EMPLOYMENT AGREEMENT BETWEEN QCR HOLDINGS, INC., QUAD CITY BANK AND TRUST COMPANY AND MICHAEL A. BAUER (As Amended and Restated December 14, 2006)
Exhibit 10.31
EMPLOYMENT AGREEMENT BETWEEN
QCR HOLDINGS, INC.,
QUAD CITY BANK AND TRUST COMPANY
AND XXXXXXX X. XXXXX
(As Amended and Restated December 14, 2006)
QCR HOLDINGS, INC.,
QUAD CITY BANK AND TRUST COMPANY
AND XXXXXXX X. XXXXX
(As Amended and Restated December 14, 2006)
THIS EMPLOYMENT AGREEMENT (this “Agreement”), dated as of the 14th day of December,
2006 (the “Effective Date”), is between QCR HOLDINGS, INC. (the “Company”) and QUAD CITY BANK AND
TRUST COMPANY (the “Bank”) (collectively, the “Employer”), and XXXXXXX X. XXXXX (the “Employee”).
WHEREAS, Employee is currently serving as an executive of the Company and the Bank pursuant to
that certain Employment Agreement as amended and restated March 21, 2006 (the “Prior Employment
Agreement”); and
WHEREAS, the parties desire to further amend and restate the Prior Employment Agreement on the
terms hereinafter set forth.
Section 1. Employment. The Employer hereby employs the Employee, and the
Employee hereby accepts employment, upon the terms and conditions hereinafter set forth.
Section 2. Duties. The Employee agrees to provide all services necessary,
incidental or convenient as an officer and employee of the Company and the Bank as provided herein.
The Employer shall designate the location or locations for the performance of the Employee’s
services. Consistent with the Company’s corporate succession plan, Employee shall serve as
President and Chief Executive Officer (“CEO”) of the Bank through May 2, 2007. Upon relinquishing
the above titles with the Bank, Executive shall continue as an employee of the Employer and shall
become Vice Chairman of the board of directors of the Bank, until otherwise provided by the
Company’s board of directors (the “Board”). Executive shall, subject to stockholder approval and
the discretion of the Board, continue to serve on the Board during the Term (as defined below) and
shall serve as its chairman through December 31, 2006, and as Vice Chairman thereafter, until
otherwise provided by the Board. The Employer shall furnish or make available to the Employee such
equipment, office space and other facilities and services as shall be adequate and necessary for
the performance of his duties.
Section 3. Term. The term of this Agreement shall commence on the Effective
Date, and shall continue through the date of the annual meeting of the Company’s stockholders to be
held in May of 2009, at which time it shall terminate (the “Term”), unless it is earlier terminated
pursuant to Sections 6, 7 or 10 hereunder.
Section 4. Compensation. As compensation for the services to be provided by
the Employee hereunder:
(a) Base Salary. The Bank shall pay Employee an annual base salary of two
hundred and twenty thousand five hundred dollars ($220,500) (“Base Salary”). Base Salary shall be
payable bi-weekly, in equal installments in accordance with the Employer’s payroll practice. The
Company shall reimburse the Bank for Employee’s Base Salary attributable to services for the
Company. The Employee’s Base Salary shall be subject to
review during the Term in the sole and absolute discretion of the Executive
Committee of the board of directors of the Company (the “Committee”).
(b) Annual Bonuses. The Employee shall be entitled to receive cash bonuses
(“Cash Bonus” or “Cash Bonuses”), based upon performance, which may be granted in the future in the
discretion of the Employer, which may be based upon performance criteria or levels independent of
any such criteria or levels that may established for other executive management, as modified from
time to time, in the sole discretion of the Committee.
(c) Transition Incentive Bonus. The Employee shall be eligible to receive
an additional bonus of up to eighty thousand dollars ($80,000) per year (the “Transition Bonus”).
The performance cycle for the Transition Bonus shall run between the dates of the Company’s annual
stockholders’ meetings, with the first cycle beginning with the May 2006 meeting and the last cycle
ending as of the annual meeting of the Company’s stockholders to be held in May of 2009. The
amount of Transition Bonus earned shall be determined by the Committee and may be deferred by Xx.
Xxxxx. Any Transition Bonus paid hereunder shall not constitute a Cash Bonus and shall not be
considered when determining the Annual Average Bonus (as defined below).
