Exhibit 10.3
EMPLOYMENT AGREEMENT
This Agreement, duly made and entered into this 1st day of December, 2004,
by and between the Bank of Evansville, an Indiana banking organization,
hereinafter referred to as the "Company," and Xxxxxxx X. Xxxxxx, hereinafter
referred to as the "Employee,"
WITNESSETH, THAT:
For and in consideration of the mutual promises, covenants and agreements
herein contained and agreed to be kept and performed by the parties hereto, the
parties hereto do hereby mutually agree and understand as follows:
1. Employment. The Company hereby employs the Employee and the Employee
hereby accepts employment upon the terms and conditions hereinafter
set forth.
2. Term. Subject to the provisions for termination as hereinafter
provided, the term of this Agreement shall be for a period of three (3) years,
commencing upon December 1, 2004, and terminating on November 30, 2007, both
dates inclusive. The term of this Agreement shall be extended for an additional
three (3) year period thereafter, unless, on or before ninety (90) days prior to
the expiration of the then current term of this Agreement, either party shall
notify the other in writing of his or its intention to terminate this Agreement,
in which case this Agreement shall terminate at the expiration of the term then
in force and effect.
3. Duties.
(a) Initial Duties. The Employee is engaged as the President, the Chief
Operating Officer and Chief Lending Officer of the Company, and his
duties shall include, but not be limited to the following:
(i) Directing the day to day loan activities of the Company in
accordance with the policies and objectives established by the
Board of Directors of the Company;
(ii) Developing loan and credit policies and standards and
procedures for the Company;
(iii) Directing and coordinating the activities of the Company's
staff and operations;
(iv) Performing all things reasonably necessary or desirable to
promote the business of the Company, and performing such other
duties as the Board of Directors of the Company may prescribe.
(b) Duties Commencing June, 2006. Effective June 1, 2006, Employee's, in
addition to those set forth in paragraph (a) above, duties shall
include, but not be limited to the following:
(i) Directing the day to day activities of the Company in
accordance with the policies and objectives established by the
Board of Directors of the Company; and
(ii) Developing policies and an organization for the Company which
will insure that full advantage is taken of the long range
potential of the Company.
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The Employee agrees to perform his services honestly and conscientiously
and to conduct himself in a manner which will enhance the reputation,
goodwill, and business of the Company. The Employee further agrees not to
conduct himself in such a manner as will operate adversely on the
reputation and goodwill of the Company. The Employee, if elected by the
stockholders of the Company and/or American Community Bancorp, Inc., an
Indiana corporation (the "Parent"), shall serve as a member of the Board
of Directors of the Company and/or the Parent, as applicable, at no
additional compensation to that expressly provided for herein.
4. Extent of Services. The Employee shall devote his entire time, and
energies to the business of the Company, and shall not during the term of this
Agreement be engaged in any other business activity whether or not such business
activity is pursued for gain, profit, or other pecuniary advantage without the
written consent of the Board of Directors; provided, however, that nothing
herein contained shall be construed as preventing the Employee from investing
his assets in such form or manner as will not require any services on the part
of the Employee in the operation of the affairs of the entities in which such
investments are made so long as such investments are not in entities with
businesses similar to the type of business conducted by the Company.
5. Compensation. As the entire compensation for all services rendered by
the Employee to the Company, the Employee shall be paid a base salary at the
rate of One Hundred Fifty Thousand Dollars ($150,000) per annum (hereinafter
referred to as the "Base Salary"), payable in equal installments at such
convenient times as shall be determined by the Company. The Company will, not
less than annually, review the Employee's performance and, in the sole
discretion of the Company, the Company may increase the Base Salary or other
compensation of the Employee.
