EXHIBIT 10.1
GOLD BANC CORPORATION, INC.
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made and entered into
effective as of the 28th day of March, 2003 (the "Effective Date"), by and
between XXXXXXX X. XXXXX (referred to herein as "Employee") and GOLD BANC
CORPORATION, INC. (referred to herein as "Employer").
WITNESSETH:
1. EMPLOYMENT. Employee has previously been providing employment for
Employer. This Agreement will memorialize the terms upon which Employer will
continue to employ Employee to provide services in an executive position on
behalf of Employer as provided hereinafter. This Amended and Restated Employment
Agreement supersedes any and all other agreements between Employer and Employee
pertaining to employment including, specifically, that certain Employment
Agreement dated February 10, 1999, as amended and restated as of January 2,
2000.
2. TERM. This Agreement is effective as of the Effective Date and shall
continue for a rolling two (2) year term unless earlier terminated as
hereinafter provided. At all times, this Agreement shall be deemed to have a two
(2) year term from any date that occurs within the term of this Agreement
subject only to the termination provisions set forth in Section 6 hereinafter.
3. COMPENSATION AND FRINGE BENEFITS. Employee shall receive $425,000 as
base compensation, which base compensation may be modified from time to time by
the Board of Directors of Employer; PROVIDED, HOWEVER in no event shall such
base compensation be less than $425,000. Such compensation shall be payable in
periodic installments at the same time other employees of Employer are paid.
Such compensation shall be reviewed not less often than annually by Employer
throughout the term hereof. Additionally, Employee shall continue to participate
in the executive performance incentive program maintained by Employer. Further,
Employee shall be entitled to such additional incentive compensation as may be
awarded from time to time by the Board of Directors throughout the term of
Employee's employment with Employer.
Employee shall participate in fringe benefit programs as maintained
from time to time by Employer in accordance with the terms of such plans.
Employee acknowledges that such plans may be modified or terminated from time to
time at the discretion of the Board of Directors of Employer. Certain fringe
benefits, such as the grant of stock options, may be memorialized by a separate
agreement. To the extent any such separate agreement is executed, it shall be
interpreted consistent with the terms hereof.
4. DUTIES; EXTENT OF SERVICES. Employee shall serve as President and
Chief Executive Officer of Employer. Employee will discharge duties commensurate
with such
positions and, in addition, Employee will perform such other duties as
assigned to him by the Board of Directors of Employer. Throughout the term of
Employee's employment with Employer, it is agreed that Employee shall be
entitled to serve as a member of the Board of Directors of Employer. Employee
shall be obligated to devote the amount of time necessary in discharging his
duties hereunder to fulfill all obligations of his position. During the term
of this Agreement, Employee agrees not to engage in any other business
activity which would be in conflict with the performance of his duties on
behalf of Employer.
5. EXPENSES. Employee's reasonable business expenses, including
business mileage reimbursement, shall be reimbursed by Employer subject to any
expense reimbursement policies maintained by Employer.
6. TERMINATION. Either party hereto may terminate this Agreement
without cause by giving thirty (30) days written notice to the other party. Such
notice need not specify a reason for such termination, but must be given in
accordance with the terms of this Agreement not less than thirty (30) days prior
to the effective date of termination.
Further, the Employer may terminate this Agreement for "cause" without
notice. "Cause" shall be deemed to exist if (i) Employee dies during the term of
employment hereunder; (ii) Employee is convicted of a felony or misdemeanor
which materially injures the business reputation of the Employer (in the sole
and absolute discretion of the Employer); (iii) Employee breaches any material
terms of this Agreement and fails to cure same within thirty (30) days of the
receipt of notice from Employer specifying the alleged breach and steps required
to cure same; or (iv) Employee fails to perform his employment duties on behalf
of Employer and fails to cure same within thirty (30) days of receipt of written
notice specifying the steps necessary to cure such inadequate performance of
duties.
Except as set forth in this paragraph, in the event of the termination
of Employee's employment, Employee shall receive compensation through the
effective date of termination of employment and shall be entitled to no further
compensation or benefits thereafter. However, it is understood and agreed that
if this Agreement is terminated by Employer other than for "cause" (as
hereinabove defined) at any time during the term of this Agreement (from and
after the Effective Date), Employer will continue to pay the base compensation
referenced in Section 3 above for a period of two (2) years from the effective
date of termination of employment. However, except as otherwise set forth
herein, if (i) Employee voluntarily terminates this Agreement at any time or
(ii) Employer terminates this Agreement for "cause" (as hereinabove defined) at
any time during the term of this Agreement, no continuing payments will be made
and Employee shall receive compensation and benefits only through the effective
date of termination of this Agreement.
