VERSION A
EXECUTIVE SEVERANCE AGREEMENT
THIS EXECUTIVE SEVERANCE AGREEMENT ("Agreement") is entered into as of the
16th day of January, 2001 by and between INDIANA UNITED BANCORP (the "Company"),
an Indiana corporation, and ________________________ ("Executive").
R E C I T A L S:
A. The Company considers the establishment and maintenance of a sound and
vital management to be essential to protecting and enhancing the best interests
of the Company and its shareholders;
B. The Company recognizes that, as is the case with many publicly held
corporations, the possibility of a change in control may arise and that such
possibility may result in the departure or distraction of management personnel
to the detriment of the Company and its shareholders;
C. The Board of Directors of the Company (the "Board") has determined that
it is in the best interests of the Company and its shareholders to secure
Executive's continued services and to ensure Executive's continued and undivided
dedication to his duties in the event of any threat or occurrence of a Change in
Control (as defined in Section 1) of the Company; and
D. The Board has authorized the Company to enter into this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the Company and Executive hereby agree as follows:
A G R E E M E N T:
1. Definitions. As used in this Agreement, the following terms shall have
the respective meanings set forth below:
(a) "Bonus Amount" means the annual incentive bonus earned by
Executive from the Company during the last completed fiscal year of the
Company immediately preceding Executive's Date of Termination (annualized
in the event Executive was not employed by the Company for the whole of any
such fiscal year).
(b) "Cause" means (i) the willful and continued failure of Executive
to perform substantially his duties with the Company (other than any such
failure resulting from Executive's incapacity due to physical or mental
illness or any such failure subsequent to Executive being delivered a
Notice of Termination without Cause by the Company or delivering a Notice
of Termination for Good Reason to the Company) after a written demand for
substantial performance is delivered to Executive by the Board that
specifically identifies the manner in which the Board believes that
Executive has not substantially performed Executive's duties, (ii) the
willful engaging by Executive in illegal conduct or gross misconduct that
is demonstrably and materially injurious to the Company, or (iii) the
conviction of Executive of, or a plea by Executive of nolo contendre to, a
felony. For purpose of this paragraph (b), no act or failure to act by
Executive shall be considered "willful" unless done or omitted to be done
by Executive in bad faith and without reasonable belief that Executive's
action or omission was legal, regulatory compliant, and in the best
interests of the Company. Any act, or failure to act, based upon authority
given pursuant to a resolution duly adopted by the Board, based upon the
advice of counsel for the Company or upon the instructions of the Company's
chief executive officer or another senior officer of the Company, shall be
conclusively presumed to be done, or omitted to be done, by Executive in
good faith and in the best interests of the Company. Cause shall not exist
unless and until the Company has delivered to Executive a copy of a
resolution duly adopted by three-fourths (3/4) of the entire Board
(excluding Executive if Executive is a Board member) at a meeting of the
Board called and held for such purpose (after reasonable notice to
Executive and an opportunity for Executive, together with counsel, to be
heard before the Board), finding that in the good faith opinion of the
Board an event set forth in clauses (i) or (ii) has occurred and specifying
the particulars thereof in detail. The Company must notify Executive of any
event constituting Cause within ninety (90) days following the Company's
knowledge of its existence or such event shall not constitute Cause under
this Agreement.
