Exhibit 10.5
HARVARD SAVINGS
BANK
EMPLOYMENT
AGREEMENT
This Agreement is made effective as
of the 1 st
day of January, 2008, by and between
Harvard Savings Bank (the “Bank”), an Illinois
chartered savings institution, with its principal administrative
office at 58 North Ayer Street, Harvard, Illinois 60033 and Donn L.
Claussen (“Executive”).
WHEREAS , the Bank wishes to retain the services of
Executive as an Executive Vice President of the Bank for the period
provided in this Agreement; and
WHEREAS , Executive is willing to serve in the employ of
the Bank on a full-time basis for said period; and
WHEREAS , in order to induce Executive to remain in the
employ of the Bank and to provide further incentive to achieve the
financial and performance objectives of the Bank, the parties
desire to specify the severance benefits which shall be due to
Executive in the event that his employment with the Bank is
terminated under specified circumstances.
NOW, THEREFORE
, in consideration of the mutual
covenants herein contained, and upon the other terms and conditions
hereinafter provided, the parties hereby agree as
follows:
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1.
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POSITION AND
RESPONSIBILITIES
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During the period of his employment
hereunder, Executive agrees to serve as Executive Vice President of
the Bank. In such capacity, Executive shall be the senior executive
officer responsible for all accounting and finance activities for
the Bank, its holding companies and all other affiliates or
subsidiaries of the Bank, as well as other duties that are
customarily assigned to an Executive Vice President and Chief
Financial Officer of a financial institution. During said period,
Executive also agrees to serve, if elected, as an officer and
director of any subsidiary or affiliate of the Bank. Failure to
reelect Executive as Executive Vice President without the consent
of the Executive during the term of this Agreement shall constitute
a breach of this Agreement.
(a) The period of Executive’s
employment under this Agreement shall begin as of the date first
above written and shall continue for a period of thirty-six
(36) full calendar months thereafter. Commencing on the first
anniversary date of this Agreement, and continuing at each
anniversary date thereafter, the Agreement shall renew for an
additional year such that the remaining term shall be three
(3) years unless written notice is provided to Executive at
least thirty(30) days and not more than sixty (60) days prior
to any such anniversary date, that his employment shall cease at
the end of twenty-four (24) months following such anniversary
date. Prior to each notice period for non-renewal, the
disinterested members of the Board of Directors of the Bank
(“Board”) will conduct a comprehensive performance
evaluation and review of the Executive for purposes of determining
whether to extend the Agreement, and the results thereof shall be
included in the minutes of the Board’s meeting.
(b) During the period of his
employment hereunder, except for periods of absence occasioned by
illness, reasonable vacation periods, and reasonable leaves of
absence, Executive shall devote substantially all his business
time, attention, skill, and efforts to the faithful performance of
his duties hereunder; provided, however, that, with the approval of
the Board, as evidenced by a resolution of such Board, from time to
time, Executive may serve, or continue to serve, on the boards of
directors of, and hold any other offices or positions in, companies
or organizations, which, in such Board’s judgment, will not
present any conflict of interest with the Bank, or materially
affect the performance of Executive’s duties pursuant to this
Agreement. Nothing in this Section shall be construed as preventing
the Executive from serving from time to time on boards, committees,
or holding positions of non-profit or governmental organizations,
including religious and civic groups, without the need for Board
approval.
(c) The Board, the Nominating
Committee of the Bank’s Board or any Bank committee serving a
similar function shall nominate Executive to stand for election to
the Board at the next annual meeting of the Bank. In the event the
Executive is elected to the Board, in addition to the foregoing,
Executive shall be entitled to receive fees for serving as a
director of the Bank in the same amount and on the same terms as
fees are paid to other employee directors of the Bank.
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3.
