EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), entered into this 20th
day of December, 1999, and effective January 1, 2000, by and between Lafayette
Community Bancorp, an Indiana corporation ("Employer"), and Xxxxx X. Xxxxxxxxx,
a resident of Tippecanoe County, Indiana ("Employee").
WITNESSETH
WHEREAS, Employer desires to encourage Employee to make valuable
contributions to Employer's business operations and not to seek or accept
employment elsewhere;
WHEREAS, Employee desires to be assured of a secure minimum
compensation from Employer for his services over a defined term;
WHEREAS, Employer desires to assure the continued services of
Employee on behalf of Employer on an objective and impartial basis and without
distraction or conflict of interest in the event of an attempt by any person to
obtain control of Employer;
WHEREAS, Employer recognizes that when faced with a proposal for a
change of control of Employer, Employee will have a significant role in helping
the Board of Directors assess the options and advising the Board of Directors on
what is in the best interests of Employer and its shareholders, and it is
necessary for Employee to be able to provide this advice and counsel without
being influenced by the uncertainties of his own situation;
WHEREAS, Employer desires to provide fair and reasonable benefits to
Employee on the terms and subject to the conditions set forth in this Agreement;
and
WHEREAS, Employer desires reasonable protection of its confidential
business and customer information which it will develop over the years at
substantial expense and assurance that Employee will not compete with Employer
for a reasonable period of time after termination of his employment with
Employer, except as otherwise provided herein.
NOW, THEREFORE, in consideration of the foregoing premises, the
mutual covenants and undertakings herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Employer and Employee, each intending to be legally bound, covenant and agree as
follows:
1. Employment. Upon the terms and subject to the conditions set forth
in this Agreement, Employer employs Employee as Employer' s president and chief
executive officer, and Employee accepts such employment.
2. Positions. (a) Officer. Employee agrees to serve as Employer's
president and chief executive officer and to perform such duties in that office
as may reasonably be assigned to him by Employer's Board of Directors; provided,
however that such duties shall be performed in or from the principal executive
offices of Employer, currently located in Lafayette, Indiana, and shall be of
the character as those generally associated with the office of president and
chief executive officer. Employee shall not be required to be absent from the
location of the principal executive offices of Employer on travel status or
otherwise more than 45 days in any calendar year. Employer shall not, without
the written consent of Employee, relocate or transfer Employee
to a location more than 30 miles from his principal residence. Although while
employed by Employer, Employee shall devote substantially all his business time
and efforts to Employer's business and shall not engage in any other related
business. Employee may use his discretion in fixing his hours and schedule of
work consistent with the proper discharge of his duties.
(b) Board of Directors. During the Term of this Agreement, Employer
agrees to elect Employee as one of the directors of Lafayette Community Bank
("Bank") and further agrees to use its best efforts to cause Employee to be
nominated and elected as a director of Employer, including in such latter case
to solicit proxies and vote pursuant to such proxies in favor of Employee's
election as a director of Employer; subject in all cases to the fiduciary duties
of the Board of Directors of Bank and Employer and the requirements of
government regulatory agencies or authorities.
3. Term. The term of this Agreement shall begin on January 1, 2000
(the "Effective Date") and shall end on the date which is three years following
such date; provided, however, that such term shall be extended automatically for
an additional year on each anniversary of the Effective Date, unless either
party hereto gives written notice to the other party not to so extend prior to
an anniversary, in which case no further automatic extension shall occur and the
term of this Agreement shall end two years subsequent to the anniversary as of
which the notice not to extend for an additional year is given (such term,
including any extension thereof shall herein be referred to as the "Term").
Notwithstanding the foregoing, this Agreement shall automatically terminate (and
the Term of this Agreement shall thereupon end) without notice when Employee
attains 65 years of age.
4. Salary. Employee shall receive an annual minimum salary of One
Hundred and five thousand Dollars ($105,000) ("Base Compensation") payable at
regular intervals in accordance with Employer's normal payroll practices in
effect from time to time. The Board of Directors of Employer shall review
Employee's salary on an annual basis and may, in its discretion, consider and
declare from time to time increases in the Base Compensation that it pays
Employee. Any and all increases in Employee's salary pursuant to this section
shall cause the level of Base Compensation to be increased by the amount of each
such increase for purposes of this Agreement. The increased level of Base
Compensation as provided in this section shall become the level of Base
Compensation for the remainder of the Term of this Agreement until there is a
further increase in Base Compensation as provided herein. .
