Exhibit 10(r)
SENIOR OFFICER CHANGE IN CONTROL BENEFITS AGREEMENT
This Senior Officer Change in Control Benefits Agreement
("Agreement") is made and entered into as of March 17, 2004, by and between
Integra Bank Corporation, an Indiana corporation (hereinafter referred to as the
"Company"), and Xxxxx X. Xxxxxx (hereinafter referred to as "Employee").
W I T N E S S E T H
WHEREAS, Employee is a senior officer of the Company; and
WHEREAS, the Company believes that Employee will make valuable
contributions to the productivity and profitability of the Company; and
WHEREAS, the Company desires to encourage Employee to continue to
make such contributions and not to seek or accept employment elsewhere; and
WHEREAS, the Company, therefore, desires to assure Employee of
certain benefits in case of any termination or significant redefinition of the
terms of his employment with the Company subsequent to any Change in Control of
the Company;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained and the mutual benefits herein provided, the Company
and Employee hereby agree as follows:
1. The term of this Agreement shall be from the date hereof through
December 31, 2005; provided, however, that such term shall be automatically
extended for an additional year each year thereafter unless either party hereto
gives written notice to the other party not to so extend prior to November 30 of
the year for which notice is given, in which case no further automatic extension
shall occur.
2. As used in this Agreement, "Change in Control" of the Company
means:
(A) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (a "Person"), beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act as in
effect from time to time) of twenty-five percent (25%) or more of either
(i) the then outstanding shares of common stock of the Company or (ii) the
combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors; provided,
however, that the following acquisitions shall not constitute an
acquisition of control: (a) any acquisition directly from the Company
(excluding an acquisition by virtue of the exercise of a conversion
privilege), (b) any acquisition by the Company, (c) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the
Company or
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any corporation controlled by the Company, or (d) any acquisition by any
corporation pursuant to a reorganization, merger or consolidation, if,
following such reorganization, merger or consolidation, the conditions
described in clauses (i), (ii) and (iii) of subsection (C) of this
definition are satisfied;
(B) Individuals who, as of the date hereof, constitute the Board of
Directors of the Company (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of either
an actual or threatened election contest (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board;
(C) Approval by the shareholders of the Company of a reorganization,
merger or consolidation, in each case, unless, following such
reorganization, merger or consolidation, (i) more than sixty percent (60%)
of, respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or consolidation
and the combined voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election of directors
is then beneficially owned, 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
outstanding Company voting securities immediately prior to such
reorganization, merger or consolidation in substantially the same
proportions as their ownership, immediately prior to such reorganization,
merger or consolidation, of the outstanding Company stock and outstanding
Company voting securities, as the case may be, (ii) no Person (excluding
the Company, any employee benefit plan or related trust of the Company or
such corporation resulting from such reorganization, merger or
consolidation and any Person beneficially owning, immediately prior to
such reorganization, merger or consolidation, directly or indirectly,
twenty-five percent (25%) or more of the outstanding Company common stock
or outstanding voting securities, as the case may be) beneficially owns,
directly or indirectly, twenty-five percent (25%) or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or consolidation or
the combined voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election of directors
and (iii) at least a majority of the members of the board of directors of
the corporation resulting from such reorganization, merger or
consolidation were members of the Incumbent Board at the time of the
execution of the initial agreement providing for such reorganization,
merger or consolidation; or
(D) Approval by the shareholders of the Company of (i) a complete
liquidation or dissolution of the Company or (ii) the sale or other
disposition of all or substantially all of the assets of the Company,
other than to a corporation with respect to which following such sale or
other disposition (a) more than sixty percent (60%) of, respectively, the
then
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outstanding shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then
beneficially owned, 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 outstanding Company voting
securities immediately prior to such sale or other disposition in
substantially the same proportion as their ownership, immediately prior to
such sale or other disposition, of the outstanding Company common stock
and outstanding Company voting securities, as the case may be, (b) no
Person (excluding the Company and any employee benefit plan or related
trust of the Company or such corporation and any Person beneficially
owning, immediately prior to such sale or other disposition, directly or
indirectly, twenty-five percent (25%) or more of the outstanding Company
common stock or outstanding Company voting securities, as the case may be)
beneficially owns, directly or indirectly, twenty-five percent (25%) or
more of, respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election
of directors and (c) at least a majority of the members of the board of
directors of such corporation were members of the Incumbent Board at the
time of the execution of the initial agreement or action of the Board
providing for such sale or other disposition of assets of the Company.
