Exhibit 10(a)
Form of Change in Control Agreement
Applicable to Xxxxxx X. Xxxxx and Xxxx X. Xxxxxxx
XXXXXXX BANCORP INC.
CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL (the "Agreement") is adopted this 11th day of
August, 2004, by and between PEOPLES BANCORP INC., a financial holding company,
located in Marietta, Ohio (the "Company"), and (named executive) (the
"Executive"), an Executive of the Company or any of its subsidiaries.
The Board of Directors of the Company (the "Board") has determined that
it is in the best interests of the Company to retain the Executive's services
and to reinforce and encourage the continued attention and dedication of the
Executive to his assigned duties, without distraction in potentially disturbing
circumstances arising from the possibility of a change in control of the Company
or the assertion of claims and actions against Executives.
The Company and the Executive agree as provided herein.
Article 1
Definitions
Whenever used in this Agreement, the following words and phrases shall have the
meanings specified:
1.1 "Base Annual Compensation" means the Executive's average annualized
compensation paid by the Company which was includible in the
Executive's gross income during the most recent five taxable years
ending before the date of the Change of Control. The definition covers
amounts includible in compensation, prior to any deferred arrangements,
and defined as the individual's "base amount" under Section 280G of the
Code.
1.2 "Cause" means
(a) Gross negligence or gross neglect of duties; or
(b) Commission of a felony or of a gross misdemeanor involving moral
turpitude in connection with the Executive's employment with the
Company; or
(c) Fraud, disloyalty, dishonesty or willful violation of any law or
significant Company policy committed in connection with the
Executive's employment; or
(d) Issuance of an order for removal of the Executive by the
Company's banks regulators.
1.3 "Change in Control" shall mean:
(a) Any person or entity or group of affiliated persons or entities
(other than the Company) becomes a beneficial owner, directly or
indirectly, of 25% or more of the Company's voting securities or
all or substantially all of the assets of the Company;
(b) The Company enters into a definitive agreement which contemplates
the merger, consolidation or combination of the Company with an
unaffiliated entity in which either or both of the following is
to occur: (i) the Board of Directors of the Company, as
applicable, immediately prior to such merger, consolidation or
combination will constitute less than a majority of the board of
directors of the surviving, new or combined entity; or (ii) less
than 75% of the outstanding voting securities of the surviving,
new or combined entity will be beneficially owned by the stock
holders of the Company immediately prior to such merger,
consolidation or combination; provided, however, that if any
definitive agreement to merge, consolidate or combine is
terminated without consummation of the transaction, then no
Change in Control shall be deemed to have occurred pursuant to
this paragraph;
(c) The Company enters into a definitive agreement which contemplates
the transfer of all or substantially all of the Company's assets,
other than to a wholly-owned Subsidiary of the Company; provided,
however, that if any definitive agreement to transfer assets is
terminated without consummation of the transfer, then no Change
in Control shall be deemed to have occurred pursuant to this
paragraph; or
(d) A majority of the members of the Board of Directors of the
Company shall be persons who: (i) were not members of such Board
on the date of this Agreement ("current members"); and (ii) were
not nominated by a vote of such Board which included the
affirmative vote of a majority of the current members on such
Board at the time of their nomination ("future designees") and
(iii) were not nominated by a vote of such Board which included
the affirmative vote of a majority of the current members and
future designees, taken as a group, on such Board at the time of
their nomination.
1.4 "Code" means the Internal Revenue Code of 1986, as amended.
1.5 "Disability" means the Executive's suffering a sickness, accident or
injury which has been determined by the insurance carrier of any
individual or group disability insurance policy covering the Executive,
or by the Social Security Administration, to be a disability rendering
the Executive totally and permanently disabled. The Executive must
submit proof to the Plan Administrator of the insurance carrier's or
Social Security Administration's determination upon the request of the
Plan Administrator.