Further, notwithstanding anything herein contained to the contrary,
if a "Change of Control" (as hereinafter defined) occurs during the term of
this Agreement and Employee's employment with Employer terminates for any
reason (other than Employee's death) at any time within twelve (12) months
after the Change of Control is consummated, then Employer shall pay
to Employee in one lump sum, in cash, within ten (10) business days after the
effective date of the termination of this Agreement, an amount equal to two
times the annual base compensation in effect for Employee as of the date the
Change of Control is consummated; provided, however, that if and to the
extent payment of such lump sum would not be deductible by Employer for
federal income tax purposes by reason of application of Section 162(m) of the
Internal Revenue Code of 1986, as amended (the "Code"), then payment of that
portion due Employee after a Change of Control shall be deferred until the
earliest date upon which payment can be made without being non-deductible
under Section 162(m) of the Code. Interest shall accrue on the deferred
portion of such payment at the federal short-term rate prescribed under
Section 1274(d)(1)(C)(i) of the Code, compounded annually. Further, if the
payment due Employee hereunder in the event of a Change of Control (either
standing by itself or in conjunction with other payments to which Employee is
entitled from Employer) would constitute a "parachute payment" (as that term
is defined in Section 280G(b)(2) of the Code), such payments shall be reduced
to the largest amount that Employee may receive without imposition of the
excise tax imposed by Section 4999 of the Code. However, no payment under
this paragraph shall be due if Employee's employment with Employer terminates
within twelve (12) months after the Change of Control is consummated if such
termination is as a result of Employee's death.
A "Change of Control" shall be deemed to have occurred under any one of
the following circumstances:
i.) There is any Change of Control of Employer of a nature
that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended from time to time, or any successor
statute (the "Exchange Act"), whether or not Employer is then subject
to such reporting requirement; or
ii.) At the time individuals who, as of the commencement of
the term of this Agreement constitute the Board of Directors of
Employer, cease for any reason to constitute at least a majority of
such Board of Directors; provided, however, that any person becoming a
director subsequent to the date hereof whose election or nomination for
election by the shareholders of Employer was approved by a vote of at
least three-fourths of the directors currently comprising the Board
shall be, for purposes of this paragraph, considered as though such
person was a member of the current Board of Directors unless such
director was elected as a result of an actual or threatened
solicitation of proxies by any Person (as hereinafter defined) in which
event such director shall not be deemed to be a member of the Board of
Directors as of the commencement of the term of this Agreement; or
iii.) Upon the approval by the shareholders of Employer of a
plan of liquidation or dissolution of Employer or the sale of all or
substantially all of the assets of Employer; or
iv.) Any person becomes a Beneficial Owner (as hereinafter
defined) of shares of one or more classes of stock of Employer
representing twenty percent (20%) or more of the total voting power of
Employer's then outstanding voting stock.
For purposes of this Agreement, "Person" shall mean any corporation,
partnership, firm, joint venture, association, individual, trust or other
entity, but does not include Employer or any of its wholly owned or majority
owned subsidiaries, employee benefit plans or related trusts. The term
"Beneficial Owner" shall have the meaning given to such term in Rule 13d-3 of
the General Rules and Regulations under the Exchange Act, as amended from time
to time, or any successor rule.
If Employee remains employed by Employer after the Change of Control
and such employment is not terminated within twelve (12) months after the
effective date of the Change of Control has occurred (or is terminated as a
result of death of Employee), then no payment as a result of such Change of
Control shall be made to Employee and the terms of this Agreement shall continue
to control.
Employee further agrees that if he is requested to remain as an
employee of Employer as a condition imposed by the parties involved in the
Change of Control, Employee agrees to remain employed by Employer for up to six
(6) months after the effective date of such Change of Control as long as the
annual base salary to be paid to Employee for that six (6) month period is not
less than the base salary in effect immediately prior to the consummation of the
Change of Control and as long as other benefits provided during such six (6)
month period are comparable to the benefits Employee is receiving from Employer
as of such date.
7. COVENANT NOT TO COMPETE. In consideration for the provisions
contained in this Amended and Restated Employment Agreement, Employee agrees
to enter into the restrictive covenant contained in this section.
Specifically, Employee acknowledges and agrees that because of Employee's
unique position as a key employee of Employer, Employee's competition with
Employer could result in irreparable harm to Employer. Accordingly, Employee
agrees that throughout the term of Employee's employment with Employer and
continuing for a period of two (2) years following the termination of such
employment, regardless of the reason for such termination, Employee shall not
compete, directly or indirectly, with the Employer by providing services for
or obtaining an ownership interest in any bank, bank holding company, savings
bank, trust company, savings and loan association or similar financial
institution which maintains a facility within a seventy-five (75) mile radius
of the location of the principal office out of which Employee provides
services for Employer. The restrictions contained in the immediately
preceding sentence shall apply to Employee in his status as a principal,
agent, employee, employer, investor (except for investments of not greater
than two percent (2%) of the total outstanding shares in any publicly traded
company engaged in banking), consultant, independent contractor, shareholder,
partner, owner, member, officer, director or in any other individual or
representative capacity whatsoever. However, the restrictions contained in
this paragraph shall not preclude Employee from providing services for or
obtaining an ownership interest in any entity which provides banking services
which would compete with Employer if (i) the gross
income from such banking services represents on an annual basis less than
twenty-five percent (25%) of the gross income of such entity determined on a
consolidated basis and (ii) the total assets of such banking operation are
less than Five Hundred Million Dollars ($500,000.00). An "entity" as that
term is used in the immediately preceding sentence shall include as one
entity any and all entities within a consolidated group which are eligible to
file a consolidated income tax return or whose existence is ignored for
federal income tax purposes. For purposes of this provision, "banking
services" shall include services generally provided by a state or federally
chartered bank, savings bank or savings and loan association.
