EXHIBIT 10(d)
EMPLOYMENT AGREEMENT
BETWEEN
INTEGRA BANK CORPORATION
AND
XXXXXXX X. XXXXXXX
(EFFECTIVE JULY 28, 2003)
EMPLOYMENT AGREEMENT
BETWEEN
INTEGRA BANK CORPORATION
AND
XXXXXXX X. XXXXXXX
This Employment Agreement ("Agreement") is made and entered into by and
between Integra Bank Corporation, an Indiana corporation (the "Company") and
Xxxxxxx X. Xxxxxxx ("Executive").
RECITALS
A. Executive is an employee of the Company serving as an Executive Vice
President.
B. The Company and Executive desire to enter into an agreement
embodying the terms of Executive's employment with the Company.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises set forth in this Agreement, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and
Executive agree as follows:
1. EFFECTIVE DATE. This Agreement shall be effective as of July 28,
2003 (the "Effective Date").
2. TERM OF EMPLOYMENT. Subject to earlier termination as provided in
Section 7 of this Agreement, the original term of this Agreement shall begin on
the Effective Date and shall end on June 30, 2006; provided, however, that this
Agreement shall be automatically extended for successive terms of one (1) year
each (the original term plus any extensions of the term are hereinafter referred
to as the "Term") unless either party provides written notice not to so extend
to the other party at least sixty (60) calendar days before the scheduled
expiration of the Term, in which case no further automatic extension shall occur
and the Term shall end on the scheduled expiration date.
3. POSITION AND RESPONSIBILITIES. During the Term, Executive agrees to
serve as Executive Vice President - Chief Financial Officer of the Company
and/or in such other senior management position(s) as the Board of Directors of
the Company (the "Board") may designate. In this capacity the Executive shall
have such duties, authorities and responsibilities as are commensurate with such
position(s) and such other duties and responsibilities as the Board shall
designate that are consistent with such position(s).
4. STANDARD OF CARE. During the Term, Executive (a) will devote his
full working time, attention, energies and skills exclusively to the business
and affairs of the Company and its affiliates; (b) will exercise the highest
degree of loyalty and the highest
standards of conduct in the performance of his duties; (c) will not, except as
noted herein, engage in any other business activity, whether or not such
business activity is pursued for gain, profit or other pecuniary advantage,
without the express written consent of the Company; and (d) will not take any
action that deprives the Company of any business opportunities or otherwise act
in a manner that conflicts with the best interests of the Company or that is
detrimental to the business of the Company; provided, however, this Section 4
shall not be construed as preventing Executive (y) from investing his personal
assets in such form or manner as will not require his services in the daily
operations and affairs of the businesses in which such investments are made, or
(z) from participating in charitable or other not-for-profit activities as long
as such activities do not interfere with Executive's work for the Company (or
its affiliates).
5. COMPENSATION AND BENEFITS. As remuneration for all services to be
rendered by Executive during the Term, and as consideration for complying with
the covenants herein, the Company shall pay and provide to Executive the
following:
5.1. ANNUAL BASE SALARY. The Company shall pay Executive a base salary
of Two Hundred and Thirty Thousand Dollars ($230,000) (the "Base Salary") on
an annualized basis. The Company shall review the Base Salary approximately
annually during the Term to determine, at the discretion of the Company,
whether the Base Salary should be increased and, if so, the amount of such
adjustment and the time at which the adjustment should take effect. The Base
Salary shall be paid to Executive consistent with the customary payroll
practices of the Company.
5.2. INCENTIVE BONUS. Executive shall be entitled to participate during
the Term in the Integra Bank Corporation Executive Annual and Long-Term
Incentive Plan and in any other incentive bonus plan which the Company may
adopt and implement from time to time during the Term with respect to
Executive's specific position. Nothing contained in this Section shall
obligate the Company to institute, maintain or refrain from changing,
amending or discontinuing any incentive bonus plan, so long as such changes
are similarly applicable to other employees under such plan.
5.3. EQUITY COMPENSATION. Executive shall be entitled to participate
during the Term in the National City Bancshares, Inc. 1999 Stock Option and
Incentive Plan, the Integra Bank Corporation 2003 Stock Option and Incentive
Plan and in any other equity compensation plan which the Company may adopt
and implement from time to time during the Term. Nothing contained in this
Section shall obligate the Company to institute, maintain or refrain from
changing, amending or discontinuing any equity compensation plan, so long as
such changes are similarly applicable to other employees under such plan.
