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Exhibit 10.01
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") has been made and entered
into as of the 29th day of July, 1999, by and between Old National Bancorp (the
"Company") and Xxxxx X. Xxxxxxxxxxxx (the "Executive"). At the Effective Time
(as defined below), this Agreement shall terminate the Amended and Restated
Employment Agreement, dated May 10, 1999 (the "ANB Employment Agreement"), by
and between the Executive and ANB Corporation (the "Target"), pursuant to the
terms of Section 20 of this Agreement.
WHEREAS, the Company and Target are entering into an Agreement of
Affiliation and Merger on July 29, 1999 (the "Merger Agreement"), whereby the
Target will be merged with and into the Company (the "Merger");
WHEREAS, the Company and the Executive are entering into this Agreement
on the date set forth above, but this Agreement is contingent on the
consummation of the Merger.
NOW, THEREFORE, in consideration of the premises contained herein and
for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Executive and the Company agree as follows:
Section 1. Operation of Agreement.
This Agreement shall be effective and operative from and after the
"Effective Time" (as defined in the Merger Agreement) (the "Effective Date").
Section 2. Employment: Period of Employment.
A. The Company hereby agrees to employ the Executive, and the
Executive hereby agrees to become employed by the Company, upon and subject to
the terms and conditions set forth herein.
B. The Company shall employ the Executive on a full-time basis during
his employment hereunder (the "Period of Employment"), which shall be deemed to
have commenced on the Effective Date and which shall end two (2) years from the
Effective Date (the "Term").
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Section 3. Position, Duties; Responsibilities.
The Executive shall serve as Chairman of Old National Trust Company;
Chairman of Old National Trust Company-Illinois; Chairman of Old National Trust
Company-Kentucky, each a wholly-owned subsidiary of the Company; and Chairman of
American National Trust and Investment Management Company, and shall have such
commensurate responsibilities, duties and authority as may from time to time be
reasonably assigned to the Executive by the Chief Executive Officer or the Chief
Operating Officer of the Company. The Executive shall serve as a Member of the
Chairman's Committee of Old National Bancorp while employed by the Company. The
Executive shall devote substantially all his business efforts, time, energy and
skill during reasonable business hours to the service of the Company and shall
not engage in any other related business. The Executive's office shall be
located at the Company's regional office, which shall be located in Muncie,
Indiana. Without his consent, the Executive will not be required to relocate
outside of Muncie, Indiana.
Section 4. Compensation and Related Matters.
A. For all services rendered by the Executive in any capacity during
the Period of Employment, including, without limitation, services as an
executive officer, director, or member of any committee of the Company or of any
other subsidiary, division, or affiliate of the Company, the Executive shall be
paid as compensation:
(1.) Salary. During the Period of Employment, the Company shall
pay him an annual base salary at a rate of $255,000 (Two Hundred
Fifty-Five Thousand and No/100 Dollars) per year, such salary to be
paid in substantially equal payments in accordance with the Company's
practices for other executive employees in effect from time to time.
Such annual salary shall be subject to increase annually (generally,
effective the first pay period in January) at the discretion of the
Chief Executive Officer of the Company, taking into account the
Executive's performance of his duties during the preceding year and
other relevant factors, and subject to the approval of the Company's
Board of Directors ("Board") Compensation Committee.
(2.) Incentives. The Company shall grant to the Executive,
executive performance awards, stock options, stock appreciation rights,
bonuses, and other incentive grants ("Incentive Compensation Awards")
at least in equal amount, and of substantially the same kind and
subject to substantially the same terms and conditions, as those
awarded to each other executive of the Company during the Term, under
all executive compensation plans, programs, and policies existing on
the Effective Date and all such plans, programs, and policies that may
thereafter be adopted for the benefit of executives of the Company or
employees of the Company generally.
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(3.) Signing Bonus. The Company shall pay in cash to the Executive
a "signing bonus" in an amount equal to $875,000.00 (Eight Hundred
Seventy-Five Thousand and No/100 Dollars), payable within five (5) days
following the Effective Date. In addition to the aforementioned
"signing bonus", in the event that the Executive: (i) remains employed
by the Company until the expiration of the Term; (ii) is terminated by
the Company without Cause (as defined below) during the Term; or (iii)
for any reason, terminates his employment at any time following the
first anniversary of the Effective Date, the Company shall pay to the
Executive a "retention bonus" in an amount equal to $65,000.00
(Sixty-Five Thousand and No/100 Dollars) (the "Retention Bonus"),
payable within five (5) days following the Executive's termination of
employment with the Company or expiration of the Term. In the event
that the Company terminates the Executive's employment for Cause at any
time during the first year following the Effective Date, the Executive
shall not be entitled to receive nor shall the Company be required to
pay the Retention Bonus to the Executive.
