SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current report pursuant to Section 13 or 15(d) of
The Securities Act of 1934
Date of (Date of earliest event reported) March 1, 1995
-------------------------
First Merchants Bancorp, Inc
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(Exact name of registrant as specified in its charter)
West Virginia 33-9540 55-0670580
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(State or other (commISSion (I.R.S. Employer
jurisdiction of file number) Identification No.)
Incorporation)
Fourth Avenue & Washington St. Montgomery, West Virginia 25136
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(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code (304) 442-2475
--------------
N/A
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(Former name or former address, if changed since last report)
Item 5. Other Events
Change of Control Agreement.
- ----------------------------
In view of the changing banking environment and the desire of FMB to
encourage its executive management to continue with FMB, the Board of
Directors of FMB unanimously approved the entering into Change of Control
Agreements with the executive officers of FMB. Change of Control Agreements
were entered into as of March 1, 1995 between FMB and George F. Davis,
President, Chief Executive Officer and Chairman of FMB; Linda G. Aguilar,
Secretary of FMB; Robert P. McDowell, Vice President of FMB; Robert L. Neal,
Vice President of FMB and Steven D. Nunley, Treasurer of FMB. The Change of
Control Agreements for Ms. Aguilar and Messrs. McDowell, Neal and Nunley,
provide that in the event of a Change of Control, as defined therein, the
executive may thereafter only be terminated for Good Cause as defined
therein, for the period of twenty-four (24) months after the consummation of
the change of control. A termination for any other reason during the
twenty-four (24) month period would entitle the executive to compensation,
based upon an average of W-2 earnings, for the period between the date of
the termination and the date that is twenty-four (24) months after the date
of the consummation of the Change of Control. The contracts permit an
executive to resign for any reason upon thirty (30) days prior written
notice. The contracts also provide for continuation of certain benefits
during the twenty-four (24) month period after the date of the consummation
of the Change of Control. In the event of a termination of the executive
during the twenty-four (24) month period, he or she may seek and obtain
other employment without reducing the amount of any payment made under the
terms of the Change of Control Agreement. Mr. Davis' contract is
substantially the same as the other executives, except that it is effective
for a thirty-six (36) month term following a change of control and also
provides that Mr. Davis will have the use of a car during that period. The
Change of Control Agreements are binding upon any successor in interest to
FMB and will be binding upon City Holding upon consummation of the
transactions contemplated in the Agreement, as recognized in the Agreement.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
Change of Control Agreement As Attached
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
First Merchants Bancorp. Inc
-------------------------------
(Registrant)
04-21-95 By: /s/George F. Davis
---------- -------------------------------
(Date)
Its: George F. Davis, President
-------------------------------
(Print Name and Title)
CHANGE OF CONTROL AGREEMENT
---------------------------
THIS AGREEMENT made as of March 1, 1995, by and between First
Merchants Bancorp, Inc., a West Virginia company (the "Company"), and Robert
P. McDowell, an executive officer of the Company (the "Executive").
WHEREAS, the Executive is currently employed by the
Company and The Merchants National Bank, its wholly-owned subsidiary; and
WHEREAS, changes in the banking industry have occurred
such that changes in the ownership and management of the Company could occur;
and
WHEREAS, the Board of Directors of the Company (the
"Board") recognizes that the Executive's contribution to the growth and success
of the Company has been substantial; and
WHEREAS, the Company believes it is in the best interest
of the Company to grant the Executive a level of security to preserve key
management and to assure fair consideration of any affiliation opportunities
that may arise.
NOW THEREFORE, in consideration of the promises and the
respective covenants and agreements of the parties herein contained, the
Company and Executive contract and agree as follows:
1. Definitions. The following definitions shall apply
to designated phrases used in this Agreement.
a. "Change of Control" means (i) a change of
ownership of the Company which would have to be reported to the Securities and
Exchange Commission if the Company was a company registered under Section 12(g)
of the Securities and Exchange Act of 1934 (the "Exchange Act") as a change of
control, including but not limited to the acquisition by any "person" (as such
term is used in Sections 13(d) and 14(d) of Exchange Act) of direct or indirect
"beneficial ownership" (as defined by Rule 13d-3 under the Exchange Act) of
twenty-five percent (25%) or more of the combined voting power of the Company's
then outstanding securities; or (ii) the failure during any period of two (2)
consecutive years of individuals who at the beginning of such period constitute
the Board for any reason to constitute at least a majority thereof, unless the
election of each director who was not a director at the beginning of such
period has been approved in advance by directors representing at least two-
thirds (2/3) of the directors at the beginning of the period; or (iii) the
consummation of a "Business Combination" as defined in the Company's Articles
of Incorporation.
1
b. "Base Pay" means the average of the Executive's
full earnings reported on IRS Form W-2 for the two full year periods
immediately prior to the date of the consummation of the Change of Control or
for the two full year period immediately preceding the Date of Termination,
whichever is greater.
c. "Good Cause" includes (i) termination for continued poor
work performance after written notice of and reasonable opportunity to correct
deficiencies; (ii) termination for behavior outside or on the job which affects
the ability of management of the Company or co-workers to perform their jobs
and which is not corrected after reasonable written warning; (iii) termination
for failure to devote reasonable time to the job which is not corrected after
reasonable warning; and (iv) any other significant deficiency in performance
by the Executive which is not corrected after reasonable warning.
d. "Disability" means total and permanent disability as
defined by Company's (or its successor's) Long-Term Disability Plan.
