EMPLOYMENT AGREEMENT
Exhibit
99.1
THIS EMPLOYMENT AGREEMENT (the
“Agreement”) is entered into as of the 23th day of November, 2009, by and
between TOWER FINANCIAL
CORPORATION, an Indiana corporation (the “Company”) and XXXXXXX X. XXXXXX, a resident
of Xxxxx County, Indiana (the “Employee”) and supersedes and replaces all prior
employment agreements between the parties, or any amendments
thereto.
WHEREAS, the Company is in the
business of operating a bank and financial services holding company and,
directly or through subsidiary entities, operates or may operate various
banking, trust company and other permitted businesses;
WHEREAS, Company wishes to
employ Employee, and Employee wishes to be employed by the Company, under the
following terms and conditions,
NOW, THEREFORE, for and in
consideration of the foregoing recitals and of the mutual covenants and
agreements set forth herein, the parties, intending to be legally bound hereby,
agree as follows:
1. Employment. The
Company hereby employs Employee, for the Term set forth in Section 3, as
the Company’s President and Chief Executive Officer. Employee agrees
to accept such employment upon the terms and conditions set forth herein, and to
devote his full-time, attention and best efforts to the performance of his
duties, as more fully described below.
2. Duties. During the
Term, Employee’s duties (“Duties”) shall consist of those Duties as are
consistent with the position of President and Chief Executive Officer, or such
other duties, for and on behalf of the Company or any of its affiliates, with
executive responsibilities commensurate with a position generally similar to
that described in Section 1, as may from time to time be assigned to him by
the Company’s Board of Directors. Employee’s Duties also include or may include,
without limitation, serving as an officer, director or employee of one or more
Company subsidiaries or affiliates.
Employee
agrees that any programs, financial or other products, software, systems or
other intellectual property that may be developed by the Company, with or
without Employee’s participation and assistance, and whether or not within the
scope of Employee’s Duties hereunder, shall be deemed to constitute works for
hire belonging to the Company, and, in all events, shall be and remain the
Company’s exclusive property; and Employee shall not assert (and hereby
relinquishes) any rights or claims therein or thereto.
3. Term. Subject to
the provisions of Sections 3(a) through 3(c) and unless otherwise extended as
provided herein, the term of this Agreement (the “Term”) shall commence on November
23, 2009 (the “Effective Date”) and shall extend through
December 31, 2010.
(a) If,
prior to September 1, 2010, the Company fails to notify Employee that it
wishes to either extend this Agreement for an additional period or,
alternatively, enter into a new agreement with Employee, in either case, subject
to Employee’s concurrence, as contemplated by Section 3(b), this Agreement
will in fact terminate as specified herein, subject, however, to the Company’s
obligation to pay Employee the Severance Amount described in
Section 6(f).
(b) In
the event that, prior to September 1, 2010, the Company has timely notified
Employee of its wish to either extend this Agreement for an additional period
or, alternatively, enter into a new agreement with Employee, but on or prior to
the thirtieth (30th) day
after Employee’s receipt of such notification, the parties have not either
extended this Agreement, by a written instrument setting forth the terms
thereof, or entered into a new written employment agreement, this Agreement
shall likewise be deemed to have been terminated as specified herein, subject,
however, to the Company’s obligation to pay Employee the same Severance Amount
described in Section 6(f).
(c) If,
during the Term, and without Cause as defined in Section 6(c), the Company
terminates the Agreement, Employee will be entitled either to the Severance
Amount described in Section 6(e), or, if applicable the Change in Control
Payment described in Section 6(g)(i), but not both.
Following
the Term, any continued employment, unless pursuant to another written
employment agreement, if any, shall be on an at-will basis, subject to such
terms and conditions as the parties may mutually agree in writing.
