EXHIBIT 10.4
EXECUTIVE SEVERANCE AGREEMENT
THIS EXECUTIVE SEVERANCE AGREEMENT ("Agreement") is entered into as of the
16th day of January, 2001 by and between INDIANA UNITED BANCORP (the "Company"),
an Indiana corporation, and Xxxx X. Xxxxxx ("Executive").
R E C I T A L S:
A. The Company considers the establishment and maintenance of a sound and
vital management to be essential to protecting and enhancing the best interests
of the Company and its shareholders;
B. The Company recognizes that, as is the case with many publicly held
corporations, the possibility of a change in control may arise and that such
possibility may result in the departure or distraction of management personnel
to the detriment of the Company and its shareholders;
C. The Board of Directors of the Company (the "Board") has determined that
it is in the best interests of the Company and its shareholders to secure
Executive's continued services and to ensure Executive's continued and undivided
dedication to his duties in the event of any threat or occurrence of a Change in
Control (as defined in Section 1) of the Company; and
D. The Board has authorized the Company to enter into this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the Company and Executive hereby agree as follows:
A G R E E M E N T:
1. Definitions. As used in this Agreement, the following terms shall have
the respective meanings set forth below:
(a) "Bonus Amount" means the annual incentive bonus earned by Executive
from the Company during the last completed fiscal year of the Company
immediately preceding Executive's Date of Termination (annualized in the event
Executive was not employed by the Company for the whole of any such fiscal
year).
(b) "Cause" means (i) the willful and continued failure of Executive to
perform substantially his duties with the Company (other than any such failure
resulting from Executive's incapacity due to physical or mental illness or any
such failure subsequent to Executive being delivered a Notice of Termination
without Cause by the Company or delivering a Notice of Termination for Good
Reason to the Company) after a written demand for substantial performance is
delivered to Executive by the Board that specifically identifies the manner in
which the Board believes that Executive has not substantially performed
Executive's duties, (ii) the willful engaging by Executive in illegal conduct or
gross misconduct that is demonstrably and materially injurious to the Company,
or (iii) the conviction of Executive of, or a plea by Executive of nolo
contendre to, a felony. For purpose of this paragraph (b), no act or failure to
act by Executive shall be considered "willful" unless done or omitted to be done
by Executive in bad faith and without reasonable belief that Executive's action
or omission was legal, regulatory compliant, and in the best interests of the
Company. Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board, based upon the advice of counsel for the
Company or upon the instructions of the Company's chief executive officer or
another senior officer of the Company, shall be conclusively presumed to be
done, or omitted to be done, by Executive in good faith and in the best
interests of the Company. Cause shall not exist unless and until the Company has
delivered to Executive a copy of a resolution duly adopted by three-fourths
(3/4) of the entire Board (excluding Executive if Executive is a Board member)
at a meeting of the Board called and held for such purpose (after reasonable
notice to Executive and an opportunity for Executive, together with counsel, to
be heard before the Board), finding that in the good faith opinion of the Board
an event set forth in clauses (i) or (ii) has occurred and specifying the
particulars thereof in detail. The Company must notify Executive of any event
constituting Cause within ninety (90) days following the Company's knowledge of
its existence or such event shall not constitute Cause under this Agreement.
