Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), entered into and effective as
of the 1st day of January, 2004 (the "Effective Date"), by and between First
Financial Bank (the "Bank") and Norman L. Lowery (the "Employee").
WHEREAS, the Employee has heretofore been employed by the Bank as its
President and Chief Executive Officer and has performed valuable services for
the Bank; and
WHEREAS, the Board of Directors of the Bank (the "Board") believes it is
in the best interest of the Bank to enter into this Agreement with the Employee
in order to assure continuity of management of the Bank to reinforce and
encourage the continued attention and dedication of the Employee to his assigned
duties; and
WHEREAS, the parties desire by this writing to set forth the continuing
employment relationship between the Bank and the Employee.
NOW, THEREFORE, in consideration of the premises contained herein and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Employee and the Bank agree as follows:
1. Employment. The Employee is employed as the President and Chief
Executive Officer of the Bank. The Employee shall render such administrative and
management services for the Bank as are currently rendered and as are currently
performed by persons situated in a similar executive capacity. The Employee
shall also promote, by entertainment or otherwise, as and to the extent
permitted by law, the business of the Bank. The Employee's other duties shall be
such as the Board may, from time to time, reasonably direct, including normal
duties as an officer of the Bank. During the term of this Agreement, the
Employee shall be nominated and elected to serve as a Director of the Bank or of
any successor to the Bank.
2. Base Compensation. The Bank agrees to pay the Employee during the
term of this Agreement a base salary at the rate of $402,139 per annum, payable
in cash not less frequently than monthly. Such base salary shall be effective
and calculated commencing as of the Effective Date. The Bank may consider and
declare from time to time increases in the base salary it pays the Employee.
Prior to a Change in Control (as hereinafter defined), the Bank may also declare
decreases in the base salary it pays the Employee if the operating results of
the Bank are significantly less favorable than those for the fiscal year ending
December 31, 2001, and the Bank makes similar decreases in the base salary it
pays to other executive officers of the Bank. After a Change in Control, the
Bank shall consider and declare salary increases in base salary based upon the
following standards:
Inflation;
Adjustments to the base salaries of other senior management personnel;
Past performance of the Employee; and
The contribution which the Employee makes to the business and profits of
the Bank during the term of this Agreement.
3. Bonuses. The Employee shall participate in any year end bonus
granted to other employees by the Board. The Employee shall further participate
in an equitable manner with all other senior management employees of the Bank in
any discretionary bonuses that the Board may award from time to time to the
Bank's senior management employees. No other compensation provided for in this
Agreement shall be deemed a substitute for the Employee's right to participate
in such discretionary bonuses.
4. Benefits.
(a) Participation in Retirement, Medical and Other Benefit Plans.
During the term of this Agreement, the Employee shall be eligible to
participate in the following benefit plans; group
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hospitalization, disability, health, dental, sick leave, retirement,
supplemental retirement, pension, 401(k), employee stock ownership plan,
and all other present or future qualified and/or nonqualified plans
provided by the Bank generally, or to executive officers of the Bank,
which benefits, taken as a whole, must be at least as favorable as those
in effect on the Effective Date, unless the continued operation of such
plans or changes in the accounting, legal or tax treatment of such plans
would adversely affect the Bank's operating results or financial condition
in a material way, and the Board concludes that modifications to such
plans are necessary to avoid such adverse effects and such modifications
apply consistently to all employees of the Bank participating in the
affected plans. In addition, the Employee shall be eligible to participate
in any fringe benefits which are or may become available to the Bank's
senior management employees, including, for example, any stock option or
incentive compensation (including, but not limited to the First Financial
Corporation 2001 Long-Term Incentive Plan ("LTIP")) or performance-based
plans, any insurance programs (including, but not limited to, any group
and executive life insurance programs), and any other benefits which are
commensurate with the responsibilities and functions to be performed by
the Employee under this Agreement. All the employee benefits referenced in
this Section 4(a) are collectively referred to hereinafter as "Employee
Benefits."
(b) Benefits After Retirement. Upon retirement of the Employee
during the term of this Agreement, the Bank agrees to continue, at no
greater cost to Employee than is generally allocated to all employees,
full coverage for the Employee, his spouse and his children living in his
household under the health, life and disability plans as adopted by the
Bank which shall be no less favorable than those in effect on the
Effective Date of this Agreement. The Bank agrees to continue such health
coverage until both the Employee and his spouse are eligible for coverage
by Medicare. When both the Employee and his spouse become eligible for
Medicare coverage, the Bank agrees to pay for supplemental coverage for
both the Employee and his spouse until the death of the Employee and his
spouse. The Employee shall be entitled to a life insurance policy on his
life in the maximum amount established by the group life insurance plan
from time to time which amount shall be no less than the limit on the
Effective Date of three times his annual salary (subject to a $350,000
maximum), provided at the Bank's cost. The Employee shall also be entitled
to a life insurance policy on his life in the amount established by the
Bank's insurance program for executive officers from time to time. The
Bank shall continue to pay to the Employee the annual premiums, which are
required to keep the life insurance policy in force, on behalf of the
Employee pursuant to the Bank's insurance program for executive officers.
(c) Expenses and Membership. The Employee shall be reimbursed for
all reasonable out-of-pocket business expenses which he shall incur in
connection with his services under this Agreement, upon substantiation of
such expenses in accordance with the policies of the Bank. In addition,
the Employee shall be reimbursed for all reasonable out-of-pocket expenses
incurred by him to satisfy his continuing legal education requirements for
his license to practice law in the State of Indiana. So long as the
Employee is employed by the Bank pursuant to this Agreement, the Employee
shall be entitled to continue his memberships in the American, Indiana and
Terre Haute Bar Associations, the American and Indiana Trial Lawyers
Associations and the Country Club of Terre Haute, and Bank shall continue
to pay or reimburse the Employee for the dues and assessments for such
memberships.
(d) Automobile. So long as the Employee is employed by the Bank
pursuant to this Agreement, the Employee shall be entitled to continue to
use a Bank-owned automobile of commensurate quality and value as that
presently used by him on the same terms and conditions in effect with
respect to such use on the Effective Date of this Agreement. The Bank
shall provide and pay the premiums for full insurance coverage on the
automobile. Such insurance coverage shall be no less than the coverage
provided on the Effective Date of this Agreement. The Bank shall also pay
for the cost of maintenance and repair of the automobile. All benefits
referenced in this Section 4(d) are collectively referred to hereinafter
as "Automobile Benefits."
