Exhibit 10.1
EMPLOYMENT AGREEMENT
This Agreement is made effective as of______________ __, 2002 (the
"Effective Date"), by and between Clay County Savings Bank a federally chartered
savings bank with its principal office in Liberty, Missouri, and XXXX X. XXXXX
(the "Executive"). References to the "Company" mean CCSB Financial Corp., the
wholly owned subsidiary of the Company.
WHEREAS, the Executive has served as an officer of the Bank since
___________ and as an officer of the Company since its formation as the holding
company for the Bank; and
WHEREAS, the Bank wishes to assure itself of the services of Executive
as an officer of the Bank for the period provided in this Agreement; and
WHEREAS, in order to induce the Executive to remain in the employ of
the Bank and to provide further incentive to achieve the financial and
performance objectives of the Bank and the Company, the parties desire to
specify the severance benefits which shall be due the Executive in the event
that his employment with the Bank is terminated under specified circumstances;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, Executive agrees to
serve as President and Chief Executive Officer of the Bank (the "Executive
Position"). During said period, Executive also agrees to serve, if elected, as
an officer and director of any subsidiary or affiliate of the Bank. Failure to
reelect Executive to the Executive Position without the consent of the Executive
during the term of this Agreement (except for any termination for Cause, as
defined herein) shall constitute a breach of this Agreement.
2. TERM AND DUTIES.
(a) The period of Executive's employment under this Agreement shall
begin as of the date first above written and shall continue for a period of
thirty-six (36) full calendar months thereafter. Commencing on the first
anniversary date of this Agreement, and continuing at each anniversary date
thereafter, the Agreement shall renew for an additional year such that the
remaining term shall be thirty-six (36) full calendar months; provided, however,
if written notice of nonrenewal is provided to Executive at least ten (10) days
and not more than thirty (30) days prior to any anniversary date, the employment
of Executive hereunder shall cease at the end of thirty-six (36) months
following such anniversary date. Prior to each notice period for non-renewal,
the disinterested members of the board of directors ("Board") will conduct a
performance evaluation and review of the Executive for purposes of determining
whether to extend the Agreement, and the results thereof shall be included in
the minutes of the Board's meeting and communicated to Executive.
(b) During the period of his employment hereunder, except for periods
of absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence approved by the Board, Executive shall devote substantially
all his business time, attention, skill, and efforts to the faithful performance
of his duties hereunder including activities and services related to the
organization, operation and management of the Bank; provided, however, that,
with the approval of the Board of the Bank, as evidenced by a resolution of such
Board, from time to time, Executive may serve, or continue to serve, on the
boards of directors of, and hold any other offices or positions in, business
companies or business organizations, which, in such Board's judgment, will not
present any conflict of interest with the Bank, or materially affect the
performance of Executive's duties pursuant to this Agreement (it being
understood that membership in and service on boards or committees of social,
religious, charitable or similar organizations does not require Board approval
pursuant to this Section 2(b)). For purposes of this Section 2(b), Board
approval shall be deemed provided as to service with any such business companies
or organizations that Executive was serving as of the date of this Agreement as
set forth in Exhibit A hereto.
3. COMPENSATION, BENEFITS AND REIMBURSEMENT.
(a) The compensation specified under this Agreement shall constitute
the salary and benefits paid for the duties described in Section 2(b). The Bank
shall pay Executive as compensation a salary of not less than $104,700 per year
("Base Salary"). Such Base Salary shall be payable biweekly, or with such other
frequency as officers and employees are generally paid. During the period of
this Agreement, Executive's Base Salary shall be reviewed at least annually.
Such review may be conducted by a Committee designated by the Board, and the
Board may increase, but not decrease (except a decrease that is generally
applicable to all employees), Executive's Base Salary (any increase in Base
Salary shall become the "Base Salary" for purposes of this Agreement). In
addition to the Base Salary provided in this Section 3(a), the Bank shall
provide Executive at no cost to Executive with all such other benefits as are
provided uniformly to permanent full-time employees of the Bank. Base Salary
shall include any amounts of compensation deferred by Executive under qualified
and nonqualified plans maintained by the Bank.
