Exhibit 10.5
Employment Agreement, dated July 6, 1989, between Xxxxxxx X.
Xxxxxxx and Xxxxxxx Xxxxx, Inc.
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Employment Agreement
This Agreement is made this sixth day of July, 1989 by and
between Xxxxxxx Xxxxx, Inc., an Iowa corporation (Company) and
Xxxxxxx X. Xxxxxxx(Employee).
Witnesseth:
Whereas, Employee is currently a key employee of the Company
holding the office of Chairman of the Company and serving on
significant committees of the Company and on boards of directors
and significant committees of subsidiaries of the Company, and
Whereas, the retention of Employee's services for and on
behalf of the Company is of material importance to the
preservation and enhancement of the Company's business, and
Whereas, Employee has agreed to remain in the employ of the
Company in return for the Company's promises stated in this
Agreement.
Now, Therefore, in consideration of the mutual covenants set
forth in this Agreement the Company and Employee agree as follows:
1. Term of Employment. Company hereby employs Employee on
the terms and conditions set forth in this Agreement and Employee
hereby accepts such employment and agrees to render services to
the Company on the terms and conditions set forth in this
Agreement. The term of employment shall continue until December
31, 1994 unless sooner terminated as provided in subsequent
paragraphs of this Agreement. During the term of employment
Employee shall perform such executive services for the Company as
may be consistent with his title and from time to time assigned to
him by the Board of Directors of the Company. The services of
Employee shall be performed principally in Des Moines, Iowa.
2. Duties and Offices. Until the annual stockholders meeting
in May 1990, Employee shall hold his present office of Chairman of
the Company and, subject to the rights of the stockholders, shall
be a member of and Chairman of the Board of Directors of Company.
Unless otherwise agreed between Employee and the Company,
Employee while Chairman shall serve on such committees and
subsidiary boards of directors and hold such subsidiary offices as
has been customary for the Chairman of the Company and receive
customary compensation for all such service. From the annual
stockholders meeting in May 1990 until December 31, 1994 Employee
shall hold the office of Vice Chairman of the Company. Unless
otherwise agreed between Employee and the Company, Employee while
Vice Chairman shall, if Employee so desires, serve on subsidiary
boards of directors and on committees on which he now serves or on
which Employee desires to serve or on which the Chairman or the
President then serves and, subject to the rights of the
stockholders, shall be a member of the Board of Directors of the
Company and receive customary compensation for all such service.
While Vice Chairman and a member of the Board of Directors he
shall serve as Chairman of the Executive Committee of the Board of
Directors. While Vice Chairman, Employee may perform consulting
services for outside companies and individuals provided each
engagement is disclosed to the Company and presents no conflict of
interest with the Company. The Company recognizes that the duties
of Vice Chairman will not require as much time commitment as the
duties of Chairman.
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3. Compensation. Employee's base salary through December 31,
1994 shall be not less than the greater of (a) Employee's base
salary for 1989 or (b) the higher of the base salaries in effect
from time to time for C. Xxxxxx Xxxxxxx or X. X. Xxxxxxx.
Employee's base salary shall be increased commensurate with
general increases in the base salaries of other senior executives.
The base salary may be increased from time to time by the Board
of Directors. In addition to base salary, Employee shall be
entitled to participate in bonus, stock option, pension, profit
sharing and other programs available to other senior executives
and shall be entitled to other benefits, expense reimbursement and
allowances now or in the future available to other senior
executives, all on a basis not less favorable than the best
available to C. Xxxxxx Xxxxxxx or X. X. Xxxxxxx.
4. Retirement. Employee shall retire on December 31, 1994.
Employee may retire earlier if Employee so desires. Upon
retirement, the Company shall pay Employee $50,000 as a lump sum
retirement benefit. In addition, upon retirement, the Company
shall pay Employee as an additional lump sum retirement benefit
the amount, if any, by which $160,000 multiplied by Employee's
years (or fractional years) of service from January 1, 1990,
through the date of retirement exceeds the amount of base salary
and bonuses paid to Employee for such period. After retirement,
the Company shall make an office (with reasonable secretarial
help) available for use by Employee during his lifetime; however,
this obligation shall cease at such time as there is a change in
control of the Company as defined in Section 280G of the Internal
Revenue Code. After retirement Employee may serve as a member of
the boards of directors of subsidiary banks as Employee desires
and, subject to the rights of the stockholders, shall, if Employee
desires, be a member of the Board of Directors of the Company and
shall receive customary compensation for all such service.
