ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K
10.27 EMPLOYMENT AGREEMENT DATED MAY 10, 0000 XXXXXXX
XXXXXXXXXX AND XXXXXXX X. XXXXXX
THIS EMPLOYMENT AGREEMENT, executed and effective as of this 10th day
of May, 1999 ("Effective Date"), by and between XXXXXXX X. XXXXXX, residing at
00 Xxxxxxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxx 00000 ("Executive"), and METROBANK,
a financial institution organized under the laws of the State of Indiana with
its principal office located at 00000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxx;
WITNESSETH:
WHEREAS, MetroBank and the Executive desire to enter into an employment
relationship and to set forth the terms and conditions thereof in this
Agreement; and
WHEREAS, it is in the interests of MetroBank and the Executive to
provide certain protections to the Executive;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. General.
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(a) Duties and Responsibilities. MetroBank hereby agrees to employ the
Executive as its Executive Vice President/Commercial Lending, for the term of
one (1) year, as specified in Section 2. The Executive hereby accepts and agrees
to such employment and agrees to perform the duties customarily pertaining to
the offices in which he is employed and such other duties commensurate with such
offices as may be assigned to him by the Board of Directors of MetroBank
("Board"). The Executive shall faithfully, loyally and diligently devote his
best efforts and such business time and attention to the affairs of MetroBank as
is necessary to perform fully the duties and responsibilities of his offices,
all in accordance with the policies established, from time to time, by
MetroBank. The duties and responsibilities of the Executive shall be customary
and usual for an Executive Vice President/Commercial Lending of a financial
institution and shall include, without limitation, the development of a
commercial loan base for MetroBank primarily in the towns of Carmel and Fishers
and in central and northern Xxxxxx County, Indiana. The Executive agrees that he
shall be subject to the supervision and direction of the Board and the Chief
Executive Officer of MetroBank.
(b) Recommendation for Election as Director. MetroBank agrees that, at
the May 20, 1999 meeting of the Board of Directors of MetroBanCorp
("MetroBanCorp Board"), and thereafter during the term of the Executive's
employment hereunder, it shall recommend the Executive be elected to serve as a
member of the Board. Provided, however, the Executive agrees to resign as a
Director of MetroBank effective upon his Date of Termination, as defined in
Section 2(f).
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(c) Legal and Regulatory Compliance. The Executive agrees and covenants
that in the performance of his duties and responsibilities hereunder, he will
comply, and will use his best efforts to cause those employees of MetroBank
under his supervision to comply, in all respects, with all laws, rules and
regulations applicable to MetroBank and to the conduct of MetroBank's business.
2. Term and Termination.
---------------------
(a) Term. The term of employment hereunder for the Executive shall
commence on May 10, 1999 and shall continue for a term of twelve (12)
consecutive months, subject to renewal as provided in Section 6 (the "Term").
(b) Termination by MetroBank. At any time during the Term, MetroBank
shall have the right to terminate the Executive's employment (i) upon fifteen
(15) days' prior written notice, at any time after the Board has determined that
the Executive has failed to satisfactorily perform his duties and
responsibilities under this Agreement or is subject to termination under
MetroBank's established personnel policies; or (ii) upon such shorter notice as
the Board or the Chief Executive Officer of MetroBank determines in their
respective discretion required for the proper, safe and sound management of
MetroBank.
(c) Termination by Executive for Good Reason or Change in Control.
Notwithstanding the provisions of Section 2(b), the Executive shall have the
right to terminate his employment hereunder upon thirty (30) days' prior written
notice (i) for Good Reason, or (ii) at any time during the six (6) month period
commencing upon the occurrence of a Change in Control of MetroBank or
MetroBanCorp.
