Exhibit 9
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Amended and Restated Employment Agreement dated as of February 12, 1999
between Xxxxxxxxxxx X. Xxxxxxxx ("Executive") and First Commonwealth, Inc., a
Delaware corporation (the "Company"), with its principal office at Suite 600,
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
WHEREAS, the Company and Employee are parties to an Employment Agreement
dated September 21, 1995; and
WHEREAS, the Company and Employee desire to amend and restate such
Employment Agreement on the terms and subject to the conditions contained
herein;
NOW, THEREFORE, in consideration of the agreements and covenants contained
herein, Executive and the Company hereby agree as follows:
ARTICLE I
EMPLOYMENT
Section 1.1 Position; Term; Responsibilities. The Company hereby employs
Executive as its Chairman of the Board and Chief Executive Officer until this
Agreement is terminated as herein provided, subject to all the covenants and
conditions hereinafter set forth. Subject to the powers, authorities and
responsibilities vested in the Board under the General Corporation Law of the
State of Delaware, and in duly constituted committees of the Board, Executive
shall have the responsibility and authority for the formulation and execution of
the policies relating to the affairs of the Company and the administration of
the Company's operations. Executive shall hold the title of Chairman of the
Board and Chief Executive Officer or such other or additional title as is not
inconsistent with the aforementioned responsibilities. Executive shall also
perform such other executive and administrative duties for the Company and its
subsidiaries (not inconsistent with the position of the Company's Chairman of
the Board and Chief Executive Officer) as Executive may reasonably be expected
to be capable of performing on behalf of the Company, as may from time to time
be authorized or directed by the Board. Executive agrees to be employed by the
Company and its subsidiaries in all such capacities until this Agreement is
terminated as herein provided, subject to all the covenants and conditions
hereinafter set forth.
Section 1.2 Duties. During the term of this Agreement, Executive shall
perform faithfully the duties assigned to him hereunder to the best of his
abilities and devote his full and undivided business time and attention to the
transaction of the Company's business and not engage in any other business
activities except with the approval of the Board.
Section 1.3 Place of Performance. Executive's duties hereunder shall be
performed in the Chicago metropolitan area and Executive shall not be required
to relocate his principal residence outside of the Chicago metropolitan area.
ARTICLE II
COMPENSATION
Section 2.1 Basic Compensation. As compensation for his services
hereunder, the Company shall pay to Executive during the term of this Agreement
a minimum annual salary of $160,000 (the "Base Salary"), payable in installments
in accordance with the Company's normal payment schedule for senior management
and executive officers of the Company. On each anniversary of the date hereof
during the term of this Agreement, the Board of Directors or the Compensation
Committee shall review the Base Salary and may increase (but not decrease) the
Base Salary, in its discretion. Executive's annual salary in effect from time to
time under this Sec tion 2.1 is hereinafter called his "Basic Compensation."
Section 2.2 Performance Bonus. In addition to his Basic Compensation, the
Company shall pay to Executive a performance bonus ("Performance Bonus"), in
respect of each fiscal year of the Company during the term of this Agreement, an
amount determined in accordance with the performance bonus plan which is
provided to senior management and executive officers of the Company, and which
shall be similar in structure to the Company's current Management Bonus Plan.
Section 2.3 Other Employee Benefits. Executive shall be entitled to
participate in all employee benefit plans, including group health care plans, to
take time off for vacation or illness in accordance with the Company's policy
for senior management and executive officers, and to receive all other fringe
benefits as are from time to time made generally available to the senior
management and executive officers of the Company; provided, however, that
notwithstanding any contrary policy, Executive shall be entitled to six weeks of
vacation on an annual basis. The Company shall pay to Executive a minimum annual
car allowance of $4,800, payable in accordance with the Company's normal payment
schedule.
Section 2.4 Expense Reimbursements. The Company shall reimburse Executive
for all proper expenses incurred by him in the performance of his duties
hereunder in accordance with the policies and procedures established by the
Board.
ARTICLE III
TERMINATION OF EMPLOYMENT
Section 3.1 Termination.
