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PROVIDENT BANKSHARES CORPORATION
CHANGE IN CONTROL AGREEMENT
This AGREEMENT ("Agreement") is entered into as of May 5, 2005 by and between
PROVIDENT BANKSHARES CORPORATION (the "Corporation"), a corporation organized
under the laws of the State of Maryland, with its offices at 000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx and [NAME] ("Executive").
WHEREAS, the Corporation recognizes the continued importance of
Executive to the Corporation's operations and wishes to protect Executive's
position with the Corporation and/or its affiliates in the event of a Change in
Control (as defined in Section 2(b) of this Agreement); and
WHEREAS, Executive and the Board of Directors of the Corporation desire
to enter into an agreement setting forth the terms and conditions of payments
due to Executive in the event of a change in control and the related rights and
obligations of each of the parties.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is hereby agreed as follows:
1. TERM OF AGREEMENT.
(a) The term of this Agreement shall be (i) the initial term,
consisting of the period commencing on the date of this Agreement (the
"Effective Date") and ending on the third anniversary of the Effective Date,
plus (ii) any and all extensions of the initial term made pursuant to Section
1(b) of this Agreement.
(b) Commencing on the Effective Date and on each day thereafter, the
term under this Agreement shall renew automatically for an additional one (1)
day period beyond the then effective expiration date, without action by any
party, provided that neither the Corporation, on the one hand, nor Executive, on
the other, shall have given at least sixty (60) days written notice of their
desire that the term not renew. In the case notice is given by one party to the
other, the term of this Agreement shall become fixed and shall end on the third
anniversary of the date of the notice.
(c) Notwithstanding anything in this Section to the contrary, this
Agreement shall terminate if Executive or the Corporation terminates Executive's
employment prior to a Change in Control.
2. CHANGE IN CONTROL.
(a) Upon the occurrence of a Change in Control (as defined in Section
2(b) of this Agreement), followed at any time during the term of this Agreement
by the termination of Executive's employment in accordance with the terms of
this Agreement, other than for Just Cause (as defined in Section 2(c) of this
Agreement), the provisions of Section 3 of this
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Agreement shall apply. Upon the occurrence of a Change in Control, Executive
shall have the right to elect to voluntarily terminate their employment at any
time during the term of this Agreement following an event constituting "Good
Reason." Following a Change in Control, Executive may also voluntarily terminate
their employment for any reason in accordance with Section 3(b) of this
Agreement. For purposes of this Agreement "Good Reason" and "Change in Control"
have the following meanings:
"Good Reason" means, unless Executive has consented in writing thereto,
the occurrence following a Change in Control, of any of the following:
(i) the assignment to Executive of any duties materially
inconsistent with Executive's position, including any
material change in status, title, authority, duties
or responsibilities or any other action that results
in a material diminution in such status, title,
authority, duties or responsibilities, excluding for
this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and that is
remedied by the Corporation or Executive's employer
reasonably promptly after receipt of notice thereof
given by Executive;
(ii) a reduction by the Corporation or Executive's
employer of Executive's base salary in effect
immediately prior to the Change in Control;
(iii) the relocation of Executive's office to a location
more than 20 miles from its location immediately
prior to the Change in Control;
(iv) the taking of any action by the Corporation or any of
its affiliates or successors that would materially
adversely affect Executive's overall compensation and
benefits package, unless such changes to the
compensation and benefits package are made on a
non-discriminatory basis to all employees; or
(v) the failure of the Corporation or Executive's
employer, or any affiliate that directly or
indirectly owns or controls any affiliate by which
Executive is employed, to obtain the assumption in
writing of the Corporation's obligation to perform
this Agreement by any successor to all or
substantially all of the assets of the Corporation or
such affiliate within thirty (30) days after a
reorganization, merger, consolidation, sale or other
disposition of assets of the Corporation or such
affiliate.
(b) For purposes of this Agreement, a "Change in Control" shall be
deemed to occur on the earliest of any of the following events:
(i) Merger: The Corporation merges into or consolidates with
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another corporation, or merges another corporation into the
Corporation, and as a result less than a majority of the
combined voting power of the resulting corporation immediately
after the merger or consolidation is held by persons who were
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stockholders of the Corporation immediately before the merger
or consolidation; or
(ii) Acquisition of Significant Share Ownership: The
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Corporation files, or is required to file, a report on
Schedule 13D or another form or schedule (other than Schedule
13G) required under Sections 13(d) or 14(d) of the Securities
Exchange Act of 1934, if the schedule discloses that the
filing person or persons acting in concert has or have become
the beneficial owner of 10% or more of a class of the
Corporation's voting securities, but this clause (ii) shall
not apply to beneficial ownership of the Corporation's voting
shares held in a fiduciary capacity by an entity of which the
Corporation directly or indirectly beneficially owns 50% or
more of its outstanding voting securities; or
(iii) Change in Board Composition: During any period of two
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consecutive years, individuals who constitute the
Corporation's Board of Directors at the beginning of the
two-year period cease for any reason to constitute at least a
majority of the Corporation's Board of Directors; provided,
however, that for purposes of this clause (iii), each director
who is first appointed by the board (or first nominated by the
board for election by the stockholders) by a vote of at least
three-quarters (3/4) of the directors who were directors at
the beginning of the two-year period shall be deemed to have
also been a director at the beginning of such period; or
(iv) Sale of Assets: The Corporation sells to a third party
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all or substantially all of its assets.