5. Benefit Programs. During the term of this Agreement, Employee
shall be entitled to participate in or receive benefits under (i) any life,
health, hospitalization, medical, dental, disability or other insurance policy
or plan, (ii) pension, retirement or employee stock ownership plan, (iii) bonus
or profit-sharing plan or program, (iv) deferred compensation plan or
arrangement, and (v) any other employee benefit plan, program or arrangement,
made available by Employer on the date of this Agreement and from time to time
in the future to Employer's directors, officers and employees on a basis
consistent with the terms, conditions and overall administration of the
foregoing plans, programs or arrangements and with respect to which Employee is
otherwise eligible to participate or receive benefits. The foregoing shall not
prohibit Employer, in its sole discretion, from amending, modifying, freezing,
suspending or terminating such plans, if any, from time to time in the future.
6. General Policies. (a) So long as Employee is employed by Employer
pursuant to this Agreement, Employee shall receive reimbursement from Employer
for all reasonable business expenses incurred in the course of his employment by
Employer, upon submission to Employer of written vouchers and statements for
reimbursement. Employee shall attend, at his discretion, those professional
meetings, conventions, and/or similar functions that he deems appropriate and
useful for purposes of keeping abreast of current developments in the industry
and/or promoting the interests of Employer.
(b) So long as Employee is employed by Employer pursuant to this
Agreement, Employee shall be entitled to office space and working conditions
consistent with his position as president and chief executive officer.
(c) During the term of this Agreement, Employee shall be entitled to
four (4) weeks per calendar year of paid vacation, which shall be utilized at
such times when his absence will not materially impair Employer's normal
business functions. In addition to the vacation described above, Employee also
shall be entitled to all paid holidays customarily given by Employer to its
officers.
(d) All other matters relating to the employment of Employee by
Employer not specifically addressed in this Agreement shall be subject to the
general policies regarding employees of Employer in effect from time to time.
7. Termination. Subject to the respective continuing obligations of
the parties, including but not limited to those set forth in subsections 9(a),
9(b), 9(c), and 9(d) hereof, Employee's employment by Employer may be terminated
prior to the expiration of the Term of this Agreement as follows:
(a) Employer, by action of its Board of Directors and upon written notice to
Employee, may terminate Employee's employment with Employer immediately for
cause. For purposes of this subsection 7(a), "cause" shall be defined as (i)
Employee's personal dishonesty of a material nature affecting Employee's ability
to perform his duties under this Agreement, (ii) Employee's incompetence in the
performance of his duties and obligations under this Agreement, (iii) Employee's
willful misconduct or gross negligence, (iv) Employee's breach of fiduciary duty
involving personal profit, (v) Employee's intentional failure to perform stated
duties, (vi) Employee's conviction of any criminal offense which involves
dishonesty or breach of trust or conviction of any felony, (vii) any requirement
of a government agency or authority having jurisdiction over Employer or Bank,
or (viii) any material violation by Employee of any material provision or
covenant of this Agreement.
(b) Employer, by action of its Board of Directors, may terminate Employee's
employment with Employer without cause at any time; provided, however, that the
"date of termination" for purposes of determining benefits payable to Employee
under subsection 8(b) hereof shall be the date which is 30 days after Employee
receives written notice of such termination.
(c) Employee, by written notice to Employer, may terminate his employment with
Employer immediately for cause. For purposes of this subsection 7(c), "cause"
shall be defined as (i) any action by Employer's Board of Directors to remove
the Employee as president and chief executive officer of Employer without the
prior written consent of Employee, except where the Employer's Board of
Directors properly acts to remove Employee from such office for "cause" as
defined in subsection 7(a) hereof, (ii) any action by Employer's Board of
Directors to materially limit, increase, or modify Employee's duties and/or
authority as president and chief executive officer of Employer (including his
authority, subject to corporate controls no more restrictive than those in
effect on the date hereof, to hire and discharge employees who are not bona fide
officers of Employer) without the prior written consent of Employee, except such
change in duties as may be required by any government agency or authority having
jurisdiction over Employer or Bank, or as may be required for the Board to
perform its fiduciary obligations, (iii) any failure of Employer to obtain the
assumption of the obligation to perform this Agreement by any successor, as
contemplated in Section 18 hereof; (iv) any removal of Employee from or any
failure by the shareholders of Employer and Bank to elect or re-elect the
Employee as a director of Employer and Bank; (v) any removal of employee from or
failure of the Board of Directors of Employer and Bank to elect or re-elect
Employee as president and chief executive officer of Employer or such other
office requiring the performance of the duties of president and chief executive
officer of Employer, except as a result of his disability, or (vi) any material
violation by Employer of any material provision or covenant of this Agreement.
