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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of the _____ day of ____________________ 1999,
by and between Missouri Holdings, Inc., a Delaware corporation (the "Company" or
"Employer") and ________________________ (the "Executive").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company intends to seek approval
from the Board of Governors of the Federal Reserve System (the "Fed"), the
Missouri Division of Finance and the Federal Deposit Insurance Corporation
("FDIC") to acquire a bank with federally insured deposits in St. Louis,
Missouri (the "Bank") and to expand the Company's banking business throughout
Missouri; and
WHEREAS, the Board of Directors of the Company intends to approve the
sale in a firm underwritten public offering of an amount of Company common stock
requisite to expanding the Company's banking business (the "Initial Public
Offering"); and
WHEREAS, Executive is willing to assist the directors of the Company in
the acquisition of the Bank and subsequent public offering and to become the
____________________ of the Bank and the Company in accordance with the terms
and conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the mutual premises and
covenants herein contained, the parties hereto agree as follows:
1. EMPLOYMENT. Employer employs Executive and Executive accepts
employment upon the terms and conditions set forth in this Agreement.
2. TERM. The term of employment of Executive under this Agreement
shall be the three year period commencing on _____________, 1999 and ending on
_____________, 200_.
3. COMPENSATION.
The Company shall pay Executive a minimum annual base salary of
$__________, payable in semi-monthly installments beginning on the date of this
Agreement. Salary payments shall be subject to withholding and other applicable
taxes.
At the first Board of Directors meeting subsequent to the closing of
the Initial Public Offering the Company shall grant of options to Executive
providing for the purchase of _________ shares of the Company's Common Stock at
a per share price equal to the per share price at which the Company sold its
shares of Common Stock in the Initial Public Offering. Such options shall be
exercisable in whole or in part for a period of ten years from the date of grant
and shall be subject to such other customary terms and conditions as set forth
in the option agreement which shall be delivered to Executive by the Company as
soon as practicable after the date of grant.
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4. TITLE AND DUTIES. Executive shall serve as
____________________________ of the Company. Executive shall run the day-to-day
activities of _____________ and oversee _______________, within the framework of
the approved annual budget, and with a sound system of internal controls and in
compliance with the policies of the Board of Directors of the Company, and all
applicable laws and regulations.
5. EXTENT OF SERVICES. Executive shall devote his entire time,
attention and energies to the business of Employer and shall not during the term
of this Agreement be engaged in any other business activity which requires the
attention or participation of Executive during normal business hours of
Employer, recognition being given to the fact that Executive is expected on
occasion to participate in client development after normal business hours.
However, Executive may invest his assets in such form or manner as will not
require his services in the operation of the affairs of the companies in which
such investments are made. Executive shall notify Employer of any significant
participation by him in any trade association or similar organization and the
Board of Directors shall approve in advance Executive's service as a director of
any entity or organization. Notwithstanding the foregoing, charitable activities
of Executive are encouraged.
6. WORKING FACILITIES. After the Closing of the Initial Public
Offering Executive shall have such assistants, perquisites, facilities and
services as are suitable to his position and appropriate for the performance of
his duties, including membership in a luncheon club and a country club
(including dues and assessments).
7. EXPENSES. Executive may incur reasonable expenses for
promoting the business of the Employer, including expenses for entertainment,
travel, and similar items. Executive will be reimbursed for all such expenses
upon Executive's periodic presentation of an itemized account of such
expenditures.
8. VACATIONS. Executive shall be entitled each year to a vacation
in accordance with the personnel policy established by the Company's Board of
Directors, during which time Executive's compensation shall be paid in full.
9. ADDITIONAL COMPENSATION. After the Closing of the Initial
Public Offering and as additional consideration paid to Executive, Executive
shall be provided with health, hospitalization, disability and a minimum of one
times Executive's annual salary in term life insurance. In addition, after the
Closing of the Initial Public Offering Executive shall be provided with an
automobile for his use or an automobile allowance, in accordance with the
automobile policy established by the Company's Board of Directors.
