EXHIBIT 10.18
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT"), is entered into as of
February 6, 2004, between HEARTLAND FINANCIAL USA, INC., a Delaware corporation
("EMPLOYER"), and XXXXX XXXXXX ("EXECUTIVE").
RECITALS
A. A. Employer, Rocky Mountain Bancorporation, Inc., a Montana corporation
("RMB"), and RMB Acquisition Corporation, a Montana corporation and a
wholly-owned subsidiary of Employer ("ACQUISITION CORP"), have entered into an
Agreement and Plan of Merger of even date herewith (the "MERGER AGREEMENT")
providing for the merger of Acquisition Corp with and into RMB (the "MERGER"),
with the effect that RMB will become a wholly subsidiary of Heartland.
B. Executive currently serves as the President of Rocky Mountain Bank, a
Montana chartered, commercial bank with its main office located in Billings,
Montana, and a wholly owned subsidiary of RMB (the "Bank").
C. After the Merger, Employer intends to maintain the separate existence of
the Bank and Employer desires Executive to continue to serve the Bank in his
present capacity as President.
D. Employer and Executive have made commitments to each other on a variety
of important issues concerning Executive's continued employment, including the
performance that will be expected of Executive, the compensation that Executive
will be paid, how long and under what circumstances Executive will remain
employed and the financial details relating to any decision that either
Executive or Employer might ever make to terminate this Agreement.
E. Employer recognizes that circumstances may arise in which a change in
control of Employer or the Bank through acquisition or otherwise may occur
thereby causing uncertainty of employment without regard to the competence or
past contributions of Executive which uncertainty may result in the loss of
valuable services of Executive, and Employer and Executive wish to provide
reasonable security to Executive against changes in the employment relationship
in the event of any such change in control.
F. Employer and Executive believe that the commitments they have made to
each other should be memorialized in writing, and that is the purpose of this
Agreement.
AGREEMENTS
In consideration of the foregoing premises and the following mutual
promises, covenants and agreements, the parties hereby agree as follows:
SECTION 1. DEFINITIONS; CONSTRUCTION.
(a) In addition to those terms defined throughout this Agreement, the
following terms, when used herein, shall have the following meanings:
(I) "AFFILIATE" means any entity which owns or controls, is owned
by or is under common ownership or control with, Employer or the Bank.
(II) "CONFIDENTIAL INFORMATION" means ideas, information,
knowledge and discoveries (whether or not patentable) about Employer or any of
its Affiliates which Executive has knowledge of as a result of his services for
Employer hereunder, including information regarding the products, product
specifications, technology, computer programs, methods of sale, trade secrets,
price lists and names of customers and suppliers of Employer or any of its
Affiliates, or other information regarding the business affairs or business
methods of Employer or any of its Affiliates. Confidential Information does not
include information that becomes generally available to the public other than as
a result of disclosure by Executive.
(III) "TERMINATION DATE" means the effective date of the
termination of Executive's employment with Employer, whether such termination is
initiated by Employer or Executive.
(b) Except as the context may clearly require otherwise, all references in
this Agreement to "EMPLOYER," shall include both Heartland Financial USA, Inc.
and the Bank.
(c) In this Agreement, unless otherwise stated or the context otherwise
requires, the following uses apply: (i) "INCLUDING" means "INCLUDING, BUT NOT
LIMITED TO"; (ii) all references to sections are to sections in this Agreement
unless otherwise specified; (iii) all words used in this Agreement will be
construed to be of such gender or number as the circumstances and context
require; and (iv) the captions and headings of sections appearing in this
Agreement have been inserted solely for convenience of reference and shall not
be considered a part of this Agreement nor shall any of them affect the meaning
or interpretation of this Agreement or any of its provisions.
(d) The subject matter and language of this Agreement have been the subject
of negotiations between the parties and their respective counsel, and this
Agreement has been jointly prepared by their respective counsel. Accordingly,
this Agreement shall not be construed against either party on the basis that the
Agreement was drafted by such party or its counsel.
SECTION 2. EFFECTIVE TIME. The parties agree that the Effective Time under
this Agreement shall be the same as the Effective Time as defined in the Merger
Agreement,
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provided, however, that if the Merger Agreement is terminated, this Agreement
shall also automatically terminate.