(e) Vacation, Sick Leave and Disability. The Employee shall be
entitled to thirty (30) days vacation annually and shall be entitled to
the same sick leave and disability leave as other employees of the Bank.
The Employee shall not receive any additional compensation from the
Bank on account of his failure to take a vacation or sick leave, and the
Employee shall not accumulate unused vacation or sick leave from one
fiscal year to the next, except in either case to the extent authorized by
the Board or permitted for other employees of the Bank.
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In addition to the aforesaid paid vacations, the Employee shall be
entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment with the Bank for such additional periods of
time and for such valid and legitimate reasons as the Board may in its
discretion determine and to attend the continuing legal education seminars
contemplated by Section 4(c) hereof. Further, the Board may grant to the
Employee a leave or leaves of absence, with or without pay, at such time
or times and upon such terms and conditions as such Board in its
discretion may determine.
(f) Other Policies. All other matters relating to the employment
of the Employee by the Bank not specifically addressed in this Agreement
shall be subject to the general policies regarding employees of the Bank
as in effect from time to time.
5. Term of Employment. The Bank hereby employs the Employee, and the
Employee hereby accepts such employment under the terms of this Agreement, for
the period commencing on the Effective Date and ending sixty months thereafter
(or such earlier date as is determined in accordance with Section 8).
Additionally, on each annual anniversary date from the Effective Date, the
Employee's term of employment shall be extended for an additional one-year
period beyond the then effective expiration date, provided the Board determines
in a duly adopted resolution that this Agreement shall be extended. Only those
members of the Board who have no personal interest in this Agreement shall
discuss and vote on the approval, subsequent review and extension of this
Agreement. The initial term of this Agreement and all extensions thereof are
hereinafter referred to individually and collectively as the "Term."
6. Covenants.
(a) Loyalty.
(i) During the period of his employment hereunder and except
for illnesses, reasonable vacation periods, and reasonable leaves of
absence, the Employee shall devote all of his full business time,
attention, skill and efforts to the faithful performance of his
duties hereunder; provided, however, from time to time, the Employee
may serve on the Boards of Directors of, and hold any other offices
or positions in, companies or organizations, and may perform legal
services either directly or as a result of an of counsel or
analogous position with a law firm for clients which will not
present any conflict of interest with the Bank or any of its
subsidiaries or affiliates, or unfavorably affect the performance of
Employee's duties pursuant to this Agreement, or will not violate
any applicable statute or regulation. "Full business time" is hereby
defined as that amount of time usually devoted to like companies by
similarly situated executive officers. During the term of his
employment under this Agreement, the Employee shall not engage in
any business or activity contrary to the business affairs or
interests of the Bank, or be gainfully employed in any other
position or job other than as provided above.
(ii) Nothing contained in this Section 6 shall be deemed to
prevent or limit the Employee's right to invest in the capital stock
or other securities of any business dissimilar from that of the
Bank, or, solely as a passive or minority investor, in any business.
(b) Nonsolicitation. The Employee hereby understands and
acknowledges that, by virtue of his position with the Bank, he will have
advantageous familiarity and personal contacts with the Bank's customers,
wherever located, and the business, operations and affairs of the Bank.
Accordingly, while the Employee is employed by the Bank, and at all
locations for a period of one (1) year after termination of the Employee's
employment with the Bank for any reason (whether with or without cause or
whether by the Bank or the Employee) or the expiration of the Term, the
Employee shall not, directly or indirectly, or individually or jointly,
(i) solicit in any manner, seek to obtain or service the business of any
party which is a customer of the Bank at the time of such termination or
any party which was a customer of the Bank during the one (1) year period
immediately preceding such termination, (ii) request or advise any
customers or suppliers of the Bank to terminate, reduce, limit or change
their business or relationship with the Bank, or (iii) induce, request or
attempt to influence any employee of the Bank to terminate his employment
with the Bank.
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For purposes of this Agreement, the term "solicit" means any direct
or indirect communication of any kind whatsoever, regardless of by whom
initiated, which encourages or requests any person or entity, in any
manner, to cease doing business with the Bank.
(c) Noncompetition. During the period of his employment hereunder,
and for a period of two (2) years following the termination hereof, the
Employee shall not, directly or indirectly:
(i) as owner, officer, director, stockholder, investor,
proprietor, organizer or otherwise, engage in the same trade
or business as the Bank, as conducted on the date hereof,
which would conflict with the interests of the Bank or in a
trade or business competitive with that of the Bank, which
would conflict with the interests of the Bank, as conducted on
the date hereof; or
(ii) offer or provide employment (whether such employment is with
the Employee or any other business or enterprise), either on a
full-time or part-time or consulting basis, to any person who
then currently is, or who within one (1) year prior to such
offer or provision of employment has been, a management-level
employee of the Bank. This subsection 6(c)(ii) shall only
apply in the event the Employee voluntarily terminates his
employment with the Bank.
The restrictions contained in this paragraph upon the activities of
the Employee following termination of employment shall be limited to the
following geographic areas (hereinafter referred to as "Restricted
Geographical Area"):
(1) Terre Haute, Indiana; and
(2) The thirty mile radius of Terre Haute, Indiana.
Nothing contained in this Section 6(c) shall prevent the Employee
from engaging in the practice of law within the Restricted Geographical
Area. In addition, nothing contained in this Section 6(c) shall prevent or
limit the Employee's right to invest in the capital stock or other
securities of any business dissimilar from that of the Bank, or, solely as
a passive or minority investor, in any business.
If the Employee does not comply with the provisions of this Section
6, the two (2) year period of non-competition provided herein shall be
tolled and deemed not to run during any period(s) of noncompliance, the
intention of the parties being to provide two (2) full years of
non-competition by the Employee after the termination or expiration of
this Agreement.
(d) Nondisclosure. The term "Confidential Information" as used
herein shall mean any and all customer lists, computer hardware, software
and related material, trade secrets (as defined in I.C. 24-2-3-2),
know-how, skills, knowledge, ideas, knowledge of customer's commercial
requirements, pricing methods, sales and marketing techniques, dealer
relationships and agreements, financial information, intellectual
property, codes, research, development, research and development programs,
processes, documentation, or devices used in or pertaining to the Bank's
business (i) which relate in any way to the Bank's business, products or
processes; or (ii) which are discovered, conceived, developed or reduced
to practice by the Employee, either alone or with others either during the
Term, at the Bank's expense, or on the Bank's premises.
