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EXHIBIT 10(a)(1)
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of April 16, 1998, by and between XXXXXXXXXXX
X. XXXXXX III, hereinafter referred to as "Executive", and lst SOURCE
CORPORATION, an Indiana corporation, hereinafter referred to as "Employer,"
WITNESSETH; That
WHEREAS, Executive is currently employed as the President of Employer
and Employer's subsidiary, lst Source Bank, hereinafter referred to as "Bank,"
pursuant to the terms of an Employment Agreement between Employer and Executive
dated as of January 1, 1992, hereinafter referred to as the "Prior Agreement";
and
WHEREAS, Employer desires to assure the continued service of
Executive, and Executive is willing to provide such service on the terms and
conditions specified herein.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained in this Agreement, Employer and Executive
hereby agree as follows:
1. Employment Position. The parties agree that the employment of
Executive by Employer shall continue for the term referred to in Section 2.
Employer agrees to continue the employment of Executive in a senior officer
position with the titles of Chairman of the Board, President and Chief Executive
Officer of Employer and Chairman of the Board and Chief Executive Officer of
Bank, and agrees that Executive will serve as a director of both Employer and
Bank.
Executive shall devote his full time during business hours to the
performance of his duties hereunder and shall at all times use his best effort
to promote the best interests of Employer. Executive shall report to the Board
of Directors of Employer and the Board of Directors of Bank. The assignments of
Executive initially shall include:
(a) full management responsibility for all operating divisions of
Employer and its subsidiaries;
(b) such additional and specific duties as may be reasonably assigned
to Executive by either the Board of Directors or Executive Committee of
Employer.
Employer also agrees to provide to Executive during the term of this
Agreement an adequate staff, together with such facilities and secretarial
support consistent
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with a senior employment position to permit the performance by Executive of the
duties assigned to him.
For the purpose of this Agreement, the Board of Directors of Employer
is sometimes referred to herein as "Board."
2. Term. The term of this Agreement shall be from the date hereof
until December 31, 2003, unless terminated sooner in accordance with Section 5
or Section 6 hereof, provided, however, that the term shall be automatically
extended for an additional year on January 1, 1999 and on January 1 of each year
thereafter, unless either party hereto gives written notice of an intention not
to extend this Agreement on or before September 30 of the preceding year, in
which case no further automatic extension shall occur and the term of this
Agreement shall end on December 31, five (5) years subsequent to the date of the
last automatic extension.
3. Compensation and Benefits.
(a) Base Salary. Executive shall be paid a Base Salary of not less
than Four Hundred Fifty Thousand Dollars ($450,000) per annum initially,
increasing to Five Hundred Thousand Dollars ($500,000) per annum effective
March 1, 1999, with increases effective on January 1 of each year
thereafter as may be determined by Employer, but not less than five per
cent (5%) in excess of the Base Salary paid during the previous year.
(b) Incentive Compensation. In addition to amounts paid to Executive
as salary and for other benefits, Executive will participate on a "phantom"
basis in Employer's Executive Incentive Plan at a minimum "partnership"
rate of 25% of base salary. All amounts awarded will be received and earned
as if awarded under the plan except that Executive may elect to receive
cash compensation in lieu of stock.
(c) Benefit Plans. During the term of this agreement, Executive shall
be entitled to participate, at a level commensurate with his position, in
all benefit plans Employer presently has or hereafter adopts for its
officers or employees, including (without limitation) pension, profit
sharing, stock option or any group life or health insurance,
hospitalization or other similar plans, any eligibility or waiting periods
to be waived to the extent feasible. In plans where stock is awarded and
Executive is not permitted to receive such stock, cash or its equivalent
will be paid to Executive.
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(d) Life Insurance. Employer will purchase $2 million ($2,000.000.00)
of life insurance for the benefit of Executive, his family or estate as he
may direct.
(e) Death Benefit. If Executive should die during the term of this
Agreement, Employer shall pay to his estate or such other beneficiary that
the Executive may designate in writing an additional death benefit equal to
three (3) times the base salary and bonus paid to Executive in the
preceding year.
(f) Additional Benefits. Executive shall be entitled to receive six
(6) weeks vacation each year without reduction of compensation during the
term of this Agreement.
A club membership will be provided by Employer for Executive to at
least one country club and to one club in downtown South Bend, Indiana,
with the initiation fees, monthly fee and appropriate business related
expenses paid by Employer.
One automobile shall be provided by Employer to Executive on a full
lease basis consistent with the title and position of Executive.
4. Disability. In the event that this Agreement is terminated by
reason of Executive's Disability, Executive will continue to receive his Base
Salary for up to one year from the date of the termination and shall also
participate in any other disability compensation programs, including any Salary
Continuance Plan in effect at that time for officers or executives of Employer.
For purposes of this Agreement, "Disability" means Executive's inability by
reason of illness or other physical or mental impairment to perform the duties
required by his employment for any consecutive one hundred eighty (180) day
period, provided that written notice of any termination for Disability shall
have been given by Employer to Executive prior to the full resumption by him of
the performance of such duties.
