EMPLOYMENT AGREEMENT
Exhibit
99.1
THIS EMPLOYMENT AGREEMENT (the
“Agreement”) is entered into as of the 18th day of September, 2009, by and
between Tower Financial
Corporation, an Indiana corporation (the “Company”) and XXXXXXX X. XXXXXX, a resident
of Xxxxx County, Indiana (the “Employee”).
WHEREAS, the Company is in the
business of operating a bank and financial services holding company and,
directly or through subsidiary entities, operates or may operate various
banking, trust company and other permitted businesses;
WHEREAS, Company wishes to
employ Employee, and Employee wishes to be employed by the Company, under the
following terms and conditions,
NOW, THEREFORE, for and in
consideration of the foregoing recitals and of the mutual covenants and
agreements set forth herein, the parties, intending to be legally bound hereby,
agree as follows:
1.
Employment. The
Company hereby employs Employee, for the Term set forth in Section 3, as the
Company’s Chief Financial Officer. Employee agrees to accept such
employment upon the terms and conditions set forth herein, and to devote his
full-time, attention and best efforts to the performance of his duties, as more
fully described below.
2.
Duties. During the
Term, Employee’s duties (“Duties”) shall consist of those Duties as are
consistent with the position of Chief Financial Officer, or such other duties,
for and on behalf of the Company or any of its affiliates, with executive
responsibilities commensurate with a position generally similar to that
described in Section 1, as may from time to time be assigned to him by the
Company’s Chief Executive Officer or its Board of Directors. Employee’s Duties
also include or may include, without limitation, serving as an officer, director
or employee of one or more Company subsidiaries or affiliates.
Employee
agrees that any programs, financial or other products, software, systems or
other intellectual property that may be developed by the Company, with or
without Employee’s participation and assistance, and whether or not within the
scope of Employee’s Duties hereunder, shall be deemed to constitute works for
hire belonging to the Company, and, in all events, shall be and remain the
Company’s exclusive property; and Employee shall not assert (and hereby
relinquishes) any rights or claims therein or thereto.
3.
Term. This
Agreement shall become enforceable from and after the execution by the parties,
notwithstanding the delayed effective date described herein. Subject to the
provisions of Sections 3(a) through 3(d) and unless otherwise extended as
provided herein, the term of this Agreement (the “Term”) shall commence on
November 27, 2009 (the “Effective Date”) and shall extend through December 31,
2011. Until commencement of the Effective Date, however, Employee’s existing
Employment Agreement, dated November 27, 2007, shall remain in full force and
effect.
(a) If,
on or prior to the ninetieth (90th) day
prior to the expiration of the Term or any Extended Term as provided herein, the
Company fails to notify Employee that it elects to extend the term of this
Agreement for an additional two year period (an “Extended Term”), on the basis
of the same terms and conditions as those applicable during the preceding Term
or, if applicable, the preceding Extended Term, the Term or, if applicable, the
then current Extended Term, will in fact terminate as specified herein, subject,
however, to the Company’s obligation to pay Employee the Severance Amount set
forth in Section 6(f)(i).
(b) In
the event that, on or prior to the ninetieth (90th) day
prior to the expiration of the Term or, if applicable, any Extended Term, the
Company has timely notified Employee of its election to extend the Term or, if
applicable, any Extended Term, for an additional period of two (2) years, and,
on or prior to the thirtieth (30th) day
thereafter Employee has either failed to notify the Company that he is unwilling
to extend his employment with the Company during such Extended Term, on the
basis of the same terms and conditions as applicable during the preceding Term
or Extended Term, or, alternatively, has affirmatively notified the Company that
he agrees to proceed in accordance with the Company’s election to extend the
Term or Extended Term, if applicable, this Agreement shall be deemed to have
been further so extended.
(c) In
the event that in accordance with the provisions of Section 3(b), the Company
has timely notified Employee of its election to extend the Term or any Extended
Term, but, on or prior to the thirtieth (30th) day
thereafter, Employee notifies the Company that he declines to accept the
Company’s election to continue such employment during the proposed Extended
Term, on the basis of the same terms and conditions as those applicable during
the preceding Term or, if applicable, the preceding Extended Term, the Agreement
will in fact terminate on the then applicable expiration date, subject, however,
to the Company’s obligation to pay Employee the Severance Amount set forth in
Section 6(f)(ii).
