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 1st day of January, 2000 (the "Effective Date"), by and
between XXXXXXX X. XXXXXXX (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 prior Employment Agreements between Employer
and Employee.
2. TERM. This Agreement is effective as of the Effective Date and shall
continue for a rolling three (3) year term unless earlier terminated as
hereinafter provided. At all times, this Agreement shall be deemed to have a
three (3) 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 base
compensation as established from time to time by the Board of Directors of the
Corporation. 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 Chairman of the
Board 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, as long as Employee
is serving either as Chairman of the Board, Chief Executive Officer or President
of Employer, Employee shall be entitled to serve as a member of the Board of
Directors of Employer. If at any time throughout the term hereof,
Employee is not serving in at least one of the officer positions of Chairman of
the Board, Chief Executive Officer or President of Employer, regardless of
whether or not Employee's employment terminates, Employee shall have no further
contractual right 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 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. However, Employer may not terminate this
Agreement without cause unless such action is approved by at least two-thirds of
the Board of Directors of Employer.
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 otherwise set forth in this Section, 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 three year 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 three (3) 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 three times the annual base
compensation
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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 then 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
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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 (and perform the same duties as he was performing immediately prior to
the Change of Control) 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.
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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 of the Confidential
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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. Xxxxxxx
00000 Xxxx
Xxxxxxx, XX 00000
If to Employer: Gold Banc Corporation, Inc.
00000 Xxxx
Xxxxxxx, XX 00000
Attn.: President
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. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
EMPLOYEE
GOLD BANC CORPORATION, INC.
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By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President
EMPLOYER
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