Exhibit
10.1


 


EMPLOYMENT
AGREEMENT


 


THIS EMPLOYMENT AGREEMENT (this “Agreement”), is made and entered into between LANDMARK BANCORP, INC., a Delaware corporation (“Employer”), and M. JEFF OLIPHANT (“Executive”) and shall be effective immediately upon the execution
of the document  (the “Effective Date”).


 


RECITALS


 


A.            Executive
currently serves as Market President and Dodge City Bank Manager of Landmark
National Bank, a national banking association with its main office located in
Manhattan, Kansas, and a wholly-owned subsidiary of Employer (the “Bank”), and Employer desires Executive to continue to serve
in such capacities.


 


B.            Employer
and Executive have made commitments to each other on a variety of important
issues concerning Executive’s continued employment, including the performance
that will be expected of Executive, the compensation that Executive will be
paid, how long and under what circumstances Executive will remain employed and
the financial details relating to any decision that either Executive or
Employer might ever make to terminate this Agreement.


 


C.            Employer
recognizes that circumstances may arise in which a change in control of
Employer or the Bank through acquisition or otherwise may occur thereby causing
uncertainty of employment without regard to the competence or past
contributions of Executive which uncertainty may result in the loss of valuable
services of Executive and Employer and Executive wish to provide reasonable
security to Executive against changes in the employment relationship in the
event of any such change in control.


 


D.            Employer
and Executive believe that the commitments they have made to each other should
be memorialized in writing, and that is the purpose of this Agreement.


 


NOW, THEREFORE, in
consideration of the premises and of the covenants and agreements hereinafter
contained, it is covenanted and agreed by and between the parties hereto as
follows:


 


AGREEMENTS


 


Section 1.              Position
and Duties.  Employer hereby
employs Executive as Market President and Dodge City Bank Manager of the
Bank.  During the period of Executive’s
employment hereunder, Executive shall devote his best efforts and full business
time, energy, skills and attention to the business and affairs of the
Bank.  Executive’s duties and authority
shall consist of and include all duties and authority customarily performed and
held by persons holding equivalent positions with business organizations
similar in nature and size to the Bank, as such duties and authority are
reasonably defined, modified and delegated from time to time by the Board of
Directors of the Bank.  Executive shall
have the powers necessary to perform the duties assigned to him and shall be
provided such supporting services, staff, secretarial and other


 





















 


assistance, office space and
accoutrements as shall be reasonably necessary and appropriate in the light of
such assigned duties.  Except as the
context may clearly require otherwise, all references in this Agreement to “Employer,”
shall include both Landmark Bancorp, Inc. and the Bank.


 


Section 2.              Compensation.  As compensation for the services to be
provided by Executive hereunder, Executive shall receive the following
compensation, expense reimbursement and other benefits:


 


(a)           Base
Compensation.  Executive shall
receive an aggregate annual minimum base salary at the rate of One Hundred Four
Thousand Dollars ($104,000) payable in installments in accordance with the
regular payroll schedule of the Bank. 
Such base salary shall be subject to review annually commencing in the
year 2005 and such salary shall be maintained or increased during the term
hereof in accordance with Employer’s established management compensation
policies and plans (as the same may be adjusted, “Base
Compensation”). 
Notwithstanding anything contained herein to the contrary, Employer
shall be entitled in its sole and absolute discretion to allocate between
Employer and the Bank the amount of Base Compensation payable to Executive and
to cause all or any of such Base Compensation or any other benefits payable or
to be provided to Executive under the terms of this Agreement to be paid or
provided directly by the Bank to Executive.


 


(b)           Performance Bonus.  Executive shall be entitled to receive an
annual performance bonus, payable within ninety (90) days after the end of the
fiscal year of Employer, which shall be based upon performance criteria
mutually agreed upon by Executive and the Bank’s Board of Directors (the “Executive Committee”), and which shall not be deemed earned,
in whole or in part, until such time as the amount of such bonus is determined
by the Board of Directors.  The amount
(if any) of and the form of payment (i.e., cash,
stock options, stock grants or any combination thereof) shall be determined by
the Executive Committee.


