EMPLOYMENT AGREEMENT
Exhibit
99.3
This
EMPLOYMENT AGREEMENT (this “Agreement”), dated as of June 27, 2008, is by and
among Coastal Credit, L.L.C. a Virginia limited liability company (the
“Company”), First Chicago Bancorp, a Delaware corporation (“FCB”), White River
Capital, Inc., an Indiana corporation (“WRC”), and Xxxxxxx X. XxXxxxxx, an
individual residing in Florida (“Executive”).
WHEREAS,
Executive has served as the President and Chief Executive Officer of the
Company, which is a wholly owned subsidiary of WRC, pursuant to an Employment
Agreement dated as of September 1, 2005 (such agreement restated and superseded
a prior Employment Agreement between the same parties dated as of April 11,
1998) (together, and including Exhibit A to the September 1, 2005 Employment
Agreement, dated December 28, 2005, the “Prior Agreements”); and
WHEREAS,
WRC has entered into an Agreement and Plan of Merger with FCB, dated as of the
date of this Agreement (the “Merger Agreement”), whereby, at the Effective Time
(as defined in the Merger Agreement) (i) FCB will be merged with and into WRC
(the “Merger”), (ii) the separate corporate existence of FCB will thereupon
cease and WRC will be the surviving corporation in the Merger, and (iii) the
Company will become an indirect wholly owned subsidiary of WRC; and
WHEREAS,
Executive is an integral part of the management of the Company, and the parties
hereto believe that it is critical to the continued success of the Company, and
to the ultimate success of the Merger that Executive continue to be employed
with the Company after the Merger as its President and Chief Executive Officer
for a one year period, and thereafter to be a consultant to WRC, and Executive
wishes to accept such employment and consultancy, on the terms set forth below,
effective from and after the consummation of the Merger (the “Effective
Date”).
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein and for
other good and valuable consideration, the parties hereby agree as
follows:
1. Effectiveness. This
Agreement shall be effective as of the Effective Date (other than with respect
to the covenants set forth in the immediately following sentence, which shall be
effective immediately) and conditioned upon the consummation of the Merger; in
the event the Merger does not occur for any reason before December 31, 2008,
this Agreement shall terminate, and shall be of no further force or
effect. From and after the date of this Agreement and continuing
until the Effective Date, the parties hereto acknowledge and agree that (i)
Executive’s employment shall continue to be subject to the terms and conditions
of the Prior Agreements as in effect on the date of this Agreement, (ii)
Executive agrees not to terminate his employment with the Company for any reason
(including without limitation for “Good Reason” or otherwise due to the
occurrence of a “Change of Control,” or a potential change in control, of the
Company (as such terms are defined in the Prior Agreements)) on or prior to the
Effective Date, and (iii) WRC and the Company agree not to take any actions that
would constitute “Good Reason” (as defined in the Prior Agreements) for
Executive to terminate his employment, and
not to
otherwise terminate the employment of Executive for any reason (other than for
“Cause as defined in the Prior Agreements after notice to FCB and a
reasonable opportunity for FCB to make inquiry into the matter and respond) on
or prior to the Effective Date. As of the Effective Date, the Prior
Agreements shall immediately terminate without payment to Executive thereunder
or therefore (for purposes of clarity, such that Executive may not at any time
thereafter terminate his employment pursuant to the Prior Agreements for any
reason, including for “Good Reason” or otherwise due to the occurrence of a
“Change of Control” of the Company, or receive any amounts thereunder), this
Agreement shall supersede the Prior Agreements, and the terms and conditions of
Executive’s employment with the Company and subsequent consultancy
with WRC shall be governed only by this
Agreement. Executive hereby agrees that he shall not be paid any
amounts, nor shall Executive be provided with any benefits or other compensation
of any kind (including any acceleration of compensation or benefits) pursuant to
the Prior Agreements in connection with, or from and after, the Merger
(including in connection with any subsequent termination of employment or
vesting date that occurs from and after the Merger). The parties
hereto represent, acknowledge and agree that the payments to be provided to
Executive from and after the Effective Date under the terms and conditions of
this Agreement represent reasonable compensation to Executive in exchange for
the personal services to be rendered by Executive for periods from and after the
Merger.
