EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as October 7,
2009, by and among FIRST
SAVINGS FINANCIAL GROUP, INC., an Indiana
corporation (the “Corporation”), FIRST
SAVINGS BANK, FSB, a federally-chartered savings bank and a wholly-owned
subsidiary of the Corporation (the “Bank”), and XXXXXXX
X. XXXXXX (the
“Executive”). The Corporation and the Bank are sometimes referred to
in this Agreement individually and together as the “Employer.”
WHEREAS,
the Executive serves in positions of substantial responsibility with the
Corporation and the Bank; and
WHEREAS,
the Corporation and the Bank wish to set forth the terms of the Executive’s
employment in these positions; and
WHEREAS,
the Executive is willing and desires to continue to serve in these positions
with the Corporation and the Bank.
NOW
THEREFORE, in consideration of these premises, the mutual covenants
contained herein, and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows.
ARTICLE
1
EMPLOYMENT
1.1 Employment. The
Employer hereby employs the Executive to serve as Chief Financial Officer of
each of the Corporation and the Bank according to the terms and conditions of
this Agreement and for the period stated in Section 1.3 of this
Agreement. The Executive hereby accepts employment according to the
terms and conditions of this Agreement and for the period stated in Section 1.3
of this Agreement.
1.2 Duties. As
Chief Financial Officer, the Executive shall
report directly to the President and Chief Executive Officer. The
Executive shall serve the Employer faithfully, diligently, competently, and to
the best of the Executive’s ability. The Executive shall exclusively
devote full working time, energy, and attention to the business of the Employer
and to the promotion of the interests of the Employer throughout the term of
this Agreement. Without the prior written consent of the board of
directors of each of the Corporation and the Bank, during the term of this
Agreement the Executive shall not render services to or for any person, firm,
corporation, or other entity or organization in exchange for compensation,
regardless of the form in which the compensation is paid and regardless of
whether it is paid directly or indirectly to the Executive. Nothing
in this Section 1.2 shall prevent the Executive from managing personal
investments and affairs, provided that doing so does not interfere with the
proper performance of the Executive’s duties and responsibilities under this
Agreement.
1.3 Term.
(a) The
term of this Agreement shall include: (i) the initial term, consisting of the
period commencing on the date of this Agreement (the “Effective Date”) and
ending on the third anniversary of the Effective Date, plus (ii) any and all
extensions of the initial term made pursuant to this Section
1.3.
(b) Commencing
on the first anniversary of the Effective Date and continuing on each
anniversary of the Effective Date thereafter, the disinterested members of the
Boards of Directors may extend the Agreement term for an additional year, so
that the remaining term of the Agreement again becomes thirty-six (36) months,
unless the Executive elects not to extend the term of this Agreement by giving
proper written notice. The Boards of Directors will review the
Agreement and Executive’s performance annually for purposes of determining
whether to extend the Agreement term and will include the rationale and results
of its review in the minutes of the meetings. The Boards of Directors
will notify the Executive as soon as possible after each annual review whether
it has determined to extend the Agreement.
ARTICLE
2
COMPENSATION
AND BENEFITS
2.1 Base
Salary. In
consideration of the Executive’s performance of the obligations under this
Agreement, the Employer shall pay or cause to be paid to the Executive a salary
at the annual rate of not less than $80,000, payable according to the regular
payroll practices of the Employer. The Executive’s salary shall be subject to
annual review. The Executive’s salary, as the same may be modified
from time to time, is referred to in this Agreement as the “Base
Salary.” All compensation under this Agreement shall be subject to
customary income tax withholding and such other employment taxes as are imposed
by law.
2.2 Benefit
Plans and Perquisites. For
as long as the Executive is employed by the Employer, the Executive shall be
eligible (x) to participate in any and all officer or employee compensation,
incentive compensation and benefit plans in effect from time to time, including
without limitation, plans providing retirement, medical, dental, disability, and
group life benefits and including stock-based compensation, incentive, or bonus
plans existing on the date of this Agreement or adopted after the date of this
Agreement, provided that the Executive satisfies the eligibility requirements
for any the plans or benefits, and (y) to receive any and all other fringe and
other benefits provided from time to time, including the specific items
described in (a)-(b) below.
(a) Reimbursement
of business expenses. The
Executive shall be entitled to reimbursement for all reasonable business
expenses incurred while performing his obligations under this Agreement,
including but not limited to all reasonable business travel and entertainment
expenses incurred while acting at the request of or in the service of the
Employer and reasonable expenses for attendance at annual and other periodic
meetings of trade associations. Expenses will be reimbursed if they
are submitted in accordance with the Employer’s policies and
procedures.