(b) The Bank will provide Executive with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving benefit from immediately prior
to the beginning of the term of this Agreement, and the Bank will not, without
Executive's prior written consent, make any changes in such plans, arrangements
or perquisites which would adversely affect Executive's rights or benefits
thereunder, except as to any changes that are applicable to all participating
employees or as reasonably or customarily available. Without limiting the
generality of the foregoing provisions of this Subsection (b), Executive will be
entitled to participate in or receive benefits under any employee benefit plans
including, but not limited to, retirement plans, supplemental retirement plans,
pension plans, profit-sharing plans, health-and-accident insurance plans,
medical coverage or any other employee benefit plan or arrangement made
available by the Bank or the Company in the future to its senior executives and
key management employees, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans and arrangements. Executive
will be entitled to incentive compensation and bonuses as provided in any plan
of the Bank or the Company in which Executive is eligible to participate.
Nothing paid to the
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Executive under any such plan or arrangement will be deemed to be in lieu of
other compensation to which the Executive is entitled under this Agreement.
(c) In addition to the Base Salary provided for by paragraph (a) of
this Section 3, the Bank or the Company shall pay or reimburse Executive for all
reasonable travel and other reasonable expenses incurred by Executive performing
his obligations under this Agreement and may provide such additional
compensation in such form and such amounts as the Board may from time to time
determine. The Bank shall reimburse the Executive for his ordinary and necessary
business expenses, including, without limitation, fees for memberships in such
clubs and organizations as the Executive and the Board shall mutually agree are
necessary and appropriate for business purposes, and travel and entertainment
expenses, incurred in connection with the performance of his duties under this
Agreement, upon presentation to the Bank of an itemized account of such expenses
in such form as the Bank may reasonably require.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by the Bank of Executive's full-time employment hereunder for any
reason other than a termination following a Change in Control, as defined in
Section 5(a) hereof, or a termination for Cause, as defined in Section 8 hereof,
or a termination upon Retirement as defined in Section 7 hereof, or a
termination for disability as set forth in Section 6 hereof; and (ii)
Executive's resignation from the Bank's employ, upon any of the following: (A)
failure to elect or reelect or to appoint or reappoint Executive to the
Executive Position, or to elect Executive to the Board of Directors of Bank,
unless consented to by the Executive, (B) a material change in Executive's
function, duties, or responsibilities, which change would cause Executive's
position to become one of lesser responsibility, importance, or scope from the
position and attributes thereof described in Sections 1 and 2 above, to which
Executive has not agreed in writing (and any such material change shall be
deemed a continuing breach of this Agreement), (C) a relocation of Executive's
principal place of employment to a location that is more than 25 miles from the
location of the Bank's principal executive offices as of the date of this
Agreement, or a material reduction in the benefits and perquisites, including
Base Salary, to the Executive from those being provided as of the effective date
of this Agreement (except for any reduction that is part of an employee-wide
reduction in pay or benefits), (D) a liquidation or dissolution of the Bank, or
(E) material breach of this Agreement by the Bank. Upon the occurrence of any
event described in clauses (ii) (A), (B), (C), (D) or (E) above, Executive shall
have the right to elect to terminate his employment under this Agreement by
resignation upon not less than thirty (30) days prior written notice given
within a reasonable period of time (not to exceed, except in case of a
continuing breach, four calendar months) after the event giving rise to said
right to elect, which termination by Executive shall be an Event of Termination.
No payments or benefits shall be due to Executive under this Agreement upon the
termination of Executive's employment except as provided in Section 4 or 5
hereof.
(b) Upon the occurrence of an Event of Termination, the Bank shall pay
to Executive, or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or liquidated
damages, or both, a cash amount equal to the
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compensation payable to the Executive for the remaining term of the Agreement.