(a) For purposes of this Section 4(A)(3), the term "Cause"
shall mean: (i) willful and continued failure by the Executive to
substantially perform his duties hereunder other than any such
failure resulting from the Executive's incapacity due to physical
or mental illness which continues after the Company has given
Executive written notice of the same; (ii) willful engaging by the
Executive in an act of fraud, misappropriation, dishonesty,
embezzlement, or similar conduct involving the Company; (iii)
conviction of a felony or any crime involving moral turpitude or
any event requiring the consent of the Federal Deposit Insurance
Company; (iv) engaging in other serious misconduct of such a
nature that the continued employment of the Executive may
reasonably be expected to materially and adversely affect the
business or properties of the Company. For purposes of this
Subsection, no act, or failure to act, on the Executive's part
shall be considered "willful" unless done, or omitted to be done,
by him in bad faith or without reasonable belief that his action
or omission was in the best interests of the Company. Any act, or
failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board of Directors of the Company
or upon the instructions of the Chief Executive Officer of the
Company or based on the advice of counsel for the Company shall be
presumed to be done, or omitted to be done, by the Executive in
good faith and in the best interests of the Company.
The cessation of employment of the Executive shall not be
deemed to be for "Cause" unless and until there shall have been
delivered to the Executive a Notice of Termination (as defined
below) and a copy of a resolution duly adopted by the affirmative
vote of not less than seventy-five percent (75%) of the entire
membership of the Board (excluding the Executive if he is a member
of the Board) at a meeting of the Board called and held for such
purposes (after reasonable notice is provided to the
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Executive and the Executive is given an opportunity, together with
counsel, to be heard before the Board) finding that, in the good
faith opinion of the Board, the Executive is guilty of the conduct
described in (i), (ii), (iii), or (iv) above, and specifying the
particulars thereof in detail.
B. Other Benefits. During the Term, the Executive shall be entitled
to participate in or receive benefits under all employee benefit plans,
arrangements and perquisites made available by the Company now or in the future
to its executives and key management employees, subject to and on a basis
consistent with the terms conditions and overall administration of such plans,
arrangements and perquisites. Without limiting the foregoing, the Company agrees
to pay Executive's initiation fee and monthly dues to the Delaware Country Club
so long as Executive utilizes such membership primarily in furtherance of his
duties under this Agreement. In addition, the Company agrees to provide the
Executive with a company vehicle with a value up to $36,000.00 (Thirty-Six
Thousand and No/100 Dollars). Use of the vehicle and other conditions are
subject to the Company Vehicle Policy. The Executive shall be provided a copy of
the Vehicle Policy prior to the Effective Date. Nothing paid to the Executive
under any plan, arrangement or perquisite presently in effect or made available
in the future shall be deemed to be in lieu of the salary and other compensation
payable to the Executive pursuant to this Section 4.
In addition to the benefits that Executive shall be entitled to
participate in or receive benefits under, Company shall continue to carry
Executive's life insurance policy in the amount of $600,000.00 (Six Hundred
Thousand and No/Dollars) for which Company shall pay all policy premium amounts
during the Term subject to a refund to the Company of the total dollar premium
paid over the life of the policy upon Executive's employment with the Company
during the Term. At such times as shall be necessary and in accordance with the
Target's past practices, the Company shall also pay to the Executive an amount
to enable him to pay all federal, state or local income taxes incurred with
respect to such life insurance policy.
C. Vacation. The Executive shall be entitled to the number of
vacation days in each calendar year determined in accordance with the Company's
vacation plan or policy in effect from time to time for their executives
generally. The Executive shall also be entitled to all paid holidays given by
the Company to their executives.
D. Expenses. During the term of the Executive's employment hereunder,
the Executive shall be entitled to receive reimbursement for all reasonable and
customary expenses incurred by him in performing services hereunder, including
all expense of travel and living expenses while away from home on business or at
the request of and in the service of the Company; provided, that such expenses
are incurred and accounted for in accordance with the policies and procedures
established by the Company and approved by the Board.
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Section 5. Termination by the Company.
A. Subject to the respective continuing obligations of the parties,
including but not limited to those set forth in Sections 10, 11 and 12 hereof,
the Executive's employment under this Agreement may be terminated by the Company
upon thirty (30) days prior written notice to the Executive, with or without
Cause. For purposes of this Agreement, a "Notice of Termination" means a written
notice which (a) indicates the specific termination provision of this Agreement
relied upon, (b) sets forth the specific facts and circumstances (including
specific acts and omissions by the Executive) claimed to provide a basis for
termination of the Executive's employment under the provisions so indicated and
(c) specifies the Termination Date (as defined below).