(b) Facilities. The Employer
will furnish the Executive with the working facilities and staff customary for
executive officers with comparable titles and duties of the Executive as set
forth in Sections 1.1 and 1.2 of this Agreement and as are necessary for the
Executive to perform his duties. The location of such facilities and
staff shall be at the principal administrative offices of the Corporation, or at
such other site or sites customary for such offices.
2.3 Vacation;
Leave. The
Executive shall be entitled to sick leave and paid annual vacation in accordance
with policies established from time to time by the Employer. In
addition to paid vacations and other leave, the boards of directors may grant
the Executive a leave or leaves of absence, with or without pay, at such time or
times and upon such terms and conditions as the boards of directors may
determine.
2.4 Insurance. The
Employer shall maintain or cause to be maintained liability insurance covering
the Executive throughout the term of this Agreement.
2
ARTICLE
3
EMPLOYMENT
TERMINATION
3.1 Termination Because of
Death.
(a) Death. The
Executive’s employment shall terminate automatically at the Executive’s
death. If the Executive dies in active service to the Employer, the
Executive’s spouse, or, if there is no surviving spouse, his estate, shall
receive any sums due to the Executive as Base Salary and reimbursement of
expenses through the end of the month in which his death occurred.
(b) Disability. By
delivery of written notice thirty (30) days in advance to the Executive, the
Employer may terminate the Executive’s employment if the Executive is
disabled. For purposes of this Agreement the Executive shall be
considered “disabled” if an independent physician selected by the Employer, and
reasonably acceptable to the Executive or the Executive’s legal representative,
determines that, because of illness or accident, the Executive is unable to
perform the Executive’s duties and will be unable to perform the Executive’s
duties for a period of ninety (90) consecutive days. The Executive
shall not be considered disabled, however, if the Executive returns to work on a
full-time basis within thirty (30) days after the Employer gives notice of
termination due to disability. If the Executive is terminated by
either of the Corporation or the Bank because of disability, the Executive’s
employment with the other shall also terminate at the same
time. During the period of incapacity leading up to the termination
of the Executive’s employment under this provision, the Employer shall continue
to pay the full Base Salary at the rate then in effect and all perquisites and
other benefits (other than bonus) until the Executive becomes eligible for
benefits under any disability plan or insurance program maintained by the
Employer, provided that the amount of the payments by the Employer to the
Executive under this Section 3.1(b) shall be reduced by the sum of the amounts,
if any, payable to the Executive for the same period under any disability
benefit or pension plan covering the Executive.
3.2 Involuntary
Termination with Cause. The
Employer may terminate the Executive’s employment for Cause. If the
Executive’s employment terminates for Cause, the Executive shall receive the
Base Salary through the date on which termination becomes effective and
reimbursement of expenses to which the Executive is entitled when termination
becomes effective. If the Executive is terminated for Cause by either
of the Corporation or the Bank, the Executive shall be deemed also to have been
terminated for Cause by the other. The Executive shall not be deemed
to have been terminated for Cause under this Agreement unless and until there is
delivered to the Executive a copy of a resolution adopted at a meeting of the
board of directors called and held for the purpose, which resolution shall (x)
contain findings that the Executive has committed an act constituting Cause, and
(y) specify the particulars thereof. The resolution of the board of
directors shall be deemed to have been duly adopted if and only if it is adopted
by the affirmative vote of a majority of the directors of the Corporation then
in office or a majority of the directors of the Bank then in office, in either
case excluding the Executive. Notice of the meeting and the proposed
termination for Cause shall be given to the Executive a reasonable time before
the meeting of the board of directors. The Executive and the
Executive’s counsel (if the Executive chooses to have counsel present) shall
have a reasonable opportunity to be heard by the board of directors at the
meeting. For purposes of this Agreement “Cause” means any of the
following:
|
|
(1)
|
Personal
dishonesty;
|
|
|
(2)
|
Incompetence;
|
|
|
(3)
|
Willful
misconduct;
|
|
|
(4)
|
Breach
of fiduciary duty involving personal
profit;
|
|
|
(5)
|
Intentional
failure to perform stated duties;
|
|
|
(6)
|
Willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order;
or
|
|
|
(7)
|
Material
breach of any provision of this
Agreement.
|
3
3.3 Voluntary
Termination by the Executive Without Good Reason. If
the Executive terminates employment without Good Reason, the Executive shall
receive the Base Salary and expense reimbursement to which the Executive is
entitled through the date on which termination becomes effective.
