EXHIBIT 10.1
SEVERANCE AGREEMENT AND RELEASE
This Severance Agreement and Release ("Agreement") is between Shelby
County Bank, a federally chartered savings bank doing business in Indiana, and
Blue River Bancshares, Inc. ("Blue River"), an Indiana corporation
(collectively, "Employer"), and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Executive"), a resident of
the State of Indiana:
I. RECITATIONS
1.01. Executive currently serves as the President of Blue River and
President and Chief Executive Officer of Shelby County Bank, and is a Director
of Blue River and Shelby County Bank.
1.02. Executive is party to that certain Employment Agreement, dated
August 2, 2002, by and between the Executive and Blue River and that certain
Employment Agreement, dated August 2, 2002, by and between the Executive and
Shelby County Bank (collectively, the "Employment Agreements").
1.03 Effective as of August 31, 2004, Blue River and Shelby County Bank
entered into that certain Agreement of Affiliation and Merger (the "Merger
Agreement") by and among Blue River, Shelby County Bank, Heartland Bancshares,
Inc. and Heartland Community Bank.
1.04. Effective as of August 31, 2004, Shelby County Bank entered into
that certain Plan of Reorganization and Merger (the "Bank Merger Agreement") by
and between Shelby County Bank and Heartland Community Bank.
1.05. As a result of the Merger Agreement and the Bank Merger Agreement
not providing that Executive will continue in his current capacities, the
Executive desires to resign his employment with Employer and his services as a
Director on Blue River's and Shelby County Bank's Board of Directors for
"cause," as defined in the Employment Agreements.
1.06 Employer and Executive wish to completely resolve this matter by
executing this Agreement.
1.07. Executive agrees to resign his employment with Employer and his
service as a Director on Blue River's and Shelby County Bank's Board of
Directors in consideration of the payment and benefits set forth in Section IV
of this Agreement.
II. INTENTION OF THE PARTIES
2.01. Employer and Executive intend and expect that Executive shall
surrender and renounce all privileges and rights that derive from his employment
by Employer (including, but not limited to, the privileges and rights derived
under the Employment Agreements), and the
separation thereof, and service as a Director of Blue River and Shelby County
Bank, except any and all rights Executive has pursuant to any pension or other
retirement benefit plan, profit sharing, stock option, employee stock ownership,
or other plans (the "Plans") in which Executive participated as of the
Resignation Date subject to and in accordance with the applicable provisions
thereof.
III. AGREEMENTS OF EXECUTIVE
3.01. RESIGNATION. Executive's employment with Employer will terminate
on October 4, 2004 (the "Resignation Date"). Effective on the Resignation Date,
Executive will be relieved of all duties for and responsibilities with Employer.
Executive hereby resigns any and all officer, director and other positions with
Employer or any of its affiliates or Plans effective on the Resignation Date.
3.02. CONSIDERATION. The severance payment and benefits set forth in
Section IV of this Agreement shall be the only payment and benefits stemming
from Executive's employment with Employer to which he shall be entitled
following his resignation.
3.03. NO ADMISSION OF LIABILITY. Executive agrees that the payment and
benefits set forth in Section IV of this Agreement shall not be deemed or
construed at any time for any purpose as an admission of liability or violation
of any applicable law by Employer. Liability for any and all claims is expressly
denied by Employer.
3.04. RELEASE. Executive agrees that in consideration of the payment
and benefits set forth in Section IV of this Agreement, Executive hereby
releases and forever discharges Employer and its officers, directors,
representatives, successors and assigns, and all persons acting by, through,
under, or in concert with any of them, from all legal and equitable causes of
action, that exist or have accrued as of the date of this Agreement, whether
known or unknown, suspected or unsuspected including, but not limited to, all
charges, complaints, claims, demands, liabilities, and obligations of any kind
or nature that could be asserted against Employer by reason of Executive's
employment relationship with Employer, or separation thereof, or by Executive's
shareholder relationship with Employer. This irrevocable and unconditional
release includes, but is not limited to, claims arising pursuant to the Civil
Rights Act of 1866; Title VII of the Civil Rights Act of 1964, as amended; the
Age Discrimination in Employment Act, as amended ("ADEA"); the Older Workers
Benefit Protection Act ("OWBPA"); the Americans with Disabilities Act; the
Family and Medical Leave Act; the Employee Retirement Income Security Act of
1974, as amended; the Fair Labor Standards Act; the Indiana Wage Payment Act;
the Indiana Wage Claims Act; the Indiana Civil Rights Act; any state wage and
hour laws; any state contract or tort law including, but not limited to,
wrongful termination, breach of contract, breach of fiduciary duty, and
infliction of emotional distress; any claims for attorneys' fees; or claims for
any rights to future employment, wages and benefits with Employer other than
those set forth herein. This is not a release or discharge of any of Employer'
continuing obligations set forth in this Agreement.
3.05. NON-DISPARAGEMENT. Executive agrees that he shall make no
disparaging comments about Employer or any of its officers or directors to any
third parties following the execution of this Agreement.
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3.06. VOLUNTARY EXECUTION. Executive acknowledges and agrees that he is
executing this Agreement of his own free will and is not executing this
Agreement under any type of coercion or duress.
