CHANGE IN CONTROL BENEFITS
AGREEMENT
This Change in Control Benefits Agreement
(“Agreement”) is made and entered into as of October
15, 2008, by and between Integra Bank Corporation, an Indiana
corporation (hereinafter referred to as the “Company”),
and Michael B. Carroll (hereinafter referred to as
“Employee”).
WHEREAS,
Employee is a senior officer of the Company; and
WHEREAS, the Company believes that Employee will
make valuable contributions to the productivity and profitability
of the Company; and
WHEREAS, the Company desires to encourage
Employee to continue to make such contributions and not to seek or
accept employment elsewhere; and
WHEREAS, the Company, therefore, desires to
assure Employee of certain benefits in case of any termination or
significant redefinition of the terms of his employment with the
Company subsequent to any Change in Control of the
Company;
NOW, THEREFORE, in consideration of the
foregoing and of the mutual covenants herein contained and the
mutual benefits herein provided, the Company and Employee hereby
agree as follows:
1. The term of this Agreement shall be from
the date hereof through December 31, 2009; provided, however,
that such term shall be automatically extended for an additional
year each year thereafter unless either party hereto gives written
notice to the other party not to so extend prior to
November 30 of the year for which notice is given, in which
case no further automatic extension shall occur.
2. As used in
this Agreement, “Change in Control” of the Company
means:
(A) The acquisition, within a 12-month
period ending on the date of the most recent acquisition, by any
individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”) (a
“Person”) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act as in effect
from time to time) of thirty-five percent (35%) or more of the
combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of
directors; provided, however, that the following acquisitions shall
not constitute an acquisition of control: (i) any acquisition
by a Person who, immediately before the commencement of the
12-month period, already held beneficial ownership of thirty-five
percent (35%) or more of that combined voting power; (ii) any
acquisition directly from the Company (excluding an acquisition by
virtue of the exercise of a conversion privilege), (iii) any
acquisition by the Company, (iv) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the Company, or
(v) any acquisition by any corporation pursuant to a
reorganization, merger or consolidation, if, following such
reorganization, merger or consolidation, the conditions described
in clauses (i), (ii) and (iii) of subsection
(C) below are satisfied;
(B) The replacement of a majority of
members of the Board of Directors during any 12-month period, by
members whose appointment or election is not endorsed by a majority
of the members of the Board of Directors prior to the date of the
appointment or election;
(C) A reorganization, merger or
consolidation, in each case, unless, following such reorganization,
merger or consolidation, (i) more than sixty percent (60%) of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
outstanding Company common stock and outstanding Company voting
securities immediately prior to such reorganization, merger or
consolidation in substantially the same proportions as their
ownership, immediately prior to such reorganization, merger or
consolidation, of the outstanding Company stock and outstanding
Company voting securities, as the case may be, (ii) no Person
(excluding the Company, any employee benefit plan or related trust
of the Company or such corporation resulting from such
reorganization, merger or consolidation and any Person beneficially
owning, immediately prior to such reorganization, merger or
consolidation, directly or indirectly, twenty-five percent (25%) or
more of the outstanding Company common stock or outstanding voting
securities, as the case may be) beneficially owns, directly or
indirectly, twenty-five percent (25%) or more of, respectively, the
then outstanding shares of common stock of the corporation
resulting from such reorganization, merger or consolidation or the
combined voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election of
directors and (iii) at least a majority of the members of the
board of directors of the corporation resulting from such
reorganization, merger or consolidation were members of the
Incumbent Board at the time of the execution of the initial
agreement providing for such reorganization, merger or
consolidation;
(D) A
complete liquidation or dissolution of the Company; or
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(E) The sale or other disposition of all or
substantially all of the assets of the Company, other than any of
the following dispositions: (i) to a corporation with respect
to which following such sale or other disposition (x) more
than sixty percent (60%) of, respectively, the then outstanding
shares of common stock of such corporation and the combined voting
power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the outstanding Company common stock and
outstanding Company voting securities immediately prior to such
sale or other disposition in substantially the same proportion as
their ownership, immediately prior to such sale or other
disposition, of the outstanding Company common stock and
outstanding Company voting securities, as the case may be,
(y) no Person (excluding the Company and any employee benefit
plan or related trust of the Company or such corporation and any
Person beneficially owning, immediately prior to such sale or other
disposition, directly or indirectly, twenty-five percent (25%) or
more of the outstanding Company common stock or outstanding Company
voting securities, as the case may be) beneficially owns, directly
or indirectly, twenty-five percent (25%) or more of, respectively,
the then outstanding shares of common stock of such corporation and
the combined voting power of the then outstanding voting securities
of such corporation entitled to vote generally in the election of
directors and (z) at least a majority of the members of the
board of directors of such corporation were members of the
Incumbent Board at the time of the execution of the initial
agreement or action of the Board providing for such sale or other
disposition of assets of the Company; (ii) to a shareholder of
the Company in exchange for or with respect to its stock;
(iii) to a Person that owns, directly or indirectly, fifty
percent (50%) or more of the total value or voting power of all
outstanding stock of the Company; or (iv) to an entity, at
least fifty percent (50%) or more of the total value or voting
power of which is owned, directly or directly, by the Company or by
a Person described in clause (iii).