5. Supplemental Retirement Income. Commencing with
Employee's retirement, the Company shall pay to Employee $50,000
per year in equal monthly installments, subject to adjustment as
provided below. If Employee dies, such payments shall continue to
Employee's spouse. Such payments shall continue from the date of
commencement until December 31, 2004, or, if earlier, the date on
which both Employee and his spouse are deceased. The amount of
such payments shall be adjusted as of the commencement date of the
payments and as of each fifth anniversary of the commencement date
to reflect increases in the Consumers Price Index (or other
appropriate index) which have occurred since the date of this
Agreement, but in no event shall the amount of increase due to
such adjustment exceed one-half of the amount of such payments
prior to the adjustment. (For example, if payments commence on
January 1, 1995, and if the Consumer Price Index in December 1994
is 110% of the Consumer Price Index on the date of this Agreement
and in December 1999 is 120% of the Consumer Price Index on the
date of this Agreement, then the amount of such payments would be
$55,000 per year for 1995 through 1999 and $60,000 per year for
2000 through 2004).
6. Death Before Retirement. If Employee dies before
retirement and is survived by his spouse, the payments set forth
in paragraph 5 shall be made to his spouse commencing upon
Employee's death but not beyond his spouse's death, and his spouse
shall receive the benefits provided in paragraphs 13 and 15, and
shall receive the benefits provided in paragraph 4 as though
Employee had retired upon his date of death.
7. Disability. In the event Employee becomes permanently
disabled prior to retirement, Employee shall retire upon the date
of determination of permanent disability and shall receive the
benefits provided in paragraphs 4, 5, 12, 13 and 15.
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Employee shall be deemed permanently disabled if Employee has been
absent from his duties for three consecutive months and a licensed
physician chosen by the Company determines that Employee has a
physical or mental condition which renders him incapable of
performing his usual and customary employment with the Company.
In the event of temporary disability while employed, Employee
shall receive disability benefits pursuant to disability plans
applicable to other senior executives.
8. Termination for Just Cause by Company. The Board of
Directors of the Company shall have the right to terminate
Employee's employment for just cause. Upon termination for just
cause, Employee shall be deemed to have retired upon the date of
termination and shall receive the benefits provided in paragraphs
4, 5, 12, 13 and 15. Termination for just cause by the Company
shall mean and be limited to termination for (a) personal
dishonesty, breach of fiduciary duty involving personal profit,
conviction of a felony involving moral turpitude, or (b) the
willful and continued failure by Employee to substantially perform
his duties hereunder (other than any such failure resulting from
Employee's incapacity due to physical or mental illness) after
demand for substantial performance is delivered by the Company
that specifically identifies the manner in which the Company
believes Employee has not substantially performed his duties and
that gives Employee a reasonable time to conform his performance
of duties to those required under this Agreement. For purposes of
this paragraph, no act or failure to act on Employee's part shall
be considered "willful" unless done or omitted to be done by him
not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company. After
termination pursuant to this paragraph, Employee shall be entitled
to compete with the Company without limitation, except that
Employee shall make no use of confidential information learned
during his employment with the Company.
9. Termination For Just Cause by Employee. Employee shall
have the right to terminate his employment for just cause.
Commencing upon the effective date of termination for just cause
by the Employee, the Company shall pay Employee in equal monthly
installments until December 31, 1994, the amounts to which
Employee would have been entitled under paragraph 3 if he had
remained employed by the Company under this Agreement, including
participation, or amounts equivalent to participation, in the
Company's qualified pension plan. Commencing January 1, 1995, the
Company shall pay to Employee or his spouse the benefits under
paragraph 4, 5, 12, 13 and 15 as though Employee had retired on
December 31, 1994. If Employee dies prior to December 31, 1994,
he shall be deemed to have died before retirement and the
provisions of paragraph 6 shall apply. Termination for just cause
by Employee shall mean and be limited to termination within three
months following (a) the assignment to Employee of any duties
inconsistent with Employee's positions, duties, responsibilities
or status within the Company in effect on the date of this
Agreement or as provided in paragraph 2, (b) a material change in
Employee's responsibilities, titles or offices as in effect on the
date of this Agreement or as provided in paragraph 2, (c) the
requirement that Employee perform his services principally at a
location other than Des Moines, Iowa, or (d) a material default by
the Company in the performance of its obligations under this
Agreement. After termination pursuant to this paragraph, Employee
shall be entitled to compete with the Company without limitations,
except that Employee shall make no use of confidential information
learned during his employment with the Company.