(i) During the course of his services hereunder the Employee
may become knowledgeable about, or become in possession of,
Confidential Information. If such Confidential Information were to
be divulged or become known to any competitor of the Bank or to any
other person outside the employ of the Bank, or if the Employee were
to consent to be employed by any competitor of the Bank or to engage
in competition with the Bank, the Bank would be irreparably harmed.
In addition, the Employee has or may develop relationships with the
Bank's customers which could be used to solicit the business of such
customers away from the Bank. The Bank and the Employee have entered
into this Agreement to guard against such potential harm.
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(ii) The Employee shall not, directly or indirectly, use any
Confidential Information for any purpose other than the benefit of
the Bank or communicate, deliver, exhibit or provide any
Confidential Information to any person, firm, partnership,
corporation, organization or entity, except as required in the
normal course of the Employee's service as a consultant or as an
employee of the Bank. The covenant contained in this Section 6(d)
shall be binding upon the Employee during the Term and following the
termination hereof until either (i) such Confidential Information
becomes obsolete; or (ii) such Confidential Information becomes
generally known in the Bank's trade or industry by means other than
a breach of this covenant.
(iii) The Employee agrees that all Confidential Information
and all records, documents and materials relating to such
Confidential Information, shall be and remain the sole and exclusive
property of the Bank.
(e) Remedies. The Employee agrees that the Bank will suffer
irreparable damage and injury and will not have an adequate remedy at law
in the event of any breach by the Employee of any provision of this
Section 6. Accordingly, in the event the Bank seeks, under law or in
equity, a temporary restraining order, permanent injunction or a decree of
specific performance of the provisions of this Section 6, no bond or other
security shall be required. The Bank shall be entitled to recover from the
Employee, reasonable attorneys' fees and expenses incurred in any action
wherein the Bank successfully enforces the provisions of this Section 6
against the breach or threatened breach of those provisions by the
Employee.
(i) The Employee and the Bank acknowledge and agree that in
the event of termination of this Agreement for any reason
whatsoever, the Employee can obtain other engagements or employment
of a kind and nature similar to that contemplated herein outside the
Restricted Geographical Area and that the issuance of an injunction
to enforce the provisions of this Section 6 will not prevent him
from earning a livelihood.
(ii) The covenants on the part of the Employee contained in
this Section 6 are essential terms and conditions to the Bank
entering into this Agreement, and shall be construed as independent
of any other provision in this Agreement.
(f) Surrender of Records. Upon termination of the Employee's
employment for any reason, the Employee shall immediately surrender to the
Bank any and all computer hardware, software and related materials,
records, notes, documents, forms, manuals, photographs, instructions,
lists, drawings, blueprints, programs, diagrams or other written or
printed material (including any and all copies made at any time
whatsoever) in his possession or control which pertain to the business of
the Bank or its affiliates including any Confidential Information in the
Employee's personal notes, address books, calendars, rolodexes, personal
data assistants, etc.
7. Standards. The Employee shall perform his duties under this
Agreement in accordance with such reasonable standards as the Board may
establish from time to time. The Bank will provide the Employee with the working
facilities and staff commensurate with his position or positions and necessary
or advisable for him to perform his duties.
8. Termination and Termination Pay. Subject to Section 10 hereof, the
Employee's employment hereunder may be terminated under the following
circumstances:
(a) Death. The Employee's employment shall terminate upon his
death during the Term of this Agreement, in which event the Employee's
estate or designated beneficiaries shall be entitled to receive the base
salary, bonuses, vested rights, and Employee Benefits due the Employee
through the last day of the calendar month in which his death occurred.
Any benefits payable under insurance, health, retirement, bonus, incentive
(including, but not limited to, the LTIP), performance or other plans as a
result of the Employee's participation in such plans through such date
shall be paid when due under those plans.
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(b) Disability.
(i) The Bank may terminate the Employee's employment, as a
result of the Employee's Disability, in a manner consistent with the
Bank's and the Employee's rights and obligations under the Americans
with Disabilities Act or other applicable state and federal laws
concerning disability. For the purpose of this Agreement,
"Disability" means a physical or mental condition which
substantially limits the Employee's ability to perform the essential
functions of his position and which results in the Employee becoming
eligible for long-term disability benefits under the Bank's
long-term disability plan.
(ii) During any period that the Employee shall receive
disability benefits and to the extent that the Employee shall be
physically and mentally able to do so, he shall furnish such
information, assistance and documents so as to assist in the
continued ongoing business of the Bank.
(iii) In the event of Employee's termination of employment by
the Bank due to Disability, the Employee shall be entitled to
receive the base salary, bonuses, vested rights, and Employee
Benefits due the Employee through his date of termination. Any
benefits payable under insurance, health, retirement, bonus,
incentive (including, but not limited to, the LTIP), performance or
other plans as a result of Employee's participation in such plans
through such date of termination shall be paid when due under those
plans.
(c) Just Cause. The Board may, by written notice to the Employee,
immediately terminate his employment at any time, for Just Cause. The
Employee shall have no right to receive any base salary, bonuses or other
Employee Benefits, except as provided by law, whatsoever for any period
after his termination for Just Cause. However, the vested rights of the
Employee as of his date of termination shall not be affected. Termination
for "Just Cause" shall mean termination because of:
An intentional act of fraud, embezzlement, theft, or personal
dishonesty; willful misconduct, or breach of fiduciary duty
involving personal profit by the Employee in the course of his
employment or director service. No act or failure to act shall be
deemed to have been intentional or willful if it was due primarily
to an error in judgment or negligence. An act or failure to act
shall be considered intentional or willful if it is not in good
faith and if it is without a reasonable belief that the action or
failure to act is in the best interest of the Bank;
(ii) Intentional wrongful damage by the Employee to the business or
property of the Bank, causing material harm to the Bank;
(iii) Breach by the Employee of any confidentiality or
non-disclosure agreement in effect from time to time with the Bank;
(iv) Gross negligence or insubordination by the Employee in the
performance of his duties;
(v) Removal or permanent prohibition of the Employee from
participating in the conduct of Bank's affairs by an order issued
under Section 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance
Act, 12USC1818(e)(4) and (g)(1).