3.4 Involuntary
Termination Without Cause and Voluntary Termination with Good Reason. With
written notice to the Executive at least thirty (30) days in advance, the
Employer may terminate the Executive’s employment without
Cause. Termination shall take effect at the end of the notice
period. With advance written notice to the Employer as provided in
clause (y), the Executive may terminate employment for Good
Reason. If the Executive’s employment terminates involuntarily
without Cause or voluntarily but with Good Reason, the Executive shall be
entitled to the benefits specified in Article 4 of this
Agreement. For purposes of this Agreement, a voluntary termination by
the Executive shall be considered a voluntary termination with Good Reason if
the conditions stated in both clauses (x) and (y) of this Section 3.4 are
satisfied:
(x) a
voluntary termination by the Executive shall be considered a voluntary
termination with Good Reason if any of the following occur without the
Executive’s written consent, and the term Good Reason shall mean the occurrence
of any of the following without the Executive’s written consent:
|
(1)
|
a
material diminution of the Executive’s Base
Salary;
|
|
(2)
|
a
material diminution of the Executive’s authority, duties, or
responsibilities;
|
|
(3)
|
a
material diminution in the authority, duties or responsibilities of the
supervisor to whom the Executive is required to
report;
|
|
|
(4)
|
a
change in the geographic location at which the Executive must perform
services for the Employer by more than thirty-five (35) miles from such
location at the effective date; or
|
|
|
(5)
|
any
other action or inaction that constitutes a material breach by the
Employer under this Agreement.
|
(y) the
Executive must give notice to the Employer of the existence of one or more of
the conditions described in clause (x) within sixty (60) days after the initial
existence of the condition, and the Employer shall have thirty (30) days
thereafter to remedy the condition. In addition, the Executive’s
voluntary termination because of the existence of one or more of the conditions
described in clause (x) must occur within six (6) months after the initial
existence of the condition.
ARTICLE
4
SEVERANCE
COMPENSATION
4.1 Cash Severance after
Termination Without Cause or Termination for Good Reason.
(a) Subject
to the possibility that cash severance after employment termination might be
delayed under Section 4.1(b), if the Executive’s employment terminates
involuntarily but without Cause or if the Executive voluntarily terminates
employment with Good Reason, the Executive shall for the unexpired term of this
Agreement and in accordance with the Employer’s regular pay practices continue
to receive the Base Salary in effect at employment. However, the
Employer and the Executive acknowledge and agree that the compensation and
benefits under this Section 4.1 shall not be payable if compensation
and benefits are payable or shall have been paid to the Executive under Article
5 of this Agreement.
4
(b) If
when employment termination occurs the Executive is a “specified employee”
within the meaning of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), if the cash severance payment under Section 4.1(a) would
be considered deferred compensation under Section 409A of the Code, and finally
if an exemption from the six-month delay requirement of Section 409A(a)(2)(B)(i)
of the Code is not available, the Executive’s continued Base Salary under
Section 4.1(a) for the first six months after employment termination shall be
paid to the Executive in a single lump sum without interest on the first
business day of the seventh (7th) month
after the month in which the Executive’s employment
terminates. References in this Agreement to Section 409A of the Code
include rules, regulations, and guidance of general application issued by the
Department of the Treasury under Section 409A of the Code.
4.2 Post-Termination Insurance
Coverage.
(a) If
the Executive’s employment terminates involuntarily but without Cause or
voluntarily but with Good Reason, or because of disability, the Employer shall
continue, or cause to be continued at the Employer’s expense, medical insurance
benefits for the Executive and any of his dependents covered at the time of his
termination. The medical insurance benefits shall continue until the
first to occur of (w) the Executive’s return to employment with the Employer or
another employer, (x) the date the Executive becomes eligible for Medicare, (y)
the Executive’s death, or (z) the end of the term remaining under this Agreement
when the Executive’s employment terminates.