(c) "Change in Control" means the occurrence of any one of the
following events:
(i) individuals who, on January 16, 2001, constitute the Board
(the "Incumbent Directors") cease for any reason to constitute at
least a majority of the Board, provided that any person becoming a
director subsequent to January 16, 2001, whose election or nomination
for election was approved by a vote of at least two-thirds of the
Incumbent Directors then on the Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is
named as a
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nominee for director, without written objection by such Incumbent
Directors to such nomination) shall be deemed to be an Incumbent
Director; provided, however, that no individual elected or nominated
as a director of the Company initially as a result of an actual or
threatened election contest with respect to directors or any other
actual or threatened solicitation of proxies by or on behalf of any
person other than the Board shall be deemed to be an Incumbent
Director;
(ii) any "person" (as such term is defined in Section 3(a)(9) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is
or becomes a "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 25% or more of the combined voting power of the Company's
then outstanding securities eligible to vote for the election of the
Board (the "Company Voting Securities"); provided, however, that the
event described in this paragraph (ii) shall not be deemed to be a
Change in Control by virtue of any of the following acquisitions: (A)
by the Company or any Subsidiary, (B) by any employee benefit plan
sponsored or maintained by the Company or any Subsidiary, or by any
employee stock benefit trust created by the Company or any Subsidiary,
(C) by any underwriter temporarily holding securities pursuant to an
offering of such securities, (D) pursuant to a Non-Qualifying
Transaction (as defined in paragraph (iii)), (E) pursuant to any
acquisition by Executive or any group of persons including Executive
(or any entity controlled by Executive or any group of persons
including Executive); or (F) a transaction (other than one described
in (iii) below) in which Company Voting Securities are acquired from
the Company, if a majority of the Incumbent Directors approves a
resolution providing expressly that the acquisition pursuant to this
clause (F) does not constitute a Change in Control under this
paragraph (ii);
(iii) the consummation of a merger, consolidation, share exchange
or similar form of corporate transaction involving the Company or any
of its Subsidiaries that requires the approval of the Company's
shareholders, whether for such transaction or the issuance of
securities in the transaction (a "Business Combination"), unless
immediately following such Business Combination: (A) more than 60% of
the total voting power of (x) the corporation resulting from the
consummation of such Business Combination (the "Surviving
Corporation") or (y) if applicable, the ultimate parent corporation
that directly or indirectly has beneficial ownership of 100% of the
voting securities eligible to elect directors of the Surviving
Corporation (the "Parent Corporation"), is represented by Company
Voting Securities that were outstanding immediately prior to such
Business Combination (or, if applicable, represented by shares into
which
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such Company Voting Securities were converted pursuant to such
Business Combination), and such voting power among the holders thereof
is in substantially the same proportion as the voting power of such
Company Voting Securities among the holders thereof immediately prior
to the Business Combination, (B) no person (other than any employee
benefit plan sponsored or maintained by the Surviving Corporation or
the Parent Corporation or any employee stock benefit trust created by
the Surviving Corporation or the Parent Corporation) is or becomes the
beneficial owner, directly or indirectly, of 25% or more of the total
voting power of the outstanding voting securities eligible to elect
directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation) and (C) at least one-half of
the members of the board of directors of the Parent Corporation (or,
if there is no Parent Corporation, the Surviving Corporation) were
Incumbent Directors at the time of the Board's approval of the
execution of the initial agreement providing for such Business
Combination (any Business Combination which satisfies all of the
criteria specified in (A), (B) and (C) above shall be deemed to be a
"Non-Qualifying Transaction"); or
(iv) the shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company or a sale of all or
substantially all of the Company's assets.
Notwithstanding the foregoing, a Change in Control of the Company shall not be
deemed to occur solely because any person acquires beneficial ownership of more
than 25% of the Company Voting Securities as a result of the acquisition of
Company Voting Securities by the Company that reduces the number of Company
Voting Securities outstanding; provided, that if after such acquisition by the
Company such person becomes the beneficial owner of additional Company Voting
Securities that increases the percentage of outstanding Company Voting
Securities beneficially owned by such person, a Change in Control of the Company
shall then occur.
(d) "Date of Termination" means (1) the effective date on which
Executive's employment by the Company terminates as specified in a prior
written notice by the Company or Executive, as the case may be, to the
other, delivered pursuant to Section 10, or (2) if Executive's employment
by the Company terminates by reason of death, the date of death of
Executive.
