1. | The Board of Directors of the Company (the "Board") recognizes that it is possible that the Company could terminate Executive's employment with the Company and from time to time the Company may consider the possibility of an acquisition by another company or other change in control transaction. The Board also recognizes that such considerations can be a distraction to Executive and can cause Executive to consider alternative employment opportunities. The Board has determined that it is in the best interests of the Company and its stockholders to assure that the Company will have the continued dedication and objectivity of Executive, notwithstanding the possibility, threat or occurrence of such a termination of employment or the occurrence of a Change in Control (as defined herein) of the Company. |
2. | The Board believes that it is in the best interests of the Company and its stockholders to provide Executive with an incentive to continue his or her employment with the Company and to motivate Executive to maximize the value of the Company for the benefit of its stockholders. |
3. | The Board believes that it is imperative to provide Executive with certain severance benefits upon Executive's termination of employment and with certain additional benefits following a Change in Control. These benefits will provide Executive with enhanced financial security and incentive and encouragement to remain with the Company notwithstanding the possibility of a Change in Control. |
4. | The Company maintains a Key Management Severance Plan (“Severance Plan”), which provides for certain payments and/or benefits upon Executive's termination of employment in connection with a change in control (as defined in the Severance Plan). |
5. | The Company and Executive wish to terminate any and all rights and obligations the Company and/or Executive had under the Severance Plan in exchange for this Agreement. |
6. | Certain capitalized terms used in the Agreement are defined in Section 7 below. |
1. | Term of Agreement. This Agreement will continue until April 30, 2016 (the “Initial Term”, unless sooner terminated pursuant to Section 4 of this Agreement. The term of this Agreement shall renew automatically for successive one-year periods after the Initial Term (the “Renewal Terms”) unless and until terminated by either the Company or Executive at the end of the Initial Term or Renewal Term, as applicable, upon not less than ninety (90) days’ prior written notice given by either Party prior to the end of the Initial Term or the Renewal Term, as applicable (it being understood that non-renewal of this Agreement shall not result in a termination of employment unless the Party providing such notice of non-renewal also specifies in such notice that Executive’s employment shall terminate at the expiration of the then-current term). The Initial Term and all Renewal Terms, if any, shall constitute the “Term,” unless sooner terminated pursuant to Section 4 of this Agreement. Notwithstanding the foregoing, in the event of the consummation of a “Change in Control” of the Company (as defined below), the Term shall be the one-year period following the consummation of such Change in Control; provided that the Agreement shall not automatically renew at the end of such Term following a Change in Control. |
2. | Termination of Participation in the Company’s Key Management Severance Plan. The Parties agree that in executing this Agreement, Executive’s participation, if any, in the Company’s Key Management Severance Plan is terminated as of the Effective Date and any and all rights and obligations of the Company and/or Executive under the Key Management Severance Plan be and hereby are terminated and are of no further force and effect. |
3. | At-Will Employment. The Company and Executive acknowledge that Executive's employment is and will continue to be at-will, as defined under applicable law. If Executive's employment terminates for any reason, including (without limitation) any termination of employment not set forth in Section 4, Executive will not be entitled to any payments, benefits, damages, awards or compensation other than the payment of accrued but unpaid wages, as required by law, and any unreimbursed reimbursable expenses or pursuant to written agreements with the Company, including equity award agreements. |
4. | Severance Benefits. |
a) | Termination Without Cause and not in Connection with a Change in Control. If the Company terminates Executive's employment with the Company for a reason other than Cause, Executive becoming Disabled or Executive's death at any time (other than in connection with a Change in Control under Section 4(b) of the Agreement), then, subject to Section 5, Executive will receive the following severance benefits from the Company: |
i. | Accrued Compensation. The Company will pay Executive all accrued but unpaid expense reimbursements, wages, and other benefits due to Executive under any Company-provided plans, policies, and arrangements. |
ii. | Severance Payments. Executive will receive severance in an amount equal to twenty- four (24) months of Executive's base salary as in effect immediately prior to the date of Executive's termination of employment, less all required tax withholdings and other applicable deductions, |
iii. | Termination Short-Term Bonus Payment. Executive shall be entitled to an annual bonus for the year of termination determined in accordance with the following: |