5.4. EMPLOYEE BENEFITS. The Company shall provide to Executive employee
fringe benefits to which other employees of the Company are generally
entitled, commensurate with his position with the Company and subject to the
eligibility requirements and other terms and conditions of such plans,
including life insurance coverage under the Integra Bank National
Association Group Term Carve-Out Plan.
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Nothing contained in this Section shall obligate the Company to institute,
maintain or refrain from changing, amending or discontinuing any employee
fringe benefit plan, so long as such changes are similarly applicable to
other employees generally.
5.5. AUTOMOBILE ALLOWANCE. The Company shall pay Executive an
automobile allowance of One Thousand Dollars ($1,000) per month.
5.6. COUNTRY CLUB MEMBERSHIP. The Company shall maintain a corporate
membership for Executive at a local country club as determined by the
Company. The Company shall be responsible for the monthly dues and any
special assessments relating to such membership.
6. REIMBURSEMENT OF BUSINESS EXPENSES. The Company shall pay or
reimburse Executive for all ordinary and necessary expenses, in a reasonable
amount, which Executive incurs in performing his duties under this Agreement.
Such expenses shall be paid or reimbursed to Executive consistent with the
expense reimbursement policies of the Company in effect from time to time and
Executive agrees to abide by any such expense reimbursement policies.
7. TERMINATION OF EMPLOYMENT.
7.1. TERMINATION DUE TO DEATH. If Executive dies during the Term, this
Agreement shall terminate on the date of Executive's death. Upon the death
of Executive, the Company's obligation to pay and provide to Executive
compensation and benefits under this Agreement shall immediately terminate,
except: (a) the Company shall pay Executive or Executive's legal
representative that portion of his Base Salary, at the rate then in effect,
which shall have been earned through the termination date; and (b) the
Company shall pay or provide Executive or Executive's legal representative
such other payments and benefits, if any, which had accrued hereunder before
Executive's death. Other than the foregoing, the Company shall have no
further obligations to Executive (or Executive's legal representatives,
including Executive's estate, heirs, executors, administrators and personal
representatives) under this Agreement.
7.2. TERMINATION DUE TO DISABILITY. If Executive suffers a Disability
(as hereafter defined), the Company shall have the right to terminate this
Agreement and Executive's employment with the Company. The Company shall
deliver written notice to Executive of the Company's termination because of
Disability, pursuant to this Section 7.2, specifying in such notice a
termination date not less than seven (7) calendar days after the giving of
the notice (the "Disability Notice Period"), and this Agreement, and
Executive's employment by the Company, shall terminate at the close of
business on the last day of the Disability Notice Period.
Upon the termination of this Agreement because of Disability, the
Company's obligation to pay and provide to Executive compensation and
benefits under this Agreement shall immediately terminate, except: (a) the
Company shall pay
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Executive that portion of his Base Salary, at the rate then in effect, which
shall have been earned through the termination date; and (b) the Company
shall pay or provide Executive such other payments and benefits, if any,
which had accrued hereunder before the termination for Disability. Other
than the foregoing, the Company shall have no further obligations to
Executive under this Agreement.
The term "Disability" shall mean either (i) when Executive 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 Executive, because of
injury, illness, disease or bodily or mental infirmity, to perform the
essential functions of his job (with or without reasonable accommodation)
for more than one hundred twenty (120) days during any period of twelve (12)
consecutive months.
7.3. TERMINATION BY THE COMPANY WITHOUT CAUSE. At any time during the
Term, the Company may terminate this Agreement and Executive's employment
with the Company without cause for any reason or no reason by notifying
Executive in writing of the Company's intent to terminate, specifying in
such notice the effective termination date, and this Agreement and
Executive's employment with the Company shall terminate at the close of
business on the termination date specified in the Company's notice. Upon
termination of Executive's employment by the Company without cause and in
the absence of a Change in Control (as defined in Section 7.12), the
Company's obligation to pay and provide Executive compensation and benefits
under this Agreement shall immediately terminate, except: (a) the Company
shall pay Executive that portion of his Base Salary, at the rate then in
effect, which shall have been earned through the termination date; (b) the
Company shall pay or provide Executive such other payments and benefits, if
any, which had accrued hereunder before the termination date; and (c) in
addition, the Company shall pay Executive severance compensation in a lump
sum payment within thirty (30) days after the termination of employment
equal to one (1) times the Base Salary in effect immediately prior to
termination.
