EXHIBIT 10.15
EMPLOYMENT AND NONCOMPETITION AGREEMENT
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This Agreement is made and entered into this 17th day of October,
1997, by and between American National Trust and Investment Management
Company, a trust company organized under the laws of the United States
("ANTIM"), located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ANB
Corporation ("ANBC"), an Indiana corporation organized as a bank holding
company under the laws of the United States, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ("Executive"), residing at
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, ANTIM is a nationally-chartered trust company providing trust
and fiduciary services to its clients and is a wholly-owned subsidiary of ANB
Corporation ("ANBC");
WHEREAS, Executive has many years of experience in the trust and
fiduciary services business and has in-depth knowledge and experience in said
business;
WHEREAS, ANTIM is establishing a location in downtown Indianapolis
which is anticipated to have a unique identity, certain autonomy, and will do
business under the name "Indiana Capital Management" ("ICM");
WHEREAS, ANTIM desires to employ Executive to assist in the
establishment and development of business for ICM; and
WHEREAS, Executive desires to be employed by ANTIM on the terms and
conditions herein provided.
NOW, THEREFORE, for good and valuable consideration, the sufficiency
and receipt of which is hereby acknowledged, ANTIM and Executive agree as
follows:
1. Employment. Upon the terms and subject to the conditions of
this Agreement, ANTIM hereby employs Executive and Executive hereby accepts
employment by ANTIM on the terms set forth in this Agreement.
2. Term. The "Employment Term" shall commence as of October 6,
1997, 1997 ("Effective Date"), and shall continue for a period of one year
through October 6, 1998, and shall include any renewal periods, unless
Executive's employment is terminated prior to the expiration of the full
Employment Term, as provided in this Agreement (such shorter period is
referred to herein as the "Employment Term"). This Agreement shall
automatically renew upon terms and conditions no less favorable than those in
existence at the time of the renewal for successive additional one (1) year
periods unless Executive or ANTIM gives written notice to the other party of
the election not to renew this Agreement at least ninety (90) days prior to
the end of the initial Employment Term or any renewal terms.
3. Executive's Position, Duties and Authority.
3.1 Position. ANTIM shall employ Executive, and Executive shall
serve, as Vice President and Investment Officer for ANTIM and Executive Vice
President for ICM.
3.2 Description. Executive shall be responsible to work with
other executive management of ICM in the overall management and strategic
direction of ICM, as well as the identification and development of new
opportunities in the trust and fiduciary and other related businesses and the
administration of trust and other fiduciary relationships.
4. Full-Time Services. Executive shall devote substantially all
of his business, time, labor, skill and energy to conducting the business and
affairs of ICM and ANTIM and to satisfying the duties and responsibilities
referred to in Section 3.2 of this Agreement. Notwithstanding the foregoing,
Executive shall have the right, subject to Section 10, to devote a portion of
his business time to personal investments and commitments not related to the
business of ICM or ANTIM; provided, that the time devoted thereto shall not
interfere in any material respect with the performance of Executive's services
hereunder.
5. Compensation and Other Benefits. ANTIM shall pay and provide
the following compensation and other benefits to Executive as compensation for
services rendered under this Agreement:
(a) Base Salary. During the Employment Term, ANTIM shall
pay to Executive, in equal installments on ANTIM's regular payroll
dates and no less frequently than once per month, an initial base
salary of One Hundred Five Thousand Dollars ($105,000) ("Base
Salary"). The Base Salary shall be reviewed by ANTIM in the fall of
1998 and periodically thereafter in accordance with ANTIM's policies
relating to salary review.
(b) Bonus Plan. Executive shall be eligible to
participate in ANTIM's bonus plan, which participation shall accrue at
a target rate of eleven percent (11%) of the Base Salary beginning as
of the Effective Date.
(c) Stock Options. Executive shall be eligible for stock
option awards of ANBC stock.
(d) Sales Commission Plan. Executive shall be eligible to
participate in ANTIM's sales commission plan beginning as of the
Effective Date.
(e) Defined Benefit Plan. Executive shall be eligible to
participate in the defined benefit plan available to ANTIM employees,
which participation will vest in five (5) years.
(f) 401k Plan. Executive shall be eligible to participate
in ANTIM's 401k Plan beginning as of January 1, 1999.
(g) Employee Stock Purchase Plan. Executive shall be
eligible to participate in the employee stock purchase plan available
to ANTIM employees beginning as of September 1, 1998.