10. CHANGE IN CONTROL OF THE COMPANY. (a) After the Closing of the
Initial Public Offering in the event of a "change in control" of the Company, as
defined herein, Executive shall be entitled, for a period of thirty (30) days
from the date of closing of the transaction effecting such change in control and
at his election, to give written notice to Employer of termination of this
Agreement and to receive a cash payment equal to two hundred ninety-nine percent
(299%) times the compensation, including bonus, if any, received by Executive in
the one-year period
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immediately preceding the change in control. The severance payments provided for
in this Section 10(a) shall be paid in cash, commencing not later than ten (10)
days after the date of notice of termination by Executive under this Section 10
or ten (10) days after the date of closing of the transaction effecting the
change in control of the Company, whichever is later.
(b) In addition, if Executive elects to terminate this
Agreement pursuant to this Section 10, Executive shall further be entitled, in
lieu of shares of Common Stock of the Company issuable upon exercise of options
to which Executive is entitled under this Agreement, to an amount in cash or
Common Stock of the Company (or any combination thereof) as Executive shall in
his election designate equal to the excess of the fair market value of the
Common Stock as of the date of closing of the transaction effecting the change
in control over the per share exercise price of the options held by Executive,
times the number of shares of Common Stock subject to such options (whether or
not then fully exercisable). The fair market value of the Common Stock shall be
equal to the higher of (i) the value as determined by the Board of Directors of
the Company if there is no organized trading market for the shares at the time
such determination is made, or (ii) the closing price (or the average of the bid
and asked prices if no closing price is available) on any nationally recognized
securities exchange or association on which the Company's shares may be quoted
or listed, or (iii) the highest per share price actually paid for Common Stock
in connection with any change in control of the Company. The severance payments
provided for in this Section 10(b) shall be paid in full not later than ten (10)
days after the date of notice of termination by Executive under this Section 10
or ten (10) days after the date of closing of the transaction effecting the
change in control of the Company, whichever is later.
(c) For purposes of this Section 10, "change in control"
of the Company shall mean:
(i) any transaction, whether by merger, consolidation,
asset sale, tender offer, reverse stock split, or
otherwise, which results in the acquisition or
beneficial ownership (as such term is defined under
rules and regulations promulgated under the
Securities Exchange Act of 1934, as amended) by any
person or entity or any group of persons or entities
acting in concert, of 50% or more of the outstanding
shares of Common Stock of the Company;
(ii) the sale of all or substantially all of the assets of
the Company; or
(iii) the liquidation of the Company.
11. TERMINATION. (a) For Cause. This Agreement may be terminated
by the Board of Directors of the Company without notice and without further
obligation than for monies already paid, for any of the following reasons:
(i) failure of Executive to follow reasonable written
instructions or policies of the Board of Directors of
the Company or the Bank;
(ii) gross negligence or willful misconduct of Executive
materially damaging to the business of the Company or
Bank during the term of this Agreement; or
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(iii) conviction of Executive during the term of this
Agreement of a crime involving breach of trust or
moral turpitude.
In the event that the Bank discharges Executive alleging
"cause" under this Section 11(a) and it is subsequently determined judicially
that the termination was "without cause," then such discharge shall be deemed a
discharge without cause subject to the provisions of Section 11(b) hereof. In
the event that the Bank discharges Executive alleging "cause" under this Section
11(a), such notice of discharge shall be accompanied by a written and specific
description of the circumstances alleging such "cause." The termination of
Executive for "cause" shall not entitle the Bank to enforcement of the
non-competition and non-solicitation covenants contained in Section 13 hereof.
(b) Without Cause.
(i) The Bank may, upon thirty (30) days' written notice
to Executive, terminate this Agreement without cause
at any time after the closing of the Initial Public
Offering during the term of this Agreement upon the
condition that Executive shall be entitled, as
liquidated damages in lieu of all other claims, to
the payment of Executive's base salary for a period
of ___ months and the exercise, for a period of
ninety (90) days, of all options to purchase the
Company's Common Stock granted to Executive
hereunder, whether or not such options are then
currently exercisable. The severance payments
provided for in this Section 11(b) shall commence not
later than thirty (30) days after the actual date of
termination of employment of Executive. The
termination of Executive "without cause" shall not
entitle the Bank to enforcement of the
non-competition and non-solicitation covenants
contained in Section 13 hereof.
(ii) Executive may upon thirty (30) days' written notice
to Employer terminate this Agreement without cause at
any time during the term of this Agreement. In the
event of termination of this Agreement by Executive,
the Bank shall have no further obligation to
Executive other than for monies paid and the Bank
shall be entitled to enforcement of the
non-competition and non-solicitation covenants
contained in Section 13 hereof.