 


(c)           Automobile.  Employer shall provide an automobile for
Executive’s use in the performance of his duties hereunder and shall pay all
expenses for maintenance, repairs and insurance relating to that automobile, provided, however, that Executive shall pay for all fuel
charges and be reimbursed for business-related fuel expenses in accordance with
the Employer’s policy regarding such reimbursements.  Executive shall report his business and
personal use of the automobile in conformity with policies adopted by Employer
and his personal use shall be reflected annually on the IRS Form W-2 of
Executive as additional compensation for income tax purposes.


 


(d)           Club
Membership.  Employer shall pay
the Executive’s monthly membership dues at his current country club.  If Executive changes country clubs,
reimbursement hereunder shall be subject to the Chief Executive Officer’s prior
written approval of the change to a new country club.


 


(e)           Vacations.  Executive shall be entitled to an annual
vacation in accordance with the vacation policy of Employer, which vacation
shall be taken at a time or times mutually agreeable to Employer and Executive.


 


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(f)            Other
Benefits.  Executive shall be
entitled to all benefits specifically established for him and, when and to the
extent he is eligible therefor, to participate in all plans and benefits
generally accorded to senior executives of Employer and the Bank, including,
but not limited to, pension, profit-sharing, supplemental retirement, incentive
compensation, bonus, disability income, split-dollar life insurance, group
life, medical and hospitalization insurance, and similar or comparable plans,
and also to perquisites extended to senior executives, provided,
however, that such plans, benefits and perquisites shall be no less
than those made available to all other employees of Employer and the Bank.


 


(g)           Reimbursement
of Expenses.  Executive shall be
reimbursed, upon submission of appropriate vouchers and supporting
documentation, for all travel, entertainment and other out-of-pocket expenses
reasonably and necessarily incurred by Executive in the performance of his
duties hereunder, and he shall be entitled to attend seminars, conferences and
meetings relating to the business of Employer consistent with Employer’s
established policies in that regard.


 


(h)           Withholding.
 Employer shall be entitled to
withhold from amounts payable to Executive hereunder, any federal, state or
local withholding or other taxes or charges which it is from time to time
required to withhold.  Employer shall be
entitled to rely upon the opinion of its legal counsel with regard to any
question concerning the amount or requirement of any such withholding.


 


Section 3.              Confidentiality
and Loyalty.  Executive
acknowledges that during the course of his employment he may produce and have
access to material, records, data, trade secrets and information not generally
available to the public regarding Employer and its subsidiaries and affiliates
(collectively, “Confidential Information”).  Accordingly, during and subsequent to
termination of this Agreement, Executive agrees to hold in confidence and not
directly or indirectly disclose, use, copy or make lists of any Confidential
Information, except to the extent that such information is or thereafter
becomes lawfully available from public sources, or such disclosure is
authorized in writing by Employer, required by a law or any competent
administrative agency or judicial authority, or otherwise as reasonably
necessary or appropriate in connection with performance by Executive of his
duties hereunder.  All records, files,
documents and other materials or copies thereof relating to the respective
businesses of Employer and its subsidiaries and affiliates that Executive shall
prepare or use, shall be and remain the sole property of Employer, and other
than in connection with performance by Executive of his duties hereunder, shall
not be removed from the premises of Employer or any of its subsidiaries or
affiliates without Employer’s written consent, and shall be promptly returned
to Employer upon termination of Executive’s employment hereunder.  Executive agrees to abide by Employer’s
reasonable policies, as in effect from time to time, respecting avoidance of
interests conflicting with those of Employer and its subsidiaries and
affiliates.  For purposes of this
Agreement, an affiliate of Employer shall mean any corporation, partnership,
bank, association, limited liability company, trust or other business entity
directly or indirectly controlling, controlled by, or under common control with
Employer.


 


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Section 4.              Term
and Termination.


 


(a)           Term.  Executive’s employment hereunder shall be for
a term of one (1) year commencing the Effective Date, and shall automatically
extend for one (1) additional year on each subsequent anniversary of the
Effective Date (the “Automatic Extension”),
unless the Automatic Extension is terminated by either party effective by
written notice to that effect delivered to the other not less than ninety (90)
days prior to such anniversary of the Effective Date.  If the Automatic Extension is terminated,
then Executive’s employment hereunder shall terminate as of the last day of the
then current one (1) year period.