SECTION 3. POSITION AND DUTIES. Employer hereby employs Executive as the
President of the Bank. During the period of Executive's employment hereunder,
Executive shall devote his best efforts and full business time, energy, skills
and attention to the business and affairs of Employer and the Bank. Executive's
duties and authority shall consist of and include all duties and authority
customarily performed and held by persons holding equivalent positions with
Employer's Affiliates engaged in the banking business ("BANKING AFFILIATES"), as
such duties and authority are reasonably defined, modified and delegated from
time to time by the Boards of Directors of Employer and the Bank, as applicable.
Executive shall have the powers necessary to perform the duties assigned to him
and shall be provided such supporting services, staff, secretarial and other
assistance, office space and accoutrements as shall be reasonably necessary and
appropriate in the light of such assigned duties.
SECTION 4. COMPENSATION. As compensation for the services to be provided by
Executive hereunder, Executive shall receive the following compensation, expense
reimbursement and other benefits:
(a) BASE COMPENSATION. Executive shall receive an aggregate annual
minimum base salary at the rate of One Hundred Fifty Thousand Dollars ($150,000)
payable in installments in accordance with the regular payroll schedule of the
Bank. Such base salary shall be subject to review annually commencing in the
year 2005 and such salary shall be maintained or increased during the term
hereof in accordance with Employer's established management compensation
policies and plans (as the same may be adjusted, "BASE COMPENSATION").
Notwithstanding anything contained herein to the contrary, Employer shall be
entitled in its sole and absolute discretion to allocate between Employer and
the Bank the amount of Base Compensation payable to Executive and to cause all
or any of such Base Compensation or any other benefits payable or to be provided
to Executive under the terms of this Agreement to be paid or provided directly
by the Bank to Executive.
(b) PERFORMANCE BONUS. Executive may be entitled to receive an annual
performance bonus of up to thirty percent (30%) of his Base Compensation,
payable within ninety (90) days after the end of the fiscal year of Employer,
which shall be based upon performance criteria mutually agreed upon by Executive
and the Executive Committee of the Bank's Board of Directors (the "EXECUTIVE
COMMITTEE"), and which shall not be deemed earned, in whole or in part, until
such time as the amount of such bonus is determined by the Executive Committee.
The amount (if any) of and the form of payment (i.e., cash, stock options, stock
grants or any combination thereof) shall be determined by the Executive
Committee.
(c) AUTOMOBILE. Employer shall provide an automobile for Executive's
use in the performance of his duties hereunder and shall pay all expenses for
maintenance, repairs and insurance relating to that automobile, provided,
however, that Executive shall pay for all fuel charges and be reimbursed for
business-related fuel expenses in accordance with the Employer's policy
regarding such reimbursements. Executive shall report his business and personal
use of the automobile in conformity with policies adopted by Employer and his
personal use shall be
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reflected annually on the IRS Form W-2 of Executive as additional compensation
for income tax purposes.
(d) LIFE INSURANCE. Employer shall provide to Executive, at Employer's
expense, life insurance in an amount equal to two (2) times Executive's Base
Compensation.
(e) VACATIONS. Executive shall be entitled to an annual vacation in
accordance with the vacation policy of Bank, which vacation shall be taken at a
time or times mutually agreeable to Employer and Executive.
(f) OTHER BENEFITS. Executive shall be entitled to all benefits
specifically established for him and, when and to the extent he is eligible
therefor, to participate in all plans and benefits not otherwise provided to him
and that are generally accorded to senior executives of the Bank and Employer's
Banking Affiliates, including, pension, profit-sharing, supplemental retirement,
incentive compensation, bonus, disability income, medical and hospitalization
insurance, and similar or comparable plans, and also to perquisites extended to
senior executives, provided, however, that such plans, benefits and perquisites
shall be no less than those made available to all other employees of the Bank.
(g) REIMBURSEMENT OF EXPENSES. Executive shall be reimbursed, upon
submission of appropriate vouchers and supporting documentation, for all travel,
entertainment and other out-of-pocket expenses reasonably and necessarily
incurred by Executive in the performance of his duties hereunder.
(h) WITHHOLDING. Employer shall be entitled to withhold from amounts
payable to Executive hereunder, any federal, state or local withholding or other
taxes or charges which it is from time to time required to withhold. Employer
shall be entitled to rely upon the opinion of its legal counsel with regard to
any question concerning the amount or requirement of any such withholding.