(h) Vacation. Executive shall be eligible for one (1)
week paid vacation in 1997 and four (4) weeks paid vacation annually
thereafter.
(i) Insurance. Executive shall be eligible to participate
in major medical insurance, group life insurance, dental and eye
insurance programs available to ANTIM employees.
(j) Club Membership. Executive shall be provided with a
paid membership in the Columbia Club.
(k) Future Benefit Plans. Executive shall be entitled to
participate in benefit plans which may be established in the future
for ICM, which plans may be in lieu of certain of the plans enumerated
above by the mutual agreement of ANTIM and Executive.
6. Source of Payments. All payments provided in this Agreement
shall be paid in cash from the general funds of ANTIM and no special or
separate fund shall be established and no other segregation of assets shall be
made to assure payment. Executive shall have no right, title, or interest
whatsoever in or to any investment which ANTIM may make to aid ANTIM in
meeting its obligations hereunder. Nothing contained in this Agreement, and
no action taken to fund its provisions, shall create or be construed to create
a trust of any kind, or a fiduciary relationship, between ANTIM and Executive
or any other person. To the extent that any person acquires a right to
receive payments from ANTIM hereunder, such right shall be no greater than the
right of an unsecured creditor of ANTIM.
7. Indemnification and Insurance. In the event Executive is or
was a party or is threatened to be made a party, to any threatened, pending or
completed legal action, suit or proceeding by reason of the fact that he is or
was an officer, director, agent or employee of ANTIM or is or was serving at
the request of ANTIM or ANBC as an officer, director, agent, or employee of
another corporation or other entity, he shall be fully indemnified by ANTIM
and ANBC to the maximum extent permitted by law and ANTIM's articles of
association and bylaws and ANBC's articles of incorporation and bylaws.
Executive's costs of defense shall be borne by ANTIM and ANBC to the maximum
extent permitted law and ANTIM's articles of association and bylaws and ANBC's
articles of incorporation and bylaws. The right of indemnification herein
provided shall not be deemed exclusive of any other rights to which Executive
may be entitled as a matter of law, under ANTIM's articles of association and
bylaws and ANBC articles of incorporation and bylaws and any rights of
indemnity under any policy of insurance carried by ANTIM and ANBC.
8. Business Information. All records, papers, programs and other
documents of ANTIM and those kept or made by Executive relating to the
business or affairs of ANTIM and/or its clients or customers shall be and
remain the property of ANTIM, and to the extent available and under the
control of Executive, shall be delivered by Executive to ANTIM upon the
expiration or earlier termination of Executive's employment by ANTIM.
9. Termination.
9.1 Definitions. For purposes of this Agreement, the terms in
this Section 9.1 shall have the following meaning throughout this Agreement:
(a) "Cause" to terminate Executive's employment exists
when Executive:
(1) willfully and continually fails to
substantially perform his duties with ANTIM;
or
(2) substantially fails to meet reasonable and
defined performance goals, or reasonable policies and
regulations established by ANTIM; or
(3) is adjudged guilty of any crime involving a
breach of fiduciary duties to ANTIM; or
(4) willfully violates ANTIM's Code of Conduct,
the National Bank Act or any rules and regulations promulgated
thereunder; or
(5) acts in a manner which is detrimental to
ANTIM's best interests, its reputation in the community, or
its standing in the banking industry.
(b) A "Change of Control" occurs if:
(1) any person, partnership, corporation, trust or
similar group, other than ANBC, acquires more than twenty-five
percent (25%) of the voting securities of ANBC or ANTIM in a
transaction or series of transactions; or
(2) at any time a majority of the Board of
Directors of ANBC or ANTIM are not Continuing Directors as
defined under the articles of incorporation or association of
ANBC or ANTIM.
(c) "Date of Termination" shall mean the date stated in
the Notice of Termination or thirty (30) days from the date of
delivery of such notice, whichever comes first.
(d) "Disability" shall mean the definition of such term as
used in the disability policy then in effect for ANTIM and a
determination of full disability by ANTIM; provided that in the event
there is no disability insurance then in force, "disability" shall
mean incapacity due to physical or mental illness, which will have
caused Executive to have been unable to perform his duties with ANTIM
on a full time basis for one hundred eighty (180) consecutive calendar
days.
(e) "Notice of Termination" shall mean a written notice,
communicated to the other parties hereto, which shall indicate the
specific termination provisions of this Agreement relied upon and set
forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the
provisions so indicated.
