Exhibit 10(j)
CHANGE IN CONTROL AGREEMENT
---------------------------
AGREEMENT made the ___ day of _________, 1995, by and among DAUPHIN DEPOSIT
CORPORATION, a corporation organized and existing under the laws of the
Commonwealth of Pennsylvania and having its principal place of business in
Harrisburg, Pennsylvania (hereinafter referred to as the "Corporation"), DAUPHIN
DEPOSIT BANK AND TRUST COMPANY, a wholly-owned Bank subsidiary of the
Corporation organized and existing under the laws of the Commonwealth of
Pennsylvania and having its principal place of business in Harrisburg,
Pennsylvania (hereinafter referred to as the "Bank") and
________________________ (hereinafter referred to as "Executive").
WHEREAS, Executive is a key management employee of the Bank and currently
serves the Corporation as ____________________________________.
WHEREAS, the Corporation, Bank and Executive desire to enter into an
Agreement whereby the Corporation and the Bank will agree to make certain
payments to Executive upon termination under specific conditions in order to
induce Executive to continue in employment.
NOW, THEREFORE, in consideration of the employment of Executive and
intending to be legally bound hereby, Executive, the Corporation and the Bank
agree as follows:
ARTICLE I
TERMINATION PURSUANT TO A CHANGE IN CONTROL
-------------------------------------------
1.1 Definition: Termination Pursuant to a Change in Control. Any of the
--------------------------------------------------------
following events occurring during the period commencing with the date of any
"Change in Control" (as defined in ARTICLE II hereof) and ending on the second
anniversary of the date of the consummation of the Change in Control
transaction, shall constitute a "Termination Pursuant to a Change in Control":
(A) Executive's employment is terminated by the Corporation, the Bank
or an acquiror or successor of either without "Good Cause" (as defined
below); or
(B) One of the following events occurs and Executive thereafter
terminates Executive's employment:
(i) the nature and scope of Executive's duties or
responsibilities with the Corporation, the Bank or acquiror or
successor are materially reduced from that which Executive enjoyed
immediately prior to the Change in Control; or
(ii) Executive's base salary immediately prior to the Change in
Control is reduced; or
(iii) Executive is assigned, without Executive's consent, to a
principal place of employment which is more than fifty-five (55) miles
from Executive's principal place of employment immediately prior to
the Change in Control.
For purposes of this Section 1.1, "Good Cause" shall mean (i) the
commission of malfeasance in office constituting dishonesty or the commission of
a crime or (ii) the willful and continued failure of Executive for a significant
period of time to perform substantially Executive's duties, other than as a
result of sickness or disability, after a written
-2-
demand for substantial performance is delivered to Executive by the
Corporation's or the Bank's Board of Directors which specifically identifies the
manner in which the Board of Directors believes that Executive has not
substantially performed Executive's duties. No act, or failure to act, on
Executive's part shall be considered "willful" unless done, or omitted to be
done, by Executive, not in good faith and without reasonable belief that
Executive's action or omission was in the best interest of the Corporation or
the Bank. The burden of establishing the validity of any termination for Good
Cause shall rest upon the Corporation or the Bank.
1.2 Compensation Upon Termination Pursuant to a Change in Control.
-------------------------------------------------------------
If Executive's employment is terminated and such termination is a Termination
Pursuant to a Change in Control, the Corporation or the Bank (or any acquiror or
successor thereto) shall provide the following to Executive:
(A) Executive's compensation shall be continued for a period of two
(2) years, commencing as of the Termination Pursuant to the Change in
Control, but not beyond the date on which Executive attains age 65 or dies.