(i) Definition of Good Reason. For purposes of this
Agreement, "Good Reason" shall mean
------------------------- (A) any assignment of the
Executive to any duties inconsistent with his present
duties and responsibilities as Executive Vice
President/Commercial Lending of MetroBank or a change
in the Executive's present responsibilities without
his express written consent; (B) the failure of
MetroBank to elect the Executive as Executive Vice
President/Commercial Lending of MetroBank or any
removal of the Executive from or any failure to
re-elect the Executive to the office of Executive
Vice President/Commercial Lending or such other
office requiring the performance of duties of an
Executive Vice President of MetroBank, except in
connection with termination of the Executive's
employment pursuant to Section 2(b)(ii) or as a
result of his death or disability or by him other
than for Good Reason; (C) a reduction in the
Executive's Base Salary as in effect on the date
hereof or as the same may be increased from time to
time, or a reduction in the Executive's other
benefits; or (D) the failure of MetroBank to obtain
the assumption of the agreement to perform this
Agreement by any successor as contemplated in Section
14, regardless of the use of best efforts to obtain
such agreement.
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(ii) Definition of Change in Control. For purposes of
this Agreement, a "Change in Control of MetroBank or
MetroBanCorp" shall be deemed to have occurred if (A)
any "person" (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934
("Exchange Act")), other than MetroBank or
MetroBanCorp, or any "person" who on the date hereof
is a director or officer of MetroBank or MetroBanCorp
is or becomes the "beneficial owner" (as defined in
Rule 23d-3 under the Exchange Act), directly or
indirectly, of securities of MetroBank or
MetroBanCorp representing 20 percent (20%) or more of
the combined voting power of MetroBank's or
MetroBanCorp's then outstanding securities; or (B)
during any period of two (2) consecutive years during
the Term, individuals who, at the beginning of such
period, constitute the Board or the MetroBanCorp
Board cease for any reason to constitute at least a
majority thereof, unless the election of each
director who was not a director at the beginning of
such period has been approved in advance by directors
representing at least two-thirds of the directors
then in office who were directors at the beginning of
the period; or (C) MetroBank or MetroBanCorp merges,
consolidates or otherwise combines with or into any
"person" or sells all or substantially all of the
assets of MetroBank or MetroBanCorp to any "person"
as defined herein.
(d) Voluntary Termination by Executive. The Executive shall have the
right to terminate his employment hereunder, at any time and for any reason,
upon ninety (90) days' prior written notice.
(e) Notice of Termination. Any termination of the Executive's
employment by MetroBank or by the Executive shall be communicated by written
Notice of Termination to the other party. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which states the specific
termination provision in this Agreement relied upon and sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated.
(f) Date of Termination. For purposes of this Agreement, "Date of
Termination" shall mean (i) if the Executive's employment is terminated by his
death, the date of his death, (ii) if the Executive's employment is terminated
for any other reason, the date specified in the Notice of Termination; provided
that, if within thirty (30) days after any Notice of Termination is given, the
party receiving such Notice of Termination notify the other party that a dispute
exists concerning the termination, the Date of Termination shall be the date on
which the dispute is finally determined, either by mutual written agreement of
the parties, by a binding and final arbitration award or by a final judgment,
order or decree of a court of competent jurisdiction (the time for appeal
therefrom having expired and no appeal having been perfected).
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3. Compensation.
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(a) Base Salary. During the Term, MetroBank shall pay to the Executive
a base annual salary of not less than Ninety Thousand Dollars ($90,000.00)
payable in equal installments no less frequently than monthly ("Base Salary").
The Executive's performance and Base Salary will be reviewed by the President
and Chief Executive Officer at the end of each calendar year, with the first
such review to be conducted in December, 1999. From time to time, the Board, in
its sole discretion, may elect to increase (but not decrease) the Base Salary
based on such annual performance reviews. Provided, however, any such increase
shall be limited to cost-of-living adjustments. Provided, further, on a periodic
basis, as determined by MetroBank in its sole discretion, it shall review the
Executive's Base Salary with a view towards determining whether, based on local
and regional market conditions, the Base Salary, when considered with the
Executive's other compensation and benefits hereunder, should be increased.