(d) Non-Qualified Supplemental Executive Retirement Agreement. Employee
shall participate in the Non-Qualified Supplemental Executive Retirement Agreement, as amended, in
accordance with its terms.
(e) Benefits. The Employer shall provide the following additional benefits
to the Employee:
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Section 5. Time Requirement. Subject to the direction of the Board, the
Employee shall devote his best efforts and full business time to his duties under this Agreement.
The Employee shall be allowed to serve on outside boards subject to the consent of the Employer.
Section 6. Termination upon Disability. In the event of the Employee’s
Disability (as defined below) during the Term, payments based upon the Employee’s then current
annual Base Salary and Average Annual Bonus shall continue thereafter through the last day of the
one (1) year period beginning on the date of such Disability, after which time Employee’s
employment shall terminate. Payments made in the event of the Employee’s Disability shall be equal
to 66-2/3% of Employee’s Base Salary and Average Annual Bonus, less any amounts received under the
Employer’s short or long-term disability programs, as applicable. Disability for purposes of this
Agreement shall mean that the Employee is limited from performing the material and substantial
duties of the positions set forth in Section 2 due to the Employee’s sickness or injury for a
period of six (6) consecutive months. The Committee shall determine whether and when the Employee
has incurred a Disability under this Agreement.
Section 7. Payment upon Death. In the event of the Employee’s death during
the Term, the Employee shall be paid his accrued and unpaid Base Salary, and his earned Cash Bonus
for the year in which he died prorated on a per diem basis through the date of death. The earned
Base Salary shall be paid in accordance with the Employer’s regular payroll on the next regular
payroll date following the Employee’s death. The earned Cash Bonus for the year shall be paid when
Cash Bonuses are paid to other executive officers of the Employer with respect to such year. Such
amounts shall be payable to the persons designated in writing by the Employee, or if none, to his
estate.
Section 8. Confidentiality and Loyalty. The Employee acknowledges that
during the course of his employment he has produced and will produce and have access to material,
records, data, trade secrets and information not generally available to the public (collectively,
“Confidential Information”) regarding the Employer and any subsidiaries and affiliates.
Accordingly, during and subsequent to termination of this Agreement, the Employee shall hold in
confidence and not directly or indirectly disclose, use, copy or make lists of any such
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 the
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 the Employee of
his duties hereunder. All records, files, documents and other materials or copies thereof relating
to the Employer’s business which the Employee shall prepare or use, shall be and remain the sole
property of the Employer, shall not be removed from the Employer’s premises without its written
consent, and shall be promptly returned to the Employer upon termination of the Employee’s
employment hereunder. The Employee agrees to abide by the Employer’s reasonable policies, as in
effect from time to time, respecting avoidance of interests conflicting with those of the Employer.
Section 9. Non-Competition.
(a) Restrictive Covenant. The Employer and the Employee have jointly
reviewed the operations of the Employer and have agreed that the primary service areas of the
Employer’s lending and deposit taking functions extends to the areas encompassing the sixty (60)
mile radii from each of the offices of the Employer. Therefore, as an essential ingredient of and
in consideration of this Agreement and the payment of the amounts described in Sections 4 and 10,
the Employee hereby agrees that, except with the express prior written consent of the Employer, for
a period of two (2) years after the termination of the later of Employee’s employment with the
Employer or any subsidiaries and affiliates or the end of any consulting arrangement with the
Employer or any subsidiaries and affiliates (the “Restrictive Period”), he will not directly or
indirectly compete with the business of the Employer, 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 the Employer to terminate
employment with the 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 sixty (60) mile radii of each
of the Employer’s offices (the “Restrictive Covenant”). If the Employee violates the Restrictive
Covenant and the Employer brings legal action
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for injunctive or other relief, the Employer 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 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 the Employee. The foregoing Restrictive Covenant shall
not prohibit the Employee from owning directly or indirectly capital stock or similar securities
which are listed on a securities exchange or quoted on the National Association of Securities
Dealers Automated Quotation System 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. The Employee acknowledges
that the restrictions contained in this Section 9 and Section 8 are reasonable and necessary for
the protection of the legitimate business interests of the Employer, that any violation of these
restrictions would cause substantial injury to the Employer and such interests, that the Employer
would not have entered into this Agreement with the Employee without receiving the additional
consideration offered by the Employee in binding himself to these restrictions and that such
restrictions were a material inducement to the Employer to enter into this Agreement. In the event
of any violation or threatened violation of these restrictions, the Employer, in addition to and
not in limitation of, any other rights, remedies or damages available to the Employer 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 the Employee and any and all persons
directly or indirectly acting for or with him, as the case may be.