SECTION 5. CONFIDENTIALITY AND LOYALTY. Executive acknowledges that during
the course of his employment he may produce and have access to Confidential
Information. Accordingly, during and subsequent to termination of this
Agreement, Executive agrees to hold in confidence and not directly or indirectly
disclose, use, copy or make lists of any Confidential Information, except to the
extent that such information is or thereafter becomes lawfully available from
public sources, or such disclosure is authorized in writing by Heartland,
required by a law or any competent administrative agency or judicial authority,
or otherwise as reasonably necessary or appropriate in connection with
performance by Executive of his duties hereunder. All records, files, documents
and other materials or copies thereof relating to the respective businesses of
Heartland and its Affiliates that Executive shall prepare or use, shall be and
remain the sole property of Heartland, and other than in connection with
performance by Executive of his duties hereunder, shall not be removed from the
premises of Heartland or any of its Affiliates without Heartland's written
consent, and shall be promptly returned to Heartland upon termination of
Executive's employment hereunder. Executive agrees to abide by Heartland's
reasonable policies, as in effect from time to time, respecting avoidance of
interests conflicting with those of Heartland and its Affiliates. Nothing in
this Agreement modifies or reduces
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Executive's obligations to comply with applicable laws related to trade secrets,
confidential information or unfair competition.
SECTION 6. TERM AND TERMINATION.
(a) TERM. Executive's employment hereunder shall be for a term of five
(5) years commencing on the Effective Date and ending on the fifth anniversary
thereof, unless terminated sooner in accordance with the terms of this Agreement
(the "TERM").
(b) VOLUNTARY TERMINATION BY EXECUTIVE. Executive may terminate his
employment under this Agreement at any time by giving to Employer written notice
of such intent. Executive's employment shall terminate effective with the
delivery of such notice. If Executive voluntarily terminates his employment
under this Agreement, other than pursuant to SECTION 6(d) (Constructive
Termination) or SECTION 6(h) (Payments Upon Change in Control), then Employer
shall only be required to pay Executive his Base Compensation as shall have
accrued through the effective date of such termination, and Employer shall not
be obligated to pay any performance bonus with respect to the then current
fiscal year of Employer, nor shall Employer have any further obligations to
Executive.
(c) PREMATURE TERMINATION BY EMPLOYER.
(i) Employer may terminate this Agreement and Executive's
employment hereunder at any time by giving to Executive written notice of such
termination and designating the effective time thereof. If Employer terminates
this Agreement prior to the last day of the Term for any reason other than a
termination in accordance with the provisions of SECTION 6(h) (Payments Upon
Change in Control) or SECTION 6(e) (Termination for Cause), then notwithstanding
any mitigation of damages by Executive, Employer shall pay Executive an amount
equal to the total amount of compensation that he would have received had he
remained employed through the remaining portion of the Term, which shall be
equal to the sum of the following amounts calculated for the remaining portion
of the Term: (A) Base Compensation at the annual rate then payable to Executive;
(B) annual performance bonuses based upon the average of the three (3) (or less,
if applicable) most recent performance bonuses paid to the Executive; and (C)
contributions made by Employer on behalf of the Executive to Employer's
tax-qualified retirement plans based upon the average of the three (3) (or less,
if applicable) most recent contributions made by Employer on behalf of the
Executive to any of Employer's tax-qualified retirement plans that include
employees of its Banking Affiliates. The payment of amounts under this
subsection by Employer shall not offset or diminish any compensation or benefits
accrued as of the date of termination.
(ii) Payment to Executive will be made on a monthly basis during
the remaining Term. At the election of Employer, payments may be made in a lump
sum discounted to their present value using the prime rate of interest as
reported in The Wall Street Journal, or if not then being published, a daily
national business periodical of similar nature reasonably selected by Employer
(the "PRIME RATE"). Such payments shall not be reduced in the event Executive
obtains other employment following the termination of employment by Employer.
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(d) CONSTRUCTIVE TERMINATION.
(i) If at any time during the Term, except in connection with a
termination pursuant to SECTION 6(h) (Payments Upon Change in Control) or
SECTION 6(e) (Termination for Cause), Executive is Constructively Discharged (as
defined below), then Executive shall have the right, by written notice given to
Employer not later than thirty (30) days after such Constructive Discharge, to
terminate his services hereunder, effective as of thirty (30) days after the
date of such notice, and Executive shall have no rights or obligations under
this Agreement other than as provided in SECTION 5 (Confidentiality and Loyalty)
and SECTION 7 (Non-Competition Covenant). In such event, Executive shall be
entitled to receive a lump sum payment of compensation as if such termination of
his employment were pursuant to SECTION 6(c) (Premature Termination by
Employer).
