1
EXHIBIT 10 (ll)
FORM OF EMPLOYMENT AGREEMENTS
BETWEEN M&I AND MESSRS. SHERMAN,
ROBERTS, AND ROOT
2
EMPLOYMENT AGREEMENT
THIS AGREEMENT, entered into as of the ___ day of ___________, 1999, by
and between XXXXXXXX & XXXXXX CORPORATION (the "Company"), and _______________
the "Executive") (hereinafter collectively referred to as "the parties").
W I T E S S E T H:
WHEREAS, the Board of Directors of the Company (the "Board") recognizes
that the possibility of a Change of Control (as hereinafter defined in Section
2) exists and that the threat of or the occurrence of a Change of Control can
result in significant distractions of its key management personnel because of
the uncertainties inherent in such a situation; and
WHEREAS, the Board has determined that it is essential and in the best
interest of the Company and its shareholders to retain the services of the
Executive in the event of a threat or occurrence of a Change of Control and to
ensure his continued dedication and efforts in such event without undue concern
for his personal financial and employment security; 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 of Control, the Company desires to enter into this Agreement with the
Executive.
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
1. Employment Term.
(a) The "Employment Term" shall commence on the first date
during the Protected Period (as defined in Section l(c), below) on which a
Change of Control (as defined in Section 2, below) occurs (the "Effective Date")
and shall expire on the second anniversary of the Effective Date; provided,
however, that at the end of each day of the Employment Term the Employment Term
shall automatically be extended for one (I ) day unless either the Company or
the Executive shall have given written notice to the other at least thirty (30)
days prior thereto that the Employment Term shall not be so extended; and
provided, further, that the Employment Term shall not be automatically extended
beyond the first day of the month following the month in which the Executive
attains age sixty-five (65).
(b) Notwithstanding anything contained in this Agreement to
the contrary, if the Executive's employment is terminated prior to the Effective
Date and the Executive reasonably demonstrates that such termination (i) was at
the request of a third party who has indicated an intention or taken steps
reasonably calculated to effect a Change of Control, or (ii) otherwise occurred
in connection with or in anticipation of a Change of Control, then for all
purposes of this Agreement, the Effective Date shall mean the date immediately
prior to the date of such termination of the Executive's employment.
3
(c) For purposes of this Agreement, the "Protected Period" shall be the two
(2) year period commencing on the date hereof, provided, however, that at the
end of each day the Protected Period shall be automatically extended for one (1)
day unless at least thirty (30) days prior thereto the Company shall have given
written notice to the Executive that the Protected Period shall not be so
extended; and provided, further, that notwithstanding any such notice by the
Company not to extend, the Protected Period shall not end if prior to the
expiration thereof any third party has indicated an intention or taken steps
reasonably calculated to effect a Change of Control, in which event the
Protected Period shall end only after such third party publicly announces that
it has abandoned all efforts to effect a Change of Control.
2. Chance of Control. For purposes of this Agreement, a "Change of Control,
shall mean the first to occur of the following:
(a) The acquisition by any individual, entity or "group" (within the
meaning of Section 13(d)(3) or 1 4(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) of beneficial ownership (within the meaning of
Rule 1 3d-3 promulgated under the Exchange Act) of thirty-three percent (33%) or
more of either (i) the then outstanding shares of common stock of the Company
(the "Outstanding Company Common Stock") or (ii) the combined voting power of
the then outstanding voting securities of the Company entitled to vote generally
in the election of directors (the "Outstanding Company Voting Securities");
provided, however, that the following acquisitions of common stock shall not
constitute a Change of Control: (i) any acquisition directly from the Company
(excluding an acquisition by virtue of the exercise of a conversion privilege or
by one person or a group of persons acting in concert), (ii) any acquisition by
the Company, (iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation controlled by
the Company or (iv) any acquisition by any corporation pursuant to a
reorganization, merger or consolidation which would not be a Change of Control
under subsection (c) of this Section 2; or
(b) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to
the date hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of either an actual or threatened "election contest" or other actual or
threatened "solicitation" (as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act) of proxies or consents by or on behalf
of a person other than the Incumbent Board; or
(c) Approval by the shareholders of the Company of a reorganization, merger
or consolidation, unless, following such reorganization, merger or
consolidation, (i) more than two-thirds (2/3) 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
2
4
Company Common Stock and Outstanding Company Voting Securities immediately prior
to such reorganization, merger or consolidation m substantially the same
proportions as their ownership, immediately prior to such reorganization, merger
or consolidation, (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, thirty-three percent (33%) or more of the Outstanding Company Common
Stock or Outstanding Voting Securities, as the case may be) beneficially owns,
directly or indirectly, thirty-three percent (33%) 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; or
(d) Approval by the shareholders of the Company of (i) a
complete liquidation or dissolution of the Company or (ii) the sale or other
disposition of all or substantially all of the assets of the Company, other than
to a corporation, with respect to which following such sale or other
disposition, (A) more than two-thirds (2/3) 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, (B)
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,
thirty-three percent (33%) or more of the Outstanding Company Common Stock or
Outstanding Company Voting Securities, as the case may be) beneficially owns,
directly or indirectly, thirty-three percent (33%) or more of, respectively, the
then outstanding shares of common stock of such corporation or the combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the elect on of directors and (C) 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.