For these purposes compensation includes (A) the highest annual rate of Base
Salary paid to Executive at any time under this Agreement, and (B) the greater
of (x) the average annual cash bonus paid to Executive with respect to the three
completed fiscal years prior to the termination, or (y) the cash bonus paid to
Executive with respect to the fiscal year ended prior to the termination and (C)
any other taxable or nontaxable compensation paid to or on behalf of the
Executive during the twelve months ending immediately prior to Executive's
termination, including the amount of any benefits credited, accrued or received
pursuant to any employee benefit plan, other than a welfare plan, on behalf of
the Executive maintained by the Bank or the Company during such period. The sum
of these amounts shall be divided by twelve and multiplied by the number of full
months in the remaining term of the Agreement. Further, for these purposes, any
partial month shall be rounded up. At the election of the Executive, which
election is to be made annually by January 31 (or as to the first year, within
thirty days of the date of the Agreement) of each year and is irrevocable for
the year in which made (and once payments commence), such payments shall be made
in a lump sum or paid quarterly during the remaining term of the agreement
following the Executive's termination. In the event that no election is made,
payment to the Executive will be made in a lump sum without reduction for
present value. Such payments shall not be reduced in the event the Executive
obtains other employment following termination of employment.
(c) Upon the occurrence of an Event of Termination, the Bank will cause
to be continued for the remaining term of the Agreement, life, medical and
dental coverage substantially comparable, as reasonably or customarily
available, to the coverage maintained by the Bank for Executive prior to his
termination, except to the extent such coverage may be changed in its
application to all Bank employees. In the alternative, the Company shall pay to
the Executive a cash amount equal to the Executive's cost of obtaining such
benefits on his own, adjusted for any federal or state income taxes the
Executive has to pay on the cash amount.
5. CHANGE IN CONTROL.
(a) "Change in Control" shall mean a change in control of a nature
that: (i) would be required to be reported in response to Item 1(a) of the
current report on Form 8-K, as in effect on the date hereof, pursuant to Section
13 or 15(d) of the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); or (ii)
results in a Change in Control of the Bank or the Company within the meaning of
the Home Owners' Loan Act, as amended ("HOLA"), and applicable rules and
regulations promulgated thereunder, as in effect at the time of the Change in
Control; or (iii) without limitation such a Change in Control shall be deemed to
have occurred at such time as (a) any "person" (as the term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 25% or more of the combined voting power
of Company's outstanding securities except for any securities purchased by the
Bank's employee stock ownership plan or trust; or (b) individuals who constitute
the Board on the date hereof (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof, provided that any person becoming a
director subsequent to the date hereof whose election was approved by a vote of
at least three-quarters of the directors comprising the Incumbent Board, or
whose nomination for election by the Company's stockholders was approved by the
same Nominating Committee serving under an Incumbent Board, shall be, for
purposes of this clause (b),
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considered as though he were a member of the Incumbent Board; or (c) a plan of
reorganization, merger, consolidation, sale of all or substantially all the
assets of the Bank or the Company or similar transaction in which the Bank or
Company is not the surviving institution occurs; or (d) a proxy statement
soliciting proxies from stockholders of the Company, by someone other than the
current management of the Company, seeking stockholder approval of a plan of
reorganization, merger or consolidation of the Company or similar transaction
with one or more corporations as a result of which the outstanding shares of the
class of securities then subject to the Plan are to be exchanged for or
converted into cash or property or securities not issued by the Company; or (e)
a tender offer is made for 25% or more of the voting securities of the Company
and the shareholders owning beneficially or of record 25% or more of the
outstanding securities of the Company have tendered or offered to sell their
shares pursuant to such tender offer and such tendered shares have been accepted
by the tender offeror.
(b) If any of the events described in Section 5(a) hereof constituting
a Change in Control shall have occurred or the Board has determined that a
Change in Control has occurred, Executive shall be entitled to the benefits
provided in paragraphs (c) and (d) of this Section 5 upon his subsequent
termination of employment at any time during the term of this Agreement
(regardless of whether such termination results from his resignation or his
dismissal), unless such termination is (A) because of his death or Retirement,
or, (B) for Disability. Upon a Change in Control, and for a period of one year
thereafter, Executive shall have the right to elect to terminate his employment
with the Bank, for any reason, and receive the benefits provided for in this
Section 5.