7.4. TERMINATION BY THE COMPANY FOR CAUSE. At any time during the Term,
the Company may terminate this Agreement and Executive's employment with the
Company for "Cause" as provided in this Section 7.4. "Cause" shall mean the
occurrence of one or more of the following events: (a) Executive's
conviction for a felony or of any crime involving moral turpitude; (b)
Executive's engaging in any illegal conduct or willful misconduct in the
performance of his employment duties for the Company (or its affiliates);
(c) Executive's engaging in any fraudulent or dishonest conduct in his
dealings with, or on behalf of, the Company (or its affiliates); (d)
Executive's failure or 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 Executive a written notice
stating the instructions which Executive has failed or refused to follow;
(e) Executive's breach of any of Executive's obligations under this
Agreement; (f) Executive's gross or habitual negligence in the performance
of his employment duties for the Company (or its affiliates); (g)
Executive's engaging in any conduct tending to bring the Company into
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public disgrace or disrepute or to injure the reputation or goodwill of the
Company; (h) Executive'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 Executive's employment with the
Company; (i) Executive's misuse of alcohol or illegal drugs which interferes
with the performance of Executive's employment duties for the Company or
which compromises the reputation or goodwill of the Company; (j) Executive's
intentional violation of any applicable banking law or regulation in the
performance of Executive's employment duties for the Company; or (k)
Executive'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 Executive's employment
with the Company.
Upon the occurrence of any of the events specified above, the
Company may terminate Executive's employment for Cause by notifying
Executive in writing of its decision to terminate his employment for Cause,
and Executive's employment and this Agreement shall terminate at the close
of business on the date on which the Company gives such notice.
Upon termination of Executive's employment by the Company for
Cause, the Company's obligation to pay or provide Executive compensation and
benefits under this Agreement shall terminate, except: (a) the Company shall
pay Executive that portion of his Base Salary, at the rate then in effect,
which shall have been earned through the termination date; and (b) the
Company shall pay or provide Executive such other payments or benefits, if
any, which had accrued hereunder before the termination date. Other than the
foregoing, the Company shall have no further obligations to Executive under
this Agreement.
7.5. TERMINATION BY THE COMPANY IN CONNECTION WITH A CHANGE IN CONTROL.
If at any time during the Term Executive's employment under this Agreement
is terminated by the Company without the Executive's prior written consent
other than for any of the reasons set forth in Sections 7.1, 7.2 and 7.4
within six (6) months before or within two (2) years after a Change in
Control, the Company's obligation to pay or provide Executive compensation
and benefits under this Agreement shall terminate, except (a) the Company
shall pay Executive that portion of his Base Salary, at the rate then in
effect, which shall have been earned through the termination date; (b) the
Company shall pay or provide Executive such other payments or benefits, if
any, which had accrued hereunder before the termination date; and (c) in
addition, the Company shall pay Executive within (30) days following such a
termination or, if later, such a Change in Control, a lump sum severance
payment of an amount equal to the greater of the amount calculated under the
following clauses (1) and (2): (1) a cash payment in an amount that, when
added to all other accelerated payments or benefits to Executive, would be
equal to two and nine-tenths (2.9) times the "Base Amount" and (2) two and
nine-tenths (2.9) times the Base Amount minus the full amount payable by the
Executive to the Internal Revenue Service under Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"). For purposes of this
Agreement, "Base Amount" is defined as Executive's
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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 Executive 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 Code, and the regulations and rulings of
the Internal Revenue Service promulgated thereunder.
7.6. TERMINATION BY EXECUTIVE FOR GOOD REASON. At any time during the
Term, Executive may terminate this Agreement and his employment with the
Company by giving the Company written notice of termination for Good Reason.