(d) If,
during the Term or any Extended Term, and without Cause as defined in Section
6(c), the Company terminates the Agreement, Employee will be entitled either to
the Severance Amount described in Section 6(e), or, if applicable the Change in
Control Payment described in Section 6(g)(i), but not both.
Following
the Term or any Extended Term, if any, any continued employment, unless pursuant
to another written employment agreement, if any, shall be on an at-will basis,
subject to such terms and conditions as the parties may mutually agree in
writing.
4.
Compensation.
(a) Base
Salary. During the Term,
and unless otherwise mutually agreed in writing during the Term or any Extended
Term, Employee will receive an annual base salary of $135,000 (the “Base
Salary”), payable in accordance with the Company’s normal payroll practices in
effect from time to time. Such Base Salary shall be subject to
periodic review, and may be increased, but not decreased, from time to time at
the Board of Director’s sole discretion upon the recommendation of the Company’s
Compensation Committee.
(b) Bonus. During the Term
or any Extended Term, if applicable, and unless otherwise mutually agreed in
writing, Employee will be eligible to receive a bonus at such times and in such
amounts, if any, as the Company’s Board of Directors, on the recommendation of
its Compensation Committee, may determine, in the exercise of its sole and
exclusive discretion. Any such bonus compensation may be either, in
whole or in part, performance based, consistent with the requirements of Section
162 of the Internal Revenue Code of 1986, as amended, or discretionary, and may
be based upon the provisions of any applicable incentive plan or upon the
recommendation of its Compensation Committee, in recognition of Employee’s
performance of his Duties in an extraordinary manner deserving of additional
compensation. Nothing in this Agreement, however, shall limit the Board’s
discretion to adopt, amend or terminate any performance-based or any other bonus
plan.
(c) Stock Options;
Restricted Stock. During the Term
or any Extended Term, Employee shall be eligible to participate in such other
stock option, restricted stock or other equity-based incentive plans, including
any plans contemplating the potential grant of incentive stock options,
non-qualified stock options, restricted stock, or various other equity based
awards, that may be adopted by the Company from time to time; provided, however, that nothing herein
shall be deemed to entitle Employee to any specific benefit grant or award (any
such grant or award to be solely discretionary with the Board, upon the
recommendation of the Compensation Committee) or to limit the Board’s discretion
to adopt, amend or terminate any plan or program.
(d) Other Benefit
Plans. The Company
agrees that, if otherwise eligible, Employee will be covered by or will be
entitled to participate in any vacation programs, 401(k) plans or programs,
disability or life insurance plans or programs, medical and/or hospitalization
plans, and/or in any and all other benefit plans which may be adopted from time
to time by the Company during the Term or any Extended Term, for the general
benefit of the Company’s senior executives. Nothing herein, however,
shall limit the Company’s ability to exercise the discretion provided to it
under any such benefit plan, or otherwise in its discretion to adopt, amend or
terminate any such benefit plan or program.
(e) Business
Expenses. The Company shall
reimburse Employee for all ordinary and necessary business-related expenses
incurred by him while carrying out his employment responsibilities
hereunder. Such reimbursement shall be in accordance with the
Company’s policies and practices regarding the types or amounts of business
expenses for which Employee may be entitled to reimbursement hereunder,
including any required pre-authorizations, and to establish policies regarding
such reimbursements.
5.
Agreement to
Maintain Confidentiality.
(a) Without
the Company’s prior consent, Employee shall not divulge any confidential
business information, and he agrees and covenants that all confidential business
information regarding the Company’s business practices and processes, its
marketing plans and methods, its operations analyses and software, customer and
client lists and identities, however developed or generated, as well as
information concerning customer preferences and current or prospective business
opportunities, its financial and budgetary information, business development
ideas and strategies, and its other trade information, trade secrets, know-how,
and other information regarding the Company’s affairs (“Confidential Business
Information”) has been and will continue to be received and held by Employee in
the strictest confidence. Employee agrees not to divulge to any other
person or use for his personal benefit or for the benefit of any other person,
any such Confidential Business Information, except insofar as that person has a
need to know such Confidential Business Information in the ordinary course of
the Company’s business and for its benefit. Employee further agrees
that, upon expiration of the Term or any Extended Term, if any, or upon earlier
termination of the Agreement, regardless of reason or by whom terminated, he
will not exploit and will surrender to the Company any and all documents,
records and rights, in whatever form, that may be in his possession or control
containing any such Confidential Business Information, as well as any and all
other property that may belong to the Company, including, without limitation,
computer hardware and software, pagers, PDAs, Blackberries, cell phones and
other electronic equipment, notes, reports, studies and all electronically
stored information.