4. Compensation.
(a) Base
Salary. During the Term,
and unless otherwise mutually agreed in writing during the Term, Employee will
receive an annual base salary of $180,000
(the “Base Salary”), payable in accordance with the Company’s normal payroll
practices in effect from time to time. Such Base Salary shall be
subject to periodic review, and may be increased, but not decreased, from time
to time at the Board of Director’s sole discretion upon the recommendation of
the Company’s Compensation Committee.
(b) Bonus. During the Term,
and unless otherwise mutually agreed in writing, Employee will be eligible to
receive a bonus at such times and in such amounts, if any, as the Company’s
Board of Directors, on the recommendation of its Compensation Committee, may
determine, in the exercise of its sole and exclusive discretion. Any
such bonus compensation may be either, in whole or in part, performance based,
consistent with the requirements of Section 162 of the Internal Revenue
Code of 1986, as amended, or discretionary, and may be based upon the provisions
of any applicable incentive plan or upon the recommendation of its Compensation
Committee, in recognition of Employee’s performance of his Duties in an
extraordinary manner deserving of additional compensation. Nothing in this
Agreement, however, shall limit the Board’s discretion to adopt, amend or
terminate any performance-based or any other bonus plan.
(c) Stock Options;
Restricted Stock. During the Term,
Employee shall be eligible to participate in such other stock option, restricted
stock or other equity-based incentive plans, including any plans contemplating
the potential grant of incentive stock options, non-qualified stock options,
restricted stock, or various other equity based awards, that may be adopted by
the Company from time to time; provided, however, that nothing herein
shall be deemed to entitle Employee to any specific benefit grant or award (any
such grant or award to be solely discretionary with the Board, upon the
recommendation of the Compensation Committee) or to limit the Board’s discretion
to adopt, amend or terminate any plan or program.
(d) Other Benefit
Plans. The Company
agrees that, if otherwise eligible, Employee will be covered by or will be
entitled to participate in any vacation programs, 401(k) plans or programs,
disability or life insurance plans or programs, medical and/or hospitalization
plans, and/or in any and all other benefit plans which may be adopted from time
to time by the Company during the Term, for the general benefit of the Company’s
senior executives. Nothing herein, however, shall limit the Company’s
ability to exercise the discretion provided to it under any such benefit plan,
or otherwise in its discretion to adopt, amend or terminate any such benefit
plan or program.
(e) Business
Expenses. The Company shall
reimburse Employee for all ordinary and necessary business-related expenses
incurred by him while carrying out his employment responsibilities
hereunder. Such reimbursement shall be in accordance with the
Company’s policies and practices regarding the types or amounts of business
expenses for which Employee may be entitled to reimbursement hereunder,
including any required pre-authorizations, and to establish policies regarding
such reimbursements.
5. Agreement to Maintain
Confidentiality.
(a) Without
the Company’s prior consent, Employee shall not divulge any confidential
business information, and he agrees and covenants that all confidential business
information regarding the Company’s business practices and processes, its
marketing plans and methods, its operations analyses and software, customer and
client lists and identities, however developed or generated, as well as
information concerning customer preferences and current or prospective business
opportunities, its financial and budgetary information, business development
ideas and strategies, and its other trade information, trade secrets, know-how,
and other information regarding the Company’s affairs (“Confidential Business
Information”) has been and will continue to be received and held by Employee in
the strictest confidence. Employee agrees not to divulge to any other
person or use for his personal benefit or for the benefit of any other person,
any such Confidential Business Information, except insofar as that person has a
need to know such Confidential Business Information in the ordinary course of
the Company’s business and for its benefit. Employee further agrees
that, upon expiration of the Term, or upon earlier termination of the Agreement,
regardless of reason or by whom terminated, he will not exploit and will
surrender to the Company any and all documents, records and rights, in whatever
form, that may be in his possession or control containing any such Confidential
Business Information, as well as any and all other property that may belong to
the Company, including, without limitation, computer hardware and software,
pagers, PDAs, Blackberries, cell phones and other electronic equipment, notes,
reports, studies and all electronically stored information.
