EMPLOYMENT AGREEMENT
Exhibit
99.1
THIS
EMPLOYMENT AGREEMENT
(the
“Agreement”) is entered into as of the 1st day of November, 2005 (the “Effective
Date”), by and between Tower
Financial Corporation,
an
Indiana corporation (the “Company”) and Xxxxxx X.
Xxxxxxxx,
a
resident of Xxxxx County, Indiana (the “Employee”).
WHEREAS,
the
Company is in the business of operating a financial services holding company
and, directly or through subsidiary entities, operates or may operate various
banking and other permitted businesses;
WHEREAS,
the
Employee is a founder of the Company, currently serves as its President and
Chief Executive Officer and as the Chairman of the Company’s Board of Directors,
and is integral to the development and execution of the Company’s near and long
term business plans;
WHEREAS,
the
Employee is currently employed pursuant to an Employment Agreement dated
January 1, 2002, as amended on January 29, 2004; and
WHEREAS,
the
Company and Employee desire to terminate the prior Employment Agreement, as
amended, and replace it with this Agreement,
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:
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1.
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Employment.
Subject to the provisions of Sections 2(b) and 4(a)(ii), the Company
hereby employs the Employee, for the Term set forth in Section 3, as
the Company’s President and Chief Executive Officer, and as the Chairman
of the Company’s Board of Directors. The parties contemplate, however,
that, dependent upon the Employee’s desire, prior to the end of the Term,
to relinquish the position of President and Chief Executive Officer
and
the full-time day-to-day management of the Company’s businesses, and based
in such event on the mutual agreement of the parties, the Employee’s
duties may be modified prior to end of the Term, in accordance with
the
provisions of Sections 2(b) and
4(a)(ii).
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2.
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Duties.
The Employee’s duties shall include the
following:
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(a) During
the entire Term, or portion thereof in which the Employee continues to serve
full-time as the Company’s President and Chief Executive Officer, as well as the
Chairman of its Board of Directors, the Employee’s duties shall consist of the
duties (together with the powers and authority) as are consistent with these
positions and with the scope of the Employee’s duties under his prior employment
agreement with the Company, as well as such other duties, not inconsistent
therewith, as may be assigned to him from time to time by the Board of
Directors. The Employee’s duties currently also include, without limitation,
serving as the President and Chief Executive Officer of Tower Bank &
Trust Company, a company subsidiary, as well as an officer of one or more other
Company affiliates.
(b) During
such portion, if any, of the Term following Employee’s relinquishment of his
position and duties as full-time President and Chief Executive Officer of the
Company, but maintaining on a part-time basis the position and duties associated
with Chairman of the Company’s Board of Directors, the Employee’s duties shall
consist of, without limitation to the following:
(i) the
management, development and effective performance of the Board of Directors,
including the planning and organization of all Board and committee meetings
and
functions, and the provision of a linkage between the Board and
management,
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(ii) provision
of advice to the Company’s President and Chief Executive Officer, as well as the
other Company or subsidiary officers, concerning the Company’s best interest and
management,
(iii) in
consultation with the President and Chief Executive Officer, performance of
various roles and functions regarding the Company’s external relationships and
business development, and
(iv) working
closely with management, provision of advice and assistance in the formulation
of the Company’s vision, strategic planning and business plan.
The
Employee agrees to devote his appropriate attention, skill and energy to the
duties described herein and to the business of the Company, and to use his
best
efforts to promote the Company’s success.
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3.
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Term.
The term of this Agreement (the “Term”) shall commence on the Effective
Date and shall consist of an initial period of approximately three
(3)
years, through December 31, 2008; provided, however, that unless,
prior to midnight on December 31, 2007, the Company has given the
Employee written notice that the Term will not be extended beyond
December 31, 2008, or unless the Employee has given the Company
written notice that he does not wish that the Term be so extended,
the
Term will be deemed automatically extended for an additional one
(1) year
period, to and including December 31, 2009; and provided, further,
that, if prior to midnight on December 31, 2008, either party has
given the other written notice that the Term will not be extended
beyond
December 31, 2009, the Term will likewise be deemed extended for an
additional one (1) year period, to and including December 31, 2010;
provided, further that, if prior to midnight on December 31, 2009,
either party has given the other written notice that the Term will
not be
extended beyond December 31, 2010, the Term will likewise be deemed
extended for an additional one (1) year period, to and including
December 31, 2011.
