KEY EMPLOYEE SEVERANCE AGREEMENT
Exhibit
99.1
KEY
EMPLOYEE
This
Agreement is entered into as of the 20th day of May, 2010, by and between the
FEDERAL HOME LOAN BANK OF INDIANAPOLIS, a corporation organized under the laws
of the United States (the “Bank”) and XXXXXX X. XXXXXX (the
“Executive”).
WHEREAS,
the Bank recognizes the valuable services that the Executive will provide and
desires to be assured that the Executive will continue his active participation
in the business of the Bank; and
WHEREAS,
the Executive desires assurance that, in the event of any consolidation, change
in control or reorganization of the Bank, he will continue to have the
responsibility and status he has earned, either with the Bank or with a
successor to the Bank;
NOW,
THEREFORE, in consideration of the promises and the mutual agreements herein
contained, the Bank and the Executive hereby agree as follows:
1. Definitions.
“Bank”
shall mean the Federal Home Loan Bank of Indianapolis and any other entity
within the definition of “Bank” in Section 6(a) hereof.
“Cause”
shall mean (i) the continued failure of the Executive to perform his duties with
the Bank (other than any such failure resulting from Disability), after a demand
for performance, pursuant to a resolution of the Bank’s Board of Directors, is
delivered to the Executive by the Chair of the Board of Directors of the Bank,
which specifically identifies the manner in which the Executive has not
performed his duties, (ii) the personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, or willful violation of any law, rule or
regulation (other than routine traffic violations or similar offenses); or (iii)
the removal of the Executive by the Bank at the direction of the Federal Housing
Finance Agency, or by the Federal Housing Finance Agency, or by or at the
direction of any successor to the Federal Housing Finance Agency, pursuant
to 12 U.S.C. §§ 4615, 4616, 4617 or 4636a, or any statutory provisions
subsequently enacted that grant removal authority to such agency, or any rules
or regulations issued thereunder.
“Compensated
Termination” shall have the meaning set forth in Section 2(a).
“Disability”
shall mean, as a result of the Executive’s incapacity due to physical or mental
illness, the Executive shall have been absent from his duties with the Bank for
an aggregate of twelve (12) out of fifteen (15) consecutive months and, within
thirty (30) days after a Notice of Termination is thereafter given by the Bank
to the Executive, the Executive shall not have returned to the full-time
performance of the Executive’s duties.
“Good
Reason” shall mean any of the following:
(a) during
the period (1) beginning with the earliest to occur of the following three
dates, as applicable: (A) twelve (12) months prior to the execution of a
definitive agreement regarding a Reorganization of the Bank or (B) if a
Reorganization has been mandated by federal statute, rule, regulation or
directive, twelve (12) months prior to the effective date of such Reorganization
or (C) twelve (12) months prior to the adoption of a plan or proposal for the
liquidation or dissolution of the Bank, and (2) ending twenty-four (24) months
after the effective date of such Reorganization,
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(i)
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a
material change in the Executive’s status, position, job title or
principal duties and responsibilities as a key employee of the Bank which
does not represent a promotion from the Executive’s status and position as
in effect as of the date hereof (“Position”),
or
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(ii)
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the
assignment to the Executive of any duties or responsibilities (or removal
of any duties or responsibilities), which assignment or removal is
materially inconsistent with such Position,
or
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(iii)
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any
removal of the Executive from such Position (including, without
limitation, all demotions and harassing assignments), except in connection
with the termination of the Executive’s employment for Cause or
Disability, or as a result of the Executive’s
death;
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(b) within
twenty-four (24) months after the effective date of a Reorganization of the
Bank, (a) a reduction by the Bank in the Executive’s base salary as in effect
immediately prior to such Reorganization, or (b) the Bank’s (or its successor’s)
failure to increase (within 12 months of the Executive’s last increase in base
salary) the Executive’s base salary after a Reorganization of the Bank in an
amount which is not less than 50% of the average percentage increase in base
salary for all officers of the Bank effected in the preceding twelve (12)
months;
(c) within
twenty-four (24) months after the effective date of a Reorganization of the
Bank, (a) any failure by the Bank to continue in effect any plan or arrangement,
including, without limitation, benefit and incentive plans, in which the
Executive is participating immediately prior to such Reorganization (hereinafter
referred to as “Plans”), unless such Plans have been replaced with similar
benefits that are not materially less than the Executive’s benefits under such
Plans, or (b) the taking of any action by the Bank which would adversely affect
the Executive’s participation in or materially reduce the Executive’s benefits
under any such Plan or in or under fringe benefits enjoyed by the Executive
immediately prior to the time of such Reorganization of the Bank;
(d) any
material breach by the Bank of any provisions of this Agreement or any other
agreement with the Executive; or
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(e) any
failure by the Bank or its successors and assigns to obtain the assumption of
this Agreement by any successor or assign of the Bank.
