Exhibit 10.13
EMPLOYMENT AGREEMENT
Agreement made as of April 7, 2000 (the "Effective Date"),
between Xxxxxx X. Xxxxx (the "Executive") and National Bancshares Corporation of
Texas, a Texas corporation (the "Company").
The Executive has been employed by the Company pursuant to an
Employment Agreement effective as of April 7, 1997 (the "Initial Agreement").
The Initial Agreement expired as of April 7, 2000, with the parties reserving
all rights pursuant to such agreement.
The Board of Directors of the Company (the "Board") desires to
provide for the continued employment of the Executive as Senior Vice President
and General Counsel ("GC") and the Executive is willing to commit himself to
serve the Company and the Board, on the terms and conditions provided herein.
In order to effect the foregoing, the Company and the
Executive wish to enter into an employment agreement (the "Agreement") on the
terms and conditions set forth below. Accordingly, in consideration of the
premises and respective covenants and agreements of the parties herein
contained, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. EMPLOYMENT. From and after the Effective Date, the
Company hereby agrees, subject to the approval of the Board, to employ the
Executive, and the Executive agrees to serve the Company, on the terms and
conditions set forth herein.
2. TERM. The term of this Agreement shall commence as of the
date hereof and shall continue for one (1) year. Upon the expiration of the
initial one (1) year term, this Agreement shall be automatically renewed for
successive periods of one (1) year each, unless, not later than ninety (90) days
prior to the end of the initial term or any renewal term, the Company shall have
given notice to Executive or the Executive shall have given notice to the
Company that either of them does not wish to extend this Agreement. The first
one (1) year renewal period shall commence on the first day immediately
following the conclusion of the initial one (1) year term.
3. POSITION AND DUTIES. The Executive shall serve at the
pleasure and direction of the Board as the GC of the Company and shall have such
responsibilities, duties and authority reasonably accorded to and expected of a
GC with the Executive's skills, knowledge and background. The Executive shall
devote substantial but not exclusive attention to the affairs of the Company as
the Executive's duties may reasonably require, it being understood that the
Executive has an employment agreement with NBC Financial, Inc., a wholly-owned
indirect subsidiary of the Company, and is involved with unrelated businesses
and will be devoting substantial attention to such other entities as well; and
provided, further, however, that nothing herein shall preclude the Executive
from making and managing personal investments or serving in any capacity with
any civic, educational or charitable organization, so long as such activities do
not interfere with the performance of his duties hereunder.
4. PLACE OF PERFORMANCE. The Executive shall continue
to be based at the principal executive offices of the Company in the city of San
Antonio, State of Texas.
5. COMPENSATION AND RELATED MATTERS.
5.1 SALARY. During the term of the employment
set forth in Section 2 hereof, the Company shall pay to the Executive an annual
base salary of Ninety Thousand Dollars ($90,000.00) such salary to be paid in
substantially equal semi-monthly installments. Compensation of the Executive by
salary payments shall not be deemed exclusive and shall not prevent the
Executive from participating in any other compensations, tax benefit or other
benefit plans of the Company.
5.2 EXPENSES. During the term of the Executive's
employment hereunder, the Executive shall be entitled to receive prompt
reimbursement of all reasonable and customary expenses incurred by the Executive
in performing services hereunder, including all travel, living and/or office
expenses while away from home or business at the request of and in the service
of the Company, provided that such expenses are incurred and accounted for in
accordance with the policies and procedures established by the Company.
5.3 OTHER BENEFITS. It is agreed that the benefits
that the Executive and members of his
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immediate family shall receive shall be generally those available to the
executive officers of the Company (including without limitation such retirement
plans, incentive compensation plans, medical plans, service plans, life
insurance plans and disability plans as the Company from time to time
maintains). The Company and the Executive will agree upon discretionary bonus
and stock incentive plans based upon performance. The parties agree that these
benefits shall continue for so long as the Executive continues to serve the
Company.
5.4 VESTING OF OPTIONS. The Executive was
previously granted Twenty Thousand (20,000) options exercisable at $13.25 per
share (the "Options") as of June 25, 1997 pursuant to the 1995 Stock Plan, as
restated and amended (the "Plan"). The Plan provides, among other things, that
the Compensation Committee may accelerate the vesting of any options granted
under the Plan. At a meeting on April 17, 2000, the Compensation Committee (a)
accelerated the vesting schedule in respect of the Options and fully vested such
Options with the Executive, and (b) extended the expiration date in respect of
the Options until two (2) years after termination of the employment of the
Executive. In addition, at the same meeting, the Compensation Committee granted
an additional Three Thousand Five Hundred (3,500) options under the Plan at the
then current market price of the common stock of the Company which shall vest
according to the Plan.
