CHANGE OF CONTROL AGREEMENT
THIS CHANGE OF CONTROL
AGREEMENT (the
"Agreement") is made as of the 1st day of January, 2005, between
OLD NATIONAL BANCORP , an Indiana corporation and registered
financial holding company under the Bank Holding Company Act of
1956, as amended (the "Company"), and EXECUTIVE,
TITLE of the Company (the "Executive").
WITNESSETH:
WHEREAS
, the Company desires to assure
continuity of its management, to enable its executives to devote
their full attention to management responsibilities and, when faced
with a possible Change in Control (as hereinafter defined), to help
the Board of Directors of the Company assess options and advise as
to the best interest of the Company and its shareholders without
being influenced by the uncertainties of their own situations, and
to demonstrate to executives the interests of the Company in their
well-being and fair treatment in the event of a Change in
Control;
WHEREAS
, to that end, the Company desires
to assure Executive that he will receive certain benefits in the
case of the Executive's termination or a significant change in the
terms of the Executive's employment as a result of a Change in
Control; and
WHEREAS
, in order to induce the Executive
to remain in the employ of the Company, particularly in the event
of a threat of or the occurrence of a Change in Control, the
Company desires to enter into this Agreement with the
Executive.
NOW, THEREFORE
, in consideration of the premises
contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Executive and the Company agree as follows:
Section 1
.
Term
The term of this Agreement shall
begin on January 1, 2005, and shall continue until terminated as
hereinafter provided.
Section 2
. Benefits
Upon a Change in Control
(a) The
Company shall provide the Executive with the benefits set forth in
Section 2(c) hereof upon any termination of the Executive's
employment by the Company during the two (2) year period following
the first Change in Control which occurs during the term of this
Agreement for any reason except the following:
(i)
Termination of the Executive for Cause (as hereinafter defined) by
the Company. For purposes of the Agreement, "Cause" shall be
defined as (A) action by the Executive involving willful misconduct
or gross negligence materially injurious to the Company, (B) the
requirement or direction of a federal or state regulatory agency
having jurisdiction over the Company, (C) conviction of the
Executive of the commission of any criminal offense involving
dishonesty or breach of trust, (D) any material violation of any
portions of the Company's Code of Ethics which continues after
written notice to the Executive that the continuation of such
conduct will result in the termination of the Executive's
employment with the Company for Cause, or (E) any intentional
breach by the Executive of a material term, condition or covenant
of this Agreement. Notwithstanding the foregoing, the Executive
shall not be deemed to have been terminated for Cause unless there
shall have been delivered to the Executive a copy of a notice of
termination from the Company accompanied by a resolution duly
adopted by a majority of the Directors then in office, finding that
in the good faith opinion of the Directors, the termination of the
Executive's employment is for Cause, specifying the particulars
thereof in detail, and granting an opportunity, following a
reasonable period of time, for the Executive, together with the
Executive's counsel, to be heard before the Board of
Directors;
(ii)
Disability of the Executive, as determined under the policies and
procedures of the Company as in effect immediately prior to the
Change in Control. Termination pursuant to this Section 2(a)(ii)
shall not affect any rights which the Executive may have under any
disability policy or program of the Company;
(iii)
Voluntary retirement of the Executive in accordance with policies
and procedures of the Company in effect immediately prior to the
Change in Control; or
(iv) Death
of the Executive.