“Notice
of Termination” shall mean a written notice which shall indicate those specific
termination provisions in this Agreement upon which the Bank or the Executive,
as the case may be, has relied for such termination and which sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive’s employment under the provision so
indicated.
“Payment
Determination Date” shall have the meaning set forth in Section
2(b).
“Reorganization”
of the Bank shall mean the occurrence at any time of any of the following
events:
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(i)
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The
Bank is merged or consolidated with or reorganized into or with another
bank or other entity, or another bank or other entity is merged or
consolidated into the Bank;
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(ii)
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The
Bank sells or transfers all, or substantially all of its business and/or
assets to another bank or other
entity;
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(iii)
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More
than fifty percent (50%) of the total market value or total voting power
of all ownership interests in the Bank is acquired, within any 12-month
period, by one person or entity or by more than one person or entity
acting as a group; or
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(iv)
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The
liquidation or dissolution of the
Bank.
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Provided
that the term “Reorganization” shall not include any Reorganization that is
mandated by federal statute, rule, regulation, or directive, including 12 U.S.C.
§ 1421, et seq., as
amended, and 12 U.S.C. § 4501 et seq., as amended, and
which the Director of the Federal Housing Finance Agency (or successor agency)
has determined should not be a basis for making payment under this Agreement, by
reason of the capital condition of the Bank or because of unsafe or unsound
acts, practices, or condition ascertained in the course of the Agency’s
supervision of the Bank or because any of the conditions identified in 12
U.S.C. § 4617(a)(3) are met with respect to the Bank (which conditions do not
result solely from the mandated reorganization itself, or from action that the
Agency has required the Bank to take under 12 U.S.C. § 1431(d)).
“Retirement”
shall mean the planned and voluntary termination by the Executive of his
employment on or after reaching the earliest retirement age permitted by the
Bank’s qualified retirement plans.
2. Compensated
Termination.
(a) Compensated
Termination. If the Executive incurs a Compensated Termination
while the Executive is employed by the Bank or within twenty-four (24) months
after the effective date of a Reorganization of the Bank (whether the Executive
is then employed by the Bank or a successor to the Bank as a result of such
Reorganization), the Executive shall be entitled to the benefits provided in
Section 4(a). For purposes of this Agreement, a “Compensated
Termination” means termination of the Executive’s employment under either of the
following circumstances:
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(i)
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By
the Executive for Good Reason; or
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(ii)
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By
the Bank, or by its successor in a Reorganization, without Cause at any
time during the period (1) beginning with the earliest to occur of the
following three dates, as applicable (A) twelve (12) months prior to the
execution of a definitive agreement regarding a Reorganization, or (B) if
a Reorganization has been mandated by federal statute, rule, regulation or
directive, twelve (12) months prior to the effective date of such
Reorganization, or (C) twelve (12) months prior to the adoption of a plan
or proposal for the liquidation or dissolution of the Bank, and (2) ending
twenty-four (24) months after the effective date of such
Reorganization.
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(b) Payment Determination
Date. “Payment Determination Date,” for purposes of
determining when a payment resulting from a Compensated Termination must be made
pursuant to Section 4(a), shall mean the effective date of the termination of
the Executive’s employment with the Bank if such termination is a “Compensated
Termination.”