3. Employment.
(a) Subject to the provisions of Section 3, hereof, the
Company agrees to continue to employ the Executive and the Executive agrees to
remain in the employ of the Company during the Employment Term. During the
Employment Term, the Executive shall be employed as _____________________ of M&I
Corporation or in such other executive capacity as may be mutually agreed to in
writing by the parties. During the Employment Term, Executive's position
3
5
(including status, offices, titles and reporting requirements), authority,
duties and responsibilities shall be at least commensurate in all material
respects with the most significant of those held or assigned at any time during
the twelve ( t 2) month period immediately preceding the Effective Date, and
Executive's services shall be performed at the location where Executive was
employed immediately preceding the Effective Date or at any office or location
less than thirty-five (35) miles from such location, unless mutually agreed to
in writing by the parties.
(b) Excluding periods of vacation and sick leave to which the
Executive is entitled, during the Employment Term the Executive agrees to devote
full time attention to the business and affairs of the Company to the extent
necessary to discharge the responsibilities assigned to the Executive hereunder,
provided that the Executive may take reasonable amounts of time to (i) serve on
corporate, civil or charitable boards or committees, and (ii) deliver lectures,
fulfill speaking engagements or teach at educational institutions, if such
activities do not significantly interfere with the performance of the
Executive's responsibilities hereunder. It is expressly understood and agreed
that to the extent any such activities have been conducted by the Executive
prior to the Effective Date, the continued conduct of such activities (or the
conduct of activities similar in nature and scope) subsequent to the Effective
Date shall not thereafter be deemed to interfere with the performance of
Executive's responsibilities hereunder.
4. Compensation.
(a) Base Salary. During the Employment Term, the Executive
shall receive an annual base salary ("Annual Base Salary"), which shall be paid
at a monthly rate, at least equal to twelve (12) times the highest monthly base
salary paid or payable to the Executive by the Company and its affiliated
companies in respect of the twelve (12) month period immediately preceding the
month in which the Effective Date occurs. During the Employment Term, the Annual
Base Salary shall be reviewed at least annually and shall be increased at any
time and from time to time as shall be substantially consistent with increases
in base salary generally awarded in the ordinary course of business to other
peer executives of the Company and its affiliated companies. Any increase in
Annual Base Salary shall not serve to limit or reduce any other obligation to
the Executive under this Agreement. Annual Base Salary shall not be reduced
after any such increase and the term Annual Base Salary as utilized in this
Agreement shall refer to Annual Base Salary as so increased. As used in this
Agreement, the term "affiliated companies" shall include any company controlled
by, controlling or under common control with the Company.
(b) Annual Bonus. In addition to Annual Base Salary, the
Executive shall be awarded, for each fiscal year ending during the Employment
Term, an annual bonus (the "Annual Bonus") in cash at least equal to the average
annualized (for any fiscal year consisting of less than twelve (12) full months
or with respect to which the Executive has been employed by the Company for less
than twelve (12) full months bonuses paid or payable, including any amounts
which were deferred under any plans of the Company and its affiliated companies,
to the Executive by the Company and its affiliated companies in respect of the
three (3) fiscal years immediately preceding the fiscal year in which the
Effective Date occurs (the "Recent Average Bonus"). Each such Annual Bonus shall
be paid no later than seventy-five (75) days after the end of the fiscal year
for which the Annual Bonus is awarded, unless the Executive shall elect to
4
6
defer the receipt of such Annual Bonus under any plan or arrangement of the
Company allowing therefor.
