EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is by and among FIRST
PROSPERITY BANK, a Texas banking association (the "Bank"), and XXXXX XXXXXX, an
individual residing in El Campo, Xxxxxxx County, Texas (the "Employee"),
effective as of January 1, 1998 (the "Effective Date").
WITNESSETH:
In consideration of the mutual covenants and agreements contained in
this Agreement, the Parties agree as follows:
1 . EMPLOYMENT. On the terms and subject to the conditions set forth in
this Agreement, the Bank hereby employs Employee, and engages the services of
the Employee to serve as President of the Bank, and Employee hereby accepts
employment with the Bank according to the terms set forth in this Agreement.
2. DUTIES. Employee is hereby employed and shall work at the location of
the Bank or at such other place or places as may be directed by the Bank. The
Employee shall have the position (including status, offices, titles and
reporting requirements), authority, duties, and responsibilities usually
associated with the president of a bank having assets similar in nature and
value to the assets of the Bank.
3. TERM. The term of this Agreement shall be as follows:
3.1 TERM. The term ("Term") of this Agreement shall commence on the
date hereof and continue for a period of three years.
3.2 EXTENSIONS. At the conclusion of each anniversary of the
execution date of this Agreement or any extensions thereof, the Term of this
Agreement shall automatically be extended for an additional year, unless this
Agreement is terminated in accordance with Section 7 hereof.
4. COMPENSATION AND BENEFITS. The compensation and other benefits payable
to Employee under this Agreement shall constitute the full consideration to be
paid to Employee for all services to be rendered by Employee to the Bank.
4.1 BASE SALARY. During the first year the Term ofthis Agreement,
the Bank shall pay Employee a base salary ("Base Salary") of $185,000 per annum,
commencing on the date of execution of this Agreement. The Employee's Base
Salary shall be payable in accordance with the Bank's customary policies,
subject to payroll and withholding deductions as may be required by law and
other deductions applied generally to employees of the Bank for insurance or
other employee benefit plans.
4.2 ANNUAL REVIEW. The Employee's Base Salary shall be reviewed
annually by the Board of Directors of Prosperity Bancshares, Inc., the parent of
the Bank and recommendations shall be submitted to the board of Directors
subject to approval by the Board of Prosperity and the Bank and the Base Salary
may be increased from time to time upon the approval of both Boards.
4.3 REIMBURSEMENT OF EXPENSES. Employee shall be reimbursed for any
and all reasonable costs and expenses incurred by Employee in performance of his
services and duties as specified in this Agreement or incurred by Employee on
behalf of, or in furtherance of the business of, the Bank, including, but not
limited to business expenses incurred in connection with travel and
entertaimnent; provided, however, that Employee shall submit to the Bank
supporting receipts and information satisfactory to the Bank with respect to
such reasonable costs and expenses. The Employee shall also be provided with the
use of an automobile of Employee's selection with a purchase cost not exceeding
$45,000, and the Bank will reimburse all operating expenses incurred by Employee
for use of such automobile in carrying out Employee's duties for the Bank. Upon
termination of this Agreement, Employee shall be entitled to Purchase the
automobile from the Bank by payment of the NADA trade-in value of such
automobile.
4.4 BENEFITS. During the term of employee's employment, he shall be
entitled (i) to receive health insurance benefits with the same coverages and
deductibles as are currently in effect with respect to Employee and his spouse
(subject to the availability of such benefits at a reasonable cost), (ii) to
participate in the Bank's other benefit plans to such extent as determined by
the Board of Directors of the Bank, (iii) to participate in the Bank's other
policies, including vacation and sick leave.
5. CONFLICTS OF INTERESTS; COVENANT NOT TO COMPETE.
5. 1 Employee shall, during the term of this Agreement, devote his
time, attention, energies and business efforts to his duties as an employee of
the Bank and to the business of the Bank. Employee shall not, during the term of
this Agreement, directly or indirectly, for and on behalf of himself or any
person, firm, partnership, corporation or other legal entity, own, manage,
operate, control, invest in, make loans on advances to, guarantee the
obligations of or participate in the ownership or management or operations of or
be employed by or otherwise engage in the operation of any business that is in
competition in any manner whatsoever with the business of the Bank.