3. The Company shall provide Employee with the benefits set forth in
Section 6 of this Agreement upon any termination of Employee's employment by the
Company within twelve (12) months following a Change in Control for any reason
except the following:
(A) Termination by reason of Employee's death.
(B) Termination by reason of Employee's "disability." For purposes
hereof, "disability" mean either (i) when Employee is deemed disabled in
accordance with the long-term disability insurance policy or plan of the
Company in effect at the time of the illness or injury causing the
disability or (ii) the inability of Employee, because of injury, illness,
disease or bodily or mental infirmity, to perform the essential functions
of his or her job (with or without reasonable accommodation) for more than
one hundred twenty (120) days during any period of twelve (12) consecutive
months.
(C) Termination upon Employee reaching his or her normal retirement
date, which for purposes of this Agreement shall be deemed to be the end
of the month during which Employee reaches sixty-five (65) years of age.
(D) Termination for "cause." As used in this Agreement, the term
"cause" mean the occurrence of one or more of the following events: (i)
Employee's conviction for a felony or of any crime involving moral
turpitude; (ii) Employee's engaging in any illegal conduct or willful
misconduct in the performance of his employment duties for the Company (or
its affiliates); (iii) Employee's engaging in any fraudulent or dishonest
conduct in his dealings with, or on behalf of, the Company (or its
affiliates); (iv) Employee's failure or
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refusal to follow the lawful instructions of the Company, if such failure
or refusal continues for a period of five (5) calendar days after the
Company delivers to Employee a written notice stating the instructions
which Employee has failed or refused to follow; (v) Employee's breach of
any of Employee's obligations under this Agreement; (vi) Employee's gross
or habitual negligence in the performance of his employment duties for the
Company (or its affiliates); (vii) Employee's engaging in any conduct
tending to bring the Company into public disgrace or disrepute or to
injure the reputation or goodwill of the Company; (viii) Employee's
material violation of the Company's business ethics or
conflict-of-interest policies, as such policies currently exist or as they
may be amended or implemented during Employee's employment with the
Company; (ix) Employee's misuse of alcohol or illegal drugs which
interferes with the performance of Employee's employment duties for the
Company or which compromises the reputation or goodwill of the Company;
(x) Employee's intentional violation of any applicable banking law or
regulation in the performance of Employee's employment duties for the
Company; or (xi) Employee's failure to abide by any employment rules or
policies applicable to the Company's employees generally that Company
currently has or may adopt, amend or implement from time to time during
Employee's employment with the Company.
4. The Company shall also provide Employee with the benefits set
forth in Section 6 of this Agreement upon any voluntary resignation of Employee
if any one of the following events occurs within twelve (12) months following a
Change in Control:
(A) Without Employee's express written consent, the assignment of
Employee to any duties which are fundamentally and significantly
inconsistent with his duties with the Company immediately prior to the
Change in Control or a fundamental and substantial reduction of his duties
or responsibilities from his duties or responsibilities immediately prior
to the Change in Control.
(B) A reduction by the Company in Employee's base salary from the
level of such salary immediately prior to the Change in Control.
(C) The failure by the Company to continue to provide Employee with
benefits substantially similar to those enjoyed by Employee or to which
Employee was entitled under any of the Company's incentive compensation or
bonus plan, principal pension, profit sharing, life insurance, medical,
dental, health and accident, or disability plans in which Employee was
participating prior to the Change in Control.
(D) The Company's requiring Employee to relocate other than any of
the metropolitan areas where the Company or its subsidiaries maintained
offices prior to the Change in Control.