10. Termination Without Just Cause. The Company shall have
the right to terminate Employee's employment without just cause by
giving Employee six months advance notice of such termination, or
in lieu of such notice, by paying Employee an amount equal to six
months base salary then in effect. In addition, commencing upon
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the effective date of termination, the Company shall pay Employee
in equal monthly installments until December 31, 1994, the amounts
to which Employee would have been entitled under paragraph 3 if he
had remained employed by the Company under this Agreement
including participation, or amounts equivalent to participation,
in the Company's qualified pension plan. Commencing January 1,
1995, the Company shall pay to Employee or his spouse the benefits
under paragraphs 4, 5, 12, 13 and 15 as though Employee had
retired on December 31, 1994. If Employee dies prior to December
31, 1994, he shall be deemed to have died before retirement and
the provisions of paragraph 6 shall apply. After termination
pursuant to this paragraph, Employee shall be entitled to compete
with the Company without limitation, except that Employee shall
make no use of confidential information during his employment with
the Company.
11. Unfunded Agreement. Supplemental retirement benefits to
be provided under this Agreement are unfunded obligations of the
Company. Company shall not be required to segregate any monies
from its general funds, to create any trust, to make any special
deposits or to purchase any policies of insurance with respect to
its obligations under this Agreement.
12. Life Insurance. Until Employee reaches age 70, the
Company shall continue in force the present life insurance policy
on the life of Employee. After Employee reaches age 70, the
Company shall until December 31, 2004, or Employee's death,
contribute $7,500 per year towards life insurance premiums under a
policy on Employee's life to be selected by Employee.
13. Medical Insurance. Until the completion of payment of
the supplemental retirement income pursuant to paragraph 5, the
Company shall pay for Employee's and Employee's spouse medical
insurance under a policy which, when combined with Medicare
benefits, provides coverage not less favorable than now in effect,
subject to requirements of the insuror based upon age.
14. Limitation. In the event of termination for just cause
by Employee pursuant to paragraph 9 or termination without just
cause by the Company pursuant to paragraph 10, if such termination
is contingent upon a change in control as provided in section 28OG
of the Internal Revenue Code, and if the payments provided in
paragraph 15, the second sentence of paragraph 9 or the second
sentence in paragraph 10 would constitute an "excess parachute
payment" as defined in section 28OG of the Internal Revenue Code,
then in lieu of such payments the Company shall pay the Employee
within 30 days after such termination an amount equal to 2.9 times
the average aggregate annual compensation paid to Employee by the
Company and includible in his gross income for federal income tax
purposes during the five calendar years preceding the taxable year
in which change in control occurs. The determination whether
termination is contingent upon a change in control and whether
such payments would constitute an "excess parachute payment" shall
be made jointly by an independent certified public accountant
selected by Employee and the independent certified public
accountants responsible for preparing the Company's federal income
tax return for the year in which such lump sum payment is made.
15. Additional Benefits. If the Company
(a) prior to January 1, 1995, or
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(b) after December 31, 1994 and prior to January 1, 2000,
incident to or in anticipation of an acquisition of control of the
Company as defined in 12 CFR 225.41,
provides or agrees to provide post employment, severance payments
or retirement benefits to C. Xxxxxx Xxxxxxx or X. X. Xxxxxxx other
than payments pursuant to a qualified plan which are more
favorable than those provided under this Agreement, then Employee,
at his option, or his spouse, at her option if Employee is
deceased, may elect to receive payments and benefits pursuant to
the arrangement between the Company and C. Xxxxxx Xxxxxxx or X. X.
Xxxxxxx, including retroactive adjustment in payments and benefits
received by Employee or his spouse prior to the time the Company
made such arrangement. If such arrangement between the Company
and C. Xxxxxx Xxxxxxx or X. X. Xxxxxxx is made on or before
December 31, 1994, the Employee or his spouse may elect to receive
payments and benefits fully commensurate with such arrangement.
