EXHIBIT 10.8
AGREEMENT
This Agreement, dated as of October 3, 2002, between Blue River
Bancshares, Inc. (the "Company"), and Xxxxx X. Xxxxxxx (the "Executive").
RECITALS
The Executive has recently been employed by the Company as its
Executive Vice President. Because of the Executive's extensive experience and
his familiarity with the affairs of the Company, the Company wishes to assure
that, in the event of a "Change in Control" as hereinafter defined, it will
continue to have the Executive available to perform duties substantially similar
to those currently being performed by him and to continue to contribute to the
Company's growth and success. The Executive is willing to commit to continue in
the performance of his services for the Company upon the terms and conditions
set forth herein.
COVENANTS
NOW, THEREFORE, in consideration of the mutual promises herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT.
(A) The Company hereby agrees that, effective upon a "Change in
Control," (as defined in Section 1(B)) and provided that the
Executive is still serving as an executive officer of the
Company at that time, it will continue to employ the Executive
as an executive officer of the Company to perform the duties
described herein, and the Executive hereby accepts such
employment on the terms and conditions stated herein. It is
understood that prior to such "Change in Control," this
Agreement shall confer no rights of employment or other
benefits (or obligations) whatsoever upon the Executive, and
that the Executive shall remain subject to termination at
will.
(B) The term "Change in Control" used herein shall mean (i) any
merger, consolidation or similar transaction which involves
the Company and in which persons who are the shareholders of
the Company immediately prior to such transaction own,
immediately after such transaction, shares of the surviving or
combined entity which possess voting rights equal to or less
than fifty percent of the voting rights of all shareholders of
such entity, determined on a fully diluted basis; (ii) any
sale, lease, exchange, transfer or other disposition of all or
any substantial part of the assets of the Company; (iii) any
tender, exchange, sale or other disposition (other than
dispositions of the stock of the Company in connection with
bankruptcy, insolvency, foreclosure, receivership or other
similar transactions) or purchases (other than purchases by
the Company or any company-sponsored employee benefit plan, or
purchases by members of the Board of Directors of the Company)
of more than twenty-five percent of the common stock of the
Company; (iv) during any period of two consecutive years while
the Executive is employed by the Company, individuals who at
the date hereof constitute the Board of Directors cease for
any reason to constitute at least a majority thereof, unless
the election of each director at the beginning of such period
has been approved by directors representing at least a
majority of the directors then in office who were directors on
the date here above. Notwithstanding the foregoing, a Change
in Control shall not occur as a result of the issuance of
stock by the Company or the Bank in connection with any
private placement offering of its stock or any public offering
of its stock.
2. TERM OF EMPLOYMENT. Subject to provisions for termination set forth
herein, the term of the Executive's employment hereunder (the "Term") shall
commence on the date of a Change in Control and shall extend until three (3)
years after the date of such Change in Control. The Term shall be renewed at the
end of the initial Term and each extension thereof for an additional one (1)
year if the Company's Board of Directors determines by resolution to extend this
Agreement prior to such anniversary.
3. DUTIES OF EXECUTIVE. The Executive shall be an executive officer of
the Company and shall perform such duties and responsibilities for the Company
as may be assigned to him by the Company. During the Term, the Executive shall
devote substantially all of his business time, attention and energy, and his
reasonable best efforts, to the interests and business of the Company and to the
performance of his duties and responsibilities on behalf of the Company.
4. COMPENSATION. Throughout the Term, the Company shall pay the
Executive, for services to be rendered by him hereunder, a guaranteed minimum
salary at an annual rate of Twelve Thousand Seven Hundred Fifty and No/100
Dollars ($12,750.00), less all applicable federal and state income tax
withholding, FICA taxes and other payroll taxes. The guaranteed minimum salary
shall be reviewed by the Board of Directors of the Company on a yearly basis to
ascertain if any adjustment in the annual rate is in order, and if any change is
made, the new annual rate shall become the guaranteed minimum salary under this
Section 4. Such compensation shall be payable bi-weekly.
