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Exhibit 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, executed this _______ day of ______________,
1999 but effective as of December 28, 1998, by and among Horizon Bank, N.A. a
national banking association ("Bank"), IMS Investment Management, N.A. ("IMS")
and Xxxxxxxx X. Xxxxx ("Executive");
W I T N E S S E T H:
WHEREAS, on the date hereof the Bank's parent company, Horizon Bancorp
("Horizon") acquired substantially all of the assets and certain liabilities of
Financial Planning and Management Corp.("FPMC"), an Indiana corporation; and
WHEREAS, the Executive is the sole shareholder and President of FPMC;
and
WHEREAS, the Bank desires, due to the Executive's knowledge and
experience, to retain by contract the Executive to serve as President of IMS,
the Bank's national trust bank subsidiary and as a Trust Officer of the Bank;
and
WHEREAS, the Executive is willing to serve in the employ of the Bank
and IMS in such and other capacities;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. EMPLOYMENT. The Bank and IMS hereby employ the Executive to render
full-time services to IMS as President and to serve as a Trust Officer of the
Bank for the period commencing on the effective date of this Agreement and
extending through the Term specified in Section 2 until such full-time services
are terminated as hereinafter provided. The Executive hereby accepts and agrees
to such employment.
2. TERM. Subject to the provisions for termination of this Agreement
contained in Section 8, the term of this Agreement shall be for a period of five
(5) years from the effective date hereof ("Term").
3. DUTIES.
(a) During the period of his employment hereunder, the Executive agrees
to diligently perform such executive duties and administrative functions which
are appropriate to the office of President as, from time to time, shall be
assigned to him by the Chairman or Vice Chairman or Board of Directors of IMS or
by the Board of Directors of the Bank (collectively referred to herein as the
"Board") or its designees and he further agrees to give his full business time
and attention to, and his best efforts to promote, the business and affairs of
the Bank and IMS. The Executive further agrees to hold the office of President
and such other offices of the Bank or
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IMS to which he may be elected or appointed and to perform and discharge the
duties thereof faithfully and to the best of his ability.
(b) The Executive, subject to the direction and control of the Board,
shall have all power and authority commensurate with his executive status and
necessary to perform his duties hereunder. The Bank shall provide the Executive
with such assistance and working accommodations as are suitable to the character
of his positions with the Bank and IMS and as are adequate for the performance
of his duties.
4. COMPENSATION.
(a) During the period of his employment hereunder, the Executive's
basic annual salary as President shall be One Hundred Thirty Thousand Dollars
($130,000.00). Such salary shall be payable in cash on the same schedule as all
other salaried employees.
Such salary payments shall be subject to the withholding of applicable
income and employment taxes and other appropriate and customary amounts. Upon
any change in the Executive's salary, a written addendum to this Employment
Agreement shall be executed by the Executive and the appropriate officer or
officers of the Bank.
(b) In addition to his basic annual salary as President, the Executive
shall be entitled to receive a cash bonus payable semi-annually as described in
Schedule A hereto commencing in 2000, unless this Agreement is terminated as
provided for herein, and subject to the terms and conditions set forth in
Schedule A.
(c) In addition to the salary and bonus compensation described above,
Executive shall also receive a one-time signing bonus effective upon execution
of this Agreement. Such bonus shall be paid to the Executive in the form of
forgiveness of indebtedness and shall be in an amount equal to the principal and
interest owed by the Executive to the Bank on a loan made by the Bank to the
Executive in the original principal amount of $100,000 dated as of December 28,
1998.
5. EMPLOYEE BENEFITS. During the Term of his employment hereunder, the
following shall apply with respect to the Executive's coverage by and
participation under employee benefit plans and programs sponsored or otherwise
made available by the Bank:
(a) Subject to the more specific provisions of subsection (c) below, the
Executive shall be entitled to participate in any retirement, deferred
compensation, life, accident, health, hospitalization and any other employee
benefit plan or program, excluding bonus programs, that is generally available
to the employees of Horizon or the Bank, if and to the extent the Executive is
eligible to participate thereunder in accordance with the provisions thereof.
Nothing herein shall be construed to require the Bank to institute any
particular benefit plan or program or to prevent the Bank or Horizon from
modifying or terminating any plan or program it may determine to adopt from time
to time. Further, the Executive shall be treated as a new employee for purposes
of eligibility and vesting under any employee benefit plan or program that is
available to the executive officers of the Bank. Years of service as an employee
of FPMC shall
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not be credited to the Executive for purposes of eligibility and vesting under
any employee benefit plan or program that is generally available to the
employees of the Bank.