(d) Employee, upon sixty (60) days written notice to Employer, may terminate his
employment with Employer without cause.
(e) Employee's employment with Employer shall terminate in the event of
Employee's death or disability. For purposes hereof, "disability" shall be
defined as Employee's inability by reason of illness or other physical or mental
incapacity to perform the duties required by his employment for any consecutive
One Hundred Eighty (180) day period, provided that notice of any termination by
Employer because of Employee's "disability" shall have been given to Employee
prior to the full resumption by him of the performance of such duties.
(f) Nothing contained in this Agreement shall impair, affect or change any
requirements otherwise imposed upon Employer or Employee by applicable statute,
law, rule, regulation or other legal requirement, including, without limitation,
Employee's COBRA rights upon termination of employment.
8. Termination Payments. In the event of termination of Employee's
employment with Employer pursuant to section 7 hereof, compensation shall
continue to be paid by Employer to Employee as follows:
(a) In the event of termination pursuant to subsection 7(a) or 7(d),
compensation provided for herein (including Base Compensation) shall continue to
be paid, and Employee shall continue to participate in the employee benefit,
retirement, and compensation plans and other perquisites as provided in sections
5 and 6 hereof, through the date of termination specified in the notice of
termination. Any benefits payable under insurance, health, retirement and bonus
plans as a result of Employee's participation in such plans through such date
shall be paid when due under those plans. The date of termination specified in
any notice of termination pursuant to subsection 7(a) shall be no later than the
last business day of the month in which such notice is provided to Employee.
(b) (i) In the event of termination pursuant to subsection 7(b)
or 7(c), compensation provided for herein (including Base
Compensation) shall continue to be paid, and Employee shall
continue to participate in the employee benefit,
retirement, and compensation plans and other perquisites as
provided in sections 5 and 6 hereof, through the date of
termination specified in the notice of termination. Any
benefits payable under insurance, health, retirement and
bonus plans as a result of Employee's participation in such
plans through such date shall be paid when due under those
plans.
(ii) If the termination occurs during the two-year period
following a Change of Control, Employee shall be entitled
to receive from Employer an aggregate amount equal to 2.99
times the average annual base salary and 2.99 times the
average bonus paid to the Employee by the Employer and/or
all subsidiaries in the last fiscal year prior to the date
of termination. Payment of such amount shall be made in
semi-monthly installments each equal to 1/72nd of such
amount payable in the same sequence of semi-monthly
payments as followed by the Employer for the payment of
salary, beginning on the first salary payment date
following the date of termination and continuing until paid
in full, or at the option of Employee, in a lump sum no
later than thirty (30) calendar days following the date of
termination.
(iii) If the termination does not occur during the two-year
period following a Change of Control, Employee shall be
entitled to continue to receive from Employer his Base
Compensation at the rates in effect at the time of
termination for the period of time equal to the remaining
Term of the Agreement. Payment of such amount shall be made
in semi-monthly installments in the same sequence of
semi-monthly payments as followed by the Employer for the
payment of salary, beginning on the first salary payment
date following the date of termination and continuing until
paid in full, or at the option of Employee, in a lump sum
no later than thirty (30) calendar days following the date
of termination.
(iv) In lieu of the COBRA coverage otherwise available to
the Employee, during the greater of 18 months or the period
of time equal to the remaining Term of the Agreement,
Employer will maintain in full force and effect for the
continued benefit of Employee each employee welfare benefit
plan (as such term is defined in the Employee Retirement
Income Security Act of 1974, as amended) in which Employee
was entitled to participate immediately prior to the date
of his termination, unless an essentially equivalent and no
less favorable benefit is provided by a subsequent employer
of Employee. If the terms of any employee welfare benefit
plan of Employer do not permit continued participation by
Employee, Employer will arrange to provide to Employee a
benefit substantially similar to, and no less favorable
than, the benefit he was entitled to receive under such
plan at the end of the period of coverage.
