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Exhibit 10.11
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT, executed this _____ day of ____________,
1999 by and between HORIZON BANK, N.A. a national banking association ("Bank"),
and XXXXX X. XXXX ("Employee");
W I T N E S S E T H:
WHEREAS, Bank desires to encourage Employee 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 secured minimum
compensation from Bank for his services over a defined term;
WHEREAS, Bank desires to provide fair and reasonable benefits to
Employee on the terms and subject to the conditions set forth in this Agreement;
and
WHEREAS, the Employee is willing to serve as an employee of the Bank on
the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. EMPLOYMENT. The Bank hereby employs the Employee to render full-time
services to the Bank as Senior Vice President-Mortgage Warehousing Division for
the period commencing on the effective date of this Agreement and extending
through the Term specified in Section 2 until such full-time services are
terminated as hereinafter provided. The Employee hereby accepts and agrees to
such employment.
2. TERM. Subject to the provisions for termination of this Agreement
contained in Section 8, the term of this Agreement shall be for a period of two
(2) years from the effective date hereof ("Term").
3. DUTIES.
(a) During the period of his employment hereunder, the Employee agrees
to diligently perform such executive duties and administrative functions which
are appropriate to the office of Senior Vice President-Mortgage Warehousing
Division as, from time to time, shall be assigned to him by the Board of
Directors (the "Board") or Chief Executive Officer of the Bank or their
designees and he further agrees to give his full business time and attention to,
and his best efforts to promote, the business and affairs of the Bank. The
Employee further agrees to hold the office of Senior Vice President and such
other offices of the Bank to which he may be elected or appointed and to perform
and discharge the duties thereof faithfully and to the best of his ability.
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(b) The Employee, subject to the direction and control of the Board,
shall have all power and authority commensurate with his status and necessary to
perform his duties hereunder. The Bank shall provide the Employee with such
assistance and working accommodations as are suitable to the character of his
position with the Bank as are adequate for the performance of his duties.
4. COMPENSATION.
(a) During the period of his employment hereunder, the Employee's basic
annual salary as Senior Vice President shall be One Hundred Ten Thousand Dollars
($110,000.00). Such salary shall be payable in cash on the same schedule as all
other salaried employees.
Such salary payments shall be subject to the withholding of applicable
income and employment taxes and other appropriate and customary amounts. Upon
any change in the Employee's salary, a written addendum to this Employment
Agreement shall be executed by the Employee and the appropriate officer or
officers of the Bank.
(b) In addition to his basic annual salary as Senior Vice President,
the Employee shall be entitled to receive a cash bonus payable annually as
described in Schedule A hereto commencing in 2000, unless this Agreement is
terminated as provided for herein, and subject to the terms and conditions set
forth in Schedule A.
(c) In addition to the salary and bonus compensation described above,
Employee shall also receive a one-time signing bonus in the amount of
Twenty-Nine Thousand Dollars ($29,000.00) effective upon execution of this
Agreement.
5. EMPLOYEE BENEFITS. During the Term of his employment hereunder, the
following shall apply with respect to the Employee's coverage by and
participation under employee benefit plans and programs sponsored or otherwise
made available by the Bank:
(a) Subject to the more specific provisions of subsection (c) below,
the Employee shall be entitled to participate in any retirement, deferred
compensation, life, accident, health, hospitalization and any other employee
benefit plan or program, excluding bonus programs, that is generally available
to the employees of the Bank, if and to the extent the Employee is eligible to
participate thereunder in accordance with the provisions thereof. Nothing herein
shall be construed to require the Bank to institute any particular benefit plan
or program or to prevent the Bank from modifying or terminating any plan or
program it may determine to adopt from time to time. Further, the Employee shall
be treated as a new employee for purposes of eligibility and vesting under any
employee benefit plan or program that is available to the executive officers of
the Bank.
(b) During the Term, Employee shall be entitled to four (4) weeks per
calendar year of paid vacation, which shall be utilized at such times when his
absence will not materially impair the Bank's normal business functions. Any
unused vacation time in any calendar year shall lapse, and Employee shall not be
entitled to any additional compensation for any such
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unused and lapsed vacation time. In addition to the vacation described above,
Employee also shall be entitled to all paid holidays customarily given by the
Bank to its officers.