(ii) For purposes of this Agreement, Executive shall be
"CONSTRUCTIVELY DISCHARGED" upon the occurrence of any one of the following
events:
(x) Executive is not re-elected or is removed from the
position with Employer or the Bank set forth in SECTION 3 (Position and Duties),
other than as a result of Executive's election or appointment to a position or
positions of equal or superior scope and responsibility;
(y) Executive shall fail to be vested by Employer with the
powers, authority and support services of any of said office or offices; or
(z) Employer otherwise commits a material breach of its
obligations under this Agreement.
(e) TERMINATION FOR CAUSE. This Agreement and Executive's employment
hereunder may be terminated for cause as hereinafter defined. "CAUSE" shall
mean: (i) Executive's death; (ii) Executive's "PERMANENT DISABILITY," which
shall mean Executive's inability, as a result of physical or mental incapacity,
substantially to perform his duties hereunder for an aggregate of ninety (90)
days out of any rolling period of one hundred eighty (180) days; (iii) a
material violation by Executive of any applicable material law or regulation
respecting the business of Employer or the Bank; (iv) Executive being found
guilty of a felony or an act of dishonesty in connection with the performance of
his duties as an officer of Employer or the Bank, or which disqualifies
Executive from serving as an officer or director of Employer or the Bank; (v)
the willful or negligent failure of Executive to perform his duties hereunder in
any material respect; (vi) Executive engages in one or more unsafe or unsound
banking practices that have a material adverse effect on the Bank; or (vii)
Executive is removed or suspended from banking pursuant to Section 8(e) of the
Federal Deposit Insurance Act, as amended (the "FDIA"), or any other applicable
state or federal law. Executive shall be entitled to at least thirty (30) days'
prior written notice (the "NOTICE PERIOD") of Employer's intention to terminate
his employment for any cause (except Executive's death) specifying the grounds
for such termination, a reasonable opportunity to cure any conduct or act, if
curable, alleged as grounds for such termination, and a reasonable opportunity
to present to the Executive Committee his position regarding any dispute
relating to the existence of such cause. Notwithstanding anything
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to the contrary in the immediately preceding sentence, Employer shall have the
right, exercisable in its sole discretion, to suspend Executive with pay during
the Notice Period. In the event of a dispute regarding Executive's Permanent
Disability, each of Executive and Employer shall choose a physician who together
will choose a third physician to make a final determination thereof. Upon a
termination of Executive's employment with Employer for Cause, then Employer
shall only be required to pay Executive his Base Compensation as shall have
accrued through the effective date of such termination, and Employer shall not
be obligated to pay any performance bonus with respect to the then current
fiscal year of Employer, or have any further obligations to Executive.
(f) PAYMENTS UPON DEATH. If payments are due and owing under this Agreement
at the death of Executive, payment shall be made to such beneficiary as
Executive may designate in writing, or failing such designation, to the executor
of his estate, in full settlement and satisfaction of all claims and demands on
behalf of Executive. Such payments shall be in addition to any other death
benefits of Employer for the benefit of Executive and in full settlement and
satisfaction of all payments provided for in this Agreement.
(g) PAYMENTS PRIOR TO PERMANENT DISABILITY. Executive shall be entitled to
the compensation and benefits provided for under this Agreement for any period
during the term of this Agreement and prior to the establishment of Executive's
Permanent Disability. Notwithstanding anything contained in this Agreement to
the contrary, until the date specified in a notice of termination relating to
Executive's Permanent Disability, Executive shall be entitled to return to his
positions with Employer and the Bank as set forth in this Agreement in which
event no Permanent Disability of Executive will be deemed to have occurred.
(h) PAYMENTS UPON CHANGE IN CONTROL.
(i) In the event of a Change in Control (as defined below) and the
termination of Executive's employment under either SECTION 6(h)(iii)(B)(x) or
SECTION 6(h)(iii)(B)(y), Executive shall be entitled to receive in lieu of any
other payments provided for in this Agreement a lump sum payment equal to the
total of the amount Executive would be entitled to receive if such termination
of his employment were pursuant to SECTION 6(c) (Premature Termination by
Employer), plus an amount equal to one (1) times the sum of: (A) the greater of
Executive's then-current annual Base Compensation or Executive's annual Base
Compensation as of the date one (1) day prior to the Change in Control; (B) the
average of the three (3) (or less, if applicable) most recent bonuses paid to
Executive; and (iii) the average of the three (3) (or less, if applicable) most
recent contributions made by Employer on behalf of the Executive to any of
Employer's tax-qualified retirement plans that include employees of its Banking
Affiliates. In addition, if at the time of the termination of Executive's
employment, Executive or any of Executive's dependents is covered under the
terms of any medical and dental plans of Employer (or any Affiliate) for active
employees immediately prior to such termination, Employer will provide Executive
and those dependents with equivalent coverages for a period not to exceed twelve
(12) months from the Termination Date. The coverages may be procured directly by
Employer (or any Affiliate, if appropriate) apart from, and outside of the terms
of the plans themselves; provided that Executive and Executive's dependents
comply with all of the conditions of the medical or dental plans. If Executive
or any of Executive's dependents become
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eligible for coverage under the terms of any other medical and/or dental plan of
a subsequent employer which plan benefits are comparable to those of Employer's
(or any Affiliate's) plan benefits, coverage under the Employer's (or any
Affiliate's) plans will cease for the eligible Executive and/or dependent.