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Following
the Term, any continued employment, unless pursuant to another written
employment agreement, shall be on an at-will basis, and any or all of the terms
and conditions of the Employee’s prospective employment, may thereafter be
changed by the Company at its discretion, with or without notice, and the
employment relationship may be terminated at any time by either party, with
or
without cause or notice.
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4.
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Compensation.
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(a) Base
Salary.
(i) During
the Period Covered by Section 2(a).
During
the period of the Term covered by Section 2(a), and until such time as
there has occurred an “Employment Termination,” whether before or after the
Employee’s “Normal Retirement Date,” and the Employee has begun receiving
benefits pursuant to the Company’s Restated Supplemental Executive Retirement
Plan (“SERP”) described in Section 4(d), and as it may be further amended
and restated in conformity herewith and as required hereby, the Employee will
receive an annual base salary of $270,000 (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’s sole discretion
upon the recommendation of the Company’s Compensation Committee.
(ii) During
the Period Covered by Section 2(b).
During
the period of the Term covered by Section 2(b), Employee will receive an annual
Base Salary in such amount as is then agreed upon between Company and Employee.
(b) Bonus.
During
the Term, the Employee will be eligible to receive a bonus at such times and
in
such amounts 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 shall be performance based, consistent
with the requirements of Section 162(c) of the Internal Revenue Code of
1986, as amended, shall be based initially upon the provisions of the Company’s
Officer Incentive Plan, but may be supplemented if, in the exercise of the
Board’s discretion, upon the recommendation of its Compensation Committee, the
Employee has performed his duties in an extraordinary manner deserving of
additional compensation recognition. The Employee’s bonus compensation under
this Section 4(b) shall not less than twenty percent (20%) nor more than
one hundred percent (100%) of the Employee’s Base Salary, as it may be
established from time to time, whether pursuant to Section 4(a)(i) or
4(a)(ii). Nothing in this Agreement, however, shall limit the Board’s discretion
to adopt, amend or terminate any performance-based bonus plan.
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(c) Stock
Options; Restricted Stock.
During
the Term, the Employee shall be eligible to participate in such other stock
option, restricted stock or other equity-based incentive plans, including but
not limited to any incentive stock option plan, non-qualified stock option
plan,
restricted stock plan, or the like, that may be adopted by the Company from
time
to time; provided, however, that nothing herein shall be deemed to limit the
Board’s discretion to adopt, amend or terminate any such plan.
(d) Supplemental
Executive Retirement Plan.
(i) The
Company hereby covenants and agrees that it will maintain in effect for the
Employee, and, during the Term, will permit the Employee to participate under
the Restated Tower Financial Corporation SERP, a nonqualified, unfunded defined
benefit plan, as it will be further amended and restated pursuant to, as
required by and in tandem with this Agreement, in the following manner, among
others (together with any further necessary or conforming amendments
thereto): Employee’s “Average Monthly Compensation,” shall be restated as
Employee’s highest Base Salary pursuant to Section 4(i) of this Agreement
divided by twelve (12); the SERP provision providing for an offset equal to
the
value of the Actuarial Equivalent of the Employee’s Social Security Offset shall
be deleted; the “Benefit Factor” shall be restated as sixty-five percent (65%)
at Employee’s Normal Retirement Date (which shall be age seventy (70)) with an
agreed-upon smaller Benefit Factor in the event SERP benefits commence prior
to
said Normal Retirement Date; in the event the Employee dies before benefits
commence under the SERP, a death benefit shall be paid to Employee’s spouse
equal to the amount of the SERP liability accrued on the books of the Company
as
of Employee’s death; in the event the Employee dies after the commencement of
benefits payable under the SERP, a death benefit shall be payable to Employee’s
surviving spouse equivalent to the amount of the SERP liability accrued on
the
books of the Company as of the date of Employee’s Normal Retirement Date, less
the amount of SERP benefits already paid to Employee prior to his
death.