5. VACATION. During the period of the Executive's employment hereunder,
the Executive shall be entitled to the number of paid vacation days in each
calendar year, determined by the Company from time to time for its senior
executive officers, but not less than that number of weeks of vacation each year
to which the Executive is currently entitled. The Executive shall also be
entitled to all paid holidays given by the Company to its executive officers.
6. OTHER BENEFITS. During the Term, the Company shall make available to
the Executive such other benefits as it makes available generally to executive
officers of the Company.
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7. EXPENSES. The Company shall pay or reimburse the Executive for all
reasonable expenses actually incurred or paid by him in the performance of
services rendered by him pursuant to this Agreement. Such expenses shall be
supported by the documentary evidence required to substantiate them as income
tax deductions.
8. COVENANT RESTRICTING COMPETITION; NONDISCLOSURE OF
CONFIDENTIAL INFORMATION.
(A) For a period of one (1) year after termination of the
Executive's employment or the expiration of the Term, the
Executive shall not divulge or furnish any trade secrets (as
defined in IND. CODE Section 24-2-3-2) of the Company or any
confidential information acquired by him while employed by the
Company concerning the policies, plans, procedures or
customers of the Company to any person, firm or corporation,
other than the Company or upon its written request, or use any
such trade secret or confidential information directly or
indirectly for the Executive's own benefit or for the benefit
of any person, firm or corporation other than the Company,
since such trade secrets and confidential information are
confidential and shall at all times remain the property of the
Company.
(B) For a period of one (1) year after termination of the
Executive's employment or expiration of the Term, the
Executive shall not directly or indirectly provide banking or
bank-related services to or solicit the banking or
bank-related business of any customer of the Company at the
time of such provision of services or solicitation which the
Executive served either alone or with others while employed by
the Company in any city, town, borough, township, village or
other place in which the Executive performed services for the
Company while employed by it, or assist any actual or
potential competitor of the Company to provide banking or
bank-related services to or solicit any such customer's
banking or bank-related business in any such place.
(C) For a period of one (1) year after termination of the
Executive's employment or expiration of the Term, the
Executive shall not, directly or indirectly, as principal,
agent, or trustee, or through the agency of any corporation,
partnership, trade association, agent or agency, engage in any
banking or bank-related business or venture which competes
with the business of the Company as conducted during the
Executive's employment by the Company within a radius of fifty
(50) miles of the Company's main office or its branch offices.
(D) Upon the Executive's termination of employment, the Executive
will immediately turn over to the Company all business
correspondence, letters, papers, reports, customers' lists,
financial statements, credit reports or other confidential
information or documents of the Company or its affiliates in
the possession or control of the Executive, all of which
writings are and will continue to be the sole and exclusive
property of the Company or its affiliates.
(E) In the event of a breach of the covenants contained in this
Section 8, the Company shall be entitled to an injunction
restraining such breach in addition to any other remedies
provided by law.
(F) If any provision of this Section 8 is adjudged by a court to
be invalid or unenforceable, the same will in no way affect
any other provision of this Section 8 or any other part of
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this Agreement, the application of such provision in any other
circumstances or the validity or enforceability of this
Agreement. If any such provision, or any part thereof, is held
to be unenforceable because of the duration of such provision
or the area covered thereby, the parties agree that the court
making such determination will have the power to reduce the
duration and/or area of such provision, and/or to delete
specific words or phrases, and in its reduced form such
provision will then be enforceable and will be enforced.
9. TERMINATION BY THE COMPANY. Subject to the respective continuing
obligations of the parties, including but no limited to those set forth in
subsections 8(A) through (F) hereof, the Executives employment by the Company
may be terminated prior to the expiration of the Term of this Agreement as
follows:
(A) The Company, by action of its Board of Directors and upon
written notice to the Executive, may terminate the
Executive's employment with the Company immediately for
cause. For purposes of this subsection 9(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, (vii) any material
breach of any term, condition or covenant of this Agreement,
or (viii) termination of the employment of the Executive with
Shelby County Bank for cause, as that term is defined in that
certain change of control agreement entered into by and
between the Executive and Shelby County Bank.
(B) The Company, by action of its Board of Directors, may
terminate the Executive's employment with the Company without
cause at any time; provided, however, that the "Date of
Termination" for purposes of determining benefits payable to
the Executive under subsection 9(B) hereof shall be the date
which is 30 days after the Executive receives written notice
of such termination.