(f) Retirement" shall mean termination of employment by
ANTIM or Executive in accordance with ANTIM's normal retirement policy
generally applicable to its salaried employees in effect at the time
of Change of Control.
(g) An "Unreasonable Change" occurs if any of the
following event occur:
(1) without Executive's express written consent
and after a Change of Control, the assignment to him of any
duties materially inconsistent with his positions, duties and
responsibilities with ANTIM immediately prior to a Change of
Control;
(2) without Executive's express written consent
and after a Change of Control, a reduction by ANTIM in
Executive's annual salary;
(3) without Executive's express written consent
and after a Change of Control, ANTIM requires Executive to be
relocated anywhere other than ANTIM's offices in downtown
Indianapolis, Indiana, or, if Executive provides his consent,
ANTIM fails to pay all reasonable moving expenses in
connection with such relocation including an obligation by
ANTIM to provide a customary home guarantee purchase of
Executive's residence, the value of the home to be determined
by at least one real estate appraiser designated by him and
satisfactory to ANTIM;
(4) without Executive's express written consent
and after a Change of Control (1) the failure by the Trust
Company to continue in effect (or to substitute plans
providing him with no less than substantially similar
benefits) any compensation plan or benefit plans including,
but not limited to, any retirement or pension plan, savings
plan, life insurance plan, health and accident or disability
plan in which Executive is participating at the time of a
Change of Control; or (2) in the event the Trust Company
institutes new or revised
compensation or benefit plans which provide more favorable
benefits than the plans in which Executive is participating at
the time of a Change of Control, the failure of the Trust
Company to entitle Executive to participate in and receive
benefits under any such new or revised plans providing more
favorable benefits; or (3) the taking of any action by the
Trust Company that would adversely affect Executive's
participation in or materially reduce his benefits under any
of such plans described in either (1) or (2) of this
paragraph;
(5) without Executive's express written consent
and after a Change of Control, the taking of any action by the
Trust Company to deprive Executive of any material fringe
benefit enjoyed by him at the time of the Change of Control,
or the failure by the Trust Company to provide him with the
number of paid vacation days to which he is entitled under
this Agreement or on the basis of years of service with the
Trust Company and in accordance with the Trust Company's
normal vacation policy in effect at the time of Change of
Control (if greater); or
(6) the failure of the Trust Company or
Corporation to obtain the assumption of this Agreement by any
successor as contemplated in this Agreement.
9.2 Termination by ANTIM.
(a) This Agreement may be terminated prior to the
expiration of the Employment Term by ANTIM upon delivery of a Notice
of Termination to Executive (or his personal representative), upon the
happening of any of the following events:
(1) Upon the death of Executive;
(2) Upon the Disability of Executive;
(3) Retirement; or
(4) For Cause.
(b) If Executive's employment shall be terminated for
Cause (regardless of whether or not a Change of Control has occurred),
ANTIM shall pay to Executive his full Base Salary through the date of
termination, and ANTIM shall have no further obligations under this
Agreement.
(c) If Executive's employment shall be terminated as a
result of death, Disability or Retirement (regardless of whether or
not a Change of Control has occurred), compensation to Executive, his
estate, legal representatives or designee shall be made pursuant to
ANTIM's then existing policies on death, Disability or Retirement, and
ANTIM shall have no further obligations under this Agreement.
9.3 Termination by Executive.
(a) This Agreement may be terminated prior to the
expiration of the Employment Term by Executive upon delivery of a
Notice of Termination to ANTIM, upon the happening of any of the
following events:
(1) without Executive's express written consent,
the assignment to him of any duties materially inconsistent
with his positions, duties and responsibilities with ANTIM; or
(2) without Executive's express written consent, a
reduction by ANTIM in Executive's annual salary or a reduction
or elimination of compensation and benefits as enumerated in
Section 5(a) through (k).
(b) If Executive shall resign in accordance with Section
9.3(a), ANTIM shall pay Executive his Base Salary through the Date of
Termination plus the aggregate amount of any bonus accrued but unpaid
as of such Date of Termination.
