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Exhibit 10.12
Merger Severance Benefit Program
PROGRAM
A. COVERED EMPLOYEES:
Subject to paragraph B below, the Merger Severance Benefit (as herein
defined) will be provided to any employee whose employment is terminated
within two years after a Change Of Control (as herein defined).
B. LIMITATIONS ON CHANGE OF CONTROL BENEFITS
1. GENERAL. No employee will be eligible for a Merger Severance Benefit if
(a) his employment is terminated for "Cause", (b) he is a temporary
employee, or (c) he is offered a Comparable Position within the Bank and
refuses to accept such position.
2. CAUSE. The term "Cause" shall mean and include (a) neglect of or refusal
to perform, other than as a result of sickness, accident or similar cause
beyond an employee's reasonable control, any duty or responsibility as an
employee of the Bank after written notice by the Bank to the employee; (b)
any material breach by the employee of any agreement to which the employee
and the Bank are both parties; (c) dishonesty with respect to the Bank or
the commission of any crime (other than minor traffic violations); or (d)
any material misconduct or material neglect of duties by the employee in
connection with the business or affairs of the Bank. The foregoing
definition of Cause is in no way intended to limit or qualify the right of
the Bank to terminate any person's employment for any reason.
3. COMPARABLE POSITION. A comparable position shall mean a position which
is offered to an employee where there is no reduction in base salary or
scheduled hours, and where the employee is not required to commute more
than 35 miles further then the employee's present commute.
C. DEFINITION OF "CHANGE OF CONTROL":
A "Change of Control" will be deemed to have occurred:
1. If there is a merger or consolidation of Bancorp with any other bank or
corporation and the voting securities of Bancorp outstanding immediately
prior to such merger or consolidation do not continue to represent (either
by remaining outstanding or by being converted into voting securities of
the surviving entity) more than fifty percent (50%) of the combined voting
power of the voting securities of Bancorp or such surviving entity
immediately after such merger or consolidation, or
2. When any person or entity or group of persons or entities either related
or acting in concert becomes the "beneficial owner" (as defined in Rule
13d-3 under the Securities and Exchange Act of 1934, as amended) of
securities of Bancorp
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representing more than fifty percent (50%) of the total number of votes
that may be cast for the election of directors of Bancorp, or
3. If Bancorp sells all or substantially all of its assets to another bank
or corporation, other than in a transaction in which the voting securities
of Bancorp outstanding immediately prior to such transaction continue to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) more than fifty percent (50%) of
the combined voting power of the voting securities of Bancorp or such
surviving entity immediately after such transaction, or
4. If during any period of two consecutive years (not including any period
prior to the adoption of this program), individuals who are Continuing
Directors (as herein defined) cease for any reason to constitute at least a
majority of the Board of Directors of Bancorp. For this purpose, a
"Continuing Director" shall mean (a) an individual who was a director of
Bancorp at the beginning of such period or (b) any new director (other than
a director designated by a person who has entered into any agreement with
the Company to effect a transaction described in clause (1), (2), or (3) of
this Paragraph C) whose election by the Board or nomination for election by
Bancorp's stockholders was approved by a vote of at least two-thirds (2/3)
of the directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election was
previously so approved.
5. If the Board of Directors of Bancorp determines in its sole discretion,
that a change of control has occurred, such determination to be evidenced
by a resolution adopted by at least a majority of the Directors, setting
forth the basis for such determination.
D. "MERGER SEVERANCE BENEFIT" DEFINED.
The Merger Severance Benefit hereunder shall include each of the following
three items:
1. Payment in one lump sum as of date of termination of employment of a
severance benefit equal to the greater of (i) two weeks Base Salary for
each year or partial year of service or (ii) the applicable Minimum Benefit
set forth in paragraph E below; and
2. Continuation of health and dental benefits and life insurance benefits
for one year after termination on the same terms and conditions as though
the employee had remained an active employee; and
3. After the end of the one-year period, COBRA benefits determined as
though employment had terminated at the end of such one-year period.
For purpose of this paragraph D and paragraph E below, "Base Salary" shall
not include bonus payments, 401(k) matching payments, pension payments, or
other
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payments not specifically provided for under this program.
E. MINIMUM BENEFIT
(1) All officers of the level of Vice President and above with three
(3) or more years of service (from date of hire) shall receive at
least 52 weeks salary; and
(2) All officers of the level of Vice President and above with less
than three (3) years of service (from date of hire) shall receive at
least 26 weeks salary; and
(3) All other elected and appointed officers shall receive at least 13
weeks salary; and
(4) All other full-time employees shall receive at least 6 weeks
salary; and
(5) All part-time employees shall receive at least 4 weeks salary or
wages.
F. OFFSET FOR AMOUNTS RECEIVED UNDER OTHER AGREEMENTS OR LAWS. Merger
Severance Benefits payable pursuant to this program shall be reduced
by the amount of any equivalent severance pay benefits payable to any
officer under any employment or change of control contract or to any
employee under any "tin parachute", WARN or similar law.
G. WITHHOLDING. All payments will be subject to customary withholding and
co- payments by employees, for health, life insurance and dental
benefits. Bancorp or the Bank will have the right to withhold for lump
sum amounts otherwise payable the aggregate amount of any co-payments
required to be made by employees with respect to employee benefit
programs which are continued under the Merger Severance Program.
H. PARACHUTE PAYMENT. In the event that any severance payment otherwise
payable exceeds in the aggregate the amount that may be deducted by the
Bank by reason of the operation of Section 280G of the Internal Revenue
Code of 1986, as amended, the amount of such payments shall be reduced
to the maximum which can be deducted by Bancorp or the Bank.