(b) Signing Bonus. Upon the execution and delivery of this Agreement by
the Executive, MetroBank shall pay to him, in a single lump sum, a one-time
signing bonus of Twenty Thousand Dollars ($20,000.00). The parties acknowledge
and agree that such bonus is not for services performed by the Executive. If the
Executive's employment is terminated by MetroBank pursuant to Section 2(b) or by
the Executive pursuant to Section 2(d) within twelve (12) months from the date
hereof, the Executive shall repay the gross amount of such signing bonus to
MetroBank, without interest, in a single lump sum on or before the Executive's
Date of Termination.
(c) Loan to Executive. Upon the execution and delivery of this
Agreement by the Executive, MetroBanCorp shall loan to him Thirty Five Thousand
Dollars ($35,000.00) in accordance with the terms and conditions of the Term
Note attached hereto as Exhibit "A". It is noted that such terms and conditions
include the forgiveness of the full amount of the loan, including all accrued
interest thereon, if the Executive remains actively employed by MetroBank in the
capacity of Executive Vice President/Commercial Lending, or such other capacity
as may be specified by MetroBank throughout the period ended on the third
anniversary hereof. The forgiveness of the loan by MetroBanCorp shall be made on
a pro rata basis in accordance with the following schedule so long as the
Employee is actively employed on each of the following anniversaries of the
Effective Date:
Amount of Principal And
Date Accrued Interest Forgiven
---- -------------------------
First Anniversary of the Effective Date 1/3
Second Anniversary of the Effective Date 1/3
Third Anniversary of the Effective Date 1/3
Provided, however, if the Executive's employment is terminated pursuant
to Section 2(c) or on account of the Executive's death or total and permanent
disability (as such term is defined in MetroBank's long term disability plan in
effect on the Executive's Date of Termination) before the third anniversary of
the Effective Date, neither the Executive nor his estate shall be liable for
repayment of any portion of the loan. The repayment required by this Section
3(c) and
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the Term Note shall be made by the Executive, in a single lump sum, on or before
his Date of Termination.
(d) Management Bonus Program. During the term of his employment
hereunder, the Executive shall be entitled to participate, subject to the terms
and conditions thereof, in any bonus or other incentive program for executive
employees of MetroBank.
(e) Withholding Taxes. MetroBank shall have the right to deduct and
withhold from all compensation payable hereunder to the Executive all applicable
federal, state and local taxes and charges and social security taxes required to
be withheld.
4. Compensation Upon Termination.
-----------------------------
(a) Termination by Board. If the Executive's employment is terminated
by MetroBank pursuant to Section 2(b)(i), the Executive shall continue to
receive his compensation, as provided in Section 3, at the rate and intervals at
which it is then paid, for a period of six (6) months from the Executive's Date
of Termination; and, except as provided in Section 4(e), MetroBank shall have no
further obligations to the Executive under this Agreement.
(b) Termination by Board or by Executive Voluntarily. If the
Executive's employment is terminated by MetroBank pursuant to Section 2(b)(ii)
or if the Executive shall terminate his employment pursuant to Section 2(d),
MetroBank shall pay the Executive his Base Salary through the Date of
Termination at the rate in effect at the time Notice of Termination is given,
and MetroBank shall have no further obligations to the Executive under this
Agreement.
(c) Termination for Good Reason or Change in Control. If the
Executive's employment is terminated pursuant to Section 2(c), the following
shall apply:
(i) MetroBank shall pay the Executive his full Base
Salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given.
(ii) In lieu of any further salary and incentive
compensation payments to the Executive for periods
subsequent to the Date of Termination, MetroBank
shall pay to the Executive as liquidated damages, in
the Executive's sole discretion, on or before the
thirtieth (30th) day following the Date of
Termination, a lump sum cash amount equal to two (2)
times the Executive's Base Salary as in effect on the
Date of Termination. The Executive acknowledges and
agrees that payment in accordance with this Section
4(c)(ii) shall be deemed to constitute a full
settlement and discharge of any and all obligations
of MetroBank to the Executive arising out of his
employment by MetroBank and the termination thereof,
except for any vested rights the Executive may then
have under any of MetroBank's benefit plans.