(b) During the Term, Executive 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 the Bank's normal business functions. Any
unused vacation time in any calendar year shall lapse, and Executive shall not
be entitled to any additional compensation for any such unused and lapsed
vacation time. In addition to the vacation described above, Executive also shall
be entitled to all paid holidays customarily given by the Bank to its officers.
(c) The Executive shall be entitled to participate in the following
employee benefit plans, subject to the terms and conditions of the specific plan
documents or agreements provided with respect to each plan:
(i) Supplemental Executive Retirement Program ("SERP"). Executive
shall be eligible for participation in such program, with an
effective date of January 1, 1999, provided that Executive
executes the Bank's standard SERP Agreement. Vesting under
the SERP Program will be accelerated upon a Change in Control
(as hereinafter defined).
(ii) Stock Options. The Executive shall be granted options under
Horizon's Stock Option and Stock Appreciation Rights program
for 6000 shares of Horizon Stock, in accordance with
Horizon's standard agreement governing the program. The grant
hereunder will only be effective if this Employment Agreement
is executed, notwithstanding that actual employment may have
commenced prior to such date. Vesting of stock options
granted under the program will be accelerated upon a Change
in Control.
(iii) 401(k) Retirement Plan. The Executive shall be entitled to
participate in Horizon's 401(k) Plan in accordance with the
terms and conditions of the plan documents. Until the
Executive is eligible for actual enrollment under the Plan,
the Executive shall receive an equivalent benefit under the
SERP for the amount the Executive would have received for the
period from January 1, 1999 to the enrollment date.
(iv) Employer Stock Ownership Plan ("ESOP"). The Executive shall
be entitled to participate in Horizon's ESOP in accordance
with the terms and conditions of the plan documents. Until
the Executive is eligible for actual enrollment under the
ESOP, the Executive shall receive an equivalent benefit under
the SERP for the amount the Executive would have received for
the period from January 1, 1999 to the enrollment date.
6. REIMBURSEMENT OF EXPENSES AND CONTINUING EDUCATION. The Bank shall
pay to the Executive, or to the extent paid in the first instance by the
Executive, shall reimburse the Executive
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for, travel, entertainment and similar expenses he incurs in connection with
the performance of his duties hereunder in accordance with the Bank's policies
governing such activities, as such policies may be amended or modified from time
to time. Further, the Bank shall pay or reimburse Executive for the cost of up
to 40 hours of continuing professional education courses per year, provided that
such costs are reasonable and the courses are approved in advance by the Bank.
7. INSURANCE. The Bank shall have the right to maintain one (1) or more
insurance policies against the life of the Executive in such face amounts as the
Board considers appropriate, and to name itself as beneficiary under such
policies.
8. TERMINATION.
(a) At any time during the term of this Agreement, the Board shall have
the right to terminate the Executive's employment hereunder, provided that the
Board, or its designee, has followed the Bank's policies regarding review of
employee performance, due to the failure of the Executive to perform
satisfactorily any of the duties assigned to him by the Board, upon sixty (60)
days' prior written notice to the Executive and the Executive shall have the
right to terminate his employment hereunder at any time and for any reason, upon
sixty (60) days' prior written notice to the Bank.
(b) This Agreement shall also terminate on the death of the Executive.
(c) The Bank shall have the right to terminate the Executive's
employment hereunder for cause upon thirty (30) days' prior written notice. For
purposes of this Agreement, the Executive may be terminated "for cause" if his
employment is terminated by the Bank as a result of any of the following:
(i) An action by the Executive which involves fraud, willful
misfeasance or gross negligence in connection with the
performance of his duties hereunder;
(ii) The requirement or direction of a federal or state regulatory
agency which has jurisdiction over the Bank to terminate the
employment of the Executive;
(iii) Conviction of the Executive due to the commission of any
criminal offense which involves dishonesty or breach of
trust; or
(iv) Any breach by the Executive of a material term, condition or
covenant hereunder or any other agreement between the
Executive and the Bank and IMS, including, but not limited to
that certain Purchase and Sale Agreement dated of even date
herewith.
(d) The Executive may also be terminated upon sixty (60) days prior
written notice in the event of a Change in Control (as defined herein) subject
to Section 9.c. hereof. For purposes of this Agreement, "Change in Control" of
the Bank or IMS shall mean (i) a change in
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control of Horizon, of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Act of 1934, or (ii) a transfer of more than fifty percent (50%) of
the stock of IMS.
(e) Any termination of the Executive's employment by the Bank or by the
Executive shall be communicated by written Notice of Termination to the
non-terminating party. For purposes of this Agreement, a "Notice of Termination"
shall mean a notice which shall indicate the specific termination provision in
this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated.