(c) "Change in Control" means the occurrence of any one of the following
events:
(i) individuals who, on January 16, 2001, constitute the Board (the
"Incumbent Directors") cease for any reason to constitute at least a majority of
the Board, provided that any person becoming a director subsequent to January
16, 2001, whose election or nomination for election was approved by a vote of at
least two-thirds of the Incumbent Directors then on the Board (either by a
specific vote or by approval of the proxy statement of the Company in which such
person is named as a nominee for director, without written objection by such
2
Incumbent Directors to such nomination) shall be deemed to be an Incumbent
Director; provided, however, that no individual elected or nominated as a
director of the Company initially as a result of an actual or threatened
election contest with respect to directors or any other actual or threatened
solicitation of proxies by or on behalf of any person other than the Board shall
be deemed to be an Incumbent Director;
(ii) any "person" (as such term is defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 25% or more of the
combined voting power of the Company's then outstanding securities eligible to
vote for the election of the Board (the "Company Voting Securities"); provided,
however, that the event described in this paragraph (ii) shall not be deemed to
be a Change in Control by virtue of any of the following acquisitions: (A) by
the Company or any Subsidiary, (B) by any employee benefit plan sponsored or
maintained by the Company or any Subsidiary, or by any employee stock benefit
trust created by the Company or any Subsidiary, (C) by any underwriter
temporarily holding securities pursuant to an offering of such securities, (D)
pursuant to a Non-Qualifying Transaction (as defined in paragraph (iii)), (E)
pursuant to any acquisition by Executive or any group of persons including
Executive (or any entity controlled by Executive or any group of persons
including Executive); or (F) a transaction (other than one described in (iii)
below) in which Company Voting Securities are acquired from the Company, if a
majority of the Incumbent Directors approves a resolution providing expressly
that the acquisition pursuant to this clause (F) does not constitute a Change in
Control under this paragraph (ii);
(iii) the consummation of a merger, consolidation, share exchange or
similar form of corporate transaction involving the Company or any of its
Subsidiaries that requires the approval of the Company's shareholders, whether
for such transaction or the issuance of securities in the transaction (a
"Business Combination"), unless immediately following such Business Combination:
(A) more than 40% of the total voting power of (x) the corporation resulting
from the consummation of such Business Combination (the "Surviving Corporation")
or (y) if applicable, the ultimate parent corporation that directly or
indirectly has beneficial ownership of 100% of the voting securities eligible to
elect directors of the Surviving Corporation (the "Parent Corporation"), is
represented by Company Voting Securities that were outstanding immediately prior
to such Business Combination (or, if applicable, represented by shares into
3
which such Company Voting Securities were converted pursuant to such Business
Combination), and such voting power among the holders thereof is in
substantially the same proportion as the voting power of such Company Voting
Securities among the holders thereof immediately prior to the Business
Combination, (B) no person (other than any employee benefit plan sponsored or
maintained by the Surviving Corporation or the Parent Corporation or any
employee stock benefit trust created by the Surviving Corporation or the Parent
Corporation) is or becomes the beneficial owner, directly or indirectly, of 25%
or more of the total voting power of the outstanding voting securities eligible
to elect directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation) and (C) at least one-half of the members
of the board of directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation) were Incumbent Directors at the time of
the Board's approval of the execution of the initial agreement providing for
such Business Combination (any Business Combination which satisfies all of the
criteria specified in (A), (B) and (C) above shall be deemed to be a
"Non-Qualifying Transaction"); or
(iv) the shareholders of the Company approve a plan of complete liquidation
or dissolution of the Company or a sale of all or substantially all of the
Company's assets.
Notwithstanding the foregoing, a Change in Control of the Company shall not be
deemed to occur solely because any person acquires beneficial ownership of more
than 25% of the Company Voting Securities as a result of the acquisition of
Company Voting Securities by the Company that reduces the number of Company
Voting Securities outstanding; provided, that if after such acquisition by the
Company such person becomes the beneficial owner of additional Company Voting
Securities that increases the percentage of outstanding Company Voting
Securities beneficially owned by such person, a Change in Control of the Company
shall then occur.
(d) "Date of Termination" means (1) the effective date on which Executive's
employment by the Company terminates as specified in a prior written notice by
the Company or Executive, as the case may be, to the other, delivered pursuant
to Section 10, or (2) if Executive's employment by the Company terminates by
reason of death, the date of death of Executive.
(e) "Disability" means termination of Executive's employment by the Company
due to Executive's absence from Executive's duties with the Company on a
full-time basis for at least one hundred eighty (180) consecutive days as a
result of Executive's incapacity due to physical or mental illness.
4
(f) "Good Reason" means, without Executive's express written consent, the
occurrence of any of the following events after a Change in Control:
(i) (A) any change in the duties or responsibilities (including reporting
responsibilities) of Executive that is inconsistent in any material and adverse
respect with Executive's positions, duties, responsibilities or status with the
Company immediately prior to such Change in Control (including any material and
adverse diminution of such duties or responsibilities);
(ii) (A) a reduction by the Company in Executive's rate of annual base
salary as in effect immediately prior to such Change in Control, or as the same
may be increased from time to time thereafter, or (B) the failure by the Company
to pay Executive an annual bonus in respect of the year in which such Change in
Control occurs or any subsequent year in an amount greater than or equal to the
annual bonus earned for the year prior to the year in which such Change in
Control occurs, provided that Executive has met any requisite performance
criteria threshold necessary to the payment of such annual bonus in respect of
the year in which such Change in Control occurs or such subsequent year.