(e) "Disability" means termination of Executive's employment by the
Company due to Executive's absence from Executive's duties with the Company
on a full-time basis for at least one hundred eighty (180) consecutive days
as a result of Executive's incapacity due to physical or mental illness.
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(f) "Good Reason" means, without Executive's express written consent,
the occurrence of any of the following events after a Change in Control:
(i) (A) any change in the duties or responsibilities (including
reporting responsibilities) of Executive that is inconsistent in any
material and adverse respect with Executive's positions, duties,
responsibilities or status with the Company immediately prior to such
Change in Control (including any material and adverse diminution of
such duties or responsibilities); or in the event of a Change in
Control to which Section 1(c)(iii) is applicable, the failure to elect
Executive to, or his removal without Cause from, the position of sole
chief executive officer of the Parent Corporation (or if there is no
Parent Corporation, the Surviving Corporation).
(ii) (A) a reduction by the Company in Executive's rate of annual
base salary as in effect immediately prior to such Change in Control,
or as the same may be increased from time to time thereafter, or (B)
the failure by the Company to pay Executive an annual bonus in respect
of the year in which such Change in Control occurs or any subsequent
year in an amount greater than or equal to the annual bonus earned for
the year prior to the year in which such Change in Control occurs,
provided that Executive has met any requisite performance criteria
threshold necessary to the payment of such annual bonus in respect of
the year in which such Change in Control occurs or such subsequent
year.
(iii) any requirement of the Company that Executive (A) be based
anywhere more than thirty (30) miles from the office where Executive
is located at the time of the Change in Control or (B)endure overnight
travel on Company business to an extent substantially greater than the
travel obligations of Executive immediately prior to such Change in
Control;
(iv) the failure of the Company to (A) continue in effect any
employee benefit plan, compensation plan, welfare benefit plan or
material fringe benefit plan in which Executive is participating
immediately prior to such Change in Control or the taking of any
action by the Company that would adversely affect Executive's
participation in or reduce Executive's benefits under any such plan,
unless Executive is permitted to participate in other plans providing
Executive with the same benefits that the party effecting the Change
in Control (or, if applicable, its Parent Corporation) provides to its
most senior executive officers (or, in the case of a Parent
Corporation, the most senior executive officers of its principal
banking or financial services
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subsidiary) or (B) provide Executive with paid time-off in accordance
with the most favorable time-off policies of the Company and its
affiliated companies as in effect for Executive immediately prior to
such Change in Control, including the crediting of all service for
which Executive had been credited under such vacation policies prior
to the Change in Control; or
(v) the failure of the Company to obtain the assumption (and, if
applicable, guarantee) agreement from any successor (and Parent
Corporation) as contemplated in Section 9(b).
Notwithstanding anything herein to the contrary, termination of employment
by Executive for any reason during the 30-day period commencing six (6)
months after the date of a Change in Control (other than a "Majority
Retained Ownership Change in Control", as hereinafter defined) shall
constitute Good Reason. A "Majority Retained Ownership Change in Control"
means a Business Combination in which immediately following such Business
Combination a majority of the total voting power described in Section
1(c)(iii) is represented by Company Voting Securities (or, if applicable,
represented by shares into which such Company Voting Securities were
converted pursuant to such Business Combination), and such voting power
among the holders thereof is in substantially the same proportion as the
voting power among the holders thereof is in substantially the same
proportion as the voting power of such Company Voting Securities among the
holders thereof immediately prior to the Business Combination, and the
criteria specified in clauses (B) and (C) of Section 1(c)(iii) are met.
An isolated, insubstantial and inadvertent action taken in good faith
and which is remedied by the Company within ten (10) days after receipt of
notice thereof given by Executive shall not constitute Good Reason.