(C) The Executive, by written notice to the Company, may
terminate his employment with the Company immediately for
cause provided, however, that the Company shall have thirty
(30) days, after the giving of written notice to the Company
by the Executive of the Executive's intention to terminate
this Agreement for cause which notice shall indicate the
specific provision of this Agreement which will be relied
upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for such
termination, to cure the facts and circumstances relied upon
for establishing cause. For purposes of this subsection 9(C),
"cause" shall be defined as (i) any action by the Company to
remove the Executive as Executive Vice President and Chief
Credit Officer of the Company, except where the Company's
Board of Directors properly acts to remove the Executive from
such office for "cause" as defined in subsection 9(A) hereof,
(ii) any action by the Company's Board of Directors to
materially limit, increase, or modify the Executive's duties
and/or authority as Executive Vice President and Chief Credit
Officer of the Company (including his authority, subject to
corporate controls no more restrictive than those in effect
on the date hereof), (iii) any failure of the Company to
obtain the assumption of the obligation to perform this
Agreement by any successor, as contemplated in Section 18
hereof; or (iv) any intentional breach by the Company of a
term, condition
(D) The Executive, upon sixty (60) days written notice to the
Company, may terminate his
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employment with the Company without cause.
(E) The Executive's employment with the Company shall terminate
in the event of the Executive's death or disability. For
purposes hereof, "disability" shall be defined as the
Executive'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 the
Company because of the Executive's "disability" shall have
been given to the Executive prior to the full resumption by
him of the performance of such duties.
10. COMPENSATION UPON TERMINATION. In the event of termination of the
Executive's employment with the Company pursuant to Section 9 hereof,
compensation shall continue to be paid by the Company to the Executive as
follows:
(A) In the event of termination pursuant to subsection 9(A) or
9(D), compensation provided for herein (including Base
Compensation) shall continue to be paid, and the Executive
shall continue to participate in the employee benefit,
retirement, and compensation plans and other perquisites as
provided in Sections 5 and 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 the Executive'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 9(A) shall be no later than
the last business day of the month in which such notice is
provided to the Executive.
(B) In the event of termination pursuant to subsection 9(B) or
9(C), compensation provided for herein (including Base
Compensation) shall continue to be paid, and the Executive
shall continue to participate in the employee benefit,
retirement, and compensation plans and other perquisites as
provided in Sections 5 and 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 the Executive's participation in such
plans through such date shall be paid when due under those
plans. In addition, the Executive shall be entitled to
continue to receive from the Company at his Base Compensation
at the rates in effect at the time of termination for the
remaining Term of the Agreement. In addition, during such
periods, the Company will maintain in full force and effect
for the continued benefit of the Executive each employee
welfare benefit plan (as such term is defined in the Employee
Retirement Income Security Act of 1974, as amended) in which
the Executive was entitled to participate immediately prior to
the date of his termination, unless an essentially equivalent
and no less favorable benefit is provided by a subsequent
employer of the Executive. If the terms of any employee
welfare benefit plan of the Company do not permit continued
participation by the Executive, the Company will arrange to
provide to the Executive a benefit substantially similar to,
and no less favorable than, the benefit he was entitled to
receive under such plan at the end of the period of coverage.
(C) In the event of termination pursuant to subsection 9(E),
compensation provided for herein (including Base Compensation)
shall continue to be paid, and the Executive shall continue to
participate in the employee benefit, retirement, and
compensation plans and other perquisites as provided in
Sections 5 and 6 hereof, (i) in the event of the Executive's
death, through the date of death, or (ii) in the event of the
Executive's disability, through the date of proper notice of
disability as required by subsection 7(E).
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Any benefits payable under insurance, health, retirement and
bonus plans as a result of the Executive's participation in
such plans through such date shall be paid when due under
those plans.
11. SUSPENSION. If Executive is suspended and/or temporarily prohibited from
participating in the conduct of Company's or any affiliates' affairs by a notice
served under section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 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, Company
shall (i) pay Executive all 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.
12. REMOVAL. If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Company's or any affiliates' affairs by an
order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance
Act (12 U.S.C. Section 1818(e)(4) or (g)(1)), all obligations of the Company
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.
