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Exhibit 10.1
CENTENNIAL BANK HOLDINGS, INC.
CHANGE IN CONTROL SEVERANCE PLAN
1.
Purpose . The purpose of the
Centennial Bank Holding, Inc. Change in Control Severance Plan (the
" Plan ") is to recruit and foster the continuous
employment of key management personnel of the Company and to
reinforce and encourage their continued attention and dedication to
their duties in the event of any threat or occurrence of a Change
in Control (as defined in Section 2), although no such change is
now apparent or contemplated.
2.
Definitions . As used in this
Plan, the following terms shall have the respective meanings set
forth below:
(a)
" Annual Performance Bonus " means the
annual bonus awarded under the Company’s Executive Cash
Incentive Plan or Annual Incentive Plan (or, in each case, any
predecessor, substitute or successor plan designated as such by the
Board), as in effect from time to time.
(b)
" Base Salary " means the
Participant’s annual base salary in effect immediately before
the occurrence of the circumstance giving rise to the
Participant’s termination, or, if greater, the
Participant’s annual base salary in effect immediately before
the Change in Control.
(c)
" Board " means the Board of Directors
of the Company and, after a Change in Control, the "board of
directors" of the surviving company.
(d)
" Bonus Amount " means the average of
a Participant’s 2 Annual Performance Bonuses for the 2 fiscal
years ending before the Participant’s Date of Termination;
provided that (i) if a Participant has been an employee of
the Company through the end of only one fiscal year before the
Participant’s Date of Termination and was eligible for an
Annual Performance Bonus for such fiscal year (including on a pro
rata basis), the Bonus Amount shall be the average of (x) the
Annual Performance Bonus for the fiscal year ending before the Date
of Termination (if such bonus was made on a pro rata basis, such
bonus shall be annualized for the purpose of calculating the Bonus
Amount) and (y) the Participant’s target Annual Performance
Bonus, expressed as a percentage of base salary in the event the
relevant goals are 100% achieved, for the fiscal year in which the
Date of Termination occurs and (ii) if a Participant (x) has
been an employee of the Company through the end of only one fiscal
year before the Participant’s Date of Termination and was not
eligible for an Annual Performance Bonus for such fiscal year or
(y) has not been an employee of the Company through the end of
one fiscal year with the Company before the Participant’s
Date of Termination, the Bonus Amount shall be the
Participant’s target Annual Performance Bonus, expressed as a
percentage of base salary in the event the relevant goals are 100%
achieved, for the year in which the Date of Termination
occurs.
(e)
" Cause " means (i) an intentional and
continued failure of a Participant to perform duties with the
Company and its subsidiaries (for the avoidance of doubt, excluding
any failure due to physical or mental illness) and such failure
continues after a written demand for substantial performance is
delivered by the Company to the Participant that specifically
identifies the manner in which the Participant has failed to
perform; (ii) an intentional act of illegal conduct or gross
misconduct that is demonstrably injurious (other than to a de
minimis extent) to the business, reputation or regulatory
relationships of the Company; (iii) an intentional act of fraud,
embezzlement or theft in connection with the business of the
Company; (iv) intentional disclosure of confidential information or
trade secrets of the Company or confidential information relating
to customers of the Company or its parent, a subsidiary or
affiliate; (v) an act constituting a felony or a misdemeanor
involving moral turpitude for which the Participant is convicted by
any federal, state or local authority, or to which the Participant
enters a plea of guilty or nolo contendere; (vi) an act or omission
that causes the Participant to be disqualified or barred by any
governmental or self-regulatory authority from serving in his or
her employment capacity or losing any governmental or
self-regulatory license that is reasonably necessary for the
Participant to perform his or her responsibilities to the Company;
or (vii) intentional breach of corporate fiduciary duty involving
personal profit. For the purposes of this Plan, no act, or
failure to act, on the part of the Participant shall be deemed
"intentional" unless done, or omitted to be done, by the
Participant not in good faith and without reasonable belief that
his or her action or omission was in the best interest of the
Company. Notwithstanding the foregoing, the Participant shall
not be deemed to have been terminated for Cause hereunder unless
and until there shall have been delivered to the Participant a copy
of a resolution duly adopted by the affirmative vote of not less
than two-thirds of the members of the Board then in office at a
meeting of the Board called and held for such purpose (after
reasonable notice to the Participant and an opportunity for the
Participant, together with his or her counsel to be heard before
the Board), finding that, in the good faith opinion of the Board,
the Participant had committed an act set forth above in clauses (i)
through (vii) and specifying the particulars thereof in
detail. Nothing herein shall limit the right of the
Participant or his or her beneficiaries to contest the validity or
propriety of any such determination.