6. Expenses and Benefits. The Company shall pay and provide Employee with
the following additional benefits:
(a) The Company shall pay and provide health insurance coverage for the
Employee and his immediate family;
(b) The Company shall own or lease a vehicle for Employee's business
usage. The Company shall pay and provide gasoline for the business
usage of the employee. Employee shall timely report to the Company
on an annual basis the personal vehicle usage for such vehicle
obtained by the Employee. At the election of the Company, the
Employee shall be provided a vehicle allowance in the amount of Five
Hundred Dollars ($500) per month (net of income taxes) in lieu of
providing the Employee with a vehicle and the Employee shall own or
lease a vehicle to be used by Employee for business usage. In the
event the Employee owns or leases the vehicle used by the Employee
for business purposes, the Employee shall obtain and maintain
liability insurance coverage and shall name the Company as an
additional insured party;
(c) The Company shall reimburse Employee, in accordance with policies
adopted by the Board of Directors from time to time with respect to
its officer employees generally, for all reasonable expenses
incurred by him in connection with promoting the business of the
Company, including expenses for entertainment, travel, and similar
items, upon presentation by the Employee of itemized accounts of
such expenditures, supported by receipts and vouchers, and upon
approval of such expenditures by the Board of Directors of the
Company;
(d) The Employee shall receive such other benefits and perquisites which
are designated by the Board of Directors of the Company from time to
time for its salaried employees generally and which are applicable
to its executive officers, including specifically, but not
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limited to, life insurance, disability insurance and 401k Plan
contributions;
(e) The Company shall maintain life insurance coverage on the life of
the Employee in the amount provided for in the plan for group health
insurance in effect at such time and the premium of said policy
shall be paid by the Company. The Employee shall direct and name the
beneficiary for such policy. The Company, in its sole discretion,
shall have the right to obtain additional life insurance coverage on
the Employee payable to the Company. Employee shall fully cooperate
with obtaining any such life insurance coverage
(f) The Company shall provide Employee with a social membership in
Evansville Country Club and shall pay or reimburse Employee for dues
and business usage expenses.
(g) The Company shall provide Employee with a membership in the
Evansville Kennel Club and the Rotary Club of Evansville,
respectively, and shall pay or reimburse Employee for such dues.
(h) The Company shall pay or reimburse the Employee for dues for
membership in the American Institute for Certified Public
Accountants.
7. Vacations. The Employee shall be entitled each year during the term of
this Agreement to a vacation of three (3) calendar weeks during which time his
compensation shall be paid in full. The time or times of such vacation shall be
as mutually agreed upon between the Employee and the Company. Unused days of
vacation may not, however, carry over from one year to another, and Employee
shall not be entitled to receive additional compensation from the Company on the
account of any failure by the Employee to take the vacation provided for
hereunder.
8. Litigation and Controversies. In the event that the Company and/or the
Parent is involved in any claim, action, suit or proceeding, whether actual or
threatened, and whether civil, criminal, administrative, investigative or in
connection with an appeal relating thereto (except a claim, action, suit or
proceeding between Employee and Company and/or Parent), the Employee shall in
all reasonable respects cooperate fully with the Company and/or Parent, both
during and after the expiration of the term of this Agreement or any renewal
term, and the Company and/or Parent shall bear all costs and expenses incurred
in connection therewith. The Board of Directors, within its sole discretion, may
determine whether or not any litigation or dispute shall be prosecuted,
defended, compromised or settled, and the terms and conditions of any compromise
or settlement, and whether or not legal expenses, including attorney's fees,
shall be incurred.