(iii) any requirement of the Company that Executive (A) be based anywhere
more than thirty (30) miles from the office where Executive is located at the
time of the Change in Control or (B)endure overnight travel on Company business
to an extent substantially greater than the travel obligations of Executive
immediately prior to such Change in Control;
(iv) the failure of the Company to (A) continue in effect any employee
benefit plan, compensation plan, welfare benefit plan or material fringe benefit
plan in which Executive is participating immediately prior to such Change in
Control or the taking of any action by the Company that would adversely affect
Executive's participation in or reduce Executive's benefits under any such plan,
unless Executive is permitted to participate in other plans providing Executive
with the same benefits that the party effecting the Change in Control (or, if
applicable, its Parent Corporation) provides to its most senior executive
officers (or, in the case of a Parent Corporation, the most senior executive
officers of its principal banking or financial services subsidiary) or (B)
provide Executive with paid time-off in accordance with the most favorable
time-off policies of the Company and its affiliated companies as in effect for
Executive immediately prior to such Change in Control, including the crediting
of all service for which Executive had been credited under such vacation
policies prior to the Change in Control; or
5
(v) the failure of the Company to obtain the assumption (and, if
applicable, guarantee) agreement from any successor (and Parent Corporation) as
contemplated in Section 9(b).
Notwithstanding anything herein to the contrary, termination of employment by
Executive for any reason during the 30-day period commencing six (6) months
after the date of a Change in Control shall constitute Good Reason.
An isolated, insubstantial and inadvertent action taken in good faith and
which is remedied by the Company within ten (10) days after receipt of notice
thereof given by Executive shall not constitute Good Reason. Executive's right
to terminate employment for Good Reason shall not be affected by Executive's
incapacities due to mental or physical illness and Executive's continued
employment shall not constitute consent to, or a waiver of rights with respect
to, any event or condition constituting Good Reason; provided, however, that
Executive must provide notice of termination of employment within one-hundred
twenty (120) days following Executive's knowledge of an event constituting Good
Reason or such event shall not constitute Good Reason under this Agreement.
(g) "Qualifying Termination" means a termination of Executive's employment
(i) by the Company other than for Cause or (ii) by Executive for Good Reason.
Termination of Executive's employment on account of death, Disability or
Retirement shall not be treated as a Qualifying Termination.
(h) "Retirement" means the termination of Executive's employment on or
after the first of the month coincident with or following Executive's attainment
of age 65, or such later date as may be provided in a written agreement between
the Company and the Executive.
(i) "Subsidiary" means any corporation or other entity in which the Company
has a direct or indirect ownership interest of 50% or more of the total combined
voting power of the then outstanding securities or interests of such corporation
or other entity entitled to vote generally in the election of directors or in
which the Company has the right to receive 50% or more of the distribution of
profits or 50% of the assets upon liquidation or dissolution.
(j) "Termination Period" means the period of time beginning with a
Change in Control and ending eighteen (18) months following the end of the month
6
in which such Change in Control occurs. Notwithstanding anything in this
Agreement to the contrary, if (i) Executive's employment is terminated prior to
a Change in Control for reasons that would have constituted a Qualifying
Termination if they had occurred following a Change in Control; (ii) Executive
reasonably demonstrates that such termination (or Good Reason event) was at the
request of a third party who had indicated an intention or taken steps
reasonably calculated to effect a Change in Control; and (iii) a Change in
Control involving such third party (or a party competing with such third party
to effectuate a Change in Control) does occur, then for purposes of this
Agreement, the date immediately prior to the date of such termination of
employment or event constituting Good Reason shall be treated as a Change in
Control. For purposes of determining the timing of payments and benefits to
Executive under Section 4, the date of the actual Change in Control shall be
treated as Executive's Date of Termination under Section l(d).
2. Obligation of Executive. In the event of a tender or exchange offer,
proxy contest, or the execution of any agreement that, if consummated, would
constitute a Change in Control, Executive agrees not to voluntarily leave the
employ of the Company that may employ Executive, other than as a result of
Disability, Retirement or an event that would constitute Good Reason if a Change
in Control had occurred, until the Change in Control occurs or, if earlier, such
tender or exchange offer, proxy contest, or agreement is terminated or
abandoned.
