FIRST COMMONWEALTH FINANCIAL CORPORATION
EXHIBIT 10.5 - Change in Control Agreement - Xxxxxx X. Xxxxxxxxx
AGREEMENT FOR
SEVERANCE PAYMENTS
IN THE EVENT OF
TERMINATION OF EMPLOYMENT
UNDER CERTAIN CIRCUMSTANCES
THIS AGREEMENT, by and between First Commonwealth Financial Corporation,
a bank holding company organized and existing under the laws of the
Commonwealth of Pennsylvania and with its principal place of business in
Indiana, Pennsylvania (the "Employer") and Xxxxxx X. Xxxxxxxxx of White
Township, Indiana County, Pennsylvania (the "Executive") made this 27th day of
October, 1995.
WITNESSETH
WHEREAS, the Executive is presently employed by the Employer as its
Senior Executive Vice President and Chief Operating Officer;
WHEREAS, the Employer wishes to induce the Executive to continue as its
Senior Executive Vice President and Chief Operating Officer and, accordingly,
to provide certain employment security to said Executive in the event of a
"change in control" (as hereinafter defined);
WHEREAS, the Employer believes that it is in the best interest of its
shareholders for the Executive to continue in his position on an objective and
impartial basis and without distraction or conflict of interest as a result of
a possible, or actual "change in control" (as hereinafter defined); and
WHEREAS, in consideration, inter alia, of this Agreement the Executive is
willing to continue as the Employer's Senior Executive Vice President and
Chief Operating Officer;
NOW THEREFORE, IN CONSIDERATION OF THE EXECUTIVE CONTINUING AS THE
SENIOR EXECUTIVE VICE PRESIDENT AND CHIEF OPERATING OFFICER OF THE EMPLOYER
AND OF THE MUTUAL PREMISES HEREIN CONTAINED, THE EXECUTIVE AND THE EMPLOYER,
INTENDING TO BE LEGALLY BOUND, HEREBY AGREE AS FOLLOWS, TO WIT;
ARTICLE I
DEFINITIONS
1. A "Change in Control" for the purpose of this Agreement, shall be
deemed to have occurred if, at any time, any person or group of persons acting
in concert (within the meaning of Section 13(d) of the Securities Exchange Act
of 1934, as amended, and the regulations of the Securities and Exchange
Commission promulgated thereunder) shall acquire legal or beneficial ownership
interest, or voting rights, in twenty-five percent (25%) or more of the common
voting stock of First Commonwealth Financial Corporation.
2. A "Triggering Event" for the purpose of this Agreement shall be
deemed to have occurred if, on or after the occurrence of a Change in Control,
any of the following shall occur, viz:
(a) Within two (2) years from the date on which the Change In
Control occurred, the Employer shall terminate the employment of the
Executive, other than in the case of a Termination For Cause, as
herein defined;
(b) Within two (2) years from the date on which the Change In
Control occurred, the Employer shall reduce the Executive's title,
responsibilities, power or authority in comparison with his title,
responsibilities, power or authority at the time of the Change In
Control;
(c) Within two (2) years from the date on which the Change In
Control occurred, the Employer shall assign the Executive duties
which are inconsistent with the duties assigned to the Executive on
the date on which the Change In Control occurred and which duties
the Employer persists in assigning to the Executive despite the
prior written objection of the Executive;
FIRST COMMONWEALTH FINANCIAL CORPORATION
EXHIBIT 10.5 - Change in Control Agreement - Xxxxxx X. Xxxxxxxxx
(Continued)
(d) Within two (2) years from the date in which the Change In
Control occurred, the Employer shall reduce the Executive's base
compensation, his group health, life, disability or other insurance
programs (including any such benefits provided to the Executive's
family), his pension, retirement or profit-sharing benefits or any
benefits provided by the Employer's Employee Stock Ownership Plan,
or any substitute therefor, or shall exclude him from any plan,
program or arrangement in which the other executive officers of the
Employer are included.
3. A "Termination For Cause" for the purpose of this Agreement shall be
deemed to have occurred if:
(a) The Executive shall have committed a felony under the laws of
the United States of America, or of any state or territory thereof,
and shall have been convicted of the same, or shall have pled guilty
or nolo contendere with respect to said charge, and the commission
of said felony resulted in, or was intended to result in, a loss
(monetary or otherwise) to the Employer or its clients, customers,
directors, officers or employees, or
(b) The Executive shall have deliberately and intentionally failed
and refused to perform his duties to the Employer (other than during
such time as the Executive shall be incapacitated due to accident or
illness or during his regularly scheduled vacation periods) for a
period of thirty (30) consecutive days following the receipt by him
of a notice from the Employer sent by certified mail, return receipt
requested, setting forth in detail the facts upon which the Employer
relies in concluding that the Executive has deliberately and
intentionally refused to perform his duties and indicating with
specificity the duties that the Employer demands that the Executive
perform forthwith.