9. Termination. Notwithstanding anything contained herein to the contrary,
the Company, in Company's sole discretion, may elect to terminate this Agreement
and the Employee's employment hereunder upon the occurrence of any of the
following events:
(a) Without cause, by the Company by the giving of thirty (30) days
prior written notice to the Employee;
(b) By mutual agreement in writing between the Company and the Employee;
(c) Upon the death of the Employee;
(d) Upon written notice to Employee by Company, if Employee has failed
to render the services to be provided hereunder for a period
aggregating ninety (90) calendar days in any rolling twelve (12)
month period for reasons including, but not limited to, illness,
physical or mental disability of Employee, or other incapacity of
Employee; provided, however, that the Company shall not take any
action, and this subparagraph shall not be
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deemed to authorize the Company to take any action, that would be
violative of the Americans with Disabilities Act of 1990, as
subsequently amended, and any other applicable federal, state, and
local laws, regulations, and ordinances;
(e) With cause, and upon written notice thereof at any time by the
Company, for (i) substantial violations of the Company's internal
policies, rules or regulations; (ii) actions reasonably expected to
have an adverse effect on the business of the Company or damage the
Company reputation; (iii) breach of Employee's common law duty of
loyalty to the Company; (iv) reporting to work in an impaired
condition; (v) drug or substance abuse by Employee; (vi) engaging in
any act of discrimination or sexual harassment (vii) personal
dishonesty; (viii) gross incompetence; (ix) willful misconduct; (x)
breach of fiduciary duty involving personal profit; (xi) intentional
failure to perform stated duties; (xii) willful violation of any
law, rule or regulation (other than traffic infractions or similar
minor offenses) or cease and desist order; or (xiii) material breach
of any provision of this Agreement;
(f) Upon the voluntary or involuntary dissolution of the Company,
adjudication of bankruptcy of the Company, the appointment of
receiver or trustee for all or a substantial portion of the assets
of the Company, or an assignment by the Company of all or a
substantial portion of its assets for the benefit of creditors;
(g) Notice is received by the Company stating that (i) the Board of
Governors of the Federal Reserve System (the "FRS"), or the Indiana
Department of Financial Institutions (the "IDF"), as applicable, has
entered into an agreement with the Federal Deposit Insurance
Corporation to provide assistance to or on behalf of the Company
under the authority contained in Section 13(c) of the Federal
Deposit Insurance Act; or (ii) the FRS, or the IDF, as applicable,
or its designee anticipates taking possession and closing the
Company for purposes of liquidation.
Upon request by the Company, Employee agrees to assist with the orderly
transition of Employee's position and duties to another employee upon
termination of this Agreement. With respect to payments to be made upon and
after termination of this Agreement, the parties agree that should this
Agreement be terminated pursuant to Section 9(a) of this Agreement, Employee
shall, for the greater period of (i) twelve (12) consecutive months after the
date of termination or (ii) the balance of the remaining term of this Agreement
then in effect, continue to receive the following payments and benefits: (i) the
Base Salary or the current Base Salary as set forth in Section 5, (ii) an
allowance of five hundred dollars ($500) per month (net of income taxes) for
vehicle expenses, (iii) health insurance reimbursement or payment comparable to
the coverage previously provided to Employee by the Company, but no other
compensation or benefits shall be due or payable except as specifically provided
for in this Section 9 of this Agreement. Provided, however, notwithstanding
anything contained herein in this Section 9 or in Section 11, in the event of
termination of this Agreement pursuant to Section 9(a) of this Agreement and the
relocation of the Employee to a residence more than fifty (50) miles from
Vanderburgh County and/or the employment of the Employee not in violation of the
covenant in Section 11 hereof, the Company may, at anytime after the expiration
of the balance of the then current term of this Agreement, upon notice to the
Employee, elect to discontinue any and all payments and other benefits to the
Employee and the restrictive covenant or the balance thereof as set forth in
Section 11 hereof shall terminate. Should this Agreement be terminated by reason
of the occurrence of any of the matters referred to in section 9(b), 9(c), 9(d),
9(e) 9(f) or 9(g) of this Agreement, then Employee's Base salary shall be
pro-rated and paid to the effective date of such termination but no other
compensation or benefits shall be due and payable to Employee.