B. Death. The Executive's employment shall terminate upon his death.
C. Termination Date. The effective date of the Executive's
termination from employment, whether for death or with or without cause, shall
be referred to as the "Termination Date" (which date shall not be less than 30
days after receipt of such Notice of Termination, though, in the event of
termination of employment by the Executive, the Company may set an earlier date
following the date of receipt of the Notice of Termination as the Termination
date).
Section 6. Termination by the Executive.
A. The Company shall provide Executive with the benefits set forth in
Section 7 if the Executive terminates his employment for any reason at anytime
following the Effective Date, provided appropriate Notice of Termination is
provided to the Company.
B. The Executive shall be required to give the Company a thirty (30)
day written notice of his intent to resign and to terminate this Agreement.
Section 7. Severance Benefits.
A. In the event of the termination of Executive's employment by the
Company with or without Cause, the Company shall pay the amounts and benefits
described in this Section 7 to the Executive and these payments shall constitute
liquidated damages and shall constitute full settlement of any claim under law
or in equity that he might otherwise assert against the Company with regard to
breach of this Agreement.
(1.) Executive shall be entitled to payment of any unpaid portion
of the Executive's base salary through the Term and to severance pay as
follows;
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(2.) The Company shall pay the Executive in accordance with the
Company's normal payroll practices at the time of termination. The
Company shall withhold from this and all other benefits payable under
this Agreement all federal, state, city, county or other taxes as shall
be required pursuant to any law or governmental regulation or ruling;
and
(3.) The Company shall cause to be nonforfeitable and vested in
the Executive's name all Incentive Compensation Awards (including
without limitation those awarded but unvested shares which are held in
the Executive's account in the Old National Bancorp Restricted Stock
Plan, including the shares awarded to the Executive but not yet earned
in the year in which the Executive's employment is terminated). In the
event the Old National Bancorp Restricted Stock Plan does not allow the
Company to treat such Restricted Stock Awards as nonforfeitable and/or
vested, the Company shall pay the Executive an amount of cash
compensation which is equivalent to the value of the Restricted Stock
that otherwise would have been payable to the Executive without those
Plan restrictions.
(4.) The Company shall pay to the Executive in a lump sum single
cash payment of all the amounts the Executive is entitled to receive
under the Company's Short Term Incentive Plan ("STIP") that are earned
but unpaid for the Company's fiscal year preceding the year of
termination and also for the year in which the Executive's employment
is terminated. For purposes of determining the STIP amount to be paid
to the Executive for the year in which Executive's employment is
terminated, the Company will use the Executive's then current
annualized salary multiplied by the greater of the following
percentages:
(a) The Executive's STIP percentage paid for the prior plan
year; or
(b) The Executive's projected STIP percentage as approved by
the Company's Compensation Committee at the time of the
Executive's "Termination Date".
(5.) In the event that Executive's employment with Company is
terminated, Executive shall receive a pro-rata share of any bonus under
the STIP to which Executive was duly entitled pursuant to this
Agreement.
(6.) The Executive's benefit under the Target's Supplement
Executive Retirement Plan and any successor plan shall become fully
vested.
B. Although the parties to this Agreement do not believe payments
made pursuant to Section 7, hereof would constitute "parachute payments" under
Section 280G of the Internal Revenue Code of 1986, as amended, in the event that
the Company receives a notice of deficiency or an opinion of
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counsel to the contrary, no payment shall be made to the Executive hereunder to
the extent such payment would constitute a nondeductible "excess parachute
payment" under Section 280G of the Internal Revenue Code of 1986, as amended, or
similar provisions then in effect. In the event of any question as to whether
any payments otherwise due hereunder constitute excess parachute payments, the
matter shall be determined jointly by the firm of certified public accountants
regularly employed by the Company and the firm of certified public accountants
selected by the Executive, in each case upon the advice of actuaries to the
extent the certified public accountants consider necessary, and, in the event
such accountants are unable to agree upon a resolution of the question, such
matter shall be determined by an independent firm of certified public
accountants selected by both firms of accountants.
Section 8. Mitigation.
The Executive shall not be required to mitigate the amount of any
payments provided for in Section 7 by seeking other employment or otherwise, nor
shall the amount of any payment provided for in Section 7 be reduced by any
compensation earned by the Executive as a result of employment by another
employer after the Date of Termination, or otherwise.
