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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into on the
last date written below, by and between Success National Bank, a national
banking association ("Bank") and Xxxx X. Xxxxxx ("Binder").
Bank and Binder desire to enter into an employment agreement governed by
the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the provisions and undertakings set
forth herein, the parties, intending to be legally bound, hereby agree as
follows:
1. EMPLOYMENT.
1.1 Employment. Bank hereby retains and employs, and Binder accepts such
retention and employment, to provide services hereunder as President
and Chief Executive Officer of the Bank. Binder shall be accountable
to Bank through its Board of Directors.
1.2 Duties and Obligations. As President and Chief Executive Officer,
Binder shall perform all executive and managerial duties incumbent
upon such position. Binder will devote his full time and attention
and give his best efforts to the performance of such executive and
managerial duties. It is intended that Binder may have other business
investments or directorships and engage in civic, charitable and
other such activities so long as such activities do not interfere
with his duties hereunder.
1.3 Proprietary Property. Binder acknowledges that in the course of his
employment with Bank, Bank will provide Binder with, or access to,
customer lists, memoranda, files, records, trade secrets and such
other proprietary information and property (collectively, the
"Proprietary Property") as is necessary or desirable to assist Binder
in his duties. Binder acknowledges that the Proprietary Property is
the sole and exclusive property of Bank and is not available to the
public at large. Binder agrees that he shall not, while in the employ
of Bank or thereafter, communicate or divulge to, or use for the
benefit of himself or any other person, firm or corporation, without
the prior written consent of Bank, any information relating to the
Proprietary Property. Upon termination of Binder's employment with
Bank, Binder shall thereupon return all Proprietary Property in his
possession or control to Bank.
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2. FINANCIAL ARRANGEMENTS.
2.1 Compensation. As Binder's compensation for services provided
hereunder, Bank shall do the following:
(a) Salary. Bank shall pay Binder, pursuant to Bank's payroll
schedule, an annual salary in the amount of $175,000.00 for the
calendar year 1997.
(b) Bonus. The Bank, based upon the sole determination of the Bank's
board of directors, may grant a bonus to Binder in any year in
which it determines that the Bank's performance justifies such a
bonus.
(c) Expenses. Binder shall be reimbursed on a monthly basis for all
reasonable business expenses incurred by him in the performance
of his duties hereunder, to the extent such expenses are
substantiated and are consistent with the general policies of
Bank relative to expense reimbursement.
(d) Automobile Allowance. Binder shall be given full use of a Bank
automobile. Such automobile shall be comparable to that provided
to Binder in the past. In addition, the Bank shall reimburse
Binder fully for the cost of gasoline, maintenance and insurance
on the automobile.
(e) Benefits. In addition to any compensation provided under this
Agreement, Binder shall be entitled to participate in and receive
benefits under any and all pension, profit sharing and other
employee benefit plans, insurance programs and other benefit
programs which are, from time to time, maintained by Bank for its
senior executive officers, in accordance with the provisions of
such plans or programs as from time to time in effect.
(f) Vacations. Binder shall be entitled to paid vacation days in
accordance with the Bank's Associate Handbook, as such may be
amended from time to time. Days on which Binder is not present at
the Bank, but on which he is conducting Bank business, shall not
be considered vacation days. In particular, the Bank understands
and acknowledges that Binder maintains a residence and office in
Hawaii, and that he conducts Bank business from that location.
Accordingly, days on which Binder is at such location shall not
be considered vacation days, provided, however, that days at such
location which are not considered vacation days should not exceed
thirty (30) business days in any calendar year.
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3. TERM AND TERMINATION.
3.1 Term. This Agreement shall be effective from the date hereof until
Binder reaches the age of 65. Notwithstanding the foregoing, Binder
shall have the option to terminate this Agreement upon giving not
less than 120 days advance written notice to the Bank.
3.2 Termination. This Agreement may be terminated on the first to occur of
any of the following events:
(a) Agreement. Written agreement by both parties to terminate this
Agreement.
(b) Negligence; Misconduct. (i) substantial neglect of his duties
hereunder by Binder, (ii) gross misconduct, (iii) any intentional
act by Binder constituting fraud, misappropriation, embezzlement,
dishonesty or similar act which is injurious to Bank. Prior to
termination of this Agreement under Section 3.2(b)(i) and
3.2(b)(ii) only, Bank shall be required to provide written notice
to Binder of the act or omission complained of, giving reasonably
specific details in describing necessary corrective action, and
Binder shall be given a period of sixty (60) days in which to
cure or correct such act or omission. If such act or omission is
cured or corrected, the right of Bank to terminate this Agreement
under Sections 3.2(b)(i) and 3.2(b)(ii) shall be extinguished.
