1
EXHIBIT 10.12
CHANGE IN CONTROL AGREEMENT
This Change in Control Agreement is entered into , 19 , by
and between Sky Financial Group, Inc. ("Company") and , a resident
of , Ohio ("Employee").
ARTICLE I.
EMPLOYMENT
Section 1. Employment. Company shall employ Employee and Employee shall
accept employment with Company upon the terms and subject to the conditions set
forth in this Agreement.
Section 2. Duties and Services. Employee shall be employed in the
capacity of and shall have such other duties and responsibilities as are
designated by the Board of Directors from time to time consistent with
Employee's level of authority and responsibility with Company. Employee agrees
to perform designated duties and services and to devote Employee's full and
exclusive business time, skill, best efforts and attention (excluding vacations
and other leaves of absence) to promote the business of Company and to perform
faithfully to the fullest extent of Employee's ability all of Employee's duties
under this Agreement. Employee further agrees, upon any appointment or election
to the Board of Directors of Company, Company's parent, or any of Company's
affiliates, to accept such appointment or election and to devote Employee's best
efforts to perform any duties as director.
Section 3. Term. The term of this Agreement ("Employment") shall begin
on the date above and shall continue until the first anniversary of the
Agreement, unless sooner terminated pursuant to Article II, Section 1. This
Agreement shall be automatically renewed for additional one-year periods
following the original term, at the end of each subsequent one-year period, upon
the same terms and conditions.
Section 4. Place of Employment. Employee's initial place of employment
is . However, Company may require that Employee work at any other
place as Company may direct. If Employee is required to relocate, however,
Company shall pay Employee's reasonable moving expenses actually incurred in
accordance with Company policy.
Section 5. Compensation. Company shall pay to Employee as compensation
for services rendered during the Employment such salary, bonus, commission or
other remuneration as the Board of Directors of Company may determine from time
to time.
Section 6. Adherence to Standards. Employee shall comply with the
policies, standards, rules and regulations of Company from time to time
established including, but not limited to, rules established by Company covering
hours of work, vacation periods, sick leave and other terms and conditions of
the Employment.
2
Section 7. Expense Reimbursement. Company shall reimburse Employee for
authorized travel and other reasonable expenses actually incurred in promoting,
fostering, furthering and perpetuating the business of Company upon receipt and
approval by Company of expense vouchers prepared by Employee and submitted to
Company promptly after such expenses are incurred.
Section 8. Benefits. Employee shall be included, to the extent
eligible, in any and all benefit plans and policies which apply to Company's
salaried employees generally.
Section 9. Authority. Except for the authority granted to the officers
of Company by Company's Code of Regulations, as amended from time to time,
Employee has no authority to commit or obligate Company, financially or
otherwise, without Company's prior written approval.
Section 10. Other Employment. Employee shall refrain from acting in any
other employment or consulting capacity without the prior written consent of
Company. It is Company's intention that Employee devote all of Employee's work
effort towards the fulfillment of Employee's obligations under this Agreement.
Employee may in any event hold securities in any publicly held corporation and
may serve as a member of the board of directors of any business which is not in
competition with Company.
ARTICLE II.
TERMINATION OF EMPLOYMENT
Section 1. Termination for Cause. If Employee is terminated for
"cause", then Company's obligation under this Agreement to make any further
payments to Employee or to continue any benefits shall cease. "Cause" shall
mean:
A. Misappropriating any funds or property of Company;
B. Being convicted of a felony;
C. Mismanaging the assets of Company;
D. Inability to fulfill the duties of the position for a period
longer than three consecutive months;
E. Gross incompetence, gross insubordination, willful
misconduct, dishonesty, or gross neglect in the performance
of the duties of the position;
F. Material breach of this Agreement;
G. Being under the habitual influence of alcohol or other drugs;
or
H. (i). If Employee is suspended from office or temporarily
prohibited from participating in the conduct of Company's
affairs by any regulatory agency, Company's obligations under
this Agreement shall be suspended upon suspension or
prohibition. Once the matter is resolved and Employee is
permitted to return to his or her position, the Company, in
its sole discretion, may reinstate, in whole or in part, any
of the obligations.