(c) The Employee shall be entitled to participate in the following
employee benefit plans, subject to the terms and conditions of the specific plan
documents or agreements provided with respect to each plan:
(i) Stock Options. The Employee shall be granted options under
Stock Option and Stock Appreciation Rights program of Horizon
Bancorp ("Horizon"), the parent company of the Bank for 2,000
shares of Horizon Stock, in accordance with Horizon's standard
agreement governing the program. The grant hereunder will only
be effective if this Employment Agreement is executed,
notwithstanding that actual employment may have commenced
prior to such date.
(ii) 401(k) Retirement Plan. The Employee shall be entitled to
participate in Horizon's 401(k) Plan in accordance with the
terms and conditions of the plan documents. The Employee's
enrollment date will be November 1, 2000.
6. REIMBURSEMENT OF EXPENSES. The Bank shall pay to the Employee, or to
the extent paid in the first instance by the Employee, shall reimburse the
Employee for, travel, entertainment and similar expenses he incurs in connection
with the performance of his duties hereunder in accordance with the Bank's
policies governing such activities, as such policies may be amended or modified
from time to time.
7. INSURANCE. The Bank shall have the right to maintain one (1) or more
insurance policies against the life of the Employee in such face amounts as the
Board considers appropriate, and to name itself as beneficiary under such
policies.
8. TERMINATION.
(a) At any time during the term of this Agreement, the Board shall have
the right to terminate the Employee's employment hereunder for any reason, upon
thirty (30) days' prior written notice to the Employee and the Employee shall
have the right to terminate his employment hereunder at any time and for any
reason, upon thirty (30) days' prior written notice to the Bank.
(b) This Agreement shall also terminate on the death of the Employee.
(c) The Bank shall have the right to terminate the Employee's
employment hereunder "for cause" upon thirty (30) days' prior written notice.
For purposes of this Agreement, the Employee may be terminated "for cause" if
his employment is terminated by the Bank as a result of any of the following:
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(i) The failure of the Mortgage Warehousing Division to attain at
least break even profitability as determined by the Bank
based upon the Division's return on equity, on a month to
month basis, by September, 2000.
(ii) An action by the Employee which involves fraud, willful
misfeasance or gross negligence in connection with the
performance of his duties hereunder;
(iii) The requirement or direction of a federal or state regulatory
agency which has jurisdiction over the Bank to terminate the
employment of the Employee;
(iv) Conviction of the Employee due to the commission of any
criminal offense which involves dishonesty or breach of
trust; or
(v) Any breach by the Employee of a material term, condition or
covenant hereunder or any other agreement between the
Employee and the Bank.
(d) The Employee may also be terminated upon thirty (30) days prior
written notice in the event of a Change in Control (as defined herein). For
purposes of this Agreement, "Change in Control" of the Bank shall mean (i) a
change in control of Horizon, of a nature that would be required to be reported
in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Act of 1934, or (ii) a transfer of more than fifty percent (50%) of
the stock of Bank.
(e) Any termination of the Employee's employment by the Bank or by the
Employee shall be communicated by written Notice of Termination to the
non-terminating party. For purposes of this Agreement, a "Notice of Termination"
shall mean a notice which shall indicate the specific termination provision in
this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated.
(f) As used herein, "Date of Termination" shall mean (i) if the
Employee's employment is terminated by his death, the date of his death, (ii) if
the Employee's employment is terminated for any other reason, the date specified
in the Notice of Termination; provided that, if within thirty (30) days after
any Notice of Termination is given, the parties who receive such Notice of
Termination notify the other parties that a dispute exists concerning the
termination, the Date of Termination shall be the date on which the dispute is
finally determined, by a final judgment, order or decree of a court of competent
jurisdiction (the time for appeal therefrom having expired and no appeal having
been perfected).
9. COMPENSATION UPON TERMINATION.
(a) In the event that the Bank terminates the employment of the
Employee pursuant to Section 8(a), the Employee shall continue for the remainder
of the Term to receive his full compensation, as provided in Section 4(a), at a
rate equal to the Employee's basic compensation
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received by the Employee for the twelve (12) months prior to the Date of
Termination. Such payments shall be made by the Bank at the same intervals as
his basic annual compensation and shall continue for the remainder of the Term,
together with all other unpaid amounts previously accrued or awarded pursuant to
any other provision of this Agreement, provided, however, that the Bank's
obligations to make payments hereunder shall be reduced by the amount the
Employee receives in compensation and cash benefits from any other employer or
any person to or for whom Employee is providing services as a consultant or
independent contractor.