Executive and Executive's dependents must notify Employer (or any Affiliate) of
any subsequent employment and provide information regarding medical and/or
dental coverage available. If Employer (or any Affiliate) discovers that
Executive and/or dependent has become employed and not provided the above
notification, all payments and benefits under this Agreement will cease. All
payments under this Section shall be subject to the limits of SECTION 6(h)(IV)
and shall be made within fifteen (15) days after termination of Executive's
employment that is related to the Change in Control.
(ii) If Executive's employment is terminated by Employer or any
Affiliate or successor of Employer at any time within the Covered Period,
Employer will provide to Executive out-placement counseling assistance in the
form of reimbursement of the expenses incurred for such assistance within the
twelve (12) month period following the Termination Date, such reimbursement
amount not to exceed one-quarter (1/4) of Executive's Base Compensation on the
Termination Date.
(iii) For purposes of this Section, the following terms shall have the
following definitions:
(A) "COVERED PERIOD" shall mean the period beginning six (6)
months prior to a Change in Control and ending twelve (12) months after a Change
in Control.
(B) "TERMINATION OF EXECUTIVE'S EMPLOYMENT" within the meaning of
this SECTION 6(h), shall mean either of the following:
(x) a termination by Employer or its successor, as the case
may be, during the Covered Period, other than a Termination for Cause or any
termination as a result of normal retirement pursuant to a retirement plan to
which Executive was subject prior to any Change in Control; or
(y) a termination by Executive, for any reason, during the
period beginning ten (10) days prior to a Change in Control and ending ten (10)
days after a Change in Control.
(C) "CHANGE IN CONTROL" shall mean the following:
(x) the consummation of the acquisition by any person (as
such term is defined in Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended (THE "1934 ACT")) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the 0000 Xxx) of fifty-one percent (51%) or more
of the combined voting power of the then outstanding voting stock of Employer;
or;
(y) the individuals who, as of the date hereof, are members
of the Board of Directors of Employer (the "EMPLOYER BOARD") cease for any
reason to constitute a majority of the Board, unless the election, or nomination
for election by the
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stockholders, of any new director was approved by a vote of a majority of the
Employer Board, and such new director shall, for purposes of this Agreement, be
considered as a member of the Employer Board; or
(z) consummation of either: (1) a merger or consolidation to
which Employer or the Bank is a party if Employer's stockholders, immediately
before such merger or consolidation, do not, as a result of such merger or
consolidation, own, directly or indirectly, more than fifty-one percent (51%) of
the combined voting power of the then outstanding voting securities of the
entity resulting from such merger or consolidation in substantially the same
proportion as their ownership of the combined voting power of the voting
securities of Employer outstanding immediately before such merger or
consolidation; or (2) a complete liquidation or dissolution, or the sale or
other disposition of all or substantially all of the assets, of Employer or the
Bank.
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
solely because fifty-one percent (51%) or more of the combined voting power of
the then outstanding securities of Employer are acquired by: (1) a trustee or
other fiduciary holding securities under one or more employee benefit plans
maintained for employees of Employer or its Affiliates; or (2) any corporation
which, immediately prior to such acquisition, is owned directly or indirectly by
the stockholders in the same proportion as their ownership of stock immediately
prior to such acquisition.