2. Definitions. The
terms defined in this Section 1 shall have the respective meanings indicated
below for all purposes of this Agreement.
(a) Affiliate. “Affiliate”
of a Person means a Person that directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with, the
first Person. “Control” means the possession, directly or indirectly, of the
power to direct or cause the direction of the management policies of a Person,
whether through the ownership of voting securities, by contract, as trustee or
executor, or otherwise.
(b) Cause. “Cause”
shall mean any one or more of the following:
i. engaging
in a material dishonest act, including without limitation any material
misrepresentation or intentional omission to state a material fact to the
Company, WRC or the WRC Board, willful breach of fiduciary duty,
misappropriation or fraud against WRC, the Company or any of their Affiliates
(the “Group”);
ii. any
indictment or similar charge against Executive by a governmental authority
alleging the commission of a felony, or a guilty plea or no-contest plea by
Executive to a felony;
iii. material
failure by Executive to follow the Company or WRC’s general policies, reasonable
directives or orders from the WRC Board applicable to officers of the Company
after failing to cure prior similar failures within thirty (30) days of
receiving written notice thereof from the WRC Board;
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iv. intentional
destruction or theft of any member of the Group’s property or falsification of
documents of any member of the Group;
v. a
breach by Executive of the provisions of Section 14 or 15; or
vi. a
material breach by Executive of any other provision of this Agreement and the
failure by Executive to cure such breach within thirty (30) days of the date on
which the Company gives Executive notice thereof.
(c) Computation
Period. “Computation Period” shall mean each calendar year
that ends after January 1, 2008 and before the Date of Termination and, if the
Date of Termination is any day other than December 31, the period beginning
January 1 of the calendar year in which the Date of Termination arises and
ending on the Date of Termination.
(d) Date of
Termination. “Date of Termination” shall mean in the case of
Executive’s death, the date of death, in the case of Disability, thirty (30)
days after Notice of Termination is given (provided Executive shall not have
returned to the full-time performance of his duties during such thirty (30) day
period), and in all other cases, the date specified in the Notice of
Termination, which shall be at least thirty (30) days after the date of the
Notice of Termination, unless the termination is by the Company for Cause or by
Executive for Good Reason.
(e) Disability. “Disability”
shall occur if as a result of Executive’s incapacity due to physical or mental
illness, Executive shall have been absent from the full-time performance of his
duties with the Company for three (3) consecutive months.
(f) Good
Reason. “Good Reason” shall mean any one or more of the
following bases for termination of Executive’s employment by Executive during
the Term:
i. the
removal of Executive as Chief Executive Officer of Company without
Cause;
ii. the
assignment to Executive of any duties inconsistent in any material respect with
Executive’s position, authority, duties or responsibilities as contemplated by
Section 6(a) of this Agreement, excluding for this purpose an isolated,
insubstantial or inadvertent action not taken in bad faith and which is remedied
by the Company promptly after receipt of notice thereof given by
Executive;
iii. a
change of more than 50 miles in the geographical location at which Executive
must perform his duties;
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iv. any
action by the Company to reduce Executive’s base compensation below the amount
established in Section 7; or any failure by the Company that would constitute a
material breach of this Agreement if the Company has failed to cure such breach
within thirty (30) days of the date on which Executive gives written notice
thereof to the WRC Board.
(g) Net Pre-Tax
Income. “Net Pre-Tax Income” shall mean net income of the
Company before provision for federal or state taxes and after expenses paid by
related parties that are appropriately and equitably allocated to the Company,
all as determined in accordance with generally accepted accounting principles
consistently applied.
(h) Notice of
Termination. Any termination of Executive’s employment or
consultancy by either the Company or Executive, as the case may be, except for a
termination based on Executive’s death, shall be communicated by a written
Notice of Termination.
(i) WRC
Board. “WRC Board” shall mean the Board of Directors of WRC or
a duly authorized committee of such Board.
(j) Person. “Person”
shall mean any natural person, corporation, partnership, association, limited
liability company, trust, governmental authority, or other entity.
(k) Retirement. “Retirement”
shall mean termination of Executive’s employment after Executive has attained
age 65.
