Exhibit 10 (l)
CHANGE OF CONTROL AGREEMENT
THIS AGREEMENT dated as of the 1st day of November, 1990 (the
"Effective Date") as amended and restated as of January 25, 1995 (the
"Agreement") by and between INTEGRA FINANCIAL CORPORATION, a Pennsylvania
corporation with its principal place of business at Pittsburgh,
Pennsylvania (the "Company"), and _________________________ (the
"Employee");
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interest of the Company and its
shareholders to assure that the Company will have the continued dedication
of the Employee, notwithstanding the possibility, threat or occurrence of a
Change of Control (as defined below) of the Company. The Board believes it
is imperative to diminish the inevitable distraction of the Employee by
virtue of the personal uncertainties and risks created by a pending or
threatened Change of Control and to encourage the Employee's full attention
and dedication to the Company currently and in the event of any threatened
or pending Change of Control, and to provide the Employee with compensation
and benefits arrangements upon a Change of Control which ensure that the
compensation and benefits expectations of the Employee will be satisfied
and which are competitive with those of other corporations. Therefore, in
order to accomplish these objectives, the Board has caused the Company to
enter into this Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and intending to be legally bound hereby, the parties
hereto agree as follows:
* Term. The term of this Agreement shall commence on the
Effective Date hereof and expire on March 31, 1997, provided, however,
that, unless Employee's employment as been terminated, on April 1, 1996 and
on each subsequent annual anniversary thereof, the expiration date of this
Agreement shall be automatically extended for one additional year, provided
that neither party hereto has given written notice to the other party at
least thirty (30) days prior to such annual anniversary date of the desire
of that party not to have the Agreement so extended, and provided further
that if a Change of Control occurs during the term of this Agreement, the
expiration date of this Agreement shall be extended to the second
anniversary of the date of the consummation of the Change of Control.
Notwithstanding the foregoing, the Employee shall serve in said office(s)
at the pleasure of the Board, and the Employee may be removed from said
office(s) at any time with or without Cause (as hereinafter defined);
provided that such removal shall be without prejudice to any rights the
Employee may have to Salary and Benefits Continuation (as hereinafter
defined) hereunder.
* Change of Control. Change of Control shall mean any of
the following events (each of such events being herein referred to as a
"Change of Control"):
(a) The sale or other disposition by the Company of all or
substantially all of its assets to a single purchaser or to a group
of purchasers, other than to a corporation with respect to which,
following such sale or disposition, more than eighty percent (80%)
of, respectively, the then outstanding shares of Company common stock
and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of the Board is
then owned beneficially, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the outstanding Company common
stock and the combined voting power of the then outstanding voting
securities immediately prior to such sale or disposition in
substantially the same proportion as their ownership of the
outstanding Company common stock and voting power immediately prior
to such sale or disposition;
(b) The acquisition in one or more transactions by any person
or group, directly or indirectly, of beneficial ownership of twenty
percent (20%) or more of the outstanding shares of Company common
stock or the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election
of the Board; provided however, that any acquisition by (x) the
Company or any of its subsidiaries, or any employee benefit plan (or
related trust) sponsored or maintained by the Company or any of its
subsidiaries or (y) any person that is eligible, pursuant to Rule
13d-1(b) under the Exchange Act (as such rule is in effect as of
January 1, 1995), to file a statement on Schedule 13G with respect to
its beneficial ownership of Company common stock and other voting
securities whether or not such person shall have filed a statement on
Schedule 13G, unless such person shall have filed a statement on
Schedule 13D with respect to beneficial ownership of fifteen percent
(15%) or more of the Company's voting securities, shall not
constitute a Change of Control;
(c) The Company's termination of its business and liquidation
of its assets;
(d) The reorganization, merger or consolidation of the
Company into or with another person or entity, by which
reorganization, merger or consolidation the persons who held one
hundred percent (100%) of the voting securities of the company prior
to such reorganization, merger or consolidation receive or continue
to hold less than fifty percent (50%) of the outstanding voting
shares of the new or continuing corporation; or
(e) If, during any two-year period, less than a majority of
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the members of the Board of Directors are persons who were either (i)
nominated or recommended for election by at least two-thirds vote of
the persons who were members of the Board of Directors or Nominating
Committee of the Board of Directors at the beginning of the period,
or (ii) elected by at least a two-thirds vote of the persons who were
members of the Board of Directors at the beginning of the period.