3
(ii). If Employee is removed from office and/or permanently
prohibited from participating in the conduct of Company's
affairs by any regulatory agency, Company's obligations under
this Agreement shall terminate, but vested rights of the
parties shall not be affected.
Section 2. Involuntary Termination or Diminution of Status Following
Change in Control. Employee shall be entitled to certain payments and
benefits upon involuntary termination or Diminution of Status, as
defined below, following a Change in Control.
A. Compensation. In the event of involuntary termination or
Diminution of Status of Employee's employment other than for
cause, as defined above, in connection with or within two
years after a Change in Control, Company shall pay to Employee
a lump sum cash amount or monthly installments, as Employee
chooses, equal to the product of ____ times the Employee's
Average Annual Compensation. For purposes of this
subparagraph, Average Annual Compensation shall mean either:
(i) the average total annual compensation (salary and
incentive) payable during the preceding two years; or (ii) in
the event that the Employee shall have been employed by the
Company less than two years, the annualized average total
compensation (salary and incentive) payable during the period
in which Employee has been employed by the Company. If
Employee chooses to receive this payment in a lump sum, this
amount shall be paid within 30 days after the effective date
of involuntary termination or Diminution of Status. If
Employee chooses to receive this payment in a series of equal
monthly installments over a _____-year period, payments shall
be made in accordance with the payroll practice of Company but
no less frequently than once a month. These payments are
subject to reduction to the extent necessary so that they do
not constitute "excess parachute payments" under the Internal
Revenue Code and so that they violate no applicable law
governing executive compensation.
B. Continuation of Benefits. In addition, all ESOP
contributions to Employee's account, all stock option grants
which are not vested at the date of termination or Diminution
of Status, and all amounts credited to Employee's SERP account
at that time, if any, shall immediately vest and become due
and payable by Company. During the _____-year period after
involuntary termination or Diminution of Status of Employee's
employment, Employee shall also be entitled to participate in
the Company's health or medical plan, at a level identical to
that in effect at the time of termination or Diminution of
Status at Company's expense, regardless of whether Company is
partially or fully self-insured. Company will continue payment
for these benefits unless impermissible under applicable law.
These payments are subject to reduction to the extent
necessary so that they do not constitute "excess parachute
payments" under the Internal Revenue Code and so that they
violate no applicable law governing executive compensation.
These payments may be terminated if Employee receives
comparable benefits through other full-time employment with an
unaffiliated employer. Upon expiration of this _____-year
period, Employee shall be permitted to participate in
Company's
4
health or medical plan, at Employee's cost (which cost shall
be equal to that charged to COBRA participants) until Employee
is eligible for Medicare.
C. Continuation of Life and Long-Term Disability Benefits.
During the year period after involuntary termination
or diminution of status of Employee's employment, Employee
shall also be entitled to participate in the Company's life
and long-term disability plan or plans, at a level identical
to that in effect at the time of termination or diminution of
status, at Company's expense, regardless of whether Company is
partially or fully self-insured. Company will continue payment
for these benefits unless impermissible under applicable law.
These payments are subject to reduction to the extent
necessary so that they do not constitute "excess parachute
payments" under the Internal Revenue Code and so that they
violate no applicable law governing executive compensation.
These payments may be terminated if Employee receives
comparable benefits through other full-time employment with an
unaffiliated employer. Upon expiration of this year
period, Employee shall be permitted to participate in
Company's life or long-term disability plan or plans, at
Employee's costs (which cost shall be equal to the Employee
cost charged to other employees of the Company) until
Employee's death.
Section 3. Definitions.
A. "Change in Control" means any one or more of the following
events: (a) the merger, consolidation or sale of substantially
all of the assets of Company with or into any other
corporation, other than a transaction in which substantially
all of the shareholders of the Company receive 50% or more of
the common stock of the corporation resulting from the
transaction; (b) in excess of 24.99% of the outstanding common
stock of Company is owned, held or controlled by an entity,
person or group acting in concert with the power to control
the Company as that term is defined in Rule 405 of the
Securities Act of 1933; (c) the sale or exchange of in excess
of 24.99% of the assets of Company to any entity, person, or
group acting in concert; (d) the recapitalization,
reclassification of securities or reorganization of Company
which has the effect of either subpart (b) or (c) above; (e)
the issuance by Company of securities in an amount in excess
of 24.99% of the outstanding common stock of Company to any
entity, person, or group acting in concert and intending to
exercise control of Company or (f) the removal, termination or
retirement of more than 49% of the members of the Board of
Directors.
