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Exhibit 10.8
AGREEMENT
THIS AGREEMENT (the "Agreement") made the 1 day of April, 2000, by and
between THREE RIVERS BANCORP, INC. (the "Company"), a Pennsylvania corporation,
having its principal place of business at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxx 00000, and XXXXXXX X. X. XXXXX ("Executive")
Background
The Board of Directors of the Company (the "Board") has determined that it
is in the best interest of the Company and its shareholders to ensure that the
Company will have the continued dedication of the Executive, notwithstanding the
possibility, threat or occurrence of a Change in Control (as defined below) of
the Company. The Board believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal uncertainties and risks
created by a pending or threatened Change in Control and to encourage the
Executive's full attention and dedication to the Company currently and in the
event of any threatened or pending Change in Control, and to provide the
Executive with compensation and benefits arrangements upon a Change in Control
which ensure that the compensation and benefits expectations of the Executive
will be satisfied and which are competitive with those of other corporations.
Agreement
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Term. This Agreement shall be for a three (3) year period commencing on
the date first set forth above and shall be automatically renewed on the first
and on each subsequent annual anniversary of the above day and month ("Annual
Renewal Date") for a period ending three (3) years from each Annual Renewal Date
unless either party shall give written notice of non-renewal at least sixty (60)
days prior to the Annual Renewal Date.
2. Change in Control. As used in this Agreement, Change in Control shall
mean the occurrence of any of the following:
(a) any "person" or "group" (as those terms are defined or used in
Section 13(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), as
enacted and in force on the date hereof) is or becomes the "beneficial owner"
(as that term
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is defined in Rule 13d-3 under the Exchange Act, as enacted and in force on the
date hereof) of securities of the Company representing 24.99% or more of the
combined voting power of the Company's securities then outstanding;
(b) there occurs a merger, consolidation, share exchange, division
or other reorganization involving the Company and another entity in which
Company shareholders do not continue to hold a majority of the capital stock of
the resulting entity, or a sale, exchange, transfer, or other disposition of
substantially all of the assets of the Company to another entity or other
person; or
(c) there occurs a contested proxy solicitation or solicitations of
the Company's shareholders which results in the contesting party or parties
obtaining the ability to elect a majority of the members of the Board of
Directors standing for election at one or more meetings of the Company's
shareholders.
3. Triggering Events. If a Change in Control shall occur and if
thereafter, at any time during the term of this Agreement there shall be:
(a) any involuntary termination of the Executive by the Company,
other than for Cause as defined in Section 4 below;
(b) any reduction in the Executive's title, responsibilities,
including reporting responsibilities, or authority, including such title,
responsibilities, or authority as such may be increased from time to time during
the term of this Agreement;
(c) the assignment to the Executive of duties inconsistent with the
Executive's office as such duties existed on the day immediately prior to the
date of a Change in Control;
(d) any reassignment of the Executive to a location greater than
twenty-five (25) miles from Monroeville, Pennsylvania;
(e) any reduction in the Executive's annual base salary in effect on
the day immediately prior to the date of a Change in Control;
(f) any failure to continue the Executive's participation, on
substantially similar terms, in any incentive compensation or bonus plans of the
Company in which the Executive participated in immediately prior to the Change
in Control, or any change or amendment to any of the substantive
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provisions of any of such plans which would materially decrease the potential
benefits to the Executive under any of such plans;
(g) any failure to provide the Executive with benefits at least as
favorable as those enjoyed by the Executive under any pension, life insurance,
medical, health and accident, disability or other employee plans of the Company
in which the Executive participated in immediately prior to the time of the
Change in Control, or the taking of any action that would materially reduce any
of such benefits in effect at the time of the Change in Control, unless such
reduction relates to a reduction in benefits applicable to all employees
generally; or
(h) any breach of any provision of this Agreement by the Company,
which breach shall not have been cured by the Company within thirty (30) days of
the Company's receipt from the Executive or his agent of written notice
specifying in reasonable detail the nature of the Company's breach;
then Executive, at his sole discretion, may upon no less than ninety (90) days
written notice to the Company, resign from employment with the Company (or, if
involuntarily terminated, give notice of intention to collect benefits under
this Agreement) by delivering written notice to the Company at any time during
the term of this Agreement.