If such arrangement between the Company and C. Xxxxxx Xxxxxxx or
X. X. Xxxxxxx is made after December 31, 1994, then Employee or
his spouse may elect to receive payments and benefits partially
adjusted to be commensurate with such arrangement; if such
arrangement is made during 1995 then the payments and benefits
shall be 100% adjusted; during 1996, 80% adjusted; during 1997,
60% adjusted; during 1998, 40% adjusted, during 1999, 20%
adjusted. If any determination under this paragraph requires
determination of actuarial equivalency, such determination shall
be made jointly by an independent certified public accountant
selected by Employee or his spouse if Employee is then deceased
and the independent certified public accountant responsible for
preparing the Company's federal income tax return. As used in
this paragraph, "the Company" shall include any entity providing
payments or benefits in connection with any such employment,
severance or retirement.
For Example: If, incident to the acquisition of control, the
Company during 1997 agrees with C. Xxxxxx Xxxxxxx to pay him a
lump sum retirement benefit of $100,000 and the amount received by
Employee upon his retirement on December 31, 1994, under paragraph
4 was $75,000, then the Company in 1997 would pay Employee 60% of
$25,000, or $15,000 (subject to decrease by the estimators to
reflect inflation from 1994 to 1997 and subject to increase by the
estimators to reflect the time value of money from 1994 to 1997).
If the Company during 1997 agreed with C. Xxxxxx Xxxxxxx to pay
him supplemental retirement income of $60,000 per year until age
85, then the Company would (a) continue payments to Employee under
paragraph 5 of this Agreement until Employee reaches age 85, (b)
beginning in 1997 increase such payments from $50,000 to $56,000
(60% of the difference between $60,000 and $50,000), and (c) pay
Employee in 1997 $18,000 (subject to adjustment for inflation and
the time value of money) which is $6,000 for each of the three
years from Employee's retirement date of December 31, 1994 to the
beginning of 1997.
16. General Provisions. Benefits under this Agreement shall
not be subject in any manner to alienation sale, transfer,
assignment, pledge, or encumbrance of any kind unless approved by
the Board of Directors of the Company. Any attempt to alienate,
sell, transfer, assign, pledge, or otherwise encumber any benefit,
whether presently or hereafter payable, shall be void unless so
approved. Except as required by law, no benefit shall in any
manner be subject to garnishment, attachment, execution, or other
legal process, or be liable for or subject to the debts or
liability of Employee or his spouse.
In the event of litigation regarding this Agreement, the
Company shall reimburse Employee or his spouse for all reasonable
attorney fees and expenses incident to such
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litigation, if Employee or his spouse is the prevailing party.
Employee shall not be required to mitigate the amount of any
payment under this Agreement, by seeking other employment or
otherwise. This agreement may not be amended or otherwise
modified without the consent of Employee or, after his death, his
spouse. No waiver of any provision of this Agreement shall be
effective unless in writing signed by the party sought to be
charged with such waiver; the waiver of a provision upon one
occasion shall not constitute the waiver of the same provision on
a different occasion. This Agreement shall be binding upon the
successors and assigns of the Company; a successor of the Company
shall include any entity which succeeds to substantially all the
assets of the Company, whether by merger, purchase or otherwise.
This Agreement or the termination of employment pursuant to
this Agreement shall have no adverse effect upon Employee's
participation or rights under pension, profit sharing, stock,
option or other plan of the Company.
17. Notices. Notices under this Agreement shall be effective
if hand delivered to Employee or to the Chairman (other than
Employee) or Secretary of the Company, or if sent certified mail,
return receipt requested to Employee at his then current place of
residence or to the Chairman (other than Employee) or Secretary at
the principal offices of the Company.
In Witness Whereof, the parties have executed this Agreement
effective the day and year first above written.
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Employee
Xxxxxxx Xxxxx, Inc.
By /s/ C. Xxxxxx Xxxxxxx
C. Xxxxxx Xxxxxxx, President
Approval of Board of Directors
The undersigned, constituting all of the members of the Board
of Directors of Xxxxxxx Xxxxx, Inc., hereby approve the foregoing
Employment Agreement.
/s/ C. Xxxxxx Xxxxxxx
C. Xxxxxx Xxxxxxx
/s/ X. X. Xxxxxxx
X. X. Xxxxxxx
/s/ R. Xxxx Xxxxx
R. Xxxx Xxxxx
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
(signing but abstaining)
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
ATTEST
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