5.5 VACATIONS. The Executive shall be entitled to
no less than four (4) weeks paid vacation per year during the initial term of
the Agreement (and no less than four (4) weeks paid vacation per year during
each renewal term), and to compensation in respect of earned but unused vacation
days, determined in accordance with the Company's then current vacation policy.
The Executive shall also be entitled to all paid holidays and personal days
given by the Company for its executives.
5.4 SERVICE FURNISHED. The Company shall furnish
the Executive with office space, stenographic assistance and such other
facilities as shall be suitable to the Executive's position and adequate for the
performance of his duties as set forth in Section 3 hereof.
6. TERMINATION. The Executive's employment hereunder may be
terminated without breach of this Agreement only under the following
circumstances:
6.1 DEATH. The Executive's employment hereunder
shall terminate upon his death.
6.2 DISABILITY. If, as a result of the Executive's
incapacity due to physical or mental illness, the Executive shall have been
absent from his duties hereunder for the entire period of four (4) consecutive
months, and within thirty (30) days after written Notice of Termination (as
defined in Section 6.5 hereof is given (which may occur before or after the end
of such four (4) month period, but which shall not be effective prior to the end
of such three (3) month period)), the Executive shall not have returned to the
performance of his duties hereunder, the Company may terminate the Executive's
employment hereunder.
6.3 CAUSE. The Company may terminate the
Executive's employment hereunder for Cause (as defined herein). For purposes of
this Agreement, the Company shall have "Cause" to terminate the Executive's
employment hereunder for (i) the Executive's negligence in the performance or
intentional nonperformance (continuing for ten (10) days after receipt of
written notice of need to cure) of any of the Executive's responsibilities to
the Company hereunder, (ii) the Executive's willful commission of any criminal
act of fraud with respect to the Company or which may affect the reputation of
the Company adversely, (iii) the Executive's willful dishonesty, (iv) the
Executive's willful gross misconduct, or (v) the Executive's willful violation
of a material condition of his employment by the Company (continuing for ten
(10) days after receipt of written notice of need to cure).
6.4 TERMINATION BY THE EXECUTIVE. This Agreement
may be terminated by the Executive should the Company fail to observe or perform
any of the provisions of this Agreement required to be observed or performed by
the Company. The Executive shall give the Company written notice of the breaches
or failure on the Company's part and the Company shall have thirty (30) days
within which to cure such violation. Any violation cured within this thirty (30)
day period shall be as though it had never existed. Any violation that continues
to exist at the end of the thirty (30) day period shall, at the Executive's
option, give rise to the termination of this Agreement except as otherwise
provided herein.
6.5 Any termination of the Executive's
employment by the Company or by the Executive (other than termination pursuant
to Section 6.1 hereof) shall be communicated by written Notice of Termination to
the other party hereto in accordance with Section 11 hereof. For purposes of
this Agreement, a "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision of this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provisions so indicated.
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6.6 "Date of Termination" shall mean (i) if the
Executive's employment is terminated by his death, the date of his death, (ii)
if the Executive's employment is terminated pursuant to Section 6.2 above,
thirty (30) days after Notice of Termination is given and effective (provided
that the Executive shall not have returned to the performance of his duties
during such thirty (30) day period), (iii) if the Executive's employment is
terminated pursuant to Section 6.3 above, the date specified in the Notice of
Termination, and (iv) if the Executive's employment is terminated for any other
reason, the date on which a Notice of Termination is received.
7. COMPENSATION UPON TERMINATION; CHANGE IN CONTROL;
OR DURING DISABILITY.
7.1 During any period that the Executive fails
to perform his duties hereunder as a result of incapacity due to physical or
mental illness, the Executive shall continue to receive his full salary at the
rate then in effect for such period until his employment is terminated pursuant
to Section 6.2 hereof (a "Disability Termination"); and, after such Disability
Termination, the Company shall pay the Executive one hundred percent (100%) of
the salary he would have otherwise received under Section 5 hereof for the
partial term remaining in the then current term of this Agreement plus an
additional amount calculated pursuant to Section 7.4.2, and payment so made to
the Executive shall be in addition to, and not in lieu of, any disability
benefits payable under policies or programs maintained by the Company.