(b) For
purposes of this Agreement, information shall not be deemed to constitute
“Confidential Business Information” to the extent that the information (i) is in
the public domain, or hereafter becomes generally known or available outside the
Company through no action or omission on the part of Employee in violation of
this Agreement, (ii) is furnished to any person by the Company without
restriction on disclosure, (iii) becomes known to Employee from a source other
than the Company, without a breach of any obligation hereunder, (iv) is required
to be disclosed by law (in which case Employee will give prompt written notice
to the Company of any such required disclosure to the extent such notice would
not be prohibited by law), or (v) is disclosed after written approval for
disclosure has been granted by the Company.
(c) The
provisions of this Section 5 shall survive the termination of this
Agreement, whether by expiration of the Term or the earlier termination of this
Agreement.
6. Termination of
Employment. For all purposes hereunder, the phrase
“termination of employment” or any formulation thereof shall mean a complete
separation from service as defined in IRC 409A and the regulations and guidance
issued pursuant thereto.
(a) Termination Due
to Death. Employee’s employment with the Company will
automatically terminate immediately upon his death, and Employee’s estate or
designated beneficiary, in addition to any life insurance benefit payable to
Employee or his designated beneficiary, will be entitled to (i) any earned
but unpaid Base Salary to the date of termination, (ii) in the discretion of the
Board, upon the recommendation of the Compensation Committee, any pro rata
bonus
for the partial calendar year to the date of Employee’s death, and (iii) any
unpaid vacation and unreimbursed expenses payable hereunder. Unless
otherwise required, and subject to the provisions of Section 8(a), all payments
shall be made within 30 days of Employee’s termination of employment, except for
the pro rata bonus, which shall be paid within 2½ months of the end of the
fiscal year in which the termination occurred. Except for
the foregoing payment amounts, Employee shall be entitled to no other
compensation, benefits or payments.
(b) Termination Due
to Disability. If, during the Term, Employee suffers a “Disability” as
defined by one or more of the alternative definitions of disability set forth in
Section 409A of the Internal Revenue Code and the guidance and regulations
issued pursuant thereto, the Company, in the exercise of its sole discretion,
shall be entitled to terminate Employee’s employment hereunder, immediately upon
written notice to Employee of such decision, subject, however, to the payment to
Employee of (i) any earned but unpaid Base Salary, (ii) any pro rata
bonus
for the partial calendar year to the date of such notice, and (iii) unpaid
vacation and unreimbursed expenses payable hereunder. Unless otherwise
required, and subject to the provisions of Section 8(a), Employee’s employment
shall terminate and all payments shall be made within 30 days of Employee’s
receipt of written notice of termination of employment, except for any pro rata
bonus, which shall be paid within 2½ months of the end of the fiscal year in
which the termination occurred. Except for the
foregoing payment amounts, or any amounts payable to Employee under any Company
long-term disability plan, if any, Employee shall be entitled to no other
compensation, benefits or payments by reason of his
disability.
(c) Termination
by Company for
Cause. During the Term, the Company shall be
entitled to terminate Employee’s employment hereunder for “Cause,” as defined
below, by providing written notice to Employee of such decision. For
purposes of this Agreement, Cause shall mean (i) the commission by Employee of
an act of malfeasance, dishonesty, fraud or breach of trust against the Company
or any of its affiliates, employees, clients or vendors resulting or intended to
result in substantial gain or personal enrichment to which Employee was not
legally entitled; (ii) the continued non-performance or breach by Employee of
any of his material Duties or obligations hereunder, whether expressed in
writing or otherwise generally understood, after a written demand by the Company
for correction of such non-performance or breach is delivered to Employee, which
specifically identifies the non-performance and the manner in which the Company
asserts that Employee has not performed, and the continued non-performance
following the expiration of thirty (30) days of his receipt of such written
demand; or (iii) Employee’s indictment,
conviction of or plea of guilty or no contest to any felony or any crime
involving moral turpitude.