(b) If
(x) under the terms of the applicable policy or policies for the insurance
benefits specified in Section 4.2(a) it is not possible to continue coverage for
the Executive and his dependents, or (y) when employment termination occurs the
Executive is a “specified employee” within the meaning of Section 409A of the
Code, if any of the continued insurance coverage benefits specified in Section
4.2(a) would be considered deferred compensation under Section 409A of the Code,
and finally, if an exemption from the six-month delay requirement of Section
409A(a)(2)(B)(i) of the Code is not available for that particular insurance
benefit, the Employer shall pay to the Executive in a single lump sum an amount
in cash equal to the present value of the Employer’s projected cost to maintain
that particular insurance benefit (and associated income tax gross-up benefit,
if applicable) had the Executive’s employment not terminated, assuming continued
coverage for 36 months. The lump-sum payment shall be made thirty
(30) days after employment termination or, if Section 4.1(b) applies, on the
first business day of the seventh (7th) month
after the month in which the Executive’s employment terminates.
ARTICLE
5
CHANGE
IN CONTROL BENEFITS
5.1 Change
in Control Benefits. If
a Change in Control occurs during the term of this Agreement and, thereafter
during the term of the Agreement, the Executive’s employment terminates
involuntarily but without Cause or if the Executive voluntarily terminates
employment with Good Reason, the Employer shall make or cause to be made a
lump-sum payment to the Executive in an amount in cash equal to three (3) times
the Executive’s average annual compensation. For this purpose,
average annual compensation means the Executive’s taxable income reported by the
Employer (or any affiliate of the Employer) for the five (5) calendar years
immediately preceding the calendar year in which the Change in Control occurs
(or a lesser number of years equal to the number of years the Executive has been
employed by the Employer if he has been employed by the Employer for less than
five (5) calendar years), regardless of when the cash bonus or cash incentive
compensation earned for the preceding calendar year. For purposes of
this Agreement, taxable income will only include taxable income reported for
services performed for First Savings Bank, FSB and/or First Savings Financial
Group, Inc. Taxable income for purposes of this Agreement shall not
include any income attributable to any payment made by or related to the
Executive’s employment with the Employer. The payment required under
this paragraph is payable no later than five (5) business days after the
Executive’s termination of employment. If the Executive receives
payment under Section 5.1, the Executive shall not be entitled to any additional
severance benefits under Section 4.1 of this Agreement. In addition,
the Employer shall provide the Executive and his dependents with the
post-termination insurance coverage described in Section 4.2(a) of this
Agreement, subject to the provisions of Section 4.2(b) of this
Agreement.
5
5.2 Change
in Control Defined. For
purposes of this Agreement “Change in Control” means a change in control as
defined in Section 409A of the Code and rules, regulations, and guidance of
general application thereunder issued by the Department of the Treasury,
including:
(a) Change
in ownership:
a change in ownership of the Corporation occurs on the date any one person or
group accumulates ownership of Corporation stock constituting more than 50% of
the total fair market value or total voting power of Corporation
stock,
(b) Change
in effective control:
(x) any one person or more than one person acting as a group acquires
within a 12-month period ownership of Corporation stock possessing 30% or more
of the total voting power of Corporation stock, or (y) a majority of the
Corporation’s board of directors is replaced during any 12-month period by
directors whose appointment or election is not endorsed in advance by a majority
of the Corporation’s board of directors, or
(c) Change
in ownership of a substantial portion of assets:
a change in ownership of a substantial portion of the Corporation’s assets
occurs if in a 12-month period any one person or more than one person acting as
a group acquires from the Corporation assets having a total gross fair market
value equal to or exceeding 40% of the total gross fair market value of all of
the Corporation’s assets immediately before the acquisition or
acquisitions. For this purpose, gross fair market value means the
value of the Corporation’s assets, or the value of the assets being disposed of,
determined without regard to any liabilities associated with the
assets.