(a) Executive and the Company acknowledge that, except as may be provided
under applicable law, this Agreement or any other agreement between Executive
and the Company, the employment of Executive by the Company is "at will" and,
prior to the effective date of a Change in Control, may be terminated by either
Executive or the Company at any time, subject to applicable law. In the event of
a Change in Control, neither the Company nor Executive shall terminate
Executive's employment for a period of six months following the effective date
of the
Change in Control, except for Cause by the Company or Good Reason by Executive.
Upon termination of Executive's employment, there shall be no further rights or
obligations under this Agreement except as expressly provided herein.
(b) In the event of (i) termination of employment of Executive by the
Company without Cause, (ii) termination of employment by Executive due to a
material breach of the terms of this Agreement by the Company (following notice
from Executive and after a reasonable opportunity to cure such breach), (iii)
death of Executive during the term of this Agreement, (iv) termination of
executive in the event of Long-term Disability (as defined below) of Executive
(v) termination of employment by Executive or the Company for any reason (other
than Cause) following the expiration of six months after the effective date of a
Change in Control or (vi) termination of employment by Executive with Good
Reason (following notice from Executive and after a reasonable opportunity to
cure by the Company) during the six month period following a Change in Control,
Executive (or his beneficiaries or estate in the event of Death) shall be
entitled to receive all compensation provided herein under Sections 2.1, 2.2.
and 2.3 and reimbursement for his expenses under Section 2.4 to the date of such
termination, plus compensation equal to two full year's Basic Compensation, as
determined under Section 2.1, plus the product of two and the average of the
amount paid to Executive as a Performance Bonus under Section 2.2 for the two
fiscal years of the Company immediately preceding such termination, and shall be
entitled to continue participation in all other employee benefits under Section
2.3 for a period of two years following such termination. Any amount payable or
benefit to be provided pursuant to the foregoing sentence shall be paid or
provided in accordance with the Company's procedures for senior management and
executive officers and as if Executive's employment by the Company had continued
for one complete year after the date of termination; provided, however, that in
the event that such payments are made due to long-term disability, such payments
shall be reduced by the amount of payments made to the Executive for the same
period pursuant to the Company's long-term disability plan.
(c) In the event the Board terminates the employment of Executive for
Cause, or in the event of voluntary termination of Executive prior to a Change
in Control or without Good Reason during the six-month period following a Change
in Control, Executive shall be entitled to receive all compensation provided
herein under Sections 2.1, 2.2. and 2.3 and reimbursement for his expenses under
Section 2.4 to the date of termination, and all other rights and obligations of
the parties hereunder shall terminate, except as provided in Article IV and
Section 5.4.
Section 3.2 Incapacity. If at any time during the term of this Agreement
Executive is unable to substantially perform his duties hereunder by reason of
illness, accident or other disability ("Disability"), he shall be entitled to
receive his Basic Compensation, Performance Bonus and other employee benefits to
which he would be entitled under Sections 2.1, 2.2 and 2.3 for a minimum period
of six months. To determine the amount of Performance Bonus which the Executive
shall be entitled to receive during such period, the Board shall prorate the
average of the amount paid to Executive as a Performance Bonus under Section 2.2
for the two fiscal years of the Company immediately preceding such disability.
In the event the Executive's Disability continues for a period of six months or
more ("Long-term Disability"), the Company may (i)
continue to employ the Executive, in which case the Executive will continue to
be entitled to receive his Basic Compensation, Performance Bonus and other
employee benefits to which he would be entitled under Sections 2.1, 2.2 and 2.3
until the Executive's employment is terminated hereunder or (ii) terminate
Executive's employment at any time, in which case Executive shall be entitled to
receive all compensation provided herein under Sections 2.1, 2.2. and 2.3 to the
date of such termination, plus compensation equal to one full year's Basic
Compensation, as determined under Section 2.1, plus the average of the amount
paid to Executive as a Performance Bonus under Section 2.2 for the two fiscal
years of the Company immediately preceding such termination, and shall be
entitled to continue participation in all other employee benefits under Section
2.3 for a period of one year following such termination, pursuant to Section
3.1(a). To determine the amount of Performance Bonus which Executive shall be
entitled to receive during any period of incapacity, the Board shall prorate
such benefit by multiplying the average of the Performance Bonus paid to
Executive for the immediately preceding two fiscal years by a fraction, the
denominator of which is the number of days of incapacity and the denominator of
which is 365.