 


(b)           Voluntary
Termination by Executive.  If
Executive voluntarily terminates his employment under this Agreement, other
than pursuant to Section 4(d) (Constructive
Termination) or Section 4(h) (Change in
Control), then Employer shall only be required to pay Executive his Base
Compensation as shall have accrued through the effective date of such
termination, and Employer shall not be obligated to pay any performance bonus
with respect to the then current fiscal year of Employer nor shall Employer
have any further obligations to Executive.


 


(c)           Premature
Termination by Employer.


 


(i)            In
the event of the termination of this Agreement by Employer prior to the last
day of the then current term for any reason other than a termination in
accordance with the provisions of Section 4(h)
(Change in Control) or Section 4(e)
(Termination for Cause), then notwithstanding any mitigation of damages by
Executive, Employer shall pay Executive an amount equal to the sum of:  (A) Executive’s Base Compensation at the
annual rate then payable to Executive; (B) an amount equal to the average
of the annual performance bonuses paid to Executive during the most recent
three (3) fiscal years of Employer; and (C) an amount equal to the
contributions made or credited by Employer under all employee retirement plans
for the benefit of Executive for the most recently ended fiscal year of
Employer.  In addition, Employer shall
continue to provide coverage for Executive and his immediate family under any
health insurance programs maintained by Employer for one (1) year; provided, however, that
if the continuation of such health insurance is not permitted under the
Employer’s then current health insurance policy, then Employer agrees to pay
Executive’s premiums to continue such coverage under the Consolidated Omnibus
Budget Reconciliation Act of 1985 (“COBRA”) until
the earlier of the date one (1) year from the date of termination, or the date
such coverage otherwise terminates under COBRA, the period of health insurance
continuation shall be credited against Executive’s COBRA continuation rights
and he will be required to complete all COBRA election and other forms.  The payment of amounts under this subsection
by Employer shall not offset or diminish any compensation or benefits accrued
as of the date of termination.


 


(ii)           Payment
to Executive will be made on a monthly basis during the remaining term of this
Agreement.  At the election of Employer,
payments may be made in a lump sum discounted to their present value using the
prime rate of interest as of the date of termination.  Such payments shall not be reduced in the
event Executive obtains other employment following the termination of
employment by Employer.


 


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(iii)          If
either Employer or the Bank is not in compliance with its minimum capital
requirements or if the payments required under subsection (i) above would cause
the capital of either Employer or the Bank to be reduced below its minimum
capital requirements, such payments shall be deferred until such time as both
Employer and the Bank are in capital compliance.


 


(d)           Constructive
Termination.  If at any time
during the term of this Agreement, except in connection with a termination
pursuant to Section 4(h) (Change in Control)
or Section 4(e) (Termination for Cause),
Executive is Constructively Discharged (as hereinafter defined), then Executive
shall have the right, by written notice given to Employer not later than thirty
(30) days after such Constructive Discharge, to terminate his services
hereunder, effective as of thirty (30) days after the date of such notice, and
Executive shall have no rights or obligations under this Agreement other than
as provided in Section 3 (Confidentiality
and Loyalty) and Section 5 (Non-Competition
Covenant).  In such event, Executive
shall be entitled to a lump sum payment of compensation and continuation of the
health insurance as if such termination of his employment were pursuant to Section 4(c) (Premature Termination by Employer).


 


For purposes of this Agreement, Executive shall be “Constructively Discharged” upon the occurrence of any one of
the following events:


 


(i)            Executive
is not re-elected or is removed from the positions with the Bank set forth in Section 1 (Position and Duties), other than as a result
of Executive’s election or appointment to positions of equal or superior scope
and responsibility;


 


(ii)           Executive
shall fail to be vested by Employer with the powers, authority and support
services of any of said offices; or


 


(iii)          Employer
otherwise commits a material breach of its obligations


 


under this Agreement.