1.6 "Good Reason" means, without the Executive's express written consent,
after written notice to the Board, and after a thirty (30) day
opportunity for the Board to cure, the continuing occurrence of any of
the following events:
(a) The assignment to the Executive of any material duties or
responsibilities inconsistent with the Executive's positions, or
a change in the Executive's reporting responsibilities, titles,
or offices, or any removal of the Executive from or any failure
to re-elect the Executive to any of such positions, except in
connection with the termination of the Executive's employment for
Cause, Disability, retirement, or as a result of the Executive's
death;
(b) A reduction by the Company in the Executive's base salary;
(c) The taking of any action by the Company which would adversely
affect the Executive's participation in or materially reduce the
Executive's benefits under any benefit plans, or the failure by
the Company to provide the Executive with the number of paid
vacation days to which the Executive is then entitled on the
basis of years of service with the Company in accordance with the
Company's normal vacation policy in effect on the date hereof;
(d) Any failure of the Company to obtain the assumption of, or the
agreement to perform, this Agreement by any successor as
contemplated in Section 3.9 hereof; or
(e) The Company directing the Executive to be reassigned to an office
location 50 miles or more form the current office location of the
Executive except for required travel on Company business to an
extent substantially consistent with the Executive's present
business travel obligations or, in the event the Executive
consents to any relocation, the failure by the Company to pay (or
reimburse the Executive) for all reasonable moving expenses
incurred by the Executive relating to a change of the Executive's
principal residence in connection with such relocation and to
indemnify the Executive against any loss realized on the sale of
the Executive's principal residence in connection with any such
change of residence.
1.7 "Termination Date" shall mean the date on which the Executive's
employment with the Company is terminated.
Article 2
Change in Control Benefits
2.1 Change in Control Benefit. If within the six (6) months prior or
twenty-four (24) months following a Change in Control of the Company,
the Company shall terminate the Executive's employment other than for
Cause, or if the Executive shall terminate his employment for Good
Reason, then in any such events, the Company shall pay to the Executive
a benefit under this Article.
2.1.1 Amount of Benefit. The benefit under this Section 2.1 is: two and a
half (2 1/2) times the Executive's Base Annual Compensation at the
date of the Change of Control.
2.1.2 Payment of Benefit. The Company shall pay the benefit to the
Executive in a lump sum within thirty (30) days following the
Termination Date.
2.1.3 Insurance Benefits. During the period of time specified in Section
3.2 of this Agreement, the Executive shall receive, in addition to
the benefit provided in Section 2.1.1 of this Agreement, life, medical
and dental insurance substantially in the form and expense to the
Executive as received by the Executive on the Termination Date.
It is understood and agreed that any rights and privileges of the
Executive provided by the Consolidated Omnibus Budget Reconciliation
Act of 1986, amending the Employee Retirement Income Security Act,
the Internal Revenue Code and the Public Health Services Act, as
amended, shall begin at the end of the period of time specified in
Section 3.2 of this Agreement.
2.2 Excess Parachute Payment. Notwithstanding anything to the contrary in
this Agreement, if there are payments to the Executive which constitute
"parachute payments," as defined in Section 280G of the Code, then the
payments made to the Executive shall be the greater of (x) one dollar
($1.00) less than the amount which would cause the payments to the
Executive (including payments to the Executive which are not included
in this Agreement) to be subject to the excise tax imposed by Section
4999 of the Code, and (y) any payments to the Executive contingent upon
the Company's Change in Control (including payments to the Executive
which are not included in the Agreement) less any excise tax.
Article 3
Miscellaneous
3.1 Confidential Information. The Executive recognizes and acknowledges
that he will have access to certain information of the Company and that
such information is confidential and constitutes valuable, special and
unique property of the Company. The Executive shall not at any time,
either during or subsequent to the term of this Agreement, disclose to
others, use, copy or permit to be copied, except as directed by law or
in pursuance of the Executive's duties for or on behalf of the Company,
its successors, assigns or nominees, any Confidential Information of
the Company (regardless of whether developed by the Executive), without
the prior written consent of the Company. The term "Confidential
Information" with respect to any person means any secret or
confidential information or know-how and shall include, but shall not
be limited to, the plans, customers, costs, prices, uses, and
applications of products and services, results of investigations,
studies owned or used by such person, and all products, processes,
compositions, computer programs, and servicing, marketing or
operational methods and techniques at any time used, developed,
investigated, made or sold by such person, before or during the term of
this Agreement, that are not readily available to the public or that
are maintained as confidential by such person. The Executive shall
maintain in confidence any Confidential Information of third parties
received as a result of the Executive's employment with the Company in
accordance with the Company's obligations to such third parties and the
policies established by the Company.