(f) As used herein, "Date of Termination" shall mean (i) if the
Executive's employment is terminated by his death, the date of his death, (ii)
if the Executive's employment is terminated for any other reason, the date
specified in the Notice of Termination; provided that, if within thirty (30)
days after any Notice of Termination is given, the parties who receive such
Notice of Termination notify the other parties that a dispute exists concerning
the termination, the Date of Termination shall be the date on which the dispute
is finally determined, by a final judgment, order or decree of a court of
competent jurisdiction (the time for appeal therefrom having expired and no
appeal having been perfected).
9. COMPENSATION UPON TERMINATION.
(a) In the event that the Bank terminates the employment of the
Executive pursuant to Section 8(a), the Executive shall continue for a period of
two (2) years after the Date of Termination to receive his full compensation, as
provided in Section 4(a), at a rate equal to the Executive's basic compensation
received by the Executive for the twelve (12) months prior to the Date of
Termination. Such payments shall be made by the Bank at the same intervals as
his basic annual compensation and shall continue for such 2-year period,
together with all other unpaid amounts previously accrued or awarded pursuant to
any other provision of this Agreement, provided, however, that the Bank's
obligations to make payments hereunder shall be reduced by the amount the
Executive receives in compensation and cash benefits from any other employer or
any person to or for whom Executive is providing services as a consultant or
independent contractor, excluding however, compensation received by the
Executive from the independent practice of law.
(b) If the Executive terminates his employment pursuant to Section 8(a)
or the Bank terminates the Executive's employment for cause, the Bank shall pay
the Executive his (i) basic annual salary through the Date of Termination at the
rate in effect at the time Notice of Termination is given; and (ii) all other
unpaid amounts previously accrued or awarded pursuant to any other provision of
this Agreement.
(c) If the Executive is terminated due to a Change in Control, the
Executive shall continue for a period of three (3) years after the Date of
Termination to receive his full compensation as provided in Section 4(a) at a
rate equal to the Executive's basic compensation received for the twelve (12)
months prior to the Date of Termination.
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(d) All payments due under this Section 9 shall survive the Executive's
death and shall be payable thereafter to the Executive's spouse or his estate,
as the case may be, in accordance with this Agreement, provided that the Bank
reserves the right, in its sole discretion, to make such payments in one lump
sum discounted to present value, rather than in periodic payments as required
above.
10. NON-SOLICITATION COVENANTS OF EXECUTIVE. For purposes of this
Section 10, the term "Employer" includes the Bank and any direct or indirect
parent or subsidiary thereof.
(a) If this Agreement is terminated by the Executive pursuant to
Section 8(a) or is terminated by the Employer for cause, the Executive shall
not, directly or indirectly, on his own behalf or on behalf of any other person,
corporation or other business entity, for a period of one (1) year from the Date
of Termination, solicit business (for products or services similar to those
under active development, or provided by, the Bank prior to the termination of
the Executive's employment hereunder) from any person, firm, company or other
business entity that is doing business with, is a customer or account of, or
that has been solicited within six (6) months prior to the Date of Termination
of the Executive's employment hereunder by or is within a fifty (50) mile radius
of the city limits of Michigan City, Indiana.
(b) Except as shall be required in the course of his employment
hereunder, during the term of the Executive's employment hereunder and
thereafter, the Executive shall keep secret and shall not, directly or
indirectly, without the prior written consent of the Employer:
(i) Divulge or communicate to any third person or entity, or use
for the benefit of the Executive or any third person or
entity, any trade secrets, or any trade knowledge, formulae,
processes, programs, methods or other information relating to
the operation of the business of the Employer or which were
originated in connection therewith and any and all privileged,
proprietary or confidential information relating to the
business, planning or research activities of the Employer or
any of its clients, customers, consultants or licensees; or
(ii) Retain for the benefit of the Executive or any third person or
entity any document or paper used or owned by the Employer
which comes into the Executive's possession in the course of
her employment with the Employer, or make or cause to be made
any copy, abstract or summary thereof.
(c) Because the services to the Employer of the Executive are unique
and extraordinary and the Employer does not have an adequate remedy at law to
protect its business from the Executive's competition or its interests in its
trade secrets, privileged, proprietary and confidential information and similar
commercial assets, the Employer shall be entitled to injunctive relief, in
addition to such other remedies and relief that would, in the event of a breach
of the provisions of this Section 10, be available to the Employer. In the event
of such a breach, in addition to any other remedies, the Employer shall be
entitled to receive from the Executive payment of, or reimbursement for, the
Employer's reasonable attorneys' fees and disbursements
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incurred in enforcing any such provision. In the event of a breach of this
Agreement by the Employer, in addition to any other remedies, the Executive
shall be entitled to recover from the Employer payment of or reimbursement for,
the Executive's reasonable attorneys' fees and disbursements incurred in
enforcing the Agreement if the Executive is successful on the merits of any
action for enforcement.
