EXHIBIT 10.01
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), entered into and effective
as of the 1st day of January, 2006 (the "Effective Date"), by and between First
Financial Bank, N.A. (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 $433,907.67 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:
(a) Inflation;
(b) Adjustments to the base salaries of other senior management
personnel;
(c) Past performance of the Employee; and
(d) 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 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 and 2005 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 subsection 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
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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 subsection 4(d) are
collectively referred to hereinafter as "Automobile Benefits."
(e) Vacation, Sick Leave and Disability. The Employee shall be
entitled to 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.
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 subsection 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.
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(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 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 for a period of one 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
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Employee) or the expiration of the Term, the Employee shall not,
directly or indirectly, or individually or jointly, (i) solicit any
non-legal 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 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, unless such actions are
taken in connection with Employee engaging in the practice of law.
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 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 shall prevent or restrict the
Employee from engaging in the practice of law, including within the
Restricted Geographical Area. In addition, nothing contained in this
subsection 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, the two 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 full
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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.
(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 subsection
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. 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, 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
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successfully enforces any of the provisions of this Section against the
breach or threatened breach of those provisions by the Employee. The
remedies described in this Section are exhaustive and are in addition
to all other remedies the Bank may have at law, in equity, or
otherwise.
(i) The Employee and the Bank acknowledge and agree that in the
event of termination of the Employee's employment 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 will not
prevent him from earning a livelihood.
(ii) The covenants on the part of the Employee contained in
this Section 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 and as due under those plans.
(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
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other applicable state and federal laws concerning disability. For
the purpose of this Agreement, "Disability" means the Employee is:
(1) Unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12
months, or
(2) By reason of any medically determinable physical or
mental impairment which can be expected to result in death or
can be expected to last for a continuous period of not less
than 12 months, receiving income replacement benefits for a
period of not less than three months under an accident and
health plan covering employees of the Employer.
(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 and as 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:
(i) 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;
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(iv) Gross negligence or insubordination by the Employee in the
performance of his duties; or
(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, 12 USC 1818(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.
(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 subsection 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) Cash reimbursement to the Employee in an amount equal to
the cost to the Employee (demonstrated by submission to the Bank of
invoices, bills, or other proof of payment by the Employee) of (A)
all health insurance premiums for the Employee, his spouse and
child living in the Employee's household and Medicare supplement
insurance, and life insurance (as described in subsection 4(b));
(B) all other Employee Benefits (as defined in subsection 4(a));
and (C) professional and club dues, the cost of Employee's
continuing legal education requirements (as described in subsection
4(c)), all Automobile Benefits (as defined in subsection 4(d)) and
other benefits which the Employee would
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otherwise 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 the Employee's termination of employment. The Employee shall
also be entitled to receive an amount necessary to provide any cash
payments received under this subsection 8(d)(iii) net of all income
and payroll taxes that would not have been payable by the Employee
had he continued participation in the benefit plan or program
instead of receiving cash reimbursement.
Notwithstanding the foregoing, but only to the extent required
under federal banking law, the amount payable under subsection 8(d)
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 8(d)(i), (ii) and (iii) 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 under subsections 8(d)(i) and
(ii) shall be paid in one lump sum within ten days of such termination.
All amounts payable to the Employee under subsection 8(d)(iii) shall be
paid on the first day of each month following the Employee's
termination of employment, in an amount equal to the total reimbursable
amount (demonstrated by invoices, bills or other proof of payment
submitted by the Employee). Such amounts must be submitted for
reimbursement no later than the earlier of (i) six months after the
date such amounts are paid by the Employee; or (ii) March 15th of the
year following the year in which the Employee paid the amount.
(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 subsections 8(d) (i) and (ii) hereof, within 30 days following
his date of termination and under subsection 8(d)(iii) as provided in
subsection 8(d). 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 the Employee in writing (unless such
voluntary termination occurs within the time period set forth in
subsection 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 ten percent 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;
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(iv) The failure by the Bank to continue to provide the
Employee with the base salary, bonuses or benefits provided for
under subsections 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 this subsection 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 8(d)(i), (ii) and (iii)
exceed any limitation on severance benefits that is imposed by the OCC on such
benefits.