Upon
termination of this Agreement for Cause, the Company shall pay Employee any
earned but unpaid Base Salary to the date of termination, any earned and unpaid
vacation and any unreimbursed expenses otherwise payable hereunder; provided,
however, that nothing herein shall be deemed to preclude the Company from
asserting a damage claim, if any, against Employee by reason of circumstances
related to the termination for Cause. All such payments shall be made
within 30 days of Employee’s termination of employment. Except for
the foregoing payment amounts, Employee shall be entitled to no other
compensation, benefits or payments by reason of his termination of employment
for cause.
(d) Termination by
Employee During the Term. Employee may voluntarily terminate his employment with the Company, without reason, at any time during the Term, and, if so terminated, but subject in any event to the
provisions of Section 6(g)(ii) if there has been a “Change in Control,” as
defined therein, he shall be entitled to (i) any earned but unpaid Base Salary
to the date of termination, (ii) in the discretion of the Board, upon the
recommendation of the Compensation Committee, any pro rata bonus for the
partial calendar year to the date of termination, and (iii) any earned and
unpaid vacation and unreimbursed expenses otherwise payable hereunder.
Unless otherwise required, and subject to the provisions of Section 8(a), all
payments required to be made by the reason of this Section 6(d) shall be
made within 30 days of Employee’s termination of employment, except for any pro
rata bonus, which, if awarded, shall be paid within 2½ months of the end of the
fiscal year in which the termination occurred. Except for the foregoing payment amounts,
and, if applicable, any amounts to which Employee may be entitled under the
provisions of Section 6(g), Employee shall be entitled to no other
compensation, benefits or payments by reason of Employee’s voluntary termination
of employment.
(e) Termination by
Company Without Cause. If, during the
Term, the Company terminates this Agreement and Employee’s employment hereunder,
without Cause as defined in Section 6(c), Employee shall be entitled to
receive any earned but unpaid Base Salary to the date of termination, any earned
and unpaid vacation and unreimbursed expenses otherwise payable hereunder,
twelve months of COBRA coverage (while employee remains eligible) paid for by
the Company, and, in addition, as liquidated damages or as a severance payment
(the “Severance Amount”), the greater of (i) Employee’s Base Salary, pro rated
monthly, multiplied by the number of months, or portion thereof, remaining to
the expiration of the Term, or (ii) twelve (12) months Base Salary, in either
case payable in a lump sum, in cash and without discount, within thirty (30)
days of termination, subject, in the case of the Severance Amount, however, to
the following limitations:
For
purposes of Sections 6(e) through 6(g), if Employee is a “Specified Employee” at
the time of his separation from service, payment of the Severance Amount
described in this Section 6(e), the Post-Employment Payment described in
Section 6(f), or the Change in Control Payment described in
Sections 6(g)(i)(A) or 6(g)(ii)(A), shall be delayed for six (6) months
after the date of the separation from service, if required by Section 409A of
the Internal Revenue Code and the guidance and regulations thereunder (the
“Delayed Payment Period”). After such six month delay, the required lump sum
Severance Amount shall promptly thereafter be paid to Employee.
The term
“Specified Employee” shall mean a key employee as defined in Section 416(i)
of the Internal Revenue Code, without regard to Paragraph (5) thereof,
determined as of December 31 of the calendar year preceding the year in
which the separation from service occurs.
In the
event that, during the Delayed Payment Period, Employee is found to have been in
violation of his covenants and obligations described in Section 7(a), the
Company shall not be required to pay Employee such Severance Amount,
Post-Employment Payment or Change in Control Payment, as the case may be. In the
further event that, even after having received all or any portion of such
payment, Employee is found to have been in breach of his covenants and
obligations pursuant to Section 7(a), whether prior to the receipt of or
after having received such payment, then the Company shall be entitled, through
institution of legal proceedings, to recover such payment, from Employee, in
addition to any and all other remedies to which the Company may be entitled by
reason of such breach, including the remedy set forth in
Section 7(b).