(v) For purposes of this Agreement, a "Change of Control"
shall mean (A) any merger, tender offer, consolidation or
sale of substantially all of the assets of Employer, or
related series of such events, as a result of which: (1)
shareholders of Employer immediately prior to such event
hold less than 50% of the outstanding voting securities of
Employer or its survivor or successor immediately after
such event; (2) persons holding less than 25% of such
securities before such event own more than 50% of such
securities after such event; or (3) persons constituting a
majority of the Board of Directors were not directors of
Employer for at least 24 preceding months; (B) any sale,
lease, exchange, transfer, or other disposition of all or
any substantial part of the assets of the Employer; or (C)
any acquisition by any person or entity, directly or
indirectly, of the beneficial ownership of 40% or more of
the outstanding voting stock of the Employer, excluding
acquisitions by individuals or entities who at the date of
this Agreement were either a Director of the Employer or
the beneficial owner (either directly or indirectly) of 10%
or more of the voting securities of the Employer.
(c) In the event of termination pursuant to subsection 7(e),
compensation provided for herein (including Base Compensation) shall continue to
be paid, and Employee shall continue to participate in the employee benefit,
retirement, and compensation plans and other perquisites as provided in sections
5 and 6 hereof, (i) in the event of Employee's death, through the date of death,
or (ii) in the event of Employee's disability, through the date of proper notice
of disability as required by subsection 7(e). Any benefits payable under
insurance, health, retirement and bonus plans as a result of Employer's
participation in such plans through such date shall be paid when due under those
plans.
(d) Employer will permit Employee or his personal representative(s)
or heirs, during a period of three months following Employee's termination of
employment (as specified in the notice of termination) by Employer for the
reasons set forth in subsections 7(b) or (c), if such termination follows a
Change of Control, to require Employer, upon written request, to purchase all
outstanding stock options previously granted to Employee under any Employer
stock option plan then in effect whether or not such options are then
exercisable or have terminated at a cash purchase price equal to the amount by
which the aggregate "fair market value" of the shares subject to such options on
the date of termination specified in the notice of termination exceeds the
aggregate option price for such shares. For purposes of this Section 8(d), "fair
market value" shall mean between the reported closing bid and ask prices for the
shares of common stock of the Company as quoted by the National Association of
Securities Dealer Automated Quotation System ("NASDAQ"). If the common stock of
the Employer is not quoted on NASDAQ, the fair market value shall be determined
by the Compensation Committee of the Board based upon quotations of the entities
which make a market in the Company's stock. In the event no entities make a
market in the Company's stock, "fair market value" shall mean the amount agreed
upon by the Employee and the Company. If the Employee and the Company are unable
to reach an agreement regarding the fair market value of the stock within ten
(10) days of the date of termination specified in the notice of termination,
then the Employee and the Company shall each select an appraisal firm and the
two firms shall determine the fair market value of the Employee's stock. If the
two appraisal firms cannot agree upon the
value within thirty (30) days of their appointment, they shall appoint a third
appraiser, the decision of a majority of the three (3) appraisers shall be final
and binding on the Employee and the Company; provided, however, the Employee may
elect, by notifying the Company within thirty (30) days after the date of
termination specified in the notice of termination, to have the following
definition of "fair market value" apply for purposes of this Section 8(d): the
per share book value of the Company's stock, calculated in accordance with
generally accepted accounting principles as of the last day of the month
coinciding with or immediately preceding the date of termination as specified in
the notice of termination. The costs of any appraisals shall be paid one-half by
the Employer and one-half by the Employee or his personal representative(s) or
heirs, as the case may be.
9. Confidentiality and Non-Compete Covenants. In order to induce
Employer to enter into this Agreement, Employee hereby agrees as follows:
(a) While Employee is employed by Employer and for a period of two
years after termination of such employment for reasons other than those set
forth in subsections 7(b) or (c) of this Agreement, Employee shall not divulge
or furnish any trade secrets (as defined in IND. CODE Section 24-2-3-2) of
Employer or any confidential information acquired by him while employed by
Employer concerning the policies, plans, procedures or customers of employer to
any person, firm or corporation, other than Employer or upon its written
request, or use any such trade secret or confidential information directly or
indirectly for Employee's own benefit or for the benefit of any person, firm or
corporation other than Employer, since such trade secrets and confidential
information are confidential and shall at all times remain the property of
Employer.