 


(e)           Termination
for Cause.  This Agreement may be
terminated for cause as hereinafter defined. 
“Cause” shall mean:  (i) Executive’s
death; (ii)  Executive’s “Permanent Disability,” which shall mean Executive’s
inability, as a result of physical or mental incapacity, substantially to
perform his duties hereunder for a period of six (6) consecutive months; (iii) a material violation by Executive of
any applicable material law or regulation respecting the business of Employer
or the Bank; (iv) Executive being
found guilty of a felony or an act of dishonesty in connection with the
performance of his duties as an officer of Employer or the Bank, or which
disqualifies Executive from serving as an officer or director of Employer or
the Bank; (v) the willful or
negligent failure of Executive to perform his duties hereunder in any material
respect; (vi) Executive engages in
one or more unsafe or unsound banking practices that have a material adverse
effect on the Bank; or (vii) Executive
is removed or suspended from banking pursuant to Section 8(e) of the
Federal Deposit Insurance Act, as amended (the “FDIA”),
or any other applicable state or federal law. 
Executive shall be entitled to at least thirty (30) days’ prior written
notice of Employer’s intention to terminate his employment for any cause
(except Executive’s death) specifying the grounds for such termination, a
reasonable opportunity


 


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to cure any conduct or act, if
curable, alleged as grounds for such termination, and a reasonable opportunity to
present to the Executive Committee his position regarding any dispute relating
to the existence of such cause.  In the
event of a dispute regarding Executive’s Permanent Disability, each of
Executive and Employer shall choose a physician who together will choose a
third physician to make a final determination thereof.  Upon a termination of Executive’s employment
with Employer for Cause, then Employer shall only be required to pay Executive
his Base Compensation as shall have accrued through the effective date of such
termination, and Employer shall not be obligated to pay any performance bonus
with respect to the then current fiscal year of Employer, or have any further obligations
to Executive.


 


(f)            Payments
Upon Death.  In the event
payments are due and owing under this Agreement at the death of Executive,
payment shall be made to such beneficiary as Executive may designate in
writing, or failing such designation, to the executor of his estate, in full
settlement and satisfaction of all claims and demands on behalf of
Executive.  Such payments shall be in
addition to any other death benefits of Employer for the benefit of Executive
and in full settlement and satisfaction of all payments provided for in this
Agreement.


 


(g)           Payments
Prior to Permanent Disability. 
Executive shall be entitled to the compensation and benefits provided
for under this Agreement for any period during the term of this Agreement and
prior to the establishment of Executive’s Permanent Disability.  Notwithstanding anything contained in this
Agreement to the contrary, until the date specified in a notice of termination
relating to Executive’s Permanent Disability, Executive shall be entitled to
return to his positions with the Bank as set forth in this Agreement in which
event no Permanent Disability of Executive will be deemed to have occurred.


 


(h)           Payments
Upon Change in Control.


 


(i)            In
the event of a Change in Control (as defined below) of Employer and the
termination of Executive’s employment under either A or B below, Executive
shall be entitled to receive in lieu of any other payments provided for in this
Agreement a lump sum payment equal to two (2) times the sum of:  (A) Executive’s Base Compensation at the
annual rate then payable to Executive; (B) an amount equal to the average
of the annual performance bonuses paid to Executive during the most recent
three (3) fiscal years of Employer; and (C) an amount equal to the
contributions made or credited by Employer under all employee retirement plans
for the benefit of Executive for the most recently ended fiscal year of
Employer; such lump sum amount to be paid within five (5) business days of
Executive’s termination.  In addition,
Employer shall continue to provide coverage for Executive and his immediate
family under any health insurance programs maintained by Employer for two (2)
years; provided, however,
that if the continuation of such health insurance is not permitted under the
Employer’s then current health insurance policy, then Employer agrees to pay
Executive’s premiums to continue such coverage under the Consolidated Omnibus
Budget Reconciliation Act of 1985 (“COBRA”) until
such coverage terminates under COBRA, the period of continuation hereunder
shall be credited against Executive’s continuation rights, and he will be
required to complete all COBRA election and other forms.  Payments under this Section shall be
subject to the limits of Section 4(h)(iii).  The following shall constitute termination of
Executive’s employment within the meaning of this
Section 4(h):


 


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A.            Executive
terminates his employment under this Agreement by a written notice to that
effect delivered to the Board of Directors of the Employer (the “Board”) within six (6) months after the Change in Control.