9.4 Change of Control. In the event any person, persons or entity
commences a tender or exchange offer, or circulates a proxy to the
shareholders of ANBC designed to effect a Change of Control (as hereinafter
defined), Executive agrees that he will not voluntarily leave his employment
with ANTIM and will continue to perform his regular duties, until such person,
persons or entity has abandoned or terminated its efforts to effect a Change
of Control. In the event any person, persons or entity successfully concludes
a tender or exchange offer, or has successfully circulated a proxy to the
shareholders of ANBC effecting a Change of Control, Executive agrees that he
will not voluntarily leave his employment with ANTIM and will continue to
perform his regular duties, subject to the provisions of this Section 9.4.
(a) If a Change of Control occurs and within a twenty-four
(24) month period thereafter an Unreasonable Change occurs to
Executive's employment relationship, Executive shall be entitled to
resign with justification, and shall be entitled to the benefits
provided in Section 9.4(b). If Executive invokes the rights
pertaining to resignation with justification, Executive's notice of
resignation shall state that Executive's resignation is in the best
interests of ANTIM considering the circumstances of the Change of
Control and Unreasonable Change, and that it is not his intent to
resign for the sole purpose of collecting compensation without working
for it.
(b) If, within twenty-four (24) months of a Change of
Control, ANTIM shall terminate Executive's employment other than for
death, Disability, Retirement or Cause, or if Executive shall resign
in accordance with Section 9.4(a), ANTIM shall:
(1) pay Executive his Base Salary after the Change
of Control through the Date of Termination plus the aggregate
amount of any bonus accrued but unpaid as of such Date of
Termination; and,
(2) pay Executive an amount in cash which, when
added to the present value of all other compensation, benefits
and payments required to be included in the calculation under
Section 280G of the Internal Revenue Code of 1986, as amended,
(the "Code") and regulations thereunder, shall equal 299% of
the "base amount" as defined under Section 280G of the Code.
"Base amount" shall, however, include only Executive's Base
Salary and shall exclude any incentive compensation. Such
amount shall be payable in equal installments over thirty-six
(36) months from the Date of Termination at the same
frequencies as salaries paid to other salaried employees of
ANTIM; provided, however, if Executive obtains employment,
ANTIM's obligation to pay such amount over thirty-six (36)
months shall continue but shall be reduced to that amount
necessary which, when added to Executive's salary from his new
employment, will maintain Executive at the equal monthly
installment amount payable by ANTIM described above; and,
(3) continue Executive's participation in the
life, accident, disability and health insurance plans of
ANTIM, or provide equivalent benefits, at no cost to
Executive, until the third anniversary of the date of
termination, or if earlier, at Executive's commencement of
full-time employment with a new employer; provided, however,
that in the event Executive dies before the expiration of the
period during which ANTIM would be required to continue
Executive's participation in such insurance plans, the
participation of Executive's surviving
spouse and family in ANTIM's insurance plans shall continue in
accordance with ANTIM's standard policy for a spouse and
family of a deceased employee in effect at the time of the
Change of Control; and
(4) pay those expenses incurred by Executive which
are not reimbursed by the new employer in connection with his
obtaining full-time employment with a new employer, including
the cost associated with employment search firms, travel in
obtaining full-time employment, temporary housing and related
relocation expenses, provided, however, that such expenses to
be paid by ANTIM shall not exceed 50% of Executive's Base
Salary and bonus determined as of the date of termination. In
addition, ANTIM shall provide a customary home guarantee
purchase of Executive's residence, the value of the home to be
determined by at least one real estate appraiser designated by
him and satisfactory to ANTIM.
(5) The provisions of this Section 9.4 shall
survive termination of this Agreement, termination of
Executive's employment under this Agreement and the election
by either party not to renew this Agreement as provided in
Section 2.
10. Noncompetition.
(a) Executive agrees that during his employment by ANTIM
and for a period of one (1) year following termination of Executive's
employment for any reason other than those specified in Sections 9.2,
9.3 or 9.4, Executive will not for any person or entity engaged in
providing trust and fiduciary services, investment management services
or any other business in which ANTIM is engaged, directly or
indirectly, solicit or perform such services or business or assist
others in any way to solicit or perform such services or business in
▇▇▇▇▇▇ County, Indiana.
(b) The covenants set forth in this Section 10 shall apply
to Executive as an individual for his own account, as a partner, as an
employee, as an officer, director, or owner of an entity (other than
as a shareholder of a corporation whose shares are registered with the
Securities and Exchange Commission and traded on a public market), or
otherwise, and shall specifically prohibit the solicitation,
suggestion, advice, counselling or otherwise encouraging other
employees or agents of ANTIM or ANBC (or any other entity affiliated
with ANTIM or ANBC) to seek or accept employment with any competitor
or client which is also a competitor of ANTIM for the above specified
period in ▇▇▇▇▇▇ County.