3. Employment. The
Company hereby employs Executive and Executive hereby accepts employment with
the Company for the Term set forth in Section 4 below, in the position and with
the duties and responsibilities set forth in Sections 5 and 6 below, and upon
the other terms and conditions hereinafter stated.
4. Term. Executive’s
employment as the President and Chief Executive Officer of the Company under
this Agreement shall be for the period commencing on the Effective Date and
terminating one year after the Effective Date (the “Term”) unless Executive dies
or becomes disabled or either party terminates Executive’s employment pursuant
to this Agreement. The period of Executive’s consultancy with the
Company after the expiration of the Term is described in Section 13 of this
Agreement.
5. Position. Executive
shall serve as President and Chief Executive Officer of the Company and will
report directly to the WRC Board.
6. Duties and
Responsibilities.
(a) The
Company hereby engages Executive as a full-time executive employee and Executive
accepts such employment, on the terms and subject to the conditions set forth in
this Agreement. During the Term, Executive shall devote all of his business time
and best efforts to, and shall perform faithfully,
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loyally
and efficiently, his duties as President and Chief Executive Officer of the
Company and shall exercise such powers and fulfill such responsibilities as may
be duly assigned to or vested in him by the WRC Board, consistent with the
responsibilities of the President and Chief Executive Officer of the
Company.
(b) During
the Term, Executive will not engage in other employment or consulting work or
any trade or business for his own account or on behalf of any other
Person. Notwithstanding the foregoing, Executive may (i) serve on
such corporate, civic, industry or charitable boards or committees as are
approved by the WRC Board, and (ii) manage his own and his immediate family’s
personal investments, provided that the activities permitted by clauses (i) and
(ii) above shall not, individually or in the aggregate, interfere in any
material respect with the performance of Executive’s responsibilities
hereunder.
7. Salary/Bonus.
(a) For
all services rendered by Executive under this Agreement, the Company shall pay
to Executive an aggregate annual base salary at the rate of $300,000, payable,
in equal installments, in accordance with the Company’s regular payroll
procedures.
(b) Executive
will be paid, within 30 days of the end of each Computation Period, an annual
performance bonus equal to the greater of 3% of the annual consolidated Net
Pre-Tax Income of the Company for each such Computation Period or
$250,000.
(c) On
the Effective Date, Executive will receive:
i. a
cash payment from the Company in the amount of $300,000; and
ii. a
cash payment from the Company equal to the value of 33,333.33 shares of WRC
common stock, the value of which shall be determined based on the mean of the
Fair Market Value (as defined in the WRC Incentive Stock Plan as existing on the
date of this Agreement) of a share of WRC common stock for the 20 trading days
immediately preceding the Effective Date.
8. Employee
Benefits. During the Term, the Company shall provide or cause
to be provided to Executive and to Executive’s dependents, at the Company’s
expense, substantially similar disability, medical and dental benefits provided
to Executive by his employer immediately prior to the Merger. During
any waiting period for insurance eligibility, any COBRA costs incurred by or
with respect to Executive and Executive’s dependents will be paid by the
Company. In addition, the Company shall pay Executive $800 per month
during the Term as an automobile allowance to cover the cost of Executive’s use
of an automobile for Company purposes. During the Term, Executive
shall maintain insurance in connection with the automobile as required by state
law and such other insurance as is reasonably satisfactory to the
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Company. If
the terms of such insurance policy allow it, the Company shall be named as an
additional insured on all such coverage.
9. Vacation. Executive
shall be entitled to four (4) weeks vacation during the Term. In the event that
the full vacation is not taken by Executive during the Term, no vacation time
shall accrue for use in future periods, except as approved by the WRC
Board.
10. Business
Expenses. Executive will be reimbursed for all reasonable,
ordinary and necessary business expenses incurred by Executive in connection
with Executive’s employment (to be supported by receipts and other documentation
as required by the Internal Revenue Code of 1986, as amended (the “Code”)), and
in conformance with the Company’s normal procedures). Except as otherwise
expressly provided herein, to the extent any expense reimbursement under this
Section 10 is determined to be subject to Section 409A of the Code (“Section
409A”), the amount of any such expenses eligible for reimbursement in one
calendar year shall not affect the expenses eligible for reimbursement in any
other taxable year, in no event shall any expenses be reimbursed after the last
day of the calendar year following the calendar year in which Executive incurred
such expenses, and in no event shall any right to reimbursement be subject to
liquidation or exchange for another benefit.