For purposes of this Agreement, "Good Reason" shall mean any of the
following:
(i) any material breach by the Company of any provision of this
Agreement which is not cured by the Company within ten (10) days of receipt
by the Company of written notice from Executive specifying with
particularity the existence and nature of the breach; or
(ii) the occurrence of any one of the following events within six
(6) months prior to or within two (2) years following a Change in Control:
(A) Without Executive's express written consent, the
assignment of Executive to any duties which are materially inconsistent
with his positions, duties, responsibilities or status with the Company
immediately prior to the earlier of termination of employment or the
Change in Control or a substantial reduction of his duties or
responsibilities which does not represent a promotion from his
position, duties or responsibilities immediately prior to the earlier
of termination of employment or the Change in Control.
(B) A reduction by the Company in Executive's salary from the
level of such salary immediately prior to the earlier of termination of
employment or the Change in Control or the Company's failure to
increase (within twelve (12) months of Executive's last increase in
base salary) Executive's base salary after a Change in Control in an
amount which at least equals, on a percentage basis, the average
percentage increase in base salary for all executive and senior
officers of the Company effected in the preceding twelve (12) months.
(C) The failure by the Company to continue in effect any
incentive, bonus or other compensation plan in which Executive
participates, including but not limited to the Company's stock option
plans, unless an equitable arrangement (embodied in
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an ongoing substitute or alternative plan), with which Executive has
consented, has been made with respect to such plan in connection with
the Change in Control, or the failure by the Company to continue
Executive's participation therein, or any action by the Company which
would directly or indirectly materially reduce Executive's
participation therein.
(D) The failure by the Company to continue to provide
Executive with benefits substantially similar to those enjoyed by
Executive or to which Executive was entitled under any of the Company's
principal pension, profit sharing, life insurance, medical, dental,
health and accident, or disability plans in which Executive was
participating immediately prior to the earlier of the termination of
employment or the Change in Control, the taking of any action by the
Company which would directly or indirectly materially reduce any of
such benefits or deprive Executive of any material fringe benefit
enjoyed by Executive or to which Executive was entitled immediately
prior to the earlier of the termination of employment or the Change in
Control, or the failure by the Company to provide Executive with the
number of paid vacation and sick leave days to which Executive is
entitled on the basis of years of service or position with the Company
in accordance with the Company's normal vacation policy in effect on
the date hereof.
(E) The Company's requiring Executive to be based anywhere
other than the metropolitan area where the Company office at which he
was based immediately prior to the earlier of the termination of
employment or the Change in Control was located, except for required
travel on the Company's business in accordance with the Company's past
management practices.
(F) Any failure of the Company to obtain the assumption of
the obligation to perform this Agreement by any successor as
contemplated in Section 12.1 hereof.
(G) Any failure by the Company or its shareholders, as the
case may be, to reappoint or reelect Executive to a corporate office
held by him immediately prior to the earlier of the termination of
employment or the Change in Control or his removal from any such office
including any seat held at such time on the Company's Board of
Directors.
(H) The effectiveness of a resignation, tendered at any time,
either before or after a Change in Control and regardless of whether
formally characterized as voluntary or
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otherwise, by Executive of any corporate office held by him immediately
prior to the Change in Control or of any seat held at such time on the
Company's Board of Directors, at the request of the Company or at the
request of the person obtaining control of the Company in such Change
in Control.
(I) Any request by the Company that Executive participate in
an unlawful act.
(J) Any breach by the Company of any provision of this
Agreement which is not cured by the Company within ten (10) business
days after receipt by the Company of written notice from Executive
specifying with particularity the existence and nature of the breach.
Notwithstanding anything in this Agreement to the contrary,
Executive's right to terminate Executive's employment pursuant to this
Section 7.6 shall not be affected by Executive's incapacity due to physical
or mental illness.
If this Agreement and Executive's employment are terminated by
Executive for the Good Reason listed in Section 7.6(i), the Company's
obligation to pay or provide Executive compensation and benefits under this
Agreement shall terminate, except (a) the Company shall pay Executive that
portion of his Base Salary, at the rate then in effect, which shall have
been earned through the termination date; (b) the Company shall pay or
provide Executive such other payments or benefits, if any, which had accrued
hereunder before the termination date; and (c) in addition, the Company
shall pay Executive severance compensation in a lump sum payment within (30)
days after the termination of employment equal to one (1) times the Base
Salary in effect immediately prior to termination.