Despite any
other provision of this Section 2 to the contrary, an
occurrence shall not constitute a Change in Control if it does not
constitute a change in the ownership or effective control, or in
the ownership of a substantial portion of the assets of, the
Company within the meaning of Section 409A(a)(2)(A)(v) of the
Code and its interpretive regulations.
3. The Company shall provide Employee with
the benefits set forth in Section 6 of this Agreement upon any
termination of Employee’s employment by the Company within
twelve (12) months following a Change in Control for any
reason except the following:
(A) Termination by reason of
Employee’s death.
(B) Termination by reason of
Employee’s “disability.” For purposes hereof,
“disability” mean either (i) when Employee is
deemed disabled in accordance with the long-term disability
insurance policy or plan of the Company in effect at the time of
the illness or injury causing the disability or (ii) the
inability of Employee, because of injury, illness, disease or
bodily or mental infirmity, to perform the essential functions of
his or her job (with or without reasonable accommodation) for more
than one hundred twenty (120) days during any period of twelve
(12) consecutive months.
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(C) Termination upon Employee reaching his
or her normal retirement date, which for purposes of this Agreement
shall be deemed to be the end of the month during which Employee
reaches sixty-five (65) years of age.
(D) Termination for “cause.” As
used in this Agreement, the term “cause” mean the
occurrence of one or more of the following events:
(i) Employee’s conviction for a felony or of any crime
involving moral turpitude; (ii) Employee’s engaging in
any illegal conduct or willful misconduct in the performance of his
employment duties for the Company (or its affiliates);
(iii) Employee’s engaging in any fraudulent or dishonest
conduct in his dealings with, or on behalf of, the Company (or its
affiliates); (iv) Employee’s failure or refusal to
follow the lawful instructions of the Company, if such failure or
refusal continues for a period of five (5) calendar days after
the Company delivers to Employee a written notice stating the
instructions which Employee has failed or refused to follow;
(v) Employee’s breach of any of Employee’s
obligations under this Agreement; (vi) Employee’s gross
or habitual negligence in the performance of his employment duties
for the Company (or its affiliates); (vii) Employee’s
engaging in any conduct tending to bring the Company into public
disgrace or disrepute or to injure the reputation or goodwill of
the Company; (viii) Employee’s material violation of the
Company’s business ethics or conflict-of-interest policies,
as such policies currently exist or as they may be amended or
implemented during Employee’s employment with the Company;
(ix) Employee’s misuse of alcohol or illegal drugs which
interferes with the performance of Employee’s employment
duties for the Company or which compromises the reputation or
goodwill of the Company; (x) Employee’s intentional
violation of any applicable banking law or regulation in the
performance of Employee’s employment duties for the Company;
or (xi) Employee’s failure to abide by any employment
rules or policies applicable to the Company’s employees
generally that Company currently has or may adopt, amend or
implement from time to time during Employee’s employment with
the Company.
4. The Company shall also provide Employee
with the benefits set forth in Section 6 of this Agreement
upon any voluntary resignation of Employee if any one of the
following events occurs within twelve (12) months following a
Change in Control:
(A) Without Employee’s express
written consent, the assignment of Employee to any duties which are
fundamentally and significantly inconsistent with his duties with
the Company immediately prior to the Change in Control or a
fundamental and substantial reduction of his duties or
responsibilities from his duties or responsibilities immediately
prior to the Change in Control.
(B) A reduction by the Company in
Employee’s base salary from the level of such salary
immediately prior to the Change in Control.
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