 


B.            The
Executive is terminated by Employer or its successor without Cause (as defined
in Section 4(e)) within one (1) year after
the Change in Control.


 


(ii)           For
purposes of this Section, the term “Change in Control”
shall mean the following:


 


A.            The
consummation of the acquisition by any person (as such term is defined in
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended
(the “1934 Act”)) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the 1934 Act) of
thirty-three percent (33%) or more of the combined voting power of the then
outstanding voting securities of Employer;


 


B.            The
individuals who, as of the date hereof, are members of the Board cease for any
reason to constitute a majority of the Board, unless the election, or
nomination for election by the stockholders, of any new director was approved
by a vote of a majority of the Board, and such new director shall, for purposes
of this Agreement, be considered as a member of the Board; or


 


C.            Consummation
of:  (1) a merger or consolidation
to which Employer is a party if the stockholders immediately before such merger
or consolidation do not, as a result of such merger or consolidation, own,
directly or indirectly, more than sixty-seven percent (67%) of the combined
voting power of the then outstanding voting securities of the entity resulting
from such merger or consolidation in substantially the same proportion as their
ownership of the combined voting power of Employer’s voting securities
outstanding immediately before such merger or consolidation; or (2) a
complete liquidation or dissolution or sale or other disposition of all or
substantially all of the assets of Employer or the Bank.


 


Notwithstanding the foregoing, a Change in
Control shall not be deemed to occur solely because thirty-three percent (33%)
or more of the combined voting power of Employer’s then outstanding securities
is acquired by:  (1) a trustee or
other fiduciary holding securities under one or more employee benefit plans
maintained for employees of the entity; or (2) any corporation which,
immediately prior to such acquisition, is owned directly or indirectly by the
stockholders in the same proportion as their ownership of stock immediately
prior to such acquisition.


 


(iii)          It
is the intention of Employer and Executive that no portion of any payment under
this Agreement, or payments to or for the benefit of Executive under any other
agreement or plan, be deemed to be an “Excess Parachute Payment”
as defined in Section 280G of the Internal Revenue Code of 1986, as
amended (the “Code”), or its successors.  It is agreed that the present value of and
payments to or for the benefit of Executive in the nature of compensation,
receipt of which is contingent on the Change in Control of Employer, and to
which Section 280G of the Code applies (in the aggregate “Total Payments”) shall not exceed an amount equal to one
dollar ($1.00) less than the maximum amount which Employer may pay


 


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without loss of deduction under
Section 280G(a) of the Code. 
Present value for purposes of this Agreement shall be calculated in
accordance with Section 280G(d)(4) of the Code.  Within ninety (90) days following the earlier
of the giving of the notice of termination or the giving of notice by Employer
to Executive of its belief that there is a payment or benefit due Executive
which will result in an excess parachute payment as defined in
Section 280G of the Code, Executive and Employer, at Employer’s expense,
shall obtain the opinion of such legal counsel and certified public accountants
as Executive may choose (notwithstanding the fact that such persons have acted
or may also be acting as the legal counsel or certified public accountants for
Employer), which opinions need not be unqualified, which sets forth (A) the
amount of the includable compensation of Executive for the base period, as
determined under Section 280G of the Code, (B) the present value of Total
Payments and (C) the amount and present value of any excess parachute
payments.  In the event that such
opinions determine that there would be an excess parachute payment, the payment
hereunder or any other payment determined by such counsel to be includable in
Total Payments shall be modified, reduced or eliminated as specified by
Executive in writing delivered to Employer within sixty (60) days of his
receipt of such opinions or, if Executive fails to so notify Employer, then as Employer
shall reasonably determine, so that under the bases of calculation set forth in
such opinions there will be no excess parachute payment.  The provisions of this subsection, including
the calculations, notices and opinions provided for herein shall be based upon
the conclusive presumption that (x) the compensation and benefits provided for
in Section 2 (Compensation) and (y)
any other compensation earned by Executive pursuant to Employer’s compensation
programs which would have been paid in any event, are reasonable compensation
for services rendered, even though the timing of such payment is triggered by
the Change in Control; provided, however,
that in the event such legal counsel so requests in connection with the opinion
required by this subsection, Executive and Employer shall obtain, at Employer’s
expense, and the legal counsel may rely on in providing the opinion, the advice
of a firm of recognized executive compensation consultants as to the
reasonableness of any item of compensation to be received by Executive.  In the event that the provisions of Sections
280G and 4999 of the Code are repealed without succession, this subsection
shall be of no further force or effect.