If this Agreement and Executive's employment are terminated by
Executive for any of the Good Reasons listed in Sections 7.6(ii)(A) through
(J), the Company's obligation to pay or provide Executive compensation and
benefits under this Agreement shall terminate, except (a) the Company shall
pay Executive that portion of his Base Salary, at the rate then in effect,
which shall have been earned through the termination date; (b) the Company
shall pay or provide Executive such other payments or benefits, if any,
which had accrued hereunder before the termination date; and (c) in
addition, the Company shall pay Executive within (30) days following such a
termination or, if later, such a Change in Control, a lump sum severance
payment equal to the amount payable by the Company under Section 7.5.
7.7. TERMINATION BY EXECUTIVE WITHOUT GOOD REASON. At any time during
the Term, Executive may terminate this Agreement and his employment with the
Company for reasons other than Good Reason or for no reason by giving the
Company written notice of termination, specifying in such notice a
termination date not less than
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sixty (60) calendar days after the giving of the notice (the "Executive's
Notice Period"), and Executive's employment with the Company shall terminate
at the close of business on the last day of Executive's Notice Period;
provided, however, that in response to Executive's notice of termination,
the Company shall have the right to terminate Executive's employment with
the Company at any time during the Executive's Notice Period. Upon
termination of Executive's employment with the Company under this Section
7.7, whether at the end of Executive's Notice Period or earlier as
designated by the Company, the Company's obligation to pay Executive
compensation and benefits under this Agreement shall immediately terminate,
except: (a) the Company shall pay Executive that portion of his Base Salary,
at the rate then in effect, which shall have been earned through the
termination date; and (b) the Company shall pay or provide Executive such
other payments and benefits, if any, which had accrued hereunder before the
termination date. Other than the foregoing, the Company shall have no
further obligations to Executive under this Agreement.
7.8. NON-RENEWAL BY EXECUTIVE. In the event Executive elects not to
renew this Agreement by giving notice of non-renewal pursuant to Section 2,
this Agreement and Executive's employment shall terminate at the end of the
then current Term. Upon termination of Executive's employment as a result of
Executive's non-renewal of this Agreement, the Company's obligation to pay
and provide Executive compensation and benefits under this Agreement shall
immediately terminate, except: (a) the Company shall pay Executive that
portion of his Base Salary, at the rate then in effect, which shall have
been earned through the termination date; and (b) the Company shall pay or
provide Executive such other payments and benefits, if any, which had
accrued hereunder before the termination date. Other than the foregoing, the
Company shall have no further obligations to Executive under this Agreement.
7.9. NON-RENEWAL BY THE COMPANY. In the event the Company elects not to
renew this Agreement by giving notice of non-renewal pursuant to Section 2,
this Agreement and Executive's employment shall terminate at the end of the
then current Term. Upon termination of Executive's employment as a result of
the Company's non-renewal of this Agreement, the Company's obligation to pay
and provide Executive compensation and benefits under this Agreement shall
immediately terminate, except: (a) the Company shall pay Executive that
portion of his Base Salary, at the rate then in effect, which shall have
been earned through the termination date; and (b) the Company shall pay or
provide Executive such other payments and benefits, if any, which had
accrued hereunder before the termination date. Other than the foregoing, the
Company shall have no further obligations to Executive under this Agreement.
7.10. FORFEITURE OF COMPENSATION. In the event Executive breaches any
of the non-disclosure or restrictive covenant provisions of Sections 8 or 9
of this Agreement, Executive immediately shall (a) forfeit his right to
receive (and the Company shall no longer be obligated to pay) any severance
compensation under this Agreement, (b) forfeit the stock options and/or
other rights granted under the National City Bancshares, Inc. 1999 Stock
Option and Incentive Plan, the Integra Bank Corporation 2003 Stock Option
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and Incentive Plan and any other stock option or equity compensation plans
of the Company, regardless whether such options or rights are vested,
unvested, exercisable or unexercisable, (c) disgorge and repay to the
Company any gross profits realized from the exercise of any of the stock
options under the National City Bancshares, Inc. 1999 Stock Option and
Incentive Plan, the Integra Bank Corporation 2003 Stock Option and Incentive
Plan and any other stock option or equity compensation plans of the Company
at any time during the two (2) year period immediately preceding such
breach, and (d) disgorge and repay to the Company an amount equal to the
market value of any restricted stock of the Company that vested to Executive
at any time during the two (2) year period immediately preceding such
breach. The Company and Executive acknowledge and agree that the foregoing
remedies are in addition to, and not in lieu of, any and all other legal
and/or equitable remedies that may be available to Company in connection
with Executive's breach or threatened breach, of any non-disclosure or
restrictive covenant provision set forth in Sections 8 and 9 of this
Agreement.