ARTICLE IV
NONCOMPETITION; CONFIDENTIAL INFORMATION
Section 4.1 Noncompetition. During the term of this Agreement and, in the
event of termination for Cause or voluntary termination by Executive prior to a
Change in Control or for Good Reason during the six-month period following a
Change in Control), for a period of two years thereafter, except with the prior
written consent of the Board, Executive:
(a) shall not engage in any activities whether as employer, proprietor,
partner, stockholder (other than the holder of less than 5% of the stock of a
corporation the securities of which are traded on a national securities exchange
or in the over-the-counter market), director, officer, employee or otherwise, in
competition with (i) the businesses conducted at the date hereof by the Company
or any of its subsidiaries or controlled affiliates (the "Companies"), or (ii)
any business in which the Companies are substantially engaged at any time during
the term of this Agreement;
(b) shall not solicit, in competition with the Companies, any person who
is a customer of the businesses conducted by the Companies at the date hereof or
of any business in which the Companies are substantially engaged at any time
during the term of this Agreement; and
(c) shall not induce or attempt to persuade any employee of the Companies
to termi nate his employment relationship in order to enter into competitive
employment.
Section 4.2 Trade Secrets. Executive shall not, at any time during the
term of this Agreement or thereafter, make use of any bidding information (or
computer programs thereof) of
any of the Companies, nor divulge any trade secrets or other confidential
information of any of the Companies, except to the extent that such information
becomes a matter of public record, is published in a newspaper, magazine or
other periodical available to the general public or as the Board may so
authorize in writing; and when Executive shall cease to be employed by the
Company, Executive shall surrender to the Company all records and other
documents obtained by him or entrusted to him during the course of his
employment hereunder (together with all copies thereof) which pertain
specifically to any of the businesses covered by the covenants in Section 4.1 or
which were paid for by any of the Companies; provided, however, that Executive
may retain copies of such documents as necessary for Executive's personal
records for federal income tax purposes.
Section 4.3 Scope of Covenants; Remedies. The following provisions shall
apply to the covenants of Executive contained in Sections 4.1 and 4.2:
(a) the covenants contained in paragraphs (a) and (b) of Section 5. shall
apply within all territories in which any of the Companies are actively engaged
in the conduct of business during the term of this Agreement, including, without
limitation, the territories in which customers are then being solicited;
(b) without limiting the right of the Company to pursue all other legal
and equitable remedies available for violation by Executive of the covenants
contained in Sections 4.1 and 4.2, it is expressly agreed by Executive and the
Company that such other remedies cannot fully compensate the Company for any
such violation and that the Company shall be entitled to injunctive relief to
prevent any such violation or any continuing violation thereof;
(c) each party intends and agrees that if in any action before any court
or agency legally empowered to enforce the covenants contained in Sections 4.1
and 4.2 any term, restriction, covenant or promise contained therein is found to
be unreasonable and accordingly unenforceable, then such term, restriction,
covenant or promise shall be deemed modified to the extent necessary to make it
enforceable by such court or agency; and
(d) the covenants contained in Sections 4.1 and 4.2 shall survive the
conclusion of Executive's Employment by the Company.
ARTICLE V
MISCELLANEOUS
Section 5.1 Headings. The Article, Section paragraph and subparagraph
headings are for convenience of reference only and shall not define or limit the
provisions hereof.
Section 5.2 Successors; Binding Agreement.
(a) This Agreement shall not be terminated by any merger or consolidation
of the Company whereby the Company is or is not the surviving or resulting
corporation or as a result
of any transfer of all or substantially all of the assets of the Company. In the
event of any such merger, consolidation or transfer of assets, the provisions of
this Agreement shall be binding upon the surviving or resulting corporation or
the person or entity to which such assets are transferred.