(ii) The
Employee’s benefits, as and when payable pursuant to the SERP, shall not be
duplicative of any disability payments payable to the Employee pursuant to
the
Company’s short-term or long-term disability plans.
(iii) The
Employee’s benefits payable under the SERP shall not be permitted to be
decreased without the Employee’s prior written approval, but, at the discretion
of the Board, may be increased in accordance with the terms and conditions
of
the SERP.
(iv) In
the
event of a conflict between this Agreement and the SERP, the terms of this
Agreement shall govern.
(v) In
the
event of an amendment to or a termination of the SERP, such that the Employee’s
benefits thereunder are limited or terminated, the Company shall be obligated
to
pay equivalent post-retirement benefits to the Employee as those that would
have
been payable under the SERP without regard to any such amendment or termination;
provided, however, that such equivalent benefits in any event shall be paid
in
accordance with those provisions of the SERP required by Section 409A of the
Internal Revenue Code of 1986, as amended.
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Any
amount payable under this Section 4(d) may, but need not, be paid from
proceeds of a life insurance policy, the costs of which shall be paid by the
Company. In the event that the Company elects to purchase such a policy, the
Employee shall designate a beneficiary for any benefit under this
Section 4(d) on a form approved by the Company. Any amount payable as a
death benefit from the SERP shall be paid in a lump sum within ninety (90)
days
following the Employee’s death.
(e) Other
Benefit Plans.
The
Company hereby covenants and agrees that it shall include the Employee, if
otherwise eligible, in any vacation policies, 401(k), disability, life insurance
plan, medical and/or hospitalization plan, and/or in any and all other benefit
plans which may be adopted from time to time by the Company for the benefit
of
the Company’s senior executives during the Term. Nothing herein shall limit the
Company’s ability to exercise the discretion provided to it under any such
benefit plan, or its discretion to adopt, amend or terminate any such benefit
plan for its Senior Executives, at any time during the Term.
(f) Business
Expenses.
The
Company shall reimburse the 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 the Employee may be entitled to reimbursement hereunder,
and
to establish policies regarding such reimbursements. The Company shall also
pay
the Employee’s annual dues at the Fort Xxxxx Country Club, as well as
reasonable expenses related to the Employee’s use of such Country Club for
matters related to the business of the Company. The Company shall also provide
the Employee with the use of an automobile, which, with the Company’s consent,
the Employee shall be entitled to select and which is otherwise consistent
with
its policies regarding such use, as such policy may exist from time to time.
The
Company shall pay the reasonable costs and expenses of maintenance and fuel
related to the business use of such vehicle.
(g) Life
Insurance Benefits.
During
the Term, the Company, through a Company-owned life insurance policy on the
Employee’s life, shall continue to provide the Employee with a life insurance
death benefit in an amount not less than Eight Hundred Fifty Thousand Dollars
($850,000). The Employee shall from time to time designate a beneficiary for
the
benefits payable under this provision. Upon termination of Employee’s employment
or upon his retirement, the Employee shall have the right but not the
obligation, upon written notice to the Company, to purchase such life insurance
policy for an amount, payable in cash to the Company, equal to the cash
surrender value of the policy relating to the foregoing death
benefit.
The
death
benefit set forth in this Paragraph 4(g) shall be in addition to any death
benefit provided for in the SERP.
Except
as
otherwise specifically provided herein, the Employee shall be solely responsible
for any imputed income incurred as a result of any fringe or other benefits
payable hereunder.
All
payments made under this Agreement shall be subject to any and all federal,
state and local taxes and other withholdings to the extent required by
applicable law.
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5.
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Agreement
to Maintain Confidentiality.
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(a) Without
the Company’s prior consent, the Employee agrees not to 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, 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 the Employee in the strictest confidence.
The Employee agrees not to divulge any such Confidential Business Information
to
any other person or entity, except insofar as that person or entity has a need
to know such Confidential Business Information in the ordinary course of the
Company’s business. The Employee further agrees that, upon expiration or
termination of the Term, he will surrender to the Company any and all documents
and records, 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.
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(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 the Employee in violation
of this Agreement, (ii) is furnished to any person by the Company without
restriction on disclosure, (iii) becomes known to the 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 the 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 any termination or expiration of
this Agreement.
