AGREEMENT
EXHIBIT 10.9 FORM OF CHANGE OF CONTROL AGREEMENT
AGREEMENT
THIS AGREEMENT (“Agreement”), dated as of , 1999, is entered into between Horizon Bank, N.A. (“Bank”), a national banking association organized under the laws of the United States of America, and (hereinafter referred to as “Employee”), an Indiana resident.
WHEREAS, Bank is a subsidiary of Horizon Bancorp (“Holding Company”), a corporation formed under the laws of the State of Indiana;
WHEREAS, Employee is employed by the Bank to serve as its Officer;
(A) The Bank hereby agrees that, effective upon a Change of Control of the Holding Company and provided that Employee is still serving as Officer of the Bank at that time, the Bank will continue to employ Employee as Officer to perform the duties described herein, and Employee hereby accepts such employment on the terms and conditions stated herein. It is understood that, prior to such Change of Control, this Agreement shall confer no rights of employment or other benefits (or obligations) whatsoever upon Employee, and that Employee shall remain subject to termination at will.
(B) For purposes of this Agreement, “Change of Control” shall mean a Change of Control of the Holding Company of a nature which would be required to be reported in response to Item 5(f) of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended, or any merger, tender offer, consolidation or sale of substantially all of the assets of Holding Company, or related series of such events, as a result of which: (i) the majority shareholders of Holding Company immediately prior to such event hold less than fifty-percent (50%) of the outstanding voting securities of Holding Company or its survivor or successor immediately after such event; or (ii) persons holding less than twenty-percent (20%) of such securities before such event own more than fifty-percent (50%) of such securities after such event; or (iii) persons constituting a majority of the Board of Directors of the Holding Company (the “ Holding Company Board”) were not directors of the Holding Company for at least twenty-four (24) months preceding the event.
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Agreement shall automatically terminate (and the Term shall thereupon end) without notice when Employee attains sixty-five (65) years of age.
3. Duties of Employee. During the Term, Employee shall be the Officer of the Bank and shall perform such duties and responsibilities for the Bank as may be assigned by the Bank and which are not unreasonably inconsistent with the duties currently being performed by Employee; provided, however, that such duties shall be performed in or from the principal executive offices of Bank, currently located in Michigan City, Indiana. Employee shall not be required to be absent from the location of the principal executive offices of Bank on travel status or otherwise more than thirty (30) days in any calendar year. Bank shall not, without the written consent of Employee, relocate or transfer Employee to a location more than thirty (30) miles from his principal residence. During the Term, Employee shall devote substantially all business time, attention and energy, and reasonable best efforts, to the interests and business of the Bank and to the performance of the Employee’s duties and responsibilities on behalf of the Bank. Employee may use his/her discretion in fixing the hours and schedule of work consistent with the proper discharge of the Employee’s duties. Employee, subject to the direction and control of the Bank’s Board of Directors (“Bank Board”), shall have all power and authority commensurate with the Employee’s status and necessary to perform the Employee’s duties hereunder. So long as Employee is employed by Bank pursuant to this Agreement, Employee shall be entitled to office space and working conditions consistent with the position as Officer. The Bank shall provide Employee with such assistance and working accommodations as are suitable to the character of the position with the Bank and as are adequate for the performance of the Employee’s duties.
(A) During the Term, Employee shall be entitled to participate in or receive benefits under (i) any life, health, hospitalization, medical, dental, disability or other insurance policy or plan, (ii) pension, retirement or employee stock ownership plan, (iii) bonus or profit-sharing plan or program, (iv) deferred compensation plan or arrangement, and (v) any other employee benefit plan, program or arrangement, made available by Bank on the date of this Agreement and from time to time in the future to Bank’s directors, officers and employees on a basis consistent with the terms, conditions and overall
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administration of the foregoing plans, programs or arrangements and with respect to which Employee is otherwise eligible to participate or receive benefits.
(B) During the Term, Employee shall be entitled to receive such other benefits or participate in such other activities as the Employee participated in or was entitled to receive on the date of the Change in Control, including but not limited to bonus or incentive plans, use of company cars, or payment of membership fees to clubs and organizations, but this provision does not grant the Employee any greater benefits than the Employee had in effect on the date of the Change in Control.
(A) Bank Board, upon written notice to Employee, may terminate Employee’s employment with Bank immediately for cause. For purposes of this subsection 8(A), “cause” shall be defined as (i) personal dishonesty, (ii) incompetence, (iii) willful misconduct, (iv) willful violation of any law, rule, or regulation (other than traffic violations or smaller offenses) or final cease-and-desist order, or (v) any material breach of any term, condition or covenant of this Agreement.
(B) Bank Board may terminate Employee’s employment with Bank without cause at any time; provided, however, that the “date of termination” for purpose of determining benefits payable to Employee under Section 6 hereof shall be the date which is thirty (30) days after Employee receives written notice of such termination.