13. ASSIGNMENT. This Agreement is binding upon and shall be for the
benefit of the successors and assigns of the Company, including any corporation
or any other form of business organization with which the Company may merge or
consolidate, or to which it may transfer substantially all of its assets. The
Executive shall not assign his interest in this Agreement or any part thereof.
14. CONSENT OF THE COMPANY. Any act, request, approval, consent or
opinion of the Company under this Agreement, must be in writing and may be
authorized, given or expressed only by resolution of the board of directors of
the Company, or by such other person as the board of directors of the Company
may designate.
15. NOTICES. Any notice required hereunder to be given shall be in
writing and if:
(A) by the Company to the Executive shall be directed to him at
his address set forth below, or to such other address as he
shall have furnished in writing to the Company; or
(B) by the Executive to the Company shall be directed to the
Shelby County Bank, 00 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxx 00000, Attn: President, or to such designee or other
address as the Company shall name and have furnished in
writing to the Executive.
16. 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.
17. ENFORCEMENT EXPENSES. The Company agrees to reimburse the Executive
for all costs and expenses incurred by him (including the reasonable fees of his
counsel) in successfully enforcing any of his rights under this Agreement or any
claim arising out of the breach thereof. Provided, however, that reimbursement
will not be made to the Executive in the absence of a legal judgment or
settlement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
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BLUE RIVER BANCSHARES, INC.
/s/ Xxxxxx X. Xxxx
-------------------------------------------
EXECUTIVE
/s/ Xxxxx X. Xxxxxxx
-------------------------------------------
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AGREEMENT
This Agreement, dated as of October 3, 2002, between Shelby County Bank
(the "Company"), and Xxxxx X. Xxxxxxx (the "Executive").
RECITALS
The Executive has recently been employed by the Company as its Chief
Credit Officer. Because of the Executive's extensive experience and his
familiarity with the affairs of the Company, the Company wishes to assure that,
in the event of a "Change in Control" as hereinafter defined, it will continue
to have the Executive available to perform duties substantially similar to those
currently being performed by him and to continue to contribute to the Company's
growth and success. The Executive is willing to commit to continue in the
performance of his services for the Company upon the terms and conditions set
forth herein.
COVENANTS
NOW, THEREFORE, in consideration of the mutual promises herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT.
(A) The Company hereby agrees that, effective upon a "Change in
Control," (as defined in Section 1(B)) and provided that the
Executive is still serving as an executive officer of the
Company at that time, it will continue to employ the Executive
as an executive officer of the Company to perform the duties
described herein, and the Executive hereby accepts such
employment on the terms and conditions stated herein. It is
understood that prior to such "Change in Control," this
Agreement shall confer no rights of employment or other
benefits (or obligations) whatsoever upon the Executive, and
that the Executive shall remain subject to termination at
will.
(B) The term "Change in Control" used herein shall mean (i) any
merger, consolidation or similar transaction which involves
the Company and in which persons who are the shareholders of
the Company immediately prior to such transaction own,
immediately after such transaction, shares of the surviving or
combined entity which possess voting rights equal to or less
than fifty percent of the voting rights of all shareholders of
such entity, determined on a fully diluted basis; (ii) any
sale, lease, exchange, transfer or other disposition of all or
any substantial part of the assets of the Company; (iii) any
tender, exchange, sale or other disposition (other than
dispositions of the stock of the Company in connection with
bankruptcy, insolvency, foreclosure, receivership or other
similar transactions) or purchases (other than purchases by
the Company or any company-sponsored employee benefit plan, or
purchases by members of the Board of Directors of the Company)
of more than twenty-five percent of the common stock of the
Company; (iv) during any period of two consecutive years while
the Executive is employed by the Company, individuals who at
the date hereof constitute the Board of Directors cease for
any reason to constitute at least a majority thereof, unless
the election of each director at the beginning of such period
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has been approved by directors representing at least a
majority of the directors then in office who were directors on
the date here above. Notwithstanding the foregoing, a Change
in Control shall not occur as a result of the issuance of
stock by the Company or the Bank in connection with any
private placement offering of its stock or any public offering
of its stock.