Furthermore,
if Employee’s employment is terminated hereunder by the Company without Cause,
all unvested stock options or shares of restricted stock held by Employee shall
be deemed fully vested, effective as of the date of termination; provided that all vested
stock options shall continue to be exercisable by Employee, subject, however, to
the provisions of the particular Company plan or program pursuant to which the
stock options were granted and to the terms of the actual stock option agreement
and option, only during the ninety (90) day period following Employee’s
separation from service.
Except
for the foregoing payment amounts, and provisions regarding stock options and
restricted stock, Employee shall be entitled to no other compensation, benefits
or payments by reason of his termination without Cause.
(f) Non-Extension. If, as
contemplated by the provisions of Sections 3(a) and 3(b), either the
Company fails to timely notify Employee that it wishes to extend this Agreement
for an additional period or, alternatively, enter into a new agreement with
Employee, or even if the Company has timely so notified Employee, the parties
have, nonetheless, failed to enter into an extension agreement or a new
employment agreement within the time specified in Section 3(b), then, in
addition to Employee’s entitlement to continue to be paid all compensation and
benefits as prescribed under the provisions of Section 4 for the balance of
the Term, during which time he shall continue to render services to the Company
as contemplated by this Agreement, Employee shall also be entitled to receive a
post-employment payment (the “Post-Employment Payment”), equal to the sum of
Employee’s Base Salary, pro rated on a monthly basis, multiplied by nine (9)
months, payable in a lump sum, in cash and without discount, within thirty (30)
days of his separation from service, subject, however, to the Delayed Payment
Period limitations described in Section 6(e), if applicable. In addition,
all unvested stock options and shares of restricted stock, if any, then held by
Employee shall fully vest, as of the date of separation from service; provided that all vested
stock options shall be exercisable by Employee, subject in any event to the
provisions of the particular Company plan or program pursuant to which the stock
options were granted and to the terms of the actual stock option agreement and
option, only during the ninety (90) day period following separation from
service, and Employee shall also be entitled to receive twelve months of COBRA
coverage (while Employee remains eligible) paid for by the Company.
(g) Change in
Control. In the event that a change in control occurs, as
defined in Section 409A of the Internal Revenue Code and the guidance and
regulations issued thereunder (a “Change in Control”), then:
(i) If,
during the Term, and within three (3) months before or twelve (12) months after
such a Change in Control, Employee’s employment is terminated by the Company,
without Cause as defined in Section 6(c), Employee shall thereupon be
entitled,
(A) to
receive a “Change in Control Payment” equal to the amount described in
Section 6(e), payable in the manner and subject to the Delayed Payment
Period described therein;
(B) to
receive twelve months of COBRA coverage (while employee remains eligible) paid
for by the Company, and
(C) to have all unvested stock options and shares of
restricted stock, if any, then held by Employee fully vest, as of the date of
separation from service; provided that all vested stock options shall be exercisable by
Employee, subject in any event to the provisions of the particular Company plan
or program pursuant to which the stock options were granted and to the terms of
the actual stock option agreement and option, only during the ninety (90) day
period following separation from service.
(ii) If
within three (3) months before or twelve (12) months after such a Change in
Control, Employee’s compensation or his functional responsibilities are
materially reduced, Employee may in such event, by written notice, elect to
voluntarily terminate his employment, and Employee shall thereupon be entitled,
in lieu of any payments to which he might otherwise be entitled by reason of the
application of Section 6(d):
(A) to
receive a Change in Control Payment equal to the amount described in
Section 6(e), payable in the manner and subject to the Delayed Payment
Period described therein;
(B) to
receive twelve months of COBRA coverage (while employee remains eligible) paid
for by the Company, and
(C) to have all unvested stock options and shares of
restricted stock, if any, then held by Employee fully vest, as of the date of
separation from service; provided that all vested stock options shall be exercisable by
Employee, subject in any event to the provisions of the particular Company plan
or program pursuant to which the stock options were granted and to the terms of
the actual stock option agreement and option, only during the ninety (90) day
period following separation from service.