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COMPENSATION
AND REIMBURSEMENT
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(a) The compensation specified under
this Agreement shall constitute the salary and benefits paid for
the duties described in Section 2(b). The Bank shall pay
Executive as compensation a salary of not less than $132,080 per
year (“Base Salary”). Such Base Salary shall be payable
twice monthly, or in accordance with the Bank’s normal
payroll practices. During the period of this Agreement,
Executive’s Base Salary shall be reviewed at least annually;
such review will be made no later than December 31 of each
year during the term of this Agreement and shall be effective from
the first day of said the following month through the end of the
calendar year. Such review shall be conducted by the Board or a
Committee designated by the Board, and the Board may increase, but
not decrease, Executive’s Base Salary, other than a decrease
that occurs pursuant to an employer-wide reduction of compensation
of all officers of the Bank and provided that the reduction of
Executive’s Base Salary is not in excess of the average
percentage of the employer-wide reduction. Any increase in
Executive’s Base Salary shall become the “Base
Salary” for purposes of this Agreement. In addition to the
Base Salary provided in this Section 3(a), the Bank shall
provide Executive at no cost to Executive with all such other
benefits as are provided uniformly to permanent full-time employees
of the Bank.
(b) The Bank will provide Executive
with employee benefit plans, arrangements and perquisites
substantially equivalent to those generally provided to the
Bank’s senior officers immediately prior to the beginning of
the term of this Agreement, and the Bank will not, without
Executive’s prior written consent, make any changes in such
plans, arrangements or perquisites which would adversely affect
Executive’s rights or benefits thereunder, other than a
change that occurs pursuant to a reduction in benefits under such
plans, arrangements or perquisites that similarly affects all
senior officers of the Bank. Executive will be entitled to
participate in all bonus and similar programs available to the
Bank’s senior officers, with participation for any partial
year being appropriately pro-rated. The Bank shall provide the
Executive with term life insurance with a death benefit at least
equal to $350,000 and shall pay the same percentage of the
Executive’s family health
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insurance premiums as paid for other similarly
situated senior officers of the Bank. Without limiting the
generality of the foregoing provisions of this Subsection (b),
Executive will be entitled to participate in or receive benefits
under any employee benefit plan, including but not limited to,
retirement plans, supplemental retirement plans, pension plans,
profit-sharing plans, health-and-accident plans, medical coverage
or any other employee benefit plan or arrangement made available by
the Bank in the future to its senior executives and key management
employees, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans and
arrangements.
(c) Executive shall be entitled to a
minimum of four (4) weeks of paid vacation time each year
during the term of this Agreement, as well as sick leave, holidays,
other paid absences and additional paid vacation in accordance with
the Bank’s policies and procedures for senior officers. Any
unused paid time off during an annual period shall be treated in
accordance with the Bank’s personnel policies as in effect
from time to time.
(d) The Bank shall pay or reimburse
Executive for all reasonable travel and other reasonable expenses
incurred by Executive performing his obligations under this
Agreement and may provide such additional compensation in such form
and such amounts as the Board may from time to time determine. The
Bank shall reimburse Executive for his ordinary and necessary
business expenses, including, without limitation, licensing and CPE
fees associated with the Executive’s Illinois CPA, Insurance,
and Brokerage Licenses. Furthermore, the Bank shall reimburse the
Executive for the reasonable costs that are necessary in
maintaining the Executive’s membership to the Financial
Managers Society, and incurred in providing the Executive with a
continuing education necessary to improve the required skills of a
senior Bank executive and in sending the Executive to commercial
lending training.
(e) The Bank shall provide Executive
with non-qualified deferred compensation on the same general terms
as the deferred compensation arrangements of the Bank’s Chief
Executive Officer on the date hereof. Such deferred compensation
shall provide a benefit at retirement in the amount of at least
$52,000 per year for a term of 15 years with a pro rata vesting
schedule of not more than 10 years. Notwithstanding any other
provision herein to the contrary, in the event that
Executive’s employment is terminated in accordance with
Section 4(a)(i) below, Executive shall be entitled to receive,
regardless of whether or not vested, such portion of his deferred
compensation which has already been accrued on the date of
termination plus such additional amounts of deferred compensation
as would have been accrued had the Executive been employed for an
additional three years following the date of
termination.
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4.
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PAYMENTS TO
EXECUTIVE UPON AN EVENT OF TERMINATION
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The provisions of this Section shall
in all respects be subject to the terms and conditions stated in
Sections 8 and 15.