2. TERM OF EMPLOYMENT. Subject to provisions for termination set forth
herein, the term of the Executive's employment hereunder (the "Term") shall
commence on the date of a Change in Control and shall extend until three (3)
years after the date of such Change in Control. The Term shall be renewed at the
end of the initial Term and each extension thereof for an additional one (1)
year if the Company's Board of Directors determines by resolution to extend this
Agreement prior to such anniversary.
3. DUTIES OF EXECUTIVE. The Executive shall be an executive officer of
the Company and shall perform such duties and responsibilities for the Company
as may be assigned to him by the Company. During the Term, the Executive shall
devote substantially all of his business time, attention and energy, and his
reasonable best efforts, to the interests and business of the Company and to the
performance of his duties and responsibilities on behalf of the Company.
4. COMPENSATION. Throughout the Term, the Company shall pay the
Executive, for services to be rendered by him hereunder, a guaranteed minimum
salary at an annual rate of One Hundred Fourteen Thousand Seven Hundred Fifty
and No/100 Dollars ($114,750.00), less all applicable federal and state income
tax withholding, FICA taxes and other payroll taxes. The guaranteed minimum
salary shall be reviewed by the Board of Directors of the Company on a yearly
basis to ascertain if any adjustment in the annual rate is in order, and if any
change is made, the new annual rate shall become the guaranteed minimum salary
under this Section 4. Such compensation shall be payable bi-weekly. Provided,
however, that any payments made to the Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with 12 USC
Section 1828 (k) and FDIC regulation 12 CFR 359, Golden Parachute and
Indemnification Payments.
5. VACATION. During the period of the Executive's employment hereunder,
the Executive shall be entitled to the number of paid vacation days in each
calendar year, determined by the Company from time to time for its senior
executive officers, but not less than that number of weeks of vacation each year
to which the Executive is currently entitled. The Executive shall also be
entitled to all paid holidays given by the Company to its executive officers.
6. OTHER BENEFITS. During the Term, the Company shall make available to
the Executive such other benefits as it makes available generally to executive
officers of the Company.
7. EXPENSES. The Company shall pay or reimburse the Executive for all
reasonable expenses actually incurred or paid by him in the performance of
services rendered by him pursuant to this Agreement. Such expenses shall be
supported by the documentary evidence required to substantiate them as income
tax deductions.
8. COVENANT RESTRICTING COMPETITION; NONDISCLOSURE OF CONFIDENTIAL
INFORMATION.
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(A) For a period of one (1) year after termination of the
Executive's employment or the expiration of the Term, the
Executive shall not divulge or furnish any trade secrets (as
defined in IND. CODE Section 24-2-3-2) of the Company or any
confidential information acquired by him while employed by the
Company concerning the policies, plans, procedures or
customers of the Company to any person, firm or corporation,
other than the Company or upon its written request, or use any
such trade secret or confidential information directly or
indirectly for the Executive's own benefit or for the benefit
of any person, firm or corporation other than the Company,
since such trade secrets and confidential information are
confidential and shall at all times remain the property of the
Company.
(B) For a period of one (1) year after termination of the
Executive's employment or expiration of the Term, the
Executive shall not directly or indirectly provide banking or
bank-related services to or solicit the banking or
bank-related business of any customer of the Company at the
time of such provision of services or solicitation which the
Executive served either alone or with others while employed by
the Company in any city, town, borough, township, village or
other place in which the Executive performed services for the
Company while employed by it, or assist any actual or
potential competitor of the Company to provide banking or
bank-related services to or solicit any such customer's
banking or bank-related business in any such place.
(C) For a period of one (1) year after termination of the
Executive's employment or expiration of the Term, the
Executive shall not, directly or indirectly, as principal,
agent, or trustee, or through the agency of any corporation,
partnership, trade association, agent or agency, engage in any
banking or bank-related business or venture which competes
with the business of the Company as conducted during the
Executive's employment by the Company within a radius of fifty
(50) miles of the Company's main office or its branch offices.
(D) Upon the Executive's termination of employment, the Executive
will immediately turn over to the Company all business
correspondence, letters, papers, reports, customers' lists,
financial statements, credit reports or other confidential
information or documents of the Company or its affiliates in
the possession or control of the Executive, all of which
writings are and will continue to be the sole and exclusive
property of the Company or its affiliates.