4. Termination of Executive for Cause. Upon or following a Change in
Control, the Company shall have the right at any time to terminate the
Executive's employment for Cause. In such event, the Company shall give prompt
notice to the Executive, specifying in reasonable detail the basis for such
termination. For purposes of this Agreement, "Cause" shall mean the following
conduct of the Executive:
(a) Material breach of any provision of this Agreement, which breach
Executive shall have failed to cure within thirty (30) days after Employee's
receipt of written notice from the Company specifying the specific nature of the
Executive's breach;
(b) Willful misconduct of Executive that is materially inimical to
the best interests, monetary or otherwise, of the Company;
(c) Conviction of a felony or of any crime involving moral
turpitude, fraud or deceit; or
(d) Adjudication as a bankrupt under the United States Bankruptcy
Code.
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5. Compensation and Benefits. Upon the occurrence of an event set forth in
Section 3 hereof and the delivery of a notice of termination to the Company
pursuant to Section 3 hereof, the Executive shall be absolutely entitled to
receive the compensation and benefits set forth below:
(a) the Executive shall select, in his absolute discretion, and
receive either (i) monthly installments equal to one twelfth (1/12) of an amount
equal to 1.0 times the following: (x) During the initial three-year term of this
Agreement (the "Initial Term") commencing on the date hereof, the highest
combined base salary and bonus paid or payable to the Executive in the then
current year or in any one of the last five fiscal years preceding the
Executive's delivery of a notice of termination; or (y) after the expiration of
the Initial Term, the quotient obtained by dividing the sum of the Executive's
combined salary and bonuses in the five years preceding the Executive's delivery
of a notice of termination by five, such monthly installments shall be payable
for a period of 12 months (the "Payment Period") commencing on the first day of
the first calendar month after Executive's delivery of notice of termination, or
(ii) a one time lump sum payment equal to the non-discounted sum of the payments
provided for in Section 5(a)(i) immediately above;
(b) from the date of the notice of termination through and including
the last day of the Payment Period, the Executive shall be entitled to continue
to participate in the employee retirement plan(s) of the Company and any
supplemental executive retirement plan(s) (including deferred profit sharing
plan) or other plan in effect during the term of this Agreement designed to
supplement payments made under such employee retirement plan, as the case may
be, as if the Executive's employment had not terminated;
(c) from the date of the notice of termination through and including
the last day of the Payment Period, the Executive shall be provided with life,
disability, and medical insurance benefits at levels equivalent to the highest
levels in effect for the Executive during any one of the three (3) calendar
years preceding the year in which the notice of termination is delivered; and
(d) on the date of the notice of termination, all options held by
the Executive to acquire common stock of the Company, to the extent not
immediately exercisable by their terms, shall become immediately exercisable,
and such options shall be exercisable by the Executive at any time prior to the
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earlier of the expiration date(s) of such stock options or the date which is
ninety (90) days after the Executive's termination of employment with the
Company.
(e) as soon as possible upon a Change in Control, but in no event
later than 30 days following a Change in Control, the Company shall, in
accordance with Section 1.05(b) of the Rabbi Trust Agreement dated __________
___, 2000 between the Company and [USBANCORP TRUST COMPANY], make an irrevocable
contribution to the Trust established pursuant to such Trust Agreement in an
amount that is sufficient to guarantee payment to the Participant or his
beneficiaries the benefits to which they would be entitled to pursuant to the
terms of any supplemental executive retirement plan(s) of the Company as in
effect on the date on which the Change in Control occurred.
In the event the Executive is ineligible to continue participation
in the employee retirement plan of the Company and/or any supplemental executive
retirement plan (including deferred profit sharing plan) or other plan in effect
during the term of this Agreement designed to supplement payments made under
such employee retirement plan or in any of the Company's life, disability or
medical insurance plans or programs, the Company shall, in lieu of such
participation, pay the Executive a dollar amount equal to the dollar amount of
the benefit forfeited by the Executive as a result of such ineligibility or a
dollar amount equal to the cost to the Executive to obtain such benefits in the
case of any life, disability or medical insurance plans or programs.
6. Certain Additional Payments by the Company. Notwithstanding anything in
this Agreement to the contrary, in the event it is determined that any payment
or distribution by the Company to or for the benefit of the Executive, whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise (a "Payment"), is subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), on
excess parachute payments, as that term is used and defined in Sections 4999 and
280G of the Code, then the Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount equal to the then current rate of
tax under said Section 4999 multiplied by the total of the amount so paid or
payable, including this Gross-Up Payment, which are deemed to be a part of an
excess parachute payment. All calculations under this provision shall be made by
the Company whose determinations shall be final.