(f)
" Change in Control " means the
occurrence of any one of the following events:
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(i)
any "Person" or "Group" (as such terms are defined
in Section 13(d) of the Securities Exchange Act of 1934 (the "
Exchange Act ") and the rules and regulations
promulgated thereunder) is or becomes the "Beneficial Owner"
(within the meaning of Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company, or of any entity
resulting from a merger or consolidation involving the Company,
representing more than 50% of the combined voting power of the then
outstanding securities of the Company or such entity;
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(ii)
the individuals who, as of the date hereof, are
members of the Board (the " Existing Directors "),
cease, for any reason, to constitute more than 50% of the number of
authorized directors of the Company as determined in the manner
prescribed in the Company’s Certificate of Incorporation and
Bylaws; provided that if the election, or nomination for
election, by the Company’s stockholders of any new director
was approved by a vote of at least 50% of the Existing Directors,
such a new director shall be considered an Existing Director;
provided further , that no individual shall be
considered an Existing Director if such individual initially
assumed office as a result of either an actual or threatened
election contest (" Election Contest ") or other
actual or threatened solicitation of proxies by or on behalf of
anyone other than the Board (a " Proxy Contest "),
including by reason of any agreement intended to avoid or settle
any Election Contest or Proxy Contest; or
(iii)
the consummation of a plan of reorganization, merger
or consolidation involving the Company or the sale of all or
substantially all of the assets or deposits of the Company, except
for a reorganization, merger, consolidation or sale where
(A) the stockholders of the Company immediately before such
reorganization, merger, consolidation or sale own directly or
indirectly at least 55% of the combined voting power of the
outstanding voting securities of the Company resulting from such
reorganization, merger or consolidation or purchasing the assets or
deposits (the " Surviving Company ") in substantially
the same proportion as their ownership of voting securities of the
Company immediately before such reorganization, merger,
consolidation or sale, and (B) the Existing Directors
immediately before the execution of the agreement providing for
such reorganization, merger, consolidation or sale constitute at
least half of the members of the board of directors of the
Surviving Company, or of a company beneficially owning, directly or
indirectly, a majority of the voting securities of the Surviving
Company (a " Resulting Parent ").
If there is a reorganization, merger, consolidation or sale of
the Company that does not result in a Change in Control pursuant to
clause (iii), references to "the Company" in this definition will
be deemed to have been replaced by references to the Resulting
Parent (or if there is no Resulting Parent, the Surviving
Company).
(g)
" Code " means the Internal Revenue
Code of 1986, as amended.
(h)
" Company " means Centennial Bank
Holdings, Inc. and the tax-controlled group of which it is a
member.
(i)
" Date of Termination " means (i) if a
Participant’s employment is terminated for Disability, 30
days after notice of termination is given by the Company (provided
that the Participant shall not have returned to the full-time
performance of his or her duties during such 30 day period); (ii)
if a Participant’s employment is terminated
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by the Participant, the date specified in the
notice of termination, which shall not be less than 30 days after
notice of termination is given (unless the Company selects an
earlier Date of Termination); or (iii) if a Participant’s
employment is terminated for any other reason, the date specified
in the notice of termination.
(j)
" Disability " shall occur if a
Participant is incapacitated and absent from his or her duties on a
full-time basis for 4 consecutive months or for at least 180 days
(which need not be consecutive) during any 12 month
period.
(k)
" Good Reason " means, without the
Participant’s express written consent, the occurrence of any
of the following events after a Change in Control:
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(i)
the assignment to the Participant of any duties
inconsistent with his or her title, position, duties,
responsibilities and status with the Company as in effect
immediately before the Change in Control, or any other action by
the Company that results in a diminution of the Participant’s
title, duties, position or reporting relationships, or any removal
of the Participant from, or any failures to re-elect the
Participant to, any of such positions, except in connection with
the termination of his or her employment for Cause or as a result
of his or her Disability or death, or termination by the
Participant other than for Good Reason; provided that
insubstantial or inadvertent actions not taken in bad faith which
are remedied by the Company promptly after receipt of notice
thereof given by the Participant shall not constitute Good
Reason;
(ii)
any reduction in the Participant’s base
salary, or a significant reduction in the aggregate employee
benefits provided to the Participant, unless such reduction applies
equally to other similarly situated employees of the Company, in
each case, which is not remedied within 10 calendar days after
receipt by the Company of written notice from the Participant of
such change or reduction, as the case may be;
(iii)
the Company requiring the Participant to be based
more than 30 miles from the location of his or her place of
employment immediately before the Change in Control, except for
normal business travel in connection with his or her duties with
the Company; or
(iv)
the failure by the Company to 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 to expressly assume this Plan and all
obligation hereunder.