Executive's right to terminate employment for Good Reason shall not be
affected by Executive's incapacities due to mental or physical illness and
Executive's continued employment shall not constitute consent to, or a
waiver of rights with respect to, any event or condition constituting Good
Reason; provided, however, that Executive must provide notice of
termination of employment within one-hundred twenty (120) days following
Executive's knowledge of an event constituting Good Reason or such event
shall not constitute Good Reason under this Agreement.
(g) "Qualifying Termination" means a termination of Executive's
employment (i) by the Company other than for Cause or (ii) by Executive for
Good Reason. Termination of Executive's employment on account of death,
Disability or Retirement shall not be treated as a Qualifying Termination.
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(h) "Retirement" means the termination of Executive's employment on or
after the first of the month coincident with or following Executive's
attainment of age 65, or such later date as may be provided in a written
agreement between the Company and the Executive.
(i) "Subsidiary" means any corporation or other entity in which the
Company has a direct or indirect ownership interest of 50% or more of the
total combined voting power of the then outstanding securities or interests
of such corporation or other entity entitled to vote generally in the
election of directors or in which the Company has the right to receive 50%
or more of the distribution of profits or 50% of the assets upon
liquidation or dissolution.
(j) "Termination Period" means the period of time beginning with a
Change in Control and ending two(2) years following such Change in Control.
Notwithstanding anything in this Agreement to the contrary, if (i)
Executive's employment is terminated prior to a Change in Control for
reasons that would have constituted a Qualifying Termination if they had
occurred following a Change in Control; (ii) Executive reasonably
demonstrates that such termination (or Good Reason event) was at the
request of a third party who had indicated an intention or taken steps
reasonably calculated to effect a Change in Control; and (iii) a Change in
Control involving such third party (or a party competing with such third
party to effectuate a Change in Control) does occur, then for purposes of
this Agreement, the date immediately prior to the date of such termination
of employment or event constituting Good Reason shall be treated as a
Change in Control. For purposes of determining the timing of payments and
benefits to Executive under Section 4, the date of the actual Change in
Control shall be treated as Executive's Date of Termination under Section
l(d).
2. Obligation of Executive. In the event of a tender or exchange
offer, proxy contest, or the execution of any agreement that, if consummated,
would constitute a Change in Control, Executive agrees not to voluntarily leave
the employ of the Company that may employ Executive, other than as a result of
Disability, Retirement or an event that would constitute Good Reason if a Change
in Control had occurred, until the Change in Control occurs or, if earlier, such
tender or exchange offer, proxy contest, or agreement is terminated or
abandoned.
3. Term of Agreement. This Agreement shall be effective on the date
hereof and shall continue in effect until the Company shall have given two (2)
years' written notice of cancellation; provided, that, notwithstanding the
delivery of any such notice, this Agreement shall continue in effect
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for a period of two(2) years after a Change in Control, if such Change in
Control shall have occurred during the term of this Agreement. Notwithstanding
anything in this Section to the contrary, this Agreement shall terminate if
Executive or the Company terminates Executive's employment prior to a Change in
Control except as provided in Section 1(j).
4. Payments Upon Termination of Employment.
(a) Qualifying Termination -- Cash Payment. If during the
Termination Period the employment of Executive shall terminate
pursuant to a Qualifying Termination, then the Company shall provide
to Executive, subject to the provisions of Section 11 hereunder:
(i) within twenty (20) days following the Date of
Termination a lump-sum cash amount equal to the sum of (A)
Executive's base salary through the Date of Termination and any
bonus amounts that have become payable, to the extent not
theretofore paid or deferred, (B) a pro rata portion of
Executive's annual bonus for the fiscal year in which Executive's
Date of Termination occurs in an amount at least equal to (x)
Executive's Bonus Amount, multiplied by (y) a fraction, the
numerator of which is the number of days in the fiscal year in
which the Date of Termination occurs through the Date of
Termination and the denominator of which is three hundred
sixty-five (365), and reduced by (z) any amounts paid from the
Company's annual incentive plan for the fiscal year in which
Executive's Date of Termination occurs and (C) any accrued
vacation pay, to the extent not theretofore paid; plus
(ii) within twenty (20) days following the Date of
Termination, a lump-sum cash amount equal to the sum of (i) two
and ninety-nine one-hundredreths (2.99)times Executive's highest
annual rate of base salary during the 12-month period immediately
prior to Executive's Date of Termination, plus (ii) two and
ninety-nine one-hundredreths (2.99) times Executive's Bonus
Amount; provided, however, that if Executive's Date of
Termination is within two(2) years of the earliest date on which
termination by the Executive could otherwise be considered a
Retirement ("Retirement Date"), such sum shall be multiplied by a
fraction ("Adjustment Fraction"), the numerator of which is equal
to the number of full months from the Date of Termination to the
Retirement Date, and the denominator of which is equal to 24.
