EXHIBIT 10(j)
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (the "Agreement"), is made and entered into as
of this 31st day of July, 1997, by and between PINNACLE FINANCIAL SERVICES,
INC., a Michigan corporation ("Pinnacle"), and XXXXXXX X. XXXXXXX (the
"Executive").
WITNESSETH:
WHEREAS, Pinnacle has entered into an Agreement and Plan of Merger dated
as of November 14, 1996, as amended by First Amendment to Agreement and Plan
of Merger dated as of February 27, 1997 (the "IFC Merger Agreement"), with
Indiana Federal Corporation, a Delaware corporation ("IFC"), pursuant to
which IFC is to be merged with and into Pinnacle (the "IFC Merger"), and the
wholly-owned subsidiary of IFC, Indiana Federal Bank for Savings, a Federal
Savings Bank ("IndFed Bank"), is to be merged and consolidated into the
wholly-owned subsidiary of Pinnacle, Pinnacle Bank, a Michigan banking
corporation ("Pinnacle Bank"); and
WHEREAS, Executive is currently serving as an executive of IFC and/or
IndFed Bank and is a party to a Severance Agreement dated March 4, 1996 (the
"IFC Severance Agreement"), with IFC, pursuant to which the Executive is
entitled to certain benefits, including, among other things, certain benefits
following a change in control affecting IFC and/or IndFed Bank; and
WHEREAS, upon the merger contemplated under the IFC Merger Agreement
becoming effective, Pinnacle, as the survivor of the merger with IFC, desires
to continue the employment of the Executive with Pinnacle and/or Pinnacle
Bank, as the survivor of the merger and consolidation with IndFed Bank, but
on terms provided herein, which are different than and would supersede the
terms provided in the IFC Severance Agreement; and
WHEREAS, Executive is willing to be employed with Pinnacle and/or
Pinnacle Bank following the effectiveness of the merger contemplated by the
IFC Merger Agreement on terms provided herein, and to cancel and terminate
the IFC Employment Agreement as herein provided;
NOW, THEREFORE, in consideration of the premises and of the respective
covenants and agreements of the parties provided herein,
the parties do hereby agree as follows:
7. CERTAIN DEFINITIONS.
(a) The term "Change in Control" means (i) any "person", as such
term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (other than Pinnacle, any of its
affiliates, any person (as hereinabove defined) acting on behalf of Pinnacle
as underwriter pursuant to an offering who is temporarily holding securities
in connection with such offering, any trustees or other fiduciary holding
securities under an employee benefit plan of Pinnacle, or any corporation
owned, directly or indirectly, by the stockholders of Pinnacle in
substantially the same proportions as their ownership of stock of Pinnacle),
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of Pinnacle representing
25% or more of the combined voting power of Pinnacle's then outstanding
securities; (ii) individuals who are members of the Board of Pinnacle upon
the consummation of the IFC Merger (the "Incumbent Board") as contemplated by
the IFC Merger Agreement (the "Commencement Date") cease for any reason to
constitute at least a majority thereof, provided that any person becoming a
director subsequent to the Commencement Date whose election was approved in
the IFC Merger Agreement (i.e., the election of Xxxxxx Xxxxxxxxx to the Board
of Pinnacle upon the consummation of a merger of CB Bancorp, Inc., a Delaware
corporation ("CB"), with and into Pinnacle (the "CB Merger"), as contemplated
by the IFC Merger Agreement), or by a vote of at least a majority of the
directors comprising the Incumbent Board or whose nomination for election by
Pinnacle's stockholders was approved by the nominating committee serving
under an Incumbent Board, shall be considered a member of the Incumbent
Board; (iii) the stockholders of Pinnacle approve a merger or consolidation
of Pinnacle with any other corporation, other than (1) a merger or
consolidation which would result in the voting securities of Pinnacle
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the voting
securities of Pinnacle or such surviving entity outstanding immediately after
such merger or consolidation, or (2) a merger or consolidation effected to
implement a recapitalization of Pinnacle (or similar transaction) in which no
person (as hereinabove defined) acquires more than 25% of the combined voting
power of Pinnacle's then outstanding securities; or (iv) the stockholders of
Pinnacle
approve a plan of complete liquidation of Pinnacle or an agreement for the
sale or disposition by Pinnacle of all or substantially all of Pinnacle's
assets (or any transaction having a similar effect). Notwithstanding the
foregoing or anything to the contrary, neither the IFC Merger nor the CB
Merger as contemplated by the IFC Merger Agreement shall constitute a "Change
in Control" for purposes of this Agreement.