6. CONFIDENTIAL INFORMATION.
6. 1 As used herein, "Confidential Information" means all technical
and business information (including financial statements and related books and
records, personnel records, customer lists, arrangements with customers and
suppliers, manuals and reports) of the Bank and its affiliates which is of a
confidential and/or proprietary character and which is either developed by
Employee (alone or with others) or to which Employee has had access during his
employment. Employee shall, both during and after his employment with the Bank,
protect and maintain the con fidential and/or proprietary character of all
Confidential Information. Employee shall not, during or after termination of his
employment, directly or indirectly, use (for himself or another) or disclose any
Confidential Information, for so long as it shall remain proprietary or
protectible as confidential, except as may be necessary for the performance of
his duties under this Agreement.
7. TERMINATION.
7. 1 TERMINATION OF AGREEMENT. Except as may otherwise be provided
herein, this Agreement may terminate prior to the end of the Term upon the
occurrence of:
(a) Thirty (30) days after written notice of termination is given by
either party to the other; or
(b) Employees's death or, at the Bank's option, upon Employee's
becoming Disabled (as defined in Section 8.3 hereof).
Any notice of termination given by Employee to the Bank under Section 7. 1 (a)
above shall specify whether such termination is made with or without Good
Reason-Change in Control (as defined in Section 8.5 hereof). Any notice of
termination given by the Bank to Employee under Section 7.1(a) above shall
specify whether such termination is with or without Cause (as defined in Section
8.4 hereof.
8. OBLIGATIONS OF THE BANK UPON TERMINATION.
8.1 CAUSE AND OTHER THAN FOR GOOD REASON-CHANGE IN CONTROL. If the
Bank terminates this Agreement with Cause (as defined in Section 8.4) pursuant
to Section 7. 1 (a) above, or if Employee terminates this Agreement without Good
Reason-Change in Control pursuant to Section 7.1(a) hereof, this Agreement shall
terminate without further obligations to Employee, other than those obligations
owing or accrued to, vested in, or earned by Employee through the date of
termination, including, but not limited to:
(a) to the extent not theretofore paid, Employee's Base Salary
in effect at the time of such termination through the date of
termination; and
(b) in the case of compensation previously deferred by
Employee, all amounts previously deferred (together with any accrued
interest thereon) and not yet paid by the Bank and any accrued
vacation pay not yet paid by the Bank; and
(c) all other amounts or benefits owing or accrued to, vested
in, earned by Employee through the date of termination under the
then existing or applicable plans, programs, arrangements, and
policies of Bank.
The aggregate amount of such obligations owing or accrued to, vested in, or
earned by Employee through the date of termination shall be paid by the Bank to
Employee in cash in one lump sum within thirty (30) days after the date of
termination.
8.2 GOOD REASON-CHANGE IN CONTROL; OTHER THAN FOR CAUSE BEFORE OR
AFTER A CHANGE IN CONTROL. If Employee terminates this Agreement with Good
Reason-Change in Control Pursuant to Section 7.1(a) hereof, or if the Bank
terminates this Agreement without Cause before or after the occurrence of a
Change in Control pursuant to Section 7.1(a) hereof, the Bank shall Pay to
Employee cash in one lump sum within thirty (30) days after the date of
termination the aggregate of the following amounts (the "Change in Control-Lump
Sum Payment"):
(i) to the extent not theretofore paid, Employee's Base
Salary at the annual rate in effect at the time of such
termination through the date of termination; and
(ii) to the extent not theretofore paid, any bonus
through the date of termination; and
(iii) in the case of compensation previously deferred by
Employee, all amounts previously deferred (together with any
accrued interest thereon) and not yet paid by the Bank, and
any accrued vacation pay not yet paid by the Bank; and
(iv) all other amounts or benefits owing or accrued to,
vested in, or earned by Employee through the date of
termination under the then existing or applicable plans,
programs, arrangements, and policies of the Bank; and
(v) an amount equal to three (3) times the Employee's
Base Salary in effect at the time of such termination. In no
event shall Employee be entitled to invoke this provision more
than once under the terms of this entire contract.
8.3 DEATH OR DISABILITIES. If Employee's employment is terminated
under Section 7.l(b) hereof by reason of employee's death or Disability, the
Bank shall pay to Employee's legal representatives cash in one lump sum within
thirty (30) days after the date of employee's death or Disability the full
amount of the obligations owing or accrued to, vested in, or earned by Employee
through the date of Employee's death or disability, but not including the
remaining unearned portion of the contract, without approval of both Boards.