(b) The Company agrees that concurrently with any merger, consolidation or
transfer of assets referred to in paragraph (a) of this Section 5.2, it will
cause any successor or transferee unconditionally to assume, by written
instrument delivered to Executive (or his beneficiary or estate), all of the
obligations of the Company hereunder. Failure of the Company to obtain such
assumption prior to the effectiveness of any such merger, consolidation or
transfer of assets shall be a material breach of this Agreement and shall
entitle Executive to compensation and other benefits from the Company in the
same amount and on the same terms as Executive would be entitled hereunder if
Executive's employment were terminated by the Company without Cause during the
six-month period following a Change in Control. For purposes of implementing the
foregoing, the date on which any such merger, consolidation or transfer becomes
effective shall be deemed the termination date.
(c) This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive shall die
while any amounts would be payable to Executive hereunder had Executive
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to such person or persons
appointed in writing by Executive to receive such amounts or, if no person is so
appointed, to Executive's estate.
Section 5.3 Notices.
(a) For purposes of this Agreement, all notices and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered or five days after deposit in the United States
mail, certified and return receipt requested, postage prepaid, addressed (i) if
to Executive, to Xxxxxxxxxxx X. Xxxxxxxx, 000 Xxxx, Xxxxxxxx Xxxx, Xxxxxxxx
00000, and if to the Company, to First Commonwealth, Inc., Suite 600, 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, attention: Chairman of the Board of
Directors, with a copy to the Secretary, or (ii) to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notices of change of address shall be effective only upon receipt.
(b) A written notice by the Company or Executive, as the case may be, to
the other, asserting a breach of the terms of this Agreement or any other event
requiring the delivery of notice and providing a reasonable opportunity to cure,
shall (i) indicate the specific provision in this Agreement relied upon, (ii) to
the extent applicable, set forth in reasonable detail the facts and
circumstances being asserted and (iii) specify a date (which date shall be not
less than 15 days after the giving of such notice) by which the receiving party
must cure the deficiency specified in such notice.
(c) A written notice of Executive's termination by the Company or
Executive, as the
case may be, to the other, shall (i) indicate the specific termination provision
in this Agreement relied upon, (ii) to the extent applicable, set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so indicated and (iii)
specify the termination date (which date shall be not less than 15 days after
the giving of such notice).
(d) The failure by Executive or the Company to set forth in any notice any
fact or circumstance which contributes to a showing of Good Reason or Cause
shall not waive any right of Executive or the Company hereunder or preclude
Executive or the Company from asserting such fact or circumstance in enforcing
Executive's or the Company's rights hereunder.
Section 5.4 Full Settlement; Resolution of Disputes; Expenses.
(a) The Company's obligation to make any payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against Executive or others. In no event
shall Executive be obligated to seek other employment or take any other action
by way of mitigation of the amounts payable to Executive under any of the
provisions of this Agreement and, such amounts shall not be reduced whether or
not Executive obtains other employment.
(b) If there shall be any dispute between the Company and Executive
regarding any payments to be made hereunder during the term hereof or in the
event of any termination of Executive's employment, then, unless and until there
is a final, nonappealable judgment by a court of competent jurisdiction
declaring that the Company is not obligated to pay any amount or provide any
benefit to Executive and his dependents or other beneficiaries, as the case may
be, under this Agreement, the Company shall pay all amounts, and provide all
benefits, to Executive and his dependents or other beneficiaries, as the case
may be, that the Company would be required to pay or provide pursuant to this
Agreement as if no dispute with respect to such payments existed; provided,
however, that the Company shall not be required to pay any disputed amounts
pursuant to this paragraph except upon receipt of an undertaking by or on behalf
of Executive to repay all such amounts to which Executive is ultimately adjudged
by such court not to be entitled.
(c) If any contest or dispute shall arise under this Agreement involving
termination of Executive's employment with the Company or involving the failure
or refusal of the Company to perform fully in accordance with the terms hereof,
the Company shall reimburse Executive, on a current basis, for all legal fees
and expenses, if any, incurred by Executive in connection with such contest or
dispute, together with interest in an amount equal to the prime rate of The
First National Bank of Chicago from time to time in effect, but in no event
higher than the maximum legal rate permissible under applicable law, such
interest to accrue from the date the Company receives Executive's statement for
such fees and expenses through the date of payment thereof; provided, however,
that in the event the resolution of any such contest or dispute includes a
finding denying, in total, Executive's claims in such contest or dispute,
Executive shall be required to reimburse the Company, for all sums advanced to
Executive pursuant to this Section
5.4(c) in connection with such contest or dispute, together with interest in an
amount equal to the corporate base rate of The First National Bank of Chicago
from time to time in effect, but in no event higher than the maximum legal rate
permissible under applicable law, such interest to accrue from the date the
Company made the payment to Executive through the date of payment by Executive
thereof.
