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Exhibit 10(cc)
EMPLOYMENT AGREEMENT
THIS AGREEMENT, entered into as of the 14th day of December,
1995, by and between XXXXXXXX & XXXXXX CORPORATION (the "Company"), and
Xxxxxxxx X. Xxxxxxxxxx (the "Executive") (hereinafter collectively referred to
as "the parties").
W I T N 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
1(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 (1)
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.
(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.
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2. Change 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 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) of beneficial ownership (within
the meaning of Rule 13d-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 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, (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
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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 election 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 Senior
Vice President of M&I Xxxxxxxx & Xxxxxx 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 (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 (12) 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.
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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 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
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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.
(g) Office and Support Staff. During the Employment Term, the
Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to exclusive personal secretarial and
other assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and its affiliated companies at any
time during the twelve (12) month period immediately preceding the Effective
Date or, if more favorable to the Executive, as provided generally at any time
thereafter with respect to other peer executives of the Company and its
affiliated companies.
(h) 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.
(i) 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
returned 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
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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 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 10 hereof.
(2) Any event or condition described in Section 5(c) (1)
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
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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 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:
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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 (I) the
Recent Average Bonus and (II) 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 (1), (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 (1) 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 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 in 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
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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.
(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
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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 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 & 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.
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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.
(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
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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.
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.
22. Limitation on Payments.
(a) Within fifteen (15) business days of the Termination Date, an
independent national accounting firm 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 in 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
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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 (15) 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
year of receipt of the payments, unless the Executive agrees otherwise."
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: /s/ X.X. Xxxxxxx
--------------------------------
Chairman
ATTEST:
/s/ M.A. Xxxxxxxx
-----------------------------------
Secretary
EXECUTIVE:
/s/ Xxxxxxxx X. Xxxxxxxxxx
------------------------------------
(employee)
Address: W265 N6920 Thousand Oaks
--------------------------
Xxxxxx, XX 00000
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