7.2 If the Executive's employment is terminated
by his death, the Company shall pay any amounts due to the Executive under
Section 5 through the date of his death, and the Company shall thereafter pay
his legal representative or any beneficiary designated by him in writing one
hundred percent (100%) of the salary he would have otherwise received under
Section 5 hereof for the partial term remaining in the current term of this
Agreement plus an additional amount calculated pursuant to Section 7.4.2 hereof.
Any payment under this Section 7.2 shall be in addition to, and not in lieu of,
any periodic payments of death benefits payable under policies or programs
maintained by the Company.
7.3 If the Executive's employment shall be
terminated by the Company for Cause or by the Executive other than pursuant to
Section 6.4, the Company shall pay the amounts due under Section 5 through Date
of Termination.
7.4 If (i) the Executive's employment is
terminated by the Company for any reason other than for Cause, (ii) the Company
elects not to renew this Agreement pursuant to Section 2 hereof, (iii) the
Executive shall terminate his employment pursuant to Section 6.4 hereof, or (iv)
if there is Change in Control (as defined below) then the Company shall pay to
the Executive the following:
7.4.1 any and all amounts due under
Section 5.1 through the Date of Termination; and
7.4.2 the greater of (a) the amount of
salary the Executive is to receive under Section 5 hereof for the partial term
remaining until the next anniversary of the Effective Date, (b) six (6) month
salary at the rate then in effect for such period, or (c) any severance payable
under the then current policy of the Company. This amount shall be paid as a
lump sum to the Executive within thirty (30) days of the termination of his
employment.
7.5 For purposes of this Agreement,
"Change of Control" shall mean (a) the stockholders of the Company approve the
disposition, whether by sale, merger, consolidation, etc. of all or
substantially all of the Company's assets and such transaction occurs; (b) a
change of more than fifty percent (50%) in beneficial ownership (as defined in
Rule 13d-3 under Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended) of the voting common stock of the Company; (c) a contested proxy
solicitation of Company shareholders that results in the contesting party
obtaining the ability to cast twenty five percent (25%) or more of the votes
entitled to be cast in electing directors of the Company; (d) the stockholders
of the Company approve a consolidation or merger of the Company with another
entity (other than with any of the Company's subsidiaries), the consummation of
which would result in the shareholders of the Company immediately before the
occurrence of the consolidation or merger owning, in the aggregate, less than
forty percent (40%) of the voting stock of the surviving entity, and such
consolidation or merger occurs; or (e) Xxx X. Xxxxxx ceases to be Chairman of
the Board of the Company.
8. INDEMNIFICATION. To the full extent authorized or permitted
by the laws of the State of Texas as from time to time in effect, the Company
shall hold harmless and indemnify the Executive against any and all judgments,
penalties (including excise and similar taxes), fines, settlements and
reasonable expenses (including, but not limited to attorney's fees), incurred in
connection with any actual or threatened action or proceeding, whether civil or
criminal, to which the Executive is made or is threatened to be made a party by
reason of the fact that the Executive then is or was a director or officer of
the Company or then serves or has served any other corporation, partnership,
joint venture, trust, employment benefit plan or other enterprise in any
capacity at the request of the Company. To the fullest extent so permitted, the
foregoing shall in any actual or threatened proceeding require the Company to
advance expenses on behalf of
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the Executive as said expenses are incurred. The Company also agrees to maintain
a director's and officers' liability insurance policy covering the Executive to
the extent the Company provides such coverage for its other executive officers.
Notwithstanding any other provision of this Agreement, the provisions of this
Paragraph 8 shall survive any termination or expiration of this Agreement.
9. CONFIDENTIAL INFORMATION. The Executive recognizes that as
a key employee of the Company, the Executive has and will continue to occupy a
position of trust with respect to business information of a secret or
confidential nature which is or will become the property of the Company or any
of its subsidiaries or affiliates and which has been or will be used by or
imparted to the Executive from time to time in the course of the Executive's
duties. The Executive therefore agrees that for so long as any such information
of a secret or confidential nature shall remain confidential or otherwise remain
wholly or partially protected, either during the course of the Executive's
employment or thereafter, the Executive will not at any time use, divulge,
furnish or make accessible to any person outside of the Company (or any
subsidiaries or affiliates thereof) any such information. Notwithstanding the
foregoing, if any such confidential information is required to be disclosed by
an order issued by a court of competent jurisdiction, then the Executive may
disclose such information (under such circumstances, the Executive will use his
best efforts for such information to be placed under seal with the Court).