Notwithstanding the foregoing, in the event of termination for
Just Cause there shall be delivered to the Employee a copy of a resolution
duly adopted by the affirmative vote of not less than a majority of the
entire membership of the Board at a meeting of the Board called and held
for that purpose (after reasonable notice to the Employee and an
opportunity for the Employee, together with the Employee's counsel, to be
heard before the Board), such meeting and the opportunity to be heard to
be held prior to, or as soon as reasonably practicable following,
termination, but in no event later than 60 days following such
termination, finding that in the good faith opinion of the Board the
Employee was guilty of conduct constituting Just Cause and specifying the
particulars thereof in detail. If, following such meeting, the Employee is
reinstated, he shall be entitled to receive the base salary, bonuses, all
Employee Benefits, and all other fringe benefits provided for under this
Agreement for the period following termination and continuing through
reinstatement as though he was never terminated.
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(d) Without Just Cause. The Board may, by written notice to the
Employee, immediately terminate his employment at any time for a reason other
than Just Cause, in which event the Employee shall be entitled to receive the
following compensation and benefits (unless such termination occurs within the
time period set forth in Section 10(a) hereof, in which event the benefits and
compensation provided for in Section 10 shall apply):
(i) the base salary provided pursuant to Section 2 hereof as in
effect on the date of termination, through the Expiration Date
of this Agreement as determined pursuant to Section 5 hereof
(including any renewal or extension of this Agreement) (the
"Expiration Date");
(ii) an amount equal to the bonuses received by or payable to the
Employee in the calendar year prior to the calendar year in
which the Employee is terminated, for each year remaining
through the Expiration Date; and
(iii) at the Employee's election, either:
(A) cash in an amount equal to the cost to the Employee of
obtaining all Employee Benefits (as defined in Section 4(a)) and
health insurance coverage for the Employee, his spouse and child
living in the Employee's household and medicare supplement
insurance, and life insurance (as described in Section 4(b)),
professional and club dues, the cost of Employee's continuing legal
education requirements, all Automobile Benefits (as defined in
Section 4(d)) and other benefits which the Employee would have been
eligible to participate in or receive through the Expiration Date,
based upon the benefit levels substantially equal to those that the
Bank provided for the Employee at the date of termination of
employment; or
(B) continued participation in such benefit plans and
programs listed in subparagraph A above, which the Employee would
have been eligible to participate in or receive through the
Expiration Date, based upon benefit levels substantially equal to
those that the Bank provided for the Employee at the date of
termination, but only to the extent the Employee continues to
qualify for participation therein. In elaboration of, but not in
limitation of, the foregoing, the Employee shall be entitled to
receive, in cash, an amount equal to the cost to the Employee of
obtaining any benefits he would otherwise have been eligible to
receive under the Bank's benefit plans or programs listed in
subparagraph A above had he continued to accrue service (for vesting
and benefit accrual purposes) and compensation under those plans
through the Expiration Date, if he is not permitted to continue to
participate in those plans through the Expiration Date. The Employee
shall also be entitled to receive an amount necessary to provide any
cash payments received under this Section 8(d)(iii)(B) due to his
inability to continue participation in any of the benefit plans or
programs under this Section 8(d)(iii)(B), net of all income and
payroll taxes that would not have been payable by the Employee had
he been able to continue participation in the benefit plan or
program instead of receiving cash in lieu thereof.
Notwithstanding the foregoing, but only to the extent required under
federal banking law, the amount payable under Subsection (d) of this
Section 8 shall be reduced to the extent that on the date of the
Employee's termination of employment, the present value of the benefits
payable under Subsections (d)(i),(ii), and (iii) of this Section 8 exceed
any limitation on severance benefits that is imposed by the Office of the
Comptroller of the Currency (the "OCC") on such benefits.
All amounts payable to the Employee shall be paid, at the option of
the Employee, either (1) in periodic payments through the Expiration Date,
or (2) in one lump sum within ten (10) days of such termination. If
Employee elects periodic payments and he dies prior to the Expiration
Date, those payments will continue to be paid to his estate or designated
beneficiaries, or their successors in interest, through the Expiration
Date.
(e) Voluntary for Good Reason. The Employee may voluntarily terminate
his employment under this Agreement for Good Reason, and the Employee shall
thereupon be entitled to receive the same amount payable under Section 8(d)
hereof, within thirty (30) days following his date of termination. For purposes
of this Agreement, "Good Reason" means the occurrence of any of the following
events, which has not been consented to in advance by
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the Employee in writing (unless such voluntary termination occurs within the
time period set forth in Section 10(b) hereof, in which event the benefits and
compensation provided for in Section 10 shall apply):
(i) the requirement that the Employee move his personal residence;
(ii) a reduction of 10% or more in the Employee's base salary,
unless part of an institution-wide reduction and similar to the reduction
in the base salary of all other executive officers of the Bank;
(iii) the removal of the Employee from participation in any
incentive compensation (including, but not limited to, the LTIP) or
performance-based compensation plans or bonus plans unless the Bank
terminates participation in the plan or plans with respect to all other
executive officers of the Bank;
(iv) the failure by the Bank to continue to provide the Employee
with the base salary, bonuses or benefits provided for under Sections
4(a), (c), (d) and (e) of this Agreement, as the same may be increased
from time to time, or with benefits substantially similar to those
provided to him under those Sections or under any benefit plan or program
in which the Employee now or hereafter becomes eligible to participate, or
the taking of any action by the Bank which would directly or indirectly
reduce any such benefits or deprive the Employee of any such benefit
enjoyed by him, unless part of an institution-wide reduction and applied
similarly to all other executive officers of the Bank;
(v) the assignment to the Employee of duties and responsibilities
materially different from those normally associated with his position as
referenced in Section 1;
(vi) a failure to elect or re-elect the Employee to the Board or a
failure on the part of First Financial Corporation to honor its obligation
to nominate Employee to the Board of Directors of First Financial
Corporation;
(vii) a material diminution or reduction in the Employee's
responsibilities or authority (including reporting responsibilities) in
connection with his employment with the Bank; or
(viii) a material reduction in the secretarial or administrative
support of the Employee.
Notwithstanding the foregoing, but only to the extent required under
federal banking law, the amount payable under Subsection (e) of this
Section 8 shall be reduced to the extent that on the date of the
Employee's termination of employment, the present value of the benefits
payable under Subsections (d)(i), (ii) and (iii) of this Section 8 exceed
any limitation on severance benefits that is imposed by the OCC on such
benefits.