(b) Qualifying Termination -- Continued Coverage. If during the
Termination Period the employment of Executive shall terminate
pursuant to a Qualifying Termination, the Company shall continue to
provide, for a period of two (2) years following Executive's Date of
Termination, Executive (and Executive's dependents, if applicable)
with the same level of medical, dental, accident, disability and life
insurance benefits upon substantially the same terms and conditions
(including contributions required by Executive for such benefits) as
existed immediately prior to Executive's Date of Termination (or, if
more favorable to Executive, as such benefits and terms and conditions
existed immediately prior to the Change in Control); provided,
however, that if Executive's Date of Termination is within two (2)
years of Executive's Retirement Date, the number of years of continued
benefits coverage (as described in this Section 4(b)) shall be equal
to the product of (x) two, and (y) the Adjustment Fraction; provided,
further, if Executive cannot continue to participate in the Company
plans providing such benefits, the Company shall otherwise provide
such benefits on the same after-tax basis as if
8
continued participation had been permitted. Notwithstanding the
foregoing, in the event Executive becomes reemployed with another
employer and becomes eligible to receive welfare benefits from such
employer, the welfare benefits described herein shall be secondary to
such benefits during the period of Executive's eligibility, but only
to the extent that the Company reimburses Executive for any increased
cost and provides any additional benefits necessary to give Executive
the benefits provided hereunder. The Executive's accrued benefits as
of the Date of Termination under the Company's employee benefit plans
shall be paid to Executive in accordance with the terms of such plans.
(c) Qualifying Termination -- SERP Accrual. If during the
Termination Period the employment of Executive shall terminate
pursuant to a Qualifying Termination, the Company shall provide
Executive with two (2) additional years of service credit under all
non-qualified retirement plans and excess benefit plans in which the
Executive participated as of his Date of Termination; provided,
however, that if Executive's Date of Termination is within two (2)
years of Executive's Retirement Date, the number of years of
additional service credit (as described in this Section 4(c)) shall be
equal to the product of (x) two, and (y) the Adjustment Fraction.
(d) Qualifying Termination -- Voluntary Reduction of Payments. If
during the Termination Period the employment of Executive shall
terminate pursuant to a Qualifying Termination, Executive shall have
the right to direct that the Company reduce the amounts which it is
otherwise required to pay to Executive under Section 4 of this
Agreement to the Safe Harbor Cap (as defined in Section 5(a) of this
Agreement).
(e) Other than Qualifying Termination. If during the Termination
Period the employment of Executive shall terminate other than by
reason of a Qualifying Termination, then the Company shall pay to
Executive within thirty (30) days following the Date of Termination, a
lump-sum cash amount equal to the sum of (1) Executive's base salary
through the Date of Termination and any bonus amounts that have become
payable, to the extent not theretofore paid or deferred, and (2) any
accrued vacation pay, to the extent not theretofore paid. The Company
may make such additional payments, and provide such additional
benefits, to Executive as the Company and Executive may agree in
writing. The Executive's accrued benefits as of the Date of
Termination under the Company's employee benefit plans shall be paid
to Executive in accordance with the terms of such plans.