(c) Upon the occurrence of a Change in Control followed by the
termination of Executive's employment by the Bank (including a termination
referred to in the last sentence of Section 5(b) above), the Executive, or, in
the event of his subsequent death (subsequent to such termination), his
beneficiary or beneficiaries, or his estate, as the case may be, shall receive
as severance pay or liquidated damages, or both, an amount equal to the greater
of (i) three times the sum of: (A) the highest annual rate of Base Salary paid
to Executive at any time under this Agreement, and (B) the greater of (x) the
average annual cash bonus paid to Executive with respect to the three completed
fiscal years prior to the termination, or (y) the cash bonus paid to Executive
with respect to the fiscal year ended prior to the termination, or (ii) 299% of
the Executive's "base amount" as defined in Section 280G(b)(3) of the Code.
(d) Upon the occurrence of a Change in Control followed by the
termination of Executive's employment, the Bank will cause to be continued life,
medical and dental insurance coverage substantially comparable, as reasonably or
customarily available, to the coverage maintained by the Bank for Executive
prior to his severance, except to the extent such coverage is changed in its
application to all employees of the Bank or not available on an individual basis
to a terminated employee. Such coverage shall cease thirty-six (36) months from
the date of Executive's termination of employment. In the alternative, the Bank
shall pay to the Executive a cash amount equal to the Executive's cost of
obtaining such benefits on his own, adjusted for any federal or state income
taxes the Executive has to pay on the cash amount.
(e) Notwithstanding the preceding paragraphs of this Section, in the
event that:
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(i) the aggregate payments or benefits to be made or afforded to
Executive under said paragraphs (the "Termination benefits") would be
deemed to include an "excess parachute payment" under Section 280G of
the Code or any successor thereto; and
(ii) if such Termination Benefits were reduced to an amount (the
"Non-Triggering Amount"), the value of which is one dollar ($1.00) less
than an amount equal to the total amount of payments permissible under
Section 280G of the Code or any successor thereto, then the Termination
Benefits to be paid to Executive shall be so reduced so as to be a
Non-Triggering Amount.
6. TERMINATION FOR DISABILITY OR DEATH.
(a) Termination of the Executive's employment based on "Disability"
shall mean termination because of any physical or mental impairment which
qualifies the Executive for disability benefits under the applicable long-term
disability plan maintained by the Employers or any subsidiary or, if no such
plan applies, which would qualify the Executive for disability benefits under
the Federal Social Security System. The provisions of paragraph 6(b) and (c)
shall apply upon the termination Executive's employment for "Disability.
(b) The Bank will pay Executive, as disability pay, a bi-weekly payment
equal to the seventy-five percent (75%) of the Executive's bi-weekly rate of
Base Salary on the effective date of such termination. These disability payments
shall commence on the effective date of Executive's termination and will end on
the earlier (i) the date Executive returns to the full-time employment of the
Bank in the same capacity as he was employed prior to his termination for
Disability and pursuant to an employment agreement between Executive and the
Bank; (ii) Executive's full-time employment by another employer; (iii) Executive
attaining the age of 65; or (iv) Executive's death. The disability pay shall be
reduced by the amount, if any, paid to the Executive under any plan of the Bank
or the Company providing disability benefits to the Executive.
(c) The Bank will cause to be continued life, medical and dental
coverage substantially comparable, as reasonable or customarily available, to
the coverage maintained by the Bank for Executive prior to his termination for
Disability, except to the extent such coverage may be changed in its application
to all Bank employees or not available on an individual basis to an employee
terminated for Disability. This coverage shall cease upon the earlier of (i) the
date Executive returns to the full-time employment of the Bank in the same
capacity as he was employed prior to his termination for Disability and pursuant
to an employment agreement between Executive and the Bank; (ii) Executive's
full-time employment by another employer; (iii) Executive attaining the age of
65; or (iv) Executive's death.