5.3 Potential
Limitation of Benefits Under Certain Circumstances. Notwithstanding
any other provisions of this Agreement, in the event that (x) the aggregate
payments or benefits to be made or afforded to the Executive under this
Agreement or otherwise, which are deemed to be parachute payments as defined in
Section 280G of the Code or any successor thereof (the “Termination Benefits”)
would be deemed to include an “excess parachute payment” under Section 280G of
the Code; and (y) if such Termination Benefits were reduced to an amount (the
“Non-Triggering Amount”), the value of which is one dollar ($1.00) less than an
amount equal to three (3) times the Executive’s “base amount,” as determined in
accordance with Section 280G of the Code, and the Non-Triggering Amount less the
product of the marginal rate of any applicable state and federal income tax and
the Non-Triggering Amount would be greater than the aggregate value of the
Termination Benefits (without such reduction) minus (1) the amount of tax
required to be paid by the Executive thereon by Section 4999 of the Code and
further minus (2) the product of the Termination Benefits and the marginal rate
of any applicable state and federal income tax, then the Termination Benefits
shall be reduced to the Non-Triggering Amount. The allocation of the
reduction required hereby among the Termination Benefits shall be determined by
the Executive. Notwithstanding the foregoing, the Bank shall not pay
the Executive Termination Benefits in excess of three (3) times his average
annual compensation (or such other amount that may be permitted by the Office of
Thrift Supervision pursuant to regulation or regulatory
guidance). Any payment of Termination Benefits in excess of three (3)
times the Executive average annual compensation shall be made by the
Company. The Company’s independent public accountants will determine
the value of any reduction in the payments and benefits; the Employer will pay
for the accountants’ opinion. If the Employer and/or the Executive do
not agree with the accountants’ opinion, the Employer will pay to the Executive
the maximum amount of payments and benefits pursuant to Sections 4 and 5 of this
Agreement or otherwise, as selected by Executive, that the opinion indicates
have a high probability of not causing any of the payments and benefits to be
non-deductible and subject to the excise tax imposed under Section 4999 of the
Code. The Employer may also request, and the Executive has the right
to demand that, a ruling from the IRS as to whether the disputed payments and
benefits have such tax consequences. The Employer will promptly
prepare and file the request for a ruling from the IRS, but in no event will the
Employer make this filing later than thirty (30) days from the date of the
accountant’s opinion referred to above. The request will be subject
to the Executive’s approval prior to filing; the Executive shall not
unreasonably withhold his approval. The Employer and the Executive
agree to be bound by any ruling received from the IRS and to make appropriate
payments to each other to reflect any IRS rulings, together with interest at the
applicable federal rate provided for in Section 7872(f)(2) of the
Code. Nothing contained in this Agreement shall result in a reduction
of any payments or benefits to which the Executive may be entitled upon
termination of employment other than pursuant to Sections 4 and 5 hereof, or a
reduction in the payments and benefits specified, below zero.
6
ARTICLE
6
CONFIDENTIALITY
AND CREATIVE WORK
6.1 Non-disclosure. The
Executive covenants and agrees not to reveal to any person, firm, or corporation
any confidential information of any nature concerning the Employer or its
business, or anything connected therewith. As used in this Article 6
the term “confidential information” means all of the Employer’s and the
Employer’s affiliates’ confidential and proprietary information and trade
secrets in existence on the date hereof or existing at any time during the term
of this Agreement, including but not limited to:
(a) the
whole or any portion or phase of any business plans, financial information,
purchasing data, supplier data, accounting data, or other financial
information;
(b) the
whole or any portion or phase of any research and development information,
design procedures, algorithms or processes, or other technical
information;
(c) the
whole or any portion or phase of any marketing or sales information, sales
records, customer lists, prices, sales projections, or other sales information;
and
(d) trade
secrets, as defined from time to time by the laws of Indiana.
This
Section 6.1 does not prohibit disclosure required by an order of a court having
jurisdiction or a subpoena from an appropriate governmental agency or disclosure
made by the Executive in the ordinary course of business and within the scope of
the Executive’s authority.
6.2 Return
of Materials. The
Executive agrees to immediately deliver or return to the Employer upon
termination, upon expiration of this Agreement, or as soon thereafter as
possible, all written information and any other similar items furnished by the
Employer or prepared by the Executive in connection with the Executive’s
services hereunder and to immediately delete all electronically stored data of
the Employer maintained on the Executive’s personal computers and to return all
Employer-provided computers or communication devices (i.e., laptop, Blackberry,
PDA, etc.). The Executive will retain no copies thereof after
termination of this Agreement or termination of the Executive’s
employment.
6.3 Creative
Work. The
Executive agrees that all creative work and work product, including but not
limited to all technology, business management tools, processes, software,
patents, trademarks, and copyrights developed by the Executive during the term
of this Agreement, regardless of when or where such work or work product was
produced, constitutes work made for hire, all rights of which are owned by the
Employer. The Executive hereby assigns to the Employer all rights,
title, and interest, whether by way of copyrights, trade secret, trademark,
patent, or otherwise, in all such work or work product, regardless of whether
the same is subject to protection by patent, trademark, or copyright
laws.
7
6.4 Affiliates’
Confidential Information is Covered; Confidentiality Obligation Survives
Termination. For
purposes of this Agreement, the term “affiliate” of the Employer includes any
entity that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with the Corporation or
the Bank. The rights and obligations set forth in this Article 6
shall survive termination of this Agreement.