For purposes of this Section 1.2, compensation shall mean the greater of
(a) Executive's base salary in effect immediately prior to the Termination
Pursuant to a Change in Control, plus any cash bonuses or annual incentive
cash compensation earned by Executive with respect to the calendar year
immediately preceding the date of the Termination Pursuant to a Change in
Control or (b) Executive's base salary in effect immediately prior to the
Change in Control, plus any cash bonuses or annual incentive cash
compensation earned by Executive with respect to the calendar year
immediately preceding the Change in Control. Each payment during the two
(2) year payment period set forth in this Paragraph (A) shall be reduced by
Executive's earned income from all sources during the two (2) year payment
period; provided, however, that Executive shall have no duty to mitigate
-------- -------
damages by earning income during the period; and
-3-
(B) Executive shall be provided, for a period of two (2) years,
commencing as of the Termination Pursuant to the Change in Control, but not
beyond the date on which Executive attains age 65 or dies, with life,
disability and accident and health insurance coverages comparable to
employer sponsored plan coverages in effect for Executive immediately
preceding the Termination Pursuant to a Change in Control. Comparable
life, disability and accident and health insurance coverages may be
provided to Executive under: (1) existing plans or programs in which the
Executive participates, or (2) through conversion of group coverage
pursuant to any group policy in effect, or (3) through other available
commercial insurance arrangements, if obtainable, for Executive; provided,
--------
however, that to the extent a specific coverage cannot be continued or
-------
obtained under either (1), (2) or (3) above, Executive shall not be
entitled to continuation of that specific coverage. Executive shall
continue to be responsible for the cost of comparable insurance coverages
following his Termination Pursuant to a Change in Control to the same
extent as other similarly situated active employees of the Corporation or
the Bank as of the Termination Pursuant to a Change in Control or, if there
are no similarly situated employees, then to the same extent, on a
percentage of total cost basis, that Executive was responsible for the cost
of available insurance coverages prior to the Termination Pursuant to a
Change in Control. With respect to health insurance coverage, Executive's
spouse and/or eligible dependents, if covered under any employer sponsored
accident and health insurance plan in effect for Executive as of
Executive's Termination Pursuant to a Change in Control, shall also be
provided with health insurance coverage for the two (2) year term set forth
above (regardless of Executive's death or attainment of age 65 prior to the
end of the two (2) year term), and under the same cost sharing method as
described above.
(C) Should the total of all payments made hereunder to Executive upon
a Termination Pursuant to a Change in Control, together with any other
payments which Executive has a right to receive from the Corporation, the
Bank, any of the other subsidiaries of the Corporation, or any successors
of any of the foregoing, result in the imposition of an excise tax under
Internal Revenue Code Section 4999 (or any successor thereto), Executive
shall be entitled to an additional "excise tax" adjustment payment in an
amount such that, after the payment of all federal and state income and
excise taxes, Executive will be in the same after-tax position as if no
excise tax had been imposed. Any payment or benefit which is required to
be included under Internal Revenue Code Sections 280G or 4999 (or any
successor provisions thereto) for purposes of determining whether an excise
tax is payable shall be deemed a payment "made to Executive" or a payment
"which Executive has
-4-
a right to receive" for purposes of this provision. The Corporation (or
its successor) shall be responsible for the costs of calculation of the
excise tax by the Corporation's independent certified accountant and tax
counsel and shall notify Executive of the amount of excise tax due prior to
the time such excise tax is due. If at any time it is determined that the
additional "excise tax" adjustment payment previously made to Executive was
insufficient to cover the effect of the excise tax, the gross-up payment
pursuant to this provision shall be increased to make Executive whole,
including an amount to cover the payment of any penalties resulting from
any incorrect or late payment of the excise tax resulting from the prior
calculation.
1.3 Payments Not Exclusive. The payments provided by this ARTICLE I
----------------------
shall not affect Executive's rights to receive any payments or benefits to which
Executive may be or become entitled under any other existing or future agreement
or arrangement of the Corporation, the Bank or any successor with the Executive,
or under any existing or future benefit plan or arrangement of the Corporation,
the Bank or any successor in which Executive is or becomes a participant, or
under which Executive has or obtains rights, including without limitation, any
qualified or nonqualified deferred compensation or retirement plans or programs.
Any such rights of Executive shall be determined in accordance with the terms
and conditions of the applicable agreement, arrangement or plan.