5. Certain Additional Payments by the Company. (a) Anything in this
Agreement to the contrary notwithstanding, in the event it shall be
9
determined that any payment, award, benefit or distribution (or any acceleration
of any payment, award, benefit or distribution) by the Company (or any
affiliated entity) or any entity that effectuates a Change in Control (or any of
its affiliated entities) to or for the benefit of Executive (whether pursuant to
the terms of this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 5) (the "Payments") would be
subject to the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended (the "Code"), or any interest or penalties are incurred by
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Company shall pay to Executive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by Executive of all
taxes (including any Excise Tax) imposed upon the Gross-Up Payment, Executive
retains an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax
imposed upon the Payments and (y) the product of any deductions disallowed
because of the inclusion of the Gross-up Payment in Executive's adjusted gross
income and the highest applicable marginal rate of federal income taxation for
the calendar year in which the Gross-up Payment is to be made. For purposes of
determining the amount of the Gross-up Payment, the Executive shall be deemed to
(i) pay federal income taxes at the highest marginal rates of federal income
taxation for the calendar year in which the Gross-up Payment is to be made, (ii)
pay applicable state and local income taxes at the highest marginal rate of
taxation for the calendar year in which the Gross-up Payment is to be made, net
of the maximum reduction in federal income taxes which could be obtained from
deduction of such state and local taxes and (iii) have otherwise allowable
deductions for federal income tax purposes at least equal to the Gross-up
Payment.
Notwithstanding the foregoing provisions of this Section 5(a), if it shall be
determined that Executive is entitled to a Gross-Up Payment, but that the
Payments would not be subject to the Excise Tax if the Payments were reduced by
an amount that is less than 5% of the portion of the Payments that would be
treated as "parachute payments" under Section 28OG of the Code, then the amounts
payable to Executive under this Agreement shall be reduced (but not below zero)
to the maximum amount that could be paid to Executive without giving rise to the
Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to
Executive. The reduction of the amounts payable hereunder, if applicable, shall
be made by reducing first the payments under Section 4(a)(ii), unless an
alternative method of reduction is elected by Executive. For purposes of
reducing the Payments to the Safe Harbor Cap, only amounts payable under this
Agreement (and no other Payments) shall be reduced. If the reduction of the
amounts payable
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hereunder would not result in a reduction of the Payments to the Safe Harbor
Cap, no amounts payable under this Agreement shall be reduced pursuant to this
provision.
(b) Subject to the provisions of Section 5(a), all determinations
required to be made under this Section 5, including whether and when a
Gross-Up Payment is required, the amount of such Gross-Up Payment, the
reduction of the Payments to the Safe Harbor Cap and the assumptions
to be utilized in arriving at such determinations, shall be made by
the public accounting firm that is retained by the Company as of the
date immediately prior to the Change in Control (the "Accounting
Firm"), which shall provide detailed supporting calculations both to
the Company and Executive within fifteen (15) business days of the
receipt of notice from the Company or the Executive that there has
been a Payment, or such earlier time as is requested by the Company
(collectively, the "Determination"). In the event that the Accounting
Firm is serving as accountant or auditor for the individual, entity or
group effecting the Change in Control, Executive may appoint another
regionally or nationally recognized public accounting firm to make the
determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and expenses
of the Accounting Firm shall be borne solely by the Company and the
Company shall enter into any agreement requested by the Accounting
Firm in connection with the performance of the services hereunder. The
Gross-up Payment under this Section 5 with respect to any Payments
shall be made no later than thirty (30) days following such Payment.