(f) Voluntary Termination by Employee. Subject to Section 10 hereof, the
Employee may voluntarily terminate employment with the Bank during the term of
this Agreement, upon at least ninety (90) days' prior written notice to the
Board of Directors, in which case the Employee shall receive only his base
salary, bonuses, vested rights and benefits up to the date of his termination
(unless such termination occurs pursuant to Section 10(b) hereof, in which event
the benefits, bonuses and base salary provided for in Section 10(a) shall
apply).
(g) Termination or Suspension Under Federal Law.
(i) If the Employee is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Sections 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act
("FDIA") (12 U.S.C. 1818(e)(4) and (g)(1)), all obligations of the Bank
under this Agreement shall terminate, as of the effective date of the
order, but vested rights of the Employee shall not be affected.
(ii) If the Bank is in default (as defined in Section 3(x)(1) of
the FDIA), all obligations under this Agreement shall terminate as of the
date of default; but the vested rights of the Employee shall not be
affected.
(iii) All obligations under this Agreement shall terminate, except
to the extent it is determined that the continuation of this Agreement is
necessary for the continued operation of the Bank; (A) by the OCC or its
designee, at the time that the Federal Deposit Insurance Corporation
("FDIC") enters into an
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agreement to provide assistance to or on behalf of the Bank under the
authority contained in Section 13(c) of FDIA; or (B) by the OCC, or its
designee, at the time that the OCC or its designee approves a supervisory
merger to resolve problems related to operation of the Bank or when the
Bank is determined by the OCC to be in an unsafe or unsound condition.
Such action shall not affect any vested rights of the Employee.
(iv) If a notice served under Section 8(e)(3) or (g)(1) or the FDIA
(12 U.S.C. 1818(e)(3) or (g)(1)) suspends and/or temporarily prohibits the
Employee from participating in the conduct of the Bank's affairs, the
Bank's obligations under this Agreement shall be suspended as of the date
of such service, unless stayed by appropriate proceedings. However, the
vested rights of the Employee as of the date of suspension will not be
affected. If the charges in the notice are dismissed, the Bank may in its
discretion (A) pay the Employee all or part of the compensation withheld
while its contract obligations were suspended, and (B) reinstate (in whole
or in part) any of its obligations which were suspended.
9. No Mitigation. The Employee shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided to the Employee in any subsequent employment.
10. Change in Control.
(a) Change in Control; Involuntary Termination.
(1) Notwithstanding any provision herein to the contrary, if the
Employee's employment under this Agreement is terminated by the Bank,
without the Employee's prior written consent and for a reason other than
Just Cause, in connection with or within twelve (12) months after a Change
in Control, as defined in Section 10(a)(4), the Employee shall be paid the
greater of:
(i) The total amount payable under Section 8(d) hereof; or
(ii) The product of 2.99 times the sum of his base salary in
effect as of the date of the Change in Control plus an
amount equal to the bonuses received by or payable to
the Employee in the calendar year prior to the year in
which the Change in Control occurs; and at the
Employee's election, either:
(A) cash in an amount equal to the cost to the
Employee of obtaining all Employee Benefits (as defined
in Section 4(a)), medicare supplement insurance (as
described in Section 4(b)), professional and club dues,
the cost of Employee's continuing legal education
requirements, all Automobile Benefits (as defined in
Section 4(d)) and other benefits which the Employee
would have been eligible to participate in or receive,
for a period of 3 years, commencing on the date of
termination, or based upon the benefit levels
substantially equal to those that the Bank provided for
the Employee at the date of termination of employment;
or
(B) continued participation in the Bank benefit
plans and programs listed in Section 10(a)(1)(ii)(A)
above, but only to the extent the Employee continues to
qualify for participation therein, for a period of 3
years, commencing on the date of termination based upon
benefit levels substantially equal to those that the
Bank provided for the Employee at the date of
termination. In elaboration of, but not in limitation of
the foregoing, the Employee shall be entitled to
receive, in cash, an amount equal to the cost to the
Employee of obtaining any benefits he would otherwise
have been eligible to receive under the Bank's benefit
plans or programs listed in Section 10(a)(1)(ii)(A)
above had he continued to accrue service (for vesting
and benefit accrual purposes) and compensation under
those plans for a period of three (3) years, commencing
on the date of termination, if he is not permitted to
continue to participate in those plans for the three (3)
year period. The Employee shall also be entitled to
receive under this Section 10(a)(1)(ii)(B) an amount
necessary
23
to provide any cash payments under this Section
10(a)(1)(ii)(B) net of all income and payroll taxes that
would not have been payable by the Employee had he been
able to continue participation in the benefit plan or
program instead of receiving cash in lieu thereof.
All amounts shall be paid in one lump sum within ten (10) days of such
termination, except to the extent that the Bank is required to permit Employee's
continued participation in the Bank benefit plans and programs through the
Expiration Date or the three (3) year period, as the case may be, as permitted
by their terms.
(2) To the extent payments received based on the Employee's
termination within 12 months after a Change in Control are considered
"excess parachute payments" pursuant to the Code Section 280G, the
provisions of "Internal Revenue Code Section 280G Gross-Up" below shall
apply.
(3) Internal Revenue Code Section 280G Gross-Up.
(i) Additional Payment to Account for Excise Taxes. If, as a
result of a Change in Control, the Employee becomes entitled to the
amount payable under Section 10(a) of this Agreement, or under any
other benefit, compensation, or incentive plan (including, but not
limited to, the LTIP) or arrangement of or with the Bank or First
Financial Corporation (collectively, the Total Benefits), and if any
part of the Total Benefits is subject to the Excise Tax under Code
Sections 280G and 4999 (the "Excise Tax"), the Bank or First
Financial Corporation shall pay to the Employee the following
additional amounts, consisting of (A) a payment equal to the Excise
Tax payable by the Employee on the Total Benefits under Code Section
4999 (the "Excise Tax Payment"), and (B) a payment equal to the
amount necessary to provide the Excise Tax Payment net of all
income, payroll and excise taxes. Together, the additional amounts
described in clauses (A) and (B) are referred to herein as the
"Gross-Up Payments."