5. Termination by Employer; Death or Disability.
(a) With Cause. In the event the Board determines that Executive is
guilty of gross dereliction of duty or of fraud or dishonesty in connection
with the performance of his duties under this Agreement, the Board may
terminate this Agreement such termination to be effective thirty (30) days
after the Board gives written notice to Executive setting forth with
specificity the reason or cause for terminating the Agreement. In such
event, the compensation and other benefits provided for in this Agreement
shall
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terminate on the date specified by the Board in the written notice of
termination delivered to Executive.
(b) Without Cause. If Employer shall discharge Executive from his
employment hereunder for any reason other than one set forth in Section
5(a), or if it shall be determined by a court of competent jurisdiction
that the discharge under Section 5(a) was not justified, or if Employer
violates the provisions of this Agreement in a material manner, Executive
shall have the right to terminate his obligations and duties hereunder, but
the rights of Executive to receive the compensation provided for in Section
3 shall continue nevertheless to be fully in effect for the remaining term
of this Agreement in the same manner as would have been payable absent such
termination. Notwithstanding the foregoing Employer shall have the right at
any time after the termination contemplated by this Section 5(b) to pay
Executive in a lump sum the then present value of the amount payable to
Executive discounted at the then current savings rate for Bank under this
Section (b).
(c) Death or Disability. This Agreement shall terminate in the event
of the death or Disability of Executive. In such event, Executive, his
estate or designee shall be entitled to the death or Disability benefits
provided in Sections 3(e) and 4 of this Agreement.
6. Termination By Executive. Executive may, at any time upon written
notice to Employer, immediately terminate his employment for Good Reason. For
purposes of this Agreement, "Good Reason" shall mean any adverse change in
Executive's status or position as Chairman of the Board, President and Chief
Executive Officer of Employer or as Chairman of the Board and Chief Executive
Officer of Bank or as a director of either including, without limitation, as a
result of a material diminution of his duties or responsibilities or the
assignment to him of duties or responsibilities which, in his reasonable
judgment, are inconsistent with such status or positions, or any removal of
Executive from, or any failure to reappoint or reelect him to, any such position
(except in connection with the termination of his employment pursuant to Section
5(a) or 5(c) or by him for other than Good Reason), or any attempt to require
Executive to relocate outside of the metropolitan area of his current residence.
(a) If such termination does not follow a Change of Control of
Employer or Bank, Executive shall continue to receive his Base Salary as
then in effect for a period of twelve (12) months after the effective date
of such termination, in the same manner as such Base Salary would have
become payable pursuant to this Agreement absent such termination.
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(b) If such termination occurs within one (1) year after a Change of
Control of Employer or Bank, as severance pay and in lieu of any further
compensation for periods subsequent to the effective date of such
termination, Executive shall receive an amount in cash equal to 2.99 times
his "annualized includable compensation for the base period" (as defined in
Section 280G(d)(1) of the Internal Revenue Code of 1986, as amended (the
"Code")).
(c) Each of the events specified in the following clauses (i) through
(iii) of this Section 6(c) shall be deemed a "Change in Control": (i) any
third person, including a "group" within the meaning of Section 13(d)(3) of
the Securities Exchange Act of 1934, shall become the beneficial owner of
20% or more of the then outstanding shares of common stock of Employer or
the combined voting power of the then outstanding voting securities of
Employer entitled to vote for the election of the Board of Directors of
Employer (ii) as a result of, or in connection with, any cash tender offer,
exchange offer, merger or other business combination, sale of assets or
contested election, or combination of the foregoing, the persons who were
directors of Employer shall cease to constitute a majority of such Board of
Directors or (iii) the shareholders of Employer shall approve an agreement
providing a sale or other disposition of all or substantially all the
assets of Employer.
7. Assignment. This Agreement is a personal contract, and the rights
and interest of Executive hereunder may not be sold, transferred, assigned,
pledged or hypothecated. Except as otherwise may be herein expressly provided,
this Agreement shall inure to the benefit of and be binding upon Employer and
its successors and assigns.
8. Amendment. This Agreement may be amended only by a written
instrument signed by the parties hereto after approval by either the Board or
Executive Committee of Employer.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana.
10. Fees and Expenses. If a dispute arises regarding the
interpretation or enforcement of this Agreement and Executive 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 Executive in 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 fullest extent permitted by
law.
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11. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in a writing signed by the parties hereto. No waiver by any 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 waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. This Agreement supersedes the Prior
Agreement in its entirety.
12. Restrictive Covenants. In order to induce Employer to enter into
this Agreement, Executive hereby agrees as follows:
(a) While Executive is employed by Employer and for a period of
twenty-four (24) months after the effective date of termination of such
employment for reasons other than those set forth in Section 5(b) of this
Agreement, Executive 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 with its prior written consent, or use
any such trade secret or confidential information directly or indirectly
for Executive's own benefit or for the benefit of any person, firm or
corporation other than Employer, as such trade secrets and confidential
information are confidential and shall at all times remain the property of
Employer.