Section 5.5 Governing Law; Validity. The interpretation, construction and
performance of this Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Illinois without regard to
conflicts of laws principle. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which other provisions shall remain in full force
and effect.
Section 5.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
Section 5.7 Miscellaneous. No provision of this Agreement may be modified
or waived unless such modification or waiver is agreed to in writing and signed
by Executive and by a duly authorized officer of the Company. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. Failure by Executive
or the Company to insist upon strict compliance with any provision of this
Agreement or to assert any right Executive or the Company may have hereunder,
including, without limitation, the right of Executive to terminate employment
for Good Reason or the right of the Company to terminate Executive's employment
for Cause, shall not be deemed to be a waiver of such provision or right or any
other provision or right of this Agreement. The rights of, and benefits payable
to, Executive, his estate or his beneficiaries pursuant to this Agreement are in
addition to any rights of, or benefits payable to, Executive, his estate or his
beneficiaries under any other employee benefit plan or compensation program of
the Company.
ARTICLE VI
DEFINITIONS
As used in this Agreement, the following terms shall have the respective
meanings set forth below:
6.1 "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2, as in effect on the effective date of this
Plan, under the Exchange Act; provided, however, that no director or officer of
the Company shall be deemed an Affiliate or Associate of any other director or
officer of the Company solely as a result of his or her being a director or
officer of the Company.
6.2 "Beneficial Owner" (including the terms "Beneficially Own" and
"Beneficial Ownership"), when used with respect to any Person, shall be deemed
to include any securities which:
(a) such Person or any of such Person's Affiliates or Associates
beneficially owns, directly or indirectly (determined as provided in Rule 13d-3,
as in effect on the effective date of this Plan, under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"));
(b) such Person or any of such Person's Affiliates or Associates, directly
or indirectly, has:
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time or upon the satisfaction of any
conditions, or both) pursuant to any written or oral agreement, arrangement or
understanding (other than customary agreements with and among underwriters and
selling group members with respect to a bona fide public offering of
securities), upon the exercise of any options, warrants, rights or conversion or
exchange privileges or otherwise; provided, however, that a Person shall not be
deemed the Beneficial Owner of, or to Beneficially Own securities tendered
pursuant to a tender or exchange offer made by or on behalf of such Person or
any of such Person's Affiliates or Associates until such tendered securities are
accepted for purchase or exchange; or
(ii) the right to vote pursuant to any written or oral agreement,
arrangement or understanding; provided, however, that a Person shall not be
deemed the Beneficial Owner of, or to Beneficially Own, any security otherwise
subject to this item (B) if such agreement, arrangement or understanding to vote
(1) arises solely from a revocable proxy or consent given to such Person or any
of such Person's Affiliates or Associates in response to a public proxy or
consent solicitation made pursuant to, and in accordance with, the applicable
rules and regulations under the Exchange Act and (2) is not also then reportable
by such Person on Schedule 13D (or any comparable or successor report then in
effect) under the Exchange Act; or
(iii) the right to dispose of pursuant to any written or oral
agreement, arrangement or understanding (other than customary agreements with
and among underwriters and selling group members with respect to a bona fide
public offering of securities); or
(c) are beneficially owned, directly or indirectly, by any other Person
with which such Person or any of such Person's Affiliates or Associates has any
written or oral agreement, arrangement or understanding (other than customary
agreements with and among underwriters and selling group members with respect to
a bona fide public offering of securities) for the purpose of acquiring,
holding, voting (except to the extent contemplated by the proviso to item (ii)
of subparagraph (b) of the first paragraph of this definition) or disposing of
any securities of the Company.
Notwithstanding the first paragraph of this definition, no director or
officer of the Company shall be deemed to be the "Beneficial Owner" of, or to
"Beneficially Own," shares of Common Stock or other securities of the Company
beneficially owned by any other director or officer of the Company solely as a
result of his or her being a director or officer of the Company.