6.5 Injunctive
Relief. The
Executive acknowledges that it is impossible to measure in money the damages
that will accrue to the Employer if the Executive fails to observe the
obligations imposed by this Article 6. Accordingly, if the Employer
institutes an action to enforce the provisions hereof, the Executive hereby
waives the claim or defense that an adequate remedy at law is available to the
Employer, and the Executive agrees not to urge in any such action the claim or
defense that an adequate remedy at law exists. The confidentiality
and remedies provisions of this Article 6 shall be in addition to and shall not
be deemed to supersede or restrict, limit, or impair the Employer’s rights under
applicable state or federal statute or regulation dealing with or providing a
remedy for the wrongful disclosure, misuse, or misappropriation of trade secrets
or proprietary or confidential information.
ARTICLE
7
COMPETITION
AFTER EMPLOYMENT TERMINATION
7.1 Covenant
Not to Solicit Employees. The
Executive agrees not to, directly or indirectly, solicit or employ the services
of any officer or employee of the Employer (including an individual who was an
officer or employee of the Employer during the one year period following the
Executive’s termination) for two years after the Executive’s employment
termination.
7.2 Covenant Not to
Compete.
(a) The
Executive covenants and agrees not to compete directly or indirectly with the
Employer for one year after employment termination. For purposes of
this Section 7.2:
(1) the
term compete
means:
|
|
(i)
|
providing
financial products or services on behalf of any financial institution for
any person residing in the
territory;
|
|
|
(ii)
|
assisting
(other than through the performance of ministerial or clerical duties) any
financial institution in providing financial products or services to any
person residing in the territory;
or
|
|
|
(iii)
|
inducing
or attempting to induce any person who was a customer of the Employer at
the date of the Executive’s employment termination to seek financial
products or services from another financial
institution.
|
8
(2) the
words directly
or indirectly
mean:
|
|
(i)
|
acting
as a consultant, officer, director, independent contractor, or employee of
any financial institution in competition with the Employer in the
territory; or
|
|
|
(ii)
|
communicating
to such financial institution the names or addresses or any financial
information concerning any person who was a customer of the Employer when
the Executive’s employment
terminated.
|
|
|
(3)
|
the
term customer
means any person to whom the Employer is providing financial
products or services on the date of the Executive’s employment termination
or within one year thereafter.
|
|
|
(4)
|
the
term financial
institution means any bank, savings association, or bank or savings
association holding company, or any other institution, the business of
which is engaging in activities that are financial in nature or incidental
to such financial activities as described in Section 4(k) of the Bank
Holding Company Act of 1956, other than the Employer or any of its
affiliated corporations.
|
|
|
(5)
|
financial
product or service means any product or service that a financial
institution or a financial holding company could offer by engaging in any
activity that is financial in nature or incidental to such a financial
activity under Section 4(k) of the Bank Holding Company Act of 1956 and
that is offered by the Employer or an affiliate on the date of the
Executive’s employment termination, including but not limited to banking
activities and activities that are closely related and a proper incident
to banking.
|
|
|
(6)
|
the
term person
means any individual or individuals, corporation, partnership, fiduciary
or association.
|
|
|
(7)
|
the
term territory
means any of the following counties within the State of Indiana: Xxxxx,
Xxxxx, Crawford, Harrison, Washington, Perry, Dubois, Orange, Lawrence,
Jackson, Xxxxx and Jefferson.
|
(b) If
any provision of this section or any word, phrase, clause, sentence or other
portion thereof (including, without limitation, the geographical and temporal
restrictions contained therein) is held to be unenforceable or invalid for any
reason, the unenforceable or invalid provision or portion shall be modified or
deleted so that the provisions hereof, as modified, are legal and enforceable to
the fullest extent permitted under applicable law.
(c) The
Executive acknowledges that the Employer’s willingness to enter into this
Agreement and to make the payments contemplated by Articles 3 and 4 of this
Agreement is conditioned on the Executive’s acceptance of the covenants set
forth in Articles 6 and 7 of this Agreement and that the Employer would not have
entered into this Agreement without such covenants in force.