7.11. RESIGNATION AS OFFICER AND/OR DIRECTOR UPON EMPLOYMENT
TERMINATION. In the event Executive's employment with the Company terminates
for any reason (including, without limitation, pursuant to Sections 7.1 -
7.9 herein), Executive agrees and covenants that he will immediately resign
any and all positions, including, without limitation, as an officer and/or
member of the Board of Directors, he may hold with the Company or any of its
subsidiaries or affiliates.
7.12. DEFINITION OF CHANGE IN CONTROL. As used in this Agreement,
"Change in Control" of the Company means:
(i) 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") of
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 (A) the then outstanding shares of
common stock of the Company or (B) 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:
(w) any acquisition directly from the Company (excluding an acquisition
by virtue of the exercise of a conversion privilege), (x) any
acquisition by the Company, (y) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (z) any acquisition by any
corporation pursuant to a reorganization, merger or consolidation, if,
following such reorganization, merger or consolidation, the conditions
described in clauses (A), (B) and (C) of subsection (iii) of this
Section 7.12 are satisfied;
(ii) 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
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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;
(iii) Approval by the shareholders of the Company of a
reorganization, merger or consolidation, in each case, unless,
following such reorganization, merger or consolidation, (A) 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, (B) 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 (C) 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
(iv) Approval by the shareholders of the Company of (A) a
complete liquidation or dissolution of the Company or (B) 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 (x) more than sixty percent (60%) 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 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
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such sale or other disposition, of the outstanding Company common stock
and outstanding Company voting securities, as the case may be, (y) 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 (z) 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.
7.13. SEVERANCE RELEASE. Executive acknowledges and agrees that the
Company's payment of the severance compensation pursuant to Sections 7.3,
7.5 or 7.6 of this Agreement shall be deemed to constitute a full settlement
and discharge of any and all obligations of the Company to Executive arising
out of this Agreement, Executive's employment with the Company and/or the
termination of Executive's employment with the Company, except for any
vested rights Executive may have under any insurance, stock option or equity
compensation plan or any other employee benefit plans sponsored by the
Company. Executive further acknowledges and agrees that as a condition to
receiving any of the severance compensation pursuant to Section 7.3, 7.5 or
7.6 of this Agreement, Executive will execute and deliver to the Company a
Release Agreement in form and substance reasonably satisfactory to the
Company pursuant to which Executive will release and waive any and all
claims against the Company (and its officers, directors, shareholders,
employees and representatives) arising out of this Agreement, Executive's
employment with the Company, and/or the termination of Executive's
employment with the Company, including without limitation claims under all
federal, state and local laws; provided, however, that such Release
Agreement shall not affect or relinquish (a) any vested rights Executive may
have under any insurance, stock option or equity compensation plan, or other
employee benefit plan sponsored by the Company, (b) any claims for
reimbursement of business expenses incurred prior to the employment
termination date, or (c) any rights to severance compensation under Sections
7.3, 7.5 or 7.6 of this Agreement.
8. NON-DISCLOSURE. Executive acknowledges that during the course of
Executive's employment by the Company Executive will be creating, making use of,
acquiring, and/or adding to confidential information relating to the business
and affairs of the Company (and its affiliates), which information will include,
without limitation, procedures, methods, manuals, lists of customers, suppliers
and other contacts, marketing plans, business plans, financial data, and
personnel information. Executive covenants and agrees that Executive shall not,
at any time during Executive's employment with the Company, or thereafter,
directly or indirectly, use, divulge or disclose for any purpose whatsoever any
of the Company's (or its affiliates') confidential information or trade secrets,
except in the course of Executive's work for
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and on behalf of the Company (or its affiliates). Upon the termination of
Executive's employment with the Company, or at the Company's request, Executive
shall immediately deliver to the Company any and all records, documents, or
electronic data (in whatever form or media), and all copies thereof, in
Executive's possession or under Executive's control, whether prepared by
Executive or others, containing confidential information or trade secrets
relating to the Company (or its affiliates). Executive acknowledges and agrees
that his obligations under this Section shall survive the expiration or
termination of this Agreement and the cessation of his employment with the
Company for whatever reason.