10. Trade Secrets. Employee recognizes and acknowledges that, as a result
of his employment with the Company, he has access to certain trade secrets of
the Company, including specifically, but not
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limited to, methods, and procedures utilized by Company, practices and
procedures utilized by Company in managing and operating its business, names and
address of customers, customer accounts and all other information contained in
the files and records of the Company, all of which information is the property
of the Company and is confidential information and are trade secrets of the
Company. All such information shall be treated as confidential information and
trade secrets by Employee and used by Employee only under and pursuant to his
employment with the Company under this Agreement. If Employee's employment is
terminated for any reason (whether with or without cause or whether by Company
or Employee), Employee shall immediately return to Company all property, and all
other material information, documents and things in Employee's possession or
control which relate in any way to the business, operations, affairs or
customers of the Company, without retaining any copy or summary thereof, all of
which are and shall continue to be the sole and exclusive property of the
Company. Employee agrees that he will not, during or after the term of his
employment, or after the termination of this Agreement for any reason, disclose
said confidential information and trade secrets to any person, firm,
corporation, or other entity for any reason or purpose whatsoever, or use the
same in any other business whatsoever. In the event of violation or threatened
violation of this provision by Employee, the Company may, in addition to any
other remedies provided by law, obtain specific enforcement of this provision by
means of an ex parte court order enjoining and restraining Employee from
committing or continuing to commit any such violation. Further, in the event of
such breach or threatened breach, Employee promises and agrees to reimburse the
Company for all costs, expenses and attorneys' fees incurred in the enforcement
of its rights hereunder. Nothing herein contained shall be construed as
prohibiting the Company from pursuing any other remedies available to it for
such breach or threat of breach, including the recovery of damages from
Employee. This Section 10 and the obligations set forth herein shall survive
termination or expiration of this Agreement.
11. Restrictive Covenant. During the term of Employee's employment
pursuant to this Agreement, and for a period of one (1) year after termination
thereof, Employee shall not, directly or indirectly:
(a) Solicit, take away, hire, employ or endeavor to employ, any person
who is then an employee or independent contractor of the Company or
who was an employee or independent contractor of the Company during
the term of this Agreement or any renewal term; or
(b) Solicit in any manner, seek to obtain or service, or accept any
business which is similar to and competitive with the business of
the Company from any party which is a customer of Company at the
time of Employee's termination of employment. For purposes of this
restriction, the term "customer" shall mean a person or entity who
is a customer of the Company at the time of Employee's termination
of employment or with whom the Employee had direct contact on behalf
of the Company at any time during the period of Employee's
employment with the Company; or
(c) Solicit in any manner, seek to obtain or service, or accept any
business which is similar to and competitive with the business of
the Company from any party which is a prospective customer of
Company at the time of Employee's termination of employment. For
purposes of this restriction, the term "prospective customer" shall
mean a person or entity who was the direct target of sales or
marketing activity by the Employee or whom the Employee knew was a
target of the Company during the one (1) year period preceding the
Employee's termination of employment, or in the event Employee has
been employed by the Company less than one (1) year at the time of
termination, during the period of Employee's employment with the
Company; or
(d) Divert, request, suggest or advise any customers or suppliers of
Company to terminate, reduce, limit or change their business or
relationship with Company; or
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(e) Lend money, guarantee loans, make gifts of money or other property,
or otherwise lend financial or other assistance in any form to any
person, firm, association, partnership, venture, corporation or
other business entity which will use said money, loans, or other
property to engage, within the one (1) year period noted above, in
the retail banking business, which includes accepting deposits or
making loans (hereinafter the "Banking Industry"), within fifty (50)
miles of Vanderburgh County, Indiana, (hereinafter the "Geographic
Territory"); or
(f) Provide services or perform as an employee, agent, solicitor,
salesman, manager, consultant or serve as an officer or director for
any other person, corporation, or other entity engaged in the
Banking Industry within the Geographic Territory or in any capacity
wherein Employee would become involved, directly or indirectly, with
any person, corporation or entity competitive with the Company; or
(g) Divulge to anyone except the Company or its representatives any
information known to Employee regarding the Company's "know-how",
trade information, trade secrets, inventions, customer lists, client
records, information relating to customers or customer requirements,
management policies, or other information regarding the affairs of
the Company, which comes to Employee's attention by reason of this
Agreement.