(c) Incentive. Savings and Retirement Plans. During the
Employment Term, the Executive shall be entitled to participate in all
incentive, savings and retirement plans, practices, policies and programs
applicable generally to other peer executives of the Company and its affiliated
companies, but in no event shall such plans, practices, policies and programs
provide the Executive with incentive opportunities (measured with respect to
both regular and special incentive opportunities, to the extent, if any, that
such distinction is applicable), savings opportunities and retirement benefit
opportunities, in each case, less favorable, in the aggregate, than the most
favorable of those provided by the Company and its affiliated companies for the
Executive under such plans, practices, policies and programs as in effect at any
time during the twelve ( 12) month period immediately preceding the Effective
Date, or, if more favorable to the Executive, those provided generally at any
time after the Effective Date to other peer executives of the Company and its
affiliated companies.
(d) Benefit Plans. During the Employment Term, the Executive
and/or the Executive's family, as the case may be, shall be eligible for
participation in and shall receive all benefits under benefit plans, practices,
policies and programs provided by the Company and its affiliated companies
(including, without limitation, medical, prescription drug, dental, disability,
salary continuance, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable generally to
other peer executives of the Company and its affiliated companies and their
families; but in no event shall such plans, practices, policies and programs
provide the Executive with benefits which are less favorable, in the aggregate,
than the most favorable of such plans, practices, policies and programs in
effect for the Executive and his family at any time during the twelve (12) month
period immediately preceding the Effective Date or, if more favorable to the
Executive, those provided generally at any time after the Effective Date to
other peer executives of the Company and its affiliated companies and their
families.
(e) Expenses. During the Employment Term, the Executive shall
be entitled to receive prompt reimbursement for all reasonable expenses incurred
by the Executive in accordance with the most favorable policies, practices and
procedures of the Company and its affiliated companies in effect for the
Executive at any time during the twelve ( 12) month period immediately preceding
the Effective Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer executives of the
Company and its affiliated companies.
(f) Fringe Benefits. During the Employment Term, the Executive
shall be entitled to fringe benefits (including but not limited to Company cars,
club dues and physical examinations) in accordance with the most favorable
plans, practices, programs and policies of the Company and its affiliated
companies in effect for the Executive at any time during the twelve (12) month
period immediately preceding the Effective Date or, if more favorable to the
Executive, as in effect generally at any time thereafter with respect to other
peer executives of the Company and its affiliated companies.
5
7
(g) Vacation and Sick Leave. During the Employment Term, the
Executive shall be entitled to paid vacation and sick leave (without loss of
pay) in accordance with the most favorable plans, policies, programs and
practices of the Company and its affiliated companies as in effect for the
Executive at any time during the twelve ( 12) month period immediately preceding
the Effective Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer executives of the
Company and its affiliated companies.
(h) Restrictions. As of the Effective Date, all restrictions
limiting the exercise, transferability or other incidents of ownership of any
outstanding award, including but not limited to restricted stock, options, stock
appreciation rights, or other property or rights of the Company granted to the
Executive shall lapse, and such awards shall become fully vested and be held by
the Executive free and clear of all such restrictions. This provision shall
apply to all such property or rights notwithstanding the provisions of any other
plan or agreement, unless the effect of the application of this provision to a
particular right or property would result in such right or property failing to
qualify for favorable tax treatment under the particular section of the Internal
Revenue Code for which it was designed to qualify, or would result in the loss
of favorable securities law treatment for participants under the plan pursuant
to which the award was granted.
5. Termination of Employment. During the Employment Term, the
Executive's employment hereunder may be terminated under the following
circumstances:
(a) Death or Disability. The Executive's employment shall
terminate automatically upon the Executive's death during the Employment Term.
If the Company determines in good faith that the Disability of the Executive has
occurred during the Employment Term (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance with
Section 5 of this Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the thirtieth (30th) day after receipt of such notice by
the Executive (the "Disability Effective Date"), provided that, within thirty
(30) days after such receipt, the Executive shall not have resumed to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
with the Company on a full-time basis for one hundred eighty ( 180) consecutive
business days as a result of incapacity due to mental or physical illness which
is determined to be total and permanent by a physician selected by the Company
or its insurers and acceptable to the Executive or the Executive's legal
representative, provided if the parties are unable to agree, the parties shall
request the Xxxx of the Medical College of Wisconsin to choose such physician.