1.4 Withholding for Taxes. All payments required to be made under
---------------------
this Agreement will be made in accordance with the Corporation's or the Bank's
normal payroll schedule and will be subject to withholding of such amounts
relating to tax and/or other payroll deductions as may be required by law.
-5-
ARTICLE II
----------
DEFINITION OF CHANGE IN CONTROL
-------------------------------
2.1 For purposes of this Agreement, the term "Change in Control"
shall mean any of the following:
(A) any person (as such term is used in Sections 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934 (the "Exchange Act")), other than the
Corporation, a subsidiary of the Corporation, an employee benefit plan (or
related trust) of the Corporation or a direct or indirect subsidiary of the
Corporation, or affiliates of the Corporation (as defined in Rule 12b-2
under the Exchange Act), becomes the beneficial owner (as determined
pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Corporation representing more than 10% of the combined
voting power of the Corporation's then outstanding securities or announces
a tender offer or exchange offer for securities of the Corporation
representing more than 10% of the combined voting power of the
Corporation's then outstanding securities; or
(B) the liquidation or dissolution of the Corporation or the Bank or
the occurrence of, or execution of an agreement providing for, a sale of
all or substantially all of the assets of the Corporation or the Bank to an
entity which is not a direct or indirect subsidiary of the Corporation; or
(C) the occurrence of, or execution of an agreement providing for, a
reorganization, merger, consolidation or other similar transaction or
connected series of transactions of the Corporation as a result of which
either (a) the Corporation does not survive or (b) pursuant to which shares
of the Corporation common stock ("Common Stock") would be converted into
cash, securities or other property, unless, in case of either (a) or (b),
------
the holders of Corporation Common Stock immediately prior to such
transaction will, following the consummation of the transaction,
beneficially own, directly or indirectly, more than 50% of the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors of the corporation surviving,
continuing or resulting from such transaction; or
(D) the occurrence of, or execution of an agreement providing for, a
reorganization, merger, consolidation, or similar transaction of the
-6-
Corporation, or before any connected series of such transactions, if, upon
consummation of such transaction or transactions, the persons who are
members of the Board of Directors of the Corporation immediately before
such transaction or transactions cease or, in the case of the execution of
an agreement for such transaction or transactions, it is contemplated in
such agreement that upon consummation such persons would cease, to
constitute a majority of the Board of Directors of the Corporation or, in a
case where the Corporation does not survive in such transaction, of the
corporation surviving, continuing or resulting from such transaction or
transactions; or
(E) any other event which is at any time designated as a "Change in
Control" for purposes of this Agreement by a resolution adopted by the
Board of Directors of the Corporation with the affirmative vote of a
majority of the non-employee directors in office at the time the resolution
is adopted; in the event any such resolution is adopted, the Change in
Control event specified thereby shall be deemed incorporated herein by
reference and thereafter may not be amended, modified or revoked without
the written agreement of Executive.
2.2 Notwithstanding anything else to the contrary set forth in this
Agreement, if (i) an agreement is executed by the Corporation or the Bank
providing for any of the transactions or events constituting a Change in Control
pursuant to this ARTICLE II, and the agreement subsequently expires or is
terminated without the transaction or event being consummated, and (ii) a
"Termination Pursuant to a Change in Control" (as defined in ARTICLE I hereof)
has not occurred prior to such expiration or termination, for purposes of this
Agreement (including, without limitation, ARTICLE I hereof) it shall be as
though such agreement was never executed and no Change in Control event shall be
deemed to have occurred as a result of the execution of such agreement.
-7-
ARTICLE III
EXPENSES
--------
3.1 Legal Action. If Executive determines in good faith that the
------------
Corporation, the Bank, or any successor to either of them, has failed to comply
with its obligations under this Agreement, or if the Corporation, the Bank, or
any successor to either of them, or any other person takes any action to declare
this Agreement void or unenforceable, or institutes any legal action or
arbitration proceeding with respect to this Agreement, each of the Corporation
and the Bank hereby irrevocably authorizes Executive from time to time to retain
counsel of Executive's choice, at the expense of the Corporation and the Bank,
to represent Executive in connection with any and all actions and proceedings,
whether by or against the Corporation, the Bank, any acquiror or successor, or
any director, officer, stockholder or other person affiliated with any of the
foregoing, which may adversely affect Executive's rights hereunder.