e. "Retirement" means termination of employment by
the executive in accordance with Company's (or its successor's) retirement
plan, including early retirement, generally applicable to its salaried
employees.
f. "Good Reason" means: (i) a Change of Control in the
Company (as defined above) and: (a) a decrease in the total amount of the
Executive's base salary below its level in effect on the date of consummation
of the Change of Control, without the Executive's prior written consent; or (b)
a material reduction in the importance of the Executive's job responsibilities
without the Executive's prior written consent; or (c) a geographical relocation
of the Executive to an office more than 30 miles from the Executive's business
location or residence at the time of the Change of Control without the
Executive's prior written consent; (ii) failure of Company to obtain assumption
of this Agreement by its successor; or (iii) any purported termination of the
Executive's employment which is not effected pursuant to a Notice of
Termination required in paragraph 2.
g. "Wrongful Termination" means termination of the
Executive's employment by the Company or it affiliates for any reason other
than Good Cause or the death, Disability or Retirement of Executive prior to
the expiration of twenty-four (24) months after consummation of the Change of
Control.
2. Termination for Good Reason or For Cause; Notice of
Termination. The Executive may terminate his employment with the Company or
its affiliates for Good Reason. In the event of a Change of Control, the
Company may terminate Executive's employment only for Good Cause within twenty-
four (24) months after consummation of Change in Control. Any termination of
the Executive's employment by the Company or by the Executive shall be
2
communicated by written Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement relied
upon, which shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for the termination of the Executive's employment
under the provision so indicated, and which shall further specify an effective
date of termination. For purposes of termination under this paragraph, Date
of Termination shall mean the date on which Notice of Termination is to be
effective.
3. Resignation of Executive. Executive may resign for any reason,
after a Change in Control, by giving thirty (30) days' prior written notice of
his resignation. In the event of the termination of Executive due to his
resignation (for reasons other than Good Reason), then Executive shall only be
entitled to compensation through his last day of employment.
4. Compensation of Executive Upon Termination for Good Reason
or Wrongful Termination.
a. Except as hereinafter provided, if the Executive
terminates his employment with the Company for Good Reason or the Company
terminates the Executive's employment in a manner constituting Wrongful
Termination, the Company hereby agrees to pay the Executive a lump sum cash
payment equal to the Executive's Base Salary, on a monthly basis, multiplied
by the number of months between the Date of Termination and the date that is
twenty-four (24) months after the date of consummation of the Change of
Control.
b. For the year in which termination occurs, the
Executive will be entitled to receive his reasonable share of the Company's
cash bonuses, if any, allocated in accordance with existing principles and
authorized by the Board of Directors. The amount of the Executive's cash
incentive award shall not be reduced due to the Executive not being actively
employed for the full year.
c. The Executive will continue to participate,
without discrimination, for the number of months between the Date of
Termination and the date that is twenty-four (24) months after the date of the
consummation of the Change of Control in benefit plans (such as retirement,
disability and medical insurance) maintained after any Change of Control for
employees, in general, of the Company, or any successor organization, provided
the Executive's continued participation is possible under the general terms and
conditions of such plans. In the event the Executive's participation in any
such plan is barred, the Company shall arrange to provide the Executive with
benefits substantially similar to those which the Executive would have been
entitled had his participation not been barred. However, in no event will the
3
Executive receive from the Company the employee benefits contemplated by this
section if the Executive receives comparable benefits from any other source.
5 . Other Employment. The Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment. The amount of any payment provided for in this Agreement
shall not be reduced by any compensation earned or benefits provided (except
as set forth in paragraph 4.c. above) as the result of employment by another
employer after the Date of Termination.
6. Rights of Company Prior to the Change of Control. This
Agreement shall not effect the right of the Company to terminate the Executive,
or to reduce the salary or benefits of the Executive, with or without Good
Cause, prior to any Change of Control; provided, however, any termination or
reduction in salary or benefits which takes place after discussions have
commenced which result in a Change of Control shall be presumed to be a
violation of this Agreement which entitled the Executive to the benefits
hereof, absent clear and convincing evidence to the contrary.
7. Successors; Binding Agreement.
a. 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, to expressly
assume and agree to perform this Agreement. 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 he would be entitled
to hereunder if he terminated his employment for Good Reason. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which executes and
delivers the agreement provided for in this paragraph 7 or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation
of law.
b. This Agreement and all rights of the Executive hereunder
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 him hereunder if he had continued to live,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the Executive's devisee, legatee, or other
designee or, if there be no such designee, to the Executive's estate.
4
8. Notice. For the purposes of this Agreement, notices, demands
and other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States registered mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
Robert P. McDowell
Box 921
Montgomery, WV 25136
If to the Company:
The Merchants National Bank
4th Avenue & Washington St.
P. O. Box 1109
Montgomery, WV 25136
Attn: George F. Davis
or such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
9. Miscellaneous. 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 another executive officer
of the Company as may be specifically designated by the Board. No waiver by
either party hereto at any time of any breach by the other 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 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. The validity, interpretations,
construction and performance of this Agreement shall be governed by the laws
of the State of West Virginia.
10. Validity. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement, which shall remain in full force and
effect.
11. 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.
5
12. Legal Fees. Company shall pay all reasonable legal fees and
expenses incurred by Executive in enforcing any right or benefit provided by
this Agreement.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be signed as of the day and year first above written.
FIRST MERCHANTS BANCORP, INC.