(b) Cause. The Company may terminate the Executive's
employment for "Cause." A termination for Cause is a termination evidenced by a
resolution adopted in good faith by a majority of the Board that the Executive
(i) willfully, deliberately and continually failed to substantially perform his
duties under Section 3, above (other than a failure resulting from the
Executive's incapacity due to physical or mental illness) which failure
constitutes gross misconduct, and results in and was intended to result in
demonstrable material injury to the Company, monetary or otherwise, or (ii)
committed acts of fraud and dishonesty constituting a
6
8
felony, as determined by a final judgment or order of a court of competent
jurisdiction, and resulting or intended to result in gain to or personal
enrichment of the Executive at the Company's expense, provided, however, that no
termination of the Executive's employment shall be for Cause as set forth in
(i), above, until (a) Executive shall have had at least sixty (60) days to cure
any conduct or act alleged to provide Cause for termination after a written
notice of demand has been delivered to the Executive specifying in detail the
manner in which the Executive's conduct violates this Agreement, and (b) the
Executive shall have been provided an opportunity to be heard by the Board (with
the assistance of the Executive's counsel if the Executive so desires). No act,
or failure to act, on the Executive's part, shall be considered "willful" unless
he has acted or failed to act in bad faith and without a reasonable belief that
his action or failure to act was in the best interest of the Company.
Notwithstanding anything contained in this Agreement to the contrary, no failure
to perform by the Executive after Notice of Termination is given by the
Executive shall constitute Cause for purposes of this Agreement.
(c) Good Reason.
(1) The Executive may terminate his employment for Good
Reason. For purposes of this Agreement, "Good Reason" shall mean the occurrence
after a Change of Control of any of the events or conditions described in
Subsections (i) through (vi) hereof:
(i) A change in the Executive's status, title, position or
responsibilities (including reporting responsibilities) which, in the
Executive's reasonable judgment, does not represent a promotion from his status,
title, position or responsibilities as in effect immediately prior thereto; the
assignment to the Executive of any duties or responsibilities which, in the
Executive's reasonable judgment, are inconsistent with his status, title,
position or responsibilities in effect immediately prior to such assignment; or
any removal of the Executive from or failure to reappoint or reelect him to any
position, except in connection with the termination of his employment for
Disability, Cause, as a result of his death or by the Executive other than for
Good Reason;
(ii) Any failure by the Company to comply with any of the
provisions of Section 4 of this Agreement.
(iii) The insolvency or the filing (by any party, including
the Company) of a petition for bankruptcy of the Company;
(iv) Any material breach by the Company of any provision of
this Agreement;
(v) Any purported termination of the Executive's employment
for Cause by the Company which does not comply with the terms of Section 5 of
this Agreement; and
(vi) The failure of the Company to obtain an agreement,
satisfactory to the Executive, from any successor or assign of the Company, to
assume and agree to perform this Agreement, as contemplated in Section I O
hereof.
7
9
(2) Any event or condition described in Section 5(c) ( I )
which occurs prior to the Effective Date but which the Executive reasonably
demonstrates (i) was at the request of a third party who has indicated an
intention or taken steps reasonably calculated to effect a Change of Control, or
(ii) otherwise arose in connection with or in anticipation of a Change of
Control, shall constitute Good Reason for purposes of this Agreement
notwithstanding that it occurred prior to the Effective Date.
(3) The Executive's right to terminate his employment pursuant
to this Section 5(c) shall not be affected by his incapacity due to physical or
mental illness. The Executive's continued employment or failure to give Notice
of Termination shall not constitute consent to, or a waiver of rights with
respect to, any circumstances constituting Good Reason hereunder.
(4) For purposes of this Section 5(c), any good faith
determination of Good Reason made by the Executive shall be conclusive.
(d) Voluntary Termination. The Executive may voluntarily
terminate his employment hereunder at any time.
