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Exhibit
10.5
FORM OF
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT (the “Agreement”) is entered into as
[date] , by and among FIRST SAVINGS FINANCIAL GROUP,
INC. , an Indiana corporation (the “Corporation”),
FIRST SAVINGS BANK, FSB , a federally-chartered savings bank
and a wholly-owned subsidiary of the Corporation (the
“Bank”), and [NAME] (the
“Executive”). The Corporation and the Bank are
sometimes referred to in this Agreement individually and together
as the “Employer.”
WHEREAS, the Executive
serves in position of substantial responsibility with the
Corporation and the Bank;
WHEREAS , the
Corporation and the Bank wish to set forth the terms of the
Executive’s continued employment in these
positions;
WHEREAS, the Executive
is willing and desires to serve in these positions with the
Corporation and the Bank.
NOW THEREFORE, in
consideration of these premises, the mutual covenants contained
herein, and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows.
ARTICLE 1
EMPLOYMENT
1.1 Employment
. The Employer hereby employs the Executive to serve as
[title] of each of the Corporation and the Bank according to
the terms and conditions of this Agreement and for the period
stated in Section 1.3 of this Agreement. The Executive hereby
accepts employment according to the terms and conditions of this
Agreement and for the period stated in Section 1.3 of this
Agreement.
1.2 Duties . As
[title], the Executive shall serve under the boards of
directors. The Executive shall report directly to the boards of
directors. The Executive shall serve the Employer faithfully,
diligently, competently, and to the best of the Executive’s
ability. The Executive shall exclusively devote full working time,
energy, and attention to the business of the Employer and to the
promotion of the interests of the Employer throughout the term of
this Agreement. Without the prior written consent of the board of
directors of each of the Corporation and the Bank, during the term
of this Agreement the Executive shall not render services to or for
any person, firm, corporation, or other entity or organization in
exchange for compensation, regardless of the form in which the
compensation is paid and regardless of whether it is paid directly
or indirectly to the Executive. Nothing in this Section 1.2
shall prevent the Executive from managing personal investments and
affairs, provided that doing so does not interfere with the proper
performance of the Executive’s duties and responsibilities
under this Agreement.
1.3 Term
.
(a) The term of this
Agreement shall include: (i) the initial term, consisting of
the period commencing on the date of this Agreement (the
“Effective Date”) and ending on the third anniversary
of the Effective Date, plus (ii) any and all extensions of the
initial term made pursuant to this Section 1.3.
(b) Commencing on the first
anniversary of the Effective Date and continuing on each
anniversary of the Effective Date thereafter, the disinterested
members of the Boards of Directors may
extend the Agreement term for an
additional year, so that the remaining term of the Agreement again
becomes thirty-six (36) months, unless Executive elects not to
extend the term of this Agreement by giving proper written notice.
The Boards of Directors will review the Agreement and
Executive’s performance annually for purposes of determining
whether to extend the Agreement term and will include the rationale
and results of its review in the minutes of the meetings. The
Boards of Directors will notify Executive as soon as possible after
each annual review whether it has determined to extend the
Agreement.
1.4 Service on the
Boards of Directors . The Executive serves as a member of
the board of directors each of the Corporation and the Bank. The
board of directors of each of the Corporation and the Bank shall
undertake every lawful effort to ensure that the Executive
continues throughout the term of his employment to be elected or
reelected as a director of the Corporation and the Bank.
Notwithstanding anything in this Agreement to the contrary, unless
otherwise agreed to by the parties, the Executive shall be deemed
to have resigned as a director of each of the Corporation and the
Bank effective immediately after termination of the
Executive’s employment under Article 3 of this Agreement,
regardless of whether the Executive submits a formal, written
resignation as director.
ARTICLE 2
COMPENSATION AND
BENEFITS
2.1 Base Salary
. In consideration of the Executive’s performance of the
obligations under this Agreement, the Employer shall pay or cause
to be paid to the Executive a salary at the annual rate of not less
than $ [amount] , payable according to the regular payroll
practices of the Employer. The Executive’s salary shall be
subject to annual review. The Executive’s salary, as the same
may be modified from time to time, is referred to in this Agreement
as the “Base Salary.” All compensation under this
Agreement shall be subject to customary income tax withholding and
such other employment taxes as are imposed by law.
2.2 Benefit Plans and
Perquisites . For as long as the Executive is employed by
the Employer, the Executive shall be eligible (x) to
participate in any and all officer or employee compensation,
incentive compensation and benefit plans in effect from time to
time, including without limitation plans providing retirement,
medical, dental, disability, and group life benefits and including
stock-based compensation, incentive, or bonus plans existing on the
date of this Agreement or adopted after the date of this Agreement,
provided that the Executive satisfies the eligibility requirements
for any the plans or benefits, and (y) to receive any and all
other fringe and other benefits provided from time to time,
including the specific items described in
(a)-(d) below.