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6.
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Termination
of Employment.
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(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 the 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, and within the range contemplated
by Section 4(b), any pro rata bonus
for the
partial calendar year to the date of Employee’s death, (iii) unpaid vacation and
unreimbursed expenses payable hereunder, and (iv)
any
amounts Employee’s spouse is entitled to pursuant to the SERP. 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, and except that any amounts due the Employee
from the SERP shall be payable at such times and in the manner as set forth
in
the SERP. 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, the Employee suffers a “Disability” as defined herein, the
Company, in the exercise of its sole discretion, shall be entitled to terminate
Employee’s employment hereunder, immediately upon written notice to the Employee
of such decision, subject, however, to the payment to the Employee of
(i) any earned but unpaid Base Salary, (ii) in the discretion of the Board
upon the recommendation of the Compensation Committee, and within the range
contemplated by Section 4(b), any pro rata bonus
for the
partial calendar year to the date of such notice, (iii) unpaid vacation and
unreimbursed expenses payable hereunder, and (iv)
any
amounts Employee is entitled to pursuant to the SERP. For
purposes of this Agreement, “Disability” shall mean a physical or mental
impairment that entitles
the Employee to receive benefits under the Company’s long-term disability plan,
if any, or otherwise, upon the determination by the Company, after consultation
with a medical doctor selected by the Company, that the Employee, for a
continuing period of one hundred fifty (150) days, has been unable, in spite
of
reasonable accommodation, to perform the essential functions required of his
position. 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, and except that any amounts
due
the Employee from the SERP shall be payable at such times and in the manner
as
set forth in the SERP. Except
for the foregoing payment amounts, Employee shall be entitled to no other
compensation, benefits or payments.
(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 the
Employee of such decision. For purposes of this Agreement, Cause shall mean
(i)
the commission by the 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 the Employee was not legally entitled (ii) the continued
breach by the Employee of any of his
material obligations hereunder, after a written demand by the Company for
correction of such breach is delivered to the Employee, which specifically
identifies the section or sections of the Agreement which the Company asserts
have been breached and the manner in which the Company asserts that the Employee
has breached the obligations referenced therein, which breach is not cured
by
the Employee within thirty (30) days of his receipt of such written
demand;
and
(iii) the Employee’s indictment, conviction of or plea of guilty or no contest
to any felony or any crime involving moral turpitude.
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Upon
termination of this Agreement for Cause, the Company shall pay
the
Employee any earned but unpaid Base Salary to the date of termination,
and
any
unpaid vacation and any unreimbursed expenses otherwise payable hereunder,
together with any amounts Employee is entitled to pursuant to the SERP. All
such
payments
shall be made within 30 days of Employee’s termination of employment, except
that any amounts due the Employee from the SERP shall be payable at such times
and in the manner as set forth in the SERP. Except for the foregoing payment
amounts, Employee shall be entitled to no other compensation, benefits or
payments.
(d) Termination
by Employee During Term.
The
Employee
may
voluntarily terminate
employment with the Company without
reason at any time during
the Term, and
shall be
entitled to (i) earned but unpaid Base Salary to the date of termination, (ii)
in the discretion of the Board upon the recommendation of the Compensation
Committee, and within the range contemplated by Section 4(b), any pro rata
bonus
for the
partial calendar year to the date of termination, (iii) any unpaid vacation
and
unreimbursed expenses otherwise payable hereunder, and (iv)
any
amounts Employee is entitled to pursuant to the SERP. 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, and except that any amounts due the Employee from the
SERP
shall be payable at such times and in the manner as set forth in the
SERP.
Except
for the foregoing payment amounts, Employee shall be entitled to no other
compensation, benefits or payments.
(e) Termination
by Company Without Cause.
