Exhibit 10(c)
GOLD BANC CORPORATION, INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT made and entered into as of the 10th day of
February, 1999, by and between GOLD BANC CORPORATION, INC. (hereinafter referred
to as "CORPORATION") and XXXXXXX X. XXXXX (hereinafter referred to as
"EMPLOYEE").
WITNESSETH:
WHEREAS, the CORPORATION is a multi bank holding company which owns
certain other businesses providing ancillary financial services; and
WHEREAS, the parties hereto desire to set forth the terms and
conditions by which EMPLOYEE will become employed as the President of the
CORPORATION.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, the parties hereto agree as follows:
1. EMPLOYMENT. The CORPORATION hereby employs and the EMPLOYEE
hereby accepts employment from the CORPORATION upon the terms and conditions
herein set forth.
2. TERM. The term of this agreement shall begin as of the 10th
day of February, 1999, and shall continued until terminated as provided
hereinafter.
3. COMPENSATION. EMPLOYEE shall receive base compensation of One
Hundred Fifty Thousand Dollars ($150,000.00) per year payable in periodic
installments in the same manner as all other employees of the CORPORATION are
paid. All compensation is subject to all requisite withholdings. The CORPORATION
and the EMPLOYEE shall review EMPLOYEE's base compensation not less often than
annually.
4. DUTIES. The CORPORATION hereby employs EMPLOYEE to serve as
President of the CORPORATION and to perform duties commensurate with such
position. EMPLOYEE agrees to devote his time, efforts and attention to the
discharge of his duties hereunder.
5. WORKING FACILITIES. The CORPORATION will furnish the EMPLOYEE with
adequate working facilities, professional staff, supplies and other such
facilities, technology and services as are required for the adequate performance
of his duties hereunder.
6. EXPENSES. EMPLOYEE will be entitled to reimbursement of business
expenses, including business mileage reimbursement, incurred in the performance
of his duties hereunder consistent with expense reimbursement policies adopted
and maintained by the CORPORATION from time to time. EMPLOYEE agrees to provide
any requisite documentation and to obtain any requisite prior approval
consistent with the terms of any such plans as may be adopted and modified from
time to time by the CORPORATION.
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In addition, the CORPORATION will provide to EMPLOYEE a Three Hundred
Fifty Dollars ($350.00) per month automobile allowance throughout the term
hereof. The CORPORATION shall also pay to EMPLOYEE the sum of Four Hundred Fifty
($450.00) per month representing a reimbursement of the estimated business
portion of country club dues for EMPLOYEE.
7. FRINGE BENEFITS. EMPLOYEE shall be entitled to participate in all
fringe benefit plans adopted and maintained (as amended from time to time) by
the CORPORATION in accordance with the terms of such plans. The CORPORATION and
EMPLOYEE shall agree upon terms of vacation and other paid absences throughout
the term of this Agreement. Included among the fringe benefit plans in which
EMPLOYEE shall be entitled to participate is a health and accident insurance
plan for the benefit of EMPLOYEE and EMPLOYEE's dependents; provided, however,
that initially EMPLOYEE will participate in the health and accident plan
maintained by CompuNet Engineering, Inc., a subsidiary of the CORPORATION.
8. TERM AND TERMINATION. Unless earlier terminated as provided herein,
this Agreement shall remain in full force and effect through December 31, 2001.
Thereafter, this Agreement may be extended for subsequent periods of time as
mutually agreed upon by the parties hereto.
The CORPORATION may terminate this Agreement at any time for cause as
provided herein. This Agreement shall be deemed terminated "for cause" under the
terms of this Section 8 if the Corporation terminates the Agreement (i) as a
result of EMPLOYEE being convicted of a felony; (ii) as a result of EMPLOYEE
committing a dishonest act or converting to EMPLOYEE's own use any property of
the CORPORATION; (iii) as a result of EMPLOYEE's failure or refusal to provide
services for the CORPORATION in accordance with the terms of this Agreement;
(iv) as a result of EMPLOYEE's breach of any other material term of this
Agreement, which breach is not cured within ten (10) days of the date of notice
of such breach is given by the CORPORATION specifying the alleged breach; or (v)
EMPLOYEE engages in conduct damaging to the business reputation of the
CORPORATION and such conduct is not terminated within ten (10) days of written
notice by the CORPORATION, which notice shall specify the specific alleged
misconduct. Termination of employment by the CORPORATION as a result of the
death or permanent disability of EMPLOYEE shall not be deemed a termination "for
cause".
