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Exhibit 10.2
AGREEMENT
THIS
AGREEMENT is entered into this ____ day of _____________, 2005,
between Exchange National Bancshares, Inc.,
a Missouri corporation (the
"Company"), and __________________________
("Employee").
WITNESSETH:
WHEREAS,
Employee is a valued employee of the Company or a subsidiary of
the Company; and
WHEREAS,
the Board of Directors of the Company believes that it is in
the
best interests of the Company and its
shareholders (i) to provide assurance that
the Company and its subsidiaries will have
the continued service of Employee
notwithstanding the possibility, threat or
occurrence of a Change of Control (as
defined in Section 1), (ii) to diminish the
distraction to Employee that may
arise by virtue of the personal
uncertainties and risks created by a threatened
or pending Change of Control, and (iii) to
encourage Employee's full attention
and dedication to the Company and its
subsidiaries currently and in the event of
a threatened or pending Change of
Control;
NOW,
THEREFORE, in consideration of the premises and the mutual
agreements
contained herein, the parties hereto agree
as follows:
1. Certain
Definitions. As used in this Agreement, unless otherwise
defined herein or unless the context
otherwise requires, the following terms
shall have the following meanings:
(a) Cause.
"Cause" means (i) Employee has failed materially to devote
reasonable attention and time during normal
business hours to the business and
affairs of the Company or the subsidiary of
the Company that is the primary
employer of Employee (the "Bank") and, to
the extent necessary to discharge the
responsibilities assigned to Employee from
time to time, to use Employee's
reasonable best efforts to faithfully and
efficiently perform such
responsibilities (other than as a result of
incapacity due to physical or mental
illness), which failure is demonstrably
willful and deliberate on Employee's
part, is committed in bad faith or without
reasonable belief that such breach is
in the best interests of the Company and is
not remedied in a reasonable period
of time after receipt of a written notice
from the Company specifying such
breach, (ii) Employee has been convicted of
a felony or misdemeanor involving
moral turpitude, (iii) Employee has engaged
in acts or omissions against the
Company or a subsidiary of the Company
constituting dishonesty, intentional
breach of fiduciary obligation, or
intentional wrongdoing or misfeasance, which
acts or omissions result in a material
detriment to the assets, business or
prospects of the Company or such
subsidiary, (iv) Employee has acted
intentionally and in bad faith in a manner
which results in a material detriment
to the assets, business or prospects of the
Company or a subsidiary of the
Company, or (v) Employee has been guilty of
habitual absenteeism, chronic
alcoholism or other form of addiction.
(b) Change
of Control. "Change of Control" means the occurrence of any of
the following events:
(i) any "person" (as such term is used in Sections 13(d) and
14(d)
of the
Securities Exchange Act of 1934, as in effect on the date
hereof
(the "Exchange Act")),
other than the Company or any corporation owned,
directly
or indirectly by it, any trustee or other fiduciary holding
securities
under an employee benefit plan of the Company, or any
corporation owned, directly or indirectly, by the shareholders of
the
Company in
substantially the same proportions as their ownership of stock
of the
Company, becomes, after the date hereof, the beneficial owner,
directly
or indirectly, of securities of the Company representing 50
percent or
more of the total voting power of the Company's
then-outstanding securities ("Interested Shareholder");
(ii) the shareholders of the Company approve a merger or
consolidation of the Company with any other entity, other than a
merger or
consolidation which would result in the voting securities (which
term
means any
securities which vote generally in the election of directors)
of
the
Company outstanding immediately prior thereto continuing to
represent
(either by
remaining outstanding or by being converted into voting
securities
of the surviving entity) at least 50 percent of the total
voting
power represented by the
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voting
securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation; or
(iii) the shareholders of the Company approve a plan of
complete
liquidation of the Company or an agreement for the sale or
disposition by
the
Company of all or substantially all of the Company's assets.
(c) Change
of Control Period. "Change of Control Period" means the period
commencing on the date hereof and ending on
the second anniversary of such date;
provided, however, that commencing on a
date one year after the date hereof, and
on each annual anniversary of such date
(such date and each annual anniversary
thereof being hereinafter referred to as
the "Renewal Date"), the Change of
Control Period shall be automatically
extended so as to terminate two years from
such Renewal Date, unless at least 60 days
prior to the Renewal Date the Company
shall give notice to Employee that the
Change of Control Period shall not be so
extended.
(d) Date
of Termination. "Date of Termination" means (i) if Employee's
employment is terminated by the Company or
the Bank, as applicable, for Cause,
or by Employee for Good Reason, the date of
receipt of the Notice of Termination
or any later date permitted to be specified
therein, as the case may be, (ii) if
Employee's employment is terminated by the
Company or the Bank, as applicable,
other than for Cause or Disability, the
Date of Termination shall be the date on
which the Company or the Bank notifies
Employee of such termination, (iii) if
Employee's employment is terminated by
reason of death or Disability, the Date
of Termination shall be the date of death
of Employee or the Disability
Effective Date (as defined in Section
2(a)), as the case may be, and (iv) if
Employee's employment is terminated by
Employee for other than Good Reason, the
Date of Termination shall be the date on
which Employee notifies the Company in
writing of such termination or any later
date permitted to be specified therein,
as the case may be.
(e)
Disability. The "Disability" of Employee shall mean the inability
of
Employee to perform Employee's duties
hereunder by reason of any medically
determinable physical or mental impairment
which can be expected to result in
death or which has lasted or can be
expected to last for a continuous period of
not less than six months, as determined in
writing by a qualified independent
physician mutually acceptable to Employee
and the Company, which agreement as to
acceptability shall not be reasonably
withheld.