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(iii) To the extent that any payment made to the Executive
pursuant to this Section 4 constitutes an "excess
parachute payment," as such term is defined in
Section 280G(b)(1) of the Internal Revenue Code of
1986, as amended ("Code"), MetroBank shall pay to
the Executive an amount equal to (x) divided by (y),
where (x) is the aggregate dollar amount of excise
taxes and any surtax the Executive becomes obligated
to pay on such "excess parachute payments" and (y) is
1- the maximum marginal federal income tax rate for
married individuals filing jointly applicable for the
year in which he receives the payment provided under
this Section 4, it being the intent of this Section 4
that, if the Executive incurs any such excise tax or
surtax with respect to the payments, such payments to
him shall be grossed up in full for such excise tax
and surtax, so that the amount he retains, after
paying all applicable federal income, surtaxes and
excise taxes due with respect to payments to him
under this Section 4, is the same as the amount he
would have retained if Section 280G of the Code and
any applicable surtax had not been applicable.
(d) No Requirement to Continue Employment. Nothing in this Section 4
shall be deemed to require the Executive to continue his active employment
hereunder after the termination thereof.
(e) Continuation of Coverage Under Benefit Plans. Unless the Executive
is terminated pursuant to Section 2(b)(ii) or terminates his employment pursuant
to Section 2(d), MetroBank shall, at the written request of the Executive,
maintain (or cause to be maintained) in full force and effect, for the continued
benefit of the Executive for a period of twelve (12) months after the Date of
Termination, all employee benefit plans and programs in which the Executive was
entitled to participate immediately prior to the Date of Termination, including,
without limitation, those benefits contemplated in Section 5; provided, that the
Executive's continued participation is possible under the general terms and
provisions of such plans and programs. In the event the Executive's
participation in any such plan or program is barred, MetroBank shall arrange to
provide the Executive with benefits substantially similar to those which the
Executive would otherwise have been entitled to receive under such plans and
programs.
(f) No Mitigation Required. The Executive shall not be required to
mitigate the amount of any payment provided for in Section 4(a) by seeking other
employment or otherwise; provided, that the obligations of MetroBank under
Section 4(a) shall be offset and deemed satisfied to the extent the Executive
receives any compensation or benefits from any other employer or any person to
whom or which the Executive is providing services as an independent contractor.
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5. Benefits.
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(a) Retirement and Welfare Benefits. During the Term, the Executive
shall be entitled to participate in any retirement, life, accident and health
insurance, hospitalization or any other plan or benefits generally available to
the executive officers of MetroBank, if and to the extent the Executive is
eligible to participate in accordance with the provisions of any such plan or
for such benefits; provided, however, that nothing herein shall be deemed to
require MetroBank to institute any, or any particular, plan or benefits.
(b) Stock Option Grants. MetroBank shall recommend to the Compensation
Committee of the MetroBanCorp Board that such committee make a grant to the
Executive, at its meeting on May 20, 1999, of options, in the form of "incentive
stock options" as described in Section 422 of the Code, to acquire six thousand
(6,000) shares of MetroBanCorp common stock. Such option shall be granted under
the 1994 Employees' Stock Option and Stock Appreciation Rights Plan of
MetroBanCorp and shall contain such terms and conditions as are customarily
included in stock options granted under such plan.
(c) Automobile. During the term of his employment hereunder, MetroBank
shall provide the Executive with an automobile allowance of Five Hundred
Twenty-Five Dollars ($525.00) per month. MetroBank shall also reimburse the
Executive for the cost of gasoline to operate such vehicle for business
purposes. At such time as is mutually agreed upon by MetroBank and the
Executive, MetroBank shall provide the Executive with a leased automobile of a
model which is mutually agreed upon by the parties but with a total monthly
lease cost which does not exceed Four Hundred Seventy-Five Dollars ($475.00).