(b) For a period of two years after termination of Employee's
employment by Employer for reasons other than those set forth in subsections
7(b) or (c) of this Agreement, Employee shall not directly or indirectly (i)
provide banking or bank-related services to or solicit the banking or
bank-related business of any customer of Employer at the time of such provision
of services or solicitation which Employee served either alone or with others
while employed by Employer in any city, town, borough, township, village or
other place in which Employee performed services for Employer while employed by
it, (ii) assist any actual or potential competitor of Employer to provide
banking or bank-related services to or solicit any such customer's banking or
bank-related business in any such place, or (iii) solicit or encourage any
employee of Employer or Bank to terminate his or her employment with Employer or
Bank.
(c) While Employee is employed by Employer and for a period of one
year after termination of Employee's employment by Employer for reasons other
than those set forth in subsections 7(b) or (c) of this Agreement, Employee
shall not, directly or indirectly, as principal, agent, or trustee, or through
the agency of any corporation, partnership, trade association, agent or agency,
engage in any banking or bank-related business or venture which competes with
the business of Employer as conducted during Employee's employment by Employer
within a radius of fifty (50) miles of Employer's main office.
(d) If Employee's employment by Employer is terminated for any
reason, Employee will turn over immediately thereafter to Employer all business
correspondence, letters, papers, reports, customers' lists, financial
statements, credit reports or other confidential information or documents of
Employer or its affiliates in the possession or control of Employee, all of
which writings are and will continue to be the sole and exclusive property of
Employer or its affiliates.
If Employee's employment by Employer is terminated during the Term of
this Agreement for reasons set forth in subsections 7(b) or (c) or this
Agreement, Employee shall have no obligations to Employer with respect to
noncompetition and nonsolicitation under subsections 9(b) and 9(c), but the
obligations with respect to trade secrets, confidential information and property
under subsections 9(a) and 9(d) shall continue.
10. Notice of Termination. Any termination of Employee's employment
with Employer as contemplated by section 7 hereof, except in the circumstances
of Employee's death, shall be communicated by written "Notice of Termination" by
the terminating party to the other party hereto. Any "Notice of Termination"
pursuant to subsections 7(a), 7(c) or 7(e) shall indicate the specific
provisions of this Agreement relied upon and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for such
termination.
11. Suspensions. If Employee is suspended and/or temporarily
prohibited from participating in the conduct of Employer's or any affiliates'
affairs by a notice served under section 8(e)(3) or (g)(1) of the Federal
Deposit Insurance Act (12 U.S.C. Section 1818(e)(3) and (g)(1)), Employer's
obligations under this Agreement shall be suspended as of the date of service,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, Employer shall (i) pay Employee all or part of the compensation
withheld while its obligations under this Agreement were suspended and (ii)
reinstate (in whole or in part) any of its obligations which were suspended.
12. Removal. If Employee is removed and/or permanently prohibited
from participating in the conduct of Employer's or any affiliates' affairs by an
order issued under section 8(e)(4) or (g)(1) of the Federal Deposit Insurance
Act (12 U.S.C. Section 1818(e)(4) or (g)(1)), all obligations of Employer under
this Agreement shall terminate as of the effective date of the order, but vested
rights of the parties to the Agreement shall not be affected. If Employer is in
default (as defined in section 3(x)(1) of the Federal Deposit Insurance Act),
all obligations under this Agreement shall terminate as of the date of default,
but this provision shall not affect any vested rights of Employer or Employee.
13. Regulatory Oversight. All obligations under this Agreement may be
terminated except to the extent determined that the continuation of the
Agreement is necessary for the continued operation of Employer by order of any
state or federal banking regulatory agency with supervision of the Employer or
any of its affiliates, unless stayed by appropriate proceedings, and Employer
shall be under no obligation to perform any of its obligations hereunder if it
is informed in writing by any state or federal banking regulatory agency with
supervision of the Employer or any of its affiliates that performance of its
obligations would constitute an unsafe or unsound banking practice.
14. Legal Fees. If a dispute arises regarding the termination of
Employee pursuant to section 7 hereof or as to the interpretation or enforcement
of this Agreement and Employee obtains a final judgment in his favor in a court
of competent jurisdiction or his claim is settled by Employer prior to the
rendering of a judgment by such a court, all reasonable legal fees and expenses
incurred by Employee in contesting or disputing any such termination or seeking
to obtain or enforce any right or benefit provided for in this Agreement or
otherwise pursuing his claim shall be paid by Employer, to the extent permitted
by law.