5. Any termination by Company of Employee's employment as
contemplated by Section 3 hereof (except subsection 3(A)) or any resignation by
Employee as contemplated by
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Section 4 hereof shall be communicated by a written notice to the other party
hereto. Any notice given by Employee pursuant to Section 4 or given by the
Company in connection with a termination as to which the Company believes it is
not obligated to provide Employee with benefits set forth in Section 6 hereof
shall indicate the specific provisions of this Agreement relied upon and shall
set forth in reasonable detail the facts and circumstances claimed to provide a
basis for such termination.
6. Subject to the conditions and exceptions set forth in Section 3
and Section 4 hereof, the following benefits, less any amounts required to be
withheld therefrom under any applicable federal, state or local income tax,
other tax, or social security laws or similar statutes, shall be paid to
Employee:
(A) Within thirty (30) days following such a termination, Employee
shall be paid, at his then-effective salary, for services performed
through the date of his termination. In addition, any earned but unpaid
amount of any bonus or incentive payment (which, for purposes of this
Agreement, shall mean that amount computed in a fashion consistent with
the manner in which Employee's bonus or incentive plan for the year
preceding the year of termination was computed, if Employee received a
bonus or incentive payment during such preceding year in accordance with a
plan or program of the Company, or, if not, then the total bonus or
incentive payment received by the Employee during such preceding year, in
either case prorated through the date of termination) shall be paid to
Employee within thirty (30) days following the termination of his
employment.
(B) Within thirty (30) days following such a termination, Employee
shall be paid a lump sum payment of an amount equal to two (2) times
Employee's "Base Amount." For purposes hereof, Base Amount is defined as
Employee's average includable salary, bonus, incentive payments and
similar compensation paid by the Company for the five (5) most recent
taxable years ending before the date on which the Change in Control occurs
(or such shorter period of time that the Employee has been employed by the
Company). The definition, interpretation and calculation of the dollar
amount of Base Amount shall be in a manner consistent with and as required
by the provisions of Section 280G of the Internal Revenue Code of 1986, as
amended ("Code"), and the regulations and rulings of the Internal Revenue
Service promulgated thereunder. The payments to the Employee under this
Section 6(B) shall be reduced by the full amount that such payment, when
added to all other payments or benefits of any kind to the Employee by
reason of the Change in Control, constitutes an "excess parachute payment"
within the meaning of Section 280G of the Code.
(C) Employee acknowledges and agrees that payment in accordance with
subsections 6(A), 6(B) and 6(C) shall be deemed to constitute a full
settlement and discharge of any and all obligations of the Company to
Employee arising out of his employment with the Company and the
termination thereof, except for any vested rights Employee may then have
under any insurance,
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pension, supplemental pension, thrift, employee stock ownership, or stock
option plans sponsored or made available by the Company.
7. In the event of a termination of Employee's employment by the
Company for any reason except those set forth in subsections 3(A) through 3(D)
prior to a Change in Control, the following benefits, less any amounts required
to be withheld therefrom under any applicable federal, state or local income
tax, or other social security laws or similar statutes, shall be paid to
Employee:
(A) For twelve (12) months following such a termination, Employee
shall be paid a monthly severance benefit equal to his or her salary for
the preceding year divided by 12.
(B) Employee acknowledges and agrees that payment in accordance with
subsection 7(A) shall be deemed to constitute a full settlement and
discharge of any and all obligations of the Company to Employee arising
out of his employment with the Company and the termination thereof, except
for any vested rights Employee may then have under any insurance, pension,
supplemental pension, thrift, employee stock ownership, or stock option
plans sponsored or made available by the Company/
8. Employee is not required to mitigate the amount of benefit
payments to be made by the Company pursuant to this Agreement by seeking other
employment or otherwise, nor shall the amount of any benefit payments provided
for in this Agreement be reduced by any compensation earned by Employee as a
result of employment by another employer or which might have been earned by
Employee had Employee sought such employment, after the date of termination of
his employment with the Company or otherwise.