(d) In the event of Executive's death during the term of the Agreement,
his estate, legal representatives or named beneficiaries (as directed by
executive in writing) shall be paid Executive's Base Salary as defined in
paragraph 3(a) at the rate in effect at the time of Executive's death for a
period of one (1) year from the date of the Executive's death, and the
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Bank will continue to provide medical, dental and other insurance benefits
normally provided for an Executive's family for one (1) year after the
Executive's death.
7. TERMINATION UPON RETIREMENT.
Termination of the Executive's employment based on "Retirement" shall
mean termination of Executive's employment at age 65 or in accordance with any
retirement policy established with Executive's consent with respect to him. Upon
termination of Executive upon Retirement, no amounts or benefits shall be due
Executive under this Agreement, and the Executive shall be entitled to all
benefits under any retirement plan of the Bank and other plans to which
Executive is a party.
8. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination because of the
Executive's personal dishonesty, incompetence, willful misconduct, any breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule, or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order, or material
breach of any provision of this Agreement. In determining incompetence, the acts
or omissions shall be measured against standards generally prevailing in the
savings institution and commercial banking industry. For purposes of this
paragraph, no act or failure to act on the part of Executive shall be considered
"willful" unless done, or omitted to be done, by the Executive not in good faith
and without reasonable belief that the Executive's action or omission was in the
best interest of the Bank. Executive's employment shall not be terminated in
accordance with this paragraph for any act or action or failure to act which is
undertaken or omitted in accordance with a resolution of the Board or upon
advice of the Bank's counsel. Notwithstanding the foregoing, Executive shall not
be deemed to have been Terminated for Cause unless and until there shall have
been delivered to him a copy of a resolution duly adopted by the affirmative
vote of not less than a majority of the members of the Board at a meeting of the
Board called and held for that purpose (after reasonable notice to Executive and
an opportunity for him, together with counsel, to be heard before the Board),
finding that in the good faith opinion of the Board, Executive was guilty of
conduct justifying Termination for Cause and specifying the particulars thereof
in detail. The Executive shall not have the right to receive compensation or
other benefits for any period after Termination for Cause. Any non-vested stock
options granted to Executive under any stock option plan of the Bank, the
Company or any subsidiary or affiliate thereof, shall become null and void
effective upon Executive's receipt of Notice of Termination for Cause pursuant
to Section 9 hereof, and shall not be exercisable by Executive at any time
subsequent to such Termination for Cause (unless it is determined in arbitration
that grounds for Termination for Cause did not exist, in which event all terms
of the options as of the date of termination shall apply, and any time periods
for exercising such options shall commence from the date of resolution in
arbitration).
9. NOTICE.
(a) Any purported termination by the Bank for Cause shall be
communicated by Notice of Termination to the Executive. For purposes of this
Agreement, a "Notice of Termination" shall mean a written notice which shall
indicate the specific termination provision in this
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Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated. If, within thirty (30) days after
any Notice of Termination for Cause is given, the Executive notifies the Bank
that a dispute exists concerning the termination, the parties shall promptly
proceed to arbitration. Notwithstanding the pendency of any such dispute, the
Bank may discontinue to pay Executive compensation until the dispute is finally
resolved in accordance with this Agreement. If it is determined that Executive
is entitled to compensation and benefits under Section 4 or 5 of this Agreement,
the payment of such compensation and benefits by the Bank shall commence
immediately following the date of resolution by arbitration, with interest due
Executive on the cash amount that would have been paid pending arbitration (at
the prime rate as published in the Wall Street Journal from time to time).
(b) Any other purported termination by the Bank or by Executive shall
be communicated by a Notice of Termination to the other party. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in detail the facts and circumstances claimed to provide a
basis for termination of employment under the provision so indicated. "Date of
Termination" shall mean the date of the Notice of Termination. If, within thirty
(30) days after any Notice of Termination is given, the party receiving such
Notice of Termination notifies the other party that a dispute exists concerning
the termination, the parties shall promptly proceed to arbitration as provided
in Section 19 of this Agreement. Notwithstanding the pendency of any such
dispute, the Bank shall continue to pay the Executive his Base Salary, and other
compensation and benefits in effect when the notice giving rise to the dispute
was given (except as to termination of Executive for Cause). In the event of the
voluntary termination by the Executive of his employment, which is disputed by
the Bank, and if it is determined in arbitration that Executive is not entitled
to termination benefits pursuant to this Agreement, he shall return all cash
payments made to him pending resolution by arbitration, with interest thereon at
the prime rate as published in the Wall Street Journal from time to time if it
is determined in arbitration that Executive's voluntary termination of
employment was not taken in good faith and not in the reasonable belief that
grounds existed for his voluntary termination.