* Salary and Benefits Continuation. "Salary and Benefits
Continuation" shall be defined to mean the continued payment of salary and
medical and dental (if applicable) benefits (not including applicable
Employee co-payments, if any, existing immediately prior to the Change of
Control) for the Employee and his/her eligible dependents in effect
immediately before the Change of Control for the twenty-four (24) month
period following Employee's termination of employment in connection with a
Change of Control as described above. (In the event that medical and
dental benefits cannot be provided under appropriate group insurance
policies, an amount equal to the premium necessary for the Employee to
purchase directly the same level of coverage in effect immediately prior to
the Change of Control will be added to the monthly salary payment.) If
there is a Change of Control as defined above, the Company will provide
Salary and Benefits Continuation if at any time during the first twenty-
four (24) months following the consummation of a Change of Control, either
(i) the Company terminates the Employee's employment other than for Cause
as defined in Section 4 below or (ii) the Employee terminates his/her
employment for Good Reason, which is defined as:
Material breach of any provision of this Agreement by the
Company, which breach shall not have been cured by the Company within
thirty (30) days of the Company's receipt from the Employee or
his/her agent of written notice specifying in reasonable detail the
nature of the Company's breach;
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(a) Change in the Employee's location outside of the
Pittsburgh metropolitan area without the Employee's prior written
consent;
(b) The assignment to the Employee of any duties inconsistent
in any material respect with the Employee's position (including
status and reporting requirements), authority, duties, powers or
responsibilities or any other action by the Company which results in
a material diminution of such position, authority, duties, powers or
responsibilities, excluding for this purpose any isolated,
insubstantial action by the Company not taken in bad faith and which
is remedied by the Company within thirty (30) days after receipt of
written notice from the Employee to the Company; provided, however,
that any diminution in the Employee's position, authority, duties,
powers or responsibilities solely as a result of a change in the
Company's relative position in an overall organization (e.g.,
Employee's position changes from executive of parent corporation to
executive with substantially similar duties, powers and
responsibilities within a corporation which is only one of multiple
subsidiaries in a larger organization) following a Change of Control
shall not constitute Good Reason; or
(c) Reduction in the Employee's salary or a material
reduction in the overall level of Employee's benefits and other
compensation.
The Employee's right to Salary and Benefits Continuation shall accrue upon
the occurrence of either of the events specified in (i) or (ii) of the
preceding sentence and shall continue as provided, notwithstanding the
subsequent expiration of this Agreement pursuant to Section 1 hereof. The
Employee's subsequent death or disability within the twenty-four month
period following the Employee's termination of employment in connection
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with a Change of Control shall not affect the Company's obligation to
continue making Salary and Benefits Continuation payments. The Employee
shall not be required to mitigate the amount of any payment provided for in
this Section 3 by seeking employment or otherwise. The rights to Salary
and Benefits Continuation shall be in addition to whatever other benefits
the Employee may be entitled to under any other agreement or employee
benefit plan of the Company. The Company shall be authorized to withhold
from any payment to the Employee, his estate or his beneficiaries hereunder
all such amounts, if any, that the Company may reasonably determine it is
required to withhold pursuant to any applicable law or regulation.
* Termination of Employee for Cause. Upon or following a
Change of Control, the Company may at any time terminate the Employee's
employment for Cause. In such event, the Company shall give to the
Employee prompt notice specifying in reasonable detail the basis for such
termination. For purposes of this Agreement, "Cause" shall mean any of the
following by the Employee:
(a) Material breach of any material provision of this
Agreement, which breach Employee shall have failed to cure within
thirty (30) days after Employee's receipt of written notice from the
Company specifying in reasonable detail the specific nature of
Employee's breach;
(b) Willful misconduct of the Employee that is materially
inimical to the best interests, monetary or otherwise, of the
Company;
(c) Conviction of a felony or conviction of any crime
involving moral turpitude, fraud or deceit; or
(d) Adjudication as a bankrupt under the Federal Bankruptcy
Code.
For purposes of this definition of "Cause, no act, or failure to act, on
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the Employee's part shall be considered "willful" unless done, or omitted
to be done, by the Employee not in good faith and without reasonable belief
that his action or omission was in the best interest of the Company.