9. Employee acknowledges that in connection with his employment with
the Company he has provided and will continue to provide services that are of a
unique and special value and that he has been and will continue to be entrusted
with confidential and proprietary information concerning the Company and its
affiliates. Employee further acknowledges that the Company and its affiliates
are engaged in highly competitive businesses and that the Company and its
affiliates expend substantial amounts of time, money and effort to develop trade
secrets, business strategies, customer relationships, employee relationships and
goodwill, and Employee has benefited and will continue to benefit from these
efforts. Therefore, as an essential part of this Agreement, Employee agrees and
covenants to comply with the following:
(A) During Employee's employment with the Company and during the
Restrictive Period, Employee will not, in the Restricted Geographic Area,
engage in any Competitive Business (i) in the same or similar capacity or
function to that in which Employee worked for the Company, (ii) in any
Employee level or senior management capacity, or (iii) in any other
capacity in which Employee's knowledge of the Company's confidential
information or the customer goodwill Employee helped to develop on behalf
of the Company would facilitate or support Employee's work for such
competitor or competitive enterprise. For purposes of this Agreement, the
term "Restrictive Period" shall mean 24 months from the date of
termination of employment if Employee is entitled
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to receive benefits under Section 6 or 12 months from the date of
termination of employment in all other cases. For purposes of this
Agreement, the term "Restricted Geographic Area" means and includes: (w)
Vanderburgh County, Indiana; (x) all counties contiguous to Vanderburgh
County; (y) any county in which the Company or any of its subsidiaries has
an office or branch location; and (z) all counties contiguous to the
counties referred to in subpart (y) above. For purposes of this Agreement,
the term "Competitive Business" means any business that is traditionally
engaged in by a bank, a bank holding company or a financial holding
company, or that provides products and services similar to and competitive
with the products and services provided by the Company or any of its
subsidiaries. Notwithstanding the foregoing, Employee may make and retain
investments in less than one percent of the equity of any entity engaged
in a Competitive Business, if such equity is listed on a national
securities exchange or regularly traded in an over-the-counter market.
(B) During Employee's employment with the Company and during the
Restrictive Period, Employee will not provide, sell, market or endeavor to
provide, sell or market any Competing Products/Services to any of the
Company's Customers, or otherwise solicit or communicate with any of the
Company's Customers for the purpose of selling or providing any Competing
Products/Services. For purposes of this Agreement, the term "Competing
Products/Services" means any products or services similar to or
competitive with the products or services offered by the Company or any of
its subsidiaries. For purposes of this Agreement, the term "Company's
Customers" means any person or entity that has engaged in any banking
services with, or has purchased any products or services from, the Company
or any of its subsidiaries at any time during the Restrictive Period.
(C) During Employee's employment with the Company and during the
Restrictive Period, Employee will not urge, induce or seek to induce any
of the Company's Customers to terminate their business with the Company or
to cancel, reduce, limit or in any manner interfere with the Company's
Customers' business with the Company.
(D) During the term of Employee's employment with the Company and
during the Restrictive Period, Employee will not urge, induce or seek to
induce any of the Company's independent contractors, subcontractors,
consultants, vendors or suppliers to terminate their relationship with, or
representation of, the Company or to cancel, withdraw, reduce, limit, or
in any manner modify any of such person's or entity's business with, or
representation of, the Company.
(E) During the term of Employee's employment with the Company and
during the Restrictive Period, Employee will not solicit, recruit, hire,
employ or attempt to hire or employ, or assist anyone in the recruitment
or hiring of, any person who is then an employee of the Company, or urge,
influence, induce or seek to induce any employee of the Company to
terminate his/her relationship with the Company.
(F) Employee acknowledges and agrees that the covenants contained in
this Section 9 prohibit Employee from engaging in certain activities
directly or indirectly, whether on Employee's own behalf or on behalf of
any other person or entity, and
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regardless of the capacity in which Employee is acting, including without
limitation as an employee, independent contractor, owner, partner,
officer, agent, consultant, or advisor.
(G) Employee acknowledges and agrees that his obligations under this
Section 9 shall survive the expiration or termination of this Agreement
and the cessation of his employment with the Company for whatever reason.
(H) In the event Employee violates any of the restrictive covenants
contained in this Section 9, the duration of such restrictive covenant
shall automatically be extended by the length of time during which
Employee was in violation of such restriction.