(a) The provisions of this Section
shall apply upon the occurrence of an Event of Termination (as
herein defined) during the Executive’s term of employment
under this Agreement. As used in this Agreement, an “Event of
Termination” shall mean and include any one or more of the
following: (i) the termination by the Bank of
Executive’s full-time employment hereunder for any
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reason other than, (A) disability or
retirement as defined in Section 6 below, (B) a Change in
Control, as defined in Section 5(a), or (C) Termination
for Cause as defined in Section 7 hereof; or
(ii) Executive’s resignation from the Bank’s
employ, upon any (A) failure to elect or reelect or to appoint
or reappoint Executive as Executive Vice President,
(B) failure to appoint Executive to the board of the Bank,
Harvard Illinois Financial Corporation (the “Holding
Company”) and Harvard Savings, MHC (the “MHC”) by
March 5, 2008, (C) failure to renominate and reelect
Executive to the Bank’s, the Holding Company’s and the
MHC’s boards following his appointment thereto provided,
however, that any failure to elect Executive to such boards which
results from the actions of non-affiliated stockholders, shall not
be deemed an Event of Termination, (D) material change in
Executive’s function, duties, or responsibilities, which
change would cause Executive’s position to become one of
lesser responsibility, importance, or scope from the position and
attributes thereof described in Section 1, above, (E) a
relocation of Executive’s principal place of employment by
more than 15 miles from its location at the effective date of this
Agreement, or a material reduction in the benefits and perquisites
to the Executive from those being provided as of the effective date
of this Agreement, (F) liquidation or dissolution of the Bank
other than liquidations or dissolutions that are caused by
reorganizations that do not affect the status of Executive, or
(G) any other breach of this Agreement by the Bank. Upon the
occurrence of any event described in clauses (ii)(A), (B), (C),
(D), (E), (F) or (G), above, Executive shall have the right to
elect to terminate his employment under this Agreement by
resignation upon not less than 30 days prior written notice given
within a reasonable period of time (not to exceed 90 days) after
the event giving rise to the right to elect, which termination by
Executive shall be an Event Termination. The Bank shall have at
least 30 days to remedy any condition set forth in clause
(ii) (A) through (G), provided, however, the Bank shall
be entitled to waive such period and make an immediate payment
hereunder. In the event of Executive’s resignation for any
reason other than as specifically set forth in this
Section 4(a). Executive shall not be entitled to any benefits
under this Agreement.
(b) Upon the occurrence of an Event
of Termination, on the Date of Termination, as defined in
Section 8, the Bank shall pay Executive, or, in the event of
his subsequent death, his beneficiary or beneficiaries, or his
estate, as the case may be, as severance pay or liquidated damages,
or both, a sum equal to the Base Salary due to Executive for the
remaining unexpired term of the Agreement; provided ,
however , that if the Bank is not in compliance with its
minimum capital requirements or if such payments would cause the
Bank’s capital to be reduced below its minimum capital
requirements, such payments shall be deferred until such time as
the Bank is in capital compliance. All amounts payable hereunder
shall be made in a lump sum without reduction in the event the
Executive obtains employment following an Event Termination, and
shall commence within thirty (30) days following the
Executive’s Date of Termination, or if the Executive is a
Specified Employee (within the meaning of Treasury Regulation
§ 1.409A-1(i))), shall commence on the first business
day of the seventh month following the Executive’s Date of
Termination.
(c) Upon the occurrence of an Event
of Termination, the Bank will cause to be continued life insurance
and non-taxable medical and dental coverage substantially identical
to the coverage maintained by the Bank for Executive prior to his
termination, provided that such benefits shall not be provided in
the event they should constitute an unsafe or unsound banking
practice relating to executive compensation and employment
contracts pursuant to applicable regulations, as is now or
hereafter in effect. Such coverage shall cease upon the expiration
of the remaining term of this Agreement.
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(d) The Executive’s
“involuntary termination by the Bank” and
“resignation from the Bank’s employ” in
accordance with Section 4(a) shall be construed to mean a
“Separation from Service” as defined in Code
Section 409A and the Treasury Regulations promulgated
thereunder, provided, however, that the Bank and Executive
reasonably anticipate that the level of bona fide services the
Executive would perform after termination would permanently
decrease to a level that is less than 50% of the average level of
bona fide services performed (whether as an employee or an
independent contractor) over the immediately preceding 36-month
period.
(a) No benefit shall be payable
under this Section 5 unless there shall have been a Change in
Control of the Bank or the Holding Company, as set for