MetroBank shall also reimburse the Executive for insurance and gasoline costs
with respect to such automobile. The Executive agrees to reimburse MetroBank in
accordance with its policies adopted from time to time for any personal use of
such automobile.
(d) Membership Dues. During the term of the Executive's employment
hereunder, MetroBank shall pay the membership dues associated with the
Executive's social and civic club memberships, subject to the prior approval of
MetroBank's Compensation Committee.
(e) Vacation. During the calendar year ended December 31, 1999, the
Executive shall be entitled to paid vacation calculated, on a pro rata basis
through December 31, 1999, based on three weeks' paid vacation for a full
calendar year. For calendar years commencing on and after January 1, 2000, the
Executive shall be entitled to paid vacation calculated, on a pro rata basis
through the Executive's Date of Termination, based on four weeks' paid vacation
for a full calendar year. All such vacation shall be taken in accordance with
MetroBank's policies as in effect from time to time.
6. Renewal. Provided this Agreement has not been terminated by either
party pursuant to Section 2, the Term shall automatically be renewed and
extended for additional periods of one (1) year upon confirmation by the Board,
expressed by its official minutes, of affirmative intention to extend the
Agreement according to its terms. Such confirming action shall be taken and
memorialized prior to the first and, thereafter, each succeeding, anniversary of
the Effective Date.
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7. Expenses. MetroBank shall pay to the Executive, or to the extent paid
in the first instance by the Executive, shall reimburse the Executive for,
travel and other expenses incident to the Executive's rendering of services
hereunder and properly incurred by the Executive, in accordance with such
policies as MetroBank may establish from time to time.
8. Insurance. MetroBank shall have the right to obtain insurance
policies against the death or disability of the Executive, in such amounts as
the Board deems appropriate, and to name itself as beneficiary under any such
policy. The Executive agrees to cooperate in the obtaining of any such insurance
and acknowledges and agrees that unless named as beneficiary under any such
policy, the Executive and anyone claiming by or through him, shall have no
interest in any proceeds or monies paid under any such policy.
9. Further Covenants of Executive. For purposes of this Section 9, the
term "Bank" includes any direct or indirect parent or subsidiary of MetroBank,
including MetroBanCorp.
(a) Noncompete and Nonsolicitation. If this Agreement is terminated
pursuant to Section 2(d), the Executive shall not, directly or indirectly, on
his own behalf or on behalf of any other person, corporation or other business
entity, for a period of one (1) year from the Date of Termination:
(i) Engage, within the relevant geographic market of MetroBank
as stated from time to time in MetroBank's Community Reinvestment Act
Statement, as an employee, officer, director, consultant, independent
contractor, partner or sole proprietor of, or have any financial
interest in, any business activity that competes with any business
conducted by MetroBank prior to the termination of the Executive's
employment hereunder; provided, however, that nothing in this Section
9(a)(i) shall be deemed to prohibit any investment by, or interest of,
the Executive in the securities of a corporation or other business
entity, if such investment or interest does not exceed five percent (5%)
of the outstanding securities of any class of securities of such a
corporation or business entity; or
(ii) Solicit business (for products or services similar to those
under active development or provided by MetroBank prior to the
termination of the Executive's employment hereunder) of any person,
firm, company or other business entity that is doing business with, is a
customer or account of, or that has been solicited within six months
prior to the termination of the Executive's employment hereunder by,
MetroBank.
(b) Confidentiality. Except as shall be required in the course of his
employment hereunder, during the Term and thereafter, the Executive shall keep
secret and shall not, directly or indirectly, without the prior express written
consent of MetroBank:
(i) Divulge or communicate to any third person or entity, or use
for the benefit of the Executive or any third person or entity any trade
secrets, or any trade knowledge, formulae, processes, programs, methods
and other information relating to the operation of the business of
MetroBank or which were originated in connection therewith and any and
all privileged, proprietary or confidential information relating to the
business, planning or
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research activities of MetroBank or any of its clients, customers,
consultants or licensees; or
(ii) Retain for the benefit of the Executive or any third person
or entity any document or paper (other than the Executive's own work
product) used or owned by MetroBank which comes into the Executive's
possession in the course of his employment with MetroBank, or make or
cause to be made any copy, abstract or summary thereof.