An isolated, insubstantial and inadvertent action taken in good
faith implicating clauses (i), (ii) or (iii) of this definition
which is fully corrected by the Company before the Date of
Termination specified in the notice of termination shall not
constitute Good Reason. A Participant must provide a notice
of termination for Good
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Reason within 90 days following the
Participant’s knowledge of existence of the event
constituting Good Reason or such event shall not constitute Good
Reason under this Plan.
(l)
" Participant " means each of the
employees of the Company who are selected by the Board for coverage
by this Plan and identified on Schedule A .
(m)
" Qualifying Termination " means a
termination of the Participant’s employment (i) by the
Company other than for Cause or (ii) by the Participant for Good
Reason. Termination of the Participant’s employment
with the Company on account of death, Disability or retirement (in
accordance with the normal retirement policy of the Company as in
effect before the Change in Control) shall not be treated as a
Qualifying Termination. Notwithstanding the preceding
sentence, the death or Disability of the Participant after notice
of termination for Good Reason or without Cause has been validly
provided shall be deemed to be a Qualifying Termination.
(n)
" Severance Multiple " means, for
each Participant, a number determined by the Board in its sole
discretion and noted on Schedule A .
(o)
" Termination Period " means the
period of time beginning with a Change in Control and ending 2
years following such Change in Control. Notwithstanding
anything in this Plan to the contrary, if a Participant’s
employment with the Company is terminated before the occurrence of
a Change in Control, the Participant’s employment will be
deemed to have been terminated by the Company without Cause on the
day after the occurrence of the Change in Control if (i) a Change
in Control actually occurs, (ii) during the Change in Control
Period (as defined in Section 16(d)) ending on such Change in
Control, the Participant’s employment is terminated by the
Company other than for Cause or by the Participant for Good Reason
or (iii) the Participant reasonably demonstrates that the Company
terminated the Participant’s employment, or gave the
Participant Good Reason, at the request of a Person (other than the
Company) who has indicated an intention or taken steps reasonably
calculated to effect a Change in Control, or otherwise in
connection with, or in anticipation of, the Change in
Control. For purposes of determining the timing of
payments and benefits to the Participant under Section 4, the
date of the actual Change in Control shall be treated as the
Participant’s Date of Termination under Section 2(i),
and for purposes of determining the amount of payments and
benefits owed to the Participant under Section 4, the date the
Participant’s employment is actually terminated shall be
treated as the Participant’s Date of Termination under
Section 2(i).
3.
Eligibility . The Board shall
determine in its sole discretion which employees of the Company
shall be Participants. Once an employee becomes a
Participant, the employee shall remain a Participant until the
earlier of (1) the expiration of the Participant’s
"participation period" noted on Schedule A and (2) the
Board’s removal of the employee as a Participant in this
Plan. The Board may remove an employee as a Participant in
this Plan at any time in its sole discretion except that a
Participant may not be removed as a Participant without his or her
prior written consent
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either (i) during a Change in Control Period or
Termination Period or (ii) unless the Company provides Participant
with at least 6 months prior notice of such removal. For the
avoidance of doubt, if a Participant is removed as a Participant in
this Plan pursuant to clause (ii) in the immediately preceding
sentence and during such 6 month notice period a Change in Control
Period is triggered pursuant to which an actual Change in Control
occurs, the Participant shall not be removed or be deemed to have
been removed from this Plan.
4.