11. Termination. Either
the Company or Executive may terminate the employment of Executive at any time
prior to or upon the expiration of the Term, with or without Cause or Good
Reason.
12. Payments During Disability,
Upon Termination, or Upon Expiration. Executive or his estate
shall be entitled to the following during a period of Disability, upon
Executive’s death, upon termination of Executive’s employment by Executive or
the Company, or upon expiration of the Term as the case may be.
(a) During
any period that Executive fails to perform his full-time duties with the Company
as a result of incapacity due to physical or mental illness, until such time as
Executive returns to the full-time performance of his duties or the Date of
Termination if Executive’s employment is terminated for Disability, Executive
shall continue to receive his base salary at the rate in effect at the
commencement of any such period minus any disability benefits received by him
under any insurance or disability plan of the Company. If terminated for
Disability or in the event of his death, Executive or his estate, as the case
may be, shall additionally be entitled to receive the severance compensation
provided for in subsection 12(c)(i) (reduced by any disability benefits received
by him under any insurance or disability plan of the Company), and subsection
12(c)(ii).
(b) If
(1) Executive’s employment is terminated by Executive without Good Reason and
other than upon Retirement, or (2) Executive’s employment is terminated by the
Company for Cause, then Company shall pay Executive his full base salary through
the Date of Termination at the rate in effect at the time Notice of Termination
is given, plus all other amounts or benefits to which Executive is entitled
through such date under any plan, arrangement or practice in effect at the time
of such termination, minus any amounts owed by Executive to the
Company.
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Executive
shall not be entitled to receive any bonus applicable to the period in which
termination occurs, and the Company shall have no further obligations to
Executive under this Agreement (other than under COBRA and for vested and
accrued benefits and accrued and unpaid vacation).
(c) If
(1) Executive’s employment is terminated by reason of Executive’s death; (2)
Executive’s employment is terminated by the Company other than for Cause; (3)
Executive’s employment is terminated by Executive for Good Reason; or (4) the
Term expires whereupon the Consulting Period commences, then Executive shall be
entitled to the following:
i. Within
30 days of the Date of Termination of employment (or expiration of the Term),
the Company shall pay to Executive a lump sum payment in cash equal to: (A) any
unpaid base salary through the Date of Termination, (B) the bonus due to
Executive under Section 7(b) for the period ending on the Date of Termination,
plus (C) a termination payment equal to the greater of 3% of the annual
consolidated Net Pre-Tax Income of the Company for the 12 full calendar months
ending on the Date of Termination or $250,000; and
ii. Executive
shall be entitled to any other compensation and benefits granted under this
Agreement or their cash equivalent (other than base salary and performance bonus
which are addressed in subparagraph (i)), for the one-year period following the
Date of Termination of employment. Such benefits shall be determined in
accordance with the Company’s employee benefit plans and other applicable
programs, policies and practices then in effect as though Executive was still
then in the employ of the Company. If the terms of those plans,
programs, policies, and practices preclude Executive’s direct participation as a
former employee, then the Company will pay to provide comparable benefits to
Executive under comparable terms and conditions as provided to him during the
Term. The provisions of this Agreement, and any payment provided for
hereunder, shall not reduce any amounts otherwise payable, or in any way
diminish Executive’s existing rights, or rights which accrue solely as a result
of the passage of time under any benefit plan, employment agreement or other
contract, plan or arrangement.
(d) If
Executive’s employment is terminated by Executive by reason of Executive’s
Retirement, then Executive shall be entitled to receive the compensation
provided for in subsections 12(c)(i)(A) and (B) hereof.