3. Term of Agreement. This Agreement shall be effective on the date hereof
and shall continue in effect until the Company shall have given eighteen (18)
months' written notice of cancellation; provided, that, notwithstanding the
delivery of any such notice, this Agreement shall continue in effect for a
period of eighteen (18) months following the end of the month in which a Change
in Control occurs, if such Change in Control shall have occurred during the term
of this Agreement. Notwithstanding anything in this Section to the contrary,
this Agreement shall terminate if Executive or the Company terminates
Executive's employment prior to a Change in Control except as provided in
Section 1(j).
4. Payments Upon Termination of Employment.
(a) Qualifying Termination -- Cash Payment. If during the Termination
Period the employment of Executive shall terminate pursuant to a Qualifying
Termination, then the Company shall provide to Executive, subject to the
provisions of Section 11 hereunder:
7
(i) within twenty (20) days following the Date of Termination a lump-sum
cash amount equal to the sum of (A) Executive's base salary through the Date of
Termination and any bonus amounts that have become payable, to the extent not
theretofore paid or deferred, (B) a pro rata portion of Executive's annual bonus
for the fiscal year in which Executive's Date of Termination occurs in an amount
at least equal to (x) Executive's Bonus Amount, multiplied by (y) a fraction,
the numerator of which is the number of days in the fiscal year in which the
Date of Termination occurs through the Date of Termination and the denominator
of which is three hundred sixty-five (365), and reduced by (z) any amounts paid
from the Company's annual incentive plan for the fiscal year in which
Executive's Date of Termination occurs and (C) any accrued vacation pay, to the
extent not theretofore paid; plus
(ii) within twenty (20) days following the Date of Termination, a lump-sum
cash amount equal to the sum of (i) one and one-half (1.5) times Executive's
highest annual rate of base salary during the 12-month period immediately prior
to Executive's Date of Termination, plus (ii) one and one-half (1.5) times
Executive's Bonus Amount; provided, however, that if Executive's Date of
Termination is within eighteen (18) months of the earliest date on which
termination by the Executive could otherwise be considered a Retirement
("Retirement Date"), such sum shall be multiplied by a fraction ("Adjustment
Fraction"), the numerator of which is equal to the number of full months from
the Date of Termination to the Retirement Date, and the denominator of which is
equal to 18.
(b) Qualifying Termination -- Continued Coverage. If during the Termination
Period the employment of Executive shall terminate pursuant to a Qualifying
Termination, the Company shall continue to provide, for a period of eighteen
(18) months following Executive's Date of Termination, Executive (and
Executive's dependents, if applicable) with the same level of medical, dental,
accident, disability and life insurance benefits upon substantially the same
terms and conditions (including contributions required by Executive for such
benefits) as existed immediately prior to Executive's Date of Termination (or,
if more favorable to Executive, as such benefits and terms and conditions
existed immediately prior to the Change in Control); provided, however, that if
Executive's Date of Termination is within eighteen (18) months of Executive's
Retirement Date, the number of years of continued benefits coverage (as
described in this Section 4(b)) shall be equal to the product of (x) one and
one-half, and (y) the Adjustment Fraction; provided, further, if Executive
cannot continue to participate in the Company plans providing such benefits, the
Company shall otherwise provide such benefits on the same after-tax basis as if
continued participation had been permitted. Notwithstanding the foregoing, in
the event Executive becomes reemployed with another employer and becomes
eligible to receive welfare benefits from such employer, the welfare benefits
8
described herein shall be secondary to such benefits during the period of
Executive's eligibility, but only to the extent that the Company reimburses
Executive for any increased cost and provides any additional benefits necessary
to give Executive the benefits provided hereunder. The Executive's accrued
benefits as of the Date of Termination under the Company's employee benefit
plans shall be paid to Executive in accordance with the terms of such plans.