By:/s/ George F. Davis
-------------------------------
Its: President
-----------------------------
/s/ Robert P. McDowell
----------------------------------
Robert P. McDowell, Executive
6
CHANGE OF CONTROL AGREEMENT
---------------------------
THIS AGREEMENT made as of March 1, 1995, by and between
First Merchants Bancorp, Inc., a West Virginia company (the "Company"), and
Steven D. Nunley, an executive officer of the Company (the "Executive").
WHEREAS, the Executive is currently employed by the
Company and The Merchants National Bank, its wholly-owned subsidiary; and
WHEREAS, changes in the banking industry have occurred
such that changes in the ownership and management of the Company could occur;
and
WHEREAS, the Board of Directors of the Company (the
"Board") recognizes that the Executive's contribution to the growth and success
of the Company has been substantial; and
WHEREAS, the Company believes it is in the best interest
of the Company to grant the Executive a level of security to preserve key
management and to assure fair consideration of any affiliation opportunities
that may arise.
NOW THEREFORE, in consideration of the promises and the
respective covenants and agreements of the parties herein contained, the
Company and Executive contract and agree as follows:
1. Definitions. The following definitions shall apply to
designated phrases used in this Agreement.
a. "Change of Control" means (i) a change of ownership of
the Company which would have to be reported to the Securities and Exchange
Commission if the Company was a company registered under Section 12(g) of the
Securities and Exchange Act of 1934 (the "Exchange Act") as a change of
control, including but not limited to the acquisition by any "person" (as such
term is used in Sections 13(d) and 14(d) of Exchange Act) of direct or indirect
"beneficial ownership" (as defined by Rule 13d-3 under the Exchange Act) of
twenty-five percent (25%) or more of the combined voting power of the Company's
then outstanding securities; or (ii) the failure during any period of two (2)
consecutive years of individuals who at the beginning of such period constitute
the Board for any reason to constitute at least a majority thereof, unless the
election of each director who was not a director at the beginning of such
period has been approved in advance by directors representing at least two-
thirds (2/3) of the directors at the beginning of the period; or (iii) the
consummation of a "Business Combination" as defined in the Company's Articles
of Incorporation.
1
b. "Base Pay" means the average of the Executive's full
earnings reported on IRS Form W-2 for the two full year periods immediately
prior to the date of the consummation of the Change of Control or for the two
full year period immediately preceding the Date of Termination, whichever is
greater.
c. "Good Cause" includes (i) termination for continued
poor work performance after written notice of and reasonable opportunity to
correct deficiencies; (ii) termination for behavior outside or on the job which
affects the ability of management of the Company or co-workers to perform their
jobs and which is not corrected after reasonable written warning; (iii)
termination for failure to devote reasonable time to the job which is not
corrected after reasonable warning; and (iv) any other significant deficiency
in performance by the Executive which is not corrected after reasonable
warning.
d. "Disability" means total and permanent disability as
defined by Company's (or its successor's) Long-Term Disability Plan.
e. "Retirement" means termination of employment by the
executive in accordance with Company's (or its successor's) retirement plan,
including early retirement, generally applicable to its salaried employees.
f. "Good Reason" means: (i) a Change of Control in the
Company (as defined above) and: (a) a decrease in the total amount of the
Executive's base salary below its level in effect on the date of consummation
of the Change of Control, without the Executive's prior written consent; or (b)
a material reduction in the importance of the Executive's job responsibilities
without the Executive's prior written consent; or (c) a geographical relocation
of the Executive to an office more than 30 miles from the Executive's business
location or residence at the time of the Change of Control without the
Executive's prior written consent; (ii) failure of Company to obtain assumption
of this Agreement by its successor; or (iii) any purported termination of the
Executive's employment which is not effected pursuant to a Notice of
Termination required in paragraph 2.
g. "Wrongful Termination" means termination of the
Executive's employment by the Company or it affiliates for any reason other
than Good Cause or the death, Disability or Retirement of Executive prior to
the expiration of twenty-four (24) months after consummation of the Change of
Control.
2. Termination for Good Reason or For Cause; Notice of
Termination. The Executive may terminate his employment with the Company or
its affiliates for Good Reason. In the event of a Change of Control, the
Company may terminate Executive's employment only for Good Cause within twenty-
four (24) months after consummation of Change in Control. Any termination of
the Executive's employment by the Company or by the Executive shall be
2
communicated by written Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement relied
upon, which shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for the termination of the Executive's employment
under the provision so indicated, and which shall further specify an effective
date of termination. For purposes of termination under this paragraph, Date
of Termination shall mean the date on which Notice of Termination is to be
effective.
3. Resignation of Executive. Executive may resign for any reason,
after a Change in Control, by giving thirty (30) days' prior written notice of
his resignation. In the event of the termination of Executive due to his
resignation (for reasons other than Good Reason), then Executive shall only be
entitled to compensation through his last day of employment.
4. Compensation of Executive Upon Termination for Good Reason or
Wrongful Termination.
a. Except as hereinafter provided, if the Executive
terminates his employment with the Company for Good Reason or the Company
terminates the Executive's employment in a manner constituting Wrongful
Termination, the Company hereby agrees to pay the Executive a lump sum cash
payment equal to the Executive's Base Salary, on a monthly basis, multiplied
by the number of months between the Date of Termination and the date that is
twenty-four (24) months after the date of consummation of the Change of
Control.
b. For the year in which termination occurs, the Executive
will be entitled to receive his reasonable share of the Company's cash bonuses,
if any, allocated in accordance with existing principles and authorized by the
Board of Directors. The amount of the Executive's cash incentive award shall
not be reduced due to the Executive not being actively employed for the full
year.
c. The Executive will continue to participate, without
discrimination, for the number of months between the Date of Termination and
the date that is twenty-four (24) months after the date of the consummation of
the Change of Control in benefit plans (such as retirement, disability and
medical insurance) maintained after any Change of Control for employees, in
general, of the Company, or any successor organization, provided the
Executive's continued participation is possible under the general terms and
conditions of such plans. In the event the Executive's participation in any
such plan is barred, the Company shall arrange to provide the Executive with
benefits substantially similar to those which the Executive would have been
entitled had his participation not been barred. However, in no event will the
3
Executive receive from the Company the employee benefits contemplated by this
section if the Executive receives comparable benefits from any other source.