(e) In
the event that compensation paid pursuant to Paragraph 12(c) (“Severance Pay”)
is subject to an excise tax pursuant to Section 4999 of the Code (“Excise Tax”),
as amended, then Executive shall be entitled to receive an additional Gross-Up
Payment in an amount such that, after payment by Executive of all taxes (and any
interest or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties
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imposed
with respect thereto) and Excise Tax imposed upon the Excise Tax imposed upon
the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Severance Pay. The accounting firm
employed by the Company shall make all determinations required herein, including
whether and when a Gross-Up Payment is required, the amount of any such Gross-Up
Payment and the assumptions to be utilized in arriving at such determination
(except that Executive’s federal and state income taxes shall be assumed to be
at the maximum rates). In the event that the accounting firm is
serving as accountant or auditor to the individual, entity or group effecting
the change of control, unless otherwise in writing by Executive, the Company
shall appoint another independent accounting firm reasonably acceptable to
Executive 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
Company. The Gross-Up Payment shall be paid to Executive as soon
thereafter as practicable (but in any event no later than by the end of
Executive’s taxable year next following the taxable year in which the Excise Tax
is remitted) after the payment of the Severance Pay, unless Company at the same
time as the payment of the Severance Pay provides Executive with the accounting
firm’s opinion that Executive will not incur any Excise Tax on any part or all
of the Severance Pay. Any such opinion shall be based upon the
regulations under Section 280G and 4999 of the Code and shall qualify as a
covered, limited scope opinion under Circular 230. If any such
opinion applies only to part of the Severance Pay, Company shall pay Executive
the Gross-Up Payment with respect to that part of the Severance Pay not covered
by the opinion. Executive agrees (unless requested otherwise by
Company) to use reasonable efforts to contest in good faith any subsequent
determination by the Internal Revenue Service that Executive owes an amount of
Excise Tax greater than the amount determined above; provided, that Executive
shall be entitled to reimbursement by Company of all fees and expenses
reasonable incurred by Executive in contesting such determination. In
the event the Internal Revenue Service or any court of competent jurisdiction
determines that Executive owes an amount of Excise Tax that is either greater or
less than the amount previously taken into account in the Gross-Up Payment
herein, Company shall promptly pay to Executive, or Executive shall promptly
repay to Company, as the case may be, the amount of resulting excess or shortage
in the Gross-Up Payment, in each case no later than by the end of Executive’s
taxable year next following the taxable year in which the Excise Tax is
remitted. Any payment Company is required to make to Executive pursuant to the
preceding sentence shall include an additional amount such that after payment by
Executive of all of Executive’s applicable federal, state and local taxes on
such additional amount, Executive shall retain an amount equal to the total of
Executive’s applicable federal, state and local taxes arising due to the later
payment. If Executive collects any part or all of the Severance Pay
provided herein, including the Gross-Up Payment, through a lawyer, Company shall
pay all costs of any such collection or enforcement, including reasonable legal
fees and other out of pocket expenses incurred by Executive, up to that point
when company offered to settle the dispute for an
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amount
equal to the amount Executive is entitled to recover. The payment
described herein shall be due Executive regardless of any subsequent employment
obtained by Executive.
13. Consulting
Engagement.
(a) Term
of Consulting. Except as provided in Section 13(d)
below, WRC agrees to engage Executive, and Executive agrees to render
services, as a consultant, for the period commencing at the expiration of the
Term and ending on the second anniversary thereof (the “Consulting Period”) (for
clarity, the Consulting Period shall not commence if Executive’s employment
terminates for any reason other than the expiration of the Term).
(b) Scope of
Retention. During the Consulting Period, Executive shall be a
independent contractor and a consultant to WRC. Executive shall
perform such duties at the request of WRC for the Group during the Consulting
Period as may be reasonably requested from time to time by WRC. Executive shall
be reasonably available to perform duties during the Consulting Period for up to
100 days per year at a rate of $2,000 per day (the “Consulting Fee”), payable
monthly, in arrears; provided that Executive shall be paid a minimum of $100,000
for the first year of the Consulting Period, and a minimum of $50,000 per year
in the second year of the Consulting Period (collectively, the “Minimum
Consulting Fees”). Without limiting in any way Executive’s
obligations under this Xxxxxxx 00(x), XXX and Executive confirm that it is
currently anticipated that Executive’s duties during the Consulting Period would
decrease to a level not more than 20 percent of the average level of services
performed by Executive during his employment with the Company, such that it is
anticipated that Executive would incur a “separation from service” from the
Company within the meaning of Section 409A upon the expiration of the Term.