(b) For
purposes of this Agreement, information shall not be deemed to constitute
“Confidential Business Information” to the extent that the information (i) is in
the public domain, or hereafter becomes generally known or available outside the
Company through no action or omission on the part of Employee in violation of
this Agreement, (ii) is furnished to any person by the Company without
restriction on disclosure, (iii) becomes known to Employee from a source other
than the Company, without a breach of any obligation hereunder, (iv) is required
to be disclosed by law (in which case Employee will give prompt written notice
to the Company of any such required disclosure to the extent such notice would
not be prohibited by law), or (v) is disclosed after written approval for
disclosure has been granted by the Company.
(c) The
provisions of this Section 5 shall survive any expiration of the Term or any
Extended Term, or the prior termination of this Agreement.
6.
Termination of Employment.
(a) Termination Due
to Death. Employee’s
employment with the Company will automatically terminate immediately upon his
death, and Employee’s estate or designated beneficiary, in addition to any life
insurance benefit payable to Employee or his designated beneficiary, will be
entitled to (i) any earned but unpaid Base Salary to the date of termination,
(ii) in the discretion of the Board, upon the recommendation of the Compensation
Committee, any pro rata bonus for the partial calendar year to the date of
Employee’s death, and (iii) any unpaid vacation and unreimbursed expenses
payable hereunder. Unless otherwise required, and subject to the provisions of
Section 8(a), all payments shall be made within 30 days of Employee’s
termination of employment, except for the pro rata bonus, which shall be paid
within 2½ months of the end of the fiscal year in which the termination
occurred. Except for the foregoing payment amounts, Employee shall be
entitled to no other compensation, benefits or payments.
(b) Termination Due
to Disability. If, during the
Term or any Extended Term, Employee suffers a “Disability” as defined by one or
more of the alternative definitions of disability set forth in Section 409A of
the Internal Revenue Code and the guidance and regulations issued pursuant
thereto, the Company, in the exercise of its sole discretion, shall be entitled
to terminate Employee’s employment hereunder, immediately upon written notice to
Employee of such decision, subject, however, to the payment to Employee of (i)
any earned but unpaid Base Salary, (ii) any pro rata bonus for the partial
calendar year to the date of such notice, and (iii) unpaid vacation and
unreimbursed expenses payable hereunder. Unless otherwise required, and subject
to the provisions of Section 8(a), Employee’s employment shall terminate and all
payments shall be made within 30 days of Employee’s receipt of written notice of
termination of employment, except for any pro rata bonus, which shall be paid
within 2½ months of the end of the fiscal year in which the termination
occurred. Except for the foregoing payment amounts, or any amounts payable to
Employee under any Company long-term disability plan, if any, Employee shall be
entitled to no other compensation, benefits or payments by reason of his
disability.
(c) Termination
by Company for
Cause. During the Term
or any Extended Term, if any, the Company shall be entitled to terminate
Employee’s employment hereunder for “Cause,” as defined below, by providing
written notice to Employee of such decision. For purposes of this
Agreement, Cause shall mean (i) the commission by Employee of an act of
malfeasance, dishonesty, fraud or breach of trust against the Company or any of
its affiliates, employees, clients or vendors resulting or intended to result in
substantial gain or personal enrichment to which Employee was not legally
entitled; (ii) the continued non-performance or breach by Employee of any of his
material Duties or obligations hereunder, whether expressed in writing or
otherwise generally understood, after a written demand by the Company for
correction of such non-performance or breach is delivered to Employee, which
specifically identifies the non-performance and the manner in which the Company
asserts that Employee has not performed, and the continued non-performance
following the expiration of thirty (30) days of his receipt of such written
demand; or (iii) Employee’s indictment, conviction of or plea of guilty or no
contest to any felony or any crime involving moral turpitude.
Upon
termination of this Agreement for Cause, the Company shall pay Employee any
earned but unpaid Base Salary to the date of termination, any earned and unpaid
vacation and any unreimbursed expenses otherwise payable hereunder; provided,
however, that nothing herein shall be deemed to preclude the Company from
asserting a damage claim, if any, against Employee by reason of circumstances
related to the termination for Cause. All such payments shall be made
within 30 days of Employee’s termination of employment. Except for
the foregoing payment amounts, Employee shall be entitled to no other
compensation, benefits or payments by reason of his termination of employment
for cause.