(C) Employee, by written notice to Bank, may terminate his employment with Bank immediately for cause. For purposes of this subsection 8(C), “cause” shall be defined as: (i) any action by Bank Board to remove the Employee as Officer of Bank, except where Bank Board properly acts to remove Employee from such office for “cause” as defined in subsection 8(A) hereof; (ii) any action by Bank Board to materially eliminate, limit, increase, or modify Employee’s duties and/or authority as Officer of Bank (including authority, subject to corporate controls no more restrictive than those in effect on the date hereof, to hire and discharge employees who are not bona fide officers of Employer); (iii) any failure of Bank or Holding Company to obtain the assumption of the obligation to perform this Agreement by any successor as contemplated in Section 19 hereof; or (iv) any intentional breach by Bank of a term, condition or covenant of this Agreement.
(D) Employee, upon sixty (60) days written notice to Bank, may terminate his employment with Bank without cause.
(E) Employee’s employment with Bank 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 the Employee’s employment for any consecutive one hundred eighty (180) day period. Notice of any termination by Bank because of Employee’s “disability” shall be given to Employee prior to the full resumption by him of the performance of such duties.
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(A) In the event of termination pursuant to subsection 8(A), 8(B), 8(C) or 8(D), compensation provided for herein (including Base Salary) shall continue to be paid, and Employee shall continue to participate in the employment benefit, retirement, and compensation plans and other perquisites as provided in Section 6 hereof, through the date of termination specified in the notice of termination. Any benefits payable under insurance, health, retirement and bonus plans as a result of Employer’s participation in such plans through such date shall be paid when due under those plans. The date of termination specified in any notice of termination pursuant to subsection 8(A) shall be no later than the last business day of the month in which said notice is provided to Employee.
(B) In the event of termination pursuant to subsection 8(E), compensation provided for herein (including Base Salary) shall continue to be paid, and Employee shall continue to participate in the employment benefit, retirement, and compensation plans and other perquisites as provided in Section 6 hereof, (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 8 (E). Any benefits payable under insurance, health, retirement and bonus plans as a result of Bank’s participation in such plans through such date shall be paid when due under those plans.
(A) During the Term and for a period of two (2) years after termination of such employment for any reason Employee shall not divulge or furnish any trade secrets (as defined in IND. CODE § 24-2-3-2) of Bank or any confidential information acquired by him while employed by Bank concerning the policies, plans, procedures or customers of Bank to any person, firm or corporation, other than Bank or upon its written request, or use any such trade secret or confidential information directly or indirectly for Employee’s own benefit or for the benefit of any person, firm or corporation other than Bank, since such trade secrets and confidential information are confidential and shall at all times remain the property of Bank.
(B) During the Term and for a period of two (2) years after termination of Employee’s employment by Bank for reasons other than those set forth in subsections 8(B) or 8(C) of this Agreement, Employee shall not directly or indirectly provide banking or bank-related services to or solicit the banking or bank-related business of any person, firm, company or other business entity that is doing business with the Bank, or assist any actual or potential competitor of Bank to provide banking or bank-related services to or solicit banking or bank-related business from any such person, firm, company, or business entity, in any such place.
(C) If Employee’s employment by Bank is terminated for any reasons, Employee will turn over immediately thereafter to Bank all business correspondence, letters, papers, reports, customers’ lists, financial statements, credit reports or other confidential information or documents of bank or its affiliates in the possession or control of Employee, all of which writings are and will continue to be the sole and exclusive property of Bank or its affiliates.
(D) If Employee is terminated by Bank during the Term for reasons set forth in subsection 8(B) of this Agreement, Employee shall have no obligations to Bank with respect to nonsolicitation under Section 10(B), but shall continue with respect to confidential information, trade secrets and return of property under Section 10(A) and 10(C).
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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.
(A) If Employee is suspended and/or temporarily prohibited from participating in the conduct of Bank’s or any affiliates’ affairs by a notice from the Comptroller of the Currency or other applicable regulatory body having jurisdiction, Bank’s obligations under this Agreement shall be suspended as of the date of service of such notice, unless stayed by appropriate proceedings. If the charges in the notice are dismissed, Bank 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.
(B) If Employee is removed and/or permanently prohibited from participating in the conduct of Bank’s or any affiliates’ affairs by an order issued from the Comptroller of the Currency or other applicable regulatory body having jurisdiction, all obligations of Bank under this Agreement shall terminate as of the effective date of the Order, although the vested rights of the parties to the Agreement shall not be affected.
(A) | If to Employee: | |||||||
(B) | If to Bank: | Horizon Bank, N. A. | ||||
000 Xxxxxxxx Xxxxxx | ||||||
Xxxxxxxx Xxxx, Xxxxxxx 00000 |
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17. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana applicable to contracts made and to be performed therein.
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Bank:Horizon Bank, N. A. | ||||||||
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Employee | ||||||||
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