Executive agrees to use best efforts to perform his duties to the best of his
ability under this Section 13.
(c) Independent
Contractor. It is understood that, during the Consulting
Period, Executive shall be an independent contractor and not an employee of any
member of the Group. Executive shall be responsible for the payment
of applicable taxes levied or based upon the Consulting Fee and for all
non-reimbursable expenses attributable to the rendering of services pursuant to
this Section 13. Nothing in this Section 13 shall be deemed to
constitute a partnership or joint venture between Executive and any member of
the Group, nor shall anything in this Section 13 be deemed to constitute
Executive or any member of the Group as the agent of the other. WRC
and Executive acknowledge and agree that, as an independent contractor,
Executive will have no authority to bind, or act for or on behalf of, the Group
with respect to any matter whatsoever. During the Consulting Period,
neither any member of the Group nor Executive shall be or become liable to or
bound by any representation, act or omission whatsoever of the
other. For the avoidance of doubt, during the Consulting Period and
after termination of the Consulting Period for any reason,
Executive
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may be
engaged in employment for other persons and may render consulting services to
other persons, subject to the limitations of Section 14.
(d) Early Termination of
Consulting Period. The Company may terminate the Consulting
Period for Cause (as defined in Section 1(b) of this Agreement but with
references to Executive’s duties as a consultant substituted for references to
Executive’s duties as an employee) at any time. In addition, the
Consulting Period will terminate as a result of Executive’s death or Disability
(as defined in Section 1(d) of this Agreement). In the event of
termination pursuant to the preceding two sentences, the Company shall pay
Executive in a lump sum any accrued but unpaid Consulting Fee due to Executive
through the date of termination, within fifteen (15) business days of such date
of termination. The Company may also terminate the Consulting Period
without Cause upon providing 30 days’ prior written notice to
Executive. In the event of a termination of the Consulting Period by
the Company without Cause, the Company shall pay Executive in a lump sum any
accrued but unpaid Consulting Fee due to Executive through the date of
termination, plus any portion of the Minimum Consulting Fee not previously paid,
within fifteen (15) business days of such date of termination. In the
event of a termination of the Consulting Period by the Company, Executive’s
obligations under Sections 14(a) and 15 will end on the date of
termination.
14. Non-Compete;
Confidentiality.
(a) During
the Term, and for a period of two years after the Date of Termination of
employment or expiration of the Term (the “Restricted Period”), Executive shall
not either on his own account, as a partner, joint venturer, employee, agent,
salesman, officer, director or stockholder of a corporation (other than a
beneficial holder of not more than two percent (2%) of the outstanding voting
stock of a company having at least five hundred (500) holders of voting or
economic interests) or otherwise, directly or indirectly enter into or engage in
any business competitive with the business of any member of the Group as such
business exists on the date hereof (a “Competitive Business”) within any area
where such business has been conducted prior to the date of
termination.
(b) Except
as provided in the next two sentences, Executive covenants and agrees that all
information, knowledge or data of or pertaining to the Group, or pertaining to
any other Person with which they or any of them may do business during the Term
or the Consulting Period and which is not generally known in the relevant trade
or industry (and whether relating to methods, merchandising, processes,
techniques, discoveries, pricing, sales practices, marketing or any other
proprietary matters) (the “Company Information”) shall be kept secret and
confidential at all times during and after the termination or expiration of this
Agreement and shall not be used or divulged by him outside the scope of his
employment as contemplated by this Agreement, except as WRC may otherwise
expressly authorize. In the event that Executive is requested in a
judicial, administrative or governmental proceeding to disclose any of the
Company
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Information,
Executive will promptly so notify the Company so that the Company may seek a
protective order at the Company’s expense or other appropriate remedy and/or
waive compliance with this Agreement. If such protective order or other remedy
is not obtained or the Company waives compliance with this Agreement and
disclosure of any of the Company Information is required, Executive may furnish
the material so required to be furnished, but Executive will furnish only that
portion of the Company Information which is legally required and will exercise
his best efforts to obtain a protective order or other reliable assurance that
confidential treatment will be accorded the Company Information
furnished.