In addition, notwithstanding anything herein contained to the contrary,
either party hereto may terminate this Agreement on thirty (30) days prior
written notice without cause.
In the event of the termination of this Agreement by the CORPORATION
other than for cause, the CORPORATION shall be required to continue to pay to
EMPLOYEE the base compensation to which EMPLOYEE would otherwise be entitled
under the terms of Section 3 hereunder and such payment shall continued (in the
same periodic installments in which such compensation was being paid prior to
the termination of this Agreement) through December 31, 2001. If this Agreement
is terminated by the CORPORATION for "cause" (as hereinabove defined) or is
voluntarily terminated by EMPLOYEE, the CORPORATION shall be required to pay
EMPLOYEE accrued and unpaid base compensation through the effective date of
termination of employment and no further compensation thereafter. Further, in
the event of termination of this Agreement. EMPLOYEE shall not be permitted to
participate in any other fringe benefit programs from and after the effective
date of termination of employment, except as otherwise provided by law.
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 does not remain employed by the CORPORATION after the
change of control is consummated, then the CORPORATION shall pay to
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EMPLOYEE in a lump sum, in cash, within ten (10) business days after the
effective date of the termination of EMPLOYEE's employment, an amount equal to
the remaining base salary due EMPLOYEE between such date and December 31, 2001,
such amount discounted at the rate of six percent (6%) per annum to the date of
payment; provided, however, that if and to the extent payment of such lump sum
would not be deductible by the CORPORATION 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 proscribed 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 the CORPORATION) 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.
A "Change of Control" shall be deemed to have occurred under either of
the following circumstances:
(i) At the time individuals who, as of the commencement of the
term of this Agreement, constitute the Board of Directors of the
CORPORATION 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 the CORPORATION was approved by a vote
of at least a majority of the directors currently comprising the Board
shall be, for purposes of this paragraph, considered as though such
person were a member of the current Board of Directors; or
(ii) Upon the approval by the shareholders of the CORPORATION
of a plan of liquidation or dissolution of the CORPORATION or the sale
of all or substantially all of the assets of the CORPORATION.
If EMPLOYEE remains employed by the CORPORATION after a Change of Control, 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.
9. CONFIDENTIALITY. EMPLOYEE acknowledges and agrees that in the
conduct of his employment duties, he shall be exposed to and may come in
possession of certain financial information, business plans, customer
information, vendor information, technical know how, procedures, protocols, the
terms of proposed agreements between the CORPORATION and third parties and
related information and documentation pertaining to the operation of the
CORPORATION and its subsidiaries. All such information as described in the
previous sentence constitutes confidential proprietary information of the
CORPORATION (the "Confidential Information").
EMPLOYEE agrees that during the term of his employment with the
CORPORATION and continuing at all times thereafter, he shall not use any
Confidential Information for any purpose other than performance of his
employment duties on behalf of the CORPORATION. No copies of any Confidential
Information shall be removed from the premises of the CORPORATION for any
purpose other than the discharge by EMPLOYEE of his duties hereunder without the
express written consent of an officer of the CORPORATION. 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
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by EMPLOYEE on his own behalf except in connection with performance of duties on
behalf of the CORPORATION.
At the time of the termination of employment, EMPLOYEE agrees that all
copies of any and all corporate documents including all Confidential Information
shall be returned to the CORPORATION and EMPLOYEE shall retain no such documents
or information.