(d) Termination by
Employee During the Term or Extended Term. Employee may
voluntarily terminate his employment with the Company, without reason, at any
time during the Term or any Extended Term, if applicable, and, if so terminated,
but subject in any event to the provisions of Section 6(g)(ii) if there has been
a “Change in Control,” as defined therein, he shall be entitled to (i) any
earned but unpaid Base Salary to the date of termination, (ii) in the discretion
of the Board, upon the recommendation of the Compensation Committee, any pro
rata bonus for the partial calendar year to the date of termination, and (iii)
any earned and unpaid vacation and unreimbursed expenses otherwise payable
hereunder. Unless otherwise required, and subject to the provisions of Section
8(a), all payments required to be made by the reason of this Section 6(d) shall
be made within 30 days of Employee’s termination of employment, except for any
pro rata bonus, which, if awarded, shall be paid within 2½ months of the end of
the fiscal year in which the termination occurred. Except for the
foregoing payment amounts, and, if applicable, any amounts to which Employee may
be entitled under the provisions of Section 6(g), Employee shall be entitled to
no other compensation, benefits or payments by reason of Employee’s voluntary
termination of employment.
(e) Termination by
Company Without Cause. If, during the
Term or any Extended Term, the Company terminates this Agreement and Employee’s
employment hereunder, without Cause as defined in Section 6(c), Employee shall
be entitled to receive any earned by unpaid Base Salary to the date of
termination, any earned and unpaid vacation and unreimbursed expenses otherwise
payable hereunder, and, in addition, as liquidated damages or as a severance
payment (the “Severance Amount”), the greater of (i) Employee’s Base Salary, pro
rated monthly, multiplied by the number of months, or portion thereof, remaining
to the expiration of the Term or, if applicable, any Extended Term, or (ii)
twelve (12) months Base Salary, in either case payable in a lump sum, in cash
and without discount, within thirty (30) days of termination, subject, in the
case of the Severance Amount, however, to the following
limitations:
If
Employee is a “Specified Employee” at the time of his separation from service,
payment of such Severance Amount shall be delayed for six (6) months after the
date of the separation from service, if required by Section 409A of the Internal
Revenue Code and the guidance and regulations thereunder (the “Delayed Payment
Period”). After such six month delay, the required lump sum Severance Amount
shall promptly thereafter be paid to Employee.
The term
“Specified Employee” shall mean a key employee as defined in Section 416(i) of
the Internal Revenue Code, without regard to Paragraph (5) thereof, determined
as of December 31 of the calendar year preceding the year in which the
separation from service occurs.
In the
event that, during the Delayed Payment Period, Employee is found to have been in
violation of his covenants and obligations described in Section 7(a), the
Company shall not be required to pay Employee the foregoing Severance Amount. In
the further event that, even after having received the required Severance
Amount, Employee is found to have been in breach of his covenants and
obligations pursuant to Section 7(a), whether prior to the receipt of or after
having received the Severance Amount, then the Company shall be entitled,
through institution of legal proceedings, to recover the Severance Amount from
Employee, in addition to any and all other remedies to which the Company may be
entitled by reason of such breach, including the remedy set forth in Section
7(b).
Furthermore,
if Employee’s employment is terminated hereunder by the Company without Cause,
all unvested stock options or shares of restricted stock held by Employee shall
be deemed fully vested, effective as of the date of termination; provided that all vested
stock options shall continue to be exercisable by Employee, subject, however, to
the provisions of the particular Company plan or program pursuant to which the
stock options were granted and to the terms of the actual stock option agreement
and option, only during the ninety (90) day period following Employee’s
separation from service.
Except
for the foregoing payment amounts, and provisions regarding stock options and
restricted stock, Employee shall be entitled to no other compensation, benefits
or payments by reason of his termination without Cause.
(f)
Non-Extension.
(i) By the
Company. If, as
contemplated by the provisions of Section 3(a), the Company fails to notify
Employee that it elects to extend the Term or any Extended Term, if applicable,
for an additional two year period, then, in addition to Employee’s entitlement
to continue to be paid all compensation and benefits as prescribed under the
provisions of Section 4 for the balance of the Term or any Extended Term, if
applicable, during which time he shall continue to render services to the
Company as contemplated by this Agreement, Employee shall also be entitled to
receive the following post-employment payment (the “Post-Employment Payment”),
payable in a lump sum, in cash and without discount, within thirty (30) days of
his separation from service, subject, however, to Delayed Payment Period
limitations described in Section 6(e), if applicable.