(c) Non-Compensated
Termination. For the avoidance of doubt, none of the following
events shall result in any payment to the Executive for a Compensated
Termination under Section 4(a):
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(i)
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The
termination of employment by the Executive without Good
Reason;
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(ii)
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The
termination of the Executive’s employment for Cause by the Bank or its
successor in a Reorganization;
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(iii)
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The
termination of the Executive’s employment Without Cause by the Bank or its
successor in a Reorganization, (1) prior to the date which is the earliest
to occur of the following three dates, as applicable: (A) twelve (12)
months prior to the execution of a definitive agreement regarding a
Reorganization of the Bank or (B) if a Reorganization has been mandated by
federal statute, rule, regulation or directive, twelve (12) months prior
to the effective date of such Reorganization or (C) twelve (12) months
prior to the adoption of a plan or proposal for the liquidation or
dissolution of the Bank, or (2) more than twenty-four (24) months after
the effective date of a
Reorganization;
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(iv)
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The
termination of the Executive’s employment by the Bank or its successor in
a Reorganization for Disability;
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(v)
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The
death of the Executive; or
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(vi)
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The
Retirement of the Executive, if the Executive has delivered written notice
to the Bank, before the commencement of the time period described in
Section 2(c)(iii) above, of his intention to
retire.
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3. Termination of
Employment.
(a) Termination by the
Bank. The Bank may terminate the employment of the Executive
as follows:
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(i)
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For
Cause upon the adoption of a resolution by the affirmative vote of not
less than a majority of the entire membership of the Bank’s Board of
Directors at a meeting of the Board (after reasonable notice to the
Executive and an opportunity for the Executive, together with counsel, to
be heard by the Board), finding that in the good faith opinion of the
Board the Executive was guilty of conduct set forth in the definition of
“Cause” in Section 1 hereof and specifying the particulars thereof in
detail. A vote of the Board is not required if the Executive is
removed for cause by the Bank at the direction of the Federal Housing
Finance Agency, or by the Federal Housing Finance Agency, or by or at
the direction of any successor to the Federal Housing Finance Agency,
pursuant to 12 U.S.C. §§ 4615, 4616, 4617 or 4636a, or any statutory
provisions subsequently enacted that grant removal authority to such
agency, or any rules or regulations issued
thereunder.;
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(ii)
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Without
Cause;
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(iii)
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Upon
the Disability of the Executive;
and
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(iv)
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Upon
the death of the Executive.
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(b) Termination by
Executive. The Executive may terminate his employment with the
Bank as follows:
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(i)
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For
Good Reason;
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(ii)
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Without
Good Reason; or
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(iii)
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Upon
the Executive’s Retirement, in which case the Executive shall be entitled
to all benefits under any retirement plan of the Bank and other plans to
which the Executive is a party.
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(c) Preservation of Compensated
Termination. The provisions of Sections 3(a) and 3(b) are
included in this Agreement for clarification of the rights of termination of the
employment relationship between the Bank and the Executive, but such provisions
shall not prejudice the Executive’s right to receive payments or benefits
required to be provided to the Executive if any such termination is a
“Compensated Termination.”
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(d) Notice of
Termination.
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(i)
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Any
termination by the Bank for Disability or Cause shall be communicated by a
Notice of Termination; provided, however, that the failure by the Bank to
give notice in such circumstances shall not constitute a Compensated
Termination.
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(ii)
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Any
termination of employment by the Executive for Good Reason will be a
Compensated Termination only if the Executive gives Notice of Termination
to the Bank therefore within ninety (90) days of the event or occurrence
which constitutes “Good Reason,” provided, further, that, if the Executive
gives such Notice of Termination to the Bank in a timely manner, the
Executive shall not be deemed to have waived any of his rights hereunder
in the event he remains in the employment of the Bank while he and the
Bank engage in good faith discussions to resolve any event or occurrence
which constitutes “Good Reason.” The Bank has a thirty (30) day
period following receipt of notice during which it may remedy the
condition and not be required to pay the
amount.
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(iii)
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Any
termination by the Bank without Cause or by the Executive without Good
Reason shall be communicated to the other party in accordance with the
general notice provisions of this
Agreement.