 


(i)            Regulatory
Suspension and Termination.


 


(i)            If
Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the affairs of Employer or the Bank by a notice
served under Section 8(e)(3) (12 U.S.C. § 1818(e)(3)) or
8(g) (12 U.S.C. § 1818(g)) of the FDIA, Employer’s obligations under
this contract shall be suspended as of the date of service, unless stayed by
appropriate proceedings.  If the charges
in the notice are dismissed, Employer may in its discretion:  (A) pay Executive all or part of the
compensation withheld while their contract obligations were suspended; and
(B) reinstate (in whole or in part) any of the obligations which were
suspended.


 


(ii)           If
Executive is removed and/or permanently prohibited from participating in the
conduct of the affairs of Employer or the Bank by an order issued under
Section 8(e) (12 U.S.C. § 1818(e)) or 8(g) (12 U.S.C.
§ 1818(g)) of the FDIA, all obligations of Employer under this contract
shall terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.


 


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(iii)          If
either Employer or the Bank is in default as defined in Section 3(x)
(12 U.S.C. § 1813(x)(1)) of the FDIA, all obligations of
Employer under this contract shall terminate as of the date of default, but
this subsection shall not affect any vested rights of the contracting parties.


 


(iv)          All
obligations of Employer under this Agreement shall be terminated, except to the
extent determined that continuation of the contract is necessary for the
continued operation of the institution by the Federal Deposit Insurance
Corporation (the “FDIC”), at the
time the FDIC enters into an agreement to provide assistance to or on behalf of
Employer or the Bank under the authority contained in Section 13(c) (12 U.S.C. § 1823(c))
of the FDIA, or when Employer or the Bank is determined by the FDIC to be in an
unsafe or unsound condition.  Any rights
of the parties that have already vested, however, shall not be affected by such
action.


 


(v)           All
obligations of Employer under this Agreement shall be terminated, except to the
extent determined that continuation of this Agreement is necessary for the
continued operation of the Bank:  (A) by
the Office of the Comptroller of the Currency (the “OCC”)
at the time that the FDIC enters into an agreement to provide assistance to or
on behalf of the Bank under the authority contained in Section 13(c)
(12 U.S.C. § 1823(c)) of the FDIA; or (B) by the OCC at the time
that the OCC approves a supervisory merger to resolve problems related to
operation of the Bank or when the Bank is determined by the OCC to be in an
unsafe or unsound condition.  Any rights
of the parties that have already vested, however, shall not be affected by such
action.


 


(vi)          Any
payments made to Executive pursuant to this Agreement, or otherwise, are
subject to and conditioned upon their compliance with Section 18(k)
(12 U.S.C. §828(k)) of the FDIA.


 


Section 5.              Non-Competition
Covenant.


 


(a)           Restrictive
Covenant.  Employer and Executive
have jointly reviewed the customer lists and operations of Employer and the
Bank and have agreed that the primary service area of the lending and deposit
taking functions of Employer or the Bank in which Executive has participated
and will continue to actively participate extends to an area which encompasses
a fifty (50) mile radius from each of the offices of Employer and the Bank (the
“Restrictive Area”).  Therefore, as an essential ingredient of and
in consideration of this Agreement and the payment of the amounts described in Section 2 (Compensation), Executive hereby agrees that,
except with the express prior written consent of Employer, for a period of one
(1) year after the termination of Executive’s employment with Employer (the “Restrictive Period”), he will not directly or indirectly
compete with the business of Employer or the Bank, including, but not by way of
limitation, by directly or indirectly owning, managing, operating, controlling,
financing, or by directly or indirectly serving as an employee, officer or director
of or consultant to, or by soliciting or inducing, or attempting to solicit or
induce, any employee or agent of Employer or the Bank to terminate employment
with Employer and become employed by any person, firm, partnership,
corporation, trust or other entity which owns or operates, a bank, savings and
loan association, credit union or similar financial institution (a “Financial Institution”) within the