Section 10. Severance.
(a) Termination Without Cause. If the Employee is terminated without
“Cause” (as defined below), the Employer will pay the Employee a sum equal to his then current
annual Base Salary plus his Average Annual Bonus. Such payment shall be made in a lump sum within
15 days of termination or in equal installments over the one (1) year period, at the Employer’s
option. In addition, the Employer shall provide reasonable out-placement services for up to three
(3) months following termination.
(b) Termination for Cause or Voluntary Termination. If the Employee is
terminated for Cause (as defined below) or voluntarily terminates his employment, then the Employer
shall pay Employee any accrued and unpaid Base Salary, and any accrued and unpaid personal days and
shall have no further obligations to the Employee under this Agreement. For purposes of this
Agreement, “Cause” shall mean:
(i) a material violation by the Employee of any applicable material law or regulation
respecting the business of the Employer;
(ii) the Employee being found guilty of a felony, an act of dishonesty in connection with the
performance of his duties as an officer of the Employer, or which disqualifies the Employee from
serving as an officer or director of the Employer; or
(iii) the willful or negligent failure of the Employee to perform his duties hereunder in any
material respect.
The Employee shall be entitled to at least thirty (30) days’ prior written notice of the Employer’s
intention to terminate his employment for any Cause 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 Board his position regarding any
dispute relating to the existence of such Cause.
(c) Termination Upon Change in Control. If a Change in Control (as defined
below) of the ownership of the Employer occurs and the Employee is terminated within one (1) year
following the Change in Control or the Employee elects to terminate his employment within six (6)
months following the Change in Control, a severance payment will be made within 15 days of
termination equal to the sum of his Base Salary and Annual Average Bonus as would have been paid
through the end of the Term as if his employment was not terminated. In addition, the Employer shall continue, or cause to be
continued, Employee’s health insurance as in effect on the date
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of termination (including, if applicable, family coverage) through the end of the Term as if his employment was not terminated.
For purposes of this paragraph, the term “Change in Control” shall mean the following:
(i) 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 the
Company; or
(ii) The individuals who, as of the date hereof, are members of the Board of Directors of the
Company (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
(iii) Consummation by the Company of (i) a merger or consolidation 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 the voting securities of the Company outstanding immediately before such merger or consolidation
or (ii) a complete liquidation or dissolution or an agreement for the sale or other disposition of
two-thirds or more of the consolidated assets of the Company.
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 the then outstanding securities
of the Company is acquired by (i) a trustee or other fiduciary holding securities under one or more
employee benefit plans maintained for employees of the entity or (ii) any corporation which,
immediately prior to such acquisition, is owned directly or indirectly by the stockholders of the
Company in substantially the same proportion as their ownership of stock of the Company immediately
prior to such acquisition.
(iv) If it is determined, in the opinion of the Company’s independent accountants, in
consultation, if necessary, with the Company’s independent legal counsel, that any amount paid
under this Agreement due to a Change in Control, either separately or in conjunction with any other
payments, benefits and entitlements received by the Employee in respect of a Change in Control
under any other plan or agreement under which the Employee participates or to which he is a party,
would constitute an “Excess Parachute Payment” within the meaning of Section 280G of the Code, and
thereby be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then
in such event the Employer shall pay to the Employee a “grossing-up” amount equal to the amount of
such Excise Tax, plus all federal and state income or other taxes with respect to the payment of
the amount of such Excise Tax, including all such taxes with respect to any such grossing-up
amount. If, at a later date, the Internal Revenue Service assesses a deficiency against the
Employee for the Excise Tax which is greater than that which was determined at the time such
amounts were paid, then the Employer shall pay to the Employee the amount of such unreimbursed
Excise Tax plus any interest, penalties and reasonable professional fees or expenses incurred by
the Employee as a result of such assessment, including all such taxes with respect to any such
additional amount. The highest marginal tax rate applicable to individuals at the time of the
payment of such amounts will be used for purposes of determining the federal and state income and
other taxes with respect thereto. The Employer shall withhold from any amounts paid under this
Agreement the amount of any Excise Tax or other federal, state or local taxes then required to be
withheld with respect to the amount paid hereunder. Computations of the amount of any grossing-up
supplemental compensation paid under this subparagraph shall be conclusively made by the Employer’s
independent accountants, in consultation, if necessary, with the Employer’s independent legal
counsel. If, after the Employee receives any gross-up payments or other amount pursuant to this
Section 10, the Employee receives any refund with respect to the Excise Tax, the Employee shall
promptly pay the Employer the amount of such refund within ten (10) days of receipt by the
Employee.