15. Non-Solicitation/No-Hire. Executive
agrees and acknowledges that the services of Executive pursuant to this
Agreement are unique and extraordinary, and that the Group will be dependent
upon Executive for the development and growth of their business and related
functions. Executive agrees, during the Restricted Period, not to conduct or
participate (directly or indirectly, including through one or more Affiliates)
in:
(a) Hiring,
attempting to hire or assisting any other Person in hiring or attempting to
hire, or inducing to leave the employ of any member of the Group, any employee
or officer of any member of the Group, or any person who was an employee or
officer of any member of the Group within the six-month period prior to the Date
of Termination or expiration of the Consulting Period, provided, however, that
Executive may immediately seek to hire Xxxx Xxxxx, without violating
this Agreement;
(b) Soliciting
the business on behalf of himself or any other person with respect to a
Competitive Business of either: (i) any vehicle dealers who were clients of the
Company or WRC during the 12-month period prior to the Date of Termination (a
“Specific Client”); or (ii) any Person whose business Executive (on behalf of
the Company or otherwise) solicited by multiple contacts during the six-month
period prior to the Date of Termination (a “Specific Contact”); or
(c) Any
activity for any Specific Client or Specific Contact which is the same as or
similar to those activities Executive performed for the Company during the
three-year period prior to the Date of Termination.
Executive
agrees that if Executive acts in violation of this Section, the number of days
Executive is in such violation will be added to any periods of limitation on
Executive’s activities specified herein. In addition, Executive agrees that
during the duration of this Agreement and during the period of limitation on
Executive’s activities specified in this Section, Executive shall promptly
deliver a true and correct copy of this Agreement to any prospective employer or
business partner of Executive.
16. Section
409A. If and to the extent that any payment or benefit is
determined by the Company to constitute “non-qualified deferred compensation”
subject to Section 409A and is payable hereunder to Executive by reason of his
termination of employment, then (a) such payment or benefit shall be made or
provided to Executive only upon a “separation from service”
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as
defined for purposes of Section 409A under applicable regulations and (b) if
Executive is a “specified employee” (within the meaning of Section 409A and as
determined by the Company), such payment or benefit shall not be made or
provided before the date that is six months after the date of Executive’s
separation from service. Any amount not paid in respect of the six month period
specified in the preceding sentence will be paid to Executive in a lump sum with
the first payment made after the end of such six month period (or if no other
payment is then due, then promptly after the expiration of such six month
period.)
17. Monies Owed to the
Company. Upon the termination of Executive’s employment with
the Company, Executive hereby authorizes the Company to deduct from Executive’s
final wages or other monies due to Executive (other than amounts that would
constitute “deferred compensation” pursuant to Section 409A) all debts or
financial obligations owed to the Company by Executive.
18. Remedies. Executive
understands and agrees that the Group will be irreparably damaged in the event
that Sections 14 or 15 of this Agreement are violated. Executive agrees that the
Company and WRC shall be entitled (in addition to any other remedy to which it
may be entitled, at law or in equity) to an injunction to redress breaches of
such Sections of this Agreement and to specifically enforce the terms and
provisions thereof.
19. Successors and
Assigns. This Agreement is a personal contract, and the rights
and interests of Executive hereunder and under the awards and plans referred to
herein may not be sold, transferred, assigned, pledged, encumbered, or
hypothecated by him, except as may be expressly permitted by the provisions of
such awards or plans and that payments due Executive hereunder shall be payable
to his heirs or fiduciaries upon his death. Except as may be expressly provided
otherwise herein, this Agreement shall be binding upon the Company and inure to
the benefit of the Company and its Affiliates, and its successors and assigns,
including (but not limited to) any corporation or other entity which may acquire
all or substantially all of the Company’s assets or business or into or with
which the Company or an Affiliate may be consolidated or merged.
20. Jurisdiction
and Governing Law. Any controversy or claim arising out of or
relating to this Agreement, or any breach thereof shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia, without
giving effect to principles of conflicts of laws thereof.