(c) Injunctive Relief to MetroBank. Because the services to MetroBank of
the Executive are unique and extraordinary and MetroBank does not have an
adequate remedy at law to protect its business from the Executive's competition
or its interests in its trade secrets, privileged, proprietary and confidential
information and similar commercial assets, MetroBank shall be entitled to
injunctive relief, in addition to such other remedies and relief that would, in
the event of a breach of the provisions of this Section 9, be available to
MetroBank. In the event of such a breach, in addition to any other remedies,
MetroBank shall be entitled to receive from the Executive payment of, or
reimbursement for, MetroBank's reasonable attorneys' fees and disbursements
incurred in enforcing any such provision.
(d) Survival. The provisions of this Section 9 shall survive any
termination of this Agreement.
10. Notice. All communications, notices, requests, consents or demands
given under this Agreement shall be in writing and shall be deemed to have been
duly given when delivered to, or mailed by prepaid registered or certified mail
addressed to, the party for whom intended, as follows, or to such other address
as may be furnished by such party in the manner provided herein:
If to the Executive:
Xxxxxxx X. Xxxxxx
00 Xxxxxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
If to MetroBank:
MetroBank
00000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
ATTN: Chief Executive Officer
11. Governing Law. This Agreement shall in all respects be governed by
and construed under the laws of the State of Indiana, without regard to the
choice of law principles thereof, applicable to agreements fully to be performed
in such state. Any action, suit, proceeding or controversy brought by any party
hereto with respect to any dispute arising under this Agreement shall be
instituted solely in either of the Circuit or Superior Courts of the County of
Xxxxxxxx, Indiana, or the Federal District Court for the Southern District of
Indiana. Each of
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the parties hereto hereby submits to the exclusive jurisdiction and venue of
such courts in this regard.
12. Entire Agreement. This Agreement sets forth the entire understanding
of the parties hereto with respect to its subject matter, merges and supersedes
all prior and contemporaneous understandings with respect to its subject matter,
and may not be waived or modified, in whole or in part, except by a writing
signed by each of the parties hereto. No waiver of any provision of this
Agreement in any instance shall be deemed to be a waiver of the same or any
other provision in any other instance.
13. Construction. Headings contained in this Agreement are for
convenience only and shall not be used in the interpretation of this Agreement.
References herein to Sections are to the Sections of this Agreement. As used
herein, the singular includes the plural and the masculine, feminine and neuter
gender each includes the others where the context so indicates.
14. Successor to MetroBank. MetroBank shall 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 MetroBank, by
agreement in form and substance satisfactory to the Executive, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that MetroBank would be required to perform it if no such succession had
taken place. The failure of MetroBank to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle the Executive to compensation from MetroBank in the same amount
and on the same terms as he would be entitled to hereunder as if he terminated
his employment under Section 2(c), except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed to be the Date of Termination. As used in this Agreement, "MetroBank"
shall mean MetroBank as hereinbefore defined and any successor to its business
and/or assets.
15. Successors and Assigns. This Agreement shall be binding upon,
enforceable against, and inure to the benefit of, the parties hereto and their
respective heirs, successors and assigns, and nothing herein is intended to
confer any right, remedy or benefit upon any other person. The rights, duties
and obligations of the Executive hereunder may not be assigned. This Agreement
may not be assigned by MetroBank without the prior written consent of the
Executive, which consent shall not be unreasonably withheld.
16. Severability. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, this Agreement
shall be interpreted and enforceable as if such provision were severed or
limited, but only to the extent necessary to render such provision and this
Agreement enforceable.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, MetroBank, by its officers thereunder duly
authorized, and the Executive, have executed this Agreement effective as of the
date first set forth above.
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Xxxxxxx X. Xxxxxx
METROBANK
By:
Xxx X. Xxxxxxx, President and Chief
Executive Officer
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