Anything in this Agreement to the contrary notwithstanding, the Employee's legal
representatives or beneficialness shall be entitled to receive benefits provided
under the then existing or applicable plans, programs, or arrangements and
policies of the Bank relating to death or disability. As used herein, "Disabled"
shall mean total disability as determined pursuant to the Bank's long term
disability Plan or, if no such plan shall be in effect, by the Board of
Directors of the Bank in accordance with their reasonable business judgment and
the normal personnel practices of the Bank.
8.4 CAUSE. As used in this Agreement, the term "Cause" means (i)
willful misconduct by Employee, (ii) the gross neglect by Employee of his duties
as an employee, officer or director of the Bank which continues for more than
thirty (30) days after written notice from the Bank to Employee specifically
identifying the gross negligence of Employee and directing Employee to
discontinue same, (iii) the commission by Employee of an act, other than an act
taken in good faith within the course and scope of Employee's employment, which
is directly detrimental to the Bank and which act exposes the Bank to material
liability, (iv) the Employee having been indicted for or convicted of any felony
or other crime involving moral turpitude, or (v) current illegal use of
narcotics, illegal drugs or controlled substances by Employee, or the current
use of alcohol by the Employee to an extent which materially impairs the
performance of Employee's duties.
8.5 GOOD REASON-CHANGE IN CONTROL. As used in this Agreement, the
term "Good Reason-Change in Control" means after the occurrence of a Change in
Control (as defined in Section 8.6) and a determination by Employee that any one
or more of the following
events has occurred:
(a) the assignment by the Bank to Employee of duties that are
inconsistent with the position of President at the time of such
assigmnent, or the removal by the Bank from Employee of those duties
usually appertaining to the position of President at the time of such
removal; or
(b) a change by the Bank, without Employee's prior written consent,
in Employee's responsibilities to the Bank as such responsibilities
existed at the time of the occurrence of such Change in Control (or as
such responsibilities may thereafter exist from time to time as a result
of changes in such responsibilities made with Employee's prior written
consent); or
(c) the failure of the Bank to continue to provide Employee with
office space, related facilities and support personnel (including, but not
limited to, administrative and secretarial assistance) that are both
commensurate with the position of President and Employee's
responsibilities to and position with the Bank at the time of the
occurrence of such Change in Control and not materially dissimilar to the
office space, related facilities and support personnel provided to other
key executive officers of the Bank; or
(d) a reduction by the Bank in the amount of Employee's Base Salary
specified in Section 4.1(a) (or as subsequently increased) and as in
effect at the time of the occurrence of such Change in Conbol, or a
failure of the Bank to pay such Base Salary to the Employee at the time
and in the manner specified in Section 4.1 (a) of this Agreement; or
(e) the relocation, without Employee's prior written consent, of the
Bank's principal executive offices to a location outside the county in
which such offices are located at the time of the occurrence of such
Change in Control; or
(f) the failure of the Bank to obtain the assumption by any
successor to the Bank of the obligations imposed upon the Bank under this
Agreement, as required by Section l5 of this Agreement; or
(g) the employment of Employee under this Agreement is terminated by
the Bank without Cause; or
(h) the Bank notifies Employee of the Bank's intention not to
observe or perform one or more of the obligations ofthe Bank under this
Agreement; or
(i) the Bank breaches any provision of this Agreement.
8.6 CHANGE IN CONTROL. As used herein, the term "Change in Control"
shall mean the occurrence with respect to First Prosperity Bancshares, Inc.
("Bancshares") or the Bank of any of the following events: (a) the acquisition
of all or substantially all of the assets of Bancshares or the Bank, or (b)
Bancshares or the Bank is acquired Pursuant to a merger, consolidation or other
corporate reorganization.
9. NOTICES. Any notice under this Agreement must be in writing and may be
given by certified or registered mail, postage prepaid, addressed to the party
or parties to be notified with return receipt requested, or by delivering the
notice in person. For purposes of notice, the address of Employee or any
administrator, executor or legal representative of Employee or his estate, as
the case may be, shall be the last address of the Employee on the records of the
Bank. The address of the Bank shall be its Principal business address.
10. CONTROLLING LAW. This Agreement shall be governed by the laws of the
State of Texas.
