Exhibit 10.1
AMENDMENT NO. 1
Dated as of November 2, 2006
to
Agreement
Between
Xxxxx X. Xxxxxxx
and
Community Bank Shares of Indiana, Inc.
Dated July 26, 2000
Xxxxx X. Xxxxxxx ("Executive") and Community Bank Shares of Indiana, Inc.
("Employer") (collectively, the "Parties") agree as follows:
PRELIMINARY STATEMENT
The Parties entered into a certain Agreement dated July 26, 2000 (the
"Agreement") in connection with the employment of the Executive by the Employer.
The Parties have agreed to amend the Agreement in the manner set forth below in
order to comply with changes in federal income tax laws that have occurred since
the Agreement was entered into and in consideration of Employer's grant of
performance units to Executive under Employer's Performance Units Plan.
NOW THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereby agree as follows:
Section I. Cross-References and Definitions.
(a) Reference is made to the Agreement. Upon and after the effective
date of this Amendment all references to the Agreement in that document, or in
any related document, shall mean the Agreement as amended by this Amendment.
Except as expressly provided in this Amendment, the execution and delivery of
this Amendment does not and will not amend, modify or supplement any provision
of, or constitute a consent to or waiver of any noncompliance with the
provisions of, the Agreement, and, except as specifically provided in this
Amendment, the Agreement shall remain in full force and effect.
(b) Unless otherwise defined herein, terms used in this Amendment
which are defined in the Agreement shall have the same meaning herein as
therein.
Section II. Amendments. The Agreement is hereby amended as of the date
hereof as follows:
(a) by deleting Section 1(c) of the Agreement in its entirety and
substituting in lieu thereof the following:
(c) Change in Control of the Corporation. A "Change in Control of the
Corporation" shall be determined in accordance with the definition of
"a change in the ownership or effective control of the [C]orporation,
or in the ownership of a substantial portion of the assets of the
[C]orporation" under Section 409A, and the regulations and other
guidance promulgated thereunder (collectively, "IRC 409A"), of the
Internal Revenue Code of 1986, as amended (the "Code").
(b) by deleting Section 5(c)(A) of the Agreement in its entirety and
substituting in lieu thereof the following:
(A) pay to the Executive, in equal monthly installments beginning
with the first business day of the month following the Date of
Termination, a cash severance amount equal to the Base Salary which
the Executive would have earned over the remaining term of this
Agreement as of his Date of Termination; provided, however, that if
said payments constitute nonqualified deferred compensation pursuant
to IRC 409A and if the Executive is a "specified employee" as that
term is defined under Code Section 409A(a)(2)(B), the aggregate
amount of the first seven installments shall be paid on the first
business day of the seventh month following the Date of Termination,
with the remaining installment payments to be made on the first
business day of each succeeding month; and
(c) by deleting Section 6(A) of the Agreement in its entirety and
substituting in lieu thereof the following:
(A) immediately pay to the Executive, in a single lump sum payment, a
cash amount equal to three (3) times the Executive's Base Salary as
of the date of the Change in Control of the Corporation; provided,
however, that if said payment constitutes nonqualified deferred
compensation pursuant to IRC 409A and if the Executive is a
"specified employee" as that term is defined under Code Section
409A(a)(2)(B), the lump sum payment shall be made on the first
business day of the seventh month following the date of the Change in
Control of the Corporation; and
(d) by adding the following sentence to the end of Section 8(b) of
the Agreement:
For the sake of clarification, in the event of a Change in
Control of the Corporation, the covenants described above in
this Section 8(b) will not apply to the Executive regardless of
whether or not the Executive voluntarily resigned or was
terminated and regardless of whether or not the Executive is
entitled to the lump sum cash payment described in Section
6(A).
Section III. Governing Law. This Amendment shall be construed in
accordance with, and governed by, the laws of the State of Indiana.
Section IV. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and shall be binding
upon all parties and their respective successors and assigns and all of which
taken together shall constitute one and the same agreement.
Section V. Binding Effect; Benefit. This Amendment shall be binding on,
and inure to the benefit of, the parties hereto, and their respective heirs,
successors, legal representatives and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment, or
have caused this Amendment to be executed by their duly authorized officers or
agents, all as of the day and year first above written.
"Executive"
Date Signed: November 2, 2006 /s/ Xxxxx X. Xxxxxxx
---------------- --------------------
Xxxxx X. Xxxxxxx
COMMUNITY BANK SHARES OF INDIANA, INC.
("Employer")
Date Signed: November 2, 2006 By: /s/ Xxxxxxx X. Xxxx
-------------------
Xxxxxxx X. Xxxx
Chairman of the Board of Directors