(c) Executive shall not have the right to receive termination benefits
under this Agreement upon their termination for Just Cause. The term "Just
Cause" shall mean termination because of a material loss to the Corporation or
one of its affiliates caused by Executive's willful, intentional and continued
failure to substantially perform stated duties (unless the failure results from
incapacity due to physical or mental illness), personal dishonesty, willful
violation of any law, rule, regulation (other than traffic violations or similar
offenses) or final cease and desist order. For purposes of this Section 2(b), no
act, or the failure to act, on Executive's part shall be considered "willful"
unless done, or omitted to be done, not in good faith and without reasonable
belief that the action or omission was in the best interest of the Corporation
or its affiliates. Notwithstanding the foregoing, Executive shall not be deemed
to have been terminated for Just Cause unless and until there shall have been
delivered to Executive a copy of a resolution duly adopted by the affirmative
vote of three-quarters (3/4) of the entire membership of the Board of Directors
at a meeting of the Board of Directors called and held for that purpose (after
reasonable notice to Executive and an opportunity for Executive, together with
counsel, to be heard before the Board of Directors), finding that in the good
faith opinion of the Board of Directors, Executive was guilty of conduct
justifying termination for Just Cause and specifying the particulars thereof in
detail. Executive shall not have the right to receive compensation or other
benefits for any period after termination for Just Cause.
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3. TERMINATION BENEFITS.
(a) Upon Executive's voluntary resignation from employment for Good
Reason or Executive's involuntary termination of employment for any reason other
than for Just Cause at any following a Change in Control but during the term of
this Agreement, the Corporation shall pay Executive a sum equal to THREE (3)/TWO
(2) times Executive's average annual taxable compensation (as reported in Box 1
of Form W-2) for the five (5) consecutive taxable years ending immediately prior
to the taxable year in which Executive's employment terminates; provided,
however, that for this purpose, Executive's average annual compensation shall
not include any taxable compensation realized by virtue of Executive's exercise
of stock options or the vesting of Restricted Stock awarded to Executive. The
Corporation shall make this severance payment to Executive in a single lump sum
(less any required federal, state or local tax withholdings) at the effective
date of Executive's resignation or termination of employment. In addition, the
Corporation (or its successors) shall provide continued life and medical
insurance coverage to Executive (substantially identical to the life and medical
insurance coverage provided to Executive (and his dependents) immediately prior
to his severance from employment) for THIRTY-SIX (36)/TWENTY-FOUR (24) full
calendar months following the effective date of Executive's resignation or
termination of employment. In lieu of this continued life and medical insurance
coverage, Executive may elect, no later than fifteen (15) days prior to
Executive's severance date, to receive a cash payment equal to thirty-six (36)
times the monthly premium amount paid by the Corporation for Executive (and his
dependents) for life and medical insurance coverage for the calendar month
immediately preceding the effective date of Executive's resignation or
termination of employment. If Executive makes this election, the Corporation
shall make this payment to Executive in a single lump sum (less any required
federal, state or local tax withholdings) at the effective date of Executive's
resignation or termination of employment.
(b) Upon Executive's voluntary resignation from employment for any
reason after one year following a Change in Control but during the term of this
Agreement, the Corporation shall pay Executive a sum equal to one-half (1/2)
Executive's annual base salary in effect as of the effective date of Executive's
resignation. The Corporation shall make this severance payment to Executive in a
single lump sum (less any required federal, state or local tax withholdings) at
the effective date of Executive's resignation. In addition, the Corporation (or
its successors) shall provide continued life and medical insurance coverage to
Executive (substantially identical to the life and medical insurance coverage
provided to Executive (and his dependents) immediately prior to Executive's
severance from employment) for six (6) full calendar months following the
effective date of Executive's resignation. In lieu of this continued life and
medical insurance coverage, Executive may elect, no later than fifteen (15) days
prior to Executive's severance date, to receive a cash payment equal to six (6)
times the monthly premium amount paid by the Corporation for Executive (and his
dependents) for life and medical insurance coverage for the calendar month
immediately preceding the effective date of Executive's resignation. If
Executive makes this election, the Corporation shall make this
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payment to Executive in a single lump sum (less any required federal, state or
local tax withholdings) at the effective date of Executive's resignation.
(c) Nothing in this Agreement shall deprive Executive of the right
to receive benefits due under or contributed by the Corporation or its
affiliates on Executive's behalf pursuant to any retirement, incentive, profit
sharing, bonus, performance, disability or other employee benefit plan
maintained by the Corporation or its affiliates, pursuant to the terms and
conditions of such plans or arrangements, on Executive's behalf.