10. NON SOLICITATION AGREEMENT. EMPLOYEE acknowledges and agrees that
certain conduct subsequent to his termination of employment could result in
irreparable harm to the CORPORATION. Therefore, EMPLOYEE agrees that during the
term of his employment with the CORPORATION and continuing for a period of two
(2) years following the termination of employment, regardless of the reason for
termination, EMPLOYEE will not compete, directly or indirectly, with the
CORPORATION or any of its subsidiaries in the business of design,
implementation, integration and administration of local and wide area computer
networks and administration of consolidated bank back office operations for any
individual or entity (i) with whom the CORPORATION is doing material business as
of the effective date of termination of employment, (ii) with whom the
CORPORATION has conducted such business within one (1) year prior to the
effective date of termination of employment or (iii) with whom the CORPORATION
is engaged in material and substantive negotiations for the provision of
services as of the effective date of termination of employment. In addition,
EMPLOYEE agrees that throughout the term of his employment with the CORPORATION
and continuing for a period of two (2) years following the termination of
employment, EMPLOYEE shall not directly or indirectly, actively or silently,
under contract or otherwise, in conjunction with others or on his own account,
solicit for employment or employ to or for the benefit or account of himself,
any other person or entity, any employee of the CORPORATION or any subsidiary of
the Corporation.
Indirect competition or solicitation by EMPLOYEE shall be deemed to be
EMPLOYEE's involvement as a proprietor, owner, partner, shareholder, EMPLOYEE,
agent, independent contractor, consultant, officer, director or representative
in any other capacity of any entity engaged in any activity proscribed pursuant
to the first paragraph of this Section 10.
EMPLOYEE specifically acknowledges and agrees that the terms of these
non solicitation agreements are reasonably necessary to protect the valid
business interests of the CORPORATION and do not unreasonably restrict
EMPLOYEE's opportunity to pursue employment subsequent to the termination of
EMPLOYEE's employment with the CORPORATION. If any provision of these non
solicitation agreements are deemed unenforceable by any court of competent
jurisdiction, it is specifically intended by both parties hereto that it shall
be enforced to the extent same is deemed reasonable. In addition to any and all
other relief afforded hereunder or by law, EMPLOYEE specifically acknowledges
and agrees that the CORPORATION shall be entitled to enforce the terms hereof by
an action at equity. If the CORPORATION seeks to specifically enforce the terms
of the restrictive covenants set forth in this Section 10, EMPLOYEE specifically
waives any requirement that the CORPORATION be required to post a bond with
respect thereto. Further, EMPLOYEE acknowledges and agrees that if EMPLOYEE
breaches the restrictions contained in this Section 10, then the duration of the
restrictive covenants set forth in the first paragraph hereof shall be extended
for the period of time that EMPLOYEE has breached the restrictions contained
herein.
In addition to all other rights and remedies specified herein, if
EMPLOYEE breaches any terms of this Agreement, the CORPORATION 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 violation. Such remedy shall be in addition
to
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and not in lieu of any injunctive relief or other remedies to which the
CORPORATION may be entitled to at law, in equity or under this Agreement. All of
the CORPORATION's remedies for the breach of this Agreement shall be cumulative
and the pursuit of any one remedy provided herein or otherwise shall not be
deemed to exclude any and all other remedies of which the CORPORATION may have a
right to pursue.
11. SEVERABILITY. If, for any reason, any provision of this agreement
shall be held or deemed to be void, invalid or unenforceable, the parties hereto
agree that the same shall not affect any other portion of this agreement and the
remaining provisions of the agreement shall nevertheless be binding and remain
in full force and effect. If the scope of any restriction contained in this
Agreement is too broad to legally permit enforcement of such restriction to the
full extent intended, then such restriction shall be enforced to the maximum
extent provided by law, and EMPLOYEE hereby consents and agrees that such scope
may be judicially modified accordingly and any proceeding brought to force such
restriction.
12. WAIVER OF BREACH. The waiver of any party hereto of any 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 hereto.
13. AMENDMENT. No amendment or modification to this agreement
shall be valid or binding unless made in writing and signed by all parties
hereto.
14. ASSIGNMENT. This agreement is personal to EMPLOYEE and neither it
nor any interest herein may be assigned or transferred to another entity or
individual without the prior written consent of the CORPORATION. This agreement
or any interest herein, however, may be assigned by the CORPORATION.
15. GOVERNING LAW. This agreement shall be construed, interpreted in
accordance with and governed by the laws of the State of Kansas.
16. BINDING UPON HEIRS. This agreement shall inure to the benefit of
and be binding upon the parties hereto, their successors, heirs, personal
representatives and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the day and year first above written.
GOLD BANC CORPORATION, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
CORPORATION
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
EMPLOYEE
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