3.2 No Competition. If within the six (6) months prior or twenty-four (24)
months following a Change in Control of the Company, the Company shall
terminate the Executive's employment other than for Cause, or if the
Executive shall terminate his employment for Good Reason, then and for
a period of one (1) year and three (3) months immediately following the
Termination Date, the Executive shall not directly or indirectly engage
in the business of banking, or any other business in which the Company
directly or indirectly engages during the term of the Agreement;
provided, however, that this restriction shall apply only to the
geographic market of the Company as delineated on the Termination Date
in the Community Reinvestment Act Statement of Peoples Bank, National
Association. The Executive shall be deemed to engage in a business if
he directly or indirectly, engages or invests in, owns, manages,
operates, controls or participates in the ownership, management,
operation or control of, is employed by, associated or in any manner
connected with, or renders services or advice to, any business engaged
in banking, provided, however, that the Executive may invest in the
securities of any enterprise (but without otherwise participating in
the activities of such enterprise) if two conditions are met: (a) such
securities are listed on any national or regional securities (exchange
or have been registered under Section 12(g) of the Securities Exchange
Act of 1934) and (b) the Executive does not beneficially own (as
defined Rule 1 3d-3 promulgated under the Securities Exchange Act of
1934) in excess of 1% of the outstanding capital stock of such
enterprise.
3.3 Delivery of Documents Upon Termination. The Executive shall deliver to
the Company or its designee at the termination of the Executive's
employment all correspondence, memoranda, notes, records, drawings,
sketches, plans, customer lists, product compositions, and other
documents and all copies thereof, made, composed or received by the
Executive, solely or jointly with others, that are in the Executive's
possession, custody, or control at termination and that are related in
any manner to the past, present, or anticipated business or any member
of the Company.
3.4 Remedies. The Executive acknowledges that a remedy at law for any
breach or attempted breach of the Executive's obligations under
Sections 3.1, 3.2 and 3.3 may be inadequate, agrees that the Company
may be entitled to specific performance and injunctive and other
equitable remedies in case of any such breach or attempted breach and
further agrees to waive any requirement for the securing or posting of
any bond in connection with the obtaining of any such injunctive or
other equitable relief. The Company shall have the right to offset
against amounts to be paid to the Executive pursuant to the terms
hereof any amounts from time to time owing by the Executive to the
Company. The termination of the Agreement shall not be deemed to be a
waiver by the Company of any breach by the Executive of this Agreement
or any other obligation owed the Company, and notwithstanding such a
termination the Executive shall be liable for all damages attributable
to such a breach.
3.5 Dispute Resolution. Subject to the Company's right to seek injunctive
relief in court as provided in Section 3.4 of this Agreement, any
dispute, controversy or claim arising out of or in relation to or
connection to this Agreement, including without limitation any dispute
as to the construction, validity, interpretation, enforceability or
breach of this Agreement, shall be settled by arbitration administered
by the American Arbitration Association under its National Rules for
the Resolution of Employment Disputes and judgment upon the award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
3.6 Acknowledgement of Parties. The Company and Executive understand and
acknowledge that this Agreement means that neither can pursue an action
against the other in a court of law regarding any employment dispute,
except for claims involving workers' compensation benefits or
unemployment benefits, and except as set forth elsewhere in this
Agreement, in the event that either party notifies the other of its
demand for arbitration under this Agreement. The Company and Executive
understand and agree that this Section 3.5, concerning arbitration,
shall not include any controversies or claims related to any agreements
or provisions (including provisions in this Agreement) respecting
confidentiality, proprietary information, non-competition,
non-solicitation, trade secrets, or breaches of fiduciary obligations
by the Executive, which shall not be subject to arbitration.
3.7 Right to Consult Counsel. Executive has been advised of the
Executive's right to consult with an attorney prior to entering
into this Agreement.
3.8 Successors of the Company. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of
the Company, by agreement in form and substance satisfactory to the
Executive, expressly to assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure
of the Company to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall
entitle the Executive to compensation from the Company in the same
amount and on the same terms as the Executive would be entitled
hereunder if the Executive terminated the Executive's employment for
Good Reason, except that for purposes of implementing the foregoing,
the date on which any such succession becomes effective shall be deemed
the Date of Termination. As used in this Agreement, "Company" as
hereinbefore defined shall include any successor to its business and/or
assets as aforesaid which executes and delivers the agreement provided
for in this Section 3 or which otherwise becomes bound by all the terms
and provisions of this Agreement by operation of law.