The
Post-Employment Payment shall be equal to the sum of Employee’s Base Salary, pro
rated on a monthly basis, multiplied by nine (9) months.
(ii) By
Employee. If, as
contemplated by the provisions of Section 3(c), the Company has timely notified
Employee of its election to extend the Term or any Extended Term, if applicable,
but Employee has exercised his right, as described therein, to decline such
continued employment, Employee shall thereafter continue his employment on the
basis of the same terms and conditions of employment to the expiration of the
Term or Extended Term, if applicable, but, in addition thereto, shall only be
entitled to receive any earned by unpaid Base Salary, any pro rata bonus for the
calendar year to the date of separation from service, and any unpaid vacation
pay and unreimbursed expenses payable hereunder.
(g) Change in
Control. In the event that a change in control occurs, as
defined in Section 409A of the Internal Revenue Code and the guidance and
regulations issued thereunder (a “Change in Control”), then:
(i) If,
during the Term or any Extended Term, if applicable, and within three (3) months
before or twelve (12) months after such a Change in Control, Employee’s
employment is terminated by the Company, without Cause as defined in Section
6(c), Employee shall thereupon be entitled,
(A) to
receive a “Change in Control Payment” equal to the amount described in Section
6(e), payable in the manner and subject to the Delayed Payment Period described
therein; and
(B) to
have all unvested stock options and shares of restricted stock, if any, then
held by Employee fully vest, as of the date of separation from service; provided that all vested
stock options shall be exercisable by Employee, subject in any event to the
provisions of the particular Company plan or program pursuant to which the stock
options were granted and to the terms of the actual stock option agreement and
option, only during the ninety (90) day period following separation from
service.
(ii) If
within three (3) months before or twelve (12) months after such a Change in
Control, Employee’s compensation or his functional responsibilities are
materially reduced, Employee may in such event, by written notice, elect to
voluntarily terminate his employment, and Employee shall thereupon be entitled,
in lieu of any payments to which he might otherwise be entitled by reason of the
application of Section 6(d):
(A) to
receive a Change in Control Payment equal to the amount described in Section
6(e), payable in the manner and subject to the Delayed Payment Period described
therein; and
(B) to
have all unvested stock options and shares of restricted stock, if any, then
held by Employee fully vest, as of the date of separation from service; provided that all vested
stock options shall be exercisable by Employee, subject in any event to the
provisions of the particular Company plan or program pursuant to which the stock
options were granted and to the terms of the actual stock option agreement and
option, only during the ninety (90) day period following separation from
service.
7.
Non-Solicitation.
(a) Non-Solicitation. Employee agrees
that, during the Term or any Extended Term, if applicable, and for a period of
twelve (12) months immediately following the earlier to occur of the expiration
of the Term or Extended Term, if applicable, or the earlier termination of
Employee’s employment hereunder, for whatever reason and by whomever initiated,
and whether or not Employee is entitled to continue to receive compensation
hereunder, he will not, directly or indirectly (i) solicit, take away, hire,
employ or endeavor to employ any person employed by the Company, or (ii)
solicit, take away or attempt to take away any of the existing or prospective
customers or clients, vendors or licensors of the Company or any of its
subsidiaries (as of the date of expiration or actual termination of employment,
whichever is later), whether for the purpose of conducting any business which
directly or indirectly provides banking, financial or other services similar in
nature to the services provided by the Company or any of its subsidiaries, or
otherwise. As used herein, the term “prospective customers or clients” shall
include persons or entities with whom the Company or its subsidiaries have been
in contact within the previous twelve (12) months for the purpose of
establishing or conducting a business relationship.
(b) Specific
Enforcement.
(i)
Employee acknowledges that any violation of any provision of
Section 7(a) by him will cause irreparable damage to the Company, that such
damage will be incapable of precise measurement, and that, as a result, the
Company will not have an adequate remedy at law to redress the harm which such
violation will cause. Therefore, in the event of any violation of any
provision of Section 7(a) by Employee, Employee agrees that, in addition to all
other remedies that the Company or any of its subsidiaries may have at law or in
equity, including the right to discontinue paying any further compensation
hereunder, or the right to xxx for damages, the Company shall be entitled to
injunctive relief, including, without limitation, the right to obtain a
temporary restraining order and a temporary injunction to restrain any such
violation. In such event, the Company shall not be required to post a bond in
excess of the minimum bond required under the civil rules of the court having
jurisdiction over the controversy.