11 . ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties and may only be amended in writing signed by both parties; provided,
that no amendment to this Agreement shall be effective unless authorized by
resolution of the Board of Directors and signed on behalf of the Bank by a duly
authorized officer of the Bank other than Employee.
12. REMEDIES, MODIFICATION AND SEPARABILITY. Employee and the Bank agree
that Employee's breach of Sections 5 and 6 of this Agreement will result in
irreparable harm to the Bank, that no adequate remedy at law is available, and
that the Bank shall be entitled to injunctive relief; however, nothing herein
shall prevent the Bank from pursuing any other remedies at law or at equity
available to the Bank. Should a court of competent jurisdiction declare any of
the covenants set forth in Sections 5 or 6 unenforceable, the court shall be
empowered to modify or reform such covenants so as to provide relief reasonably
necessary to protect the interests of the Bank and Employee and to award
injunctive relief, or damages, or both, to which the Bank may be entitled. If
any provision of this Agreement is declared by a court of last resort to be
invalid, the Bank and Employee agree that such declaration shall not affect the
validity of the other provisions ofthis Agreement. If any provision of this
Agreement is capable to two constructions, one of which would render the
provision void and the other of which would render the provision valid, then the
provision shall have the construction which renders it valid.
13. PRESERVATION OF BUSINESS: FIDUCIARY RESPONSIBILITY. Employee shall use
his best efforts to preserve the business and organization of the Bank, to keep
available to the Bank the services of its present employees and to preserve the
business relations of the Bank with suppliers, distributors, customers and
others. Employee shall not commit any act which would injure the Bank. Employee
shall observe and fulfill proper standards of fiduciary responsibility attendant
upon his Office.
14. ASSIGNMENTS. This Agreement is personal to Employee and without the
prior written consent of the Bank shall not be assignable by Employee other than
by will or the laws of descent and distribution. This Agreement shall inure to
the benefit of and be enforceable by Employee's legal representatives and heirs.
This Agreement shall inure to the benefit of and be binding upon the Bank and
its successors and assigns. The Bank shall require any corporation, entity,
individual or other person who is the successor (whether direct or indirect, by
purchase, merger, consolidation, reorganization, or otherwise) to all or
substantially all of the business or assets of the Bank to expressly assume and
agree to perform, by a written agreement in form and substance satisfactory to
Employee, all of the obligations of the Bank under this Agreement. As used in
this Agreement, the term "Bank" shall mean the Bank as hereinbefore defined and
any successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law, written agreement, or
otherwise.
15. WAIVER OF BREACH. The waiver by the Bank of a breach of any provision
of this Agreement by Employee shall not operate or be construed as a waiver by
the Bank of any subsequent breach of Employee.
16. REVOCATION OF PREVIOUS EMPLOYMENT AGREEMENT. Any and all previous
employment agreements existing between the Bank and Employee are revoked and
canceled.
17. HEADINGS. The section headings in this Agreement are for convenience
of reference and shall not be used in the interpretation or construction of this
Agreement.
18. ATTORNEY'S FEES. In the event Bank or Employee breaches any term or
provision of this Agreement and the other party employs an attorney or attorneys
to enforce the terms of this Agreement, then the breaching or defaulting party
agrees to pay the other party the reasonable attorney's fees and costs incurred
to enforce this Agreement.
19. EXECUTION. This Agreement may be executed in multiple counterparts
each of which shall be deemed an original and all of which shall constitute one
instrument.
Employee acknowledges that he has read this Agreement and understands that
signing this Agreement is a condition of employment.
IN WITNESS WHEREOF, this Agreement is executed as of the _____ day of
-----------,
1998.
"EMPLOYEE" "BANK"
FIRST PROSPERITY BANCSHARES, INC.
____________________________________
XXXXX XXXXXX BY:_________________________________
XXXXX XXXXXXX, DIRECTOR
BY:_________________________________
XXXXX XXXXXX, DIRECTOR
BY:_________________________________
XXXXX XXXXX, DIRECTOR
BY:_________________________________
XXX XXXXXXXX, DIRECTOR
BY:_________________________________
X. X. XXXXX, DIRECTOR
BY:_________________________________
XXXXXXX XXXXXX, DIRECTOR
BY:_________________________________
XXXXXXXX XXXXXXXX, DIRECTOR
BY:_________________________________
XXXXXX XXXXXXXXXXX, DIRECTOR
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is by and among FIRST
PROSPERITY BANK, a Texas banking association (the "Bank"), and XXXXX X. XXXXXXX,
an individual residing in Houston, Xxxxxx County, Texas (the "Employee"),
effective as of January 1, 1998 (the "Effective Date").