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4. Payment for Compensated
Termination.
(a) In the
event of a Compensated Termination, the Bank shall pay or provide the Executive
the following:
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(i)
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an
amount equal to two (2) times the average of the three (3) preceding
calendar years’ base salary, bonuses, and any other cash compensation
(taxable or non-taxable) paid to the Executive during such years, except
for salary deferrals that are included under (ii) below (provided that for
any calendar year in which the Executive received base salary for less
than the entire calendar year, the amount shall be annualized as if such
amount had been payable for the entire calendar year);
plus
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(ii)
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an
amount equal to two (2) times the average of the Executive’s salary
deferrals and employer matching contributions under the Bank’s 2005
Supplemental Executive Thrift Plan (“SETP”) and the Financial Institutions
Thrift Plan for the three (3) preceding calendar years;
plus
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(iii)
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an
amount equal to two (2) times the average of the three (3) preceding
calendar years’ taxable portion of the Executive’s automobile allowance
provided by the Bank; plus
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(iv)
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an
additional amount under the Bank’s non-qualified 2005 Supplemental
Executive Retirement Plan (“SERP”), equal to the additional annual benefit
under Section 3.1 of the SERP with the benefit under Section 3.1 being
calculated as if:
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(1)
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the
Executive is three (3) years older than his actual
age;
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(2)
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the
Executive had three (3) additional years of service at the same annual
rate of compensation (as defined in the Regulations Governing the
Comprehensive Retirement Program of the Financial Institutions Retirement
Fund as from time to time amended, and as adopted by the Bank) in effect
for the 12 month period ending on the December 31 date which immediately
precedes the Compensated Termination (including any compensation deferred
by the Executive);
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(3)
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the
Executive maintained the same deferral election under the SETP as in
effect on the date immediately preceding the Compensated Termination;
and
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(4)
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the
SERP continued in effect without change in accordance with its terms as in
effect on the date immediately preceding the Compensated
Termination.
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The Bank
shall distribute such amounts (except the amount provided under Section
4(a)(iv)) in a lump sum in cash within twenty (20) days of the Payment
Determination Date. The amount provided under Section 4(a)(iv) above
shall be distributed at the same time as the Executive’s benefit under the SERP
is distributed.
(b) If the
aggregate payments received or to be received by the Executive pursuant to this
Agreement exceed the highest amount permissible without triggering payment of an
excise tax under Sections 280G and 4999 of the Internal Revenue Code of 1986, as
amended, (“Code”) including without limitation, any successor excise tax, tax
penalties or alternative federal tax which is not ordinary federal income tax,
the Executive will receive from the Bank an additional gross-up payment
sufficient to provide him with the same after-tax benefits as he would have
received had the excise tax under the Code not been imposed. This
payment will be added to and paid at the same time as the payment under Section
4(a).
(c) Notwithstanding
Section 4(a), if the Bank is not in compliance with any applicable regulatory
capital or regulatory leverage requirement or if the payment would cause the
Bank to fall below applicable regulatory requirements, such payment shall be
deferred until such time as the Bank achieves compliance with its regulatory
requirement.
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(d) To the
extent the Executive is eligible, he shall continue after a Compensated
Termination to be covered by the Bank’s medical and dental insurance plans in
effect immediately prior to the Compensated Termination, for thirty-six (36)
months, subject to the Executive’s payment of the Employee’s portion of the cost
of such coverage. In the event the Executive is ineligible under the
terms of such plans to continue to be so covered or such plans shall have been
modified, the Bank shall provide through other sources coverage which is
substantially equivalent to the coverage provided immediately prior to the
Compensated Termination, subject to the Executive’s payment of a comparable
portion of the cost of such coverage as under the Bank’s medical and dental
insurance plans. If during this time period the Executive should
enter into employment providing for comparable medical and dental insurance
coverage, his participation in the medical and dental plans provided by the Bank
shall cease.