9. RESTRICTIVE COVENANTS. Executive acknowledges that in connection
with his employment with the Company he has provided and will continue to
provide executive-level 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. Executive 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
Executive has benefited and will continue to benefit from these efforts.
Therefore, as an essential part of this Agreement, Executive agrees and
covenants to comply with the following restrictive covenants.
9.1. NON-COMPETITION. During Executive's employment with the Company
and during the Restrictive Period, Executive will not, in the Restricted
Geographic Area, engage in any Competitive Business (a) in the same or
similar capacity or function to that in which Executive worked for the
Company, (b) in any executive level or senior management capacity, or (c) in
any other capacity in which Executive's knowledge of the Company's
confidential information or the customer goodwill Executive helped to
develop on behalf of the Company would facilitate or support Executive's
work for such competitor or competitive enterprise. For purposes of this
Agreement, the term "Restrictive Period" shall mean two years from the date
of termination of employment except for termination of employment pursuant
to Section 7.3, in which case the term shall mean one year from the date of
termination of employment. 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, Executive 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.
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9.2. NON-SOLICITATION OF CUSTOMERS. During Executive's employment with
the Company and during the Restrictive Period, Executive 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.
9.3. NON-INTERFERENCE WITH CUSTOMERS. During Executive's employment
with the Company and during the Restrictive Period, Executive 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.
9.4. NON-INTERFERENCE WITH CONTRACTORS AND VENDORS. During the term of
Executive's employment with the Company and during the Restrictive Period,
Executive 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.
9.5. NON-SOLICITATION OF EMPLOYEES. During the term of Executive's
employment with the Company and during the Restrictive Period, Executive
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.
9.6. DIRECT OR INDIRECT ACTIVITIES. Executive acknowledges and agrees
that the covenants contained in this Section 9 prohibit Executive from
engaging in certain activities directly or indirectly, whether on
Executive's own behalf or on behalf of any other person or entity, and
regardless of the capacity in which Executive is acting, including without
limitation as an employee, independent contractor, owner, partner, officer,
agent, consultant, or advisor.
9.7. SURVIVAL OF RESTRICTIVE COVENANTS. Executive 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.
9.8. EXTENSION. In the event Executive violates any of the restrictive
covenants contained in this Section 9, the duration of such restrictive
covenant shall
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automatically be extended by the length of time during which Executive was
in violation of such restriction.
9.9. SEVERABILITY; MODIFICATION OF RESTRICTIONS. Although Executive 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 Executive's position with the Company, Executive and the
Company acknowledge and agree that: (a) 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 (b) 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.
10. REMEDIES. Executive recognizes that a breach or threatened breach
by Executive of Section 8 or 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. Notwithstanding Section 14.8 of this Agreement,
Executive 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.
11. NO ADDITIONAL PAYMENT TO ACCOUNT FOR EXCISE TAXES. In the event it
shall be determined that any payment or distribution by the Company to or for
the benefit of Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise (a "Payment")
would be subject to the excise tax imposed by Section 4999 of the Code or any
interest or penalties are incurred by the Executive with respect to such excise
tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then the Executive
shall not be entitled to receive any additional payment in any amount as a
"gross up", reimbursement or indemnity for such Excise Tax.
12. ASSIGNMENT.
12.1. ASSIGNMENT BY COMPANY. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding upon any
and all successors and assigns of the Company, including without limitation
by asset assignment, stock sale, merger, consolidation or other corporate
reorganization.
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12.2. NON-ASSIGNMENT BY EXECUTIVE. The services to be provided by
Executive to the Company hereunder are personal to Executive, and
Executive's duties may not be assigned by Executive.