Employee specifically acknowledges and agrees that the terms of this
restrictive covenant are reasonable and are reasonably necessary to protect
the valid business interests of the Employer. Accordingly, if any provision
of this restrictive covenant is deemed unenforceable by any court of
competent jurisdiction, it is specifically intended by the parties hereto
that it shall be enforced to the extent same is deemed reasonable. In the
event of the breach of any of the terms hereof by Employee, Employee
specifically acknowledges and agrees that the Employer shall be entitled to
enforce the terms hereof by an action at equity. If the Employer seeks to
specifically enforce the terms hereof, then Employee waives any requirement
that the Employer be required to post a bond with respect thereto. Further,
if Employee breaches any terms of this restrictive covenant, the Employer
shall be entitled to an accounting of and a repayment of all profits,
compensation, commissions, benefits or other remuneration which Employee
directly or indirectly receives or may receive as a result of any such
breach. Such remedy shall be in addition to and not in lieu of any injunctive
relief or other remedies to which the Employer may be entitled to at law, in
equity or hereunder. All of the Employer's remedies for the breach of this
restrictive covenant shall be cumulative in the pursuit of any one remedy
provided herein or otherwise shall not be deemed to exclude any and all other
remedies to which the Employer may have a right to pursue.
Further, if Employee breaches the terms of this restrictive
covenant, then the term during which this restrictive covenant applies shall
be extended for the period of time that Employee was engaged in a breach of
the terms hereof.
8. WAIVER OF BREACH. The waiver by any party hereto of a breach of
any provision of this Agreement shall not operate as or be construed to be a
waiver of any subsequent breach by any party.
9. BINDING ON HEIRS. This Agreement shall inure to the benefit of
and be binding upon the parties hereto, their successors, heirs, personal
representatives and assigns.
10. CONFIDENTIALITY. Employee acknowledges and agrees that in the
conduct of his employment duties for Employer, he will be exposed to
documentation and information which constitutes confidential and proprietary
information of Employer, including confidential information pertaining to
customers of Employer. All such confidential and proprietary information is
referred to herein as the "Confidential Information". Confidential
Information shall include, not by way of limitation, all information
pertaining to the operation of Employer
including financial information, marketing plans, contracts, correspondence,
bids or proposals to customers and potential customers, other customer
communications, software programs, business plans, acquisition plans,
identity of acquisition targets, terms of any proposed acquisitions, analysis
of appropriate pricing for proposed acquisition targets and related business
documents. Confidential Information shall also include all information
pertaining to any customer of Employer including any financial information of
any such customer and the terms of any agreements between such customer and
Employer.
Employee agrees that throughout the term of this Agreement and
continuing at all times thereafter, Employee shall not use any Confidential
Information for any purpose other than the performance of Employee's duties
on behalf of Employer. No copies of any Confidential Information shall be
removed from the premises of Employer without the express written consent of
another officer of Employer. No copies of any of the Confidential Information
nor any information contained in any of the Confidential Information shall be
shared with any third party or used by Employee on Employee's own behalf or
on behalf of any third party except in connection with the performance of
Employee's duties on behalf of Employer. At the time of termination of
employment, Employee agrees that all copies of any and all corporate
documents including all Confidential Information shall be returned to
Employer and Employee shall retain no such documents or information.
11. AMENDMENT. This Agreement may be amended only by a writing
signed by both parties hereto.
12. GOVERNING STATE LAW. The terms of this Agreement shall be
governed by and interpreted in accordance with the laws of the State of
Kansas.
13. NOTICES. Any notices required or permitted hereunder must be in
writing and shall be deemed given on the date they are hand delivered or, if
mailed, one day after the date they are deposited in the United States mails,
postage prepaid, certified or registered mail, return receipt requested, and
addressed as follows:
If to Employee: Xxxxxxx X. Xxxxx
00000 Xxxx
Xxxxxxx, XX 00000
If to Employer: Gold Banc Corporation, Inc.
11301 Xxxx
Xxxxxxx, XX 00000
Attn.: Board of Directors
Either party hereto may give notice to the other party of a change in address
to which all notices should be sent at any time during the term hereof.
14. SUPERSEDING AGREEMENT. This Agreement supersedes any and all
prior Employment Agreements between Employer (or any subsidiary of Employer)
and Employee, whether or not the term of such previous agreements has expired.
IN WITNESS WHEREOF, the parties hereto set their hands as of the day
and year first above written.
/s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
EMPLOYEE
GOLD BANC CORPORATION, INC.
By: /s/ XXXX XXXXXXXX
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Xxxx Xxxxxxxx
Chief Financial Officer
EMPLOYER