(b) The term "Good Reason" means the occurrence, without the
Executive's express written consent, of a material diminution of or
interference with the Executive's duties, responsibilities or benefits,
including, without limitation, any of the following circumstances unless such
circumstances are fully corrected prior to the Date of Termination specified
in the Notice of Termination given by the Executive in respect thereof:
(1) a requirement that the Executive be based at any location not
within 25 miles of Valparaiso, Indiana, or that he substantially
increase his travel on Pinnacle business:
(2) a material demotion of the Executive;
(3) a material reduction in the number or seniority of personnel
reporting to the Executive or a material reduction in the frequency
with which, or in the nature of the matters with respect to which
such personnel are to report to the Executive, other than as part
of a Pinnacle-wide reduction in staff;
(4) a reduction in the Executive's salary or a material adverse change
in the Executive's perquisites, benefits, contingent benefits or
vacation, other than as part of an overall program applied
uniformly and with equitable effect to all members of the senior
management of Pinnacle;
(5) a material and extended increase in the required hours of work or
the workload of the Executive; or
(6) the failure of Pinnacle to obtain a satisfactory agreement from
any successor to assume the obligations and liabilities under this
Agreement, as contemplated in Section 16 hereof.
(c) The terms "Termination for Cause" or "Cause" in relation to a
termination of employment shall mean termination because of the Executive's
intentional or persistent failure to perform stated duties of a material
nature, personal dishonesty which results in material loss to Pinnacle or one
of its affiliates, willful violation of any law, rule, regulation (other than
traffic violations or similar offenses) or final cease and desist order which
results in material loss to Pinnacle or one of its affiliates or any material
breach of this Agreement. For purposes of this Section, no act, or the
failure to act, on Executive's part shall be "willful" unless done, or
omitted to be done, not in good faith and without reasonable belief that the
action or omission was in the best interest of Pinnacle or its affiliates.
Notwithstanding the foregoing, Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to him
a Notice of Termination which shall include a copy of a resolution duly
adopted by the affirmative vote of not less than a majority of the members of
the Board of Pinnacle (excluding the Executive for purposes of said
computation) at a meeting of the Board called and held for that purpose
(after reasonable notice to Executive and an opportunity for him, together
with counsel, to be heard before the Board), finding that in the good faith
opinion of the Board, Executive was guilty of conduct justifying termination
for Cause and specifying the particulars thereof in detail.
2. DESCRIPTION OF SERVICES.
Following the consummation of the IFC Merger, Executive shall serve as
an employee of Pinnacle and/or its affiliates, in such capacity as may be
mutually agreed by Pinnacle and Executive. As an employee of Pinnacle and/or
its affiliates, Executive will provide Pinnacle and its affiliates with the
benefit of his special knowledge, skill, contacts and business experience in
the banking, savings and loan, and financial services industries.
3. AT WILL EMPLOYMENT.
Executive shall be employed as an "at will " employee, and said
employment may be terminated by either Pinnacle or Executive at any time,
whether for "Cause" or any reason whatsoever, subject to the provisions of
Sections 4, 5, 6 and 8 of this Agreement.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION PRIOR TO A
CHANGE IN CONTROL.
Subject to the provisions of Section 6 of this Agreement:
(a) Upon the occurrence of an "Event of Termination Prior to a Change
of Control" (as herein defined), the provisions of this Section shall apply.