(c) Breach. Excluding actions or events which may cause termination of
this Agreement as provided in Section 3.2(b), in the event of the
breach of any of the terms and conditions of this Agreement by
either party and the failure of the breaching party to correct
such breach within ten (10) business days after receipt of
written notice of such breach by the breaching party, such other
party may terminate this Agreement immediately upon written
notice of such termination to the breaching party.
(d) Death or Disability. In the event Binder dies or becomes
disabled, to the extent that he is physically or materially
incapacitated for more than six (6) months in the aggregate so
that Binder is unable to perform his essential duties and
functions hereunder, this Agreement may be terminated by Bank
upon written notice to Binder.
(e) Force Majeure. If either party is prevented from performing its
obligations under this Agreement as a result of labor disputes,
fire, war, flood or any other such reason beyond the party's
reasonable control, each
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party's rights and obligations hereunder shall cease until
written notice of such cessation by either party.
3.3 Effects of Termination. In the event of termination of this Agreement
pursuant to Section 3.2(b) hereof, Bank shall have no continuing
obligation to Binder hereunder. In the event of termination as a
result of Sections 3.2(a), (c), (d) or (e) hereof, Bank shall
continue to pay Binder salary, bonus, if any is due, and benefits for
the duration of the term, subject to Section 3.4.
3.4 Severance. If there are less than eighteen months remaining in the
term after a termination resulting from Sections 3.2(a), (c), (d) or
(e), Bank shall continue to pay Binder his salary, bonus, if any is
due, and benefits for a period of eighteen (18) months after such
termination.
4. CHANGE OF CONTROL, SALE.
4.l Upon the sale, transfer or disposition of the shares of stock or
assets of Bank or its holding company, Success Bancshares, Inc.
("Bancshares"), which would be defined as a "change of control" under
the Change in Bank Control Act (12 USC 1817j), Bank shall pay Binder
the sum of $299,000 in one lump sum payment or, if such payment is
not permissible as a matter of law, then such other maximum payment,
not to exceed $299,000, as is lawful; provided, however, that such
payment shall only be made if (a) Binder is an employee of the Bank
immediately prior to such sale, transfer or disposition; and (b)
within eighteen (18) months following such sale, transfer or
disposition (i) Binder is terminated as an employee of the Bank for
any reason other than one described in Sections 3.2(b)(i), (ii) and
(iii) hereof or (ii) Binder's level of responsibility at the Bank is
substantially reduced.
5. PAYMENT BY HOLDING COMPANY.
5.1 In view of Binder's contribution to Bancshares, any compensation or
benefit provided for herein to Binder may, upon the approval of both
the boards of directors of Bank and Bancshares, be paid by Bancshares.
6. Miscellaneous.
6.1 Assignment. This Agreement and all rights and benefits hereunder are
personal to Binder and to Bank. Accordingly, no rights, interests or
benefits hereunder shall be sold, transferred or assigned without the
prior written consent of the other party.
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6.2 Employment Status of Binder. It is expressly acknowledged that
Binder, in the performance of his services hereunder, is an employee
of Bank. Accordingly, Bank shall deduct from the compensation paid to
Binder any sums for income tax, social security or any other
withholding taxes as are required by law.
6.3 Changes or Modifications. No change or modification of this Agreement
shall be valid unless the same shall be in writing signed by Bank and
Binder. No waiver of any provision hereof shall be valid unless in
writing and signed by the party against whom charged.
6.4 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties with respect to the matters set forth herein.
This Agreement supersedes any and all other agreements between the
parties with respect to the subject matter.
6.5 Notices. Notice required herein shall be effective when delivered in
person or sent by United States Certified Mail, postage prepaid and
addressed to:
Bank: Board of Directors
Success National Bank
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000-0000
Binder: Xxxx X. Xxxxxx
Success National Bank
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000-0000.
6.6 Governing Law. This Agreement shall be interpreted, construed and
enforced in accordance with the internal laws of Illinois.
6.7 Separability. The inability or unenforceability of any particular
provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if
such invalid or unenforceable provision were omitted.
6.8 Waiver of Breach. The waiver by either party of a breach or violation
of any provision hereof shall not operate as a waiver of any
subsequent breach of the same or any other provision hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the last date written below.
Bank: Binder:
SUCCESS NATIONAL BANK XXXX X. XXXXXX
By: /s/ Xxxx X. Xxxxxx
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Dated: 2/1/97 Dated: 1/25/97
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