(f) Voluntary Termination by Employee. Subject to Section 10, the
Employee may voluntarily terminate employment with the Bank during the
term of this Agreement, upon at least 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, such benefits to be paid when and as due under those
plans (unless such termination occurs pursuant to subsection 10(b)
hereof, in which event the benefits, bonuses and base salary provided
for in subsection 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.
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(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 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) of the
FDIA 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.
(h) Separation from Service. If the Employee qualifies as a Key
Employee (as defined in subsection 8(h)(i)) at the time of his
Separation from Service (as defined in subsection 8(h)(ii)), the Bank
may not make a payment pursuant to subsections 8(d) (disregarding
subsection 8(d)(iii)(A)) and 8(e) and Section 10 (disregarding
subsection 10(a)(1)(ii)(B)) earlier than six months following the date
of the Employee's Separation from Service (or, if earlier, the date of
the Employee's death). Payments to which the Key Employee would
otherwise be entitled during the first six months following the date of
his Separation from Service will be accumulated and paid to the
Employee on the first day of the seventh month following the Employee's
Separation from Service.
(i) Key Employee means an employee who is:
(1) An officer of the Bank or First Financial Corporation
having annual compensation greater than $140,000;
(2) A five percent owner of the Bank or First Financial
Corporation; or
(3) A one percent owner of the Bank or First Financial
Corporation having an annual compensation from the employer of
more than $150,000.
12
For purposes of subsection 8(h)(i)(1), no more than 50
employees (or, if lesser, the greater of three or 10 percent of
the employees) shall be treated as officers. The $140,000
amount in subsection 8(h)(i)(1) will be adjusted at the same
time and in the same manner as under Code Section 415(d),
except that the base period shall be the calendar quarter
beginning July 1, 2001, and any increase under this sentence
which is not a multiple of $5,000 shall be rounded to the next
lower multiple of $5,000.
(ii) Separation from Service means the date on which the
Employee dies, retires or otherwise experiences a Termination of
Employment with the Bank. Provided, however, a Separation from
Service does not occur if the Employee is on military leave, sick
leave or other bona fide leave of absence (such as temporary
employment by the government) if the period of such leave does not
exceed six months, or if longer, so long as the individual's right
to reemployment with the Bank is provided either by statute or by
contract. If the period of leave exceeds six months and the Bank's
right to reemployment is not provided either by statute or
contract, there shall be a Separation from Service on the first
date immediately following such six-month period. The Employee
shall incur a "Termination of Employment" for purposes of this
subsection 8(h)(ii) when a termination of employment is incurred
under Proposed Treasury Regulation 1.409A-1(h)(ii) or any final
version of such Proposed Regulation.
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 12 months after
a Change in Control, as defined in subsection 10(a)(4), the
Employee shall be paid the greater of:
(i) The total amount payable under subsection 8(d); or
(ii) The product of 2.99 times the sum of: (A) his base
salary in effect as of the date of the Change in Control; (B)
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 (C) cash reimbursement to the
Employee in an amount equal to the cost to the Employee
(demonstrated by submission to the Bank of invoices, bills or
other proof of payment by the Employee) of obtaining all
Employee Benefits (as defined in subsection 4(a)), health
insurance premiums for the
13
Employee, his spouse and child living in the Employee's
household, Medicare supplement insurance, life insurance (as
described in subsection 4(b)), professional and club dues, the
cost of Employee's continuing legal education requirements (as
described in subsection 4(c)), all Automobile Benefits (as
defined in subsection 4(d)) and other benefits which the
Employee would otherwise 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 the Employee's termination of
employment. The Employee shall also be entitled to receive an
amount necessary to provide any cash payments received under
this subsection 10(a)(ii) net of all income and payroll taxes
that would not have been payable by the Employee had he
continued participation in the benefit plan or program instead
of receiving cash reimbursement.
(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 subsection 10(a), 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
14
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 Non-cash Benefits and Deferred
Payment. The value of any non-cash 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).