WITNESSETH:
In consideration of the mutual covenants and agreements contained in this
Agreement, the Parties agree as follows:
1 . EMPLOYMENT. On the terms and subject to the conditions set forth in
this Agreement, the Bank hereby employs Employee, and engages the services of
the Employee to serve as Chairman of the Board of the Bank, and Employee hereby
accepts employment with the Bank according to the terms set forth in this
Agreement.
2. DUTIES. Employee is hereby employed and shall work at the location of
the Bank or at such other place or places as may be directed by the Bank. The
Employee shall have the position (including status, offices, titles and
reporting requirements), authority, duties, and responsibilities usually
associated with the chairman of the board of a bank having assets similar in
nature and value to the assets of the Bank.
3. TERM. The term of this Agreement shall be as follows:
3.1 TERM. The term ("Term") of this Agreement shall commence on the
date hereof and continue for a period of three years.
3.2 EXTENSIONS. At the conclusion of each anniversary of the
execution date of this Agreement or any extensions thereof, the Term of this
Agreement shall automatically be extended for an additional year, unless this
Agreement is terminated in accordance with Section 7 hereof.
4. COMPENSATION AND BENEFITS. The compensation and other benefits payable
to Employee under this Agreement shall constitute the full consideration to be
paid to Employee for all services to be rendered by Employee to the Bank.
4.1 BASE SALARY. During the first year the Term of this Agreement,
the Bank shall pay Employee a base salary ("Base Salary") of $225,000 per annum,
commencing on the date of execution of this Agreement. The Employee's Base
Salary shall be payable in accordance with the Bank's customary policies,
subject to payroll and withholding deductions as may be required by law and
other deductions applied generally to employees of the Bank for insurance or
other employee benefit plans.
4.2 ANNUAL REVIEW. The Employee's Base Salary shall be reviewed
annually by the Board of Directors of Prosperity Bancshares, Inc., the parent of
the Bank and recommendations shall be submitted to the board of Directors
subject to approval by the Board of Prosperity and the Bank and the Base Salary
may be increased from time to time upon the approval of both Boards.
4.3 REIMBURSEMENT OF EXPENSES. Employee shall be reimbursed for any
and all reasonable costs and expenses incurred by Employee in performance of his
services and duties as specified in this Agreement or incurred by Employee on
behalf of, or in furtherance of the business of, the Bank, including, but not
limited to business expenses incurred in connection with travel and
entertainment; provided, however, that Employee shall submit to the Bank
supporting receipts and information satisfactory to the Bank with respect to
such reasonable costs and expenses. The Employee shall also be provided with the
use of an automobile of Employee's selection with a purchase cost not exceeding
$45,000, and the Bank will reimburse all operating expenses incurred by Employee
for use of such automobile in carrying out Employee's duties for the Bank. Upon
termination of this Agreement, Employee shall be entitled to Purchase the
automobile from the Bank by payment of the NADA trade-in value of such
automobile.
4.4 BENEFITS. During the term of employee's employment, he shall be
entitled (i) to receive health insurance benefits with the same coverages and
deductibles as are currently in effect with respect to Employee and his spouse
(subject to the availability of such benefits at a reasonable cost), (ii) to
participate in the Bank's other benefit plans to such extent as determined by
the Board of Directors of the Bank, (iii) to participate in the Bank's other
policies, including vacation and sick leave.
5. CONFLICTS OF INTERESTS; COVENANT NOT TO COMPETE.
5. 1 Employee shall, during the term of this Agreement, devote his
time, attention, energies and business efforts to his duties as an employee of
the Bank and to the business of the Bank. Employee shall not, during the term of
this Agreement, directly or indirectly, for and on behalf of himself or any
person, firm, partnership, corporation or other legal entity, own, manage,
operate, control, invest in, make loans on advances to, guarantee the
obligations of or participate in the ownership or management or operations of or
be employed by or otherwise engage in the operation of any business that is in
competition in any manner whatsoever with the business of the Bank.