Payments Upon Termination of
Employment . If during the Termination Period the
employment of the Participant is terminated pursuant to a
Qualifying Termination, then, subject to the Participant’s
execution of a Separation Agreement and Release in the form
attached to this Plan as Schedule C (the " Separation
Agreement and Release "), the Company shall provide to the
Participant:
(a)
his or her full base salary through the Date of
Termination at the rate in effect at the time notice of termination
is given, plus all other amounts to which he or she is entitled
under any compensation plan of the Company, as the case may be, in
effect immediately before the Change in Control, at the time such
payments are due;
(b)
within 8 days following the Date of Termination (or,
if later, the execution by the Participant of the Separation
Agreement and Release), but in no event before the date on which
such Separation Agreement and Release becomes effective (including
the expiration of any applicable revocation period), a lump sum
cash payment equal to the result of multiplying (i) the
Participant’s current target Annual Performance Bonus,
expressed as a percentage of base salary in the event the relevant
goals are 100% achieved, for the year in which the Date of
Termination occurs by (ii) a fraction, (A) the numerator of which
is the number of days elapsed from the beginning of the relevant
period for which performance is measured in determining such Annual
Performance Bonus until the Date of Termination and (B) the
denominator of which is the number of days of such relevant
period;
(c)
within 8 days following the Date of Termination (or,
if later, the execution by the Participant of the Separation
Agreement and Release), but in no event before the date on which
such Separation Agreement and Release becomes effective (including
the expiration of any applicable revocation period), a lump sum
cash payment equal to the result of multiplying (i) the sum of
(A) the Participant’s Base Salary, plus (B) the
Participant’s Bonus Amount by (ii) the
Participant’s Severance Multiple;
(d)
for the number of years from the Date of Termination
equal to the Severance Multiple, continued provision of medical,
dental, and vision benefits to the Participant, his or her spouse
and his or her eligible dependants on the same basis as such
benefits are then currently provided to such Participant (the "
Medical Benefits "); provided that such
benefits shall be secondary to any other coverage obtained by the
Participant; provided further that if the
Company’s welfare plans do not permit such
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coverage, the Company will provide the
Participant the Medical Benefits with the same tax effect;
and
(e)
if the Participant is subject to any excise tax
imposed under Section 4999 of the Code (the " Excise
Tax ") by reason of a Change in Control, then the Company
shall pay to the Participant an amount as specified in Schedule
B .
Except as otherwise expressly provided pursuant to this Plan,
this Plan shall be construed and administered in a manner which
avoids duplication of compensation and benefits which may be
provided under any other plan, program, policy, or other
arrangement or individual contract. In the event a
Participant is covered by any other plan, program, policy,
individually negotiated agreement or other arrangement, in effect
as of his or her Date of Termination, that may duplicate the
payments and benefits provided for in this Section 4, the Board is
specifically empowered to reduce or eliminate the duplicative
benefits provided for under the Plan.
This Plan does not abrogate any of the usual entitlements which
a Participant has or will have, first, while a regular employee,
and subsequently, after termination, and thus a Participant shall
be entitled to receive all benefits payable to him or her under
each and every qualified plan, welfare plan and any other plan or
program relating to benefits and deriving from his or her
employment with the Company, but solely in accordance with the
terms and provisions thereof.
5.
Withholding Taxes . The
Company may withhold from all payments due to the Participant (or
his or her beneficiary or estate) hereunder all taxes which, by
applicable federal, state, local or other law, the Company is
required to withhold therefrom.
6.
Reimbursement of Expenses .
If a Change in Control actually occurs and any contest or dispute
shall arise under this Plan involving termination of a
Participant’s employment with the Company or involving the
failure or refusal of the Company to perform fully in accordance
with the terms hereof, the Company shall reimburse the Participant
on a current basis for all reasonable legal fees and related
expenses, if any, incurred by the Participant in connection with
such contest or dispute, provided that the Participant shall
be required to repay immediately any such amounts to the Company to
the extent that a court or an arbitration panel issues a final and
non-appealable order setting forth the determination that the
position taken by the Participant was frivolous or advanced by the
Participant in bad faith.
7.
Scope of Plan . Nothing in
this Plan shall be deemed to entitle the Participant to continued
employment with the Company, and if a Participant’s
employment with the Company shall terminate before a Change in
Control, the Participant shall have no further rights under this
Plan (except as specifically provided herein); provided that
any termination of a Participant’s employment during the
Termination Period shall be subject to all of the provisions of
this Plan.
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8.
Certain Additional Agreements under Section
409A . In the event the payment of any amounts
under this Plan would be treated as non-qualified deferred
compensation under Section 409A of the Code, such payment will be
delayed for 6 months after the Date of Termination if required in
order to avoid additional tax under Section 409A of the Code.
If a Participant dies within 6 months following such termination of
employment, any such delayed payments shall not be further delayed,
and shall be i
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