(b) For a period of twenty-four (24) months after the effective date
of termination of Executive's employment hereunder for reasons other than
those set forth in Section 5(b) of this Agreement, Executive shall not,
directly or indirectly, 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 within St.
Xxxxxx, Elkhart, Xxxxxxxx or LaPorte Counties in the State of Indiana, or
assist any actual or potential competitor of Employer to provide banking or
bank-related services to, or solicit the banking or bank-related business
of, any such customer in any such area, and Executive 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 Executive's employment by Employer
within such area; provided, however, that Executive may own not more than
five percent of the voting securities of
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any entity providing banking or bank-related services within such area if
the voting securities of such entity are traded on a national securities
exchange or quoted on a national interdealer quotation system.
(c) Executive acknowledges that any violation of this Section 12 would
cause irreparable harm to Employer, that damages for such harm would be
incapable of precise measurement and that, accordingly, Employer would not
have an adequate remedy at law to redress the harm caused by such
violation. Therefore, Executive agrees that, in addition to any other
remedy, Employer shall be entitled to immediate (i.e., without prior
notice) preliminary and final injunctive relief to enjoin and restrain any
violation of this Section 12.
If Executive's employment is terminated during the Term of this
Agreement for reasons set forth in Section 5(b) of this Agreement, Executive
shall have no obligations to Employer with respect to trade secrets,
confidential information or noncompetition under this Section 12.
13. Certain Additional Payments by Employer.
(a) In the event that Section 280G of the Code is determined to apply
to the payments to be made by Employer to Executive under this Agreement or
other compensation or benefit programs, and in the event any excise tax
("Excise Tax") that may be imposed by Section 4999 of the Code become
payable by Executive because of any of the payments made to Executive under
this Agreement or otherwise, Employer will pay to Executive an additional
amount ("Gross-up Payment") at least 60 days prior to the due date for
payment of the Excise Tax. The Gross-up Payment shall be in an amount such
that, after payment by Executive of all taxes (including, without
limitation, all income and employment tax and Excise Tax and treating as a
tax the disallowance of any deduction of Executive by virtue of the
inclusion of the Gross-up Payment in Executive's adjusted gross income) and
interest and penalties with respect to such taxes imposed upon the Gross-up
Payment, Executive retains an amount equal to the Excise Tax. Employer
shall notify Executive of its determination of the amount of payments under
this Agreement subject to the Excise Tax (which determination shall be made
by an accounting firm selected by Employer) and shall provide Executive
with a receipt for the Excise Tax paid. Executive shall report the amount
indicated in Employer's notice as the amount subject to the Excise Tax on
Executive's Federal income tax return.
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(b) If, for any reason, the Internal Revenue Service or any other
taxing authority proposes an adjustment to the amount of Excise Tax due
with respect to any payments or with respect to any additional amounts
received by Executive pursuant to this Agreement, Executive will notify
Employer immediately of such proposed adjustment and shall give Employer
the right to contest such proposed adjustment on Executive's behalf;
provided, however, that Executive may pay such claim if Employer does not
take any action prior to the time such payment is due. Employer shall bear
and pay directly all costs related to or associated with any contest,
regardless of outcome, and shall have complete control over such contest as
it relates to the Excise Tax, including whether such contest shall be by
way of non-payment of the Excise Tax, payment of the Excise Tax under
protest, or payment of the Excise Tax accompanied by a claim for a refund.
Employer shall pay to Executive (i) an amount equal to the Excise Tax
required to be paid to the Internal Revenue Service by Executive as a
result of the outcome of any contest, any penalties or interest thereon,
and (ii) a Gross-up Payment computed in the same manner and subject t the
same adjustments as other Gross-up Payments previously described. Payment
by Employer of an amount equal to the Excise tax and Gross-up Payment shall
be made to Executive in advance of the due date for payment of Excise
Taxes.
(c) In the event that the amount of any additional payments made
pursuant to this Section 13 exceeds the amount determined to have been due,
the excess additional amounts made shall constitute a loan by Employer to
Executive payable within 30 days after receipt by Executive of the refund
from the Internal Revenue Service together with any interest received.
14. No Duty to Mitigate. Executive is not required to mitigate the
amount of salary or benefits payable pursuant to this Agreement upon termination
of his employment by seeking other employment or otherwise, nor shall any amount
provided to be paid by Employer pursuant to this Agreement upon termination of
Executive's employment be reduced by any compensation earned by Employee as a
result of employment by another employer that is not in violation of Executive's
obligations under Section 12.
15. Severability. 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.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
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17. Resolution of Disputes. Employer agrees to pay promptly as
incurred, to the full extent permitted by law, all legal fees and expenses which
Executive may reasonably incur as a result of any contest, regardless of
outcome, by Employer, Executive or others of the validity of enforceability of,
or liability under, any provision of this Agreement or any guarantee of
performance (including as a result of any contest by Executive concerning the
amount of any payment pursuant to this Agreement).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
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Xxxxxxxxxxx X. Xxxxxx, III
lst SOURCE CORPORATION, an Indiana
corporation
By:
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Xxxxxx X. Xxxxxxx, Chairman of the
Executive Compensation Committee
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