10. BINDING AGREEMENT. This Agreement and all rights of the
Executive hereunder shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amounts would still be payable to him hereunder if he continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's designated
beneficiary set forth in a written beneficiary designation filed with the
Company or, if there be no such designated beneficiary, to the Executive's
estate.
11. NOTICES. For purposes of this Agreement, notices, demands,
requests and all other communications provided for in this Agreement shall be in
writing and shall be deemed to have been given when delivered or (unless
otherwise specified) mailed by United States certified or registered mail,
return receipt requested, postage prepaid addressed as follows:
If to the Executive:
National Bancshares Corporation of Texas
00000 Xxxxxxx 000 Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
If to the Company:
National Bancshares Corporation of Texas
00000 Xxxxxxx 000 Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxx
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
12. MISCELLANEOUS. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and such officer of the Company as
may be specifically designated by the Board. No waiver by either party hereto at
any time of any breach by the other party hereto of, or compliance with, any
condition or provisions of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same time or at any prior or subsequent time. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Texas without regard to its conflicts of law principles. The
paragraph headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
13. VALIDITY. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not effect the validity or
enforceability of any other provisions of this Agreement, which shall remain in
full force and effect.
14. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same instrument.
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15. 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 (3) arbitrators in San Antonio, Texas in
accordance with the rules of the American Arbitration Association then in
effect. The arbitrators do not have the authority to add to, detract from or
modify any provisions hereof. The arbitrators do have the authority to order
reinstatement and/or back-pay in the event the arbitrators determine that the
Executive was not terminated for Cause, as defined in Section 6.3 hereof. Each
party shall have an opportunity to present evidence on the issues in dispute
before the arbitrator and each party may be represented by legal counsel. A
decision by a majority of the arbitration panel shall be final and binding.
Judgment may be entered on the arbitrators' award in any court having
jurisdiction. The arbitrators shall decide which party will bear the expenses of
such arbitration (including attorneys' fees).
16. ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supersedes all other prior agreements, promises, covenants,
arrangements, communications, representations or warranties whether oral or
written, by any officer, employee or representative of any party hereto; and any
prior agreement of the parties hereto in respect of the subject matter contained
herein is terminated and cancelled.
IN WITNESS WHEREOF, the parties have executed this Agreement on
the date and year first above written.
National Bancshares Corporation of Texas
By:
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
-----------------------------
Xxxxxx X. Xxxxx
(the "Executive")
DUAL EMPLOYMENT AGREEMENT
This Agreement is entered into by and between NBC Financial,
Inc.(hereinafter referred to as "Company"), National Bancshares Corporation of
Texas ("NBC"), and Xxxxxx X. Xxxxx (hereinafter referred to as "Executive"), as
of April 7, 2000 (the "Effective Date").
RECITALS
WHEREAS, Executive is an Executive of NBC;
WHEREAS, the Company is a licensed introducing broker dealer;
WHEREAS, the Company desires NBC to make the Executive available to the
Company to assist the Company in performing the functions of the Company, and
NBC is willing to do so on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises, conditions and
covenants as hereinafter set forth, the parties hereto agree as follows:
1. TERM. Subject to the terms and conditions herein contained, the
Company hereby employs Executive, and Executive hereby accepts such employment,
commencing on the date of this Agreement. The term of this Agreement shall
commence as of the date hereof and shall continue for one (1) year. Upon the
expiration of the initial one (1) year term, this Agreement shall be
automatically renewed for successive periods of one (1) year each, unless, not
later than ninety (90) days prior to the end of the initial term or any renewal
term, the Company shall have given notice to Executive or the Executive shall
have given notice to the Company that either of them does not wish to extend
this Agreement. The first one (1) year renewal period shall commence on the
first day immediately following the conclusion of the initial one (1) year term.