(E) In the event of a breach of the covenants contained in this
Section 8, the Company shall be entitled to an injunction
restraining such breach in addition to any other remedies
provided by law.
(F) If any provision of this Section 8 is adjudged by a court to
be invalid or unenforceable, the same will in no way affect
any other provision of this Section 8 or any other part of
this Agreement, the application of such provision in any other
circumstances or the validity or enforceability of this
Agreement. If any such provision, or any part thereof, is held
to be unenforceable because of the duration of such provision
or the area covered thereby, the parties agree that the court
making such determination will have the power to reduce the
duration and/or area of such provision, and/or to delete
specific words or phrases, and in its reduced form such
provision will then be enforceable and will be enforced.
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9. TERMINATION BY THE COMPANY. Subject to the respective continuing
obligations of the parties, including but no limited to those set forth in
subsections 8(A) through (F) hereof, the Executives employment by the Company
may be terminated prior to the expiration of the Term of this Agreement as
follows:
(A) The Company, by action of its Board of Directors and upon
written notice to the Executive, may terminate the Executive's
employment with the Company immediately for cause. For
purposes of this subsection 9(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, (vii) any material breach of any term,
condition or covenant of this Agreement, or (viii) termination
of the employment of the Executive with Blue River Bancshares
for cause, as that term is defined in that certain change of
control agreement entered into by and between the Executive
and Blue River Bancshares, Inc.
(B) The Company, by action of its Board of Directors, may
terminate the Executive's employment with the Company without
cause at any time; provided, however, that the "Date of
Termination" for purposes of determining benefits payable to
the Executive under subsection 9(B) hereof shall be the date
which is 30 days after the Executive receives written notice
of such termination.
(C) The Executive, by written notice to the Company, may terminate
his employment with the Company immediately for cause
provided, however, that the Company shall have thirty (30)
days, after the giving of written notice to the Company by the
Executive of the Executive's intention to terminate this
Agreement for cause which notice shall indicate the specific
provision of this Agreement which will be relied upon and
shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for such termination,
to cure the facts and circumstances relied upon for
establishing cause. For purposes of this subsection 9(C),
"cause" shall be defined as (i) any action by the Company to
remove the Executive as Executive Vice President and Chief
Credit Officer of the Company, except where the Company's
Board of Directors properly acts to remove the Executive from
such office for "cause" as defined in subsection 9(A) hereof,
(ii) any action by the Company's Board of Directors to
materially limit, increase, or modify the Executive's duties
and/or authority as Executive Vice President and Chief Credit
Officer of the Company (including his authority, subject to
corporate controls no more restrictive than those in effect on
the date hereof), (iii) any failure of the Company to obtain
the assumption of the obligation to perform this Agreement by
any successor, as contemplated in Section 18 hereof; or (iv)
any intentional breach by the Company of a term, condition
(D) The Executive, upon sixty (60) days written notice to the
Company, may terminate his employment with the Company without
cause.
(E) The Executive's employment with the Company shall terminate in
the event of the Executive's death or disability. For purposes
hereof, "disability" shall be defined as the Executive's
inability by reason of illness or other physical or mental
incapacity to perform the duties required by his employment
for any
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consecutive One Hundred Eighty (180) day period, provided that
notice of any termination by the Company because of the
Executive's "disability" shall have been given to the
Executive prior to the full resumption by him of the
performance of such duties.
10. COMPENSATION UPON TERMINATION. In the event of termination of the
Executive's employment with the Company pursuant to Section 9 hereof,
compensation shall continue to be paid by the Company to the Executive as
follows:
(A) In the event of termination pursuant to subsection 9(A) or
9(D), compensation provided for herein (including Base
Compensation) shall continue to be paid, and the Executive
shall continue to participate in the employee benefit,
retirement, and compensation plans and other perquisites as
provided in Sections 5 and 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 the Executive'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 9(A) shall be no later than
the last business day of the month in which such notice is
provided to the Executive.