3.2 Excise Tax Matters. It is the intention of the Corporation and
------------------
the Bank that Executive not be required to incur any expenses associated with
determination of the amount of any "excess parachute payment" under Internal
Revenue Code Section 280G or the amount of any excise tax imposed on Executive
pursuant to Internal Revenue Code Section 4999 (or any successor provisions
thereto). Therefore, the Corporation and the Bank agree to pay all expenses,
including the expenses of the Corporation's independent certified accountant and
tax counsel, related to the determination of any excess parachute payment and
excise tax, and to pay the legal costs and expenses of any tax audit of
Executive
-8-
to the extent such expenses relate to the amount of the excise tax determined by
the Corporation or the Bank.
ARTICLE IV
MISCELLANEOUS
-------------
4.1 Termination of Employment. This Agreement shall not in any way
-------------------------
obligate either the Corporation or the Bank to continue the employment of
Executive nor shall this Agreement limit the right of the Corporation or the
Bank to terminate Executive's employment for any reason. Prior to the
occurrence of a Change in Control as defined herein, Executive's employment may
be terminated at any time by the Corporation or the Bank, in which case
Executive shall have no further rights under this Agreement.
4.2 Binding Effect; Assignment. This Agreement shall be binding upon
--------------------------
and inure to the benefit of the parties hereto, their respective heirs,
executors, administrators, successors and, to the extent permitted hereunder,
assigns. All of the obligations of the Corporation and the Bank hereunder shall
be legally binding on any successor to the Corporation or the Bank, including
without limitation, any successor as a result of the consummation of a Change in
Control. The right of Executive to receive payments hereunder may not be
assigned, alienated, pledged or otherwise encumbered by Executive and any
attempt to do so shall be void and of no force or effect.
4.3 Entire Agreement; Amendment. This Agreement represents the
---------------------------
entire understanding between the parties hereto with respect to the subject
matter hereof and may
-9-
be amended only by an instrument in writing signed by the parties hereto. This
Agreement supersedes and replaces the Change in Control Agreement dated October
27, 1986, as amended on August 7, 1989, between the parties hereto and said
agreement is hereby terminated in all respects.
4.4 Jurisdiction. The parties hereto consent to the exclusive
------------
jurisdiction of the courts of the Commonwealth of Pennsylvania in any and all
actions arising hereunder.
4.5 Governing Laws. This Agreement shall be governed and construed
--------------
under the laws of the Commonwealth of Pennsylvania, without regard to the
conflict of laws principles thereof.
4.6 Unfunded Obligations. The obligations to make payments hereunder
--------------------
shall be unfunded and Executive's rights to receive any payments hereunder shall
be the same as those of any other unsecured general creditor.
4.7 Individual Agreement. This Agreement constitutes an agreement
--------------------
solely between the Corporation, the Bank and Executive named herein. This
Agreement is intended to constitute a non-qualified arrangement for the benefit
of a key management employee and shall be construed and interpreted in a manner
consistent with such intention.
4.8 Headings. All headings preceding the text of the several
--------
paragraphs hereof are inserted solely for reference and shall not constitute a
part of this Agreement, nor affect its meaning, construction or effect.
-10-
IN WITNESS WHEREOF, the Corporation and the Bank have caused this
Agreement to be executed and attested to on their respective behalf by their
duly authorized officers, and Executive hereunto has set his hand and seal as of
the day and year first above written.
ATTEST: DAUPHIN DEPOSIT CORPORATION
_______________________ By:__________________________________
(Assistant) Secretary
(SEAL)
ATTEST: DAUPHIN DEPOSIT BANK AND TRUST
COMPANY
_______________________ By:__________________________________
(Assistant) Secretary
(SEAL)
WITNESS: EXECUTIVE
_______________________ ________________________________(SEAL)
-11-