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2. POSITION AND DUTIES. During Executive's employment hereunder,
Executive will hold the position of President and/or such other position(s) as
the Company may determine in its sole discretion. The Executive shall devote
substantial but not exclusive attention to the affairs of the Company as the
Executive's duties may reasonably require, it being understood that the
Executive has an employment agreement with National Bancshares Corporation of
Texas, the ultimate corporate parent of the Company, and is involved with
unrelated businesses and will be devoting substantial attention to such other
entities as well; and provided, further, however, that nothing herein shall
preclude the Executive from making and managing personal investments or serving
in any capacity with any civic, educational or charitable organization, so long
as such activities do not interfere with the performance of his duties
hereunder. Executive shall, at all times, comply with the federal securities
acts, the rules, regulations, interpretations and other directives issued by the
National Association of Securities Dealers, and any stock commodity of option
exchange or state or political subdivision with whom the Company or Executive is
registered or licensed. The undersigned Executive has received and carefully
reviewed the Company's Broker Dealer Manual and Policy and Procedures Manual
(collectively, the "Manuals"), designed to assure compliance with applicable
laws, rules and regulations, and shall comply with all the provisions of the
Manuals, including all updates thereto delivered by the Company from time to
time. In addition, Executive shall comply with all applicable written policies
for Executives established from time to time by the Company. Failure to so
comply with the Manuals and any other written policies of the Company in
accordance with this paragraph shall constitute a material breach of this
Agreement. In connection with Executive's employment by the Company, the
Executive shall be provided an office at the San Xxxxxxx xxxxxx of NBC Bank,
N.A.
3. COMPENSATION.
For serving as President of the Company, Executive will
receive and the Company hereby agrees to pay Executive compensation at the
annual rate of Thirty Five Thousand Dollars ($35,000.00) per year commencing on
the date of this Agreement. Such compensation shall be paid in substantially
equal semi-monthly installments.
4. EXPENSES. During the period of the Executive's employment hereunder,
the Executive shall be entitled to receive prompt reimbursement of all
reasonable and customary expenses incurred by the Executive in performing
services hereunder, including all travel (including mileage at the current rate
allowed by the Internal Revenue Service ("IRS")), living and/or office expenses
while away from home or business at the request of and in the service of the
Company, provided that such expenses are incurred and accounted for in
accordance with the policies and procedures established by the Company.
5. BENEFITS. Executive shall continue to be entitled to receive
the benefits offered by NBC and may receive those benefits that are offered to
other senior executives of the Company.
6. TERMINATION. The Executive's employment hereunder may be
terminated without breach of this Agreement only under the following
circumstances:
6.1 DEATH. The Executive's employment hereunder shall
terminate upon his death.
6.2 DISABILITY. If, as a result of the Executive's incapacity
due to physical or mental illness, the Executive shall have been absent from his
duties hereunder for the entire period of four (4) consecutive months, and
within thirty (30) days after written Notice of Termination (as defined in
Section 6.5 hereof is given (which may occur before or after the end of such
four (4) month period, but which shall not be effective prior to the end of such
three (3) month period)), the Executive shall not have returned to the
performance of his duties hereunder, the Company may terminate the Executive's
employment hereunder.
6.3 CAUSE. The Company may terminate the Executive's
employment hereunder for Cause (as defined herein). For purposes of this
Agreement, the Company shall have "Cause" to terminate the Executive's
employment hereunder for (i) the Executive's negligence in the performance or
intentional nonperformance (continuing for ten (10) days after receipt of
written notice of need to cure) of any of the Executive's responsibilities to
the Company hereunder, (ii) the Executive's willful commission of any criminal
act of fraud with respect to the Company or which may affect the reputation of
the Company adversely, (iii) the Executive's willful dishonesty, (iv) the
Executive's willful gross misconduct, or (v) the Executive's willful violation
of a material condition of his employment by the Company (continuing for ten
(10) days after receipt of written notice of need to cure).
6.4 TERMINATION BY THE EXECUTIVE. This Agreement may be
terminated by the Executive should the Company fail to observe or perform any of
the provisions of this Agreement required to be observed or performed by the
Company. The Executive shall give the Company written notice of the breaches or
failure on the Company's part and the Company shall have thirty (30) days within
which to cure such violation. Any violation cured within this thirty (30) day
period shall be as though it had never existed. Any violation that continues to
exist at the end of the thirty (30) day period
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shall, at the Executive's option, give rise to the termination of this Agreement
except as otherwise provided herein.
6.5 Any termination of the Executive's employment by the
Company or by the Executive (other than termination pursuant to Section 6.1
hereof) shall be communicated by written Notice of Termination to the other
party hereto in accordance with Section 11 hereof. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision of this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provisions so
indicated.
