fails to cure promptly
after receiving written notice thereof.
(c) This Agreement may be terminated by the
Employee upon written notice to the Company in the
event of a material breach of the Company's obligations
hereunder which is incurable or which the Company fails
to cure within 15 days after receiving written notice
thereof.
(d) In the event this Agreement is terminated,
the parties' obligations under this Agreement shall
terminate immediately (except as otherwise provided
herein), and neither the Employee nor his estate,
heirs, successors or assigns shall be entitled to any
further compensation hereunder other than payment of
any unpaid compensation that accrued prior to such
termination; provided, however, that the termination of
this Agreement pursuant to subsections (b) or (c) of
this Section shall not limit any other remedies to
which the terminating party may be entitled in law or
in equity as a result of any breach of this Agreement
by the other party hereto.
10. Waiver of Breach. Failure of the Company to
demand strict compliance with any of the terms, covenants or
conditions hereof shall not be deemed a waiver of the term,
covenant or condition, nor shall any waiver or relinquishment by
the Company of any right or power hereunder at any one time or
more times be deemed a waiver or relinquishment of the right or
power at any other time or times.
11. No Conflicts. The Employee represents and
warrants to the Company that neither the execution nor delivery
of this Agreement, nor the performance of the Employee's
obligations hereunder will conflict with, or result in a breach
of, any term, condition, or provision of, or constitute a default
under, any obligation, contract, agreement, covenant or
instrument to which the Employee is a party or under which the
Employee is bound, including without limitation, the breach by
the Employee of a fiduciary duty to any former employers.
12. Entire Agreement; Amendment. This Agreement
cancels and supersedes all previous agreements relating to the
subject matter of this Agreement, written or oral, between the
parties hereto and contains the entire understanding of the
parties hereto relating to the terms of the Employee's employment
and shall not be amended, modified or supplemented in any manner
whatsoever except as otherwise provided herein or in writing
signed by each of the parties hereto.
13. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only
and shall in no way restrict or otherwise modify any of the terms
or provisions hereof.
14. Governing Law. This Agreement and all rights and
obligations of the parties hereunder shall be governed by, and
construed and interpreted in accordance with, the laws of the
State of Missouri applicable to agreements made and to be
performed entirely within the State, including all matters of
enforcement, validity and performance.
15. Arbitration. Any dispute between any of the
parties hereto or claim by a party against another party arising
out of or in relation to this Agreement or in relation to any
alleged breach thereof shall be finally determined by arbitration
in accordance with the rules then in force of the American
Arbitration Association. The arbitration proceedings shall take
place in Jefferson City, Missouri or such other location as the
parties in dispute hereafter may agree upon; and such proceedings
shall be governed by the laws of the State of Missouri as such
laws are applied to agreements between residents of such State
entered into and to be performed entirely within that State.
The parties shall agree upon one arbitrator, who shall
be an individual skilled in the legal and business aspects of the
subject matter of this Agreement and of the dispute. If the
parties cannot agree upon one arbitrator, each party in dispute
shall select one arbitrator and the arbitrators so selected shall
select a third arbitrator. In the event the arbitrators cannot
agree upon the selection of a third arbitrator, the third
arbitrator shall be appointed by the American Arbitration
Association at the request of any of the parties in dispute. The
arbitrators shall, if possible, be individuals skilled in the
legal and business aspects of the subject matter of this
Agreement and of the dispute.
The decision rendered by the arbitrator or arbitrators
shall be accompanied by a written opinion in support thereof.
The decision shall be final and binding upon the parties in
dispute without right of appeal. Judgment upon the decision may
be entered into in any court having jurisdiction thereof, or
application may be made to that court for a judicial acceptance
of the decision and an order of enforcement. Costs of the
arbitration shall be assessed by the arbitrator or arbitrators
against any or all of the parties in dispute, and shall be paid
promptly by the party or parties so assessed.
16. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be
an original and all of which together shall constitute one
agreement which is binding upon all the parties hereto.
17. Notice. All notices, requests, demands and other
communications hereunder shall be deemed duly given if delivered
by hand or if mailed by certified or registered mail with postage
prepaid or nationally recognized express delivery service with
delivery confirmed, addressed as follows:
If to the Company:
Exchange National Bancshares, Inc.
000 X. Xxxx Xxxxxx
Xxxxxxxxx Xxxx, XX 00000-0000
Attn: President
If to the Employee:
Xxxxx X. Xxxxx
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
or to any other address as either party may provide to the other
in writing.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION
WHICH MAY BE ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, the Company and Employee have
executed this Agreement as of the day and year first above
written.
COMPANY:
EXCHANGE NATIONAL BANCSHARES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Chairman and President
EMPLOYEE:
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