15. Death. Should Employee die after termination of his employment
with Employer while any amounts are payable to him hereunder, this Agreement
shall inure to the benefit of and be enforceable by Employee's executors,
administrators, heirs, distributees, devisees and legatees and all amounts
payable hereunder shall be paid in accordance with the terms of this Agreement
to Employee's devisee, legatee or other designee or, if there is no such
designee, to his estate.
16. Notices. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been given when delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Employee: 0000 Xxxx 000 Xxxxx Xxxxxxxxx,XX 00000
If to Employer: Lafayette Community Bancorp
0 Xxxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
or to such other address as either party hereto may have furnished to the other
party in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
17. Governing Law. The validity, interpretation, and performance of
this Agreement shall be governed by the laws of the State of Indiana, without
reference to the choice of law principles or rules thereof.
18. Successors and Assigns. Employer shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of Employer, by agreement in
form and in substance satisfactory to Employee to expressly assume and agree to
perform this Agreement in the same manner and same extent that Employer would be
required to perform it if no such succession had taken place. Failure of
Employer to obtain such agreement prior to the effectiveness of any such
succession shall be a material intentional breach of this Agreement and shall
entitle Employee to terminate his employment with Employer pursuant to
subsection 7(C) hereof. As used in this Agreement, "Employer" shall mean
Employer as hereinbefore defined and any successor to its business or assets as
aforesaid.
19. Modification. No provision of this agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by Employee and Employer. 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 wavier of dissimilar provisions or conditions at the same or
any prior subsequent time. No agreements or representation, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement.
20. Validity. The invalidity or unenforceability of any provisions
of this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement which shall remain in full force and effect.
21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement.
22. Assignment. This Agreement is personal in nature and neither
party hereto shall, without consent of the other, assign or transfer this
Agreement or any rights or obligations hereunder except as provided in section
15 and section 18 above. Without limiting the foregoing, Employee's right to
receive compensation hereunder shall not be assignable or transferable, whether
by pledge, creation of a security interest or otherwise, other than a transfer
by his will or by the laws of descent or distribution as set forth in section 14
hereof, and in the event of any attempted assignment or transfer contrary to
this paragraph, Employer shall have no liability to pay any amounts so attempted
to be assigned or transferred. This Agreement shall be assigned to a yet-to-be
formed subsidiary of the Employer, if and when the Employer commences operations
of a financial institution through such subsidiary. The Employer shall guarantee
obligations of such subsidiary hereunder.
23. Limitations. Anything in this Agreement to the contrary
notwithstanding in the event Employer's independent public accountants determine
that any payment by Employer to or for the benefit of Employee, whether paid or
payable pursuant to the terms of this Agreement, would be non-deductible by
employer for federal income tax purposes because of Section 280G of the Code,
then the amount payable to or for the benefit of Employee pursuant to the
Agreement shall be reduced (but not below zero) to the Reduced Amount. For
purposes of this Section 23, the "Reduced Amount" shall be the amount which
maximizes the amount payable without causing the payment to be non-deductible by
Employer because of Section 280G of the Code.
24. Document Review. Employer and Employee hereby acknowledge and agree
that each (i) has read this Agreement in its entirety prior to executing it,
(ii) understands the provisions and effects of this Agreement, (iii) has
consulted with such attorneys, accountants and financial and other advisors as
it or he has deemed appropriate in connection with their respective execution of
this Agreement, and (iv) has executed this Agreement voluntarily and knowingly.
EMPLOYEE HEREBY UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT HAS
BEEN PREPARED BY LEGAL COUNSEL TO THE EMPLOYER AND THAT HE HAS NOT RECEIVED ANY
ADVICE, COUNSEL OR RECOMMENDATION WITH RESPECT TO THIS AGREEMENT FROM SUCH
COUNSEL.
* * * * * *
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed
and delivered as of the 20th day of December, 1999.
LAFAYETTE COMMUNITY BANCORP
("Employer")
By: /S/ XXXXXX XXXXXXX
----------------------------
Xxxxxx Xxxxxxx, Chairman
of the Board of Directors
/S/ XXXXX X. XXXXXXXXX
----------------------------
Xxxxx X. Xxxxxxxxx ("Employee")