(e) Notice of Termination. Any purported termination by the
Company or by the Executive (other than by death of the Executive) shall be
communicated by Notice of Termination to the other. For purposes of this
Agreement, a "Notice of Termination" shall mean a written notice which (i)
indicates the specific termination provision in this Agreement relied upon, (ii)
to the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated, and (iii) the Termination Date. For
purposes of this Agreement, no such purported termination of employment shall be
effective without such Notice of Termination.
(f) Termination Date, Etc. "Termination Date" shall mean in
the case of the Executive's death, his date of death, or in all other cases, the
date specified in the Notice of Termination subject to the following:
(1) If the Executive's employment is terminated by the
Company, the date specified in the Notice of Termination shall be at least
thirty (30) days after the date the Notice of Termination is given to the
Executive, provided, however, that in the case of Disability, the Executive
shall not have returned to the full-time performance of his duties during such
period of at least thirty (30) days;
(2) If the Executive's employment is terminated for Good
Reason, the date specified in the Notice of Termination shall not be more than
sixty (60) days after the date the Notice of Termination is given to the
Company; and
(3) In the event that within thirty (30) days following the
date of receipt of the Notice of Termination, one party notifies the other that
a dispute exists concerning the basis for termination, the Executive's
employment hereunder shall not be terminated except after the dispute is finally
resolved and a Termination Date is determined either by a mutual written
agreement of the parties, or by a binding and final judgment order or decree of
a court of
8
10
competent jurisdiction (the time for appeal therefrom having expired
and no appeal having been perfected).
6. Obligations of the Company Upon Termination.
(a) Good Reason; Other Than for Cause, Death or Disability.
If, during the Employment Term, the Company shall terminate the Executive's
employment other than for Cause or Disability or the Executive shall terminate
employment for Good Reason:
(i) The Company shall pay to the Executive in a lump sum in
cash within five (5) days after the Termination Date the aggregate of the
following amounts:
A. The sum of:
(1) The Executive's Annual Base Salary through the
Termination Date to the extent not theretofore paid.
(2) The product of (x) the higher of (1) the Recent Average
Bonus and (11) the Annual Bonus paid or payable, including any amount deferred,
(and annualized for any fiscal year consisting of less than twelve ( 12) full
months or for which the Executive has been employed for less than twelve ( 12)
full months) for the most recently completed fiscal year during the Employment
Period, if any (such higher amount being referred to as the "Highest Annual
Bonus") and (y) a fraction, the numerator of which is the number of days
completed in the current fiscal year through the Termination Date, and the
denominator of which is 365; and
(3) Any compensation previously deferred by the Executive
(together with any accrued interest or earnings thereon) and any accrued
vacation pay, in each case to the extent not theretofore paid.
The sum of the amounts described in Clauses ( I ), (2) and (3 ) shall
be hereinafter referred to as the "Accrued Obligations."
B. The amount equal to the product of (1) two and (2) the sum
of (x) the Executive's Annual Base Salary (increased for this purpose by any
Section 401(k) deferrals, cafeteria plan elections, or other deferrals that
would have increased Executive's Annual Base Salary if paid in cash to Executive
when earned) and (y) the Executive's Highest Annual Bonus;
C. A separate lump-sum supplemental retirement benefit equal
to the difference between ( I ) the actuarial equivalent (utilizing for this
purpose the most favorable to the Executive actuarial assumptions and Company
contribution history with respect to the applicable retirement plan, incentive
plans, savings plans and other plans described in Section 4(c) (or any successor
plan thereto) (the "Retirement Plans") during the twelve (12) month period
immediately preceding the Effective Date) of the benefit payable under the
Retirement Plans and any supplemental and/or excess retirement plan providing
benefits for the Executive (the "SERP") which the Executive would receive if the
Executive's employment continued for an additional two (2) years after the
Termination Date with annual compensation equal to the sum
9
11
of the Annual Base Salary and Highest Annual Bonus, assuming for this purpose
that all accrued benefits and contributions are fully vested and that benefit
accrual formulas and Company contributions are no less advantageous to the
Executive than those in effect during the twelve (12) month period immediately
preceding the Effective Date, and (2) the actuarial equivalent (utilizing for
this purpose the actuarial assumptions utilized with respect to the Retirement
Plans during the twelve (12) month period immediately preceding the Effective
Date) of the Executive's actual benefit (paid or payable), if any, under the
Retirement Plans and the SERP. For example, if there were a termination today
this supplemental retirement benefit would be interpreted with respect to two
plans m existence today as follows: (i) with respect to the Retirement Growth
Plan of the Company, the Executive would receive no less than two times eight
percent (8%) of the maximum compensation that can be taken into account under
the Plan assuming Executive's compensation is as set forth above, and (ii) with
respect to the Incentive Savings Plan of the Company, the Executive would
receive no less than two times an annual Company match of fifty percent (50%) of
Employee's maximum allowable contribution to the Plan assuming Executive's
compensation is as set forth above; D. The amount equal to the product of (i)
two and (ii) the sum of (x) the imputed income reflected on Executive's W-2
attributable to the car provided to Executive by the Company or its affiliates
for the last calendar year ending before the Effective Date and (y) the club
dues for Executive paid by the Company or its affiliates attributable to such
year.