A. | In the event Executive is a Covered Employee for the year of his or her termination of employment or, as determined in the sole discretion of the Company, would have been a Covered Employee for such year if he or she had continued employment until the end of the year, then to the extent necessary to ensure the deductibility of compensation otherwise payable to Executive under the Company’s annual short term incentive plan, Executive shall receive a lump sum severance payment equal to the lesser of (x) two and one-half (2.5) times the Executive’s target annual short-term incentive plan bonus or (y) two (2) times the average of the three most recent actual annual bonus awards paid (or payable) to Executive by the Company (or, the average actual annual bonus payouts for such lesser number of completed performance years for which Executive was eligible to receive an annual bonus). |
B. | For any year in which the preceding paragraph A. does not apply, in lieu of the amount otherwise payable to Executive under paragraph A, Executive shall receive a payment equal to two (2) times Executive's target annual short-term incentive plan bonus as in effect for the fiscal year in which Executive's termination occurs (or the target annual short-term incentive plan bonus that is in effect for the previous year if the target bonus for the current year is not ratified/approved by the compensation committee of the Board of Directors as of Executive’s termination of employment). |
C. | Such amount shall be paid following Executive’s termination of employment, but in no event later than March 15th of the year following the year of Executive’s termination of employment. |
iv. | Continued Employee Benefits. If the Company’s severance plan of general applicability as in effect on Executive’s date of termination provides for continued payment by the Company of all or a portion of the cost of the premiums for continuation coverage under the Company’s health care plan pursuant to Section 4980B of the Code (“COBRA Coverage”) and if Executive timely and properly elects such coverage, then the Company shall pay on Executive’s behalf the difference between the monthly COBRA Coverage premium that would otherwise be paid by Executive for himself or herself and his or her dependents and the monthly premium amount paid by similarly situated active executives for the same coverage. Such payments shall be paid directly to the COBRA Coverage administrator (if any) and shall be treated as a taxable benefit to Executive. Executive shall be eligible to receive such reimbursements until the earliest of: (i) the twelve-month anniversary of Executive’s termination of employment; (ii) the date Executive is no longer eligible to receive COBRA Coverage; and (iii) the date on which Executive otherwise becomes eligible to receive substantially similar coverage from another employer. The Company reserves the right to modify or terminate the COBRA Coverage benefit provided hereunder to the extent necessary to comply with applicable law. |
v. | During the one‑year period following the date of termination, Executive shall be entitled to full executive outplacement assistance with an agency selected by the Company with the fee paid by the Company in an amount not to exceed five percent (5%) of Executive’s base salary (“Outplacement Assistance”). |
vi. | Any other benefits (other than benefits under any severance or termination pay plan of the Company or any Affiliated Company) that are otherwise required to be provided to Executive or to which Executive is otherwise eligible to receive through the date of termination under the terms of the applicable Company plan shall be provided to Executive consistent with the terms of the applicable Company plan (the “Other Benefits”). |
b) | Termination Without Cause or Resignation for Good Reason in Connection with a Change in Control. If, immediately prior to a Change in Control (as determined in the sole discretion of the Company) or during the one year period that commences upon a Change in Control, (x) the Company terminates Executive's employment with the Company for a reason other than Cause, Executive becoming Disabled or Executive's death, or (y) Executive resigns from such employment for Good Reason, then, subject to Section 5, Executive will receive the following severance benefits from the Company in lieu of the benefits described in Section 4(a) above: |
i. | Accrued Compensation. The Company will pay Executive all accrued but unpaid expense reimbursements, wages, and other benefits due to Executive under any Company-provided plans, policies, and arrangements. |
ii. | Severance Payments. Executive will receive severance in an amount equal to twenty-four (24) months of Executive's base salary as in effect immediately prior to the date of Executive's termination of employment, less all required tax withholdings and other applicable deductions, payable in equal installments over twenty four months in accordance with Section 4(e). Notwithstanding the foregoing, the Company or its successor in its sole and absolute discretion may accelerate any installment payment or portion thereof to be paid on any date prior to the date the installment payment would otherwise be paid, subject to the limitations of Section 5(h). |