(iv) It is the intention of Employer and Executive that no portion of
any payment under this Agreement, or payments to or for the benefit of Executive
under any other agreement or plan, be deemed to be an "EXCESS PARACHUTE PAYMENT"
as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the
"CODE"), or its successors. It is agreed that the present value of and payments
to or for the benefit of Executive in the nature of compensation, receipt of
which is contingent on the Change in Control, and to which Section 280G of the
Code applies (in the aggregate "TOTAL PAYMENTS") shall not exceed an amount
equal to one dollar ($1.00) less than the maximum amount which Employer may pay
without loss of deduction under Section 280G(a) of the Code. Present value for
purposes of this Agreement shall be calculated in accordance with Section
280G(d)(4) of the Code. Within ninety (90) days following the earlier of the
giving of any notice of termination or the giving of notice by Employer to
Executive of its belief that there is a payment or benefit due Executive which
will result in an excess parachute payment as defined in Section 280G of the
Code, Executive and Employer, at Employer's expense, shall obtain the opinion of
such legal counsel and certified public accountants as Executive may choose
(notwithstanding the fact that such persons have acted or may also be acting as
the legal counsel or certified public accountants for Employer), which opinions
need not be unqualified, which sets forth (A) the amount of the includable
compensation of Executive for the base period, as determined under Section 280G
of the Code, (B) the present value of Total Payments and (C) the amount and
present value of any excess parachute payments. In the event that such opinions
determine that there would be an excess parachute payment, the payment hereunder
or any other payment determined by such counsel to be includable in Total
Payments shall be modified, reduced or eliminated as specified by Executive in
writing delivered to Employer within sixty (60) days of his receipt of such
opinions or, if Executive fails to so notify Employer, then as Employer shall
reasonably
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determine, so that under the bases of calculation set forth in such opinions
there will be no excess parachute payment. The provisions of this subsection,
including the calculations, notices and opinions provided for herein shall be
based upon the conclusive presumption that (x) the compensation and benefits
provided for in SECTION 4 (Compensation) and (y) any other compensation earned
by Executive pursuant to Employer's compensation programs which would have been
paid in any event, are reasonable compensation for services rendered, even
though the timing of such payment is triggered by the Change in Control;
provided, however, that in the event such legal counsel so requests in
connection with the opinion required by this subsection, Executive and Employer
shall obtain, at Employer's expense, and the legal counsel may rely on in
providing the opinion, the advice of a firm of recognized executive compensation
consultants as to the reasonableness of any item of compensation to be received
by Executive. In the event that the provisions of Sections 280G and 4999 of the
Code are repealed without succession, this subsection shall be of no further
force or effect.
(i) REGULATORY SUSPENSION AND TERMINATION.
(i) If Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the affairs of Employer or the
Bank by a notice served under Section 8(e)(3) (12 U.S.C. Section 1818(e)(3)) or
8(g) (12 U.S.C. Section 1818(g)) of the FDIA, Employer's obligations under this
contract shall be suspended as of the date of service, unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, Employer
shall: (A) pay Executive all of the compensation withheld (with interest at the
Prime Rate for the period withheld) while its contract obligations were
suspended; and (B) reinstate all of the obligations that were suspended.
(ii) If Executive is removed and/or permanently prohibited from
participating in the conduct of the affairs of Employer or the Bank by an order
issued under Section 8(e) (12 U.S.C. Section 1818(e)) or 8(g) (12 U.S.C. Section
1818(g)) of the FDIA, all obligations of Employer under this contract shall
terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
(iii) If either Employer or the Bank is in default as defined in
Section 3(x) (12 U.S.C. Section 1813(x)(1)) of the FDIA, all obligations of
Employer under this contract shall terminate as of the date of default, but this
subsection shall not affect any vested rights of the contracting parties.
(iv) All obligations of Employer under this Agreement shall be
terminated, except to the extent determined that continuation of this Agreement
is necessary for the continued operation of the Bank: (A) by the Federal Deposit
Insurance Corporation (the "FDIC") at the time that the FDIC enters into an
agreement to provide assistance to or on behalf of the Bank under the authority
contained in Section 13(c) (12 U.S.C. Section 1823(c)) of the FDIA; or (B) by
the FDIC at the time that the FDIC approves a supervisory merger to resolve
problems related to operation of the Bank or when the Bank is determined by the
FDIC to be in an unsafe or unsound condition. Any rights of the parties that
have already vested, however, shall not be affected by such action.
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(v) Any payments made to Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with Section
18(k) (12 U.S.C. Section 828(k)) of the FDIA.
SECTION 7. NON-COMPETITION COVENANT.