Section 9. Covenant Not to Solicit Company's Customers and Employees.
A. The Executive hereby understands and acknowledges that, by virtue
of his position with the Company, he will have advantageous familiarity and
personal contacts with the Company's customers, wherever located, and the
business, operations and affairs of the Company. Accordingly, while the
Executive is employed by the Company, and at all locations for a period of one
(1) year after termination of the Executive's employment with the Company for
any reason (whether with or without cause or whether by the Company or the
Executive) or the expiration of the Term, the Executive shall not, directly or
indirectly, or individually or jointly, (i) solicit in any manner, seek to
obtain or service the business of any party which is a customer of the Company
at the time of such termination or any party which was a former customer or a
prospective customer of the Company during the one (1) year period immediately
preceding such termination, (ii) request or advise any customers or suppliers of
the Company to terminate, reduce, limit or change their business or relationship
with the Company, or (iii) induce, request or attempt to influence any employee
of the Company to terminate his employment with the Company.
B. For purposes of this Agreement, the term "solicit" means any
direct or indirect communication of any kind whatsoever, regardless of by whom
initiated, inviting, advising, encouraging or requesting any person or equity,
in any manner, to take or refrain from taking any action.
Section 10. Covenant Not to Compete or be Employed by Competitors.
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The Executive hereby understands and acknowledges that, by virtue of
his position with the Company, he will have advantageous familiarity and
personal contacts with the Company's customers, wherever located, and the
business, operations and affairs of the Company. Executive also acknowledges and
understands that prior to, during and after the Effective Date, Company and its
affiliates have a significant customer base in the following locations: (i)
Muncie, Indiana; (ii) Delaware County, Indiana and those counties contiguous to
Delaware County, Indiana; (iii) numerous cities and counties throughout the
State of Indiana; and (iv) counties in those states other than Indiana in which
the Company or Company's affiliates are located or will be located or have
offices. Accordingly, while the Executive is employed by the Company and within:
(1.) Muncie, Indiana;
(2.) Delaware County, Indiana, and counties contiguous to Delaware
County, Indiana;
(3.) the State of Indiana; and
(4.) counties in states other than Indiana in which the Company or
Company's affiliates are located or will be located or have offices.
for a period of one (1) year after termination of the Executive's employment
with the Company for any reason (whether with or without cause, or whether by
the Company or the Executive) or the expiration of the Term, the Executive shall
not, directly or indirectly, or individually or jointly, as owner, shareholder,
member, investor, partner, proprietor, principal, director, officer, employee,
agent, representative, consultant or otherwise, engage in, assist another party
in engaging in or provide services to any party engaging in any business,
operation or venture that competes with the business of the Company as conducted
at any time during the Executive's employment by the Company.
Section 11. Confidentiality and Company Records.
A. The Executive agrees not directly or indirectly to disclose, to
any person, firm, company or corporation either while in the Company's employ or
at any time thereafter, to any person, firm, company or corporation not employed
by the Company, or not engaged to render service to the Company, any
confidential information obtained by him while in the employ of the Company,
including, without limitation, any of the Company's policies, plans, procedures,
customers or trade secrets; provided, however, that this provision shall not
preclude the Executive from use or disclosure of information known generally to
the public or of information not considered confidential by persons engaged in
the business conducted by the Company or from disclosure required by law or
Court order.
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B. The Executive agrees that all records and copies of the records
pertaining to the financial affairs, operations, customers and business of the
Company and their affiliates, subsidiaries and division, including, but not
limited to, customer lists and trade secrets, that are made or received by the
Executive in the course of his employment by the Company shall be the property
of the Company, and agrees to keep such documents subject to the Company's
custody and control and to surrender to the Company such of those documents as
are still in his possession at the termination of his employment. The Executive
agrees not to disclose or give possession of such documents or records to anyone
except authorized representatives of the Company. The Executive further agrees
to return to the Company, at the Company's Muncie office, any and all such
documents or records and other property of the Company promptly upon termination
of his employment.
Section 12. Effect and Modification.
This Agreement comprises the entire agreement between the parties with
respect to the subject matter hereof and supersedes all earlier agreements
relating to the subject matter hereof; provided that this Agreement is not
intended to and shall not be deemed to be in lieu of any rights, benefits, and
privileges to which the Executive may be entitled as an Executive of the Company
under any retirement, pension, profit sharing, stock ownership, stock option,
insurance, or hospital plan, or other plans, benefits, programs, and policies
which may now be in effect or which may hereafter be adopted. It is understood
that the Executive shall have the same rights and privileges to participate in
such plans, benefits, programs, and policies as any other executive during his
period of employment. No statement or promise, except as herein set forth, has
been made with respect to the subject matter of this Agreement. The headings of
the individual sections herein are for convenience only and shall not be deemed
to be a substantive part of this Agreement. No modification or amendment hereof
shall be effective unless in writing and signed by the Executive and the
Company.