6. CONFIDENTIAL INFORMATION.
6. 1 As used herein, "Confidential Information" means all technical
and business information (including financial statements and related books and
records, personnel records, customer lists, arrangements with customers and
suppliers, manuals and reports) of the Bank and its affiliates which is of a
confidential and/or proprietary character and which is either developed by
Employee (alone or with others) or to which Employee has had access during his
employment. Employee shall, both during and after his employment with the Bank,
protect and maintain the confidential and/or proprietary character of all
Confidential Information. Employee shall not, during or after termination of his
employment, directly or indirectly, use (for himself or another) or disclose any
Confidential Information, for so long as it shall remain proprietary or
protectible as confidential, except as may be necessary for the performance of
his duties under this Agreement.
7. TERMINATION.
7. 1 TERMINATION OF AGREEMENT. Except as may otherwise be provided
herein, this Agreement may terminate prior to the end of the Term upon the
occurrence of:
(a) Thirty (30) days after written notice of termination is given by
either party to the other; or
(b) Employees's death or, at the Bank's option, upon Employee's
becoming Disabled (as defined in Section 8.3 hereof).
Any notice of termination given by Employee to the Bank under Section 7. 1 (a)
above shall specify whether such termination is made with or without Good
Reason-Change in Control (as defined in Section 8.5 hereof). Any notice of
termination given by the Bank to Employee under Section 7.1(a) above shall
specify whether such termination is with or without Cause (as defined in Section
8.4 hereof.
8. OBLIGATIONS OF THE BANK UPON TERMINATION.
8.1 CAUSE AND OTHER THAN FOR GOOD REASON-CHANGE IN CONTROL. If the
Bank terminates this Agreement with Cause (as defined in Section 8.4) pursuant
to Section 7. 1 (a) above, or if Employee terminates this Agreement without Good
Reason-Change in Control pursuant to Section 7.1(a) hereof, this Agreement shall
terminate without further obligations to Employee, other than those obligations
owing or accrued to, vested in, or earned by Employee through the date of
termination, including, but not limited to:
(a) to the extent not theretofore paid, Employee's Base Salary
in effect at the time of such termination through the date of
termination; and
(b) in the case of compensation previously deferred by
Employee, all amounts previously deferred (together with any accrued
interest thereon) and not yet paid by the Bank and any accrued
vacation pay not yet paid by the Bank; and
(c) all other amounts or benefits owing or accrued to, vested
in, earned by Employee through the date of termination under the
then existing or applicable plans, programs, arrangements, and
policies of Bank.
The aggregate amount of such obligations owing or accrued to, vested in, or
earned by Employee through the date of termination shall be paid by the Bank to
Employee in cash in one lump sum within thirty (30) days after the date of
termination.
8.2 GOOD REASON-CHANGE IN CONTROL; OTHER THAN FOR CAUSE BEFORE OR
AFTER A CHANGE IN CONTROL. If Employee terminates this Agreement with Good
Reason-Change in Control Pursuant to Section 7.1(a) hereof, or if the Bank
terminates this Agreement without Cause before or after the occurrence of a
Change in Control pursuant to Section 7.1(a) hereof, the Bank shall Pay to
Employee cash in one lump sum within thirty (30) days after the date of
termination the aggregate of the following amounts (the "Change in Control-Lump
Sum Payment"):
(i) to the extent not theretofore paid, Employee's Base
Salary at the annual rate in effect at the time of such
termination through the date of termination; and
(ii) to the extent not theretofore paid, any bonus
through the date of termination; and
(iii) in the case of compensation previously deferred by
Employee, all amounts previously deferred (together with any
accrued interest thereon) and not yet paid by the Bank, and
any accrued vacation pay not yet paid by the Bank; and
(iv) all other amounts or benefits owing or accrued to,
vested in, or earned by Employee through the date of
termination under the then existing or applicable plans,
programs, arrangements, and policies of the Bank; and
(v) an amount equal to three (3) times the Employee's
Base Salary in effect at the time of such termination. In no
event shall Employee be entitled to invoke this provision more
than once under the terms of this entire contract.
8.3 DEATH OR DISABILITIES. If Employee's employment is terminated
under Section 7.1(b) hereof by reason of employee's death or Disability, the
Bank shall pay to Employee's legal representatives cash in one lump sum within
thirty (30) days after the date of employee's death or Disability the full
amount of the obligations owing or accrued to, vested in, or earned by Employee
through the date of Employee's death or disability, but not including the
remaining unearned portion of the contract, without approval of both Boards.