iii. | Short-Term Bonus Payment. Executive will receive a lump sum severance payment equal to two (2) times Executive's full target annual short-term incentive plan bonus as in effect for the fiscal year in which Executive's termination occurs (or, if greater, as in effect for the fiscal year in which the Change in Control occurs), less all required tax withholdings and other applicable deductions. Such amount shall be paid following Executive’s termination of employment, but in no event later than March 15th of the year following the year of Executive’s termination of employment. |
iv. | Continued Employee Benefits. Cobra Coverage as set forth in Section 4(a)(iv) of this Agreement. |
v. | Outplacement Assistance as set forth in Section 4(a)(v) of this Agreement. |
vi. | Other Benefits (other than benefits under any severance or termination pay plan of the Company or any Affiliated Company) as set forth in Section 4(a)(vi) of this Agreement. |
c) | Disability; Death. If Executive's employment with the Company is terminated due to Executive becoming Disabled or Executive's death, then Executive or Executive's estate (as the case may be) will (i) receive his or her earned but unpaid base salary through the date of termination of employment, (ii) receive all accrued expense reimbursements and any other benefits due to Executive through the date of termination of employment in accordance with Company-provided or paid plans, policies and arrangements, and (iii) not be entitled to any other compensation or benefits from the Company except to the extent required by law (for example, COBRA). |
d) | Voluntary Resignation. Termination for Cause. If Executive voluntarily terminates Executive's employment with the Company (other than for Good Reason in connection with a Change in Control under Section 4(b) of the Agreement) or if the Company terminates Executive's employment with the Company for Cause, then Executive will (i) receive his or her earned but unpaid base salary through the date of termination of employment, (ii) receive all accrued expense reimbursements and any other benefits due to Executive through the date of termination of employment in accordance with established Company-provided or paid plans, policies and arrangements, and (iii) not be entitled to any other compensation or benefits from the Company except to the extent required by law (for example, COBRA). |
e) | Timing of Payments. Subject to any specific timing provisions in Section 4(a), 4(b), 4(c), 5(a) or 5(h) as applicable, payment of severance under this Section 4 shall be made or commence to be made as soon as practicable following Executive's termination of employment in equal installments (no less frequently than monthly) in accordance with the Company’s general policies and procedures for the payment of salaries to its executive officers. |
f) | Exclusive Remedy. In the event of a termination of Executive's employment with the Company, the provisions of this Section 4 are intended to be and are exclusive and in lieu of any other rights or remedies to which Executive or the Company may otherwise be entitled, whether at law, tort or contract, in equity, or under this Agreement (other than the payment of accrued but unpaid wages, as required by law, and any unreimbursed reimbursable expenses). Executive will be entitled to no other severance, benefits, compensation or other payments or rights upon a termination of employment, including, without limitation, any severance payments and/or benefits provided under the Severance Plan, other than those benefits expressly set forth in this Section 4 or pursuant to written equity award agreements with the Company. |
5. | Conditions to Receipt of Severance. |
a) | Release of Claims Agreement. The receipt of any severance payments or benefits pursuant to this Agreement is subject to Executive signing and not revoking a separation agreement and release of claims in a form acceptable to the Company substantially in the form attached hereto as Exhibit A (the “Release”), which must become effective no later than the sixtieth (60th) day following Executive's termination of employment (the “Release Deadline”), and if not, Executive will forfeit any right to severance payments or benefits under this Agreement. To become effective, the Release must be executed by Executive and any revocation periods (as required by statute, |
b) | Confidentiality, Non-Solicitation, Non-Competition and Non-Disparagement. Executive agrees, to the extent permitted by applicable law, and as a condition to receipt of severance pay and benefits under Sections 4(a) and 4(b), Executive shall not: |
i. | violate the restrictive covenants set forth in Sections 5(c), 5(d), 5(e), 5(f) or 5(g) of this Agreement; or |
ii. | engage in any conduct that is materially injurious to the reputation and interest of the Company or any Affiliated Company, including but not limited to, disparaging, inducing or encouraging others to disparage the Company or any Affiliated Company. |
c) | Confidential Information. Executive shall not, directly or indirectly, at any time (whether during Executive’s employment or thereafter), disclose any Confidential Information (as defined below) to any person, association or other entity (other than the Affiliated Companies, as defined below), or use, or authorize or assist any person, association or other entity (other than the Affiliated Companies) to use, any Confidential Information, excepting only disclosures required by applicable law; provided that if Executive believes that disclosure of Confidential Information is |