5. Other Employment. The Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment. The amount of any payment provided for in this Agreement
shall not be reduced by any compensation earned or benefits provided (except
as set forth in paragraph 4.c. above) as the result of employment by another
employer after the Date of Termination.
6. Rights of Company Prior to the Change of Control. This
Agreement shall not effect the right of the Company to terminate the Executive,
or to reduce the salary or benefits of the Executive, with or without Good
Cause, prior to any Change of Control; provided, however, any termination or
reduction in salary or benefits which takes place after discussions have
commenced which result in a Change of Control shall be presumed to be a
violation of this Agreement which entitled the Executive to the benefits
hereof, absent clear and convincing evidence to the contrary.
7. Successors; Binding Agreement.
a. 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, to expressly assume and
agree to perform this Agreement. 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 he would be entitled to
hereunder if he terminated his employment for Good Reason. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which executes and
delivers the agreement provided for in this paragraph 7 or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation
of law.
b. This Agreement and all rights of the Executive
hereunder 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 him hereunder if he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's devisee,
legatee, or other designee or, if there be no such designee, to the Executive's
estate.
4
8. Notice. For the purposes of this Agreement, notices, demands
and other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States registered mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
Steven D. Nunley
P. O. Box 195
Montgomery, WV 25136
If to the Company:
The Merchants National Bank
4th Avenue & Washington St.
P. O. Box 1109
Montgomery, WV 25136
Attn: George F. Davis
or such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
9. Miscellaneous. 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 another executive officer
of the Company as may be specifically designated by the Board. No waiver by
either party hereto at any time of any breach by the other 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 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. The validity, interpretations,
construction and performance of this Agreement shall be governed by the laws
of the State of West Virginia.
10. Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
11. 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.
5
12. Legal Fees. Company shall pay all reasonable legal fees and
expenses incurred by Executive in enforcing any right or benefit provided by
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed as of the day and year first above written.
FIRST MERCHANTS BANCORP, INC.
By:/s/ George F. Davis
-------------------------------
Its: President
---------------------------
/s/ Steven D. Nunley
---------------------------------
Steven D. Nunley, Executive
6
CHANGE OF CONTROL AGREEMENT
---------------------------
THIS AGREEMENT made as of March 1, 1995, by and between First
Merchants Bancorp, Inc., a West Virginia company (the "Company"), and Robert
L. Neal, an executive officer of the Company (the "Executive").
WHEREAS, the Executive is currently employed by the Company and
The Merchants National Bank, its wholly-owned subsidiary; and
WHEREAS, changes in the banking industry have occurred such that
changes in the ownership and management of the Company could occur; and
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that the Executive's contribution to the growth and success of the
Company has been substantial; and
WHEREAS, the Company believes it is in the best interest of the
Company to grant the Executive a level of security to preserve key management
and to assure fair consideration of any affiliation opportunities that may
arise.
NOW THEREFORE, in consideration of the promises and the respective
covenants and agreements of the parties herein contained, the Company and
Executive contract and agree as follows:
1. Definitions. The following definitions shall apply to
designated phrases used in this Agreement.
a. "Change of Control" means (i) a change of ownership of
the Company which would have to be reported to the Securities and Exchange
Commission if the Company was a company registered under Section 12(g) of the
Securities and Exchange Act of 1934 (the "Exchange Act") as a change of
control, including but not limited to the acquisition by any "person" (as such
term is used in Sections 13(d) and 14(d) of Exchange Act) of direct or indirect
"beneficial ownership" (as defined by Rule 13d-3 under the Exchange Act) of
twenty-five percent (25%) or more of the combined voting power of the Company's
then outstanding securities; or (ii) the failure during any period of two (2)
consecutive years of individuals who at the beginning of such period constitute
the Board for any reason to constitute at least a majority thereof, unless the
election of each director who was not a director at the beginning of such
period has been approved in advance by directors representing at least two-
thirds (2/3) of the directors at the beginning of the period; or (iii) the
consummation of a "Business Combination" as defined in the Company's Articles
of Incorporation.
1
b. "Base Pay" means the average of the Executive's full
earnings reported on IRS Form W-2 for the two full year periods immediately
prior to the date of the consummation of the Change of Control or for the two
full year period immediately preceding the Date of Termination, whichever is
greater.
c. "Good Cause" includes (i) termination for continued
poor work performance after written notice of and reasonable opportunity to
correct deficiencies; (ii) termination for behavior outside or on the job which
affects the ability of management of the Company or co-workers to perform their
jobs and which is not corrected after reasonable written warning; (iii)
termination for failure to devote reasonable time to the job which is not
corrected after reasonable warning; and (iv) any other significant deficiency
in performance by the Executive which is not corrected after reasonable
warning.
d. "Disability" means total and permanent disability as
defined by Company's (or its successor's) Long-Term Disability Plan.