3.9 Executive's Heirs, etc. The Executive may not assign the Executive's
rights or delegate the Executive's duties or obligations hereunder
without the written consent of the Company. This Agreement shall inure
to the benefit of and be enforceable by the Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while
any amounts would still be payable to the Executive hereunder as if he
had continued to live, all such amounts, unless other provided herein,
shall be paid in accordance with the terms of this Agreement to the
Executive's designee or, if there be no such designee, to the
Executive's estate.
3.10 Notices. Any notice or communication required or permitted under the
terms of this Agreement shall be in writing and shall be delivered
personally, or sent by registered or certified mail, return receipt
requested, postage prepaid, or sent by nationally recognized overnight
carrier, postage prepaid, or sent by facsimile transmission to the
Company at the Company's principal office and facsimile number in
Marietta, Ohio, or to the Executive at the address and facsimile
number, if any, appearing on the books and records of the Company. Such
notice or communication shall be deemed given (a) when delivered if
personally delivered; (b) five mailing days after having been placed in
the mail, if delivered by registered or certified mail; (c) the
business day after having been placed with a nationally recognized
overnight carrier, if delivered by nationally recognized overnight
carrier, and (d) the business day after transmittal when transmitted
with electronic confirmation of receipt, if transmitted by facsimile.
Any party may change the address or facsimile number to which notices
or communications are to be sent to it by giving notice of such change
in the manner herein provided for giving notice. Until changed by
notice, the following shall be the address and facsimile number to
which notices shall be sent:
If to the Company, to: Xxxxxxx X. Xxxxxxxx, General Counsel
PEOPLES BANCORP, INC.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Fax: (000) 000-0000
If to the Executive, to: (named executive)
3.11 Amendment or Waiver. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and such officer as may be
specifically designated by the Board (which shall not include the
Executive). 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. No agreements or
representations, oral or otherwise, express or implied, with respect to
the subject matter hereof have been made by either party, which are not
set forth expressly in this Agreement. This Agreement constitutes the
entire agreement between the Company and the Executive as to the
subject matter hereof. No rights are granted to the Executive by virtue
of this Agreement other than those specifically set forth herein.
3.12 Invalid Provisions. Should any portion of this Agreement be adjudged or
held to be invalid, unenforceable or void, such holding shall not have
the effect of invalidating or voiding the remainder of this Agreement
and the parties hereby agree that the portion so held invalid,
unenforceable or void shall if possible, be deemed amended or reduced
in scope, or otherwise be stricken from this Agreement to the extent
required for the purposes of validity and enforcement thereof. In this
regard, the parties hereto hereby agree that any judicial authority
construing this Agreement shall be empowered to sever any portion of
the geographic area or any prohibited business activity from the
coverage of this Agreement, and to reduce the duration of the
non-compete period and to apply the provisions of this Agreement to the
remaining portion of the geographic area or the remaining business
activities not to be severed by such judicial authority and to the
duration of the non-compete period as reduced by judicial determination
3.13 Survival of the Executive's Obligations. The Executive's obligations
under this Agreement shall survive regardless of whether the
Executive's employment by the Company is terminated, voluntarily or
involuntarily, by the Company or the Executive, with or without Cause.
3.14 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all
of which together will constitute one and the same instrument.
3.15 Governing Law. This Agreement and any action or proceeding related
to it shall be governed by and construed.
3.16 Captions and Gender. The use of Captions and Section headings herein is
for purposes of convenience only and shall not effect the
interpretation or substance of any provisions contained herein.
Similarly, the use of the masculine gender with respect to pronouns in
this Agreement is for purposes of convenience and includes either sex
who may be a signatory.
IN WITNESS WHEREOF, the Executive and a duly authorized representative of
the Company have signed this Agreement.
EXECUTIVE: COMPANY:
PEOPLES BANCORP INC.
/s/ (named executive) By /s/ Xxxxx X. Xxxxxxxxxxxx
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(named executive) Title Executive Vice President, Operations