d) | Non-competition. During the term of Executive’s employment and during the first six-months of the Restricted Period (as defined below), other than following a termination by the Company for Cause (as defined below) in which case this § 5(d) shall be inapplicable, Executive shall not directly or indirectly, whether individually or as a shareholder or other owner, partner, member, director, officer, employee, independent contractor, creditor or agent of any person (other than for the Company), enter into, engage in, or promote or assist (financially or otherwise), directly or indirectly, any business which provides any commercial banking, savings banking, mortgage lending, or any similar lending or banking services (the “Restricted Services”) anywhere in the geographic area consisting of the states of the United States in which any of the Affiliated Companies operate banking offices at any time during the term of Executive’s employment (the “Restricted Territory”). Notwithstanding the foregoing, ownership, for personal investment purposes only, of 1% or less of the outstanding capital stock of a publicly traded corporation shall not constitute a violation hereof. |
e) | Non-solicitation of Clients. During the term of Executive’s employment and during the Restricted Period, Executive shall not, directly or indirectly, whether individually or as a shareholder or other owner, partner, member, director, officer, employee, independent contractor, creditor or agent of any person (other than for the Company): |
i. | Solicit (as defined below) any person or entity located in the Restricted Territory for the provision of any Restricted Services; |
ii. | Solicit or attempt in any manner to persuade any client or customer of any Affiliated Company to cease to do business, to refrain from doing business or to reduce the amount of business which any client or customer has customarily done or contemplates doing with any of the Affiliated Companies; or |
iii. | interfere with or damage (or attempt to interfere with or damage) any relationship between an Affiliated Company and any client or customer. |
f) | Non-solicitation of Employees; No Hire. During the term of Executive’s employment and during the Restricted Period, Executive shall not, directly or indirectly, whether individually or as a shareholder or other owner, partner, member, director, officer, employee, independent contractor, creditor |
g) | or agent of any person (other than for any Affiliated Company): |
i. | Solicit any employee, officer, director, agent or independent contractor of any Affiliated Company to terminate his or her relationship with, or otherwise refrain from rendering services to, any Affiliated Company, or otherwise interfere or attempt to interfere in any way with any |
ii. | employ or engage any person who, at any time within the two‑year period immediately preceding such employment or engagement, was an employee, officer or director of any Affiliated Company. |
h) | Non-disparagement. Executive shall not, directly or indirectly, at any time (whether during Executive’s employment or thereafter), make any public statement (oral or written), or take any other action, that is disparaging to any Affiliated Company. The provisions of this § 5(g) shall not preclude Executive from making truthful statements to correct any false statements made by any Affiliated Company or any person acting on behalf thereof about Executive. |
i) | Section 409A. |
i. | General. It is intended that the benefits provided under this Agreement shall comply with the provisions of Section 409A or qualify for an exemption to Section 409A, and this Agreement shall be considered and interpreted in accordance with such intent. Any payments that qualify for the “short‑term deferral” exception under Section 409A shall be paid under that exception. Any remaining payments that qualify for another exception under Section 409A shall be paid under the applicable exception. Each payment provided under this Agreement shall be treated as a separate payment for purposes of applying the Section 409A deferral election rules and the “short-term deferral” exemption to Section 409A. Despite any contrary provision of this Agreement, any references to “termination of employment” (or any similar term) shall mean and refer to Executive’s “separation from service,” as that term is defined in Section 409A and Section 1.409A‑1(h) of the Treasury Regulations. In no event may Executive directly or indirectly designate the calendar year of any payment under this Agreement. |