As used in Sections 4(a) and (b) of this Agreement, an "Event of Termination
Prior to a Change in Control" shall mean termination of employment service in
all capacities with Pinnacle and its subsidiaries and corporate affiliates,
for any reason, which termination of employment service occurs after the
effective date of this Agreement but prior to the occurrence of a Change in
Control, including, without limitation, the termination by Pinnacle of
Executive's full-time employment hereunder whether for "Cause" or for any
reason whatsoever, the termination by the Executive of his employment for
Good Reason or for any reason whatsoever, or termination upon the retirement,
resignation, death or disability of Executive.
(b) Upon the occurrence of an Event of Termination Prior to a Change in
Control, Pinnacle shall pay Executive, or in the event of his death or
disability, his beneficiary or beneficiaries, or his estate or legal
representatives, as the case may be, (i) the salary of Executive through the
Date of Termination at the rate in effect at the time the Notice of
Termination is given, at the time such payments are due; and (ii) in a lump
sum in cash, within 30 days after the Date of Termination, as severance pay
or liquidated damages, or both, the sum of $87,816.
5. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION UPON OR
FOLLOWING A CHANGE IN CONTROL.
Subject to the provisions of Section 6 of this Agreement:
(a) In the event that Pinnacle shall terminate the Executive's
employment other than Termination for Cause, or the Executive shall terminate
his employment for Good Reason, or the Executive's employment shall be
terminated by retirement, death or disability, in any said case upon or
within 24 months following a Change in Control, Pinnacle shall (i) pay the
Executive his salary through the Date of Termination at the rate in effect at
the time the Notice of Termination is given, at the time such payments are
due; and (ii) pay to the Executive in a lump sum in cash, within 30 days
after the Date of Termination, an amount equal to the greater of: (A) 200% of
the Executive's "base amount" as determined under Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), less the aggregate
present value of the payments or
benefits, if any, in the nature of compensation for the benefit of the
Executive, arising under any other plans or arrangements (i.e., not this
Agreement) between Pinnacle or any of its affiliates and the Executive, which
are contingent upon a Change in Control and which are not deemed to be
"reasonable compensation" under Section 280G of the Code, or (B) $87,816.
(b) In the event that Pinnacle shall terminate the Executive's
employment for Cause, or the Executive shall terminate his employment other
than for Good Reason, in any said case upon or at any time following a Change
in Control, or the Executive's employment shall be terminated for any reason
more than 24 months following a Change in Control, Pinnacle shall pay to
Executive, or in the event of his death or disability, his beneficiary or
beneficiaries, or his estate or legal representatives, as the case may be,
(i) the salary of Executive through the Date of Termination at the rate in
effect at the time the Notice of Termination is given, at the time such
payments are due; and (ii) in a lump sum in cash, within 30 days after the
Date of Termination, as severance pay or liquidated damages, or both, the sum
of $87,816.
6. REGULATORY AND OTHER RESTRICTIONS.
(a) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of Pinnacle's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (the "FDIA"),
12 U.S.C. Section 1818(e)(3) and (g)(1), or Section 37 of the Michigan
Banking Code (the "MBC"), M.C.L. Section 487.337, Pinnacle's obligations
under this Agreement shall be suspended as of the date of service, unless
stayed by appropriate proceedings. If the charges in the notice are
dismissed, Pinnacle may in its discretion (i) pay the Executive all or part
of withheld while its obligations under this Agreement were suspended and
(ii) reinstate in whole or in part any of its obligations which were
suspended.
(b) If the Executive is removed and/or permanently prohibited from
participating in the conduct of Pinnacle's affairs by an order issue under
Section 8(e)(4) or (g)(1) of the FDIA, 12 U.S.C. Section 1818(e)(4) and
(g)(1), or under Section 37 of the MBC, M.C.L. Section 487.337, all
obligations of Pinnacle under this Agreement shall terminate as of the
effective date of the order, but vested rights of the contracting parties
shall not be affected.
