Exhibit 10(5)
EMPLOYMENT AGREEMENT
This Agreement, made and dated as of July 1, 1999, by and between Xxxx
Community Bank, s.b., a federal savings bank ("Employer") and Xxxxx X. Xxxxxxx,
a resident of Xxxx County, Indiana ("Employee").
W I T N E S S E T H
WHEREAS, Employee is employed by Employer as its Chairman of the Board and
has made valuable contributions to the profitability and financial strength of
Employer;
WHEREAS, Employer desires to encourage Employee to continue to make
valuable contributions to Employer's business operations and not to seek or
accept employment elsewhere;
WHEREAS, Employee desires to be assured of a secure minimum compensation
from Employer for his services over a defined term;
WHEREAS, Employer desires to provide fair and reasonable benefits to
Employee on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, Employer desires reasonable protection of its confidential
business and customer information which it has developed over the years at
substantial expense and assurance that Employee will not compete with Employer
for a reasonable period of time after termination of his employment with
Employer, except as otherwise provided herein.
NOW, THEREFORE, in consideration of these premises, the mutual covenants
and undertakings herein contained and the continued employment of Employee by
Employer as its Chairman of the Board, Employer and Employee, each intending to
be legally bound, covenant and agree as follows:
1. Upon the terms and subject to the conditions set forth in this
Agreement, Employer employs Employee as Employer's Chairman of the Board, and
Employee accepts such employment.
2. Employee agrees to serve as Employer's Chairman of the Board and to
perform such duties in that office as may reasonably be assigned to him by
Employer's Board of Directors; provided, however, that such duties shall be
performed in or from the offices of Employer currently located at Spencer,
Indiana, and shall be of the same character as those previously performed by
Employee and generally associated with the office held by Employee. Employee
shall render services to Employer as Chairman of the Board in substantially the
same manner and to substantially the same extent as Employee rendered his
services to Employer before the date hereof.
3. The term of this Agreement shall begin on July 1, 1999 (the "Effective
Date") and shall end on the date which is three years following such date;
provided, however, that such term shall be extended automatically for an
additional year on each anniversary of the Effective Date if Employer's Board of
Directors determines by resolution to extend this Agreement prior to such
anniversary of the Effective Date, unless either party hereto gives written
notice to the other party not to so extend within ninety (90) days prior to such
anniversary, in which case no further automatic extension shall occur and the
term of this Agreement shall end two years subsequent to the anniversary as of
which the notice not to extend for an additional year is given (such term,
including any extension thereof shall herein be referred to as the "Term").
4. Employee shall receive an annual salary equal to $__________
("Compensation"), payable at regular intervals in accordance with Employer's
normal payroll practices now or hereafter in effect.
5. So long as Employee is employed by Employer pursuant to this Agreement,
Employee shall receive reimbursement from Employer for all reasonable business
expenses incurred in the course of his employment by Employer, upon submission
to Employer of written vouchers and statements for reimbursement.
6. Subject to the respective continuing obligations of the parties,
including but not limited to those set forth in subsections 7(A), 7(B) and 7(C)
hereof, Employee's employment by Employer may be terminated prior to the
expiration of the Term of this Agreement as follows:
(A) Employer, by action of its Board of Directors and upon written notice
to Employee, may terminate Employee's employment with Employer
immediately for cause. For purposes of this subsection 6(A), "cause"
shall be defined as (i) personal dishonesty, (ii) incompetence, (iii)
willful misconduct, (iv) breach of fiduciary duty involving personal
profit, (v) intentional failure to perform stated duties, (vi) willful
violation of any law, rule, or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order, or
(vii) any material breach of any term, condition or covenant of this
Agreement.
(B) Employer, by action of its Board of Directors may terminate Employee's
employment with Employer without cause at any time; provided, however,
that the "date of termination" for purposes of determining benefits
payable to Employee under subsection 7(B) hereof shall be the date
which is 60 days after Employee receives written notice of such
termination.
(C) Employee, upon sixty (60) days written notice to Employer, may
terminate his employment with Employer without cause.
(D) Employee's employment with Employer shall terminate in the event of
Employee's death or disability. For purposes hereof, "disability"
shall be defined as Employee's inability by reason of illness or other
physical or mental incapacity to perform the duties required by his
employment for any consecutive One Hundred Eighty (180) day period,
provided that notice of any termination by Employer because of
Employee's "disability" shall have been given to Employee prior to the
full resumption by him of the performance of such duties.
7. In the event of termination of Employee's employment with Employer
pursuant to section 6 hereof, compensation shall continue to be paid by Employer
to Employee as follows:
(A) In the event of termination pursuant to subsection 6(A) or 6(C),
Compensation provided for herein shall continue to be paid through the
date of termination specified in the notice of termination. The date
of termination specified in any notice of termination pursuant to
subsection 6(A) shall be no later than the last business day of the
month in which such notice is provided to Employee.
(B) In the event of termination pursuant to subsection 6(B), Compensation
provided for herein shall continue to be paid through the date of
termination specified in the notice of termination. In addition,
Employee shall be entitled to continue to receive from Employer his
Compensation in effect at the time of termination for the remaining
Term of the Agreement.