ii. | Delay of Payments. Notwithstanding any other provision of this Agreement to the contrary, if Executive is considered a “specified employee” for purposes of Section 409A (as determined in accordance with the methodology established by the Company as in effect on the date of termination), any payment that constitutes nonqualified deferred compensation within the meaning of Section 409A that is otherwise due to Executive under this Agreement during the six‑month period following his or her separation from service (as determined in accordance with Section 409A) on account of his or her separation from service shall be accumulated and paid to Executive on the first business day of the seventh month following his or her separation from service (the “Delayed Payment Date”) together with interest at the short-term applicable federal rate with semiannual compounding under Code Section 1274(d) for the month prior to the month in which the separation from service occurs from the date such amount would have been paid but for this Section 5(h) to the day prior to actual payment date. If Executive dies during the Section 409A postponement period, the amounts and entitlements delayed on account of Section 409A shall be paid (with interest as provided above) to the personal representative of his or her estate on the first to occur of the Delayed Payment Date or thirty (30) days after the date of Executive’s death. |
iii. | In-Kind Benefits and Reimbursements. Notwithstanding any other provision of this Agreement to the contrary, all (1) reimbursements and (2) in‑kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (a) any reimbursement is for expenses incurred during Executive’s lifetime (or during a shorter period of time specified in this |
6. | Limitation on Payments. |
i. | Anything in this Agreement to the contrary notwithstanding, in the event the Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below) would subject Executive to the excise tax under Code Section 4999, the Accounting Firm shall determine whether to reduce any of the Payments paid or payable pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below). The Agreement Payments shall be so reduced only if the Accounting Firm determines that Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Agreement Payments were so reduced. If the Accounting Firm determines that Executive would not have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so reduced, Executive shall receive all Agreement Payments to which Executive is entitled hereunder. |
ii. | If the Accounting Firm determines that the aggregate Agreement Payments should be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, the Company shall promptly give Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 6 shall be binding upon the Company and Executive and shall be made as soon as reasonably practicable and in no event later than thirty (30) days following the date of termination. For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: (1) outplacement assistance; (2) the continued employee benefits; (3) the severance payment; and (4) the short-term bonus payment. All fees and expenses of the Accounting Firm shall be borne solely by the Company. |
iii. | As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Company to or for the benefit of Executive pursuant to this Agreement that should not have been so paid or distributed (“Overpayment”) or that additional amounts which will have not been paid or distributed by the Company to or for the benefit of Executive pursuant to this Agreement could have been so paid or distributed (“Underpayment”), in each case, consistent with the calculation of the Safe Harbor Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against either the Company or Executive that the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, Executive shall promptly (and in no event later than sixty (60) days following the date on which the Overpayment is determined) pay any such Overpayment to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the |
iv. | To the extent requested by Executive, the Company shall cooperate with Executive in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by Executive (including without limitation Executive’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, including that set forth in Section 5 of this Agreement) before, on or after the date of a change in ownership or control of the Company (within the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code), such that payments in respect of such services may be considered reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of the regulations under Section 280G of the Code in accordance with Q&A-5(a) of the regulations under Section 280G of the Code. |
v. | The following terms shall have the following meanings for purposes of this Section 6: |
7. | Defined Terms. For purposes of this Agreement, the following terms shall have the meaning set forth below: |
a) | “Affiliated Companies” shall mean the Company, all of its direct or indirect subsidiaries, and any other entities controlled by, controlling, or under common control with the Company, including any successors thereof, except that, following the consummation of a Change in Control, for purposes of Sections 5(d) and 5(e), Affiliated Companies shall be limited to the Company and its subsidiaries as of immediately prior to the consummation of such Change in Control. |
b) | “Cause” shall mean, as determined in the sole discretion of the Company, any one or more of the following: |
i. | (I) an indictment of Executive, or plea of guilty or plea of nolo contendere by Executive, to a charge of an act constituting a felony under the federal laws of the United States, the laws of any state, or any other applicable law, (II) fraud, embezzlement, or misappropriation of assets, (III) willful misfeasance or dishonesty, or (IV) other actions or criminal conduct which materially and adversely affects the business (including business reputation) or financial condition of the Company; |