(ii) Calculating the Excise Tax. Determination of whether any
of the Total Benefits will be subject to the Excise Tax and the
determination of the amount of the Excise Tax shall be made in
accordance with the following:
(A) Determination of Parachute Payments Subject to the
Excise Tax. Any payments or benefits received or to be
received by the Employee in connection with a Change in
Control or the Employee's termination of employment (whether
under the terms of this Agreement or any benefit plan or
arrangement with First Financial Corporation, the Bank, any
person whose actions result in a Change in Control or any
person affiliated with First Financial Corporation, the Bank
or such person) shall be treated as "parachute Payments"
within the meaning of Code Section 280G(b)(2), and all "excess
parachute payments" within the meaning of Code Section
280G(b)(1) shall be treated as subject to the Excise Tax,
unless in the opinion of the nationally recognized certified
public accounting firm, retained by the Bank or First
Financial Corporation as of the date immediately before the
change in Control (the "Accounting Firm"), such payments or
benefits do not constitute, in whole or in part, parachute
payments, or such excess parachute payments represent, in
whole or in part, reasonable compensation for services
actually rendered within the meaning of Code Section
280G(b)(4) or are otherwise not subject to the Excise Tax.
(B) Calculation of Benefits Subject to Excise Tax. The
amount of the Total Benefits that shall be treated as subject
to the Excise Tax shall be equal to the lesser of (1) the
total amount of the Total Benefits reduced by the amount of
such Total Benefits that in the opinion of the Accounting Firm
are not parachute payments, or (2) the amount of excess
parachute payments within the meaning of Code Section
280G(b)(1) (after applying clause (A), above).
(C) Value of Noncash Benefits and Deferred Payment.
The value of any noncash benefits or any deferred payment or
benefit shall be determined by the Accounting Firm in
accordance with the principles of Code Sections 280G(d)(3) and
(4).
24
(iii) Assumed Marginal Income Tax Rate. For purposes of
determining the amount of the Gross-Up Payments, the Employee shall
be deemed to pay federal income taxes at the highest marginal rate
of federal income taxation in the calendar years in which the
Gross-Up Payments are to be made and state and local income taxes at
the highest marginal rate of taxation in the state and locality of
the Employee's residence on the date on which such gross up payments
are to be made, net of the reduction in federal income taxes that
can be obtained from deduction of such state and local taxes
(calculated by assuming that any reduction under Code Section 68 in
the amount of itemized deductions allowable to the Employee applies
first to reduce the amount of such state and local income taxes that
would otherwise be deductible by the Employee, and applicable
federal FICA and Medicare withholding taxes.)
(iv) The Accounting Firm Shall Determine Whether a Gross-Up
Payment is Required. Subject to paragraphs (i) through (iii) above,
all determinations required to be made under paragraphs (i) through
(viii), including whether and when a Gross-Up Payment is required,
the amount of the Gross-Up Payment and the assumptions to be used to
arrive at the determination (collectively, the "Determination"),
shall be made by the Accounting Firm. The Accounting Firm shall
provide detailed supporting calculations both to the Bank or First
Financial Corporation and to the Employee within 15 business days
after the Determination has been made, or such earlier time as is
requested by the Bank, First Financial Corporation or the Employee.
(v) Fees and Expenses of the Accounting Firm and Agreement
with the Accounting Firm. All fees and expenses of the Accounting
Firm shall be borne solely by the Bank or First Financial
Corporation.
(vi) Accounting Firm's Opinion. If the Accounting Firm
determines that no Excise Tax is payable by the Employee, the
Accounting Firm shall furnish the Employee with a written opinion to
that effect, and to the effect that failure to report Excise Tax, if
any, on the Employee's applicable federal income tax return will not
result in the imposition of a negligence or similar penalty.
(vii) Accounting Firm's Determination is Binding. The
Determination by the Accounting Firm shall be binding on the Bank,
First Financial Corporation and the Employee.
(viii) Underpayment and Overpayment. Because of the
uncertainty in determining whether any of the Total Benefits will be
subject to the Excise Tax at the time of the Determination, it is
possible that Gross-Up Payments that should have been made will not
have been made by the Bank or First Financial Corporation
("Underpayment"), or that Gross-Up Payments will be made that should
not have been made by the Bank or First Financial Corporation
("Overpayment").
If, after a Determination by the Accounting Firm, the Employee
is required to make a payment of additional Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that
has occurred. The Underpayment (together with any interest and
penalties imposed by the Internal Revenue Service shall be paid
promptly by the Bank or First Financial Corporation to or for the
benefit of the Employee.
If the amount of the Gross-Up Payments exceeds the amount
necessary to reimburse the Employee for his Excise Tax, the
Accounting Firm shall determine the amount of the Overpayment that
has been made. The Overpayment shall be repaid promptly by the
Employee. Provided that his expenses are reimbursed by the Bank or
First Financial Corporation, the Employee shall cooperate with any
reasonable requests by the Bank or First Financial Corporation in
any contests or disputes with the Internal Revenue Service relating
to the Excise Tax.
(ix) Accounting Firm Conflict of Interest. If the Accounting
Firm is serving as accountant or auditor for the individual, entity
or group effecting the Change in Control, the Employee may appoint
another nationally recognized certified public accounting firm to
make the Determinations required hereunder (in which case the term
"Accounting Firm" as used herein shall be deemed to refer to the
accounting firm appointed by the Employee under this paragraph). The
25
Bank or First Financial Corporation shall pay all fees and expenses
of the Accounting Firm appointed by the Employee.
(4) "Change in Control" shall be deemed to have occurred if:
(i) During any period of two consecutive years, individuals
who constitute the Bank's or First Financial Corporation's Board of
Directors at the beginning of the two-year period cease for any
reason to constitute at least a majority thereof; provided, however,
that - for purposes of this Subsection 10(4)(i) - each Director who,
by a vote of at least two-thirds (2/3) of the Directors who were
Directors at the beginning of the period, is first (i) nominated by
the Bank's or First Financial Corporation's Board of Directors for
election by stockholders, or (ii) elected to fill a vacancy on the
respective Board of Directors, shall be deemed to have been a
Director at the beginning of the two-year period.