7.3 Injunctive
and Other Relief. Because
of the unique character of the services to be rendered by the Executive
hereunder, the Executive understands that the Employer would not have an
adequate remedy at law for the material breach or threatened breach by the
Executive of any one or more of the Executive’s covenants in this Article
7. Accordingly, the Executive agrees that the Employer’s remedies for
a breach of this Article 7 include, but are not limited to, (x) forfeiture of
any money representing accrued salary, contingent payments, or other fringe
benefits (including any amount payable pursuant to Article 4) due and payable to
the Executive during the period of any breach by Executive, and (y) a suit in
equity by the Employer to enjoin the Executive from the breach or threatened
breach of such covenants. The Executive hereby waives the claim or
defense that an adequate remedy at law is available to the Bank and the
Executive agrees not to urge in any such action the claim or defense that an
adequate remedy at law exists. Nothing herein shall be construed to
prohibit the Employer from pursuing any other or additional remedies for the
breach or threatened breach.
9
7.4 Article
7 Survives Termination But Is Void After a Change in Control. The
rights and obligations set forth in this Article 7 shall survive termination of
this Agreement. However, Article 7 shall become null and void
effective immediately upon a Change in Control.
ARTICLE
8
MISCELLANEOUS
8.1 Successors and
Assigns.
(a) This
Agreement shall be binding upon the Employer and any successor to the Employer,
including any persons acquiring directly or indirectly all or substantially all
of the business or assets of the Employer by purchase, merger, consolidation,
reorganization, or otherwise, but this Agreement and the Employer’s obligations
under this Agreement are not otherwise assignable, transferable, or delegable by
the Employer. By agreement in form and substance satisfactory to the
Executive, the Employer shall require any successor to all or substantially all
of the business or assets of the Employer expressly to assume and agree to
perform this Agreement in the same manner and to the same extent the Employer
would be required to perform had no succession occurred.
(b) This
Agreement shall inure to the benefit of and be enforceable by the Executive’s
personal or legal representatives, executors, administrators, successors, heirs,
distributees, and legatees.
(c) Without
written consent of the other parties, no party shall assign, transfer, or
delegate this Agreement or any rights or obligations under this Agreement,
except as expressly provided herein. Without limiting the generality or effect
of the foregoing, the Executive’s right to receive payments hereunder is not
assignable or transferable, whether by pledge, creation of a security interest,
or otherwise, except for a transfer by the Executive’s will or by the laws of
descent and distribution. If the Executive attempts an assignment or
transfer that is contrary to this Section 8.1, the Employer shall have no
liability to pay any amount to the assignee or transferee.
8.2 Governing
Law, Jurisdiction and Forum. This
Agreement shall be construed under and governed by the internal laws of the
State of Indiana, without giving effect to any conflict of laws provision or
rule that would cause the application of the laws of any jurisdiction other than
Indiana. By entering into this Agreement, the Executive acknowledges
that the Executive is subject to the jurisdiction of both the federal and state
courts in Indiana.
8.3 Entire
Agreement. This
Agreement sets forth the entire agreement of the parties concerning the
employment of the Executive by the Employer and supersedes the Change
in Control Agreement entered into by and between the Executive and
the Bank effective as of October 7, 2008. Any oral or written
statements, representations, agreements, or understandings made or entered into
prior to or contemporaneously with the execution of this Agreement are hereby
rescinded, revoked, and rendered null and void by the parties.
10
8.4 Notices.
All notices,
requests, demands, and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered by hand or mailed,
certified or registered mail, return receipt requested, with postage
prepaid. Unless otherwise changed by notice, notice shall be properly
addressed to the Executive if addressed to the address of the Executive on the
books and records of the Employer at the time of the delivery of such notice,
and properly addressed to the Employer if addressed to the board of directors of
the Corporation and the Bank at the Bank’s executive offices.
8.5 Severability. If
there is a conflict between any provision of this Agreement and any statute,
regulation, or judicial precedent, the latter shall prevail, but the affected
provisions of this Agreement shall be curtailed and limited solely to the extent
necessary to bring them within the requirements of law. If any
provisions of this Agreement is held by a court of competent jurisdiction to be
indefinite, invalid, void or voidable, or otherwise unenforceable, the remainder
of this Agreement shall continue in full force and effect unless that would
clearly be contrary to the intentions of the parties or would result in an
injustice.
8.6 Captions
and Counterparts. The
captions in this Agreement are solely for convenience. The captions
do not define, limit, or describe the scope or intent of this
Agreement. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
8.7 No
Duty to Mitigate. The
Executive shall not be required to mitigate the amount of any payment provided
for in this Agreement by seeking other employment. Moreover, provided
the Executive is not in breach of any obligation under Articles 6 and 7 of this
Agreement, the amount of any payment provided for in this Agreement shall not be
reduced by any compensation earned or benefits provided as the result of
employment of the Executive or as a result of the Executive being self-employed
after employment termination.