(B) In the event of termination pursuant to subsection 9(B) or
9(C), compensation provided for herein (including Base
Compensation) shall continue to be paid, and the Executive
shall continue to participate in the employee benefit,
retirement, and compensation plans and other perquisites as
provided in Sections 5 and 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 the Executive's participation in such
plans through such date shall be paid when due under those
plans. In addition, the Executive shall be entitled to
continue to receive from the Company at his Base Compensation
at the rates in effect at the time of termination for the
remaining Term of the Agreement. In addition, during such
periods, the Company will maintain in full force and effect
for the continued benefit of the Executive each employee
welfare benefit plan (as such term is defined in the Employee
Retirement Income Security Act of 1974, as amended) in which
the Executive was entitled to participate immediately prior to
the date of his termination, unless an essentially equivalent
and no less favorable benefit is provided by a subsequent
employer of the Executive. If the terms of any employee
welfare benefit plan of the Company do not permit continued
participation by the Executive, the Company will arrange to
provide to the Executive a benefit substantially similar to,
and no less favorable than, the benefit he was entitled to
receive under such plan at the end of the period of coverage.
(C) In the event of termination pursuant to subsection 9(E),
compensation provided for herein (including Base Compensation)
shall continue to be paid, and the Executive shall continue to
participate in the employee benefit, retirement, and
compensation plans and other perquisites as provided in
Sections 5 and 6 hereof, (i) in the event of the Executive's
death, through the date of death, or (ii) in the event of the
Executive's disability, through the date of proper notice of
disability as required by subsection 7(E). Any benefits
payable under insurance, health, retirement and bonus plans as
a result of the Executive's participation in such plans
through such date shall be paid when due under those plans.
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11. SUSPENSION. If Executive is suspended and/or temporarily prohibited from
participating in the conduct of Company's or any affiliates' affairs by a notice
served under section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 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, Company
shall (i) pay Executive all 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.
12. REMOVAL. If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Company's or any affiliates' affairs by an
order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance
Act (12 U.S.C. Section 1818(e)(4) or (g)(1)), all obligations of the Company
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.
13. DEFAULT. If the Company 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 the Company or the Executive.
14. CONTINUED OBLIGATIONS. 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 the Company
(A) By the Director or his designee, at the time the Federal
Deposit Insurance Corporation or Resolution Trust Corporation
enters into an agreement to provide assistance to or on behalf
of the Company under authority contained in 13(c) of the
Federal Deposit Insurance Act; or
(B) By the Director or his designee, at the time the Director or
his designee approves a supervisory merger to resolve problems
related to the operation of the Company or when the Company is
determined by the Director to be in an unsafe or unsound
condition. Any rights of the Company or the Executive that have
already vested, however, shall not be affected by such action.
15. ASSIGNMENT. This Agreement is binding upon and shall be for the
benefit of the successors and assigns of the Company, including any corporation
or any other form of business organization with which the Company may merge or
consolidate, or to which it may transfer substantially all of its assets. The
Executive shall not assign his interest in this Agreement or any part thereof.
16. CONSENT OF THE COMPANY. Any act, request, approval, consent or
opinion of the Company under this Agreement, must be in writing and may be
authorized, given or expressed only by resolution of the board of directors of
the Company, or by such other person as the board of directors of the Company
may designate.
17. NOTICES. Any notice required hereunder to be given shall be in
writing and if:
(A) by the Company to the Executive shall be directed to him at
his address set forth below, or to such other address as he
shall have furnished in writing to the Company; or
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(B) by the Executive to the Company shall be directed to the
Shelby County Bank, 00 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxx 00000, Attn: President, or to such designee or other
address as the Company shall name and have furnished in
writing to the Executive.
18. 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.
19. ENFORCEMENT EXPENSES. The Company agrees to reimburse the Executive
for all costs and expenses incurred by him (including the reasonable fees of his
counsel) in successfully enforcing any of his rights under this Agreement or any
claim arising out of the breach thereof. Provided, however, that reimbursement
will not be made to the Executive in the absence of a legal judgment or
settlement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SHELBY COUNTY BANK
/s/ Xxxxx X. Xxxxxx
---------------------------
EXECUTIVE
/s/ Xxxxx X. Xxxxxxx
---------------------------
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