EXHIBIT 10.13
EMPLOYMENT AGREEMENT
This Agreement is made and entered into this 1st day of December,
1997, by and between American National Bank and Trust Company of Muncie,
Indiana, located at 000 X. Xxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000 (hereinafter
referred to as Bank), and ANB Corporation, an Indiana corporation which owns
Bank (hereinafter referred to as Corporation), with its principal office
located at 000 X. Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000 and Xxxxxx X. Xxxxxx,
Bank's President (hereinafter referred to as Executive) of 000 X. Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxx 00000.
WITNESSETH THAT:
WHEREAS, Executive is employed as an officer of the Bank and has
devoted his ability, time, effort and energies to the affairs of the Bank; and
WHEREAS, the Bank considers the continuance of proficient and
experienced management to be essential to protecting and enhancing the best
interest of the Bank, Corporation and its shareholders; and
WHEREAS, the Bank and Corporation desire to assure themselves of
retaining the services of the Executive (including his services without
distraction by uncertainty and risk of unemployment) in the event of a
proposed Change of Control (as hereinafter defined) of the Bank and/or the
Corporation; and
WHEREAS, the Bank and Corporation desire to compensate the Executive
should his employment terminate under certain hereinafter enumerated
circumstances after a Change of Control, and to clarify that no such
compensation is payable in the event Executive is terminated for Cause, as
defined in this Agreement.
NOW THEREFORE, IN CONSIDERATION of the foregoing recitals, the mutual
promises contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree that the above recitals are included as a part of this agreement.
ARTICLE I
DEFINITIONS
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For purposes of this Agreement, the terms in this Article shall have
the following meaning throughout this Agreement:
(A) Cause: "Cause" to terminate Executive's employment
exists when the Executive:
(1) willfully and continually fails to substantially
perform his duties with the Bank and/or Corporation;
or
(2) substantially fails to meet the performance goals, or
reasonable policies and regulations established by the
Bank and/or Corporation; or
(3) is adjudged guilty of any crime involving a breach of
fiduciary duties to the Bank and/or Corporation; or
(4) willfully violates the Bank's or the Corporation's
Code of Conduct or any rules and regulations relating
to any existing banking law; or
(5) acts in a manner which is detrimental to the Bank's or
Corporation's best interests, its reputation in the
community, or its standing in the banking industry.
(B) Change of Control: A "Change of Control" occurs if:
(1) any person, partnership, corporation, trust or similar
group, other than the Corporation or Bank as the case may be,
acquires more than twenty-five percent (25%) of the voting
securities of the Corporation or the Bank in a
transaction or series of transactions; or
(2) at any time a majority of the Board of Directors of
the Corporation or the Bank are not Continuing Directors as
defined under the Articles of Incorporation of the Corporation
or the Bank.
(C) Date of Termination: "Date of Termination" shall mean the
date stated in the Notice of Termination or thirty (30) days from the date of
delivery of such notice, whichever comes first.
(D) Disability: "Disability" shall mean the definition of such
term as used in the disability policy then in effect for the Bank and a
determination of full disability by the parties; provided that in the event
there is no disability insurance then in force, "disability" shall mean
incapacity due to physical or mental illness, which will have caused Executive
to have been unable to perform his duties with the Bank and/or Corporation on
a full time basis for 180 consecutive calendar days.
(E) Notice of Termination: "Notice of Termination" shall mean a
written notice, communicated to the other parties hereto, which shall indicate
the specific termination provisions of this Agreement relied upon and set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provisions so
indicated.
(F) Retirement: "Retirement" shall mean termination of
employment by the Bank and/or Corporation or by the Executive in accordance
with Bank's or Corporation's normal retirement policy generally applicable to
its salaried employees in effect at the time of Change of Control.
