Exhibit 10.31
TERMINATION AGREEMENT
THIS AGREEMENT is made and entered into this 9th day of September, 1999,
by and between BNCCORP, Inc. (the "Company"); BNC National Bank (the "Bank") and
Xxxxx Xxxxx ("Xxxxx").
W I T N E S S E T H:
WHEREAS, Xxxxx is an employee of the Bank; and
WHEREAS, Xxxxx has voluntarily decided to terminate his employment as
President of the Bank and all other duties with the Company and the Bank due to
his acceptance of employment outside the Company and the Bank;
NOW, THEREFORE, pursuant to the foregoing recitals, which are an integral
part hereof, and in consideration of the conditions contained herein, the
sufficiency of which is hereby acknowledge, the parties hereto agree as follows:
Termination of Employment. Effective as of September 17, 1999, Xxxxx
hereby resigns his employment with the Company and the Bank in any and
every capacity, including his membership on all Boards of Director,
including affiliates. This Agreement is a result of Pifer's decision to
accept employment outside the Company and the Bank. By virtue of Pifer's
resignation and this Agreement, the Employment Agreement, dated June 15,
1998, between Xxxxx, the Company and the Bank, is cancelled and is null
and void as of the date of this Agreement. This Agreement replaces all
previous agreements between Xxxxx, the Company and the Bank regarding any
relationships.
Severance. The Company shall, as and for a severance payment, and in
consideration for the terms of this Agreement, transfer stock options for
Five Thousand (5000) shares of stock in BNCCORP, Inc. pursuant to the
BNCCORP, Inc. 1995 Stock Incentive Plan to Xxxxx. Said stock options shall
be transferred and ownership shall vest as unrestricted at the time and
date of Pifer's termination from the Company and the Bank. The exercise
price of the options shall be valued at the time of transfer by the
closing price on the NASDAQ Stock Exchange on the date of termination of
employment by Xxxxx.
Covenant Not to Compete. Xxxxx shall not, for a period of three (3) years
from the date of his termination from employment, in Cass County, North
Dakota, solicit any customers of the Company or the Bank or otherwise
disrupt any previously established relationships between a customer and
the Company or the Bank or own, manage, operate, control, be employed by,
participate in, or be connected in any manner with the ownership,
management, operation or control of any bank, savings and loan
association, financial institution or any other entity providing lending
or deposit services. Xxxxx shall not, for that period and within those
geographic boundaries, engage in the occupation of or business the same or
similar to those of the subsidiaries of the Company, namely financial
services, asset management or insurance sales and services. However, Xxxxx
may be involved in the sales and operation of a crop insurance agency.
Xxxxx shall not contact or solicit any customers of BNC Insurance nor any
agents of BNC Insurance. In the event that the Company or the Bank are
sold or cease to exist, this Covenant Not to Compete shall be null and
void. Xxxxx agrees that the stock options received as severance pay are
ample and sufficient consideration for this Covenant Not to Compete.
Return of Property. On or before the date of termination, Xxxxx shall
return all property and records of or belonging to the Company and the
Bank, including specifically, but not exclusively, all keys to the Company
and the Bank's places of business, all credit cards issued in the name of
the Company or the Bank or payable by the Company or the Bank, all
cellular telephones and accessories, the Jeep Grand Cherokee and all
ignition and other keys, and all computer equipment belonging to the
Company and the Bank.
COBRA. Pursuant to COBRA, Xxxxx will be offered the opportunity for
continued coverage under the Company's health insurance plans.
Confidentiality. Xxxxx agrees to maintain confidential any and all
confidential and proprietary information respecting the Company's
financial and business affairs that he has had access to by reason of his
position with the Company and the Bank.
Release of the Company and the Bank. Effective as of the termination of
employment, Xxxxx does hereby agree to hold harmless and fully, completely
and forever release, acquit and discharge the Company and the Bank, its
successors and assigns, its affiliated companies and the past, present and
future officers, directors, board of directors, employees, agents and
representatives of any and all of them, whether in their individual or
official capacities, from and against any and all claims, demands, suits,
actions and causes of actions of whatever kind, nature or description,
whether arising out of the alleged violation of any state or federal
statute, negligence, breach of contract, fraud, breach of warranty or any
other theory, where legal or equitable, and the consequences thereof,
including any claims, losses, costs of damages, known or unknown,
liquidated or unliquidated, fixed or contingent, which Xxxxx has or may
have or hereafter claim to have against any or all of them resulting from,
arising out of, or in any manner relating to his employment with the
Company and the Bank.
Representation as to Consideration. Xxxxx hereby warrants that the Release
and the Covenant Not to Compete are supported by good, valuable and
adequate consideration, the receipt and sufficiency of which is
acknowledge, and Xxxxx hereby waives any defense against the enforcement
or assertion of said Release and Covenant Not to Compete based upon
failure of consideration.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
BNCCORP, Inc.
BNC National Bank
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By: /s/ Xxxxxxx X. Xxxxxxxxx
President, BNCCORP, Inc.
/s/ Xxxxx X. Xxxxx
Xxxxx Xxxxx