(e) The Bank
shall reimburse the Executive for all reasonable legal, accounting, financial
advisory and actuarial expenses incurred by the Executive: (i) before or at the
time of the execution of this Agreement, or (ii) at the time any payments are
made upon the occurrence of a Compensated Termination if the Executive submits
to the Bank a valid claim substantiating the expense within 40 days of incurring
the expense. Each reimbursement will be paid to the Executive within
15 days following the Bank’s receipt of a valid claim substantiating the
expense.
(f) The
Executive shall be responsible for the payment of all federal, state and local
income taxes which may be due with respect to any payments made to the Executive
pursuant to this Agreement, except for the ordinary federal and state income tax
owed by the Executive due to the gross-up payment made to the Executive under
Section 4(b) of this Agreement.
5. No Obligation to Seek
Further Employment; No Effect on Other Contractual Rights.
(a) The
Executive shall not be required to seek other employment, nor shall any payment
made under this Agreement be reduced by any compensation received from other
employment, except as set forth in the last sentence of Section
4(d).
(b) The
provisions of this Agreement, and any payment provided for hereunder, shall not
reduce any amounts otherwise payable, or in any way diminish the Executive’s
existing rights, or rights which would accrue solely as a result of the passage
of time, under any Plan.
6. Successor to the
Bank.
(a) This
Agreement is binding upon the successors and assigns of the Bank. The
Bank and its successors and assigns will require any successor or assign
(whether direct or indirect, in a Reorganization, by operation of law, or
otherwise) to all or substantially all of the business and/or assets of the
Bank, to enter into a written agreement in form and substance satisfactory to
the Executive, expressly, absolutely and unconditionally to assume and agree to
perform this Agreement in the same manner and to the same extent that the Bank
would be required to perform it if no such succession or assignment had taken
place. In such event, the Bank agrees that it shall pay or shall
cause such employer to pay any amounts owed to the Executive pursuant to Section
4 hereof.
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As used
in this Agreement, “Bank” shall mean the Bank as hereinbefore defined and any
successor or assign to its business and/or assets as aforesaid which executes
and delivers the agreement provided for in this Section 6 or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation of
law. If at any time during the term of this Agreement the Executive
is employed by any corporation a majority of the voting securities of which is
then owned by the Bank, the term “Bank” shall include such
employer. Whether or not another entity becomes the successor or
assign of the Bank under this Agreement, the maximum amount which the Executive
may receive from all sources under this Agreement in a Compensated Termination
shall be the amounts set forth in Section 4 hereof.
(b) This
Agreement shall inure to the benefit of and be enforceable by the Executive’s
personal and legal representatives, executors, administrators, successors,
heirs, distributees, and legatees. If the Executive should die while
any amounts are still payable to him hereunder, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the beneficiary designated by notice in writing executed by the
Executive and filed with the Bank, or failing such designation, to the
Executive’s estate.
7. Late Payment of
Benefits. Any
payment made later than the time provided for in Section 4(a) of this Agreement
for whatever reason, including, without limitation, the reasons set forth in
Section 4(c), shall include interest at the Bank’s cost of funds plus five
percent (5%), which shall begin to accrue on the tenth (10th) day following the
Executive’s Payment Determination Date.
8. Employment
Rights. This
Agreement shall not confer upon the Executive any right to continue in the
employ of the Bank and shall not in any way affect the right of the Bank to
dismiss or otherwise terminate the Executive’s employment at any time and for
any reason with or without cause. This Agreement is not intended (i)
to be an employment agreement or (ii) to define all aspects of the employment
relationship between the Bank and the Executive including, but not limited to
applicable employment or benefit policies of the Bank. To the extent
there is any conflict between the terms hereof and the terms of any employment
or benefit policies of the Bank, the terms of this Agreement shall
control. Any payments or benefits to which the Executive may be
entitled under Section 4 hereof will not constitute wages for work performed by
the Executive.
9. Tax
Withholding. The
Bank will withhold from any amounts payable to Executive under this Agreement to
satisfy all applicable federal, state, local or other withholding
taxes. All amounts payable under Section 4(a) are considered “wages”
to be reported on Form W-2. The normal withholding rules for wages
apply. The Bank will also withhold any excise taxes owed under Code
Section 4999.