(a) Employer and Executive have jointly reviewed the
customer lists and operations of Employer and have agreed that the primary
service area of Employer's lending and deposit taking functions in which
Employer has and will actively participate extends separately to an area that
encompasses a thirty-five (35) mile radius from each banking or other office
location of the Bank (the "RESTRICTIVE AREA"). Therefore, as an essential
ingredient of and in consideration of this Agreement and Employer's agreement to
pay the compensation described in SECTION 4 (Compensation), Executive hereby
agrees that, except with the express prior written consent of Employer, for a
period of one (1) year after the termination of Executive's employment with
Employer and the Bank (the "RESTRICTIVE PERIOD"), Executive will not directly or
indirectly compete with the business of Employer or the Bank, including, by
directly or indirectly, taking any of the following actions (collectively, the
"RESTRICTIVE COVENANT"):
(i) owning, managing, operating, controlling, or financing a
Financial Institution (as defined below) within the Restrictive Area;
(ii) serving as the agent, broker or representative of, or
otherwise assisting, any person or entity in obtaining services or products from
any Financial Institution within the Restrictive Area;
(iii) directly or indirectly serving as an employee, officer or
director of, or consultant to, a Financial Institution within the Restrictive
Area;
(iv) soliciting or inducing, or attempting to solicit or induce,
any current or former customer of Employer or any of its Affiliates to (A)
terminate any business relationship with Employer or any of its Affiliates, or
(B) obtain services or products from a Financial Institution with the
Restrictive Area; and
(v) soliciting or inducing, or attempting to solicit or induce,
any employee, agent or supplier of Employer or any of its Affiliates to
terminate any employment or business relationship with Employer or any of its
Affiliates, and become employed by, or to establish a business relationship
with, a Financial Institution within the Restrictive Area.
For purposes of this Agreement "Financial Institution" shall mean any person,
firm, partnership, corporation, trust or other entity which owns or operates, a
bank, savings and loan association, credit union or similar financial
institution.
(b) If Executive violates the Restrictive Covenant and Employer brings
legal action for injunctive or other relief, Employer shall not, as a result of
the time involved in obtaining such relief, be deprived of the benefit of the
full period of the Restrictive Covenant. Accordingly, the Restrictive Covenant
shall be deemed to have the duration specified in this
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Section computed from the date the relief is granted but reduced by the time
between the period when the Restrictive Period began to run and the date of the
first violation of the Restrictive Covenant by Executive. If a successor assumes
and agrees to perform this Agreement, this Restrictive Covenant shall continue
to apply only to the offices of Bank as they existed immediately before such
assumption and shall not apply to any of the successor's other offices. The
Restrictive Covenant shall not prohibit Executive from owning directly or
indirectly capital stock or similar securities that are listed on a securities
exchange or quoted on the NASDAQ Stock Market that do not represent more than
one percent (1%) of the outstanding capital stock of any Financial Institution.
(c) Executive acknowledges that the restrictions contained in SECTION
5 (Confidentiality and Loyalty) and this Section of this Agreement are
reasonable and necessary for the protection of the legitimate business interests
of Employer and the Bank, that any violation of these restrictions would cause
substantial injury to Employer, the Bank and such interests, that Employer would
not have entered into this Agreement with Executive without receiving the
additional consideration offered by Executive in binding himself to these
restrictions and that such restrictions were a material inducement to Employer
to enter into this Agreement. In the event of any violation or threatened
violation of these restrictions, either of Employer or the Bank, in addition to
and not in limitation of, any other rights, remedies or damages available to
Employer and the Bank under this Agreement or otherwise at law or in equity,
shall be entitled to preliminary and permanent injunctive relief to prevent or
restrain any such violation by Executive and any and all persons directly or
indirectly acting for or with Executive, as the case may be.
SECTION 8. INTERCORPORATE TRANSFERS. If Executive shall be voluntarily
transferred to an Affiliate of Employer, such transfer shall not be deemed to
terminate or modify this Agreement and the Affiliate to which Executive shall
have been transferred shall, for all purposes of this Agreement, be construed as
standing in the same place and stead as Employer as of the date of such
transfer.
SECTION 9. INTEREST IN ASSETS. Neither Executive nor his estate shall
acquire hereunder any rights in funds or assets of Employer or the Bank,
otherwise than by and through the actual payment of amounts payable hereunder;
nor shall Executive or his estate have any power to transfer, assign,
anticipate, hypothecate or otherwise encumber in advance any of said payments;
nor shall any of such payments be subject to seizure for the payment of any
debt, judgment, alimony, separate maintenance or be transferable by operation of
law in the event of bankruptcy, insolvency or otherwise of Executive.
SECTION 10. GENERAL PROVISIONS.