Anything in this Agreement to the contrary notwithstanding, the Employee's legal
representatives or beneficialness shall be entitled to receive benefits provided
under the then existing or applicable plans, programs, or arrangements and
policies of the Bank relating to death or disability. As used herein, "Disabled"
shall mean total disability as determined pursuant to the Bank's long term
disability Plan or, if no such plan shall be in effect, by the Board of
Directors of the Bank in accordance with their reasonable business judgment and
the normal personnel practices of the Bank.
8.4 CAUSE. As used in this Agreement, the term "Cause" means (i)
willful misconduct by Employee, (ii) the gross neglect by Employee of his duties
as an employee, officer or director of the Bank which continues for more than
thirty (30) days after written notice from the Bank to Employee specifically
identifying the gross negligence of Employee and directing Employee to
discontinue same, (iii) the commission by Employee of an act, other than an act
taken in good faith within the course and scope of Employee's employment, which
is directly detrimental to the Bank and which act exposes the Bank to material
liability, (iv) the Employee having been indicted for or convicted of any felony
or other crime involving moral turpitude, or (v) current illegal use of
narcotics, illegal drugs or controlled substances by Employee, or the current
use of alcohol by the Employee to an extent which materially impairs the
performance of Employee's duties.
8.5 GOOD REASON-CHANGE IN CONTROL. As used in this Agreement, the
term "Good Reason-Change in Control" means after the occurrence of a Change in
Control (as defined in Section 8.6) and a determination by Employee that any one
or more of the following events has occurred:
(a) the assignment by the Bank to Employee of duties that are
inconsistent with the position of Chairman of the Board at the time of
such assigmnent, or the removal by the Bank from Employee of those duties
usually appertaining to the position of Chairman of the Board at the time
of such removal; or
(b) a change by the Bank, without Employee's prior written consent,
in Employee's responsibilities to the Bank as such responsibilities
existed at the time of the occurrence of such Change in Control (or as
such responsibilities may thereafter exist from time to time as a result
of changes in such responsibilities made with Employee's prior written
consent); or
(c) the failure of the Bank to continue to provide Employee with
office space, related facilities and support personnel (including, but not
limited to, administrative and secretarial assistance) that are both
commensurate with the position of Chairman of the Board and Employee's
responsibilities to and position with the Bank at the time of the
occurrence of such Change in Control and not materially dissimilar to the
office space, related facilities and support personnel provided to other
key executive officers of the Bank; or
(d) a reduction by the Bank in the amount of Employee's Base Salary
specified in Section 4.l(a) (or as subsequently increased) and as in
effect at the time of the occurrence of such Change in Conbol, or a
failure of the Bank to pay such Base Salary to the Employee at the time
and in the manner specified in Section 4. 1 (a) of this Agreement; or
(e) the relocation, without Employee's prior written consent, of the
Bank's principal executive offices to a location outside the county in
which such offices are located at the time of the occurrence of such
Change in Control; or
(f) the failure of the Bank to obtain the assumption by any
successor to the Bank of the obligations imposed upon the Bank under this
Agreement, as required by Section 15 of this Agreement; or
(g) the employment of Employee under this Agreement is terminated by
the Bank without Cause; or
(h) the Bank notifies Employee of the Bank's intention not to
observe or perform one or more of the obligations ofthe Bank under this
Agreement; or
(i) the Bank breaches any provision of this Agreement.
8.6 CHANGE IN CONTROL. As used herein, the term "Change in Control"
shall mean the occurrence with respect to First Prosperity Bancshares, Inc.
("Bancshares") or the Bank of any of the following events: (a) the acquisition
of all or substantially all of the assets of Bancshares or the Bank, or (b)
Bancshares or the Bank is acquired Pursuant to a merger, consolidation or other
corporate reorganization.
9. NOTICES. Any notice under this Agreement must be in writing and may be
given by certified or registered mail, postage prepaid, addressed to the party
or parties to be notified with return receipt requested, or by delivering the
notice in person. For purposes of notice, the address of Employee or any
administrator, executor or legal representative of Employee or his estate, as
the case may be, shall be the last address of the Employee on the records of the
Bank. The address of the Bank shall be its Principal business address.
10. CONTROLLING LAW. This Agreement shall be governed by the laws of the
State of Texas.