(b) If the Employee terminates his employment pursuant to Section 8(a)
or the Bank terminates the Employee's employment for cause, the Bank shall pay
the Employee his (i) basic annual salary through the Date of Termination at the
rate in effect at the time Notice of Termination is given; and (ii) all other
unpaid amounts previously accrued or awarded pursuant to any other provision of
this Agreement.
(c) All payments due under this Section 9 shall survive the Employee's
death and shall be payable thereafter to the Employee's spouse or his estate, as
the case may be, in accordance with this Agreement, provided that the Bank
reserves the right, in its sole discretion, to make such payments in one lump
sum discounted to present value, rather than in periodic payments as required
above.
10. NOTICES. All communications, notices and elections pursuant to
Section 9, and all other notices, requests, consents or demands given under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered to, or mailed by prepaid registered or certified mail addressed to the
party for whom intended as follows, or to such other address as may be furnished
by such party in the manner provided herein:
If to the Employee: Xxxxx X. Xxxx
000 Xxxxxxx Xxxx Xxxxx
XxXxxxx, Xxxxxxx 00000
If to the Bank: Horizon Bank, N.A.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxx 00000
Attention: President
11. GOVERNING LAW. This Agreement has been executed and delivered in
the State of Indiana and shall be construed in accordance with and governed by
the laws of the State of Indiana, without giving effect to any conflicts of laws
rules.
12. ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding of the parties hereto with respect to its subject matter, merges
and supersedes all prior and contemporaneous understandings with respect to its
subject matter, and may not be waived or modified, in whole or in part, except
by a writing signed by each of the parties hereto. No waiver of any provision of
this Agreement in any instance shall be deemed to be a waiver of the same or any
other provision in any other instance.
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13. CONSTRUCTION. Headings contained in this Agreement are for
convenience of reference only and shall not be used in the interpretation of
this Agreement. References herein to Sections are to the sections of this
Agreement. As used herein, the singular includes the plural and the masculine,
feminine and neuter gender each includes the others where the context so
indicates.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon,
enforceable against, and inure to the benefit of, the parties hereto and their
respective heirs, successors and assigns, and nothing herein is intended to
confer any right, remedy or benefit upon any other person. The rights, duties
and obligations of the Employee hereunder may not be assigned. This Agreement
may not be assigned by the Bank without the prior written consent of the
Employee, which consent shall not be unreasonably withheld.
15. SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, this Agreement
shall be interpreted and enforceable as if such provision were severed or
limited or payment reduced, but only to the extent necessary to render such
provision and this Agreement enforceable.
16. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first set forth above.
EMPLOYEE
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Xxxxx X. Xxxx
ATTEST: (SEAL) HORIZON BANK, N.A.
By: By:
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Printed: Printed: Xxxxx X. Xxxxxx
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Title: Title: President and Chief Executive Officer
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SCHEDULE A
TO
EMPLOYMENT AGREEMENT
BETWEEN HORIZON BANK, N.A.
AND XXXXX X. XXXX
DATED _______________, 1999
Section 4(b)
INCENTIVE COMPENSATION.
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(1) Within __________ (_____) days following each December 31, commencing
December 31, 2000, the Bank shall pay the Employee, subject to certain
conditions set forth herein, an incentive compensation bonus provided
that the Mortgage Warehousing Division meets or exceeds certain Return
on Equity ("XXX") goals. The goals and amounts of bonus are as follows:
Goal Bonus
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12% XXX 25% of annual base salary
15% XXX 40% of annual base salary
20% XXX or above 50% of annual base salary
(2) If the Division exceeds 20% XXX in any fiscal year, the Employee shall
receive an additional bonus equal to 15% of the dollar amount of net
income that exceeds the amount necessary to reach the 20% XXX target.
(3) In no event will the amounts paid in Incentive Compensation hereunder,
in the aggregate with incentive compensation paid to the Vice President
of the Mortgage Warehousing Division, exceed $250,000 in any fiscal
year and the Bank shall reduce pro rata the amount paid to the Employee
hereunder and such other officer to avoid exceeding such limitation.
(4) For each of fiscal year 2000 and 2001, the Employee shall be guaranteed
a minimum incentive compensation bonus of $15,000 under paragraph (1)
above, even if the XXX goals are not met.
(5) The Bank will not materially alter or amend this schedule through
fiscal year 2004 unless agreed to in writing by the Bank and the
Employee.
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BANK: EMPLOYEE:
HORIZON BANK, N.A.
By:
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Printed: Xxxxx X. Xxxxxx Xxxxx X. Xxxx
Title: President and Chief Executive
Officer
IM-267892-1
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