(v) If the Employer is not in compliance with its minimum capital requirements or if the
payments required under this Section 10 would cause the Employer’s capital to be reduced below its
minimum capital requirements, such payments shall be deferred until such time as the Employer is in
capital compliance. At
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the election of the Employee, which election is to made within thirty (30)
days of the Employee’s termination, such payments shall be made in a lump sum or paid monthly
during the remaining term of this Agreement following the Employee’s termination. In the event
that no election is made, payment to the Employee will be made on a monthly basis during the
remaining term of this Agreement. Such payments shall not be reduced in the event the Employee
obtains other employment following the termination of employment by the Employer.
(a) Consulting Arrangement. Following the end of the Term and for a period of three
(3) years thereafter, the Employee and the Company shall enter into a consulting arrangement
whereby the Employee shall continue to assist the Company and the Bank with the retention of
certain designated customer relationships. The arrangement shall provide for a formula-based
consulting fee whereby Employee may earn up to two thousand dollars ($2,000) per month. Throughout
the period of the consulting arrangement, Company shall reimburse Employee for annual club dues for
the Crow Valley Club.
Section 12. Indemnification.
(a) The Employer shall provide the Employee (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) In addition to the insurance coverage provided for in this Section, the Employer
shall hold harmless and indemnify the Employee (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 the Employer (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) In the event the Employee becomes a party, or is threatened to be made a party,
to any action, suit or proceeding for which the Employer has agreed to provide insurance coverage
or indemnification under this Section, the 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 the Employee in connection with
the investigation, defense, settlement, or appeal of any threatened, pending or completed action, suit or proceeding, subject to receipt
by the Employer of a written undertaking from the Employee (i) to reimburse the Employer for all
Expenses actually paid by the Employer to or on behalf of the Employee in the event it shall be
ultimately determined that the Employee is not entitled to indemnification by the Employer for such
Expenses and (ii) to assign to the Employer all rights of the Employee to indemnification, under
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any policy of directors’ and officers’ liability insurance or otherwise, to the extent of the
amount of Expenses actually paid by the Employer to or on behalf of the Employee.
Section 13. Payment of Legal Fees. The Employer is aware that after a
Change in Control, management of the Employer or its successor could cause or attempt to cause the
Employer to refuse to comply with its obligations under this Agreement, including the possible
pursuit of litigation to avoid its obligations under this Agreement. In these circumstances, the
purpose of this Agreement would be frustrated. It is the Employer’s intention that the Employee
not be required to incur the expenses associated with the enforcement of his rights under this
Agreement, whether by litigation or other legal action, because the cost and expense thereof would
substantially detract from the benefits intended to be granted to the Employee hereunder. It is
the Employer’s intention that the Employee not be forced to negotiate settlement of his rights
under this Agreement under threat of incurring expenses. Accordingly, if after a Change in Control
occurs it appears to the Employee that (a) the Employer has failed to comply with any of its
obligations under this Agreement, or (b) the Employer or any other person has taken any action to
avoid its obligations under this Agreement, the Employer irrevocably authorizes the Employee from
time to time to retain counsel of his choice, at the expense of the Employer as provided in this
Section 12, to represent the Employee in connection with the initiation or defense of any
litigation or other legal action, whether by or against the Employer or any director, officer,
stockholder, or other person affiliated with the Employer, in any jurisdiction. Notwithstanding
any existing or previous attorney-client relationship between the Employer and any counsel chosen
by the Employee under this Section 12, the Employer irrevocably consents to the Employee entering
into an attorney-client relationship with that counsel, and the Employer and the Employee agree
that a confidential relationship shall exist between the Employee and that counsel. The fees and
expenses of counsel selected from time to time by the Employee as provided in this Section 12 shall
be paid or reimbursed to the Employee by the Employer on a regular, periodic basis upon
presentation by the Employee of a statement or statements prepared by such counsel in accordance
with such counsel’s customary practices. The Employer’s obligation to reimburse Employee for legal
fees as provided under this Section 12 and any separate employment, deferred compensation,
severance or other agreement between the Employee and the Employer shall not exceed $200,000 in the
aggregate. Accordingly, the Employer’s obligation to pay the Employee’s legal fees provided by
this Section 12 shall be offset by any legal fee reimbursement obligation the Employer may have
with the Employee under any separate employment, deferred compensation, severance or other
agreement between the Employee and the Employer.