Section 13. Non-Waiver.
The failure or refusal of either party to enforce all or any part of,
or the waiver by either party of any breach of this Agreement shall not be a
waiver of that party's continuing or subsequent rights under this Agreement, nor
shall such failure or refusal or waiver have any effect upon the subsequent
enforceability of this Agreement.
Section 14. Governing Law
This Agreement is being delivered in and shall be governed by the laws
of the State of Indiana without respect to its conflict of laws provisions.
Section 15. Notice
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Any notice, request, instruction, or other document to be given
hereunder to any party shall be in writing and delivered by hand, telegram,
facsimile transmission, registered or certified United States mail, return
receipt requested, or other form of receipted delivery, with all expenses of
delivery prepaid, as follows:
If to Executive: If to Company:
Xxxxx X. Xxxxxxxxxxxx Old National Bancorp
201 North Timber Xxxxx Xxxxx Xxxx Xxxxxx Xxx 000
Xxxxxx, Xxxxxxx 00000-0000 Xxxxxxxxxx, Xxxxxxx 00000
ATTENTION: Chief Executive Officer
Section 16. Indemnification.
The Company shall indemnify Executive for acts and omissions occurring
while he is employed (and to any Company affiliate to which Executive has
provided services during the Term of the Agreement) hereunder to the fullest
extent permitted under the Articles of Incorporation and By-Laws of the Company.
Section 17. Survival of Severance Provisions.
The provisions of Sections 5(C), 7, 10, 11, 12 and 20 hereof shall
survive the termination or expiration of this Agreement. Moreover, this
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
agreement.
Section 18. Assignment.
This Agreement is personal in nature and neither party hereto shall,
without consent of the other, assign or transfer this Agreement or any rights or
obligations hereunder except as provided herein. Without limiting the foregoing,
Executive's right to receive compensation hereunder shall not be assignable or
transferable, whether by pledge, creation or a security interest or otherwise,
other than a transfer by his will or by the laws of dissent, and in the event of
any attempted assignment or transfer contrary to this Section, Company shall
have no liability to pay any amounts so attempted to be assigned or transferred.
This Agreement may be assigned to a subsidiary of the Company. The Company shall
guarantee obligations of such subsidiary hereunder.
Section 19. Severability. All provisions of this Agreement are
severable from one another, and the unenforceability or invalidity of any
provision of this Agreement shall not affect the validity or
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enforceability of the remaining provisions of this Agreement; provided, however,
that should any judicial body interpreting this Agreement deem any provision to
be unreasonably broad in time, territory, scope or otherwise, the parties intend
for the judicial body, to the greatest extent possible, to reduce the breadth of
the provision to the maximum legally allowable parameters rather than deeming
such provision totally unenforceable or invalid.
Section 20. Termination of the ANB Employment Agreement. (a) The Target
and the Executive agree that the ANB Employment Agreement shall be automatically
terminated in its entirety (without the need for any further action, writing or
notice by the Target, the Company or the Executive) immediately following the
Effective Time and that following the Effective Time, the Target, the Company
and the Executive shall not have any obligation under the ANB Employment
Agreement. In the event that the Merger Agreement is terminated as provided
therein, then this Agreement shall also automatically terminate as of the same
time that the Merger Agreement has been terminated.
(b) The termination of the ANB Employment Agreement pursuant hereto
shall not be deemed a termination by the Target, the Company or the Executive of
the Executive's employment under the ANB Employment Agreement for a reason other
than death, retirement or Cause (as defined in the ANB Employment Agreement), a
termination by the Executive of the Executive's employment under the ANB
Employment Agreement for an Unreasonable Cause (as defined in the ANB Employment
Agreement) or otherwise. Accordingly, the Executive hereby waives any right to
payment or benefits under the ANB Employment Agreement upon termination of such
agreement as provided in this Section 20.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
EXECUTIVE
/s/ XXXXX X. XXXXXXXXXXXX
--------------------------------
Xxxxx X. Xxxxxxxxxxxx
OLD NATIONAL BANCORP
/s/ XXXXX X. XXXXXXXX
--------------------------------
Xxxxx X. Xxxxxxxx, Chairman and
Chief Executive Officer