(I) Although Employee and the Company consider the restrictions
contained in this Section 9 to be reasonable, particularly given the
competitive nature of the Company's business and Employee's position with
the Company, Employee and the Company acknowledge and agree that: (i) if
any covenant, subsection, portion or clause of this Section 9 is
determined to be unenforceable or invalid for any reason, such
unenforceability or invalidity shall not affect the enforceability or
validity of the remainder of the Agreement; and (ii) if any particular
covenant, subsection, provision or clause of this Section 9 is determined
to be unreasonable or unenforceable for any reason, including, without
limitation, the time period, geographic area, and/or scope of activity
covered by any restrictive covenant, such covenant, subsection, provision
or clause shall automatically be deemed reformed such that the contested
covenant, subsection, provision or clause shall have the closest effect
permitted by applicable law to the original form and shall be given effect
and enforced as so reformed to whatever extent would be reasonable and
enforceable under applicable law.
(J) Employee recognizes that a breach or threatened breach by
Employee of Section 9 of this Agreement will give rise to irreparable
injury to the Company and that money damages will not be adequate relief
for such injury. Employee agrees that the Company shall be entitled to
obtain injunctive relief, including, but not limited to, temporary
restraining orders, preliminary injunctions and/or permanent injunctions,
without having to post any bond or other security, to restrain or prohibit
such breach or threatened breach, in addition to any other legal remedies
which may be available, including the recovery of money damages.
10. Should Employee die while any amounts are payable to him
hereunder, this Agreement shall inure to the benefit of and be enforceable by
Employee's executors, administrators, heirs, distributees, devisees and legatees
and all amounts payable hereunder shall be paid in accordance with the terms of
this Agreement to Employee's devisee, legatee or other designee or if there be
no such designee, to his estate.
11. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been given when delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
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If to Employee:
Xxxxx X. Xxxxxx
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
If to the Company:
Integra Bank Corporation
00 Xxxxxxxxx Xxxxx Xxxxxx
P. O. Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Chief Executive Officer
or to such other address as any party may have furnished to the other party in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
12. The validity, interpretation, and performance of this Agreement
shall be governed by the laws of the State of Indiana. The parties agree that
all legal disputes regarding this Agreement will be resolved in Evansville,
Indiana, and irrevocably consent to service of process in such City for such
purpose.
13. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by Employee and the Company. No waiver by any party hereto at any time of
any breach by any other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or any
prior or subsequent time. No agreements or representation, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
any party which are not set forth expressly in this Agreement.
14. The invalidity or unenforceability of any provisions of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
15. This Agreement may be executed in two counterparts, each of
which shall be deemed an original, but which together will constitute one and
the same Agreement.
16. This Agreement is personal in nature and neither of the parties
hereto shall, without the consent of the other, assign or transfer this
Agreement or any rights or obligations hereunder, except as provided in Section
10 above. Without limiting the foregoing, Employee's right to receive payments
hereunder shall not be assignable or transferable, whether by pledge, creation
of a security interest or otherwise, other than a transfer by his Will or by the
laws of descent and distribution as set forth in Section 10 hereof, and in the
event of any
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attempted assignment or transfer contrary to this Section 16, the Company shall
have no liability to pay any amount so attempted to be assigned or transferred.
17. Any benefits payable under this Agreement shall be paid solely
from the general assets of the Company. Neither Employee nor Employee's
beneficiary shall have interest in any specific assets of the Company under the
terms of this Agreement. This Agreement shall not be considered to create an
escrow account, trust fund or other funding arrangement of any kind or a
fiduciary relationship between Employee and the Company.
18. This Agreement supersedes any prior agreements or
understandings, written or oral, between the parties hereto with respect to the
subject matter hereof, and constitutes the entire agreement of the parties with
respect thereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the day and year first above set forth.
INTEGRA BANK CORPORATION
By: ________________________________________
Xxxxxxx X. Xxx, Chairman of the Board
and Chief Executive Officer
("Company")
____________________________________________
Xxxxx X. Xxxxxx
("Employee")
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