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EXHIBIT 10.4
EMPLOYMENT CONTRACT
THE STATE OF TEXAS
COUNTY OF XXXXXX
This AGREEMENT is made this ___the day of December, 1997 between PRIME
BANK, a Texas banking association, having a principal place of business at
00000 Xxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxx 00000 hereinafter referred to as the
"Employer", and X. X. XXXXXXXX who resides at ____________________, Houston,
Texas hereinafter referred to as the "Employee" (this "Agreement"). Prime
Bancshares, Inc. is also executing this Agreement as guarantor of the
obligations under the Agreement of its subsidiary, Prime Bank.
ARTICLE I
TERM OF EMPLOYMENT
The Employer hereby employs the Employee and the Employee hereby
accepts employment with the Employer for a period of three (3) years beginning
on the Closing Date (as that term is defined in that certain Agreement and Plan
of Reorganization dated the 30th day of December, 1997 among Prime Bancshares,
Inc. Ibid, Inc., Prime Bank and Sunbelt National Bank) (referred to herein as
the "Effective Date"); however, this Agreement may be terminated earlier as
hereinafter provided.
ARTICLE II
DUTIES OF EMPLOYEE
1. Primary Duties. The Employee is hereby employed by Employer
and shall primarily manage the solicitation and servicing of loan and
depositary accounts of Employer associated with the locations of Employer which
were previously those of Sunbelt National Bank and shall perform such other
work as may be assigned to him subject to the instructions, directions, and
control of the Employer which shall be consistent with the type and nature of
work normally performed by senior banking officers.
2. Location. Employee shall work at 1160 Dairy Ashford and shall
be furnished with an office and other business facilities and services
sufficient to carry out his duties of office.
3. Changes of Duties or Location-Mutual Consent. The duties of
the Employee and the location at which Employee shall work may be changed from
time to time by the mutual consent of the Employer and the Employee without
resulting in a rescission of this Agreement. Notwithstanding any such change,
the employment of the Employee shall be construed as continuing under this
Agreement as modified.
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4. Secretarial Assistance. Consistent with Employer's policies
and procedures, Employee shall have the right to hire and terminate his own
secretary.
ARTICLE III
ENGAGING IN OTHER EMPLOYMENT
The Employee shall devote his entire productive time, ability, and
attention to the business of the Employer. The Employee shall not directly or
indirectly render any services of a business, commercial, or professional
nature relating to banking or financial matters to any other person or
organization, whether for compensation or otherwise, without the prior written
consent of the Employer; during the term of this Agreement and during the
non-competition period described in Article VI below.
ARTICLE IV
COMPENSATION
1. Basic Compensation. As compensation for employment services
rendered under this Agreement, the Employee shall be entitled to receive from
the Employer a salary of TEN THOUSAND FOUR HUNDRED SIXTEEN AND 67/100 DOLLARS
($10,416.67) per month, prorated for any partial employment period during the
three (3) year term of this Agreement.
2. Additional Compensation.
a. Employee Bonus Plan. So long as the Employee is
working on a full-time basis (i.e., five days per week, exclusive of holidays,
etc.), the Employee shall be eligible for such additional compensation, if any,
from the Employer for services rendered hereunder based upon Employee's annual
performance evaluation, and the Employee shall be included in the Employer's
employee bonus plan and be entitled to such additional compensation as may
accrue to him by reason of his inclusion in such plan.
ARTICLE V
REIMBURSEMENT OF EMPLOYEE BUSINESS EXPENSES
1. Out of Pocket Expenses. The Employee is authorized to incur
reasonable business expenses for promoting the business of the Employer,
including expenditures for entertainment and travel, including, without
limitation, trade association convention attendance, country club dues, mobile
telephone expense, and other similar business expenses. The Employer and
Employee will mutually determine a reasonable range for such business expenses.
The Employer will reimburse the Employee from time to time for all such
business expenses provided that the Employee presents
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the Employer with appropriate documentation of such expenditures in accordance
with the Employer's established procedures relating to such reimbursements.
2. Automobile Expense Allowance. During the term of his
employment but not thereafter, the Employer shall pay the Employee an
automobile expense allowance of $975.00 per month to reimburse the Employee for
the business use of his personal automobile.