6.6 "Date of Termination" shall mean (i) if the Executive's
employment is terminated by his death, the date of his death, (ii) if the
Executive's employment is terminated pursuant to Section 6.2 above, thirty (30)
days after Notice of Termination is given and effective (provided that the
Executive shall not have returned to the performance of his duties during such
thirty (30) day period), (iii) if the Executive's employment is terminated
pursuant to Section 6.3 above, the date specified in the Notice of Termination,
and (iv) if the Executive's employment is terminated for any other reason, the
date on which a Notice of Termination is received.
7. COMPENSATION UPON TERMINATION; CHANGE IN CONTROL; OR DURING
DISABILITY.
7.1 During any period that the Executive fails to perform his
duties hereunder as a result of incapacity due to physical or mental illness,
the Executive shall continue to receive his full salary at the rate then in
effect for such period until his employment is terminated pursuant to Section
6.2 hereof (a "Disability Termination"); and, after such Disability Termination,
the Company shall pay the Executive one hundred percent (100%) of the salary he
would have otherwise received under Section 3 hereof for the partial term
remaining in the then current term of this Agreement plus an additional amount
calculated pursuant to Section 7.4.2, and payment so made to the Executive shall
be in addition to, and not in lieu of, any disability benefits payable under
policies or programs maintained by the Company.
7.2 If the Executive's employment is terminated by his death,
the Company shall pay any amounts due to the Executive under Section 3 through
the date of his death, and the Company shall thereafter pay his legal
representative or any beneficiary designated by him in writing one hundred
percent (100%) of the salary he would have otherwise received under Section 3
hereof for the partial term remaining in the current term of this Agreement plus
an additional amount calculated pursuant to Section 7.4.2 hereof. Any payment
under this Section 7.2 shall be in addition to, and not in lieu of, any periodic
payments of death benefits payable under policies or programs maintained by the
Company.
7.3 If the Executive's employment shall be terminated by the
Company for Cause or by the Executive other than pursuant to Section 6.4, the
Company shall pay the amounts due under Section 3 through Date of Termination.
7.4 If (i) the Executive's employment is terminated by the
Company for any reason other than for Cause, (ii) the Company elects not to
renew this Agreement pursuant to Section 1 hereof, (iii) the Executive shall
terminate his employment pursuant to Section 6.4 hereof, or (iv) if there is
Change in Control (as defined below) then the Company shall pay to the Executive
the following:
7.4.1 any and all amounts due under Section 3
through the Date of Termination; and
7.4.2 the greater of (a) the amount of salary the
Executive is to receive under Section 3 hereof for the partial term remaining
until the next anniversary of the Effective Date, (b) six (6) month salary at
the rate then in effect for such period, or (c) any severance payable under the
then current policy of the Company or NBC. This amount shall be paid as a lump
sum to the Executive within thirty (30) days of the termination of his
employment.
7.5 For purposes of this Agreement, "Change of Control" shall
mean (a) the stockholders of NBC approve the disposition, whether by sale,
merger, consolidation, etc. of all or substantially all of NBC's assets and such
transaction occurs; (b) a change of more than fifty percent (50%) in beneficial
ownership (as defined in Rule 13d-3 under Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended) of the voting common stock of NBC; (c) a
contested proxy solicitation of the shareholders of NBC that results in the
contesting party obtaining the ability to cast twenty five percent (25%) or more
of the votes entitled to be cast in electing directors of NBC; (d) the
stockholders of NBC approve a consolidation or merger of NBC with another entity
(other than with any of NBC's subsidiaries), the consummation of which would
result in the shareholders of NBC immediately before the occurrence of the
consolidation or merger owning, in the aggregate, less than forty percent (40%)
of the voting stock of the surviving entity, and such consolidation or merger
occurs; or (e) Xxx X. Xxxxxx ceases to be Chairman of the Board of NBC.
8. INDEMNIFICATION. To the full extent authorized or permitted by the
laws of the State of Texas as from time
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to time in effect, the Company shall hold harmless and indemnify the Executive
against any and all judgments, penalties (including excise and similar taxes),
fines, settlements and reasonable expenses (including, but not limited to
attorney's fees), incurred in connection with any actual or threatened action or
proceeding, whether civil or criminal, to which the Executive is made or is
threatened to be made a party by reason of the fact that the Executive then is
or was a director or officer of the Company or then serves or has served any
other corporation, partnership, joint venture, trust, employment benefit plan or
other enterprise in any capacity at the request of the Company. To the fullest
extent so permitted, the foregoing shall in any actual or threatened proceeding
require the Company to advance expenses on behalf of the Executive as said
expenses are incurred. The Company also agrees to maintain a director's and
officers' liability insurance policy covering the Executive to the extent the
Company provides such coverage for its other executive officers. Notwithstanding
any other provision of this Agreement, the provisions of this Paragraph 8 shall
survive any termination or expiration of this Agreement.