(b)
Except in connection with the termination of the Executive's
employment for reasons set forth in Section 2(a)(i)-(iv) hereof,
the Company shall also provide the Executive with the benefits set
forth in Section 2(c) hereof if a Change in Control occurs during
the term of this Agreement and the Executive terminates the
Executive's employment during the two (2) year period following the
Change in Control after the happening of one or more of the
following events:
(i)
Without the express written consent of the Executive, the
assignment of the Executive to any duties materially inconsistent
with the Executive's positions, duties, responsibilities (including
reporting responsibilities), title, or status with the Company
immediately prior to the Change in Control or a substantial
reduction of the Executive's duties or responsibilities, or any
removal of the Executive from, or any failure to reelect the
Executive to, any positions held by the Executive prior to the
Change in Control;
(ii)
A reduction by the Company in the compensation or benefits of the
Executive in effect immediately prior to the Change in Control, or
any failure to include the Executive in any incentive, bonus or
other employee welfare or benefit plans as may be offered by the
Company from time to time to other similarly situated executives of
the Company;
(iii)
A
requirement the Executive be based at any location other than
within a fifty (50) mile radius of the location at which the
Executive was based immediately prior to the Change in Control,
except for required travel pertaining to the Company's business in
accordance with the Company's management practices in effect prior
to a Change in Control or with the prior written consent of the
Executive;
(iv)
Any
purported termination of the Executive's employment for Cause as
defined in Section 2(a)(i) hereof or for disability without
grounds;
(v)
Any failure of the Company to obtain the assumption of the
obligation to perform this Agreement by any successor as
contemplated in Section 7(b) hereof; or
(vi)
Any
material breach by the Company of any of the provisions of this
Agreement or any other material written agreement between the
Company and the Executive or any failure by the Company to carry
out any of its obligations hereunder or thereunder.
(c)
Subject to Sections 2(a) and 2(b) hereof, within thirty (30) days
of the date of termination under Section 2(a) or 2(b) hereof, the
Company shall pay to the Executive the amounts provided in
subsections (i) and (ii) below, less any withholding therefrom
under applicable federal, state, or local income tax, other tax, or
social security laws or similar statutes.
(i)
A lump sum single payment in cash or cash equivalent funds in an
amount equal to the aggregate of the following:
(A)
The
Executive's base salary, at the then-effective annual rate, through
the last day of employment of the Executive, to the extent not
theretofore paid, plus any amounts due to the Executive under any
insurance, health, retirement, profit sharing, or other employee
welfare or benefit plan or the accrued vacation program of the
Company due to the Executive through the last day of employment of
the Executive; plus
(B)
a
lump sum single cash payment equal to 2.999 times (
2 times for Daryl D. Moore) the Base Amount (as
defined in Section 280G of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder).
(ii)
In the event the value of the severance benefit, as determined in
Section 280G of the Internal Revenue Code of 1986, as amended,
which is to be paid to the Executive pursuant to Section 2(a) or
2(b) hereof constitutes a payment greater than or equal to 110% of
an "excess parachute payment," as such term is defined in Section
280G(b)(1) of the Internal Revenue Code of 1986, as amended, the
Company shall pay to the Executive a lump sum single payment in
cash or cash equivalent funds in an amount equal to (x) the
aggregate dollar amount of excise taxes and any surtax the
Executive becomes obligated to pay on such "excess parachute
payments", divided by (y) one (1) minus the sum of the
maximum marginal federal income tax rate (for married individuals
filing jointly) plus the maximum marginal state income tax rate
plus the maximum marginal local income tax rate plus the excise tax
rate applicable for the year in which the Executive receives the
payment provided under this Section 2(c)(ii), it being the intent
of this Section, that if the Executive incurs any such excise tax
or surtax with respect to the payments, such payments to him shall
be grossed up in full for such excise tax and surtax, so that the
amount he retains, after paying all applicable federal income,
surtaxes and excise taxes due with respect to payments to him under
this Section is the same as the amount he would have retained if
Section 280G of the Code and any applicable surtax had not been
applicable.
Provided, however, if such severance benefit to
be paid to the Executive is greater than 100% but less than 110% of
the "excess parachute payment," as such term is defined in Section
280G(b)(1) of the Internal Revenue Code of 1986, as amended, the
value of the severance benefit payable to the Executive will be one
(1) dollar ($1.00) less than three (3) times the Base Amount (as
defined in Section 280G of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder)
(d)
"Change in Control" means the first occurrence of any of the
following events:
i.
the acquisition by any
person, entity or "group" (as defined in Section 13(d) of the
A