(G) Unreasonable Changes: An "Unreasonable Change" occurs if
any of the following events occur:
(1) without Executive's express written consent and after
a Change of Control, the assignment to him of any
duties materially inconsistent with his position,
duties, and responsibility with the Bank and/or
Corporation immediately prior to a Change of Control;
(2) without Executive's express written consent and after
a Change of Control, a reduction by the Bank and/or
Corporation in the Executive' annual salary;
(3) without Executive's express written consent and after
a Change of Control, the Bank and/or Corporation
requires Executive to be relocated anywhere other than
the offices in Muncie, Indiana, and Bank and/or
Corporation fail to pay all reasonable moving expenses
incurred by him relating to a change of his principal
residence in connection with such relocation including
an obligation by the Bank and/or Corporation to
provide a customary home guarantee purchase of the
Executive's residence, the value of the home to be
determined by at least one real estate appraiser
designated by him and satisfactory to the Bank and/or
Corporation;
(4) without Executive's express written consent and after
a Change of Control (1) the failure by the Bank and/or
Corporation to continue in effect (or to substitute
plans providing him with no less than substantially
similar benefits) any compensation plan or benefit
plans including, but not limited to, any retirement or
pension plan, savings plan, life insurance plan,
health and accident or disability plan in which
Executive is participating at the time of a Change of
Control; or (2) in the event the Bank and/or
Corporation institutes new or revised compensation or
benefit plans which provide more favorable benefits
than the plans in which Executive is participating at
the time of a Change of Control, the failure of the
Bank and/or Corporation to entitle Executive to
participate in and receive benefits under any such new
or revised plans providing more favorable benefits; or
(3) the taking of any action by the Bank that would
adversely affect Executive's participation in or
materially reduce his benefits under any of such plans
described in either (1) or (2) of this paragraph;
(5) without Executive's express written consent and after
a Change of Control, the taking of any action by the
Bank and/or Corporation to deprive Executive of any
material fringe benefit enjoyed by him at the time of
the Change of Control, or the failure by the Bank
and/or Corporation to provide him with the number of
paid vacation days to which he is entitled on the
basis of years of service with the Bank and/or
Corporation and in accordance with the Bank's and/or
Corporation's normal vacation policy in effect at the
time of Change of Control; or
(6) the failure of the Bank and/or Corporation to obtain
the assumption of this Agreement by any successor as
contemplated in this Agreement.
ARTICLE II
EMPLOYMENT AND TERM
-------------------
Bank hereby employs Executive as its President. The term of this
Agreement shall commence on the date hereof and this Agreement shall remain in
continuous effect until a Notice of Termination is given to the contrary by
either party to the other, subject to the provisions of Article III hereof;
provided, however, if a Change of Control shall occur on or before the date on
which Notice of Termination is received, the term of this Agreement shall
extend and be binding upon all parties hereto and their successors and assigns
for a period of two (2) years from the date on which such Change of Control
occurs.
ARTICLE III
TERMINATION
-----------
(A) In the absence of a Change of Control or threat of Change of
Control:
(1) the Bank and/or Corporation may terminate the
Executive without regard to the provisions of this
Agreement and this Agreement shall have no relevance
to the issues surrounding said termination; and
(2) Executive may terminate his employment with the Bank
and/or Corporation without regard to the provisions of
this Agreement, and this Agreement shall have no
relevance to the issues surrounding said termination.
(B) In the event any person, persons or entity commences a tender
or exchange offer, or circulates a proxy to the Corporation's shareholders
designed to effect a Change of Control, Executive
agrees that he will not voluntarily leave his employment with the Bank and/or
Corporation and will continue to perform his regular duties, until such
person, persons or entity has abandoned or terminated its efforts to effect a
Change of Control. In the event any person, persons or entity successfully
concludes a tender or exchange offer, or has successfully circulated a proxy
to the Corporation's shareholders effecting a Change of Control, Executive
agrees that he will not voluntarily leave his employment with the Bank and/or
Corporation and will continue to perform his regular duties, subject to the
provisions of Articles III and IV of this Agreement.
(C) If, following a Change of Control, the Executive's employment
shall be terminated for Cause, the Bank and Corporation shall pay him his full
salary through the Date of Termination at the rate in effect on the date of
the Notice of Termination, and the Bank and Corporation shall have no further
obligations under this Agreement. If, following a Change of Control, the
Executive's employment shall be terminated as a result of death, disability,
or Retirement, compensation to the Executive shall be made pursuant to the
Bank's and Corporation's then existing policies on death, disability or
retirement, and the Bank and the Corporation shall have no further obligations
under this Agreement.