(c) Qualifying Termination -- SERP Accrual. If during the Termination
Period the employment of Executive shall terminate pursuant to a Qualifying
Termination, the Company shall provide Executive with eighteen (18) additional
months of service credit under all non-qualified retirement plans and excess
benefit plans in which the Executive participated as of his Date of Termination;
provided, however, that if Executive's Date of Termination is within eighteen
(18) months of Executive's Retirement Date, the number of years of additional
service credit (as described in this Section 4(c)) shall be equal to the product
of (x) one and one-half, and (y) the Adjustment Fraction.
(d) Qualifying Termination -- Voluntary Reduction of Payments. If during
the Termination Period the employment of Executive shall terminate pursuant to a
Qualifying Termination, Executive shall have the right to direct that the
Company reduce the amounts which it is otherwise required to pay to Executive
under Section 4 of this Agreement to the Safe Harbor Cap (as defined in Section
5(a) of this Agreement).
(e) Other than Qualifying Termination. If during the Termination Period the
employment of Executive shall terminate other than by reason of a Qualifying
Termination, then the Company shall pay to Executive within thirty (30) days
following the Date of Termination, a lump-sum cash amount equal to the sum of
(1) Executive's base salary through the Date of Termination and any bonus
amounts that have become payable, to the extent not theretofore paid or
deferred, and (2) any accrued vacation pay, to the extent not theretofore paid.
The Company may make such additional payments, and provide such additional
benefits, to Executive as the Company and Executive may agree in writing. The
Executive's accrued benefits as of the Date of Termination under the Company's
employee benefit plans shall be paid to Executive in accordance with the terms
of such plans.
5. Certain Additional Payments by the Company. (a) Anything in this
Agreement to the contrary notwithstanding, in the event it shall be determined
that any payment, award, benefit or distribution (or any acceleration of any
9
payment, award, benefit or distribution) by the Company (or any affiliated
entity) or any entity that effectuates a Change in Control (or any of its
affiliated entities) to or for the benefit of Executive (whether pursuant to the
terms of this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 5) (the "Payments") would be
subject to the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended (the "Code"), or any interest or penalties are incurred by
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Company shall pay to Executive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by Executive of all
taxes (including any Excise Tax) imposed upon the Gross-Up Payment, Executive
retains an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax
imposed upon the Payments and (y) the product of any deductions disallowed
because of the inclusion of the Gross-up Payment in Executive's adjusted gross
income and the highest applicable marginal rate of federal income taxation for
the calendar year in which the Gross-up Payment is to be made. For purposes of
determining the amount of the Gross-up Payment, the Executive shall be deemed to
(i) pay federal income taxes at the highest marginal rates of federal income
taxation for the calendar year in which the Gross-up Payment is to be made, (ii)
pay applicable state and local income taxes at the highest marginal rate of
taxation for the calendar year in which the Gross-up Payment is to be made, net
of the maximum reduction in federal income taxes which could be obtained from
deduction of such state and local taxes and (iii) have otherwise allowable
deductions for federal income tax purposes at least equal to the Gross-up
Payment.
Notwithstanding the foregoing provisions of this Section 5(a), if it shall be
determined that Executive is entitled to a Gross-Up Payment, but that the
Payments would not be subject to the Excise Tax if the Payments were reduced by
an amount that is less than 5% of the portion of the Payments that would be
treated as "parachute payments" under Section 28OG of the Code, then the amounts
payable to Executive under this Agreement shall be reduced (but not below zero)
to the maximum amount that could be paid to Executive without giving rise to the
Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to
Executive. The reduction of the amounts payable hereunder, if applicable, shall
be made by reducing first the payments under Section 4(a)(ii), unless an
alternative method of reduction is elected by Executive. For purposes of
reducing the Payments to the Safe Harbor Cap, only amounts payable under this
Agreement (and no other Payments) shall be reduced. If the reduction of the
amounts payable hereunder would not result in a reduction of the Payments to the
Safe Harbor Cap, no amounts payable under this Agreement shall be reduced
pursuant to this provision.
10
(b) Subject to the provisions of Section 5(a), all determinations required
to be made under this Section 5, including whether and when a Gross-Up Payment
is required, the amount of such Gross-Up Payment, the reduction of the Payments
to the Safe Harbor Cap and the assumptions to be utilized in arriving at such
determinations, shall be made by the public accounting firm that is retained by
the Company as of the date immediately prior to the Change in Control (the
"Accounting Firm"), which shall provide detailed supporting calculations both to
the Company and Executive within fifteen (15) business days of the receipt of
notice from the Company or the Executive that there has been a Payment, or such
earlier time as is requested by the Company (collectively, the "Determination").