(ii) For twenty-four (24) months after the Termination Date,
or such longer period as any plan, program, practice or policy may provide, the
Company shall continue benefits to the Executive and/or the Executive's family
at least equal to those which would have been provided to them in accordance
with the plans, programs, practices and policies described in Section 4(d) of
this Agreement if the Executive's employment had not been terminated in
accordance with the most favorable plans, practices, programs or policies of the
Company and its affiliated companies applicable generally to other peer
executives and their families during the twelve ( 12) month period immediately
preceding the Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other peer executives of
the Company and its affiliated companies and their families; provided, however,
that if the Executive becomes reemployed with another employer and is eligible
to receive medical or other benefits under another employer provided plan, the
medical and other benefits described herein shall be secondary to those provided
under such other plan during such applicable period of eligibility, provided
that the aggregate coverage of the combined benefit plans is no less favorable
to the Executive, in terms of amounts and deductibles and costs to him, than the
coverage required hereunder. For purposes of determining eligibility of the
Executive for retiree benefits pursuant to such plans, practices, programs and
policies, the Executive shall be considered to have remained employed until the
end of such twenty-four (24) month period and to have retired on the last day of
such period.
(iii) The Executive shall have the right to purchase the car
provided to him by the Company or its affiliates during the twelve (12) month
period immediately preceding the Effective Date (or a comparable car acceptable
to the Executive if such car is no longer owned by the Company or its
affiliates), at the book value thereof on the Termination Date, exercisable
within thirty (30) days after the Termination Date; and if the car is not
purchased, Executive shall return the car to the Company.
10
12
(iv) To the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is eligible to
receive pursuant to this Agreement under any plan, program, policy or practice
or contract or agreement of the Company and its affiliated companies (such other
amounts and benefits shall be hereinafter referred to as the "Other Benefits").
(b) Death. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Term, this Agreement shall
terminate without further obligations to the Executive's legal representatives
under this Agreement, except that the Company shall pay or provide the Accrued
Obligations, six (6) months of Annual Base Salary, and the Other Benefits. The
Accrued Obligations shall be paid to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within thirty (30) days of the Termination
Date. The six (6) months of Annual Base Salary shall be paid during the six (6)
month period following the Termination Date on a monthly basis. With respect to
the provision of Other Benefits, the term Other Benefits as utilized in this
Section 6(b) shall include, and the Executive's family shall be entitled to
receive, benefits at least equal to the most favorable benefits provided by the
Company and any of its affiliated companies to surviving families of peer
executives of the Company and such affiliated companies under such plans,
programs, practices and policies relating to family death benefits, if any, as
in effect with respect to other peer executives and their families at any time
during the twelve ( 12) month period immediately preceding the Effective Date
or, if more favorable to the Executive and/or the Executive's family, as in
effect on the date of the Executive's death with respect to other peer
executives of the Company and its affiliated companies and their families.
(c) Disability. If the Executive's employment is terminated by
reason of the Executive's Disability during the Employment Term, this Agreement
shall terminate without further obligations to the Executive, except that the
Company shall pay or provide the Accrued Obligations and the Other Benefits. The
Accrued Obligations shall be paid to the Executive in a lump sum in cash within
thirty (30) days of the Termination Date. With respect to the provision of Other
Benefits, the term Other Benefits as utilized in this Section 6(c) shall
include, and the Executive shall be entitled after the Disability Effective Date
to receive, disability and other benefits at least equal to the most favorable
of those generally provided by the Company and its affiliated companies to
disabled executives and/or their families in accordance with such plans,
programs, practices and policies relating to disability, if any, as in effect
generally with respect to other peer executives and their families at any time
during the twelve (12) month period immediately preceding the Effective Date or,
if more favorable to the Executive and/or the Executive's family, as in effect
at any time thereafter generally with respect to other peer executives of the
Company and its affiliated companies and their families.