(D) If a Change of Control occurs and within a twenty-four (24)
month period thereafter an Unreasonable Change occurs to Executive's
employment relationship, the Executive shall be entitled to resign with
justification, and shall be entitled to the benefits provided in sub-paragraph
(E) of this Article. If the Executive invokes the rights pertaining to
resignation with justification, the Executive's notice of resignation shall
state that the Executive's resignation is in the best interests of the Bank
and/or Corporation considering the circumstances of the Change of Control and
Unreasonable Change, and that it is not his intent to resign for the sole
purpose of collecting compensation without working for it.
(E) If, within twenty-four (24) months of a Change of Control, the
Bank and/or Corporation shall terminate Executive's employment other than for
death, disability, Retirement or Cause, or if Executive shall resign in
accordance with sub-paragraph (D) of this Article, the Bank and/or Corporation
shall:
(1) pay Executive his salary after the Change of Control
through the Date of Termination plus the aggregate
amount of any bonus accrued but unpaid as of such Date
of Termination; and,
(2) pay Executive an amount in cash which, when added to
the present value of all other compensation, benefits
and payments required to be included in the
calculation under Section 280G of the Internal Revenue
Code and regulations thereunder, shall equal 299% of
the `base amount' as defined under Section 280G of the
Internal Revenue Code in effect on December 31, 1992.
Such amounts shall be payable in equal installments
over thirty-six (36) months from the Date of
Termination at the same frequencies as salaries paid
to other salaried employees of the Bank and/or
Corporation; provided, however, if Executive obtains
employment, the Bank's and/or Corporation's obligation
to pay such amount above thirty-six (36) months shall
continue but shall be reduced to that amount necessary
which, when added to Executive's salary for his new
employment, will maintain the Executive at the equal
monthly installment amount payable by the Bank and
Corporation described above; and,
(3) continue the Executive's participation in the life,
accident, disability and health insurance plans of the
Bank and/or Corporation, or shall provide equivalent
benefits, at no cost to the Executive until the third
anniversary of the Date of Termination, or if earlier,
at the Executive's commencement of full-time
employment with a new employer; provided, however,
that in the event Executive shall die before the
expiration of the
period during which the Bank and/or Corporation would
be required to continue Executive's participation in
such insurance plans, the participation of the
Executive's surviving spouse and family in the Bank's
and/or Corporation's insurance plans shall continue in
accordance with the Bank's and/or Corporation's
standard policy for a spouse and family of a surviving
employee in effect at the time of the Change of
Control; and,
(F) Notwithstanding anything contained herein to the contrary, in
no event shall any payment or part thereof be made to the Executive which
would be considered an "excess parachute payment" within the meaning of
section Section 280G(b)(1) of the Internal Revenue Code of 1986, as amended.
The provisions of this sub-paragraph of Article III shall survive
termination of this Agreement and termination of the Executive's employment
under this Agreement.
ARTICLE IV
SOURCE OF PAYMENTS
------------------
All payments provided in this Agreement shall be paid in cash from the
general funds of the Bank and/or the Corporation and no special or separate
fund shall be established and no other segregation of assets shall be made to
assure payment. The Executive shall have no right, title, or interest
whatsoever in or to any investments which the Bank and/or Corporation may make
to aid the Bank and/or Corporation in meeting its obligations hereunder.
Nothing contained in this Agreement, and no action taken to fund its
provisions, shall create or be construed to create a trust of any kind, or a
fiduciary relationship, between the Bank and/or Corporation and Executive or
any other person. To the extent that any person acquires a right to receive
payments from the Bank and/or Corporation hereunder, such right shall be no
greater than the right of an unsecured creditor of the Bank and/or the
Corporation.