(a) Club dues .
In addition to any other compensation provided for under this
Agreement, the Employer shall pay the Executive an amount
sufficient, on an after-tax basis, to maintain his membership at
the [name] .
(b) Reimbursement of
business expenses . The Executive shall be entitled to
reimbursement for all reasonable business expenses incurred while
performing his obligations under this Agreement, including but not
limited to all reasonable business travel and entertainment
expenses incurred while acting at the request of or in the service
of the Employer and reasonable expenses for attendance at annual
and other periodic meetings of trade associations. Expenses will be
reimbursed if they are submitted in accordance with the
Employer’s policies and procedures.
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(c) Automobile
. The Employer shall provide the Executive with, and the
Executive shall have the primary use of, an automobile owned or
leased by the Employer the Employer shall pay (or reimburse the
Executive) for all expenses of insurance, registration, operation
and maintenance of the automobile. The Executive shall comply with
reasonable reporting and expense limitations on the use of such
automobile, as the Employer may establish from time to time, and
the Employer shall annually include on the Executive’s Form
W-2 any amount attributable to the Executive’s personal use
of such automobile.
(d) Facilities
. The Employer will furnish the Executive with the working
facilities and staff customary for executive officers with the
comparable titles and duties of the Executive as set forth in
Sections 1.1 and 1.2 of this Agreement and as are necessary for the
Executive to perform his duties. The location of such facilities
and staff shall be at the principal administrative offices of the
Corporation, or at such other site or sites customary for such
offices.
2.3 Vacation; Leave
. The Executive shall be entitled to sick leave and paid annual
vacation in accordance with policies established from time to time
by the Employer. In addition to paid vacations and other leave, the
boards of directors may grant the Executive a leave or leaves of
absence, with or without pay, at such time or times and upon such
terms and conditions as the boards of directors may
determine.
2.4 Insurance .
The Employer shall maintain or cause to be maintained liability
insurance covering the Executive throughout the term of this
Agreement.
ARTICLE 3
EMPLOYMENT
TERMINATION
3.1 Termination Because
of Death .
(a) Death . The
Executive’s employment shall terminate automatically at the
Executive’s death. If the Executive dies in active service to
the Employer, the Executive’s estate shall receive any sums
due to the Executive as base salary and reimbursement of expenses
through the end of the month in which his death
occurred.
(b) Disability
. By delivery of written notice thirty (30) days in
advance to the Executive, the Employer may terminate the
Executive’s employment if the Executive is disabled. For
purposes of this Agreement the Executive shall be considered
“disabled” if an independent physician selected by the
Employer and reasonably acceptable to the Executive or the
Executive’s legal representative determines that, because of
illness or accident, the Executive is unable to perform the
Executive’s duties and will be unable to perform the
Executive’s duties for a period of ninety
(90) consecutive days. The Executive shall not be considered
disabled, however, if the Executive returns to work on a full-time
basis within thirty (30) days after the Employer gives notice
of termination due to disability. If the Executive is terminated by
either of the Corporation or the Bank because of disability, the
Executive’s employment with the other shall also terminate at
the same time. During the period of incapacity leading up to the
termination of the Executive’s employment under this
provision, the Employer shall continue to pay the full Base Salary
at the rate then in effect and all perquisites and other benefits
(other than bonus) until the Executive becomes eligible for
benefits under any disability plan or insurance program maintained
by the Employer, provided that the amount of the payments by the
Employer to the Executive under this Section 3.1(b) shall be
reduced by the sum of the amounts, if any, payable to the Executive
for the same period under any disability benefit or pension plan
covering the Executive.
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3.2 Involuntary
Termination with Cause . The Employer may terminate the
Executive’s employment for Cause. If the Executive’s
employment terminates for Cause, the Executive shall receive the
Base Salary through the date on which termination becomes effective
and reimbursement of expenses to which the Executive is entitled
when termination becomes effective. If the Executive is terminated
for Cause by either of the Corporation or the Bank, the Executive
shall be deemed also to have been terminated for Cause by the
other. The Executive shall not be deemed to have been terminated
for Cause under this Agreement unless and until there is delivered
to the Executive a copy of a resolution adopted at a meeting of the
board of directors called and held for the purpose, which
resolution shall (x) contain findings that the Executive has
committed an act constituting Cause, and (y) specify the
particulars thereof. The resolution of the board of directors shall
be deemed to have been duly adopted if and only if it is adopted by
the affirmative vote of a majority of the directors of the
Corporation then in office or a majority of the directors of the
Bank then in office, in either case excluding the Executive. Notice
of the meeting and the proposed termination for Cause shall be
given to the Executive a reasonable time before the meeting of the
board of directors. The Executive and the Executive’s counsel
(if the Executive chooses to have counsel present) shall have a
reasonable opportunity to be heard by the board of directors at the
meeting. For purposes of this Agreement “Cause” means
any of the following:
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(4) |
Breach of fiduciary duty involving personal profit; |
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(5) |
Intentional failure to perform stated duties; |
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(6) |
Willful violation of any law, rule or regulation (other than
traffic violations or similar offenses) or final cease-and-desist
order; or |
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(7) |
Material breach of any provision of this Agreement. |
3.3 Voluntary
Termination by the Executive Without Good Reason . If the
Executive terminates employment without Good Reason, the Executive
shall receive the Base Salary and expense reimbursement to which
the Executive is entitled through the date on which termination
becomes effective.