In the event that the Accounting Firm is serving as accountant or auditor for
the individual, entity or group effecting the Change in Control, Executive may
appoint another regionally or nationally recognized public accounting firm to
make the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company and the Company shall enter
into any agreement requested by the Accounting Firm in connection with the
performance of the services hereunder. The Gross-up Payment under this Section 5
with respect to any Payments shall be made no later than thirty (30) days
following such Payment. If the Accounting Firm determines that no Excise Tax is
payable by Executive, it shall furnish Executive with a written opinion to such
effect, and to the effect that failure to report the Excise Tax, if any, on
Executive's applicable federal income tax return will not result in the
imposition of a negligence or similar penalty. In the event the Accounting Firm
determines that the Payments shall be reduced to the Safe Harbor Cap, it shall
furnish Executive with a written opinion to such effect. The Determination by
the Accounting Firm shall be binding upon the Company and Executive. As a result
of the uncertainty in the application of Section 4999 of the Code at the time of
the Determination, it is possible that Gross-Up Payments which will not have
been made by the
11
Company should have been made ("Underpayment") or Gross-up Payments are made by
the Company which should not have been made ("Overpayment"), consistent with the
calculations required to be made hereunder. In the event that the Executive
thereafter is required to make payment of any Excise Tax or additional Excise
Tax, the Accounting Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment (together with interest at the rate provided
in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Company to
or for the benefit of Executive. In the event the amount of the Gross-up Payment
exceeds the amount necessary to reimburse the Executive for his Excise Tax, the
Accounting Firm shall determine the amount of the Overpayment that has been made
and any such Overpayment (together with interest at the rate provided in Section
1274(b)(2) of the Code) shall be promptly paid by Executive (to the extent he
has received a refund if the applicable Excise Tax has been paid to the Internal
Revenue Service) to or for the benefit of the Company. Executive shall
cooperate, to the extent his expenses are reimbursed by the Company, with any
reasonable requests by the Company in connection with any contests or disputes
with the Internal Revenue Service in connection with the Excise Tax.
6. Withholding Taxes. The Company may withhold from all payments due to
Executive (or his beneficiary or estate) hereunder all taxes that, by applicable
federal, state, local or other law, the Company is required to withhold
therefrom.
7. Reimbursement of Expenses. If any contest or dispute shall arise under
this Agreement involving termination of Executive's employment with the Company
or involving the failure or refusal of the Company to perform fully in
accordance with the terms hereof, the Company shall reimburse Executive, on a
current basis, for all reasonable legal fees and expenses, if any, incurred by
Executive in connection with such contest or dispute (regardless of the result
thereof), together with interest in an amount equal to the prime rate as
published in the The Wall Street Journal from time to time in effect, but in no
event higher than the maximum legal rate permissible under applicable law, such
interest to accrue from the date the Company receives Executive's statement for
such fees and expenses through the date of payment thereof, regardless of
whether or not Executive's claim is upheld by an arbitration panel.
8. Scope of Agreement. Nothing in this Agreement shall be deemed to entitle
Executive to continued employment with the Company or its Subsidiaries, and if
Executive's employment with the Company shall terminate prior to a Change in
Control, Executive shall have no further rights under this Agreement (except as
otherwise provided hereunder); provided, however, that any termination of
Executive's employment during the Termination Period shall be subject to all of
the provisions of this Agreement.
9. Successors; Binding Agreement.
(a) This Agreement shall not be terminated by any Business Combination. In
the event of any Business Combination, the provisions of this Agreement shall be
binding upon the Surviving Corporation, and such Surviving Corporation shall be
treated as the Company hereunder.
12
(b) The Company agrees that in connection with any Business Combination, it
will cause any successor entity to the Company unconditionally to assume (and
for any Parent Corporation in such Business Combination to guarantee), by
written instrument delivered to Executive (or his beneficiary or estate), all of
the obligations of the Company hereunder. Failure of the Company to obtain such
assumption and guarantee prior to the effectiveness of any such Business
Combination that constitutes a Change in Control shall be a breach of this
Agreement and shall constitute Good Reason hereunder and shall entitle Executive
to compensation and other benefits from the Company in the same amount and on
the same terms as Executive would be entitled hereunder if Executive's
employment were terminated following a Change in Control by reason of a
Qualifying Termination. For purposes of implementing the foregoing, the date on
which any such Business Combination becomes effective shall be deemed the date
Good Reason occurs, and shall be the Date of Termination if requested by
Executive.