ii. | the continued failure of Executive to (I) perform substantially Executive’s duties with the Company (other than any such failures resulting from incapacity due to physical or mental illness), (II) observe all material obligations and conditions to be performed and observed by Executive under this Agreement, or (III) perform his or her duties in accordance, in all material respects, with the policies and directions established from time to time by the Chief Executive Officer, the Board or a duly authorized Board committee (any such failure, a (“Performance Failure”), and to correct such Performance Failure within not more than fifteen (15) days following written notice from the Chief Executive Officer or the Board delivered to Executive, which notice specifically identifies the manner in which the Chief Executive Officer or the Board believes that Executive has not substantially performed; or |
iii. | having corrected (or the Company having waived the correction of) a Performance Failure, the occurrence of any subsequent Performance Failure (whether of the same or different type or nature). |
c) | “Change in Control” has the meaning given such term in the Company’s 2012 Stock Plan (or a successor plan thereto) as in effect on the Effective Date. |
d) | “Code” means the Internal Revenue Code of 1986, as amended. |
e) | “Confidential Information” shall mean all trade secrets, proprietary data, and other confidential information of or relating to any Affiliated Company, including without limitation financial information, information relating to business operations, services, promotional practices, and relationships with customers, suppliers, employees, independent contractors, or other parties, and any information which any Affiliated Company is obligated to treat as confidential pursuant to any course of dealing or any agreement to which it is a party or otherwise bound, provided that Confidential Information shall not include information that is or becomes available to the general public and did not become so available through any breach of this Agreement by Executive or Executive’s breach of a duty owed to the Company. |
f) | “Covered Employee” shall have the meaning provided in Code Section 162(m)(3) and related guidance. |
g) | “Disability” or “Disabled” means, as determined in the sole discretion of the Company, that Executive is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted, or can be expected to last, for a continuous period of not less than one (1) year. |
h) | “Good Reason” means Executive's termination of employment within ninety (90) days following the expiration of any cure period (discussed below) following the occurrence, without Executive's consent, of one or more of the following: |
i. | A material reduction in Executive's base compensation (except where there is a reduction applicable to all similarly situated executive officers generally); provided, that a reduction of less than ten percent (10%) will not be considered a material reduction in base compensation; or |
ii. | A material breach by the Company of a material provision of this Agreement. |
i) | “Restricted Period” shall mean the twenty-four (24) month period following Executive’s termination of employment with the Company or any Affiliated Company (whether pursuant to this Agreement or otherwise) for any reason. |
j) | “Section 409A” means Code Section 409A, and the final regulations and any guidance promulgated thereunder or any state law equivalent. |
k) | “Solicit” shall mean any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, persuading, encouraging or requesting any person or entity, in any manner, to take or refrain from taking any action; provided, however, that the term “Solicit” shall not include general advertisements by an entity with which Executive is associated or other communications in any media not targeted specifically at any specific individual described in § 5(e) or 5(f). |
8. | Successors. |
a) | The Company's Successors. Any successor to the Company (whether direct or indirect and whether by purchase, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company's business and/or assets will assume the obligations under this Agreement and agree expressly to perform the obligations under this Agreement in the same manner and to the same extent as the Company would be required to perform such obligations in the absence of a succession. For all purposes under this Agreement, the term “Company” will include any successor to the Company's business and/or assets which executes and delivers the assumption |
b) | Executive's Successors. The terms of this Agreement and all rights of Executive hereunder will inure to the benefit of, and be enforceable by, Executive's personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. |
