FIRST AMENDMENT OF THE AGREEMENT BETWEEN HORIZON BANK, N.A. AND MARK E. SECOR
EXHIBIT 10.19
WHEREAS, on August 28, 2007, Horizon Bank, N.A. (the “Bank”) entered into an Agreement (the
“Agreement”) with Xxxx X. Xxxxx (the “Employee”), pursuant to which the Bank and Employee set forth
the terms and conditions with respect to the Employees’ responsibilities upon a “Change in Control”
(as defined in the Agreement); and
WHEREAS, pursuant to Section 28 of the Agreement, the parties reserved the right to amend the
Agreement by written agreement executed by both parties; and
WHEREAS, the parties desire to modify the Agreement to reflect a change in the Employee’s job title
and related responsibilities, and to make certain changes as required by law;
NOW, THEREFORE, effective as of January 1, 2009, the Bank and the Employee amend the Agreement in
the following particulars:
| 1. | All references to the Employee’s job title as “Chief Investment and Asset Liability Manager” throughout the Agreement are deleted and replaced with the job title “Chief Financial Officer.” | ||
| 2. | Section 3 of the Agreement is deleted in its entirety and replaced with the following: | ||
| “Section 3 Duties of Employee. During the term, Employee shall be the Chief Financial 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 the Employee; provided, however, that such duties shall be performed in or from the principal executive offices of the Bank, currently located in Michigan City, Indiana. Employee shall not be required to be absent from the location of the principal executive offices of the Bank on travel status or otherwise more than thirty days in any calendar year. Bank shall not, without the written consent of the Employee, relocate or transfer Employee to a location more than thirty 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 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’) and Chief Executive Officer, shall have all power and authority commensurate with the Employee’s status and necessary to perform the Employee’s duties hereunder. As long as Employee is employed by the Bank pursuant to this Agreement, Employee shall be entitled to office space and working conditions consistent with the position as Chief Financial 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.” |
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| 3. | The following new provision is added to the Agreement as Section 8(f): |
“(f) In the event that either party exercises his right to terminate this Agreement for
Cause or for Good Reason, as defined herein, the respective parties shall have the
following limited rights:
(i) In the event that the Bank desires to terminate the Employee’s employment for
Cause pursuant to subsection 8(a), the Bank will first deliver to the Employee a
written notice which will (A) indicate the specific provisions of this Agreement
relied upon for such termination, (B) set forth in reasonable detail the facts and
circumstances claimed to provide a basis for such termination, and (C) describe the
steps, actions, events or other items that must be taken, completed or followed by
the Employee to correct or cure the basis for such termination. The Employee will
then have 30 days following the effective date of such notice to fully correct and
cure the basis for the termination of his employment. If the Employee does not fully
correct and cure the basis for the termination of his employment within such 30-day
period, then the Bank will have the right to terminate the Employee’s employment with
the Bank immediately for Cause upon delivering to the Employee a written notice of
termination and without any further cure period.
(ii) In the event that the Employee desires to terminate his employment with the Bank
for Good Reason pursuant to subsection 8(c), the Employee will first deliver to the
Bank a written notice which will (A) indicate the specific provisions of this
Agreement relied upon for such termination, (B) set forth in reasonable detail the
facts and circumstances claimed to provide a basis for such termination, and (C)
describe the steps, actions, events or other items that must be taken, completed or
followed by the Bank to correct or cure the basis for such termination. The Bank
will then have 30 days following the effective date of such notice to fully correct
and cure the basis for the termination of the Employee’s employment. If the Bank
does not fully correct and cure the basis for the termination of the Employee’s
employment within such 30-day period, then the Employee will have the right to
terminate his employment with the Bank immediately upon delivering to the Bank a
written Notice of Termination and without any further cure period.”
| 4. | The following new provision is added to the Agreement as Section 8(f): |
“(f) Delay of Payment of Benefits in Certain Circumstances.
(i) Separation from Service. ‘Separation from Service’ means the date on
which the Employee dies, retires or otherwise experiences a Termination of Employment
with the Company. Provided, however, a Separation from Service does not occur if the
Employee is on military leave, sick leave or other bona fide leave of absence (such
as temporary employment by the government) if the period of such leave does not
exceed six months, or if the leave is for a longer period, so long as the
individual’s right to reemployment with the Company is provided either by statute or
by contract. If the period of leave exceeds six months and the Employee’s right to
reemployment is not provided either by statute or contract, there will be a
Separation from Service on the first date immediately following such six-month
period. The Employee will incur a ‘Termination of Employment’ when a termination of
employment is incurred under Proposed Treasury Regulation 1.409A-1(h)(ii) or any
final version of such Proposed Regulation.
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(ii) Suspension of Payments to Specified Employees. To the extent such
suspension is required by Section 409A of the Internal Revenue Code of 1986, as
amended (‘Code’) or Treasury Regulations issued pursuant to Code Section 409A, if an
amount is payable to the Employee due to the Employee’s Separation from Service for a
reason other than the Employee’s death, and if at the time of the Separation from
Service the Employee is a ‘Specified Employee,’ payment of all amounts which
constitute deferred compensation under Code Section 409A to the Employee under the
Agreement will be suspended for six months following such Separation from Service.
The Employee will receive payment of such amounts on the first day following the
six-month suspension period.
| A. | A ‘Specified Employee’ means an individual who is a ‘Key Employee’ of the Company at a time when the Holding Company’s stock is publicly traded on an established securities market. The Employee will be a Specified Employee on the first day of the fourth month following any ‘Identification Date’ on which the Employee is a Key Employee. | ||
| B. | The Employee is a ‘Key Employee’ if at any time during the 12-month period ending on an Identification Date the Employee is: (i) an officer of the Company having annual compensation greater than $160,000 (as adjusted in the same manner as under Code Section 415(d) except that the base period will be the calendar quarter beginning July 1, 2001, and any increase under this sentence which is not a multiple of $5,000 will be rounded to the next lower multiple of $5,000); (ii) a five-percent owner of the Company; or (iii) a one-percent owner of the Company having an annual compensation greater than $150,000. For purposes of determining whether an Employee is an officer under clause (i), nor more than 50 employees (or, if lesser, the greater of three or ten percent of the employees) will be treated as officers, and those categories of employees listed in Code Section 414(q)(5) will be excluded. | ||
| C. | The ‘Identification Date’ for purposes of this Agreement is December 31 of each calendar year.” |
The Agreement shall remain the same in all other respects.
IN WITNESS WHEREOF, the Bank, by its officer thereunder duly authorized, and the Employee, have
caused this Amendment to be executed as of November ___, 2008, but effective as of January 1, 2009.
| HORIZON BANK, N.A. |
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| By: | ||||
| Xxxxx X. Xxxxxx, Chairman and | ||||
| Chief Executive Officer | ||||
| EMPLOYEE |
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| By: | ||||
| Xxxx X. Xxxxx | ||||
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