 


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Restrictive Area (the “Restrictive Covenant”). 
If Executive violates the Restrictive Covenant and Employer or the Bank
brings legal action for injunctive or other relief, Employer or the Bank shall
not, as a result of the time involved in obtaining such relief, be deprived of
the benefit of the full period of the Restrictive Covenant.  Accordingly, the Restrictive Covenant shall
be deemed to have the duration specified in this Section 5(a) computed
from the date the relief is granted but reduced by the time between the period
when the Restrictive Period began to run and the date of the first violation of
the Restrictive Covenant by Executive. 
In the event that a successor assumes and agrees to perform this
Agreement, this Restrictive Covenant shall continue to apply only to the
Restrictive Area as it existed immediately before such assumption and shall not
apply to any of the successor’s other offices. 
The foregoing Restrictive Covenant shall not prohibit Executive from
owning directly or indirectly capital stock or similar securities which are
listed on a securities exchange or quoted on the Nasdaq which do not represent
more than one percent (1%) of the outstanding capital stock of any Financial
Institution.


 


(b)           Remedies
for Breach of Restrictive Covenant. 
Executive acknowledges that the restrictions contained in Section 3 (Confidentiality and Loyalty) and Section 5 (Non-Competition Covenant) of this Agreement
are reasonable and necessary for the protection of the legitimate business
interests of Employer and the Bank, that any violation of these restrictions
would cause substantial injury to Employer and the Bank and such interests,
that Employer would not have entered into this Agreement with Executive without
receiving the additional consideration offered by Executive in binding himself
to these restrictions and that such restrictions were a material inducement to
Employer to enter into this Agreement. 
In the event of any violation or threatened violation of these
restrictions, Employer and the Bank, in addition to and not in limitation of,
any other rights, remedies or damages available to Employer and the Bank under
this Agreement or otherwise at law or in equity, shall be entitled to
preliminary and permanent injunctive relief to prevent or restrain any such
violation by Executive and any and all persons directly or indirectly acting
for or with him, as the case may be.


 


Section 6.              Intercorporate
Transfers.  If Executive shall be
voluntarily transferred to an affiliate of Employer, such transfer shall not be
deemed to terminate or modify this Agreement and the employing corporation to
which Executive shall have been transferred shall, for all purposes of this
Agreement, be construed as standing in the same place and stead as Employer as
of the date of such transfer.


 


Section 7.              Interest
in Assets.  Neither Executive nor
his estate shall acquire hereunder any rights in funds or assets of Employer or
the Bank, otherwise than by and through the actual payment of amounts payable
hereunder; nor shall Executive or his estate have any power to transfer, assign,
anticipate, hypothecate or otherwise encumber in advance any of said payments;
nor shall any of such payments be subject to seizure for the payment of any
debt, judgment, alimony, separate maintenance or be transferable by operation
of law in the event of bankruptcy, insolvency or otherwise of Executive.


 


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Section 8.              Indemnification.


 


(a)           Insurance.  Employer shall provide Executive (including
his heirs, personal representatives, executors and administrators) for the term
of this Agreement with coverage under a standard directors’ and officers’
liability insurance policy at its expense.


 


(b)           Hold
Harmless.  In addition to the
insurance coverage provided for in this Section, Employer shall hold harmless
and indemnify Executive (and his heirs, executors and administrators) to the
fullest extent permitted under applicable law against all expenses and
liabilities reasonably incurred by him in connection with or arising out of any
action, suit or proceeding in which he may be involved by reason of his having
been an officer of Employer or the Bank (whether or not he continues to be an
officer at the time of incurring such expenses or liabilities), such expenses
and liabilities to include, but not be limited to, judgments, court costs and
attorneys’ fees and the cost of reasonable settlements.