3.07. CONSIDERATION AND WAIVER PERIOD. Executive acknowledges and
agrees that Employer has informed him that he has a period of time of not less
than twenty-one (21) days within which to consider this Agreement or a
reasonable facsimile thereof. Executive acknowledges that he has been advised by
Employer that, in the event he executes this document, he is entitled to revoke
his waiver of rights or claims arising under the ADEA and OWBPA within seven (7)
days after executing this document and that said waiver will not and does not
become effective or enforceable until the seven (7) day revocation period has
expired. This revocation must be in writing and personally delivered, or sent by
certified mail, postmarked no later than the seventh (7th) day following the
execution of this Agreement, to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III, Chairman and Chief
Executive Officer, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
IV. AGREEMENTS OF EMPLOYER
4.01. SEVERANCE PAYMENT. Provided Executive has not made a revocation
pursuant to Section 3.07 hereof, and in consideration of Executive's resignation
and the surrender of all rights Executive may have against Employer that stem
from his employment with or service as an officer or director of Employer, or
the termination thereof, or as a shareholder of Employer, Employer shall, until
August 2, 2005, pay to the Executive, the Executive's Base Compensation, as
defined in the Employment Agreements, payable at regular intervals in accordance
with the Employers' normal payroll practices in effect from time to time.
4.02. BENEFITS. Except as set forth in Section 4.02(a) and (b) below,
Employer shall, until August 2, 2005, maintain in full force and effect for the
continued benefit of the Executive each employee welfare benefit plan (as such
term is defined in the Employee Retirement Income Security Act of 1974, as
amended) in which Executive was entitled to participate immediately prior to the
date of his termination, unless an essentially equivalent and no less favorable
benefit is provided by a subsequent employer of Employee. If the terms of any
employee welfare benefit plan of Employer do not permit continued participation
by the Executive, Employer will arrange to provide to the Executive a benefit
substantially similar to, and no less favorable than, the benefit he was
entitled to receive under such plan at the end of the period of coverage.
(a) Executive's participation in the Employer's 401(k) plan
shall terminate on the Resignation Date. In lieu of the matching contributions
which Executive would have otherwise received from Employer under the Employer's
401(k) plan, Employer shall, as soon as reasonably practicable following the
date of this agreement, pay the Executive a lump sum amount (net of taxes) equal
to 3% of the of Executive's Base Compensation for the period beginning on the
Resignation Date and ending on August 2, 2005. For purposes of calculating the
taxes, the Executive shall be deemed to pay federal, state and local income
taxes at the highest marginal rates of income taxation for the calendar year in
which the payment is to be made.
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(b) Executive's eligibility for participation as an employee
in the Employer's group health insurance plan shall terminate on the Resignation
Date. In the event that Executive elects to continue his health insurance
coverage pursuant to Section 4.03 of this Agreement, Employer shall reimburse
Executive for all premium payments which Executive makes for such health
insurance coverage. Nothing contained herein shall be construed to obligate the
Employer to reimburse the Executive for any deductible, co-pay or non-covered
services under the Employer's group health plan.
4.03. COBRA OR RETIREE HEALTH COVERAGE. Executive is entitled, under
the Consolidated Omnibus Budget Reconciliation Act of 1986 ("COBRA"), to
continued health insurance coverage to the same extent that he was covered on
his Resignation Date. He shall be advised of those rights pursuant to a COBRA
notification letter. The qualifying date for COBRA will be the same as
Executive's Resignation Date.
4.04. INDEMNIFICATION. Employer shall indemnify and hold Executive
harmless from any claims, lawsuits or actions filed against him, which accrued
while he was serving as an officer or Director of Employer, pursuant to the
terms and conditions of the indemnification provisions of Employer' By-Laws
and/or Articles of Incorporation or Charter as in effect on the Resignation
Date. Employer shall also indemnify and hold Executive harmless from any claims,
lawsuits, or actions filed against him in his capacity as a director, officer,
employee or agent of another corporation, association, partnership, joint
venture, trust or other enterprise where Executive serves in such capacity at
the request of Employer, accruing prior to or including Executive's Resignation
Date, pursuant to the terms and conditions of the indemnification provisions of
Employer' By-Laws and/or Articles of Incorporation or Charter as in effect on
the Resignation Date.
4.05. NON-DISPARAGEMENT. Employer agrees that it, through its officers
and directors, shall make no disparaging comments about Executive to any third
parties following the execution of this Agreement. Executive acknowledges that
Employer does not have total control over comments made to third parties by
employees in their individual capacities. However, to avoid any non-authorized
comments, Executive agrees to only refer prospective employers to an officer or
Director of Employer for an employment recommendation.
4.06. NO ADMISSION OF LIABILITY. Employer agrees that this Agreement
shall not be deemed or construed at any time for any purpose as an admission of
liability or violation of any applicable law by Executive. Liability for any and
all claims is expressly denied by Executive.
4.07. AUTHORIZATION. Employer has the requisite corporate power and
authority to enter into this Agreement and to perform its obligations hereunder,
subject to the terms and conditions hereof.