7. Non-Competition
and Non-Solicitation.
(a) Non-Competition. The Employee
agrees that, during the Term, and for a period of twelve (12) months immediately
following the earlier to occur of the expiration of the Term or actual
termination of Employee’s employment hereunder, for whatever reason and by
whomever initiated, and whether or not the Employee is entitled to continue to
receive compensation hereunder, he will not, directly or indirectly, anywhere
within a fifty (50) mile radius of the Xxxxx County Courthouse in Fort Xxxxx,
Indiana, whether as an individual or sole proprietor or as owner, partner,
principal, stockholder, officer, director, manager, agent, consultant or
advisor, or by or through the lending of any other form of assistance, engage in
any business offering products or services the same as or competitive with the
products or services that, during the Term, are (or are in the process of being)
offered or supplied by the Company or its subsidiaries,. For purposes
of this restriction, which the Employee agrees is reasonable and tailored
specifically to protect the legitimate business interests of the Company and its
subsidiaries, while not restricting the Employee’s ability to engage in the same
or similar businesses outside the restricted area, a passive investment in an
enterprise that is competitive with the Company, without more, in an amount not
exceeding two percent (2%) of the equity interest in such entity, shall not be
deemed a violation of this provision.
(b) Non-Solicitation. Employee agrees
that, during the Term, and for a period of twelve (12) months immediately following the earlier to occur of the
expiration of the Term, or the earlier termination of Employee’s employment
hereunder, for whatever reason and by whomever initiated, and whether or not Employee is entitled to continue to
receive compensation hereunder, he will not, directly or indirectly (i)
solicit, take away, hire, employ or endeavor to employ any person employed by
the Company, or (ii) solicit, take away or attempt to take away any of the
existing or prospective customers or clients, vendors or licensors of the
Company or any of its subsidiaries (as of the date of expiration or actual
termination of employment, whichever is later), whether for the purpose of
conducting any business which directly or indirectly provides banking, financial
or other services similar in nature to the services provided by the Company or
any of its subsidiaries, or otherwise. As used herein, the term “prospective
customers or clients” shall include persons or entities with whom the Company or
its subsidiaries have been in contact within the previous twelve (12) months for
the purpose of establishing or conducting a business relationship.
(c) Specific
Enforcement.
(i) Employee
acknowledges that any violation of any provision of Section 7(a) or Section
7(b) by him will cause irreparable damage to the Company, that such damage will
be incapable of precise measurement, and that, as a result, the Company will not
have an adequate remedy at law to redress the harm which such violation will
cause. Therefore, in the event of any violation of any provision of
Section 7(a) or Section 7(b) by Employee, Employee agrees that, in addition
to all other remedies that the Company or any of its subsidiaries may have at
law or in equity, including the right to discontinue paying any further
compensation hereunder, or the right to xxx for damages, the Company shall be
entitled to injunctive relief, including, without limitation, the right to
obtain a temporary restraining order and a temporary injunction to restrain any
such violation. In such event, the Company shall not be required to post a bond
in excess of the minimum bond required under the civil rules of the court having
jurisdiction over the controversy.
(ii) In
the event that a court shall find that Employee has violated any of the
restrictions set forth in Section 7(a) or Section 7(b), then the period of
the restrictions set forth herein shall automatically be extended by the number
of days that the court determined Employee to have been in violation of such
restriction. Furthermore, in addition to any other relief to which
the Company shall be entitled, the Company shall be entitled to recover from
Employee its reasonable costs and attorney fees incurred by the Company in
seeking enforcement of these provisions.