11 . ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties and may only be amended in writing signed by both parties; provided,
that no amendment to this Agreement shall be effective unless authorized by
resolution of the Board of Directors and signed on behalf of the Bank by a duly
authorized officer of the Bank other than Employee.
12. REMEDIES, MODIFICATION AND SEPARABILITY. Employee and the Bank agree
that Employee's breach of Sections 5 and 6 of this Agreement will result in
irreparable harm to the Bank, that no adequate remedy at law is available, and
that the Bank shall be entitled to injunctive relief; however, nothing herein
shall prevent the Bank from pursuing any other remedies at law or at equity
available to the Bank. Should a court of competent jurisdiction declare any of
the covenants set forth in Sections 5 or 6 unenforceable, the court shall be
empowered to modify or reform such covenants so as to provide relief reasonably
necessary to protect the interests of the Bank and Employee and to award
injunctive relief, or damages, or both, to which the Bank may be entitled. If
any provision of this Agreement is declared by a court of last resort to be
invalid, the Bank and Employee agree that such declaration shall not affect the
validity of the other provisions ofthis Agreement. If any provision of this
Agreement is capable to two constructions, one of which would render the
provision void and the other of which would render the provision valid, then the
provision shall have the construction which renders it valid.
13. PRESERVATION OF BUSINESS: FIDUCIARY RESPONSIBILITY. Employee shall use
his best efforts to preserve the business and organization of the Bank, to keep
available to the Bank the services of its present employees and to preserve the
business relations of the Bank with suppliers, distributors, customers and
others. Employee shall not commit any act which would injure the Bank. Employee
shall observe and fulfill proper standards of fiduciary responsibility attendant
upon his Office.
14. ASSIGNMENTS. This Agreement is personal to Employee and without the
prior written consent of the Bank shall not be assignable by Employee other than
by will or the laws of descent and distribution. This Agreement shall inure to
the benefit of and be enforceable by Employee's legal representatives and heirs.
This Agreement shall inure to the benefit of and be binding upon the Bank and
its successors and assigns. The Bank shall require any corporation, entity,
individual or other person who is the successor (whether direct or indirect, by
purchase, merger, consolidation, reorganization, or otherwise) to all or
substantially all of the business or assets of the Bank to expressly assume and
agree to perform, by a written agreement in form and substance satisfactory to
Employee, all of the obligations of the Bank under this Agreement. As used in
this Agreement, the term "Bank" shall mean the Bank as hereinbefore defined and
any successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law, written agreement, or
otherwise.
15. WAIVER OF BREACH. The waiver by the Bank of a breach of any provision
of this Agreement by Employee shall not operate or be construed as a waiver by
the Bank of any subsequent breach of Employee.
16. REVOCATION OF PREVIOUS EMPLOYMENT AGREEMENT. Any and all previous
employment agreements existing between the Bank and Employee are revoked and
cancelled.
17. HEADINGS. The section headings in this Agreement are for
convenience of reference and shall not be used in the interpretation or
construction of this Agreement.
18. ATTORNEY'S FEES. In the event Bank or Employee breaches any term or
provision of this Agreement and the other party employs an attorney or attorneys
to enforce the terms of this Agreement, then the breaching or defaulting party
agrees to pay the other party the reasonable attorney's fees and costs incurred
to enforce this Agreement.
19. EXECUTION. This Agreement may be executed in multiple counterparts
each of which shall be deemed an original and all of which shall constitute one
instrument.
Employee acknowledges that he has read this Agreement and understands that
signing this Agreement is a condition of employment.
IN WITNESS WHEREOF, this Agreement is executed as of the _____ day of
___________, 1998.
"EMPLOYEE" "BANK"
FIRST PROSPERITY BANCSHARES, INC.
___________________________________ BY:_________________________________
XXXXX X. XXXXXXX XXXXX XXXXXXX, DIRECTOR
BY:_________________________________
XXXXX XXXXXX, DIRECTOR
BY:_________________________________
XXXXX XXXXX, DIRECTOR
BY:_________________________________
XXX XXXXXXXX, DIRECTOR
BY:_________________________________
X. X. XXXXX, DIRECTOR
BY:_________________________________
XXXXXXX XXXXXX, DIRECTOR
BY:_________________________________
XXXXXXXX XXXXXXXX, DIRECTOR
BY:_________________________________
XXXXXX XXXXXXXXXXX, DIRECTOR