Section 14. Regulatory Suspension and Termination.
(a) If the Employee is suspended from office and/or temporarily prohibited from
participating in the conduct of the Employer’s affairs by a notice served under Section 8(e)(3) (12
U.S.C. § 1818(e)(3)) or 8(g) (12 U.S.C. § 1818(g)) of the Federal Deposit Insurance Act, as
amended, the 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, the
Employer shall (A) pay the Employee all of the compensation withheld while their contract
obligations were suspended and (B) reinstate any of the obligations, which were suspended.
(b) If the Employee is removed and/or permanently prohibited from participating in
the conduct of the Employer’s affairs by an order issued under Section 8(e) (12 U.S.C. § 1818(e))
or 8(g) (12 U.S.C. § 1818(g)) of the Federal Deposit Insurance Act, as amended, all obligations of
the 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.
(c) If the Employer is in default as defined in Section 3(x) (12 U.S.C. §
1813(x)(1)) of the Federal Deposit Insurance Act, as amended, all obligations of the Employer under
this contract shall terminate as of the date of default, but this paragraph shall not affect any
vested rights of the contracting parties.
(d) All obligations of the Employer under this contract 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 the Employer under the authority
contained in Section 13(c) (12 U.S.C. § 1823(c)) of the Federal Deposit Insurance Act, as amended,
or when the Employer is determined by the FDIC to be in an unsafe
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or unsound condition. Any rights
of the parties that have already vested, however, shall not be affected by such action.
(e) Any payments made to the Employee pursuant to this Agreement, or otherwise, are
subject to and conditioned upon their compliance with Section 18(k) (12 U.S.C. § 1828(k)) of the
Federal Deposit Insurance Act as amended, and any regulations promulgated thereunder.
Section 15. General Provisions.
(a) This Agreement supersedes all prior agreements and understandings between the
parties relating to the subject matter of this Agreement. It binds and benefits the parties and
their successors in interest, heirs, beneficiaries, legal representatives and assigns. The Company
agrees that it shall not merge or consolidate into or with another company, or reorganize, or sell
substantially all its assets to another company, firm or person unless such succeeding or
continuing company, firm or person agrees to assume and discharge the obligations of the Company
under this Agreement.
(b) This Agreement is governed by and construed in accordance with the laws of the
State of Iowa.
(c) The provisions of Sections 8 and 9 shall survive the termination of this
Agreement.
(d) No amendment or modification of this Agreement is effective unless made in
writing and signed by each party.
(e) This Agreement may be signed in several counterparts, each of which will be an
original and all of which will constitute one agreement.
(Remainder of Page Intentionally Left Blank)
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QCR HOLDINGS, INC.
By:
|
/s/ Xxxxx X. Xxxxxxxx
|
/s/ Xxxxxxx X. Xxxxx
|
||||||
| Xxxxx X. Xxxxxxxx | XXXXXXX X. XXXXX | |||||||
| Chairman, Executive Committee | ||||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | |||||||
| Xxxxxxx X. Xxxxxxxxx, | ||||||||
| President | ||||||||
| QUAD CITY BANK AND TRUST COMPANY | ||||||||
By:
|
/s/ Xxxxx X. Xxxxxxxx | |||||||
| Xxxxx X. Xxxxxxxx | ||||||||
| Secretary | ||||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | |||||||
| Xxxxxxx X. Xxxxxxxxx, | ||||||||
| Chairman | ||||||||
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