e. "Retirement" means termination of employment by the
executive in accordance with Company's (or its successor's) retirement plan,
including early retirement, generally applicable to its salaried employees.
f. "Good Reason" means: (i) a Change of Control in the
Company (as defined above) and: (a) a decrease in the total amount of the
Executive's base salary below its level in effect on the date of consummation
of the Change of Control, without the Executive's prior written consent; or (b)
a material reduction in the importance of the Executive's job responsibilities
without the Executive's prior written consent; or (c) a geographical relocation
of the Executive to an office more than 30 miles from the Executive's business
location or residence at the time of the Change of Control without the
Executive's prior written consent; (ii) failure of Company to obtain assumption
of this Agreement by its successor; or (iii) any purported termination of the
Executive's employment which is not effected pursuant to a Notice of
Termination required in paragraph 2.
g. "Wrongful Termination" means termination of the
Executive's employment by the Company or it affiliates for any reason other
than Good Cause or the death, Disability or Retirement of Executive prior to
the expiration of twenty-four (24) months after consummation of the Change of
Control.
2. Termination for Good Reason or For Cause; Notice of
Termination. The Executive may terminate his employment with the Company or
its affiliates for Good Reason. In the event of a Change of Control, the
Company may terminate Executive's employment only for Good Cause within twenty-
four (24) months after consummation of Change in Control. Any termination of
the Executive's employment by the Company or by the Executive shall be
communicated by written Notice of Termination to the other party hereto. For
2
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement relied
upon, which shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for the termination of the Executive's employment
under the provision so indicated, and which shall further specify an effective
date of termination. For purposes of termination under this paragraph, Date
of Termination shall mean the date on which Notice of Termination is to be
effective.
3. Resignation of Executive. Executive may resign for any reason,
after a Change in Control, by giving thirty (30) days' prior written notice of
his resignation. In the event of the termination of Executive due to his
resignation (for reasons other than Good Reason), then Executive shall only be
entitled to compensation through his last day of employment.
4. Compensation of Executive Upon Termination for Good Reason or
Wrongful Termination.
a. Except as hereinafter provided, if the Executive
terminates his employment with the Company for Good Reason or the Company
terminates the Executive's employment in a manner constituting Wrongful
Termination, the Company hereby agrees to pay the Executive a lump sum cash
payment equal to the Executive's Base Salary, on a monthly basis, multiplied
by the number of months between the Date of Termination and the date that is
twenty-four (24) months after the date of consummation of the Change of
Control.
b. For the year in which termination occurs, the Executive
will be entitled to receive his reasonable share of the Company's cash bonuses,
if any, allocated in accordance with existing principles and authorized by the
Board of Directors. The amount of the Executive's cash incentive award shall
not be reduced due to the Executive not being actively employed for the full
year.
c. The Executive will continue to participate, without
discrimination, for the number of months between the Date of Termination and
the date that is twenty-four (24) months after the date of the consummation of
the Change of Control in benefit plans (such as retirement, disability and
medical insurance) maintained after any Change of Control for employees, in
general, of the Company, or any successor organization, provided the
Executive's continued participation is possible under the general terms and
conditions of such plans. In the event the Executive's participation in any
such plan is barred, the Company shall arrange to provide the Executive with
benefits substantially similar to those which the Executive would have been
entitled had his participation not been barred. However, in no event will the
3
Executive receive from the Company the employee benefits contemplated by this
section if the Executive receives comparable benefits from any other source.
5. Other Employment. The Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment. The amount of any payment provided for in this Agreement
shall not be reduced by any compensation earned or benefits provided (except
as set forth in paragraph 4.c. above) as the result of employment by another
employer after the Date of Termination.
6. Rights of Company Prior to the Change of Control. This
Agreement shall not effect the right of the Company to terminate the Executive,
or to reduce the salary or benefits of the Executive, with or without Good
Cause, prior to any Change of Control; provided, however, any termination or
reduction in salary or benefits which takes place after discussions have
commenced which result in a Change of Control shall be presumed to be a
violation of this Agreement which entitled the Executive to the benefits
hereof, absent clear and convincing evidence to the contrary.
7. Successors; Binding Agreement.
a. 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, to expressly assume and
agree to perform this Agreement. 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 he would be entitled to
hereunder if he terminated his employment for Good Reason. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which executes and
delivers the agreement provided for in this paragraph 7 or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation
of law.
b. This Agreement and all rights of the Executive
hereunder 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 him hereunder if he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's devisee,
legatee, or other designee or, if there be no such designee, to the Executive's
estate.
4
8. Notice. For the purposes of this Agreement, notices, demands
and other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States registered mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
Robert L. Neal
101 Sunset Drive
Charleston, WV 25301
If to the Company:
The Merchants National Bank
4th Avenue & Washington St.
P. O. Box 1109
Montgomery, WV 25136
Attn: George F. Davis
or such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
9. Miscellaneous. 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 another executive officer
of the Company as may be specifically designated by the Board. No waiver by
either party hereto at any time of any breach by the other 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 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. The validity, interpretations,
construction and performance of this Agreement shall be governed by the laws
of the State of West Virginia.
10. Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
11. 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.
5
12. Legal Fees. Company shall pay all reasonable legal fees and
expenses incurred by Executive in enforcing any right or benefit provided by
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed as of the day and year first above written.
FIRST MERCHANTS BANCORP, INC.