ARTICLE V
INDEMNIFICATION AND INSURANCE
-----------------------------
In the event Executive is or was a party or is threatened to be made a
party, to any threatened, pending or completed legal action, suit or
proceeding by reason of the fact that he is or was an officer, director, agent
or employee of the Bank or Corporation or is or was serving at the request of
the Bank or Corporation as an officer, director, agent, or employee of another
corporation or other entity, he shall be fully indemnified by the Bank or
Corporation to the maximum extent permitted by the Articles of Association of
Bank or Corporation. The Executive's costs of defense shall be borne by the
Bank or Corporation to the maximum extent permitted by the Articles of
Association of Bank or Corporation. The right of indemnification herein
provided shall not be deemed exclusive of any other rights to which Executive
may be entitled as a matter of law and any rights of indemnity under any
policy of insurance carried by the Bank or Corporation. Following a Change of
Control, the Bank or Corporation shall not terminate, or cause or allow to be
terminated, any policy of insurance carried by the Bank or Corporation
providing rights of indemnity to Executive in connection with his service as
an officer, director, agent or employee of the Bank or Corporation, or in
connection with such service rendered at the request of the Bank or
Corporation, prior to the expiration date provided under the terms of such
policy, unless the Bank or Corporation is carrying at such time a substitute
policy providing substantially similar rights of indemnity to Executive. The
Bank or Corporation shall provide, or shall cause any policy of insurance
carried by the Bank or Corporation to provide, rights of indemnity to
Executive which are at least equivalent to the most favorable rights provided
to an officer, director, agent or employee of the Bank or Corporation or the
acquiring entity in connection with service rendered to the Bank or
Corporation or the acquiring entity.
ARTICLE VI
SUCCESSORS
----------
In recognition of the value of continued employment of Executive
following a Change of Control, and in recognition of the need for a smooth
transition of management of the Bank and/or Corporation following a Change of
Control, and in recognition of the need for certainty in the employment status
of Executive at the time of a Change of Control, the parties expressly agree
as follows:
The Bank and the Corporation will use their best efforts, collectively
and individually, to avoid assisting, permitting or soliciting a Change of
Control, unless the person, persons or entity successfully concluding a tender
or exchange offer, or successfully circulating a proxy to the Corporation's
shareholders effecting a Change of Control shall first have assumed all
obligations and liabilities under this Agreement, and have expressly agreed to
be obligated to perform all of the terms and conditions stated in this
Agreement following the completion of the Change of Control.
ARTICLE VII
GUARANTEE BY CORPORATION AND BANK
---------------------------------
In consideration of the value of the continued employment of Executive
by the Bank and the Corporation, and the benefits derived by the Bank and the
Corporation from Executive's employment by the Bank and the Corporation, the
Corporation and the Bank hereby unconditionally and fully guarantee and
endorse the obligations of the other hereunder, and agree to be fully bound by
the terms of this Agreement in the event that the other fails to perform,
honor or otherwise complete fully its obligations hereunder.
ARTICLE VIII
MISCELLANEOUS
-------------
The following terms shall govern this Agreement:
(A) This Agreement may not be changed orally, but only by
agreement in writing signed by the parties; the waiver by any party of
compliance with provisions of this Agreement by any other party shall not
operate or be construed as a waiver of any subsequent breach by such party.
(B) The article captions are inserted merely for the purpose of
identification and shall be given no significance in determining the meaning
of any article.
(C) This Agreement shall be interpreted and governed by the laws
of the State of Indiana.
(D) This Agreement shall be binding and inure to the benefit of
the parties hereto, and any successors and assigns of the Bank and the
Corporation, and to any successors, assigns, heirs and the personal
representatives of the Executive.
(E) 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. It
is the intent of the parties that this Agreement be construed and interpreted
toward its validity and that this Agreement shall be deemed modified only to
the minimum extent necessary to sustain any questioned provision.
IN WITNESS WHEREOF, the Bank and the Corporation have caused this
Employment Agreement to be executed by duly authorized officers of the
respective entities and the seals of the Bank and the Corporation to be
affixed hereto, and the Executive has hereunto subscribed his name, the 1st
day of December, 1997.
"CORPORATION" "BANK"
ANB CORPORATION AMERICAN NATIONAL BANK &
TRUST COMPANY OF MUNCIE,
INDIANA
BY: /s/ Xxxxx X. Xxxxxxx BY: /s/ Xxxxxx X. Xxxx
---------------------------- --------------------------
Printed: Xxxxx X. Xxxxxxx Printed: Xxxxxx X. Xxxx
Its: Chairman of the Board Its: Chairman of the Board
"EXECUTIVE"
/s/ Xxxxxx X. Xxxxxx
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Printed: Xxxxxx X. Xxxxxx