V. AGREEMENT OF ALL PARTIES
5.01. FURTHER ASSURANCES. Each of the parties hereto shall do, execute,
acknowledge, and deliver or cause to be done, executed, acknowledged, and
delivered at any time and from
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time to time upon the request of any other parties hereto, all such further
acts, documents, and instruments as may be reasonably required to effect any of
the transactions contemplated by this Agreement.
5.02. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that neither party hereto may assign this
Agreement without the prior written consent of the other party. Notwithstanding
the foregoing, this Agreement may be assigned, without the prior consent of
Executive, to a successor of Employer and, upon Executive's death, this
Agreement shall inure to the benefit of and be enforceable by Executive's
executors, administrators, representatives, heirs, distributees, devisees, and
legatees and all amounts payable hereunder shall be paid to such persons or the
estate of Executive.
5.03. WAIVER; AMENDMENT. No provision or obligation of this Agreement
may be waived or discharged unless such waiver or discharge is agreed to in
writing and signed by Employer and Executive. The waiver by any party hereto of
a breach of or noncompliance with any provision of this Agreement shall not
operate or be construed as a continuing waiver or a waiver of any other or
subsequent breach or noncompliance hereunder. Except as expressly provided
otherwise herein, this Agreement may be amended, modified, or supplemented only
by a written agreement executed by Employer and Executive.
5.04. 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.
5.05. SEVERABILITY. All provisions of this Agreement are severable from
one another, and the unenforceability or invalidity of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
provisions of this Agreement; provided, however, that should any judicial body
interpreting this Agreement deem any provision to be unreasonably broad in time,
territory, scope, or otherwise, the parties intend for the judicial body, to the
greatest extent possible, to reduce the breadth of the provision to the maximum
legally allowable parameters rather than deeming such provision totally
unenforceable or invalid.
5.06. NO COUNTERPARTS. This Agreement may not be executed in
counterparts.
5.07. GOVERNING LAW; JURISDICTION; VENUE; WAIVER OF JURY TRIAL. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Indiana, without reference to the choice of law principles or rules
thereof. The parties hereto irrevocably consent to the jurisdiction and venue of
the state court for the State of Indiana located in Indianapolis, Indiana, or
the Federal District Court for the Southern District of Indiana, Indianapolis
Division, located in ▇▇▇▇▇▇ County, Indiana, and agree that all actions,
proceedings, litigation, disputes or claims relating to or arising out of this
Agreement shall be brought and tried only in such courts.
5.08. ENTIRE AGREEMENT. This Agreement constitutes the entire and sole
agreement between Employer and Executive with respect to Executive's resignation
and there are no other agreements or understandings either written or oral with
respect thereto. The parties agree that the (i) the Employment Agreement, dated
August 2, 2002, between Executive and Blue River,
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and (ii) the Employment Agreement, dated August 2, 2002, between Executive and
Shelby County Bank will be terminated effective as of the Resignation Date and
of no further force or effect or liability thereunder. The parties further
acknowledge and agree that the Change of Control Agreement, dated October 2,
2000, by and between Executive and Blue River remains terminated and of no force
or effect.
5.09. 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. Whenever in this Agreement a singular
word is used, it also shall include the plural wherever required by the context
and vice-versa. All reference to the masculine, feminine, or neuter genders
shall include any other gender, as the context requires.
5.10. ATTORNEYS' FEES. The prevailing party shall be entitled to
reasonable costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) in connection with any legal action to
interpret or enforce any provision of this Agreement or for any breach of this
Agreement.
5.11. TAXES AND OTHER AMOUNTS. All taxes (other than Employer' portion
of employment taxes) on all amounts payable to Executive hereunder and under the
Plans and other benefit plans and programs will be paid by Executive. Employer
will be entitled to withhold from such payments and benefits (i) applicable
income, employment and other taxes required to be withheld therefrom; (ii)
amounts authorized by Executive; and (iii) other required or appropriate and
customary amounts.
5.12. REVIEW AND CONSULTATION. Employer and Executive hereby
acknowledge and agree that each (i) has read this Agreement in its entirety
prior to executing it; (ii) understands the provisions and effects of this
Agreement; (iii) has consulted with such attorneys, accountants, and financial
and other advisors as it or he has deemed appropriate in connection with their
respective execution of this Agreement; and (iv) has executed this Agreement
voluntarily. EXECUTIVE HEREBY UNDERSTANDS, ACKNOWLEDGES, AND AGREES THAT THIS
AGREEMENT HAS BEEN PREPARED BY COUNSEL TO EMPLOYER AND THAT HE HAS NOT RECEIVED
ANY ADVICE, COUNSEL, OR RECOMMENDATION WITH RESPECT TO THIS AGREEMENT FROM
EMPLOYER OR ITS COUNSEL.
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IN WITNESS WHEREOF, this Severance Agreement and Release is executed as
of the day and year stated below.
EXECUTIVE SHELBY COUNTY BANK
/s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇, Chairman
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇, Chairman
Date: October 4, 2004 Date: October 4, 2004
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BLUE RIVER BANCSHARES, INC.
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III, Chairman and
Chief Executive Officer
Date: October 4, 2004
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