10. NON-COMPETITION AND POST-TERMINATION OBLIGATIONS.
(a) All payments and benefits to Executive under this Agreement shall
be subject to Executive's compliance with paragraph (b), (c) and (d) of this
Section 10.
(b) Executive shall, upon reasonable notice, furnish such information
and assistance to the Bank as may reasonably be required by the Bank in
connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party.
(c) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Employers and
affiliates thereof, as it may exist from time to time, is a valuable, special
and unique asset of the business of the Employers. Executive will not, during or
after the term of his employment, disclose any knowledge of the past, present,
planned or considered business activities of the Employers or affiliates thereof
to any person, firm, corporation, or other entity for any reason or purpose
whatsoever (except for such disclosure as may be required to be provided to the
Office of Thrift Supervision, the Federal
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Deposit Insurance Corporation, or other bank regulatory agency with jurisdiction
over the Bank or Executive). Notwithstanding the foregoing, Executive may
disclose any knowledge of banking, financial and/or economic principles,
concepts or ideas which are not solely and exclusively derived from the business
plans and activities of the Bank, and Executive may disclose any information
regarding the Bank which is otherwise publicly available or which Executive is
otherwise legally required to disclose. In the event of a breach or threatened
breach by the Executive of the provisions of this Section 10, the Employers will
be entitled to an injunction restraining Executive from disclosing, in whole or
in part, the knowledge of the past, present, planned or considered business
activities of the Employers or affiliates thereof, or from rendering any
services to any person, firm, corporation, other entity to whom such knowledge,
in whole or in part, has been disclosed or is threatened to be disclosed.
Nothing herein will be construed as prohibiting the Employers from pursuing any
other remedies available to the Employers for such breach or threatened breach,
including the recovery of damages from Executive.
(d) Upon any termination of Executive's employment hereunder pursuant
to Section 4 of this Agreement, Executive agrees not to compete with the
Employers for a period of one (1) year following such termination in any city,
town or county in which the Bank has an office or has filed an application for
regulatory approval to establish an office, determined as of the effective date
of such termination, except as agreed to pursuant to a resolution duly adopted
by the Board. Executive agrees that during such period and within said cities,
towns and counties, Executive shall not work for or advise, consult or otherwise
serve with, directly or indirectly, any entity whose business materially
competes with the depository, lending or other business activities of the Bank.
The parties hereto, recognizing that irreparable injury will result to the Bank,
its business and property in the event of Executive's breach of this Section
10(d) agree that in the event of any such breach by Executive, the Bank will be
entitled, in addition to any other remedies and damages available, to an
injunction to restrain the violation hereof by Executive, Executive's partners,
agents, servants, employers, employees and all persons acting for or with
Executive. Executive represents and admits that Executive's experience and
capabilities are such that Executive can obtain employment in a business engaged
in other lines and/or of a different nature than the Bank, and that the
enforcement of a remedy by way of injunction will not prevent Executive from
earning a livelihood. Nothing herein will be construed as prohibiting the Bank
from pursuing any other remedies available to it for such breach or threatened
breach, including the recovery of damages from Executive.
11. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank. The Company, however, guarantees
payment and provision of all amounts and benefits due hereunder to Executive,
and if such amounts and benefits due from the Bank are not timely paid or
provided by the Bank, such amounts and benefits shall be paid or provided by the
Company.
12. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior employment agreement between the Bank or any
predecessor of the Bank
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and Executive, except that this Agreement shall not affect or operate to reduce
any benefit or compensation inuring to the Executive of a kind elsewhere
provided. No provision of this Agreement shall be interpreted to mean that
Executive is subject to receiving fewer benefits than those available to him
without reference to this Agreement.