Employee shall promptly advise Company, in writing, of his employment or
affiliation, within Geographic Territory and within one (1) year after the
termination of his employment with the Company, with any other person, firm,
association, partnership, venture, corporation, or other business entity engaged
in the Banking Industry. Notwithstanding the foregoing, in the event of
involuntary dissolution of the Company, adjunction of the bankruptcy of the
Company, the appointment of a receiver or trustee for all or a substantial
portion of the assets of the Company, or an assignment by the Company of all or
a substantial portion of the assets for the benefit of creditors or in the event
the FRS or the IDF, as applicable, or its designee anticipates taking possession
and closing the Company for purposes of liquidation, the covenants and
restriction set forth in this Section 11 shall be terminated.
12. Reasonableness of Limitations. The parties hereto stipulate and agree
that the restrictions imposed by paragraph 11 are not in restraint of trade and
are reasonable in terms of time, space and the types of activity and conduct
proscribed and prohibited hereby. In the event, however, that a court of
competent jurisdiction should determine that any of said restrictions are
unreasonable, then Employee agrees, that in order to carry out the intent of
Employee and Company, the limitations that the court determines would be
reasonable will be fully binding upon Employee.
13. Enforcement of Covenant. Employee acknowledges that a violation of the
covenant in paragraph 11 will cause irreparable injury to Company. In the event
of the violation or threatened violation of said paragraph 11, the Company may,
in addition to any other legal or equitable rights that it may have, obtain
specific enforcement of paragraph 11 by means of an ex parte court order
enjoining and restraining Employee from committing or continuing to commit any
such violation. Further, in the event of such breach or threatened breach,
Employee promises and agrees to reimburse Company for all costs, expenses and
attorneys fees incurred in the enforcement of Company's rights hereunder.
Nothing contained herein shall be construed as prohibiting Company from pursuing
any other remedy available to it for such breach or threatened breach, including
recovery of damages from Employee. The one (1) year restriction under paragraph
11 shall be extended for any period of time during which Employee is in
violation of any provision of paragraph 11.
14. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if given in writing either personally or by
certified mail, return receipt requested, to the last known address of the
Employee, if notice is to be given to him, or to the principal office of the
Company,
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if notice is to be given to it.
15. Entire Agreement. This Agreement represents the entire contract of
employment between the Company and the Employee, and there is no statement,
promise, agreement or obligation in existence which may conflict with the terms
of this Agreement or may modify, enlarge or invalidate this Agreement or any
provisions hereof. This Agreement may not be changed orally but only by an
Agreement in writing signed by both of the parties hereto. This Employment
Agreement replaces and amends in its entirety the Employment Agreement dated
July 1, 2001 by and between the Company and the Employee.
16. Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect other provisions hereof, and this
Agreement shall be construed as if such invalid or unenforceable provisions were
omitted.
17. Construction. This Agreement shall be construed in its entirety
according to its plain meaning and shall not be construed against the party who
provided or drafted it.
18. Waiver of Breach. The waiver by Company of a breach of any provision
of this Agreement by Employee shall not operate or be construed as a waiver of
any subsequent breach by Employee.
19. Governing Law and Venue. This Agreement shall be construed and
governed in accordance with the laws of the State of Indiana. The parties hereby
stipulate that venue of any action brought in respect of the interpretation
hereof or the rights of the parties hereunder, both during the term of this
Agreement or subsequent to any termination hereof, shall be placed in any state
court of general jurisdiction in Vanderburgh County, Indiana.
20. Assignment. This Agreement is personal to Employee and Employee shall
not assign his rights or delegate his duties hereunder without the prior express
written consent of Company. The rights and obligations of Company under this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of Company.
IN WITNESS WHEREOF, the parties have caused the execution of this
Agreement the day and year first hereinabove set forth.
BANK OF EVANSVILLE
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------
Xxxxxx X. Xxxxxx, Xx., Chairman
"Company"
ATTEST:
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------
Xxxxxxx X. Xxxxxxx, Xx., Secretary
Xxxxxxx X. Xxxxxx
-----------------
Xxxxxxx X. Xxxxxx
"Employee"
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