ARTICLE II
SEVERANCE PAYMENT
Upon the occurrence of a Triggering Event, the Employer shall pay to the
Executive a severance benefit which shall be in addition to any other
compensation or remuneration to which the Executive is, or shall become,
entitled to receive from the Employer. Each severance payment shall be paid
by the Employer to the Executive on the first day of each calendar month
commencing on the first day of the month next following the month in which the
Triggering Event occurred, and be payable to the Executive or his beneficiary
( as hereinafter provided) for twenty-three (23) consecutive months
thereafter, so that a total of twenty-four (24) consecutive monthly payments
shall be made. The amount of each such payment shall be equal to one-twelfth
(1/12) of the Executive's annual base salary on the date of the Change In
Control. In addition thereto, the Employer shall, at its expense, provide the
Executive, and his family, with life, health, disability and accidental death
and dismemberment insurance in an amount not less than that provided on the
date on which the Change In Control occurred, for the period during which the
monthly payments provided above are to be made.
ARTICLE III
LIMITATION ON PAYMENT OF BENEFITS
Notwithstanding anything to the contrary herein contained, in no event
shall any amount of severance payments be paid to the extent that such amount
constitutes "excess parachute payments" to a "disqualified individual," as
such terms are defined by Section 280G of the Internal Revenue Code of 1986,
as amended (26 USC 280G) and the regulations of the Secretary of the Treasury
or his delegate issued pursuant thereto.
FIRST COMMONWEALTH FINANCIAL CORPORATION
EXHIBIT 10.5 - Change in Control Agreement - Xxxxxx X. Xxxxxxxxx
(Continued)
ARTICLE IV
PAYMENTS ON DEATH
If the Executive shall die after the occurrence of a Triggering Event,
but prior to the payment of all of the monthly severance payments required by
Article II hereof, then all remaining severance payments shall be paid to the
beneficiary herein provided at the same time, and in the same amount, as would
have been payable to the Executive (in accordance with Article II hereof) had
he survived. For this purpose, the Executive's beneficiary shall mean the
person or persons designated by the Executive in a notice to the Employer,
provided, however than any such designation shall be revocable during the
lifetime of the Executive, and in the event that the Executive shall have
given more than one such notice during his lifetime, the beneficiary
designated in the last such notice shall govern. If the Executive shall not
have given such a notice prior to his death, the beneficiary shall be deemed
to be the same person that the Executive designated with respect to his group
life insurance program maintained by the Employer.
ARTICLE V
VOLUNTARY TERMINATION
OF EMPLOYMENT
If the Executive shall resign, or otherwise voluntarily terminate, his
employment with the Employer within a one (1) year period commencing on the
date that a Change In Control occurred, and on the date of such resignation,
or other voluntary termination of employment, he has not yet attained the
earliest normal retirement date under the provisions of the Employer's
Employee Stock Ownership Plan, Profit-Sharing Plan, or other qualified pension
or profit-sharing plan of the Employer, then the Employer shall pay to the
Executive a severance benefit which shall commence on the first day of the
month following the date of such resignation or other termination of
employment and shall be payable thereafter for the same period, in the same
amount and under the same conditions as if such payments are made following a
Triggering Event in accordance with Article II hereof.
ARTICLE VI
COMPETITIVE EMPLOYMENT
If during the period that the Executive is receiving severance payments
as herein provided, he shall become an officer, director, employee or
consultant to a bank or bank holding company which provides (or whose
subsidiaries or affiliates provide) trust, loan or retail banking facilities
in the same county as such facilities are provided by any subsidiary or
affiliate of the Employer, and which is in direct competition with the
Employer, then the Employer may elect to notify the Executive by certified
mail, return receipt requested, that it considers the employment of the
Executive as competitive employment in accordance with this Article of this
Agreement.