a) | Arbitration. Subject to the right of the Company and the Affiliated Companies to exercise the remedies described in § 5 of this Agreement or the right of Executive to challenge, defend or contest same in any court having jurisdiction, the Parties agree that any and all controversies, claims, or disputes between Executive and the Company or any employee, officer, director, shareholder or benefit plan of the Company in their capacity as such or otherwise arising out of, relating to, or resulting from Executive's employment with the Company or termination thereof, including any breach of this Agreement, will be subject to binding arbitration under the then applicable Commercial Arbitration Rules of the American Arbitration Association. Claims subject to arbitration include but are not limited to claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Sarbanes Oxley Act, the Worker Adjustment and Retraining Notification Act, the Family and Medical Leave Act, the Ohio Employment Practices Law, the Ohio Whistleblower Protection Law, the Ohio Equal Pay Law, and the Ohio State Wage Payment and Work Hour Laws, claims for breach of contract (express or implied), claims for violation of public policy or wrongful termination, and any other statutory or common law claim. |
b) | Procedure. In any such arbitration, the arbitrators shall consist of a panel of three arbitrators, which shall act by majority vote and which shall consist of one arbitrator selected by each party subject to the arbitration and a third arbitrator selected by the two arbitrators so selected, who shall be either a certified public accountant or an attorney at law licensed to practice in the State of Ohio and who shall act as chairman of the arbitration panel; provided that, if one party selects its arbitrator for the panel and the other party fails to so select its arbitrator within ten (10) business days after being requested by the first party to do so, then the sole arbitrator shall be the arbitrator selected by the first party. A decision in any such arbitration shall apply both to the particular question submitted and to all similar questions arising thereafter and shall be binding and conclusive upon both parties and shall be enforceable in any court having jurisdiction over the party to be charged. Each party shall bear the cost of its own attorney’s fees. However, if any party prevails on a claim, which, according to applicable law, affords the prevailing party attorney’s fees, the arbitrator may award reasonable attorney’s fees to the prevailing party. All other costs and expenses of arbitration shall be borne by the Company. All rights and remedies of each party under this Agreement are cumulative and in addition to all other rights and remedies that may be available to that party from time to time, whether under any other agreement, at law or in equity. Any arbitration under this Agreement shall be conducted in Cincinnati, Ohio. |
c) | Remedy. Except as otherwise provided by law or this Agreement, arbitration shall be the sole, exclusive, and final remedy for any dispute between Executive and the Company. Accordingly, except as otherwise provided by law or this Agreement, Executive and the Company hereby waive the right to seek remedies for any such disputes in court, including the right to a jury trial. Notwithstanding, the arbitrator will not have the authority to disregard or refuse to enforce any |
d) | Administrative Relief. Executive is not prohibited from pursuing an administrative claim with a local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, including, but not limited to, the Department of Fair Employment and Housing, the Equal Employment Opportunity Commission, the National Labor Relations Board, or the Workers' Compensation Board. However, Executive may not pursue court action regarding any such claim, except as permitted by law. |
10. | Voluntary Nature of Agreement. Executive acknowledges and agrees that Executive is executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else. Executive further acknowledges and agrees that Executive has carefully read this Agreement and that Executive has asked any questions needed for Executive to understand the terms, consequences and binding effect of this Agreement and fully understands it, including that EXECUTIVE IS WAIVING EXECUTIVE’S RIGHT TO A JURY TRIAL. Finally, Executive Agrees that Executive has been provided an opportunity to seek the advice of an attorney of the Executive’s choice before signing this Agreement. |
11. | Notice. |
a) | General. Notices and all other communications contemplated by this Agreement will be in writing and will be deemed to have been duly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of Executive, mailed notices will be addressed to him or her at the home address which he or she most recently communicated to the Company in writing. In the case of the Company, mailed notices will be addressed to its corporate headquarters, and all notices will be directed to the attention of its General Counsel. |
b) | Notice of Termination. Any termination by the Company for Cause or by Executive for Good Reason will be communicated by a notice of termination to the other party hereto given in accordance with Section 11(a) of this Agreement. Such notice will indicate the specific termination provision in this Agreement relied upon, will set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination under the provision so indicated, and will specify the termination date (which will be not more than thirty (30) days after the giving of such notice), subject to any applicable cure period. The failure by Executive or the Company to include in the notice any fact or circumstance which contributes to a showing of Good Reason or Cause, as applicable, will not waive any right of Executive or the Company, as applicable, hereunder or preclude Executive or the Company, as applicable, from asserting such fact or circumstance in enforcing his or her or its rights hereunder, as applicable. |
