EXHIBIT 10(b)
EMPLOYMENT AGREEMENT
BETWEEN
INTEGRA BANK CORPORATION
AND
D. XXXXXXX XXXXXX
(EFFECTIVE JULY 28, 2003)
EMPLOYMENT AGREEMENT
BETWEEN
INTEGRA BANK CORPORATION
AND
D. XXXXXXX XXXXXX
This Employment Agreement ("Agreement") is made and entered
into by and between Integra Bank Corporation, an Indiana corporation (the
"Company") and D. Xxxxxxx Xxxxxx ("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 - Technology and Operations 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 Twenty Thousand Dollars ($220,000) (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:
D. Xxxxxxx Xxxxxx
0000 Xxxxxxxxx Xx.
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/ D. XXXXXXX XXXXXX
------------------------------- --------------------------------
D. Xxxxxxx Xxxxxx
Name: Xxxxxxx X. Xxx
----------------------------
Title: Chairman, President and CEO
---------------------------
"Company" "Executive"
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