13. NOTICE. Any notice required or permitted under this Agreement shall
be in writing and either delivered personally or sent by nationally
recognized overnight courier, express mail, or certified or registered mail,
postage prepaid, return receipt requested, at the following respective
address unless the party notifies the other party in writing of a change of
address:
If to the Company:
Integra Bank Corporation
00 Xxxxxxxxx Xxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Chief Executive Officer
If to Executive:
Xxxxxxx X. Xxxxxxx
0000 Xxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
A notice delivered personally shall be deemed delivered and effective
as of the date of delivery. A notice sent by overnight courier or express mail
shall be deemed delivered and effective one (1) day after it is deposited with
the postal authority or commercial carrier. A notice sent by certified or
registered mail shall be deemed delivered and effective two (2) days after it is
deposited with the postal authority.
14. MISCELLANEOUS.
14.1. ENTIRE AGREEMENT. This Agreement supersedes any prior agreements
or understandings, oral or written, between the parties hereto, with respect
to the subject matter hereof, and constitutes the entire agreement of the
parties with respect thereto.
14.2. MODIFICATION. This Agreement shall not be varied, altered,
modified, canceled, changed, or in any way amended except by mutual
agreement of the parties in a written instrument executed by Executive and a
duly authorized officer of the Company.
14.3. COUNTERPARTS. This Agreement may be executed in one (1) or more
counterparts, each of which shall be deemed to be an original, but all of
which together will constitute one and the same Agreement.
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14.4. TAX WITHHOLDING. The Company may withhold from any compensation
or benefits payable under this Agreement all federal, state, city, or other
taxes as may be required pursuant to any law or governmental regulation or
ruling.
14.5. CONTRACTUAL RIGHTS TO BENEFITS. Nothing herein contained shall
require or be deemed to require, or prohibit or be deemed to prohibit, the
Company to segregate, earmark or otherwise set aside any funds or other
assets, in trust or otherwise, to provide for any payments to be made or
required hereunder.
14.6. NO WAIVER. Failure to insist upon strict compliance with any of
the terms, covenants or conditions of this Agreement shall not be deemed a
waiver of such term, covenant or condition, nor shall any waiver or
relinquishment of any right or power hereunder at any one or more times be
deemed a waiver or relinquishment of such right or power at any other time
or times.
14.7. GOVERNING LAW; CHOICE OF FORUM. To the extent not preempted by
federal law, the provisions of this Agreement shall be construed and
enforced in accordance with the laws of the State of Indiana,
notwithstanding any state's choice-of-law or conflicts-of-law rules to the
contrary. The Company and Executive further acknowledge and agree that this
Agreement is intended, among other things, to supplement the provisions of
the Uniform Trade Secrets Act, as amended from time to time, and the duties
Executive owes to the Company under the common law, including, but not
limited to, the duty of loyalty. The parties agree that any legal action
pursuant to Section 10 of this Agreement shall be commenced and maintained
exclusively before any appropriate state court of record in Vanderburgh
County, Indiana, or in the United States District Court for the Southern
District of Indiana, Evansville Division, and the parties hereby submit to
the jurisdiction and venue of such courts and waive any right to challenge
or otherwise object to personal jurisdiction or venue in any action
commenced or maintained in such courts.
14.8. ARBITRATION OF DISPUTES. Except as provided in Section 10 of this
Agreement, any controversy or claim arising out of or relating to this
Agreement or the breach thereof, shall be settled by binding arbitration in
the City of Evansville, Indiana, in accordance with the laws of the State of
Indiana by three arbitrators, one of whom shall be appointed by the Company,
one by Executive and the third of whom shall be appointed by the first two
arbitrators. The arbitration shall be conducted in accordance with the rules
of the American Arbitration Association, except with respect to the
selection of arbitrators which shall be as provided in this Section.
Judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof. The expenses of arbitration, and the fees
of the arbitrators, shall be paid by the party determined by the arbitrators
as the non-prevailing party. In addition, the prevailing party shall be
entitled to recover its costs, including reasonable attorneys' fees,
incurred in connection with the arbitration, any proceeding under Section 10
and any subsequent enforcement of any arbitration award in court.
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IN WITNESS WHEREOF, Executive and the Company have executed this
Agreement, intending it to be effective as of the Effective Date.
INTEGRA BANK CORPORATION
By: /s/ XXXXXXX X. XXX /s/ XXXXXXX X. XXXXXXX
----------------------------------- --------------------------
Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxx
----------------------------------
Title: Chairman, President and CEO
--------------------------------
"Company" "Executive"
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