By:/s/ George F. Davis
----------------------------
Its: President
------------------------
/s/ Robert L. Neal
------------------------------
Robert L. Neal, Executive
6
CHANGE OF CONTROL AGREEMENT
THIS AGREEMENT made as of March 1, 1995, by and between First
Merchants Bancorp, Inc., a West Virginia company (the "Company"), and Linda G.
Aguilar, an executive officer of the Company (the "Executive").
WHEREAS, the Executive is currently employed by the Company and
The Merchants National Bank, its wholly-owned subsidiary; and
WHEREAS, changes in the banking industry have occurred such that
changes in the ownership and management of the Company could occur; and
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that the Executive's contribution to the growth and success of the
Company has been substantial; and
WHEREAS, the Company believes it is in the best interest of the
Company to grant the Executive a level of security to preserve key management
and to assure fair consideration of any affiliation opportunities that may
arise.
NOW THEREFORE, in consideration of the promises and the respective
covenants and agreements of the parties herein contained, the Company and
Executive contract and agree as follows:
1. Definitions. The following definitions shall apply to
designated phrases used in this Agreement.
a. "Change of Control" means (i) a change of ownership of
the Company which would have to be reported to the Securities and Exchange
Commission if the Company was a company registered under Section 12(g) of the
Securities and Exchange Act of 1934 (the "Exchange Act") as a change of
control, including but not limited to the acquisition by any "person" (as such
term is used in Sections 13(d) and 14(d) of Exchange Act) of direct or indirect
"beneficial ownership" (as defined by Rule 13d-3 under the Exchange Act) of
twenty-five percent (25%) or more of the combined voting power of the Company's
then outstanding securities; or (ii) the failure during any period of two (2)
consecutive years of individuals who at the beginning of such period constitute
the Board for any reason to constitute at least a majority thereof, unless the
election of each director who was not a director at the beginning of such
period has been approved in advance by directors representing at least two-
thirds (2/3) of the directors at the beginning of the period; or (iii) the
consummation of a "Business Combination" as defined in the Company's Articles
of Incorporation.
1
b. "Base Pay" means the average of the Executive's full
earnings reported on IRS Form W-2 for the two full year periods immediately
prior to the date of the consummation of the Change of Control or for the two
full year period immediately preceding the Date of Termination, whichever is
greater.
c. "Good Cause" includes (i) termination for continued
poor work performance after written notice of and reasonable opportunity to
correct deficiencies; (ii) termination for behavior outside or on the job which
affects the ability of management of the Company or co-workers to perform their
jobs and which is not corrected after reasonable written warning; (iii)
termination for failure to devote reasonable time to the job which is not
corrected after reasonable warning; and (iv) any other significant deficiency
in performance by the Executive which is not corrected after reasonable
warning.
d. "Disability" means total and permanent disability as
defined by Company's (or its successor's) Long-Term Disability Plan.
e. "Retirement" means termination of employment by the
executive in accordance with Company's (or its successor's) retirement plan,
including early retirement, generally applicable to its salaried employees.
f. "Good Reason" means: (i) a Change of Control in the
Company (as defined above) and: (a) a decrease in the total amount of the
Executive's base salary below its level in effect on the date of consummation
of the Change of Control, without the Executive's prior written consent; or (b)
a material reduction in the importance of the Executive's job responsibilities
without the Executive's prior written consent; or (c) a geographical relocation
of the Executive to an office more than 30 miles from the Executive's business
location or residence at the time of the Change of Control without the
Executive's prior written consent; (ii) failure of Company to obtain assumption
of this Agreement by its successor; or (iii) any purported termination of the
Executive's employment which is not effected pursuant to a Notice of
Termination required in paragraph 2.
g. "Wrongful Termination" means termination of the
Executive's employment by the Company or it affiliates for any reason other
than Good Cause or the death, Disability or Retirement of Executive prior to
the expiration of twenty-four (24) months after consummation of the Change of
Control.
2. Termination for Good Reason or For Cause; Notice of
Termination. The Executive may terminate his employment with the Company or
its affiliates for Good Reason. In the event of a Change of Control, the
Company may terminate Executive's employment only for Good Cause within twenty-
four (24) months after consummation of Change in Control. Any termination of
the Executive's employment by the Company or by the Executive shall be
2
communicated by written Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement relied
upon, which shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for the termination of the Executive's employment
under the provision so indicated, and which shall further specify an effective
date of termination. For purposes of termination under this paragraph, Date
of Termination shall mean the date on which Notice of Termination is to be
effective.
3. Resignation of Executive. Executive may resign for any reason,
after a Change in Control, by giving thirty (30) days' prior written notice of
his resignation. In the event of the termination of Executive due to his
resignation (for reasons other than Good Reason), then Executive shall only be
entitled to compensation through his last day of employment.
4. Compensation of Executive Upon Termination for Good Reason or
Wrongful Termination.
a. Except as hereinafter provided, if the Executive
terminates his employment with the Company for Good Reason or the Company
terminates the Executive's employment in a manner constituting Wrongful
Termination, the Company hereby agrees to pay the Executive a lump sum cash
payment equal to the Executive's Base Salary, on a monthly basis, multiplied
by the number of months between the Date of Termination and the date that is
twenty-four (24) months after the date of consummation of the Change of
Control.
b. For the year in which termination occurs, the Executive
will be entitled to receive his reasonable share of the Company's cash bonuses,
if any, allocated in accordance with existing principles and authorized by the
Board of Directors. The amount of the Executive's cash incentive award shall
not be reduced due to the Executive not being actively employed for the full
year.
c. The Executive will continue to participate, without
discrimination, for the number of months between the Date of Termination and
the date that is twenty-four (24) months after the date of the consummation of
the Change of Control in benefit plans (such as retirement, disability and
medical insurance) maintained after any Change of Control for employees, in
general, of the Company, or any successor organization, provided the
Executive's continued participation is possible under the general terms and
conditions of such plans. In the event the Executive's participation in any
such plan is barred, the Company shall arrange to provide the Executive with
benefits substantially similar to those which the Executive would have been
entitled had his participation not been barred. However, in no event will the
3
Executive receive from the Company the employee benefits contemplated by this
section if the Executive receives comparable benefits from any other source.