(ii) In
the event that a court shall find that Employee has violated any of the
restrictions set forth in Section 7(a), then the period of the restrictions set
forth herein shall automatically be extended by the number of days that the
court determined Employee to have been in violation of such
restriction. Furthermore, in addition to any other relief to which
the Company shall be entitled, the Company shall be entitled to recover from
Employee its reasonable costs and attorney fees incurred by the Company in
seeking enforcement of these provisions.
8.
Miscellaneous.
(a) Special Provision
Regarding Section 409A of the Internal Revenue Code. This Agreement is
intended to comply with the applicable requirements of IRC Section 409A and
shall be limited, construed, and interpreted in accordance with such intent
(including final regulations or any other guidance). Notwithstanding anything
hereunder to the contrary, any provision of the Agreement that is inconsistent
with said Section 409A shall be deemed to be amended to comply with IRC Section
409A and to the extent such provision cannot be amended to comply with IRC
Section 409A, such provision shall be null and void.
(b) Other
Rights. This Agreement
shall not prevent or limit Employee’s continuing or future participation in any
benefit, bonus, incentive or other plans, if any, provided by the Company or any
of its subsidiaries and for which Employee may qualify, nor shall this Agreement
limit or otherwise affect such rights as Employee has under any other agreements
with the Company or any of its subsidiaries. Amounts which are vested
benefits or which Employee is otherwise entitled to receive under the terms of
any plan of the Company or any of its subsidiaries and any other payment or
benefit required by law at or after termination of employment shall be payable
in accordance with such plan or applicable law, except as specifically
provided by this Agreement.
(c) Entire Agreement;
Amendments. This Agreement
discharges and cancels all previous and contemporaneous agreements, both written
and oral, between Employee and the Company. This Agreement
constitutes the entire agreement between the parties with respect to the subject
matter hereof. No agreements, representations or statements of any
party not contained herein shall be binding on either party, and no amendment or
variation of the terms and conditions of this Agreement shall be valid unless in
writing and signed by both parties.
(d) Assignability;
Successors of the Company.
(i)
This Agreement and the rights and duties created hereunder shall not
be assignable or delegable by Employee. The Company may, at its
option and without Employee’s consent, assign its rights and duties hereunder to
any successor entity, Company affiliate or subsidiary, or any transferee of the
Company’s assets.
(ii) The
Agreement will be binding upon and inure to the benefit of the Company, Employee
and their respective heirs, representatives and successors. The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used
in this Agreement, the term “Company” means the Company as hereinbefore defined
and any successor to its business and/or assets which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
(e) No
Waiver. No failure or
delay by any party to this Agreement to enforce any rights specified hereunder
shall operate as a waiver of such right, nor will any single or partial exercise
of a right preclude any further or later enforcement of the same right within
the period of the applicable statute of limitations.
(f) Governing
Law. This Agreement
and the performance of the parties under this Agreement shall be construed in
accordance with the laws of the State of Indiana, regardless of the jurisdiction
in which the action or proceeding may be commenced.
(g) Notices. All notices and
other communications provided for or contemplated by this Agreement shall be in
writing and shall be deemed to have been duly given when delivered and received
by the other party, or when sent by recognized overnight courier, or by faxed
communication (with overnight delivery of a hard copy thereof) to the following
addresses and/or contact numbers:
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If
to the Company:
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Tower
Financial Corporation
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Attn: Xxxxxxx
X. Xxxxxx
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000
Xxxx Xxxxx Xxxxxx, Xxxxx 000
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Xxxx
Xxxxx, XX 00000
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If
to Employee:
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Xxxxxxx
X. Xxxxxx
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0000
Xxxxx Xxxxxx Xxxxx
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Xxxx
Xxxxx, XX 00000
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or to
such other address or contact number as either party hereto will have furnished
to the other in writing in accordance with this Section 8, except that such
notice of change of address or contact number shall be effective only upon
receipt.
(h) Counterparts. This Agreement
may be exercised in any number of counterparts, each of which as so executed
shall be deemed to be an original, and such counterparts shall together be
deemed to constitute but one agreement.
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first above
written.
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TOWER
FINANCIAL CORPORATION
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By: /s/ Xxxxxxx X.
Xxxxxx
Its: Chief Executive
Officer & President
Date: September 18,
2009
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/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Date: September 18,
2009
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