(d) Notwithstanding the preceding provisions of this Section 3, in
the event that:
(i) the aggregate payments or benefits to be made or
afforded to Executive, which are deemed to be parachute
payments for purposes of Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code"), or any
successor thereof, (the "Termination Benefits"), would
be deemed to include an "excess parachute payment" for
purposes of Section 280G of the Code; and
(ii) if the Termination Benefits were reduced to an amount
(the "Non-Triggering Amount"), the value of which is one
dollar ($1.00) less than an amount equal to three (3)
times Executive's "base amount," as determined in
accordance with Section 280G of the Code, and the
Non-Triggering Amount would be greater than the
aggregate value of the Termination Benefits (excluding
such reduction) less the amount of tax required to be
paid by Executive under Section 4999 of the Code,
then the Termination Benefits shall be reduced to the Non-Triggering Amount.
Executive shall determine the allocation of the reduction among the Termination
Benefits.
4. NOTICE OF TERMINATION.
(a) Any termination of Executive's employment by the Corporation or by
Executive upon or following a Change in Control shall be communicated to the
other party by a Notice of Termination. For purposes of this Agreement, a
"Notice of Termination" shall mean a written notice that shall indicate the
specific termination provision in this Agreement relied upon and shall set forth
in detail the facts and circumstances claimed to provide a basis for termination
of Executive's employment under the provision so indicated.
(b) "Date of Termination" shall mean the date specified in the Notice
of Termination (which, in the case of a termination for Just Cause, shall not be
less than thirty (30) days from the date such Notice of Termination is given).
(c) If, within thirty (30) days after any Notice of Termination is
given, the party receiving the Notice of Termination notifies the other party
that a dispute exists concerning the termination, the Date of Termination shall
be the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected) and
provided further that the Date of
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Termination shall be extended by a notice of dispute only if such notice is
given in good faith and the party giving such notice pursues the resolution of
such dispute with reasonable diligence. Notwithstanding the pendency of any such
dispute, the Corporation shall continue to pay Executive's salary in effect when
the notice giving rise to the dispute was given and continue Executive as a
participant in all compensation, benefit and insurance plans in which Executive
was participating when the notice of dispute was given, until the dispute is
finally resolved in accordance with this Agreement. Amounts paid under this
Section 4(c) are in addition to all other amounts due under this Agreement and
shall not be offset against or reduce any other amounts due under this
Agreement.
5. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Corporation or its affiliates.
6. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior agreement between the Corporation or its
affiliates and Executive, except that this Agreement shall not affect or operate
to reduce any benefit or compensation inuring to Executive of any kind elsewhere
provided. No provision of this Agreement shall be interpreted to mean that
Executive is subject to receiving fewer benefits than those available to
Executive without reference to this Agreement. Nothing in this Agreement shall
confer upon Executive the right to continue in the employ of the Corporation or
its affiliates or shall impose on the Corporation or its affiliates any
obligation to employ or retain Executive in its employ for any period.
7. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation or to execution,
attachment, levy or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null, void
and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive, the Corporation, its affiliates and their respective successors and
assigns.
8. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver
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shall be deemed a continuing waiver unless specifically stated therein, and each
such waiver shall operate only as to the specific term or condition waived and
shall not constitute a waiver of such term or condition for the future or as to
any act other than that specifically waived.
9. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
10. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
11. GOVERNING LAW.
Except to the extent preempted by federal law, the validity,
interpretation, performance, and enforcement of this Agreement shall be governed
by the laws of the State of Maryland, without regard to principles of conflicts
of law of that State.
12. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by Executive within fifty
(50) miles from the location of the Corporation, in accordance with the rules of
the American Arbitration Association then in effect. Judgment may be entered on
the arbitrator's award in any court having jurisdiction; provided, however, that
Executive shall be entitled to seek specific performance of his right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
13. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Corporation, only if Executive is successful pursuant to a
legal judgment, arbitration or settlement.
14. INDEMNIFICATION.
The Corporation or its affiliates shall provide Executive (including
Executive's heirs, executors and administrators) with coverage under a standard
directors' and officers' liability insurance policy at its expense and shall
indemnify Executive (and Executive's heirs, executors
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and administrators) to the fullest extent permitted under applicable law against
all expenses and liabilities reasonably incurred by Executive in connection with
or arising out of any action, suit or proceeding in which Executive may be
involved by reason of Executive having been a director or officer of the
Corporation or its affiliates (whether or not Executive continues to be a
director or officer at the time of incurring such expenses or liabilities), such
expenses and liabilities to include, but not be limited to, judgments, court
costs, attorneys' fees and the cost of reasonable settlements.
15. SUCCESSORS TO THE CORPORATION.
The Corporation shall require any successor or assignee, whether direct
or indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all of the business or assets of the Corporation, expressly and
unconditionally to assume and agree to perform the obligations of the
Corporation and its affiliates under this Agreement, in the same manner and to
the same extent that the Corporation and its affiliates would be required to
perform if no such succession or assignment had taken place.
16. SIGNATURES
IN WITNESS WHEREOF, Provident Bankshares Corporation has caused this
Agreement to be executed by its duly authorized officer.
ATTEST: PROVIDENT BANKSHARES CORPORATION
By:
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Corporate Secretary For the Entire Board of Directors
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