12. | Miscellaneous Provisions. |
a) | No Duty to Mitigate. Executive will not be required to mitigate the amount of any payment contemplated by this Agreement, nor will any such payment be reduced by any earnings that Executive may receive from any other source. |
b) | Waiver. No provision of this Agreement will be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by Executive and by an authorized officer of the Company (other than Executive). No waiver by either party of any |
c) | Headings. All captions and section headings used in this Agreement are for convenient reference only and do not form a part of this Agreement. |
d) | Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto and supersedes in their entirety all prior or contemporaneous representations, understandings, undertakings or agreements (whether oral or written and whether expressed or implied) of the parties with respect to the subject matter hereof. Executive acknowledges and agrees that this Agreement encompasses all the rights of Executive to any severance payments and/or benefits based on the termination of Executive's employment and Executive hereby agrees that he or she has no such rights except as stated herein. No waiver, alteration, or modification of any of the provisions of this Agreement will be binding unless in writing and signed by duly authorized representatives of the parties hereto and which specifically mention this Agreement. |
e) | Choice of Law. The validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without giving effect to provisions governing the choice of law. |
f) | Severability. The invalidity or unenforceability of any provision or provisions of this Agreement will not affect the validity or enforceability of any other provision hereof, which will remain in full force and effect. |
g) | Withholding. All payments made pursuant to this Agreement will be subject to withholding of applicable income, employment and other taxes, as determined in the Company's reasonable judgment. |
h) | Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. |
i) | Compliance with Applicable Law. The benefits paid and provided under this Agreement are subject to and conditioned upon compliance with applicable requirements of federal, state and local law and regulation, whether currently in effect or subsequently enacted, including without limitation, 12 U.S.C. Section 1828(k) and the regulations promulgated thereunder in 12 C.F.R. Part 359. Consistent with the foregoing, the Company shall have the right to defer, cancel or recoup any payment or refuse to provide any benefit under this Agreement in the event the Company determines in good faith, acting in its sole discretion, that making such payment or providing such benefit violates any applicable law or regulation. Further, benefits paid and provided under this Agreement may be subject to any claw back policy generally applicable to the executives of the Company as may be required by applicable law or as may be established by the Company in its sole discretion. To the extent determined necessary to comply with the Guidance on Sound Incentive Compensation Policies issued by the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation and the Office of Thrift Supervision on June 21, 2010, as it may be implemented, modified and interpreted from time to time, the Executive and the Company mutually agree to amend the provisions of this Agreement and to cooperate in good faith with respect thereto. |
EXECUTIVE | FIRST FINANCIAL BANCORP | |||
By: | /s/ John M. Gavigan | By: | /s/ Alisa E. Poe | |
Name: | John M. Gavigan | Name: | Alisa E. Poe | |
Title: | Chief Financial Officer | Title: | Chief of Staff and Chief Talent Officer | |
Date: | March 13, 2015 | Date: | March 13, 2015 | |
▪ | Title VII of the Civil Rights Act of 1964; |
▪ | Sections 1981 through 1988 of Title 42 of the United States Code; |
▪ | The Executive Retirement Income Security Act of 1974 (except for any vested benefits under any tax-qualified benefit plan); |
▪ | The Immigration Reform and Control Act; |
▪ | The Americans with Disabilities Act of 1990, as amended; |
▪ | The Age Discrimination in Employment Act of 1967; |
▪ | The Worker Adjustment and Retraining Notification Act; |
▪ | The Fair Credit Reporting Act; |
▪ | The Family and Medical Leave Act; |
▪ | The Equal Pay Act; |
▪ | The Indiana Age Discrimination Act - Ind. Code §22-9-2-1 et seq.; |
▪ | The Indiana Civil Rights Law - Ind. Code §22-9-1-1 et seq.; |
▪ | The Indiana Equal Pay Act - Ind. Code §22-2-2-1 et seq.; |
▪ | The Indiana Handicap Discrimination Law - Ind. Code §22-9-5-1 et seq.; |
▪ | The Indiana Discrimination Against Disabled Persons Act - Ind. Code §910 3-1-1 et seq.; |
▪ | The Indiana State Wage Payment and Work Hour Laws; |
▪ | The Indiana Occupational Safety and Health Act - Ind. Code §22-8-1-1 et seq.; |
▪ | The Indiana AIDS Testing Law - Ind. Code §16-41-6-1 and §16-41-8-1 et seq.; |
▪ | The Indiana Smoker’s Rights Law - Ind. Code §22-5-4-1 et seq.; |
▪ | The Indiana Whistleblower Protections - Ind. Code Ann. §4-15-10 et seq.; |
▪ | Any other federal, state or local law, rule, regulation, or ordinance |
▪ | Any public policy, contract, tort, or common law; or |
▪ | Any basis for recovering costs, fees, or other expenses including attorneys' fees incurred in these matters. |
EXECUTIVE | FIRST FINANCIAL BANCORP | |||
By: | By: | |||
Date: | Date: | |||