(d) Cause; Other Than for Good Reason. If the Executive's
employment shall be terminated for Cause during the Employment Term, or if the
Executive voluntarily terminates employment during the Employment Term for other
than Good Reason, this Agreement shall terminate without further obligations to
the Executive other than the obligation to pay to the Executive Annual Base
Salary through the Date of Termination, any other amounts earned or accrued
through the Termination Date, and the amount of any compensation previously
deferred
11
13
by the Executive, in each case to the extent theretofore unpaid; provided that
if Executive voluntarily terminates Executive shall receive the benefits
normally provided upon normal or early retirement with respect to other peer
Executives and their families to the extent he qualifies therefore. All salary
or compensation hereunder shall be paid to the Executive in a lump sum in cash
within thirty (30) days of the Date of Termination.
(e) If any of the payments referred to in this Section 6 are
not paid within the time specified after the Termination Date (hereinafter a
"Delinquent Payment"), in addition to such principal sum, the Company will pay
to the Executive interest on all such Delinquent Payments computed at the prime
rate as announced from time to time by M&I Xxxxxxxx 8L Xxxxxx Bank, or its
successor, compounded monthly.
7. No Mitigation. In no event shall the Executive be obligated to seek
other employment to take any other action by way of mitigation of the amounts
payable to the Executive under any of the provisions of this Agreement and such
amounts shall not be reduced (except to the extent set forth in Section
6(a)(ii)) whether or not the Executive obtains other employment.
8. Unauthorized Disclosure. The Executive shall not make any
Unauthorized Disclosure. For purposes of this Agreement, "Unauthorized
Disclosure" shall mean disclosure by the Executive without the consent of the
Board to any person, other than an employee of the Company or a person to whom
disclosure is reasonably necessary or appropriate in connection with the
performance by the Executive of his duties as an executive of the Company or as
may be legally required, of any confidential information obtained by the
Executive while in the employ of the Company (including, but not limited to, any
confidential information with respect to any of the Company's customers or
methods of operation) the disclosure of which he knows or has reason to believe
will be materially injurious to the Company; provided, however, that such term
shall not include the use or disclosure by the Executive, without consent, of
any information known generally to the public (other than as a result of
disclosure by him in violation of this Section 8) or any information not
otherwise considered confidential by a reasonable person engaged in the same
business as that conducted by the Company. In no event shall an asserted
violation of this Section 8 constitute a basis for deferring or withholding any
amounts otherwise payable to the Executive under this Agreement.
9. Successors and Assigns.
(a) This Agreement shall be binding upon and shall inure to
the benefit of the Company, its successors and assigns and the company shall
require any successor or assign (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession or assignment had taken place. The
term "Company" as used herein shall include such successors and assigns. The
term "successors and assigns" as used herein shall mean a corporation or other
entity acquiring all or substantially all the assets and business of the Company
(including this Agreement) whether by operation of law or otherwise.
12
14
(b) Neither this Agreement nor any right or interest hereunder
shall be assignable or transferable by the Executive, his beneficiaries or legal
representatives, except by will or by the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representative.
10. Fees and Expenses. From and after the Effective Date, the Company
shall pay all legal fees and related expenses (including the costs of experts,
evidence and counsel) reasonably incurred by the Executive as they become due as
a result of (i) the Executive's termination of employment (including all such
fees and expenses, if any, incurred in contesting or disputing any such
termination of employment), (ii) the Executive's hearing before the Board as
contemplated in Section 5(b) of this Agreement or (iii) the Executive's seeking
to obtain or enforce any right or benefit provided by this Agreement or by any
other plan or arrangement maintained by the Company under which the Executive is
or may be entitled to receive benefits.
11. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, return receipt requested,
postage prepaid, if to the Company, to Xxxxxxxx & Ilsley Corporation, 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, or if to Executive, to the address set
forth below Executive's signature, or to such other address as the party may be
notified, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company. All notices
and communications shall be deemed to have been received on the date of delivery
thereof or on the third business day after the mailing thereof, except that
notice of change of address shall be effective only upon receipt.
12. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any benefit,
bonus, incentive or other plan or program provided by the Company or any of its
subsidiaries for which the Executive may qualify. Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any plan
or program of the Company or any of its subsidiaries shall be payable in
accordance with such plan or program, except as explicitly modified by this
Agreement.
13. Settlement of Claims. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against the Executive or others.
14. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and the Company. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreement or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this Agreement.
13
15
15. Employment. The Executive and the Company acknowledge that the
employment of the Executive by the Company is "at will" and prior to the
Effective Date, may be terminated by either the Executive or the Company at any
time. Moreover, if prior to the Effective Date, the Executive's employment with
the Company terminates then the Executive shall have no further rights under
this Agreement.
16. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Wisconsin without
giving effect to the conflict of law principles thereof.
17. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
18. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.
19. Headings. The headings herein contained are for reference only and
shall not affect the meaning or interpretation of any provision of this
Agreement.
20. Modification. No provision of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is agreed to
in writing signed by both the Executive and the Company.
21. Withholding. The Company shall be entitled to withhold from amounts
paid to the Executive hereunder any federal, estate or local withholding or
other taxes or charges which it is, from time to time, required to withhold. The
Company shall be entitled to rely on an opinion of counsel if any question as to
the amount or requirement of any such withholding shall arise.
14
16
22. Limitation on Payments.
(a) Within fifteen (15) business days of the Termination Date,
an independent national accounting hum designated by the Company (the
"Accounting Firm") shall compute whether there would be any "excess parachute
payments" payable to the Executive, within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), taking into account the
total "parachute payments," within the meaning of Section 280G of the Code,
payable to the Executive by the Company or any successor thereto under this
Agreement and any other plan, agreement or otherwise. If there would be any
excess parachute payments, the Accounting Firm will compute the net after-tax
proceeds to the Executive, taking into account the excise tax imposed by Section
4999 of the Code, if (i) the payments hereunder were reduced, but not below
zero, such that the total parachute payments payable to the Executive would not
exceed 299% of the "base amount" as defined in Section 280G of the Code, or (ii)
the payments hereunder were not reduced. If reducing the payments hereunder
would result in a greater after-tax amount to the Executive, such lesser amount
shall be paid to the Executive. If not reducing the payments hereunder would
result in a greater after-tax amount to the Executive, such payments shall not
be reduced. The determination by the Accounting Firm shall be binding upon the
Company and the Executive subject to the application of Section 22(b) hereof.
(b) As a result of the uncertainty m the application of
Sections 280G of the Code, it is possible that excess parachute payments will be
paid when such payment would result in a lesser after-tax amount to the
Executive; this is not the intent hereof. In such cases, the payment of any
excess parachute payments will be void ab initio as regards any such excess. Any
excess will be treated as a loan by the Company to the Executive. The Executive
will return the excess to the Company, within fifteen (I 5) business days of any
determination by the Accounting Firm that excess parachute payments have been
paid when not so intended, with interest at an annual rate equal to the rate
provided in Section 1274(b)(2)(B) of the Code (or 120% of such rate if the
Accounting Firm determines that such rate is necessary to avoid an excise tax
under Section 4999 of the Code) from the date the Executive received the excess
until it is repaid to the Company.
(c) All fees, costs and expenses (including, but not limited to, the
cost of retaining experts) of the Accounting Firm shall be borne by the Company
and the Company shall pay such fees, costs and expenses as they become due. In
performing the computations required hereunder, the Accounting Firm shall assume
that taxes will be paid for state and federal purposes at the highest possible
marginal tax rates which could be applicable to the Executive in the yeah of
receipt of the payments, unless the Executive agrees otherwise."
15
17
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Executive has executed this
Agreement as of the day and year first above written.
XXXXXXXX & XXXXXX CORPORATION
By:
--------------------------------
Xxxxx X. Xxxxxxx, Chairman
ATTEST:
-------------------------------
Xxxxxxx X. Xxxxxxxx, Secretary
EXECUTIVE:
-----------------------------------
Signature
Address:
---------------------------
---------------------------
16