(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
15
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
16
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 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 one
of the following events takes place:
(i) Change in Ownership. A change in the ownership of the
Bank or First Financial Corporation occurs on the date that any
person, or group of persons, as defined in subsection (iv),
acquires ownership of stock of the Bank or First Financial
Corporation that, together with stock held by the person or
group, constitutes more than 50 percent of the total fair
market value or total voting power of the stock. However, if
any person or group is considered to own more than 50 percent
of the total fair market value or total voting power of the
stock, the acquisition of additional stock by the same person
or group is not considered to cause a change in the ownership
of the Bank or First Financial Corporation. An increase in the
percentage of stock owned by any person or group, as a result
of a transaction in which the Bank or First Financial
Corporation acquires its stock in exchange for property will be
treated as an acquisition of stock.
(ii) Change in the Effective Control. A change in the
effective control of the Bank or First Financial Corporation
will occur when: (i) any person or group acquires, or has
acquired during the twelve-month period ending on the date of
the most recent acquisition by such person(s), ownership of
stock of the Bank or First Financial Corporation possessing 35
percent or more of the total voting power; or (ii) a majority
of members of the Board is replaced during any twelve-month
period by Directors whose appointment or election is not
endorsed by a majority of the members of the Bank's or First
Financial Corporation's Board prior to the date of the
appointment or election. However, if any person or group is
considered to effectively control the Bank or First Financial
Corporation, the acquisition of additional control of the Bank
or First Financial Corporation by the same person(s) is not
considered to cause a change in the effective control.
17
(iii) Change in the Ownership of a Substantial Portion of
the Bank's or First Financial Corporation's Assets. A change in
the ownership of a substantial portion of the Bank's or First
Financial Corporation's assets occurs on the date that any
person or group acquires, or has acquired during the 12-month
period ending on the date of the most recent acquisition by
such person(s), assets from the Bank or First Financial
Corporation that have a total gross fair market value equal to
or more than 40 percent of the total gross fair market value of
all of the assets immediately prior to such acquisition(s).
Gross fair market value means the value of the assets of the
Bank or First Financial Corporation, or the value of the assets
being disposed of, determined without regard to any liabilities
associated with such assets.
However, there is no Change in Control under this subsection
when there is a transfer to an entity that is controlled by the
shareholders of the Bank or First Financial Corporation
immediately after the transfer. A transfer of assets by the
Bank or First Financial Corporation is not treated as a change
in the ownership of such assets if the assets are transferred
to: (i) a shareholder of the Bank or First Financial
Corporation (immediately before the asset transfer) in exchange
for or with respect to its stock; (ii) an entity, 50 percent or
more of the total value or voting power of which is owned,
directly or indirectly, by the Bank or First Financial
Corporation; (iii) a person, or group of persons, that owns,
directly or indirectly, 50 percent or more of the total value
or voting power of all the outstanding stock of the Bank or
First Financial Corporation or (iv) an entity, at least 50
percent of the total value or voting power of which is owned,
directly or indirectly, by a person described in (iii). For
purposes of this subsection, except as otherwise provided, a
person's status is determined immediately after the transfer of
the assets. For example, a transfer to a company in which the
Bank or First Financial Corporation has no ownership interest
before the transaction, but which is a majority-owned
subsidiary of the transferor Bank or First Financial
Corporation after the transaction, is not treated as a change
in the ownership of the assets of the transferor Bank or First
Financial Corporation.
(iv) Acting as a Group. For purposes of this Section,
persons will not be considered to be acting as a group solely
because they purchase or own stock of the Bank or First
Financial Corporation at the same time, or as a result of the
same public offering. However, persons will be considered to be
acting as a group if they are owners of a company that enters
into a merger, consolidation, purchase or acquisition of stock
or similar business transaction with the Bank or First
Financial Corporation. If a person, including an entity, owns
stock in both companies that enter into a merger,
consolidation, purchase or acquisition of stock or similar
transaction, such shareholder is considered to be acting as a
group with other shareholders prior to the transaction giving
rise to the change and not with respect to the ownership
interest in the other.