If the Accounting Firm determines that no Excise Tax is payable by
Executive, it shall furnish Executive with a written opinion to such
effect, and to the effect that failure to report the Excise Tax, if
any, on Executive's applicable federal income tax return will not
result in the imposition of a negligence or similar penalty. In the
event the Accounting Firm determines that the Payments shall be
reduced to the Safe Harbor Cap, it shall furnish Executive with a
written opinion to such effect. The Determination by the Accounting
Firm shall be binding upon the Company and Executive. As a result of
the uncertainty in the application of Section 4999 of the Code at the
time of the Determination, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made
("Underpayment") or Gross-up Payments are made by the Company which
should not have been made ("Overpayment"), consistent with the
calculations required to be made hereunder. In the event that the
Executive thereafter is required to make payment of any Excise Tax or
additional Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such Underpayment
(together with interest at the rate provided in Section 1274(b)(2)(B)
of the Code) shall be promptly paid by the Company to or for the
benefit of
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Executive. In the event the amount of the Gross-up Payment exceeds the
amount necessary to reimburse the Executive for his Excise Tax, the
Accounting Firm shall determine the amount of the Overpayment that has
been made and any such Overpayment (together with interest at the rate
provided in Section 1274(b)(2) of the Code) shall be promptly paid by
Executive (to the extent he has received a refund if the applicable
Excise Tax has been paid to the Internal Revenue Service) to or for
the benefit of the Company. Executive shall cooperate, to the extent
his expenses are reimbursed by the Company, with any reasonable
requests by the Company in connection with any contests or disputes
with the Internal Revenue Service in connection with the Excise Tax.
6. Withholding Taxes. The Company may withhold from all payments due
to Executive (or his beneficiary or estate) hereunder all taxes that, by
applicable federal, state, local or other law, the Company is required to
withhold therefrom.
7. Reimbursement of Expenses. If any contest or dispute shall arise
under this Agreement involving termination of Executive's employment with the
Company or involving the failure or refusal of the Company to perform fully in
accordance with the terms hereof, the Company shall reimburse Executive, on a
current basis, for all reasonable legal fees and expenses, if any, incurred by
Executive in connection with such contest or dispute (regardless of the result
thereof), together with interest in an amount equal to the prime rate as
published in the The Wall Street Journal from time to time in effect, but in no
event higher than the maximum legal rate permissible under applicable law, such
interest to accrue from the date the Company receives Executive's statement for
such fees and expenses through the date of payment thereof, regardless of
whether or not Executive's claim is upheld by an arbitration panel.
8. Scope of Agreement. Nothing in this Agreement shall be deemed to
entitle Executive to continued employment with the Company or its Subsidiaries,
and if Executive's employment with the Company shall terminate prior to a Change
in Control, Executive shall have no further rights under this Agreement (except
as otherwise provided hereunder); provided, however, that any termination of
Executive's employment during the Termination Period shall be subject to all of
the provisions of this Agreement.
9. Successors; Binding Agreement.
(a) This Agreement shall not be terminated by any Business
Combination. In the event of any Business Combination, the provisions
of
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this Agreement shall be binding upon the Surviving Corporation, and
such Surviving Corporation shall be treated as the Company hereunder.
(b) The Company agrees that in connection with any Business
Combination, it will cause any successor entity to the Company
unconditionally to assume (and for any Parent Corporation in such
Business Combination to guarantee), by written instrument delivered to
Executive (or his beneficiary or estate), all of the obligations of
the Company hereunder. Failure of the Company to obtain such
assumption and guarantee prior to the effectiveness of any such
Business Combination that constitutes a Change in Control shall be a
breach of this Agreement and shall constitute Good Reason hereunder
and shall entitle Executive to compensation and other benefits from
the Company in the same amount and on the same terms as Executive
would be entitled hereunder if Executive's employment were terminated
following a Change in Control by reason of a Qualifying Termination.
For purposes of implementing the foregoing, the date on which any such
Business Combination becomes effective shall be deemed the date Good
Reason occurs, and shall be the Date of Termination if requested by
Executive.
(c) This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees
and legatees. If Executive shall die while any amounts would be
payable to Executive hereunder had Executive continued to live, all
such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to such person or persons
appointed in writing by Executive to receive such amounts or, if no
person is so appointed, to Executive's estate.