* Prior Termination. Anything in this Agreement to the
contrary notwithstanding, if the Employee's employment with the Company is
terminated prior to the date on which a Change of Control occurs either
(i) by the Company other than for Cause or (ii) by the Employee for Good
Reason, and it is reasonably demonstrated that such termination of
employment (a) was at the request of a third party who has taken steps
reasonably calculated to effect the Change of Control or (b) otherwise
arose in connection with or anticipation of the Change of Control, then for
all purposes of this Agreement the termination shall deemed to have
occurred upon a Change of Control and the Employee will be entitled to
Salary and Benefits Continuation as provided for in Section 3 hereof.
* Employment at Will. This Agreement contains the entire
understanding of the Company and the Employee with respect to the subject
matter hereof and, subject to the provisions of any other agreement between
the Employee and the Company, the Employee shall remain an employee at will
and nothing herein shall confer upon the Employee any right to continued
employment and shall not affect the right of the Company to terminate the
Employee for any reason not prohibited by law; provided, however, that any
such removal shall be without prejudice to any rights the Employee may have
to Salary and Benefits Continuation hereunder. Limitations Based on Age.
This Agreement shall expire, and the payment of Salary and Benefits
Continuation shall terminate on the last day of the month in which the
Employee reaches age 65; provided, however, that this Agreement shall not
expire and the Employee's right to Salary and Benefits Continuation shall
continue if such expiration or termination would violate any age or
employment discrimination law or regulation then in effect.
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* Construction of Agreement
(a) Governing Law. This Agreement shall be governed by and
construed under the laws of the Commonwealth of Pennsylvania.
(b) Severability. In the event that any one or more of the
provisions of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
(c) Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience of
reference only and shall not constitute a part of this Agreement.
* Covenant as to Confidential Information.
(a) Preamble. The Employee hereby acknowledges and agrees as
follows: (i) this Section 9 is necessary for the protection of the
legitimate business interests of the Company; (ii) the restrictions
contained in this Section 9 with regard to length of term and types
of restricted activities are reasonable; and (iii) the Employee's
expertise and capabilities are such that this obligation hereunder
and the enforcement hereof by injunction or otherwise will not
adversely affect the Employee's ability to earn a livelihood.
(b) Confidentiality of Information and Nondisclosure. The
Employee acknowledges and agrees that his employment by the Company
under this Agreement necessarily involves his knowledge of and access
to confidential and proprietary information pertaining to the
business of the Company and its subsidiaries. Accordingly, the
Employee agrees that at all times during the term of this Agreement
and for a period of two (2) years after the termination of the
Employee's employment hereunder, he will not, directly or indirectly,
without the express written authority of the Company, unless directed
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by applicable legal authority having jurisdiction over the Employee,
disclose to or use, or knowingly permit to be so disclosed or used,
for the benefit of himself, any person, corporation or other entity
other than the Company, (i) any information concerning any financial
matters, customer relationships, competitive status, supplier
matters, internal organizational matters, current or future plans, or
other business affairs of or relating to the Company and its
subsidiaries, (ii) any management, operational, trade, technical or
other secrets or any other proprietary information or other data of
the Company or its subsidiaries, or (iii) any other information
related to the Company or its subsidiaries or which the Employee
should reasonably believe will be damaging to the Company or its
subsidiaries which has not been published and is not generally known
outside of the Company. The Employee acknowledges that all of the
foregoing constitutes confidential and proprietary information, which
is the exclusive property of the Company.
(c) Company Remedies. The Employee acknowledges and agrees
that any breach of this Agreement by him will result in immediate and
irreparable harm to the Company, and that the Company cannot be
reasonably or adequately compensated by damages in an action at law.
In the event of an actual or threatened breach by the Employee of the
provisions of this Section 9, the Company shall be entitled, to the
extent permissible by law, immediately to cease to pay or provide the
Employee or his dependents any compensation or benefit being, or to
be, paid or provided to him pursuant to Section 3 of this Agreement,
and also to obtain immediate injunctive relief restraining the
Employee from conduct in breach or threatened breach of the covenants
contained in this Section 9. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies available to
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it for such breach or threatened breach, including the recovery of
damages from the Employee.
* Resolution of Differences Over Breaches of Agreement.