ARTICLE VI
EMPLOYEE'S OBLIGATIONS OTHER THAN TO PERFORM SERVICES
1. Non-Competition by Employee. For a three year period following
the later of (a) the date of the immediately preceding Annual Covenant Payment
(as defined below) or (b) the date that Employee's employment is terminated for
any reason, the Employee shall not, directly or indirectly, either as an
employee, employer, consultant, agent, principal, partner, greater than 10%
stockholder, corporate officer, director, or in any other individual or
representative capacity, (i) solicit the banking business (loan, deposit or
otherwise) of any then existing customers of Employer, and (ii) engage or
participate in any business that is in competition in any manner whatever with
the business of Employer within a ten-mile radius of either the office building
located at 0000 Xxxxx Xxxxxxx, Xxxxxxx, Xxxxx or the branch locations located
at 0000 Xxxx Xxxxxxx, Xxxxxxx, Xxxxx or 0000 Xxxx Xxxxxxx, Xxxxxxx, Xxxxx.
2. Covenant Payments. In consideration for the Employee's
agreement and covenant of non-competition described in the preceding paragraph
1; the Employer agrees to pay the Employee ONE HUNDRED SEVENTY-FIVE THOUSAND &
NO/100 ($175,000) DOLLARS in three (3) annual installments of FIFTY-EIGHT
THOUSAND THREE HUNDRED THIRTY-THREE & 33/100 DOLLARS ($58,333.33) each ("Annual
Covenant Payments"); the first of which Annual Covenant Payments shall be due
and payable on the Effective Date, and the two remaining Annual covenant
Payments shall be due on each of the two anniversary dates of the Effective
Date hereof.
3. Enforcement and Legal Remedies. The parties recognize the
difficulty of properly measuring the damages which reasonably would accrue by
reason of a breach of this covenant of non-competition and thereof agree that
the party suffering by reason of any breach of this Agreement shall be entitled
to the equitable remedy of injunctive relief.
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ARTICLE VII
PROPERTY RIGHTS
1. Trade Secrets and Confidentiality. During the term of
employment, the Employee will have access to and become familiar with various
trade secrets, consisting of customer lists, analytical information, financial
data, and compilations of information, records, and specifications, owned by
the Employer and regularly used in the operation of the business of the
Employer. The Employee shall not disclose any such trade secrets, directly or
indirectly, nor use them in any way, either during the term of this Agreement
or at any time thereafter, except as required in the course of his employment
with the Employer. All files, records, documents, drawings, specification,
equipment, and similar items relating to the business of the Employer, whether
or not prepared by the Employee, shall remain the exclusive property of the
Employer and shall not be removed from the premises of the Employer under any
circumstances without the prior written consent of the Employer.
2. Processes and Improvements. The Employee agrees that he will
promptly from time to time fully inform and disclose to the Employer all
inventions, processes, designs, improvements and discoveries which he now has
or may hereafter have during the term of this Agreement which pertain or relate
to the business of the Employer or to any experimental work carried on by the
Employer, whether conceived by the Employee alone or with others and whether or
not conceived during regular working hours. All such inventions, processes,
designs, improvements, and discoveries shall be the exclusive property of the
Employer. The Employee shall assist the Employer in obtaining patents on all
such inventions, designs, improvements, and discoveries deemed patentable by
the Employer and shall execute all documents and do all things necessary to
obtain letters patent, vest the Employer with full and exclusive title thereto,
and protect the same against infringement by others.
ARTICLE VIII
TERMINATION RIGHTS
1. Employee's Termination Rights. The Employee shall have the
right, at his election and for any reason prior to the expiration of the term
of this Agreement, to voluntarily terminate his employment with the Employer.
Any such voluntary termination of employment by the Employee shall terminate
the Employer's obligation to pay any further compensation provided for in
Article IV above; but shall not impair or effect that obligation of the
Employer to pay the Annual Covenant Payments described in Article VI above;
providing the Employee is not then, or at any time thereafter, in violation of
the covenant of non-competition.
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2. Employer's Termination Rights. The Employer shall have the
right to terminate the Employee, but only for good cause. For purposes of this
Agreement, "good cause" shall mean:
a. Employee's willful and repeated failure to perform
his duties under Article II.1 of this Agreement;
b. Employee's willful and repeated violation of
Employer's written policies and procedures;
c. Habitual use of alcohol or drugs that prevents
Employee from performing his duties under Article II.1 of this Agreement;
d. Conviction of a felony, or conviction of a
misdemeanor involving active and willful fraud or moral turpitude; or
e. Acts of gross disloyalty to Prime, including but not
limited to theft, embezzlement or intentional unauthorized disclosure of
confidential information.