10. Notice.
(a) For purposes of this Agreement, all notices and other
communications required or permitted hereunder shall be in writing and
shall be deemed to have been dully given when delivered or five (5)
days after deposit in the United States mail, certified and return
receipt requested, postage prepaid, addressed as follows:
If to Executive: At the address set forth below
the signatory
If to the Company: Indiana United Bancorp
000 Xxxxx Xxxxxxxx
00
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Chairman of the Board
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of change
of address shall be effective only upon receipt.
(b) A written notice of Executive's date of termination by the
Company or Executive, as the case may be, to the other, shall (i)
indicate the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination
of Executive's employment under the provision so indicated and (iii)
specify the Date of Termination (which date shall not be less than
fifteen (15) (thirty (30), if termination is by the Company for
Disability) nor more than sixty (60) days after the giving of such
notice). The failure by Executive or the Company to set forth in such
notice any fact or circumstance that contributes to a showing of Good
Reason or Cause shall not waive any right of Executive or the Company
hereunder or preclude Executive or the Company from asserting such
fact or circumstance in enforcing Executive's or the Company's rights
hereunder.
11. Full Settlement; Resolution of Disputes. The Company's
obligation to make any payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall be in lieu of and in full settlement of
all other severance payments to Executive under any other severance or
employment agreement between Executive and the Company, and any severance plan
of the Company. The Company's obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right or action that
the Company may have against Executive or others. In no event shall Executive be
obligated to seek other employment or take other action by way of mitigation of
the amounts payable to Executive under any of the provisions of this Agreement
and, except as provided in Section 4(b), such amounts shall not be reduced
whether or not Executive obtains other employment. Any dispute or controversy
arising under or in connection with this Agreement shall be settled exclusively
by arbitration in Indianapolis, Indiana by three arbitrators in accordance with
the rules of the American Arbitration Association then in effect. Judgment may
be entered on the arbitrators' award in any court having jurisdiction. The
Company shall bear all costs and expenses arising in connection with any
arbitration proceeding pursuant to this Section.
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12. Employment with Subsidiaries. Employment with the Company for
purposes of this Agreement shall include employment with any Subsidiary.
13. Survival. The respective obligations and benefits afforded to
the Company and Executive as provided in Sections 4 (to the extent that payments
or benefits are owed as a result of a termination of employment that occurs
during the term of this Agreement), 5 (to the extent that Payments are made to
Executive as a result of a Change in Control that occurs during the term of this
Agreement), 6, 7, 9(c) and 11 shall survive the termination of this Agreement.
14. Governing Law; Validity. The interpretation, construction and
performance of this Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Indiana without regard to the
principle of conflicts of laws. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which other provisions shall remain in
full force and effect.
15. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
16. Miscellaneous. No provision of this Agreement may be modified or
waived unless such modification or waiver is agreed to in writing and signed by
Executive and by a duly authorized officer of the Company. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. Except as set forth
in Sections l(b) and l(f), the failure by Executive or the Company to insist
upon strict compliance with any provision of this Agreement or to assert any
right Executive or the Company may have hereunder shall not be deemed to be a
waiver of such provision or right or any other provision or right of this
Agreement. Except as otherwise specifically provided herein, the rights of, and
benefits payable to, Executive, his estate or his beneficiaries pursuant to this
Agreement are in addition to any rights of, or benefits payable to, Executive,
his estate or his beneficiaries under any other employee benefit plan or
compensation program of the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a
duly authorized officer of the Company and Executive has
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executed this Agreement, in each case as of the day and year first set
forth above.
INDIANA UNITED BANCORP
By:
--------------------------------
Xxxxxx X. Xxxxxx, Chairman
(the "Company")
--------------------------------
[Name of Executive]
[Resident Address]
--------------------------------
("Executive")
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