Except as otherwise provided herein, in the event of any controversy,
dispute or claim arising out of, or relating to this Agreement, or the
breach thereof, or arising out of any other matter relating to the
Employee's employment with the Company or the termination of such
employment, the parties may seek recourse only for temporary or preliminary
injunctive relief to the courts having jurisdiction thereof and if any
relief other than injunctive relief is sought, the Company and the Employee
agree that such underlying controversy, dispute or claim shall be settled
by arbitration conducted in Pittsburgh, Pennsylvania in accordance with
this Section 10 of the Agreement and the Commercial Arbitration Rules of
the American Arbitration Association ("AAA"). The matter shall be heard
and decided, and awards rendered by a panel of three (3) arbitrators (the
"Arbitration Panel"). The Company and the Employee shall each select one
arbitrator from the AAA National Panel of Commercial Arbitrators (the
"Commercial Panel") and the AAA shall select a third arbitrator from the
Commercial Panel. The award rendered by the Arbitration Panel shall be
final and binding as between the parties hereto and their heirs, executors,
administrators, successors and assigns, and judgment on the award may be
entered by any court having jurisdiction thereof.
* Release. The Employee hereby acknowledges and agrees
that prior to the occurrence of the Employee's or his dependents' right to
receive from the Company or any of its representatives or agents any
compensation or benefit to be paid or provided to him/her or his/her
dependents pursuant to Section 3 of this Agreement, the Employee may be
required by the Company, in its sole discretion, to execute a release in a
form reasonably acceptable to the Company, which releases any and all
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claims the Employee has or may have against the Company or its
subsidiaries, agents, officers, directors, successors or assigns with
respect to matters relating to his or her employment and termination of
employment.
* Waiver. The waiver by a party hereto of any breach by
the other party hereto of any provision of this Agreement shall not operate
or be construed as a waiver of any subsequent breach by a party hereto.
* Assignment. This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of the Company, and the
Company shall be obligated to require any successor to expressly
acknowledge and assume its obligations hereunder. This Agreement shall
inure to the extent provided hereunder to the benefit of and be enforceable
by the Employee or his/her legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
The Employee may not delegate any of his/her duties, responsibilities,
obligations or positions hereunder to any person and any such purported
delegation by him/her shall be void and of no force and effect with respect
to matters relating to his/her employment and termination of employment.
* Notices. Any notices required or permitted to be given
under this Agreement shall be sufficient if in writing, and if personally
delivered or when sent by first-class certified or registered mail, postage
prepaid, return receipt requested -- in the case of the Employee, to
his/her residence address as set forth below, and in the case of the
Company, to the address of its principal place of business as set forth
below, in care of the Chairman of the Board -- or to such other person or
at such other address with respect to each party as such party shall notify
the other in writing.
* Entire Agreement. This Agreement contains the entire
agreement of the parties concerning the matters set forth herein and all
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promises, representations, understandings, arrangements and prior
agreements on such subject are merged herein and superseded hereby. The
provisions of this Agreement may not be amended, modified, repealed,
waived, extended or discharged except by an agreement in writing signed by
the party against whom enforcement of any amendment, modification, repeal,
waiver, extension or discharge is sought. No person acting other than
pursuant to a resolution of the Board of Directors shall have authority on
behalf of the Company to agree to amend, modify, repeal, waive, extend or
discharge any provision of this Agreement or anything in reference thereto
or to exercise any of the Company's rights to terminate or to fail to
extend this Agreement.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its officers thereunto duly authorized, and the Employee has
hereunto set his/her hand, all as of the day and year first above written.
ATTEST: INTEGRA FINANCIAL CORPORATION
By:
Address: Xxxx XXX Xxxxx
Xxxxxxxxxx, XX 00000-0000
WITNESS:
(SEAL)
Address
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LIST OF PERSONS WITH CHANGE IN CONTROL AGREEMENTS
X.X. Xxxx
G.B. Xxxx
X.X. Xxxxxxxxx
X.X. Xxxxxx
X.X. Xxxxxxxx
X.X. XxXxxxxx
X.X. Xxxxxx
X.X. Xxxxxx
X.X. Xxxxxx
X.X. Xxxxxx
X.X. Xxxxxxxxx
X.X. Xxxxxx
X.X. Xxxxx
X.X. Xxxxxxx
M.A. York
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