The Executive may, within sixty (60) days of receipt of such notice from
the Employer terminate such competitive employment and certify the same to the
Employer by certified mail, return receipt requested. However, if he shall
fail to so terminate his employment and certify the same to the Employer
within sixty (60) days of receipt of the notice as herein provided, no
subsequent severance payments shall be due or payable following such sixtieth
day, notwithstanding any other provision of this Agreement. However, this
provision shall in no event affect Executive's entitlement to receive all
severance payments due prior to the sixtieth day after receipt by the
Executive of such notice, nor shall it in any way require Executive not to
engage in such competitive employment.
FIRST COMMONWEALTH FINANCIAL CORPORATION
EXHIBIT 10.5 - Change in Control Agreement - Xxxxxx X. Xxxxxxxxx
(Continued)
ARTICLE VII
SETOFF
No amounts otherwise due or payable under this Agreement shall be subject
to setoff or counterclaim by either party hereto.
ARTICLE VIII
ATTORNEY'S FEES
All attorney's fees and related expenses incurred by Executive in
connection with or relating to the enforcement by him of his rights under this
Agreement shall be paid for by the Employer.
ARTICLE IX
SUCCESSORS AND PARTIES
IN INTEREST
This Agreement shall be binding upon and shall inure to the benefit of
the Employer and its successors and assigns, including, without limitation,
any corporation which acquires, directly or indirectly, by purchase, merger,
consolidation or otherwise, all or substantially all of the business or assets
of the Employer. Without limitation of the foregoing, the Employer shall
require any such successor, by agreement in form and substance satisfactory to
the Executive, expressly to assume and agree to perform this Agreement in the
same manner and to the same extent that it is required to be performed by the
Employer.
This Agreement shall be binding upon and shall inure to the benefit of
the Executive, his heirs at law and his personal representatives.
ARTICLE X
ATTACHMENT
Neither this Agreement nor any benefits payable hereunder shall be
subject to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge or to execution, attachment, levy or similar process at
law, whether voluntary or involuntary.
ARTICLE XI
EMPLOYMENT CONTRACT
This Agreement shall not in any way constitute an employment agreement
between the Employer and the Executive and it shall not oblige the Executive
to continue in the employ of Employer, nor shall it oblige the Employer to
continue to employ the Executive, but it shall merely require the Employer to
pay severance benefits to the Executive under certain circumstances, as
aforesaid.
ARTICLE XII
RIGHTS UNDER OTHER PLANS
AND AGREEMENTS
The severance benefits herein provided shall be in addition to, and is
not intended to reduce, restrict or eliminate any benefit to which the
Executive may otherwise be entitled by virtue of his termination of employment
or otherwise.
FIRST COMMONWEALTH FINANCIAL CORPORATION
EXHIBIT 10.5 - Change in Control Agreement - Xxxxxx X. Xxxxxxxxx
(Continued)
ARTICLE XIII
NOTICES
All notices and other communications required to be given hereunder shall
be in writing and shall be deemed to have been delivered or made when mailed,
by certified mail, return receipt requested, if to the Executive, to the last
address which the Executive shall provide to the Employer, in writing, for
this purpose, but if the Executive has not then provided such an address, then
to the last address of the Executive then on file with the Employer; and if to
the Employer, then to the last address which the Employer shall provide to the
Executive, in writing, for this purpose, but if the Employer has not then
provided the Executive with such an address, then to:
President and Chief
Executive Officer
First Commonwealth Financial Corporation
Old Courthouse Square
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
ARTICLE XIV
GOVERNING LAW AND
JURISDICTION
This Agreement shall be governed by, and construed in accordance with,
the laws of the Commonwealth of Pennsylvania, except for the laws governing
conflict of laws. In the event that either party shall institute suit or
other legal proceeding, whether in law or equity, the Courts of the
Commonwealth of Pennsylvania shall have exclusive jurisdiction with respect
thereto.
ARTICLE XV
ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the Employer
and the Executive concerning the subject matter hereof and supersedes all
prior written or oral agreements or understandings between the parties hereto.
No term or provision of this Agreement may be changed, waived, amended or
terminated except by a written instrument of equal formality to this
Agreement.
IN WITNESS WHEREOF, and as conclusive evidence of the adoption of this
Agreement, the parties have hereunto set their hands and seals as of the date
and your first above written.
(Corporate Seal) FIRST COMMONWEALTH
FINANCIAL CORPORATION
Attest:
/S/Xxxxx X. Tomb By/S/Xxxxxx X. O'Dell
Corporate Secretary XXXXXX X. O'DELL
President and Chief
Executive Officer
/S/Xxxxx Xxxxx Xxxxxxxx /S/Xxxxxx X. Thomchik
Witness XXXXXX X. XXXXXXXXX