6.3 "Board" means the Board of Directors of the Company.
6.4 "Cause" means embezzlement or misappropriation of corporate funds,
other act of dishonesty, significant activities harmful to the reputation of the
Company, willful refusal to perform or substantial disregard of the duties
properly assigned pursuant to Article II of this Agreement (subject to notice
and reasonable opportunity to cure) or significant violation of any statutory or
common law duty of loyalty to the Company (including any material breach by
Executive of Article IV of this Agreement).
6.5 "Change in Control" means:
(a) the acquisition by any individual, entity or group (a "Person"),
including any "person" within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), of Beneficial
Ownership of 50% or more of either (i) the then outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock") or (ii) the
combined voting power of the then outstanding securities of the Company entitled
to vote generally in the election of directors (the "Outstanding Company Voting
Securities"); excluding, however, the following: (A) any acquisition directly
from the Company (excluding any acquisition resulting from the exercise of an
exercise, conversion or exchange privilege unless the security being so
exercised, converted or exchanged was acquired directly from the Company), (B)
any acquisition by the Company, (C) any acquisition by an employee benefit plan
(or related trust) sponsored or maintained by the Company or any corporation
controlled by the Company, (D) any acquisition by an Exempt Person or (E) any
acquisition by any corporation pursuant to a transaction which complies with
clauses (i), (ii) and (iii) of subsection (c) of this Section 6.5); provided
further, that for purposes of clause (ii), if any Person (other than an Exempt
Person, the Company or any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company) shall
become the Beneficial Owner of 50% or more of the Outstanding Company Common
Stock or 50% or more of the Outstanding Company Voting Securities by reason of
an acquisition by the Company, and such Person shall, after such acquisition by
the Company, become the Beneficial Owner of any additional shares of the
Outstanding Company Common Stock or any additional Outstanding Company Voting
Securities and such Beneficial Ownership is publicly announced, such additional
Beneficial Ownership shall constitute a Change in Control;
(b) individuals who, as of the effective date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a majority
of such Board; provided that any individual who becomes a director of the
Company subsequent to the effective date hereof whose election, or nomination
for election by the Company's stockholders, was approved by the vote of at least
a majority of the directors then comprising the Incumbent Board shall be deemed
a member of the Incumbent Board; and provided further, that any individual who
was initially elected as a director of the Company as a result of an actual or
threatened election contest, as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act, or any other actual or threatened
solicitation of proxies or consents by or on behalf of any Person other than the
Board shall not be deemed a member of the Incumbent
Board;
(c) approval by the stockholders of the Company of a reorganization,
merger or consolidation or sale or other disposition of all or substantially all
of the assets of the Company (a "Corporate Transaction"); excluding, however, a
Corporate Transaction pursuant to which (i) all or substantially all of the
individuals or entities who are the Beneficial Owners, respectively, of the
Outstanding Company Common Stock and the Outstanding Company Voting Securities
immediately prior to such Corporate Transaction will Beneficially Own, directly
or indirectly, more than 50% of, respectively, the outstanding shares of common
stock, and the combined voting power of the outstanding securities of such
corporation entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Corporate Transaction (including,
without limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly or
indirectly) in substantially the same proportions relative to each other as
their Beneficial Ownership, immediately prior to such Corporate Transaction, of
the Outstanding Company Common Stock and the Outstanding Company Voting
Securities, as the case may be, (ii) no Person (other than an Exempt Person; the
Company; any employee benefit plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the Company; the corporation
resulting from such Corporate Transaction; and any Person which Beneficially
Owned, immediately prior to such Corporate Transaction, directly or indirectly,
50% or more of the Outstanding Company Common Stock or the Outstanding Company
Voting Securities, as the case may be) will Beneficially Own, directly or
indirectly, 50% or more of, respectively, the outstanding shares of common stock
of the corporation resulting from such Corporate Transaction or the combined
voting power of the outstanding securities of such corporation entitled to vote
generally in the election of directors and (iii) individuals who were members of
the Incumbent Board will constitute at least a majority of the members of the
board of directors of the corporation resulting from such Corporate Transaction;
or
(d) approval by the stockholders of the Company of a plan of complete
liquidation or dissolution of the Company.