If,
during the Term, the Company terminates this Agreement and Employee’s employment
hereunder, without Cause, the Employee shall be entitled to (i) the present
value, discounted at six percent (6%), of unpaid Base Salary for the balance
of
the remaining Term, (ii) in
the
discretion of the Board upon the recommendation of the Compensation Committee,
and within the range contemplated by Section 4(b), any pro rata portion of
the bonus
for the
partial calendar year to the date of termination, (iii) any unpaid vacation
and unreimbursed expenses otherwise payable hereunder, and (iv)
any
amounts Employee is entitled to pursuant to the SERP. Subject to the provisions
of Section 8(a), all such
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, and
except that any amounts due the Employee from the SERP shall be payable at
such
times and in the manner as set forth in the SERP.
Except
for the foregoing payment amounts, Employee shall be entitled to no other
compensation, benefits or payments.
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7.
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Non-Competition
and Non-Solicitation.
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(a) Non-Competition.
The
Employee agrees that, during the Term and for a period of eighteen (18) months
immediately following the earlier to occur of the expiration of the Term or
termination of Employee’s employment hereunder, for whatever reason and by
whomever initiated, he will not, directly or indirectly, anywhere within a
one
hundred (100) mile radius of the City of Fort Xxxxx, Indiana or any other
community outside of Fort Xxxxx, Indiana in which the Company or any of its
subsidiaries has a banking or other business office and location, 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 planned to be) offered
or supplied by the Company or its subsidiaries, 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. 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.
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(b) Non-Solicitation.
The
Employee agrees that, during the Term and for a period of eighteen months
immediately
following the earlier to occur of the expiration of the Term or termination
of
Employee’s employment hereunder, for whatever reason and by whomever
initiated,
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 termination) 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.
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) The
Employee acknowledges that any violation of any provision of this Section 7
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 this
Section 7 by the Employee, the Employee agrees that, in addition to all
other remedies that the Company or any of its subsidiaries may have at law
or in
equity, 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 violation of this Section 7. 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 the Employee has violated any of the
restrictions set forth in this Section 7, then the period of all
restrictions set forth herein shall automatically be extended by the number
of
days that the court determined the 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 the Employee
its reasonable costs and attorney fees incurred by the Company in seeking
enforcement of these provisions.
(iii) If
the
Employee should breach any of the provisions of Section 7(a) or (b), the
Employee shall be required to repay to the Company any and all benefits payable
under Section 6 as a consequence of the termination of his
employment.
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8.
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Miscellaneous.
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(a) Special
Provision Regarding Section 409A of the Internal Revenue
Code.
Notwithstanding anything in
this
Agreement to
the
contrary, to
the
extent that any amount payable under this Agreement may constitute an amount
payable under a “nonqualified deferred compensation plan,” as defined in
Section
409A of the Internal
Revenue Code of
1986,
as amended, (the “Code”)
such
payment will be
made
by the Company in compliance with any applicable requirements of Code Section
409A (including the requirement that payment be delayed for
six (6 )
months following the Employee’s “separation of service”
if the
Employee is a
“specified employee” under Code
Section 409A,
to the extent applicable).
(b) Other
Rights.
This
Agreement shall not prevent or limit the 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 the Employee may
qualify, nor shall this Agreement limit or otherwise affect such rights as
the
Employee has under any other agreements with the Company or any of its
subsidiaries. Amounts which are vested benefits or which the 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 the Employee and the Company, except for the
SERP
and all of the Employee’s accrued benefits thereunder (which shall simply be
restated and amended in conformity with the requirements of this Agreement).
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.
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(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, the
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:
|
If
to the Company:
|
Tower
Financial Corporation
|
|
Attn:
Xxxx Xxxxxx, Chief Financial
Officer
|
|
000
Xxxx Xxxxx Xxxxxx, Xxxxx 000
|
|
Xxxx
Xxxxx, XX 00000
|
|
If
to Employee:
|
Xxxxxx
X. Xxxxxxxx
|
|
00000
Xxxxx Xxxxxxx Xxxx
|
|
Xxxx
Xxxxx, XX 00000
|
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.
| TOWER FINANCIAL CORPORATION | |||||
|
By:
|
/s/
Xxxxxxx X. Xxxxxx
|
/s/
Xxxxxx X. Xxxxxxxx
|
|||
|
Its:
|
EVP
& Chief Financial Officer
|
Xxxxxx X. Xxxxxxxx | |||
|
Date:
|
January
17, 2006
|
Date:
|
January
17, 2006
|
||
8