(c) This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive shall die
while any amounts would be payable to Executive hereunder had Executive
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to such person or persons
appointed in writing by Executive to receive such amounts or, if no person is so
appointed, to Executive's estate.
10. Notice.
(a) For purposes of this Agreement, all notices and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been dully given when delivered or five (5) days after deposit in the United
States mail, certified and return receipt requested, postage prepaid, addressed
as follows:
If to Executive: At the address set forth below
the signatory
If to the Company: Indiana United Bancorp
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Chairman of the Board
13
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(b) A written notice of Executive's date of termination by the Company or
Executive, as the case may be, to the other, shall (i) indicate the specific
termination provision in this Agreement relied upon, (ii) to the extent
applicable, set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Executive's employment under the provision
so indicated and (iii) specify the Date of Termination (which date shall not be
less than fifteen (15) (thirty (30), if termination is by the Company for
Disability) nor more than sixty (60) days after the giving of such notice). The
failure by Executive or the Company to set forth in such notice any fact or
circumstance that contributes to a showing of Good Reason or Cause shall not
waive any right of Executive or the Company hereunder or preclude Executive or
the Company from asserting such fact or circumstance in enforcing Executive's or
the Company's rights hereunder.
11. Full Settlement; Resolution of Disputes. The Company's obligation to
make any payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall be in lieu of and in full settlement of all other
severance payments to Executive under any other severance or employment
agreement between Executive and the Company, and any severance plan of the
Company. The Company's obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right or action that
the Company may have against Executive or others. In no event shall Executive be
obligated to seek other employment or take other action by way of mitigation of
the amounts payable to Executive under any of the provisions of this Agreement
and, except as provided in Section 4(b), such amounts shall not be reduced
whether or not Executive obtains other employment. Any dispute or controversy
arising under or in connection with this Agreement shall be settled exclusively
by arbitration in Indianapolis, Indiana by three arbitrators in accordance with
the rules of the American Arbitration Association then in effect. Judgment may
be entered on the arbitrators' award in any court having jurisdiction. The
Company shall bear all costs and expenses arising in connection with any
arbitration proceeding pursuant to this Section.
14
12. Employment with Subsidiaries. Employment with the Company for purposes
of this Agreement shall include employment with any Subsidiary.
13. Survival. The respective obligations and benefits afforded to the
Company and Executive as provided in Sections 4 (to the extent that payments or
benefits are owed as a result of a termination of employment that occurs during
the term of this Agreement), 5 (to the extent that Payments are made to
Executive as a result of a Change in Control that occurs during the term of this
Agreement), 6, 7, 9(c) and 11 shall survive the termination of this Agreement.
14. Governing Law; Validity. The interpretation, construction and
performance of this Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Indiana without regard to the
principle of conflicts of laws. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which other provisions shall remain in
full force and effect.
15. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
16. Miscellaneous. No provision of this Agreement may be modified or waived
unless such modification or waiver is agreed to in writing and signed by
Executive and by a duly authorized officer of the Company. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. Except as set forth
in Sections l(b) and l(f), the failure by Executive or the Company to insist
upon strict compliance with any provision of this Agreement or to assert any
right Executive or the Company may have hereunder shall not be deemed to be a
waiver of such provision or right or any other provision or right of this
Agreement. Except as otherwise specifically provided herein, the rights of, and
benefits payable to, Executive, his estate or his beneficiaries pursuant to this
Agreement are in addition to any rights of, or benefits payable to, Executive,
his estate or his beneficiaries under any other employee benefit plan or
compensation program of the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a
duly authorized officer of the Company and Executive has executed this
Agreement, in each case as of the day and year first set forth above.
15
INDIANA UNITED BANCORP
By: /s/ Xxxxx X. Xxxxx, Xx.
--------------------------------
Xxxxx X. Xxxxx, Xx., President
and Chief Executive Officer
(the "Company")
/s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
000 X. Xxxx
Xxxxxxxxxx, XX 00000
("Executive")
16