(d) If the Employee does not comply with the provisions of this Section
10, the one (1) year period of non-solicitation provided herein shall be tolled
and deemed not to run during any period(s) of non-compliance, the intention of
the parties being to provide for one (1) full year of non-solicitation by the
Employee after the termination or expiration of this Agreement.
(e) The provisions of this Section 10 shall survive any termination
of this Agreement.
11. NOTICES. All communications, notices and elections pursuant to
Sections 9 and 10, and all other notices, requests, consents or demands given
under this Agreement shall be in writing and shall be deemed to have been duly
given when delivered to, or mailed by prepaid registered or certified mail
addressed to the party for whom intended as follows, or to such other address as
may be furnished by such party in the manner provided herein:
If to the Executive: Xxxxxxxx X. Xxxxx
000 Xxx Xxxxx
XxXxxxx, Xxxxxxx 00000
If to the Bank: Horizon Bank, N.A.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxx 00000
Attention: President
12. GOVERNING LAW. This Agreement has been executed and delivered in
the State of Indiana and shall be construed in accordance with and governed by
the laws of the State of Indiana, without giving effect to any conflicts of laws
rules.
13. ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding of the parties hereto with respect to its subject matter, merges
and supersedes all prior and contemporaneous understandings with respect to its
subject matter, and may not be waived or modified, in whole or in part, except
by a writing signed by each of the parties hereto. No waiver of any provision of
this Agreement in any instance shall be deemed to be a waiver of the same or any
other provision in any other instance.
14. CONSTRUCTION. Headings contained in this Agreement are for
convenience of reference only and shall not be used in the interpretation of
this Agreement. References herein to Sections are to the sections of this
Agreement. As used herein, the singular includes the plural and the masculine,
feminine and neuter gender each includes the others where the context so
indicates.
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15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon,
enforceable against, and inure to the benefit of, the parties hereto and their
respective heirs, successors and assigns, and nothing herein is intended to
confer any right, remedy or benefit upon any other person. The rights, duties
and obligations of the Executive hereunder may not be assigned. This Agreement
may not be assigned by the Bank or IMS without the prior written consent of the
Executive, which consent shall not be unreasonably withheld.
16. SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, this Agreement
shall be interpreted and enforceable as if such provision were severed or
limited or payment reduced, but only to the extent necessary to render such
provision and this Agreement enforceable.
17. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first set forth above, but effective as of
____________________, 1999.
EXECUTIVE
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Xxxxxxxx X. Xxxxx
ATTEST: (SEAL) HORIZON BANK, N.A.
By: By:
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Printed: Printed: Xxxxx X. Xxxxxx
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Title: Title: President and Chief Executive Officer
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ATTEST: (SEAL) IMS INVESTMENT MANAGEMENT, N.A.
By:
BY:
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Printed: Printed: Xxxxxx X. Xxxxxxx
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Title: Title: Chairman
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SCHEDULE A
TO
EMPLOYMENT AGREEMENT
BETWEEN HORIZON BANK, IMS
AND XXXXXXXX X. XXXXX
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DATED _______________, 1999
Section 4(b)
BONUS COMPENSATION.
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Within ____ (___) days following each June 30 and December 31,
commencing June 30, 2000, the Bank shall pay to the Executive a lump sum cash
bonus equal to:
25% of the net annual growth in gross fee income for IMS
calculated semiannually with the amount of growth in fee
income to be calculated from a base of IMS' total fee income
at December 31, 1999. The amount of growth in fee income will
not take into account any fees earned or other revenues
generated from any assets originally delivered to IMS from the
Executive or the Corporation (as defined below) and in no
event will the Executive receive a bonus based upon those
assets or any revenue, now or hereafter, generated therefrom.
The Executive shall not be eligible for any other bonus
program offered to Employees by the Bank or IMS.
ADJUSTMENTS TO BONUS AND OTHER COMPENSATION
The Executive has entered into a Purchase and Sale Agreement and Plan
of Reorganization (the "Purchase Agreement") whereby the Executive has sold to
Horizon all of the assets of Financial Planning and Management Corporation (the
"Corporation"). As part of such Agreement, the Executive has guaranteed that the
assets of the Corporation sold to Horizon shall produce gross revenue to IMS not
less than $150,000 per annum from the date of purchase, for a period of five (5)
years. In the event that such amount is not generated in any year, the bonus to
be paid to Executive under this Agreement shall be reduced by the amount of such
deficiency. To the extent bonus income for such year is insufficient to cover
any shortfall, the Executive further agrees that such deficiency may carry
forward to reduce future bonuses, or at the Bank's discretion, annual base
salary under Section 4(a) may be reduced or, where permitted by applicable law,
other benefits or distributions may be reduced.
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