(a) SUCCESSORS; ASSIGNMENT; SURVIVAL. This Agreement shall be binding
upon and inure to the benefit of Executive, Employer and his and its respective
personal representatives, successors and assigns, and any successor or assign of
Employer shall be deemed the "EMPLOYER" hereunder. Employer shall require any
successor to all or substantially all of the business and/or assets of Employer,
whether directly or indirectly, by purchase, merger, consolidation, acquisition
of stock, or otherwise, by an agreement in form and substance satisfactory to
Executive, expressly to assume and agree to perform this Agreement in the same
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manner and to the same extent as Employer would be required to perform if no
such succession had taken place. Notwithstanding anything contained herein to
the contrary, Executive further agrees that the Bank is an intended beneficiary
of the Executive's obligations under SECTION 5 (Confidentiality and Loyalty) and
SECTION 7 (Non-Competition Covenant) and the same may be enforced by the Bank in
the same manner, and to the same extent, as the same is enforceable hereunder by
Employer. Executive acknowledges and agrees that SECTION 5 (Confidentiality and
Loyalty) and SECTION 7 (Non-Competition Covenant)shall survive the termination
of this Agreement.
(b) ENTIRE AGREEMENT; MODIFICATIONS. This Agreement constitutes the
entire agreement between the parties respecting the subject matter hereof, and
supersedes all prior negotiations, undertakings, agreements and arrangements
with respect thereto, whether written or oral. Except as otherwise explicitly
provided herein, this Agreement may not be amended or modified except by written
agreement signed by Executive and Employer. Executive agrees that any employment
agreement or arrangement between Executive and any of the Bank or RMB shall
terminate at the Effective Time and that Executive is entitled to receive no
payments thereunder except for accrued compensation for services rendered.
(c) ENFORCEMENT. The provisions of this Agreement shall be regarded as
divisible and separate; if any of said provisions should be declared invalid or
unenforceable by a court of competent jurisdiction, the validity and
enforceability of the remaining provisions shall not be affected thereby.
Furthermore, if the scope and any restriction or requirement contained in this
Agreement is too broad to permit enforcement of such restriction or requirement
to its fullest extent, then such restriction or requirement shall be enforced to
the maximum extent permitted by law, and Executive consents and agrees that any
court of competent jurisdiction may so modify such scope in any proceeding
brought to enforce such restriction or requirement.
(d) GOVERNING LAW. All questions concerning the construction, validity
and interpretation of this Agreement and the performance of the obligations
imposed by this Agreement shall be governed by the internal laws of the State of
Iowa applicable to contracts made and wholly to be performed in such state
without regard to conflicts of laws.
(e) JURISDICTION AND SERVICE OF PROCESS. Any action or proceeding
seeking to enforce, challenge or avoid any provision of, or based on any right
arising out of, this Agreement shall be brought only in the courts of the State
of Iowa, County of Dubuque or, if it has or can acquire jurisdiction, in the
United States District Court serving the County of Dubuque, and each of the
parties consents to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts) in any such action or proceeding and waives any
objection to jurisdiction or venue laid therein. Process in any action or
proceeding referred to in the preceding sentence may be served on any party
anywhere in the world.
(f) LEGAL FEES. All reasonable legal fees paid or incurred by Employer
or Executive pursuant to any dispute or question of interpretation relating to
this Agreement shall be paid or reimbursed by the party who or which is not
successful on the merits pursuant to a legal judgment or settlement.
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(g) WAIVER. No waiver by either party at any time of any breach by the
other party of, or compliance with, any condition or provision of this Agreement
to be performed by the other party, shall be deemed a waiver of any similar or
dissimilar provisions or conditions at the same time or any prior or subsequent
time.
(h) NOTICES. Notices pursuant to this Agreement shall be in writing
and shall be deemed given when received; and, if mailed, shall be mailed by
United States registered or certified mail, return receipt requested, postage
prepaid; and if to Employer, addressed to the principal headquarters of
Employer, attention: Chairman; or, if to Executive, to the address set forth
below Executive's signature on this Agreement, or to such other address as the
party to be notified shall have given to the other.
[THIS SPACE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
HEARTLAND FINANCIAL USA, INC. XXXXX XXXXXX
By: /s/ Xxxx X. Xxxxxx /s/ Xxxxx Xxxxxx
-------------------------------------------- --------------------------------------------
Xxxx X. Xxxxxx
Chairman, President and Chief 0000 Xxxxxxxx Xxxxx
Executive Officer --------------------------------------------
Xxxxxxxx, Xxxxxxx 00000
--------------------------------------------
(Address)
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