13. NO ATTACHMENT; BINDING ON SUCCESSORS.
(a) Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit
of, Executive and the Bank and their respective successors and assigns.
14. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future as to any act other
than that specifically waived.
15. REQUIRED PROVISIONS.
(a) The Bank may terminate the Executive's employment at any time.
Executive shall not have the right to receive compensation or other benefits for
any period after Termination for Cause as defined in Section 8 hereinabove.
(b) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank's affairs by a notice
served under Section 8(e)(3) (12 USC (S)1818(e)(3)) or 8(g)(1) (12 USC
(S)1818(g)(1)) of the Federal Deposit Insurance Act, the Association'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, the Association may in its discretion (i) pay the Executive all or
part of the compensation withheld while its contract obligations were suspended
and (ii) reinstate (in whole or in part) any of its obligations which were
suspended.
(c) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) (12 USC (S)1818(e)(4)) or 8(g)(1) (12 USC (S)1818(g)(1)) of
the Federal Deposit Insurance Act, all obligations of the Association under this
contract shall terminate as of the effective date of the order, but vested
rights of the contracting parties shall not be affected.
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(d) If the Association is in default as defined in Section 3(x)(1)
(12 USC (S)1813(x)(1)) of the Federal Deposit Insurance Act, all obligations of
the Bank under this contract shall terminate as of the date of default, but this
paragraph shall not affect any vested rights of the contracting parties.
(e) All obligations of the Bank under this contract shall be
terminated, except to the extent determined that continuation of the contract is
necessary for the continued operation of the Bank, (i) by the Director of the
Federal Deposit Insurance Corporation ("FDIC") or his or her designee, at the
time 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 USC (S)1823(c)) of
the Federal Deposit Insurance Act; or (ii) by the Director or his or her
designee at the time the Director or his or her designee approves a supervisory
merger to resolve problems related to operation of the Bank or when the Bank is
determined by the Director 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.
(f) Notwithstanding anything herein contained to the contrary, any
payments to the Executive by the Company, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with Section
18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and the
regulations promulgated thereunder in 12 C.F.R. Part 359.
16. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
17. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
18. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Missouri
but only to the extent not superseded by federal law.
19. 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 the employee within
twenty-five miles of Liberty, Missouri, 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
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shall be entitled to seek specific performance of his right to be paid until the
Date of Termination during the pendency of any dispute or controversy arising
under or in connection with this Agreement.
20. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Bank, provided that the dispute or interpretation has been
settled by Executive and the Bank or resolved in the Executive's favor.
21. INDEMNIFICATION.
The Bank shall provide Executive (including his heirs, executors and
administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense, and shall indemnify Executive (and
his heirs, executors and administrators) to the fullest extent permitted under
Delaware 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 a director or officer of the Bank or
the Company (whether or not he continues to be a director or 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 (such settlements must be approved by the
Board or the board of directors of the Company, as appropriate), provided,
however, neither the Bank nor Company shall be required to indemnify or
reimburse the Executive for legal expenses or liabilities incurred in connection
with an action, suit or proceeding arising from any illegal or fraudulent act
committed by the Executive.
22. NOTICE.
For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Company: CCSB Financial Corp.
0000 Xxxx 000 Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
To the Bank: Clay County Savings Bank
0000 Xxxx 000 Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
To the Executive: Xxxx X. Xxxxx
______________________________
______________________________
______________________________
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SIGNATURES
IN WITNESS WHEREOF, the Company and the Bank have caused this Agreement
to be executed by their duly authorized officers, and Executive has signed this
Agreement, on the day and date first above written. The Company has become a
party to this Agreement for the sole purpose of binding itself to the duties and
obligations set forth in Sections 11 and 21 hereof.
ATTEST: CCSB FINANCIAL CORP.
_________________________ By:______________________________________
Secretary
ATTEST: CLAY COUNTY SAVINGS BANK
_________________________ By:______________________________________
Secretary
WITNESS: EXECUTIVE:
_________________________ _________________________________________
Secretary Xxxx X. Xxxxx
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