(ii) the Bank or First Financial Corporation transfers
substantially all of its assets to another corporation which is not
a wholly owned subsidiary of the Bank or First Financial
Corporation;
(iii) the Bank or First Financial Corporation sells
substantially all of the assets of a subsidiary or affiliate which,
at the time of such sale, is the principal employer of the Employee;
or
(iv) any "person" including a "group", who as of the
Effective Date of this Agreement owns less than 20% of the combined
voting power of the outstanding equity securities of the Bank or
First Financial Corporation, is or becomes the "beneficial owner,"
directly or indirectly, of equity securities of the Bank or First
Financial Corporation representing 20% or more of the combined
voting power of the outstanding equity securities of the Bank or
First Financial Corporation (with the terms in quotation marks
having the meaning set forth in the federal securities laws); or
(v) the Bank or First Financial Corporation is merged or
consolidated with another corporation and, as a result of the merger
or consolidation, less than fifty percent (50%) of the outstanding
voting securities of the surviving or resulting corporation is owned
in the aggregate by the former stockholders of the Bank or First
Financial Corporation.
Notwithstanding the foregoing, but only to the extent required under
federal banking law, the amount payable under Subsection(a) of this Section 10
shall be reduced to the extent that on the date of the Employee's termination of
employment, the amount payable under Subsection(a) of this Section 10 exceeds
any limitation on severance benefits that is imposed by the OCC.
(b) Change in Control; Voluntary Termination. Notwithstanding any other
provision of this Agreement to the contrary, the Employee may voluntarily
terminate his employment under this Agreement within twelve (12) months
following a Change in Control of the Bank or First Financial Corporation, as
defined in paragraph (a)(4) of this Section 10, and the Employee shall thereupon
be entitled to receive the payment described in Sections 10(a)(1), (2) and (3)
of this Agreement, within thirty (30) days following the occurrence of any of
the following events, which has not been consented to in advance by the Employee
in writing. However, during such thirty (30) day period, the Bank shall not
allow the Employee's participation in any Employee Benefits to lapse and shall
continue to provide the Employee with the Automobile Benefits described in
Section 4(d), reimbursement or payment of professional and club dues, and the
cost of the Employee's continuing legal education requirements.
(i) the requirement that the Employee perform his principal
executive functions more than thirty (30) miles from his Terre Haute,
Indiana office.
(ii) a reduction of 10% or more in the Employee's base salary as in
effect on the date of the Change in Control or as the same may be changed
by mutual agreement from time to time, unless part of an institution-wide
reduction and similar to the reduction in the base salary of all other
executive officers of the Bank;
26
(iii) the removal of the Employee from participation in any
incentive (including, but not limited to, the LTIP) or performance-based
compensation plans or bonus plans unless the Bank terminates participation
in the plan or plans with respect to all other executive officers of the
Bank;
(iv) the failure by the Bank to continue to provide the Employee
with the base salary, bonuses or benefits provided for under Sections
4(a), (c), (d) and (e) of this Agreement, as the same may be increased
from time to time, or with benefits substantially similar to those
provided to him under those Sections or under any benefit plan or program
in which the Employee now or hereafter becomes eligible to participate, or
the taking of any action by the Bank which would directly or indirectly
reduce any such benefits or deprive the Employee of any such benefit
enjoyed by him, unless part of an institution-wide reduction and applied
similarly to all other executive officers of the Bank;
(v) the assignment to the Employee of duties and responsibilities
materially different from those normally associated with his position as
referenced in Section 1;
(vi) a failure to elect or re-elect the Employee to the Board or a
failure on the part of First Financial Corporation or its successor to
honor any obligation to nominate Employee to the Board of Directors of
First Financial Corporation or its successor;
(vii) a material diminution or reduction in the Employee's
responsibilities or authority (including reporting responsibilities) in
connection with his employment with the Bank; or
(viii) a material reduction in the secretarial or administrative
support of the Employee.
(c) Compliance with 12 U.S.C. Section 1828(k). Any payments made to the
Employee pursuant to this Agreement, or otherwise, are subject to
and conditioned upon their compliance with 12 U.S.C. Section 1828(k)
and any regulations promulgated thereunder.
(d) Trust.
(1) Within five business days before or after a Change in Control
as defined in Section 10(a)(4) of this Agreement which was not approved in
advance by a resolution of a majority of the Directors of the Bank, the
Bank shall (i) deposit, or cause to be deposited, in a grantor trust (the
"Trust"), designed to conform with Revenue Procedure 93-64 (or any
successor) and having a trustee independent of the Bank, an amount equal
to the amounts which would be payable in a lump sum under Sections
10(a)(1), (2) and (3) hereof if those payment provisions become
applicable, and (ii) provide the trustee of the Trust with a written
direction to hold said amount and any investment return thereon in a
segregated account for the benefit of the Employee, and to follow the
procedures set forth in the next paragraph as to the payment of such
amounts from the Trust.
(2) During the twelve (12) consecutive month period following the
date on which the Bank makes the deposit referred to in the preceding
paragraph, the Employee may provide the trustee of the Trust with a
written notice requesting that the trustee pay to the Employee, in a
single sum, the amount designated in the notice as being payable pursuant
to Sections 10(a)(1), (2) and (3). Within three business days after
receiving said notice, the trustee of the Trust shall send a copy of the
notice to the Bank via overnight and registered mail, return receipt
requested. On the tenth (10th) business day after mailing said notice to
the Bank, the trustee of the Trust shall pay the Employee the amount
designated therein in immediately available funds, unless prior thereto
the Bank provides the trustee with a written notice directing the trustee
to withhold such payment. In the latter event, the trustee shall submit
the dispute, within ten (10) days of receipt of the notice from the Bank,
to non-appealable binding arbitration for a determination of the amount
payable to the Employee pursuant to Sections 10(a)(1), (2) and (3) hereof,
and the party responsible for the payment of the costs of such arbitration
(which may include any reasonable legal fees and expenses incurred by the
Employee) shall be determined by the arbitrator. The trustee shall choose
the arbitrator to settle the dispute, and such arbitrator shall be bound
by the rules of the American Arbitration Association in making his or her
determination. The Employee, the Bank and the trustee shall be bound by
the results of the arbitration and, within three (3) days of the
determination by the arbitrator, the trustee shall pay from the Trust the
amounts required to be paid to the Employee and/or the Bank, and in no
event shall the trustee be liable to either party for making the payments
as determined by the arbitrator.
27
(3) Upon the earlier of (i) any payment from the Trust to the
Employee, or (ii) the date twelve (12) months after the date on which the
Bank makes the deposit referred to in the first paragraph of this
subsection (d)(1), the trustee of the Trust shall pay to the Bank the
entire balance remaining in the segregated account maintained for the
benefit of the Employee. The Employee shall thereafter have no further
interest in the Trust pursuant to this Agreement. However, the termination
of the Trust shall not operate as a forfeiture or relinquishment of any of
the Employee's rights under the terms of this Agreement. Furthermore, in
the event of a dispute under Section 10(d)(2) above, the trustee of the
Trust shall continue to hold, in trust, the deposit referred to in Section
10(b)(1) until a final decision is rendered by the arbitrator pursuant to
Section 10(b)(2) above.