(c) Executive recognizes that this Section 10 is designed
and intended to protect valuable proprietary information owned by
ANTIM and the substantial investment ANTIM is making in Executive.
Executive further acknowledges that the restrictions contained in this
Agreement are reasonable as to geographic area, duration and scope of
employment activities. In order to protect ANTIM's proprietary
information and ANTIM's investment, and in recognition of the
difficulty in measuring damages resulting from any breach of this
Section 10, and the fact that money damages may well be inadequate,
Executive specifically agrees that ANTIM or ANBC may obtain
injunctions (temporary, preliminary and permanent) or other
appropriate orders to restrain any breach without showing any actual
damages, and to recover all costs and expenses, including attorneys'
fees, incurred in enforcing this Section 10. The parties agree that
ANBC is a third party beneficiary of the provisions of this Section 10
and as such may enforce said provisions.
11. Notice. Any notice required or permitted to be given
hereunder shall be given in writing and may be given by telex, telegram,
facsimile transmission or similar method if confirmed by mail as herein
provided; by mail if sent postage prepaid by registered mail, return receipt
requested; or by hand delivery to any party at the address of the party set
forth below. If notice is given by telex, telegram or facsimile
transmission or similar method or by hand delivery, it shall be deemed to have
been given or made on the date on which it was given, and if mailed, shall be
deemed to have been given or made on the fifth business day following the day
after which it was mailed. Any party may, from time to time, by like notice
give notice of any change of address and in such event, the address of such
party shall be deemed to be changed accordingly.
(a) In the case of ANTIM, to:
American National Trust and Investment Management Company
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
President and Chief Executive Officer
With a copy to:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Darko
Bank One Tower
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(a) In the case of ANBC, to:
ANB Corporation
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
With a copy to:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Darko
Bank One Tower
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(c) In the case of Executive, to:
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12. General. The following terms shall govern this Agreement:
12.1 Amendments; Waivers. This Agreement may not be changed
orally, but only in agreement in writing signed by the parties; the waiver by
any party of compliance with provisions of this Agreement by any other party
shall not operate or be construed as a waiver of any subsequent breach by such
party.
12.2 Captions. The section captions are inserted merely for the
purpose of identification and shall be given no significance in determining
the meaning of any section.
12.3 Governing Law. This Agreement shall be interpreted and
governed by the laws of the State of Indiana, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws.
12.4 Successors and Assigns. This Agreement shall be binding and
inure to the benefit of the parties hereto, and any successors and assigns of
ANTIM and ANBC, and to any successors, assigns, heirs and the personal
representatives of Executive.
12.5 Severability. If any provision hereon is or becomes illegal,
invalid or unenforceable under the laws of a particular jurisdiction, then:
(a) such provision shall be fully severable from this Agreement with respect
to such laws; (b) with resect to such laws, such provision shall be deemed
modified to impose the maximum duty permitted by such laws and such provision
be legal, valid and enforceable in such modified form as if separately stated
in and made part of this Agreement; (c) the remaining provision of this
Agreement shall remain in full force and effect in such jurisdiction and shall
not be affected by such provision or by its severance from this Agreement; and
(d) all of the provisions of this Agreement shall remain in full force and
effect in all other jurisdictions and shall not be affected by the severance
and replacement of such provision under the laws of such jurisdiction.
12.6 Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject matter
hereof, and supersedes all prior agreements, arrangements and understandings,
written or oral, between or among the parties with respect to the subject
matter hereof, except as specifically provided herein. There are no oral
promises, conditions, representations, understandings, interpretations or
terms of any kind of conditions or inducements to Executive hereof or in
effect among the parties. No custom or trade usage, nor course of conduct
among the parties, shall be relief upon to vary the terms hereof.
12.7 Survival of Certain Provisions. The provisions of Sections 7,
8, 9, 10, 11 and 12 shall, to the extent applicable, continue in full force
and effect notwithstanding the expiration or earlier termination of this
Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
"ANTIM":
AMERICAN NATIONAL TRUST AND
INVESTMENT MANAGEMENT COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., President and
Chief Executive Officer
"ANBC":
ANB CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, President and
Chief Executive Officer
"EXECUTIVE":
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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