21. Entire
Agreement. This Agreement contains all the understandings
between the parties hereto pertaining to the matters referred to herein, and
supersedes all undertakings and agreements, whether oral or in writing,
previously entered into by them with respect thereto. Effective as of
the Effective Date, this Agreement supersedes and restates the Prior Agreements
in their entirety. No representations or warranties of any kind or
nature relating to any member of the Group or their respective businesses,
assets, liabilities, operations, future plans or prospects have been made by or
on behalf of the Group to Executive, nor have any representations or warranties
of any kind or nature been made by Executive to the Group.
22. Amendment or Modification,
Waiver. No provision of this Agreement may be amended or
waived unless such amendment or waiver is agreed to in writing, signed
by
12
Executive
and by a duly authorized officer of each of the parties to this Agreement. No
waiver by any party hereto of any breach by another party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar condition or provision at
the same time, any prior time or any subsequent time.
23. Notices. Any
notice to be given hereunder shall be in writing and delivered personally or by
overnight courier or sent by registered or certified mail, postage prepaid,
return receipt requested, addressed to each of the parties to this
Agreement:
To:
Xxxxxxx
X. XxXxxxxx
2399 Gulf
of Mexico Drive
Unit
3C1
Longboat
Xxx, Xxxxxxx 00000
With a
copy to:
Xxxxxxxx
Xxxxxx
000
Xxxxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx
X. Xxxxxx
Facsimile: (000)
000-0000
To:
Coastal
Credit, L.L.C.
0000
Xxxxxxxx Xxxxx Xxxx.
Xxxxxxxx
Xxxxx, XX 00000
Attention:
Xxxx Xxxxx
Facsimile:
(000) 000-0000
With a
copy to:
First
Chicago Bancorp
0000 X.
Xxxxxxxxx Xxxxxxx Xxxx
Xxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxx
Facsimile:
(000) 000-0000
With a
copy to:
White
River Capital, Inc.
0000 Xx
Xxxxx
X.X. Xxx
0000
Xxxxxx
Xxxxx Xx, XX 00000
Attention:
Xxxxxx X. Xxxxxxx
13
Facsimile:
(000) 000-0000
With a
copy to:
Xxxxxxxx
& Xxxxxxxx LLP
000 Xxxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Attention: Xxxx
X. X’Xxxxx
Facsimile:
(000) 000-0000
Any
notice delivered personally shall be deemed given on the date delivered, any
notice transmitted by fax machine shall be deemed delivered upon receipt of
confirmation of fax transmission, any notice delivered by overnight courier
shall be deemed given the day after deposit with a courier, and any notice sent
by registered or certified mail, postage prepaid, return receipt requested,
shall be deemed given three days after mailing.
24. Severability. If
any provision of this Agreement or the application of any such provision to any
party or circumstances shall be determined by any court of competent
jurisdiction to be invalid and unenforceable to any extent, the remainder of
this Agreement or the application of such provision to such person or
circumstances other than those to which it is so determined to be invalid and
unenforceable, shall not be affected thereby, and each provision hereof shall be
validated and shall be enforced to the fullest extent permitted by
law.
25. Survivorship. The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
26. Headings. All
descriptive headings of sections and paragraphs in this Agreement are intended
solely for convenience, and no provision of this Agreement is to be construed by
reference to the heading of any section or paragraph.
27. Withholding
Taxes. All payments to Executive under this Agreement shall be
reduced by any applicable federal, state or city withholding taxes, other than
in connection with Executive’s performance of services during the Consulting
Period as an independent contractor as described in Section 13.
[Signature
Page Follows]
14
This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall be one and the same agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
|
Coastal
Credit, LLC
|
|
| /s/ Xxxx X. Xxxxx | |
|
By:
Xxxx X. Xxxxx
|
|
|
Title:
|
|
|
First
Chicago Bancorp
|
|
| /s/ Xxxxxxx X. Xxx | |
|
By: Xxxxxxx
X. Xxx
|
|
|
Title: Chief
Executive Officer
|
|
|
White
River Capital, Inc.
|
|
| /s/ Xxxx X. Xxxxxxxxx, III | |
|
By: Xxxx
X. Xxxxxxxxx, III
|
|
|
Title: Chief
Executive Officer
|
|
| /s/ Xxxxxxx X. XxXxxxxx | |
|
Xxxxxxx
X. XxXxxxxx
|
15