In the event of either (i) the termination for good cause factors d. or e.
above, or (ii) death of Employee, the Employer's obligations to pay the
compensation described in Article IV and its obligations to pay the Annual
Covenant Payments described in Article VI shall automatically cease. In the
event of termination for good cause factors a., b. or c. above, the Employer's
obligations to pay the compensation described in Article IV shall automatically
cease, but Employer's obligations to pay the Annual Covenant Payments as
described in Article VI shall continue, providing that Employee is not in
violation of the covenant of non-competition.
ARTICLE IX
GENERAL PROVISIONS
1. Notices. Any notices to be given hereunder by either party to
the other may be effected either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt requested. Mailed
notices shall be addressed to the parties at the addresses appearing in the
introductory paragraph of this Agreement, but each party may change his address
by written notice in accordance with this paragraph. Notices delivered
personally shall be deemed communicated as of actual receipt; mailed notices
shall be deemed communicated as of three (3) days after mailing.
2. Inclusion of Entire Agreement Herein. This Agreement
supersedes any and all other agreements, either oral or in writing, between
the parties hereto with respect to the employment of
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the Employee by the Employer and contains all of the covenants and agreements
between the parties with respect to such employment in any manner whatsoever.
3. Law Governing Agreement. This Agreement shall be governed by
and construed in accordance with the laws of the State of Texas.
4. Modification. This Agreement shall not be amended, modified,
or altered in any manner except in a writing signed by both parties.
5. Failure to Enforce Not Waiver. Any failure or delay on the
part of either the Employer or the Employee to exercise any remedy or right
under this Agreement shall not operate as a waiver. The failure of either
party to require performance of any of the terms, covenants, or provisions of
this Agreement by other party shall not constitute a waiver of any of the
rights under the Agreement. No forbearance by either party to exercise any
rights or privileges under this Agreement shall be construed as a waiver, but
all rights and privileges shall continue in effect as if no forbearance had
occurred. No covenant or condition of this Agreement may be waived except by
the written consent of the waiving party. Any such written waiver of any term
of this Agreement shall be effective only in the specific instance and for the
specific purpose given.
6. Partial Invalidity. If any provision of this Agreement is
held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remaining provisions shall remain in full force and effect,
as if this Agreement had been executed without any such invalid provisions
having been included. Such invalid provision shall be reformed in a manner
that is both (i) legal and enforceable, and (ii) most closely represents the
parties original intent.
7. Attorney's Fees and Costs. If any action at law or in equity
is necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees, costs, and
necessary disbursements in addition to any other relief to which he may be
entitled.
8. Counterparts. This Agreement has been executed in duplicate,
each of which shall be deemed an original, but both of which shall constitute
one and the same instrument.
9. Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the Employer and the Employee, and their
respective heirs, executors, administrators, successors and assigns, including,
without limitation, any successor by merger, consolidation or stock purchase of
the Employer and any entity or person that acquires all or substantially all of
the assets of the Employer.
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EMPLOYER
PRIME BANK
By:
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X. X. Xxxxx, its President
PRIME BANCSHARES, INC.
By:
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X. X. Xxxxx, its President
EMPLOYEE
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X. X. Xxxxxxxx
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STATE OF TEXAS
COUNTY OF XXXXXX
This instrument was acknowledged before me on this ______ day of
__________, 1997 by X. X. XXXXX in the capacity stated.
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Notary Public - State of Texas
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Printed Name of Notary
My Commission Expires:
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STATE OF TEXAS
COUNTY OF XXXXXX
This instrument was acknowledged before me on this ______ day of
__________, 1997 by X. X. XXXXX in the capacity stated.
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Notary Public - State of Texas
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Printed Name of Notary
My Commission Expires:
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STATE OF TEXAS
COUNTY OF XXXXXX
This instrument was acknowledged before me on this ______ day of
__________, 1997 by X. X. XXXXXXXX.
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Notary Public - State of Texas
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Printed Name of Notary
My Commission Expires:
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