(e) In the event that any dispute arises between the Employee and the
Bank as to the terms or interpretation of this Agreement or the obligations
thereunder, including this Section 10, whether instituted by formal legal
proceedings or submitted to arbitration pursuant to Section 10(d)(2), including
any action that the Employee takes to enforce the terms of this Section 10 or to
defend against any action taken by the Bank, the Employee shall be reimbursed
for all costs and expenses, including reasonable attorneys' fees, arising from
such dispute, proceedings or actions, provided that the Employee shall obtain a
final judgment by a court of competent jurisdiction in favor of the Employee or,
in the event of arbitration pursuant to Section 10(d)(2), a determination is
made by the arbitrator that the expenses should be paid by the Bank. Such
reimbursement shall be paid within ten (10) days of Employee's furnishing to the
Bank written evidence, which may be in the form, among other things, of a
canceled check or receipt, of any costs or expenses incurred by the Employee.
Should the Employee fail to obtain a final judgment in favor of the
Employee and a final judgment or arbitration decision is entered in favor of the
Bank and if decided by arbitration, the arbitrator, pursuant to Section
10(d)(2), determines the Employee to be responsible for the Bank's expenses,
then the Bank shall be reimbursed for all costs and expenses, including
reasonable attorneys' fees arising from such dispute, proceedings or actions.
Such reimbursement shall be paid within ten (10) days of the Bank furnishing to
the Employee written evidence, which may be in the form, among other things, of
a canceled check or receipt, of any costs or expenses incurred by the Bank.
11. Stock Options. First Financial Corporation will permit the Employee
or his personal representative(s) or heirs, during a period of three months
following Employee's termination of employment by the Bank for the reasons set
forth in Subsections 8(d), 8(e), 10(a) or 10(b), to require First Financial
Corporation, upon written request, to purchase all outstanding, unexpired stock
options previously granted to the Employee under any stock option plan then in
effect to the extent the options are vested at a cash purchase price equal to
the amount by which the aggregate "fair market value" of the shares subject to
such options exceeds the aggregate option price for such shares. For purposes of
this Agreement, the term "fair market value" shall mean the higher of (a) the
average of the highest asked prices for shares in the over-the-counter market as
reported on the NASDAQ system or other exchange if the shares are traded on such
system for the 30 business days preceding such termination, or (b) the average
per share price actually paid for the most highly priced 1% of the shares
acquired in connection with the Change of Control by any person or group
acquiring such control.
12. Federal Income Tax Withholding. The Bank may withhold all federal
and state income or other taxes from any benefit payable under this Agreement as
shall be required pursuant to any law or governmental regulation or ruling.
13. Successors and Assigns.
(a) Bank. This Agreement shall not be assignable by the Bank,
provided that this Agreement shall inure to the benefit of and be binding
upon any corporate or other successor of the Bank which shall acquire,
directly or indirectly, by merger, consolidation, purchase or otherwise,
all or substantially all of the assets or stock of the Bank.
(b) Employee. Since the Bank is contracting for the unique and
personal skills of the Employee, the Employee shall be precluded from
assigning or delegating his rights or duties hereunder without first
obtaining the written consent of the Bank; provided, however, that nothing
in this paragraph shall preclude (i) the Employee from designating a
beneficiary to receive any benefit payable hereunder upon his death, or
(ii) the executors, administrators, or other legal representatives of the
Employee or his estate from assigning any rights hereunder to the person
or persons entitled thereunto.
28
(c) Attachment. Except as required by law, no right to receive
payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation or to exclusion, attachment, levy or similar process or
assignment by operation of law, and any attempt, voluntary or involuntary,
to effect any such action shall be null, void and of no effect.
14. Amendments. No amendments or additions to this Agreement shall be
binding unless made in writing and signed by the Bank, First Financial
Corporation and the Employee, except as herein otherwise specifically provided.
15. Applicable Law. Except to the extent preempted by federal law, the
laws of the State of Indiana, without regard to that State's choice of law
principles, shall govern this Agreement in all respects, whether as to its
validity, construction, capacity, performance or otherwise.
16. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
17. Entire Agreement. This Agreement, together with any understanding or
modifications thereof as agreed to in writing by the parties, shall constitute
the entire Agreement between the parties hereto.
18. Construction. The rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement.
19. Headings. The headings in this Agreement have been inserted solely
for ease of reference and shall not be considered in the interpretation,
construction or enforcement of this Agreement.
20. Notices. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been given (a) if hand delivered, upon delivery to the party, or (b) if
mailed, two (2) days following deposit of the notice or communication with the
United States Postal Service by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Employee: Norman L. Lowery
93 Allendale
Terre Haute, Indiana 47802
If to the Bank: First Financial Bank
Attn: Michael A. Carty
One First Financial Plaza
P.O. Box 540
Terre Haute, Indiana 47808-0540
or to such other address as either party hereto may have furnished to the other
party in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
IN WITNESS WHEREOF, the parties have executed this Agreement on this 31st
day of March, 2004.
FIRST FINANCIAL BANK
/s/ Michael A. Carty
-------------------------------------
Michael A. Carty, Secretary/Treasurer
ATTEST
/s/ Michael E. Yeager
- ---------------------------
Michael E. Yeager
Title: Asst. Controller
EMPLOYEE
/s/ Norman L. Lowery
---------------------------
Norman L. Lowery
29
The undersigned, First Financial Corporation, sole shareholder of the Bank,
agrees that if it shall be determined for any reason that any obligation on the
part of the Bank is unenforceable for any reason, First Financial Corporation
agrees to honor the terms of this Agreement and continue to make any such
payments due hereunder to Employee or to satisfy any such obligation pursuant to
the terms of this Agreement. The undersigned further agrees to nominate Employee
to the Board of Directors of First Financial Corporation during the term of this
Agreement.
ATTEST FIRST FINANCIAL CORPORATION
/s/ Michael A. Carty /s/ Donald E. Smith
- -------------------------- ------------------------------
Michael A. Carty Donald E. Smith, President &
Title: Secretary Chairman of the Board
Date: March 31, 2004