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10. Notice. For
purposes of this Agreement, notices and all other communications provided for in
the Agreement shall be in writing and shall be deemed to have been duly given
when delivered by hand, delivered by a nationally-recognized overnight courier
service, or mailed by United States registered mail, return receipt requested,
postage prepaid, as follows:
If to the
Bank:
0000
Xxxxxxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx
000
Xxxxxxxxxxxx,
Xxxxxxx 00000
Attention: Chairman
of the Board of Directors
With a
copy to the President
If to the
Executive:
Xxxxxx X.
Xxxxxx
0000
Xxxxxxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx
000
Xxxxxxxxxxxx,
Xxxxxxx 00000
or such
other address as either party may have furnished to the other in writing in
accordance herewith. Any notice shall be effective upon
receipt.
11. Legal Fees and
Expenses. The
Bank shall pay all reasonable legal fees and expenses which the Executive may
incur as a result of the Bank’s contesting the validity or enforceability of
this Agreement or the calculation of amounts payable hereunder so long as the
Executive is wholly or partially successful on the merits or the parties agree
to a settlement of the dispute.
12. Term. This
Agreement shall remain in effect during the employment of the Executive by the
Bank, its successors or assigns, and shall survive termination of such
employment until all payments and benefits, if any, under this Agreement have
been paid or satisfied.
13. Arbitration.
(a) Disputes
regarding this Agreement are subject to the Federal Home Loan Bank of
Indianapolis Agreement to Arbitrate by and between the Bank and the Executive
dated July 2, 2009 (“Arbitration Agreement”). No cancellation,
replacement or modification to the arbitration procedures under the Arbitration
Agreement shall be effective unless agreed to in writing by both the Bank and
the Executive. In the event of any conflict between the provisions of
this Agreement and the Arbitration Agreement, the provisions of this Agreement
shall control.
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(b) If within
thirty (30) days after any Notice of Termination is given, the party receiving
such Notice of Termination notifies the other party that a dispute exists
concerning the Termination, the parties shall promptly proceed to arbitration as
provided in (a) above. Notwithstanding the pendency of any such
dispute, the Bank shall continue to pay the Executive his base salary and
provide such other compensation and benefits, all as in effect immediately prior
to the Notice of Termination. If it is determined that the Executive
is not entitled to any compensation under Section 4 of this Agreement, the
Executive shall return all cash amounts to the Bank promptly following the date
of resolution by arbitration, with interest thereon commencing as of the date of
the resolution of the dispute by arbitration at the prime rate of interest as
published by the Wall Street
Journal from time to time. Any cash amounts paid to the
Executive pending the resolution of the dispute by arbitration shall offset any
amounts determined to be due to the Executive under Section 4.
14. Miscellaneous.
(a) No
Modification. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the party or parties hereto to be bound.
(b) No
Waiver. 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.
(c) Entire
Agreement. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly in this
Agreement.
(d) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana (excluding conflicts of laws
principles), except to the extent such law is preempted by the laws of the
United States.
(e) Headings. Section
or paragraph headings contained herein are for convenience of reference only and
are not to be considered a part of this Agreement.
(f) Validity. The
invalidity or unenforceability of any provisions of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
(g) Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same instrument.
(h) Rescission of Prior
Agreement. This Agreement shall rescind and be in full
replacement of any prior “Key Employee Severance Agreement” entered into between
the Executive and the Bank.
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IN
WITNESS WHEREOF, this Agreement is executed as of the date first above written
and is effective as of May 20, 2010.
| FEDERAL HOME LOAN BANK OF | |||||
| THE EXECUTIVE: | INDIANAPOLIS: | ||||
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/s/ XXXXXX X.
XXXXXX
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By: |
/s/
XXXX X. XXXXXXXXX
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Xxxxxx
X. Xxxxxx
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Xxxx
X. Xxxxxxxxx,
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Chairman,
Board of Directors
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By: |
/s/
XXXXXXX X. XXXXX
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Xxxxxxx
X. Xxxxx
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Vice
Chairman, Board of Directors
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