 


(c)           Advancement
of Expenses.  In the event
Executive becomes a party, or is threatened to be made a party, to any action,
suit or proceeding for which Employer has agreed to provide insurance coverage
or indemnification under this Section, Employer shall, to the full extent
permitted under applicable law, advance all expenses (including reasonable
attorneys’ fees), judgments, fines and amounts paid in settlement (collectively
“Expenses”) incurred by Executive in
connection with the investigation, defense, settlement, or appeal of any
threatened, pending or completed action, suit or proceeding, subject to receipt
by Employer of a written undertaking from Executive:  (i) to
reimburse Employer for all Expenses actually paid by Employer to or on behalf
of Executive in the event it shall be ultimately determined that Executive is
not entitled to indemnification by Employer for such Expenses; and (ii) to assign to Employer all rights of
Executive to indemnification, under any policy of directors’ and officers’
liability insurance or otherwise, to the extent of the amount of Expenses
actually paid by Employer to or on behalf of Executive.


 


Section 9.              General
Provisions.


 


(a)           Successors;
Assignment.  This Agreement shall be binding
upon and inure to the benefit of Executive, Employer and his and its respective
personal representatives, successors and assigns, and any successor or assign
of Employer shall be deemed the “Employer”
hereunder.  Employer shall require any
successor to all or substantially all of the business and/or assets of
Employer, whether directly or indirectly, by purchase, merger, consolidation,
acquisition of stock, or otherwise, by an agreement in form and substance satisfactory
to Executive, expressly to assume and agree to perform this Agreement in the
same manner and to the same extent as Employer would be required to perform if
no such succession had taken place. 
Notwithstanding anything contained herein to the contrary, Executive
further agrees that the Bank is an intended beneficiary of the Executive’s
obligations under Section 3 (Confidentiality
and Loyalty) and Section 5 (Non-Competition
Covenant) and the same may be enforced by the Bank in the same manner, and to
the same extent, as the same is enforceable hereunder by Employer.


 


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(b)           Entire
Agreement; Modifications.  This
Agreement constitutes the entire agreement between the parties respecting the
subject matter hereof, and supersedes all prior negotiations, undertakings,
agreements and arrangements with respect thereto,  whether written or oral.  Except as otherwise explicitly provided
herein, this Agreement may not be amended or modified except by written agreement
signed by Executive and Employer.


 


(c)           Enforcement
and Governing Law.  The
provisions of this Agreement shall be regarded as divisible and separate; if
any of said provisions should be declared invalid or unenforceable by a court
of competent jurisdiction, the validity and enforceability of the remaining
provisions shall not be affected thereby. 
This Agreement shall be construed and the legal relations of the parties
hereto shall be determined in accordance with the laws of the State of Kansas
without reference to the law regarding conflicts of law.


 


(d)           Arbitration.  Any dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three arbitrators sitting in a location selected by
Executive within fifty (50) miles from the location of the Bank’s main office,
in accordance with the rules of the American Arbitration Association then in
effect.  Judgment may be entered on the
arbitrator’s award in any court having jurisdiction; provided,
however, that Executive shall be entitled to seek specific
performance of his right to be paid through the date of termination during the
pendency of any dispute or controversy arising under or in connection with this
Agreement.


 


(e)           Legal
Fees.  All reasonable legal fees
paid or incurred by Employer or Executive pursuant to any dispute or question
of interpretation relating to this Agreement shall be paid or reimbursed by the
party who or which is not successful on the merits pursuant to a legal
judgment, arbitration or settlement.


 


(f)            Waiver.  No waiver by either party at any time of any
breach by the other party of, or compliance with, any condition or provision of
this Agreement to be performed by the other party, shall be deemed a waiver of
any similar or dissimilar provisions or conditions at the same time or any
prior or subsequent time.


 


(g)           Notices.  Notices pursuant to this Agreement shall be
in writing and shall be deemed given when received; and, if mailed, shall be
mailed by United States registered or certified mail, return receipt requested,
postage prepaid; and if to Employer, addressed to the principal headquarters of
Employer, attention:  Chairman; or, if to
Executive, to the address set forth below Executive’s signature on this
Agreement, or to such other address as the party to be notified shall have
given to the other.


 


IN WITNESS WHEREOF, the parties have executed
this Agreement as of the date first above written.


 


	
  LANDMARK BANCORP, INC.

  	
  M. JEFF OLIPHANT

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
  Name: Patrick L. Alexander

  	
   

  
	
  Title: President and Chief Executive
  Officer

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Address)

  	
   

  
					



 


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