8. Miscellaneous.
(a) Special Provision
Regarding Section 409A of the Internal Revenue Code. This Agreement is intended to comply with
the applicable requirements of IRC Section 409A and shall be limited, construed,
and interpreted in accordance with such intent (including final regulations or
any other guidance). Notwithstanding anything hereunder to the contrary, any
provision of the Agreement that is inconsistent with said Section 409A shall be
deemed to be amended to comply with IRC Section 409A and to the extent such
provision cannot be amended to comply with IRC Section 409A, such provision
shall be null and void.
(b) Other
Rights. This Agreement shall not prevent or limit
Employee’s continuing or future participation in any benefit, bonus, incentive
or other plans, if any, provided by the Company or any of its subsidiaries and
for which Employee may qualify, nor shall this Agreement limit or otherwise
affect such rights as Employee has under any other agreements with the Company
or any of its subsidiaries. Amounts which are vested benefits or
which Employee is otherwise entitled to receive under the terms of any plan of
the Company or any of its subsidiaries and any other payment or benefit required
by law at or after termination of employment shall be payable in accordance with
such plan or applicable law, except as specifically provided by this Agreement.
(c) Entire Agreement;
Amendments. This Agreement
discharges and cancels all previous and contemporaneous agreements, both written
and oral, between Employee and the Company. This Agreement
constitutes the entire agreement between the parties with respect to the subject
matter hereof. No agreements, representations or statements of any
party not contained herein shall be binding on either party, and no amendment or
variation of the terms and conditions of this Agreement shall be valid unless in
writing and signed by both parties.
(d) Assignability;
Successors of the Company.
(i) This
Agreement and the rights and duties created hereunder shall not be assignable or
delegable by Employee. The Company may, at its option and without
Employee’s consent, assign its rights and duties hereunder to any successor
entity, Company affiliate or subsidiary, or any transferee of the Company’s
assets.
(ii) The
Agreement will be binding upon and inure to the benefit of the Company, Employee
and their respective heirs, representatives and successors. The
Company will 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. As used
in this Agreement, the term “Company” means the Company as hereinbefore defined
and any successor to its business and/or assets which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
(e) No
Waiver. No failure or
delay by any party to this Agreement to enforce any rights specified hereunder
shall operate as a waiver of such right, nor will any single or partial exercise
of a right preclude any further or later enforcement of the same right within
the period of the applicable statute of limitations.
(f) Governing
Law. This Agreement
and the performance of the parties under this Agreement shall be construed in
accordance with the laws of the State of Indiana, regardless of the jurisdiction
in which the action or proceeding may be commenced.
(g) Notices. All notices and
other communications provided for or contemplated by this Agreement shall be in
writing and shall be deemed to have been duly given when delivered and received
by the other party, or when sent by recognized overnight courier, or by faxed
communication (with overnight delivery of a hard copy thereof) to the following
addresses and/or contact numbers:
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If
to the Company:
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Tower
Financial Corporation
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Attn: Xxxxxxx
X. Xxxxxx, CFO
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000
Xxxx Xxxxx Xxxxxx
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Xxxx
Xxxxx, XX 00000
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If
to Employee:
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Xxxxxxx
X. Xxxxxx
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0000
Xxxxxxxxxx Xxxx
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Xxxx
Xxxxx, XX 00000
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or to
such other address or contact number as either party hereto will have furnished
to the other in writing in accordance with this Section 8, except that such
notice of change of address or contact number shall be effective only upon
receipt.
(h) Counterparts. This Agreement
may be exercised in any number of counterparts, each of which as so executed
shall be deemed to be an original, and such counterparts shall together be
deemed to constitute but one agreement.
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first above
written.
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TOWER
FINANCIAL CORPORATION
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By: /s/ Xxxxxxx X.
Xxxxxxx
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/s/ Xxxxxxx X. Xxxxxx
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Its:
Director – Chair of Compensation Committee
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Xxxxxxx
X. Xxxxxx
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Date: November
23, 2009
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Date: November
23, 2009
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