12. DEATH OR DISABILITY. After the closing of the Initial Public
Offering, in the event of Executive's death, Employer shall pay to Executive's
designated beneficiary, or, if Executive has failed to designate a beneficiary,
to his estate, an amount equal to Executive's base salary pursuant to Section
3(b) hereof through the end of the month in which Executive's death occurred.
Such compensation shall be in lieu of any other benefits provided hereunder,
except that (i) in the event of a change in control of the Company as defined
herein, Executive's designated beneficiary or his estate, as the case may be,
shall be entitled to the benefits of Section 10(b) hereof, and (ii) any benefit
payable pursuant to Section 3(b) shall be prorated and made available to
Executive in respect of any period prior to his death. The Bank may maintain
insurance on its behalf to satisfy in whole or in part the obligations of this
Section 12.
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After the closing of the Initial Public Offering, in the event of
Executive's disability, as hereinafter defined, Employer shall pay to Executive
the base salary then in effect through the end of the month in which Executive
became disabled. Executive shall be deemed disabled if, by reason of physical or
mental impairment, he is incapable of performing his duties hereunder for a
period of 180 consecutive days.
13. NON-COMPETITION AND NON-SOLICITATION. (a) Executive
acknowledges that he has performed services or will perform services hereunder
which directly affect Employer's business. Accordingly, the parties deem it
necessary to enter into the protective agreement set forth below, the terms and
condition of which have been negotiated by and between the parties hereto.
(b) In the event of termination of employment under this
Agreement by action of Executive pursuant to 11(b)(ii) prior to the expiration
of the term of this Agreement, Executive agrees with Employer that through the
actual date of termination of the Agreement, and for a period of
________________ months after such termination date, Executive shall not,
without the prior written consent of Employer, either directly or indirectly,
serve as an executive officer or director of any bank or bank holding company or
as an executive officer, director, consultant, advisor or in any other capacity
to any person, firm, partnership or corporation or any other entity which is
involved in the organization of or chartering of any bank or bank holding
company, which is or intends to engage in competition in any substantial manner
with Employer.
(c) The covenants of Executive set forth in this Section
13 are separate and independent covenants for which valuable consideration has
been paid, the receipt, adequacy and sufficiency of which are acknowledged by
Executive, and have also been made by Executive to induce Employer to enter into
this Agreement. Each of the aforesaid covenants may be availed of or relied upon
by Employer in any court of competent jurisdiction, and shall form the basis of
injunctive relief and damages including expenses of litigation (including but
not limited to reasonable attorney's fees) suffered by Employer arising out of
any breach of the aforesaid covenants by Executive. The covenants of Executive
set forth in this Section 13 are cumulative to each other and to all other
covenants of Executive in favor of Employer contained in this Agreement and
shall survive the termination of this Agreement for the purposes intended.
Should any covenant, term, or condition contained in this Section 13 become or
be declared invalid or unenforceable by a court of competent jurisdiction, then
the parties may request that such court judicially modify such unenforceable
provision consistent with the intent of this Section 13 so that it shall be
enforceable as modified, and in any event the invalidity of any provision of
this Section 13 shall not affect the validity of any other provision in this
Section 13 or elsewhere in this Agreement.
14. NOTICES. Any notice required or desired to be given under this
Agreement shall be deemed given if in writing sent by certified mail to his
residence in the case of Executive, or to its principal office in the case of
Employer.
15. WAIVER OF BREACH. The waiver by Employer of a breach of any
provision of this Agreement by Executive shall not operate or be construed as a
waiver of any subsequent breach by Executive. No waiver shall be valid unless in
writing and signed by an authorized officer of Employer.
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16. ASSIGNMENT. Executive acknowledges that the services to be
rendered by him are unique and personal. Accordingly, Executive may not assign
any of his rights or delegate any of his duties or obligations under this
Agreement. The rights and obligations of Executive under this Agreement shall
inure to the benefit of and shall be binding upon the successors and assigns of
Employer.
17. GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Missouri.
18. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto regarding employment of Executive, and
supersedes and replaces any prior agreement relating thereto. It may not be
changed orally but only by an agreement in writing signed by the party against
whom enforcement of any waiver, change, modification, extension, or discharge is
sought.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
"COMPANY"
MISSOURI HOLDINGS, INC.
By:
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Name:
Title:
"EXECUTIVE"
(L.S.)
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