(f)
Effective Date. "Effective Date" means the first date on which
a
Change of Control occurs during the Change
of Control Period; provided, however,
if (i) a Change of Control occurs, (ii)
Employee's employment is terminated by
the Company or the Bank, as applicable,
other than for Cause or Employee
terminates his employment for Good Reason,
in either case prior to the date on
which the Change of Control occurs, and
(iii) it is reasonably demonstrated by
Employee that such termination of
employment or such action by the Company or
the Bank triggering Employee's right to
terminate Employee's employment for Good
Reason (A) was at the request or direction
of a third party who has taken steps
reasonably calculated to effect the Change
of Control, or (B) otherwise arose in
connection with or in anticipation of the
Change of Control, then for purposes
of this Agreement "Effective Date" shall
mean the date immediately prior to the
date of such termination of employment by
the Company or the Bank, as
applicable, or by Employee for Good
Reason.
(g) Good
Reason. "Good Reason" means any of the following:
(i) Any reduction or diminution in Employee's position
(including
status,
offices, titles and reporting requirements), authority, duties
or
responsibilities in any material respect from the most significant
of
those
held, exercised or assigned at any time during the 90-day
period
immediately preceding the Effective Date; excluding for this
purpose an
isolated,
insubstantial and inadvertent action not taken in bad faith and
which is
remedied by the Company or the Bank promptly after receipt of
notice
thereof given by Employee to the Company;
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(ii) Any reduction in Employee's annual base salary to less
than
twelve
times the highest monthly base salary paid or payable to
Employee
by the
Company or the Bank, as applicable, in respect of the
twelve-month
period
immediately preceding the month in which the Effective Date
occurs;
excluding
for this purpose any isolated, insubstantial and inadvertent
action not
occurring in bad faith and which is remedied by the Company or
the Bank
promptly after receipt of notice thereof given by Employee to
the
Company;
(iii) Any reduction in benefits received by Employee under
Company
Plans (as
defined below) to less than the most favorable benefits
provided
to
Employee by the Company or the Bank, as applicable, under Company
Plans
at any
time during the 90-day period immediately preceding the
Effective
Date;
excluding for this purpose any isolated, insubstantial and
inadvertent action not occurring in bad faith and which is remedied
by the
Company or
the Bank promptly after receipt of notice thereof given by
Employee
to the Company. "Company Plans" means (1) all incentive,
savings
and
retirement plans, practices, policies and programs, (2) all
welfare
benefit
plans, practices, policies and programs (including medical,
prescription, dental, disability, salary continuance, employee
life, group
life,
accidental death and travel accident insurance plans and
programs),
(3)
expense reimbursement for all reasonable employment expenses
incurred
by
Employee, (4) the provision of fringe benefits, (5) the provision
of an
office or
offices of a certain size and with furnishings and other
appointments, and personal secretarial and other assistance and (6)
the
provision
of paid vacation time;
(iv) Employee being required by the Company or the Bank, as
applicable, to be based at any office or location that is more than
35
miles from
the location where Employee was employed immediately preceding
the
Effective Date; and
(v) Any failure by the Company to require any successor
(whether
direct or
indirect, by purchase, merger, consolidation or otherwise) to
all or
substantially all of the business and/or assets of the Company
to
assume
expressly and agree to perform this Agreement in the same
manner
and to the
same extent that the Company would be required to perform it if
no such
succession had taken place, or any failure by any such
successor
after ten
days notice from Employee to so perform this Agreement.
(h) Notice
of Termination. "Notice of Termination" means a written notice
of termination which (i) indicates the
specific termination provision in this
Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable
detail the facts and circumstances claimed
to provide a basis for termination of
Employee's employment under the provision
so indicated and (iii) if the Date of
Termination is other than the date of
receipt of such notice, specifies the
termination date (which date shall be not
more than 15 days after the giving of
such notice).
(i)
Post-Effective Period. "Post-Effective Period" means the period
commencing on the Effective Date and ending
on the second anniversary of such
date.
2.
Termination of Employment During the Post-Effective Period.
(a) Death
or Disability. Employee's employment shall terminate
automatically upon Employee's death during
the Post-Effective Period. If the
Company determines in good faith that the
Disability of Employee has occurred
during the Post-Effective Period, it may
give Employee written notice in
accordance with Section 9(b) of its
intention to terminate Employee's
employment. In such event, Employee's
employment with the Company or the Bank,
as applicable, shall terminate effective on
the 30th day after receipt of such
notice by Employee (the "Disability
Effective Date"), provided that within the
30 days after such receipt Employee shall
not have returned to full-time
performance of Employee's duties.
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(b) Cause.
The Company or the Bank, as applicable, may terminate
Employee's employment during the
Post-Effective Period for Cause or without
Cause. Notwithstanding the foregoing,
Employee shall not be deemed to have been
terminated for Cause without (i) reasonable
notice to Employee setting forth the
reasons for the Company's or the Bank's
intention to terminate for Cause, (ii)
an opportunity for Employee, together with
his or her counsel, to be heard
before the Board of Directors of the
Company, and (iii) delivery to Employee of
a Notice of Termination from the Board of
Directors of the Company finding that
in the good faith opinion of the Board of
Directors Employee was guilty of
conduct set forth in Section 1(a), and
specifying the particulars thereof in
detail.
(c) Good
Reason. Employee's employment may be terminated during the
Post-Effective Period by Employee for Good
Reason or without Good Reason.
(d) Notice
of Termination. Any termination by the Company or the Bank, as
applicable, for Cause, or by Employee for
Good Reason, shall be communicated by
Notice of Termination to the Company or
Employee, as applicable, in accordance
with