18
Notwithstanding the foregoing, the acquisition of Bank or First
Financial Corporation stock by any retirement plan sponsored by the
Bank or an affiliate of the Bank will not constitute a Change in
Control. Additionally, notwithstanding the foregoing, but only to the
extent required under federal banking law, the amount payable under
subsection 10(a) shall be reduced to the extent that on the date of the
Employee's termination of employment, the amount payable under
subsection 10(a) 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 12
months following a Change in Control of the Bank or First Financial
Corporation, as defined in subsection 10(a)(4), and the Employee shall
thereupon be entitled to receive the payment described in subsections
10(a)(1), (2) and (3) of this Agreement, within 30 days following the
occurrence of any of the following events, which has not been consented
to in advance by the Employee in writing. During such 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 subsection 4(d), reimbursement or
payment of professional and club dues, and the cost of the Employee's
continuing legal education requirements as described in subsection
4(c). In the event subsection 8(h) applies at the time of the
Employee's termination, the six month suspension period shall not
prevent the Employee from continuing to receive reimbursement of health
insurance premiums for himself, his spouse and child living in the
Employee's household, Medicare supplement insurance and life insurance
(as described in subsection 4(b)) immediately following his termination
of employment, without regard to the six-month suspension applicable to
cash payments and other benefit amounts.
(i) The requirement that the Employee perform his
principal executive functions more than 30 miles from his Terre
Haute, Indiana office.
(ii) A reduction of ten percent 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;
(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 subsections 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
19
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 which was not approved in advance by a resolution of a
majority of the Directors of First Financial Corporation, the
Bank or First Financial Corporation 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
subsections 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 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 subsections 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 business day after mailing said
notice to the Bank, the
20
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 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 subsections 10(a)(1), (2) and (3), 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 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.
(3) Upon the earlier of (i) any payment from the Trust to
the Employee, or (ii) the date twelve months after the date on
which the Bank makes the deposit referred to in the first
paragraph of this subsection 10(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,
if any. 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
subsection 10(d)(2), the trustee of the Trust shall continue to
hold, in trust, the deposit referred to in subsection 10(b)(1)
until a final decision is rendered by the arbitrator pursuant
to subsection 10(b)(2).
(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, whether instituted by
formal legal proceedings or submitted to arbitration pursuant to
subsection 10(d)(2), including any action that the Employee takes to
enforce the terms of this Section 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 subsection
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
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 subsection 10(d)(2), determines the Employee to be
21
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 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 one percent 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 or
First Financial Corporation, provided that this Agreement shall inure to the
benefit of and be binding upon any corporate or other successor of the Bank or
First Financial Corporation which shall acquire, directly or indirectly, by
merger, consolidation, purchase or otherwise, all or substantially all of the
assets or stock of the Bank or First Financial Corporation.
(b) Employee. Because 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.
(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.
22
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. Should any
particular covenant, provision or clause of this Agreement be held unreasonable
or unenforceable for any reason, including without limitation, the time period,
geographic area and/or scope of activity covered by such covenant, provision or
clause, the Bank and Employee acknowledge and agree that such covenant,
provision or clause shall be given effect and enforced to whatever extent would
be reasonable and enforceable under applicable law.
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 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, N.A.
Attn: Chief Financial Officer
One First Financial Plaza
P.O. Box 540
Terre Haute, Indiana 47808-0540
23
If to First
Financial Corporation: First Financial Corporation
Attn: President
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.
21. Waiver. The waiver by either party of a breach of any provision of
this Agreement, or failure to insist upon strict compliance with the terms of
this Agreement, shall not be deemed a waiver of any subsequent breach or
relinquishment of any right or power under this Agreement.
22. Review and Consultation. Employee acknowledges and agrees he (a)
has read this Agreement in its entirety prior to executing it, (b) understands
the provisions and effects of this Agreement and (c) has consulted with such
attorneys, accountants and financial or other advisors as he has deemed
appropriate in connection with the execution of this Agreement. Employee
understands, acknowledges and agrees that he has not received any advice,
counsel or recommendation with respect to this Agreement from Employer's
attorneys.
* * *
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IN WITNESS WHEREOF, the parties have executed this Agreement on this
29th day of March, 2006.
ATTEST FIRST FINANCIAL BANK, N.A.
JEFFREY N. LAYNE MICHAEL A. CARTY
- ------------------------------------- ---------------------------------------
Jeffrey N. Layne, Controller Michael A. Carty, Senior Vice President
EMPLOYEE
NORMAN L. LOWERY
---------------------------------------
Norman L. Lowery
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 or if the Bank fails to
perform, 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
MICHAEL A. CARTY DONALD E. SMITH
- ------------------------------------- ---------------------------------------
Michael A. Carty, Secretary/Treasurer Donald E. Smith, President
25