7. Beneficiary. Should the Executive die after entitlement but prior to
payment in full of amounts due pursuant
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to Section 5(a)(i) hereof, such monthly payments shall continue (if such payment
option was so elected by Executive) to the Executive's designated beneficiary or
his estate until such entitlement has been paid in full.
8. Employment at Will. This Agreement contains the entire understanding of
the Company and the Executive with respect to the subject matter hereof and,
subject to the provisions of any other agreement between the Executive and the
Company, the Executive shall remain an employee at will and nothing herein shall
confer upon the Executive any right to continued employment and shall not affect
the right of the Company to terminate the Executive for any reason not
prohibited by law; provided, however, that any such removal shall be without
prejudice to any rights the Executive may have to compensation and benefits as
provided for in Section 5 hereof.
9. Arbitration. Except as otherwise provided herein, in the event of any
controversy, dispute or claim arising out of, or relating to this Agreement, or
the breach thereof, the parties may seek recourse only for temporary or
preliminary injunctive relief to the courts having jurisdiction thereof. If any
relief other than injunctive relief is sought, the Company and the Executive
agree that such underlying controversy, dispute or claim shall be settled by
arbitration conducted in Pittsburgh, Pennsylvania in accordance with this
Section 9 and the Commercial Arbitration Rules of the American Arbitration
Association ("AAA"). The matter shall be heard and decided, and awards rendered,
by a panel of three (3) arbitrators (the "Arbitration Panel"). The Company and
Executive shall each select one arbitrator from the AAA National Panel of
Commercial Arbitrators (the "Commercial Panel") and AAA shall select a third
arbitrator from the Commercial Panel. The award rendered by the Arbitration
Panel shall be final and binding as between the parties hereto and their heirs,
executors, administrators, successors and assigns, and judgment on the award may
be entered by any court having jurisdiction thereof. Each party shall pay their
professional fees, expenses and costs incurred in connection with the resolution
of any controversy, dispute or claim arising out of, or relating to this
Agreement.
10. Assignment. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the Company, and the Company shall
require any successor to expressly acknowledge and assume its obligations
hereunder. This Agreement shall inure to the extent provided hereunder to the
benefit of and be enforceable by the Executive or his/her legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. The Executive may
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not delegate any of his/her duties, responsibilities, obligations or positions
hereunder to any person and any such purported delegation by him/her shall be
void and of no force and effect.
11. Prior Termination. Anything in this Agreement to the contrary
notwithstanding, if the Executive's employment with the Company is terminated
prior to the date on which a Change in Control occurs either (a) by the Company
other than for Cause or (b) by the Executive for any one of the reasons set
forth in Section 3 hereof, and it is reasonably demonstrated that such
termination of employment (i) was at the request of a third party who has taken
steps reasonably calculated to effect the Change in Control or (ii) otherwise
arose in connection with or anticipation of the Change in Control, then for all
purposes of this Agreement the termination shall deemed to have occurred upon a
Change in Control and the Executive will be entitled to the compensation and
benefits provided for in Section 5 hereof.
12. Release. The Executive hereby acknowledges and agrees that prior to
the occurrence of the Executive's or his dependent's right to receive from the
Company or any of its representatives or agents any compensation or benefit to
be paid or provided to him or his dependents pursuant to Section 5 of this
Agreement, the Executive may be required by the Company, in its sole discretion,
to execute a release in a form reasonably acceptable to the Company, which
releases any and all claims the Executive has or may have against the Company or
its subsidiaries, agents, officers, directors, successors or assigns.
13. Compliance with Laws. The parties hereto acknowledge and agree that
this Agreement and each party's enforcement of their rights hereunder are
subject to the Comprehensive Thrift and Bank Fraud Prosecutions Act of 1990 (12
USC 1828) as enacted and in force on the date hereof.
14. Notice. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and if personally delivered or when
sent by first class certified or registered mail, postage prepaid, return
receipt requested -- in the case of the Executive, to his residence address as
set forth below, and in the case of the Company, to the address of its principal
place of business, in care of the Board -- or to such other person or at such
other address with respect to each party as such party shall notify the other in
writing.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
THREE RIVERS BANCORP, INC.
/s/ Xxxxx X. Xxxxxx
By:______________________________
Xxxxx X. Xxxxxx
Chairman and
Chief Executive Officer
/s/ Xxxxx Xxxxxx
Attest:__________________________
Xxxxx Xxxxxx
Secretary
/s/ Xxxxxxx X. X. Xxxxx
_________________________________
Xxxxxxx X. X. Xxxxx
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