5. Other Employment. The Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment. The amount of any payment provided for in this Agreement
shall not be reduced by any compensation earned or benefits provided (except
as set forth in paragraph 4.c. above) as the result of employment by another
employer after the Date of Termination.
6. Rights of Company Prior to the Change of Control. This
Agreement shall not effect the right of the Company to terminate the Executive,
or to reduce the salary or benefits of the Executive, with or without Good
Cause, prior to any Change of Control; provided, however, any termination or
reduction in salary or benefits which takes place after discussions have
commenced which result in a Change of Control shall be presumed to be a
violation of this Agreement which entitled the Executive to the benefits
hereof, absent clear and convincing evidence to the contrary.
7. Successors; Binding Agreement.
a. 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, to expressly assume and
agree to perform this Agreement. 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 he would be entitled to
hereunder if he terminated his employment for Good Reason. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which executes and
delivers the agreement provided for in this paragraph 7 or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation
of law.
b. This Agreement and all rights of the Executive
hereunder 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 him hereunder if he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's devisee,
legatee, or other designee or, if there be no such designee, to the Executive's
estate.
4
8. Notice. For the purposes of this Agreement, notices, demands
and other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States registered mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
Linda G. Aguilar
Box 195
Ansted, WV 25812
If to the Company:
The Merchants National Bank
4th Avenue & Washington St.
P. O. Box 1109
Montgomery, WV 25136
Attn: George F. Davis
or such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
9. Miscellaneous. 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 another executive officer
of the Company as may be specifically designated by the Board. No waiver by
either party hereto at any time of any breach by the other 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 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. The validity, interpretations,
construction and performance of this Agreement shall be governed by the laws
of the State of West Virginia.
10. Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
11. 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.
5
12. Legal Fees. Company shall pay all reasonable legal fees and
expenses incurred by Executive in enforcing any right or benefit provided by
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed as of the day and year first above written.
FIRST MERCHANTS BANCORP, INC.
By:/s/ George F. Davis
------------------------------
Its: President
---------------------------
/s/ Linda G. Aguilar
--------------------------------
Linda G. Aguilar, Executive
6
CHANGE OF CONTROL AGREEMENT
---------------------------
THIS AGREEMENT made as of March 1, 1995, by and between First
Merchants Bancorp, Inc., a West Virginia company (the "Company"), and George
F. Davis, an executive officer of the Company (the "Executive").
WHEREAS, the Executive is currently employed by the Company and
The Merchants National Bank, its wholly-owned subsidiary; and
WHEREAS, changes in the banking industry have occurred such that
changes in the ownership and management of the Company could occur; and
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that the Executive's contribution to the growth and success of the
Company has been substantial; and
WHEREAS, the Company believes it is in the best interest of the
Company to grant the Executive a level of security to preserve key management
and to assure fair consideration of any affiliation opportunities that may
arise.
NOW THEREFORE, in consideration of the promises and the respective
covenants and agreements of the parties herein contained, the Company and
Executive contract and agree as follows:
1. Definitions. The following definitions shall apply to
designated phrases used in this Agreement.
a. "Change of Control" means (i) a change of ownership of
the Company which would have to be reported to the Securities and Exchange
Commission if the Company was a company registered under Section 12(g) of the
Securities and Exchange Act of 1934 (the "Exchange Act") as a change of
control, including but not limited to the acquisition by any "person" (as such
term is used in Sections 13(d) and 14(d) of Exchange Act) of direct or indirect
"beneficial ownership" (as defined by Rule 13d-3 under the Exchange Act) of
twenty-five percent (25%) or more of the combined voting power of the Company's
then outstanding securities; or (ii) the failure during any period of two (2)
consecutive years of individuals who at the beginning of such period constitute
the Board for any reason to constitute at least a majority thereof, unless the
election of each director who was not a director at the beginning of such
period has been approved in advance by directors representing at least two-
thirds (2/3) of the directors at the beginning of the period; or (iii) the
2consummation of a "Business Combination" as defined in the Company's Articles
of Incorporation.
1
b. "Base Salary" means the average of the Executive's full
earnings reported on IRS Form W-2 for the two full year periods immediately
prior to the date of the consummation of the Change of Control or for the two
full year period immediately preceding the Date of Termination, whichever is
greater.
c. "Good Cause" includes (i) termination for continued
poor work performance after written notice of and reasonable opportunity to
correct deficiencies; (ii) termination for behavior outside or on the job which
affects the ability of management of the Company or co-workers to perform their
jobs and which is not corrected after reasonable written warning; (iii)
termination for failure to devote reasonable time to the job which is not
corrected after reasonable warning; and (iv) any other significant deficiency
in performance by the Executive which is not corrected after reasonable
warning.
d. "Disability" means total and permanent disability as
defined by Company's (or its successor's) Long-Term Disability Plan.
e. "Retirement" means termination of employment by the
executive in accordance with Company's (or its successor's) retirement plan,
including early retirement, generally applicable to its salaried employees.