(c) If Pinnacle is in default (as defined in Section 3(x)(1)
of the FDIA), or its performance of this Agreement is grounds for an action
under Section 35 of the MBC, M.C.L. Section 487.335, all obligations under
this Agreement shall terminate as of the date of default, but this provision
shall not affect any vested rights of the contracting parties.
(d) Any payments made to the Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with 12
U.S.C. Section 1828(k) and any regulation promulgated thereunder.
(e) The Executive shall not be required to mitigate the amount of any
payment or provided for in this Agreement by seeking other employment or
otherwise, nor shall the amount of any payment or benefit provided for in
this Agreement be reduced by any compensation earned by the Executive as a
result of employment by another employer, by retirement benefits after the
date of termination or otherwise. This Agreement shall not be construed as
providing the Executive any rights to be retained in the employ of Pinnacle
or any affiliate of Pinnacle.
7. NOTICE.
(a) Any purported termination by Pinnacle or by Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes
of this Agreement, a "Notice of Termination" shall mean a written notice
which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(b) "Date of Termination" shall mean the date specified in the Notice
of Termination (which, in the case of a Termination for Cause, shall not be
less than thirty (30) days from the date such Notice of Termination is given).
8. POST-TERMINATION OBLIGATIONS.
(a) All payments and benefits to Executive under this Agreement shall
be subject to Executive's compliance with paragraph (b) of this Section 8
during the term of this Agreement and for one (1) full year after the
expiration or termination hereof.
(b) Executive shall, upon reasonable notice, furnish such
information and assistance to Pinnacle as may reasonably be required by
Pinnacle in connection with any litigation in which it or any of its
subsidiaries or affiliates is, or may become, a party.
9. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid
in cash or check from the general funds of Pinnacle.
10. NO ATTACHMENT; SUCCESSORS AND ASSIGNS.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and
any attempt, voluntary or involuntary, to affect any such action shall be
null, void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and Pinnacle and their respective successors and assigns.
11. MODIFICATION.
This Agreement may not be modified or amended except by an instrument in
writing signed by the parties hereto.
12. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other
provision of this Agreement or any part of such provision not held so
invalid, and each such other provision and part thereof shall to the full
extent consistent with law continue in full force and effect.
13. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation
of any of the provisions of this Agreement.
14. 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 the Executive
within fifty (50) miles from the location of the chief executive offices of
Pinnacle, in accordance with the rules of the American Arbitration
Association then in effect.
15. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be
paid or reimbursed by Pinnacle, if Executive is successful on the merits
pursuant to a legal judgment, arbitration or settlement.
16. SUCCESSOR TO PINNACLE.
Pinnacle shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of Pinnacle, expressly and
unconditionally to assume and agree to perform Pinnacle's obligations under
this Agreement, in the same manner and to the same extent that Pinnacle would
be required to perform if no such succession or assignment had taken place.
17. APPLICABLE LAW.
This Agreement shall be governed by the laws of the State of Michigan
applicable to contracts made and wholly to be performed within such state.
18. EFFECTIVENESS AND SUPERSEDED AGREEMENT.
This Agreement shall be effective upon consummation of the IFC Merger
contemplated by the IFC Merger Agreement. In the event the IFC Merger
Agreement is terminated, or if the IFC Merger is not consummated for any
reason, this Agreement shall be null and void and of no effect.
Notwithstanding the foregoing, by executing this Agreement, the Executive
acknowledges and agrees that, in the event the IFC Merger is consummated and
this Agreement becomes effective, his Severance Agreement with IFC dated
March 4, 1996, shall immediately and automatically be and become superseded,
void and of no effect, without need of any further action; and that, in said
event, he shall have no rights to any payments or other benefits under such
prior agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Pinnacle Financial Services, Inc.
By:
Xxxxxxx X. Xxxxxxx
Chairman and Chief Executive
Officer
________________________________
Xxxxxxx X. Xxxxxxx
"Executive"