9. CONFIDENTIAL INFORMATION. The Executive recognizes that as a key
Executive of the Company, the Executive has and will continue to occupy a
position of trust with respect to business information of a secret or
confidential nature which is or will become the property of the Company or any
of its subsidiaries or affiliates and which has been or will be used by or
imparted to the Executive from time to time in the course of the Executive's
duties. The Executive therefore agrees that for so long as any such information
of a secret or confidential nature shall remain confidential or otherwise remain
wholly or partially protected, either during the course of the Executive's
employment or thereafter, the Executive will not at any time use, divulge,
furnish or make accessible to any person outside of the Company (or any
subsidiaries or affiliates thereof) any such information. Notwithstanding the
foregoing, if any such confidential information is required to be disclosed by
an order issued by a court of competent jurisdiction, then the Executive may
disclose such information (under such circumstances, the Executive will use his
best efforts for such information to be placed under seal with the Court).
10. BINDING AGREEMENT. This Agreement and all rights of the Executive
hereunder shall inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amounts would still be payable to him hereunder if he continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive's designated beneficiary set forth
in a written beneficiary designation filed with the Company or, if there be no
such designated beneficiary, to the Executive's estate.
11. NOTICES. For purposes of this Agreement, notices, demands, requests
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been given when delivered or (unless otherwise
specified) mailed by United States certified or registered mail, return receipt
requested, postage prepaid addressed as follows:
If to the Executive:
NBC Financial, Inc.
00000 Xxxxxxx 000 Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxx
If to NBC:
National Bancshares Corporation of Texas
00000 Xxxxxxx 000 Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxx
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
12. MISCELLANEOUS. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provisions of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same time or at any prior or subsequent time. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Texas without regard to its conflicts of law principles. The
paragraph headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
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13. VALIDITY. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not effect the validity or enforceability
of any other provisions of this Agreement, which shall remain in full force and
effect.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same instrument.
15. 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 (3) arbitrators in San Antonio, Texas in
accordance with the rules of the American Arbitration Association then in
effect. The arbitrators do not have the authority to add to, detract from or
modify any provisions hereof. The arbitrators do have the authority to order
reinstatement and/or back-pay in the event the arbitrators determine that the
Executive was not terminated for Cause, as defined in Section 6.3 hereof. Each
party shall have an opportunity to present evidence on the issues in dispute
before the arbitrator and each party may be represented by legal counsel. A
decision by a majority of the arbitration panel shall be final and binding.
Judgment may be entered on the arbitrators' award in any court having
jurisdiction. The arbitrators shall decide which party will bear the expenses of
such arbitration (including attorneys' fees).
16. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes all other prior agreements, promises, covenants, arrangements,
communications, representations or warranties whether oral or written, by any
officer, Executive or representative of any party hereto; and any prior
agreement of the parties hereto in respect of the subject matter contained
herein is terminated and cancelled.
17. SEVERABILITY. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument. If any covenant should be deemed
invalid, illegal or unenforceable because its scope is considered excessive,
such covenant shall be modified so that the scope of the covenant is reduced
only to the minimum extent necessary to render the modified covenant valid,
legal and enforceable. The parties agree that there is separate consideration
for each provision of this Agreement and that all of the provisions of this
Agreement are severable.
18. CAPTIONS. Captions of this Agreement are for convenience and
reference only, and the words contained therein shall in know way be held to
explain, modify, amplify or aid in the interpretation, construction or meaning
of the provisions of this Agreement.
19. TIME IS OF THE ESSENCE. Time is of the essence of this
Agreement, and each covenant and term a condition hereof.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed in its corporate name by one of its corporate officers, and the
Executive has set Executive's hand to this Agreement, as of the day and year
written above.
EXECUTIVE
------------------------------------------------
Name: Xxxxxx X. Xxxxx
NATIONAL BANCSHARES CORPORATION OF TEXAS,
on behalf of its wholly-owned subsidiary
NBT SECURITIES HOLDINGS, INC.
on behalf of its wholly-owned subsidiary
NBC FINANCIAL, INC.
By:
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
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