8.8 Amendment
and Waiver. This Agreement
may not be amended, released, discharged, abandoned, changed, or modified in any
manner, except by an instrument in writing signed by each of the parties
hereto. The failure of any party hereto to enforce at any time any of
the provisions of this Agreement shall not be construed to be a waiver of any
such provision, nor affect the validity of this Agreement or any part thereof or
the right of any party thereafter to enforce each and every such
provision. No waiver or any breach of this Agreement shall be held to
be a waiver of any other or subsequent breach.
8.9 Compliance
with Internal Revenue Code Section 409A. The
Employer and the Executive intend that their exercise of authority or discretion
under this Agreement shall comply with Section 409A of the Code. If
any provision of this Agreement does not satisfy the requirements of Section
409A of the Code, such provision shall nevertheless be applied in a manner
consistent with those requirements. If any provision of this
Agreement would subject the Executive to additional tax or interest under
Section 409A of the Code, the Employer shall reform the
provision. However, the Employer shall maintain, to the maximum
extent practicable, the original intent of the applicable provision without
subjecting the Executive to additional tax or interest, and the Employer shall
not be required to incur any additional compensation expense as a result of the
reformed provision.
8.10 Required
Provisions. In
the event any of the foregoing provisions of this Agreement conflict with the
terms of this Section 8.10, this Section 8.10 shall prevail.
(a) The
Bank’s Board of Directors may terminate the Executive’s employment at any time,
but any termination by the Bank, other than termination for Cause, shall not
prejudice the Executive’s right to compensation or other benefits under this
Agreement. The Executive shall not have the right to receive
compensation or other benefits for any period after termination for Cause as
defined in Section 3.2 of this Agreement.
11
(b) If
the Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the Bank’s affairs by a notice served under
Section 8(e)(3) or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
Section 1818(e)(3) or (g)(1), the Bank’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, the Bank
may, in its discretion: (i) pay the Executive all or part of the
compensation withheld while its contract obligations were suspended; and (ii)
reinstate (in whole or in part) any of the obligations which were
suspended.
(c) If
the Executive is removed and/or permanently prohibited from participating in the
conduct of the Bank’s affairs by an order issued under Section 8(e)(4) or
8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1818(e)(4) or
(g)(1), all obligations of the Bank under this Agreement shall terminate as of
the effective date of the order, but vested rights of the contracting parties
shall not be affected.
(d) If
the Bank is in default as defined in Section 3(x)(1) of the Federal Deposit
Insurance Act, 12 U.S.C. Section 1813(x)(1), all obligations under this
Agreement shall terminate as of the date of default, but this
paragraph shall not affect any vested rights of the contracting
parties.
(e) All
obligations under this Agreement shall terminate, except to the extent
determined that continuation of the Agreement is necessary for the continued
operation of the institution: (i) by the Director of the Office of
Thrift Supervision (OTS), or his designee, at the time the Federal Deposit
Insurance Corporation (FDIC) enters into an agreement to provide assistance to
or on behalf of the Bank under the authority contained in Section 13(c) of the
Federal Deposit Insurance Act, 12 U.S.C. Section 1823(c), or (ii) by the
Director of the OTS (or his designee) at the time the Director (or his designee)
approves a supervisory merger to resolve problems related to the operations of
the Bank or when the Bank is determined by the Director to be in an unsafe or
unsound condition. Any rights of the parties that have already
vested, however, shall not be affected by such action.
(f) Any
payments made to the Executive pursuant to this Agreement, or otherwise, are
subject to, and conditioned upon, their compliance with 12 U.S.C. Section
1828(k) and FDIC Regulation 12 C.F.R. Part 359, Golden Parachute and
Indemnification Payments.
[signature
page to follow]
12
IN
WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the date first written above.
|
FIRST
SAVINGS FINANCIAL GROUP, INC.
|
|
/s/ Xxxxxxx X. Xxxxxx
|
|
Xxxxxxx
X. Xxxxxx
|
|
Chairman
of the Board of Directors
|
|
FIRST
SAVINGS BANK, FSB
|
|
/s/ Xxxxxxx X. Xxxxxx
|
|
Xxxxxxx
X. Xxxxxx
|
|
Chairman
of the Board of Directors
|
|
/s/ Xxxxxxx X. Xxxxxx
|
|
Xxxxxxx
X. Xxxxxx
|
13