Notwithstanding anything to the contrary herein, no Change of Control
shall be deemed to have taken place as a result of the issuance of shares of
Common Stock by the Company or the sale of shares of Common Stock by its
stockholders in connection with the Company's initial public offering.
6.6 "Exempt Person" shall mean each of Xxxxxxxxxxx X. Xxxxxxxx and Xxxxx
X. Xxxxxxxx and each Affiliate thereof.
6.7 "Good Reason" means, without Executive's express written consent, the
occurrence of any of the following events after a Change in Control:
(a) any of (i) the assignment to Executive of any duties inconsistent in
any material respect with Executive's position(s), duties, responsibilities or
status with the Company immediately prior to such Change in Control, (ii) a
change in Executive's reporting
responsibilities, titles or offices with the Company as in effect immediately
prior to such Change in Control or (iii) any removal or involuntary termination
of Executive from the Company otherwise than as expressly permitted by this
Agreement or any failure to re-elect Executive to any position with the Company
held by Executive immediately prior to such Change in Control;
(b) a reduction by the Company in Executive's rate of annual base salary
as in effect immediately prior to such Change in Control or as the same may be
increased from time to time thereafter or the failure by the Company to increase
such rate of base salary after such Change in Control by an amount which at
least equals, on a percentage basis, the mean average percentage increase in the
rates of base salary for all officers (within the meaning of Rule 3b-2
promulgated under the Exchange Act) of the Company during the two full fiscal
years of the Company immediately preceding such Change in Control;
(c) any requirement of the Company that Executive (i) be based anywhere
other than at the facility where Executive is located at the time of the Change
in Control or (ii) travel on Company business to an extent substantially more
burdensome than the travel obligations of Executive immediately prior to such
Change in Control;
(d) the failure of the Company to (i) continue in effect any employee
benefit plan or compensation plan in which Executive is participating
immediately prior to such Change in Control, unless Executive is permitted to
participate in other plans providing Executive with substantially comparable
benefits, or the taking of any action by the Company which would adversely
affect Executive's participation in or materially reduce Executive's benefits
under any such plan, (ii) provide Executive and Executive's dependents welfare
benefits (including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life, accidental death and
travel accident insurance plans and programs) in accordance with the most
favorable plans, practices, programs and policies of the Company and its
affiliated companies in effect for Executive immediately prior to such Change in
Control or, if more favorable to Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and its
affiliated companies, (iii) provide fringe benefits in accordance with the most
favorable plans, practices, programs and policies of the Company and its
affiliated companies in effect for Executive immediately prior to such Change in
Control or, if more favorable to Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and its
affiliated companies, (iv) provide an office or offices of a size and with
furnishings and other appointments, together with exclusive personal secretarial
and other assistance, at least equal to the most favorable of the foregoing
provided to Executive by the Company and its affiliated companies immediately
prior to such Change in Control or, if more favorable to Executive, as provided
generally at any time thereafter with respect to other peer executives of the
Company and its affiliated companies, (v) provide Executive with paid vacation
in accordance with the most favorable plans, policies, programs and practices of
the Company and its affiliated companies as in effect for Executive immediately
prior to such Change in Control or, if more favorable to Executive, as in effect
generally at any time thereafter with respect to other peer executives of the
Company and its affiliated companies, or (vi) reimburse Executive promptly for
all reasonable employment expenses incurred by Executive in accordance with the
most favorable policies, practices and procedures of the Company and its
affiliated companies in effect for Executive immediately prior to such Change in
Control, or if more
favorable to Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and its affiliated companies;
(e) the failure of the Company to obtain the assumption agreement from any
successor as contemplated in Section 5.2; or
(f) a material breach by the Company of any of the terms of this
Agreement.
For purposes of this Agreement, any good faith determination of Good
Reason made by Executive shall be conclusive; provided, however, that an
isolated, insubstantial and inadvertent action taken in good faith and which is
remedied by the Company promptly after receipt of notice thereof given by
Executive shall not constitute Good Reason.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by
its duly authorized officer and Executive has signed this Agreement as of the
day and year first above written.
FIRST COMMONWEALTH, INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx
President
EMPLOYEE
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxxxx X. Xxxxxxxx
Chairman and Chief Executive Officer