B. "Diminution of Status" means a material diminution of or
interference with Employee's duties, responsibilities and
benefits. By way of example and not by way of limitation, any
of the following actions, if unreasonable or materially
adverse to Employee, shall constitute diminution or
interference unless consented to in writing by Employee: (1) a
reduction in the size or a change in the location
5
of Employee's office; (2) a reduction or adverse change in the
scope or nature of the secretarial or other administrative
support of Employee; (3) a reduction or adverse change in
Employee's title or decision-making responsibilities; (4) a
reduction in the number or seniority of other Company
personnel reporting to Employee, other than as part of a
Company-wide reduction in staff, or a reduction in the
frequency with which personnel are to report to Employee; (5)
an increase in the number of, or a decrease in the seniority
of, the persons (other than the Board of Directors) to whom
Employee must report; or an increase in the frequency of, or
in the nature of matters with respect to which, reports by
Employee shall be required; (6) a reduction or adverse change
in the salary, perquisites, benefits, contingent benefits or
vacation time which had previously been provided to Employee,
other than as part of an overall program applied uniformly and
with equitable effect to all members of the senior management
of the Company; and (7) a material increase in the required
hours of work or the workload of Employee.
ARTICLE III.
OTHER TERMS
Section 1. Governing Law. This Agreement and all questions relating to
its validity, interpretation, performance and enforcement shall be governed by
the laws of the State of Ohio.
Section 2. No Duty to Mitigate. Employee has no duty to mitigate the
payment of any compensation or benefits received under this Agreement and any
amount earned by Employee after termination or Diminution of Status shall not
reduce the amount owed by Company pursuant to the terms of this Agreement.
Section 3. Damages. Employer and Employee agree that no damages shall
be payable upon Involuntary Termination or Diminution of Status prior to a
Change in Control, regardless of whether Involuntary Termination or Diminution
of Status occur with or without notice, or with or without reason. If such
action occurs after a Change in Control, Article II, Section 2 is controlling on
the issue of damages.
Section 4. Entire Agreement. This Agreement constitutes the entire
agreement between the parties on this subject matter and may not be modified or
amended except in a writing signed by both parties. All prior agreements,
representations, statements, negotiations and understandings are superseded.
This Agreement may not be modified or amended after a Change in Control.
Section 5. Assignability. This Agreement shall be freely assignable in
whole or in part by Company but may not be assigned by Employee.
Section 6. Waiver. Neither the failure nor any delay on the part of
Company to exercise any right, remedy, power or privilege hereunder shall
operate as a waiver, nor shall any
6
single or partial exercise of any right, remedy, power or privilege preclude an
other or further exercise of the same or any other right, remedy, power,
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy, power
or privilege with respect to any other occurrence.
Section 7. Binding Obligation. This Agreement shall be binding on
Employee's heirs, legal representatives and assigns and shall be binding on any
successors and assigns of Company. All terms and conditions of this Agreement
shall survive the termination of the Employment.
Section 8. Severability. All clauses of this Agreement are distinct and
severable, and if any clause shall be deemed invalid, illegal or unenforceable
in whole or in part, for any reason, and such clause cannot be amended so as to
make it enforceable, it shall not affect the legality or enforceability of any
other clause of this Agreement.
Section 9. Counterparts. This Agreement may be executed in more than
one counterpart and each counterpart shall be considered an original.
Section 10. Headings. The paragraph headings are for convenience only
and shall not in any way affect the interpretation or enforceability of any
provision of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WARNING - READ CAREFULLY - THIS AGREEMENT AFFECTS THE CONDITIONS OF YOUR
EMPLOYMENT.
SKY FINANCIAL GROUP, INC.
By:
---------------------------------
Its:
--------------------------------
EMPLOYEE
------------------------------------