3.4 Involuntary
Termination Without Cause and Voluntary Termination with Good
Reason . With written notice to the Executive thirty
(30) days in advance, the Employer may terminate the
Executive’s employment without Cause. Termination shall take
effect at the end of the thirty (30) day period. With advance
written notice to the Employer as provided in clause (y), the
Executive may terminate employment for Good Reason. If the
Executive’s employment terminates involuntarily without Cause
or voluntarily but with Good Reason, the Executive shall be
entitled to the benefits specified in Article 4 of this Agreement.
For purposes of this Agreement a voluntary termination by the
Executive shall be considered a voluntary termination with Good
Reason if the conditions stated in both clauses (x) and
(y) of this Section 3.4 are satisfied:
(x) a voluntary termination
by the Executive shall be considered a voluntary termination with
Good Reason if any of the following occur without the
Executive’s written consent, and the term Good Reason shall
mean the occurrence of any of the following without the
Executive’s written consent:
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(1) |
a material diminution of the Executive’s Base
Salary, |
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(2) |
a material diminution of the Executive’s authority,
duties, or responsibilities, or |
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(3) |
a change in the geographic location at which the Executive must
perform services for the Employer by more than 35 miles from such
location at the effective date. |
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(y) the Executive must give
notice to the Employer of the existence of one or more of the
conditions described in clause (x) within sixty (60) days
after the initial existence of the condition, and the Employer
shall have thirty (30) days thereafter to remedy the
condition. In addition, the Executive’s voluntary termination
because of the existence of one or more of the conditions described
in clause (x) must occur within six (6) months after the
initial existence of the condition.
ARTICLE 4
SEVERANCE
COMPENSATION
4.1 Cash Severance
after Termination Without Cause or Termination for Good Reason
.
(a) Subject to the
possibility that cash severance after employment termination might
be delayed under Section 4.1(b), if the Executive’s
employment terminates involuntarily but without Cause or if the
Executive voluntarily terminates employment with Good Reason, the
Executive shall for the unexpired term of this Agreement and in
accordance with the Employer’s regular pay practices continue
to receive the Base Salary in effect at employment. However, the
Employer and the Executive acknowledge and agree that the
compensation and benefits under this Section 4.1 shall not be
payable if compensation and benefits are payable or shall have been
paid to the Executive under Article 5 of this Agreement.
(b) If when employment
termination occurs the Executive is a “specified
employee” within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”)
if the cash severance payment under Section 4.1(a) would be
considered deferred compensation under Section 409A of the
Code, and finally if an exemption from the six-month delay
requirement of Section 409A(a)(2)(B)(i) of the Code is not
available, the Executive’s continued Base Salary under
Section 4.1(a) for the first six months after employment
termination shall be paid to the Executive in a single lump sum
without interest on the first day of the seventh (7
th
) month after the month
in which the Executive’s employment terminates. References in
this Agreement to Section 409A of the Code include rules,
regulations, and guidance of general application issued by the
Department of the Treasury under Internal Revenue Section 409A
of the Code.
4.2 Post-Termination
Insurance Coverage .
(a) If the Executive’s
employment terminates involuntarily but without Cause or
voluntarily but with Good Reason, or because of disability, the
Employer shall continue or cause to be continued at the
Employer’s expense medical insurance benefits for the
Executive and any of his dependents covered at the time of his
termination. The medical insurance benefits shall continue until
the first to occur of (w) the Executive’s return to
employment with the Employer or another employer, (x) the
Executive’s attainment of age 65, (y) the
Executive’s death, or (z) the end of the term remaining
under this Agreement when the Executive’s employment
terminates.
(b) If (x) under the
terms of the applicable policy or policies for the insurance
benefits specified in section 4.2(a) it is not possible to continue
coverage for the Executive and his dependents, or (y) when
employment termination occurs the Executive is a “specified
employee” within the meaning of Section 409A of the
Code, if any of the continued insurance coverage benefits specified
in Section 4.2(a) would be considered deferred compensation
under Section 409A of the Code, and finally, if an exemption
from the six-mon
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