(C) In the event of termination pursuant to subsection 6(D), Compensation
provided for herein shall continue to be paid (i) in the event of
Employee's death, through the date of death, or (ii) in the event of
Employee's disability, through the date of proper notice of disability
as required by subsection 6(D).
8. Any termination of Employee's employment with Employer as contemplated
by section 6 hereof, except in the circumstances of Employee's death, shall be
communicated by written "Notice of Termination" by the terminating party to the
other party hereto. Any "Notice of Termination" pursuant to subsections 6(A) or
6(D) shall indicate the specific provisions of this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for such termination.
9. If Employee is suspended and/or temporarily prohibited from
participating in the conduct of Employer's affairs by a notice served under
section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C. ss.
1818(e)(3) and (g)(1)), Employer's obligations under this Agreement shall be
suspended as of the date of service, unless stayed by appropriate proceedings.
If the charges in the notice are dismissed, Employer shall (i) pay Employee all
or part of the compensation withheld while its obligations under this Agreement
were suspended and (ii) reinstate (in whole or in part) any of its obligations
which were suspended.
10. If Employee is removed and/or permanently prohibited from participating
in the conduct of Employer's affairs by an order issued under section 8(e)(4) or
(g)(1) of the Federal Deposit Insurance Act (12 U.S.C. ss. 1818(e)(4) or
(g)(1)), all obligations of Employer under this Agreement shall terminate as of
the effective date of the order, but vested rights of the parties to the
Agreement shall not be affected.
11. If Employer is in default (as defined in section 3(x)(1) of the Federal
Deposit Insurance Act), all obligations under this Agreement shall terminate as
of the date of default, but this provision shall not affect any vested rights of
Employer or Employee.
12. All obligations under this Agreement may be terminated except to the
extent determined that the continuation of the Agreement is necessary for the
continued operation of Employer: (i) by the Director of the Office of Thrift
Supervision, or his or her designee (the "Director"), at the time the Federal
Deposit Insurance Corporation enters into an agreement to provide assistance to
or on behalf of Employer under the authority contained in Section 13(C) of the
Federal Deposit Insurance Act; or (ii) by the Director at the time the Director
approves a supervisory merger to resolve problems related to operation of
Employer or when Employer is determined by the Board to be in an unsafe and
unsound condition. Any rights of the parties that have already vested, however,
shall not be affected by such action.
13. Should Employee die after termination of his employment with Employer
while any amounts are payable to him hereunder, this Agreement shall inure to
the benefit of and be enforceable by Employee's executors, administrators,
heirs, distributees, devisees and legatees and all amounts payable hereunder
shall be paid in accordance with the terms of this Agreement to Employee's
devisee, legatee or other designee or, if there is no such designee, to his
estate.
14. For purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been given
when delivered or mailed by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to Employee: Xxxxx X. Xxxxxxx
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
If to Employer: Xxxx Community Bank, s.b.
000 Xxxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxx 00000
or to such address as either party hereto may have furnished to the other party
in writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
15. The validity, interpretation, and performance of this Agreement shall
be governed by the laws of the State of Indiana, except as otherwise required by
mandatory operation of federal law.
16. Employer shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business or assets of Employer, by agreement in form and substance satisfactory
to Employee to expressly assume and agree to perform this Agreement in the same
manner and same extent that Employer would be required to perform it if no such
succession had taken place. Failure of Employer to obtain such agreement prior
to the effectiveness of any such succession shall be a material intentional
breach of this Agreement. As used in this Agreement, "Employer" shall mean
Employer as hereinbefore defined and any successor to its business or assets as
aforesaid.
17. No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing signed by
Employee and Employer. 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 dissimilar provisions or conditions at the same or any prior
subsequent time. No agreements or representation, 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.
18. The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability of any other provisions of this
Agreement which shall remain in full force and effect.
19. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same agreement.
20. This Agreement is personal in nature and neither party hereto shall,
without consent of the other, assign or transfer this Agreement or any rights or
obligations hereunder except as provided in section 13 and section 16 above.
Without limiting the foregoing, Employee's right to receive compensation
hereunder shall not be assignable or transferable, whether by pledge, creation
of a security interest or otherwise, other than a transfer by his will or by the
laws of descent or distribution as set forth in section 13 hereof, and in the
event of any attempted assignment or transfer contrary to this paragraph,
Employer shall have no liability to pay any amounts so attempted to be assigned
or transferred.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed
and delivered as of the day and year first above set forth.
XXXX COMMUNITY BANK, s.b.
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President
"Employer"
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
"Employee"
The undersigned, Home Financial Bancorp, sole shareholder of
Employer, agrees that if it shall be determined for any reason that any
obligations on the part of Employer to continue to make any payments due under
this Agreement to Employee is unenforceable for any reason, Home Financial
Bancorp, agrees to honor the terms of this Agreement and continue to make any
such payments due hereunder to Employee pursuant to the terms of this
Agreement.
HOME FINANCIAL BANCORP
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President