f. "Good Reason" means: (i) a Change of Control in the
Company (as defined above) and: (a) a decrease in the total amount of the
Executive's base salary below its level in effect on the date of consummation
of the Change of Control, without the Executive's prior written consent; or (b)
a material reduction in the importance of the Executive's job responsibilities
without the Executive's prior written consent; or (c) a geographical relocation
of the Executive to an office more than 30 miles from the Executive's business
location or residence at the time of the Change of Control without the
Executive's prior written consent; (ii) failure of Company to obtain assumption
of this Agreement by its successor; or (iii) any purported termination of the
Executive's employment which is not effected pursuant to a Notice of
Termination required in paragraph 2.
g. "Wrongful Termination" means termination of the
Executive's employment by the Company or it affiliates for any reason other
than Good Cause or the death, Disability or Retirement of Executive prior to
the expiration of thirty-six (36) months after consummation of the Change of
Control.
2. Termination for Good Reason or For Cause; Notice of
Termination. The Executive may terminate his employment with the Company or
its affiliates for Good Reason. In the event of a Change of Control, the
Company may terminate Executive's employment only for Good Cause within thirty-
six (36) months after consummation of Change in Control. Any termination of
the Executive's employment by the Company or by the Executive shall be
2
communicated by written Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement relied
upon, which shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for the termination of the Executive's employment
under the provision so indicated, and which shall further specify an effective
date of termination. For purposes of termination under this paragraph, Date
of Termination shall mean the date on which Notice of Termination is to be
effective.
3. Resignation of Executive. Executive may resign for any reason,
after a Change in Control, by giving thirty (30) days' prior written notice of
his resignation. In the event of the termination of Executive due to his
resignation (for reasons other than Good Reason), then Executive shall only be
entitled to compensation through his last day of employment.
4. Compensation of Executive Upon Termination for Good Reason or
Wrongful Termination.
a. Except as hereinafter provided, if the Executive
terminates his employment with the Company for Good Reason or the Company
terminates the Executive's employment in a manner constituting Wrongful
Termination, the Company hereby agrees to pay the Executive a lump sum cash
payment equal to the Executive's Base Salary, on a monthly basis, multiplied
by the number of months between the Date of Termination and the date that is
thirty-six (36) months after the date of consummation of the Change of Control.
Executive shall also have the use of an automobile owned and maintained by the
Company for the period between the Date of Termination and the date that is
thirty-six (36) months after the date of the consummation of the Change of
Control.
b. For the year in which termination occurs, the Executive
will be entitled to receive his reasonable share of the Company's cash bonuses,
if any, allocated in accordance with existing principles and authorized by the
Board of Directors. The amount of the Executive's cash incentive award shall
not be reduced due to the Executive not being actively employed for the full
year.
c. The Executive will continue to participate, without
discrimination, for the number of months between the Date of Termination and
the date that is thirty-six (36) months after the date of the consummation of
the Change of Control in benefit plans (such as retirement, disability and
medical insurance) maintained after any Change of Control for employees, in
general, of the Company, or any successor organization, provided the
Executive's continued participation is possible under the general terms and
conditions of such plans. In the event the Executive's participation in any
such plan is barred, the Company shall arrange to provide the Executive with
benefits substantially similar to those which the Executive would have been
entitled had his participation not been barred. However, in no event will the
3
Executive receive from the Company the employee benefits contemplated by this
section if the Executive receives comparable benefits from any other source.
5. Other Employment. The Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment. The amount of any payment provided for in this Agreement
shall not be reduced by any compensation earned or benefits provided (except
as set forth in paragraph 4.c. above) as the result of employment by another
employer after the Date of Termination.
6. Rights of Company Prior to the Change of Control. This
Agreement shall not effect the right of the Company to terminate the Executive,
or to reduce the salary or benefits of the Executive, with or without Good
Cause, prior to any Change of Control; provided, however, any termination or
reduction in salary or benefits which takes place after discussions have
commenced which result in a Change of Control shall be presumed to be a
violation of this Agreement which entitled the Executive to the benefits
hereof, absent clear and convincing evidence to the contrary.
7. Successors; Binding Agreement.
a. 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, to expressly assume and
agree to perform this Agreement. 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 he would be entitled to
hereunder if he terminated his employment for Good Reason. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which executes and
delivers the agreement provided for in this paragraph 7 or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation
of law.
b. This Agreement and all rights of the Executive hereunder
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 him hereunder if he had continued to live,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the Executive's devisee, legatee, or other
designee or, if there be no such designee, to the Executive's estate.
4
8. Notice. For the purposes of this Agreement, notices, demands
and other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States registered mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
George F. Davis
Box 325
Charlton Heights, WV 25040
If to the Company:
The Merchants National Bank
4th Avenue & Washington St.
P. O. Box 1109
Montgomery, WV 25136
Attn: Linda G. Aguilar
or such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
9. Miscellaneous. 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 another executive officer
of the Company as may be specifically designated by the Board. No waiver by
either party hereto at any time of any breach by the other 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 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. The validity, interpretations,
construction and performance of this Agreement shall be governed by the laws
of the State of West Virginia.
10. Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
11. 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.
5
12. Legal Fees. Company shall pay all reasonable legal fees and
expenses incurred by Executive in enforcing any right or benefit provided by
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed as of the day and year first above written.
FIRST MERCHANTS BANCORP, INC.
By:/s/ Linda G. Aguilar
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Its: Secretary
-------------------------
/s/ George F. Davis
--------------------------------
George F. Davis, Executive
6
