EXHIBIT 10.7
FORM OF CHANGE IN CONTROL AGREEMENTS WITH CERTAIN
EXECUTIVE OFFICERS OF THE COMPANY
Change in Control Agreements
In order to assure continuity of management and operations, the
Company and its subsidiaries have Change in Control Agreements
(the "Agreements") with certain of their executive officers.
During the term of the Agreements, the executive officers have
agreed, among other things, to devote their time, skill, energy
and attention to the business of the Company and its subsidiaries
and to perform their duties in a diligent, trustworthy, loyal,
businesslike and efficient manner. The base salary of these
employees will continue to be determined in accordance with
normal corporate procedures and can be adjusted at any time. In
addition, the executive officers will continue to participate in
the benefit plans available to all employees.
Pursuant to the Agreements, the Company and its subsidiaries
could terminate an executive officer's employment without
liability under the contract for any reason, or for no reason,
with or without notice. The Agreements do not change the
employees' status as employees at will in accordance with the
laws of the State of Ohio. In the event of involuntary
termination or diminution of status, without cause, after a
change in control (as defined), the employees would be entitled
to compensation under the Agreements in an amount equal to
between one and one-half to two and one-half times the employee's
average total compensation (depending upon the officer's level)
for the immediately preceding two years, payable in lump sum or
monthly installments. However, the Company and any of its
subsidiaries are not obligated to pay any amount which is in
excess of the then maximum amount which they can deduct for
federal income tax purposes. For purposes of the Agreements, a
change in control is defined as a merger or consolidation with or
into any other corporation where the Company is not the surviving
corporation, certain situations involving the issuance of,
ownership, or control of in excess of 24.99 percent of the
outstanding common stock or assets of the Company, or the
removal, termination or retirement of more than 49 percent of the
members of the Board of Directors.
The form of Change in Control Agreement follows this description.
MID AM, INC.
1997 AMENDMENT TO CHANGE IN CONTROL AGREEMENTS
All Change in Control Agreements entered into by the Company,
including any amended and restated agreements (the "Agreements"),
are hereby amended in the following manner.
Article II
Section 2. An additional Subsection (C) shall be added to read
as follows:
C. Continuation of Life and Long-Term Disability
Benefits. During the [ ] year period after involuntary
termination or diminution of status of Employee's employment,
Employee shall be also entitled to participate in the Company's
life and long-term disability plan or plans, at a level identical
to that in effect at the time of termination or diminution of
status, at company's expense, regardless of whether Company is
partially of fully self-insured. Company will continue payment
for these benefits unless impermissible under applicable law.
These payments are subject to reduction to the extent necessary
so that they do not constitute "excess parachute payments" under
the Internal Revenue Code and so that they violate no applicable
law governing executive compensation. These payments may be
terminated if Employee receives comparable benefits through other
full-time employment with an unaffiliated employer. Upon
expiration of this [ ] year period, Employee shall be
permitted to participate in Company's life or long-term
disability plan or plans, at Employee's costs (which cost shall
be equal to the Employee cost charged to other employees of the
Company) until Employee's death.
The blanks shall reflect the time periods established by title
and level of the various employees.
Employees who currently have Agreements will execute amendments
reflecting this change. Any employees entering into such
Agreements in the future will receive an Agreement which
incorporates this Amendment.
Remainder of the Agreements. Any Article, Section or Subsection
of the Agreements not expressly amended shall remain unchanged
and shall continue to exist exactly as originally set forth in
the Agreements. All of the provisions of the Agreements shall
remain in full force and effect as written, unless modified by
this Amendment.
Effective Date of Amendment. This Amendment shall become
effective November 21, 1996.
Adopted by the Board of Directors this 21st day of November,
1996.
MID AM, INC.
By
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Secretary of the Board
MID AM, INC.
CHANGE IN CONTROL AGREEMENT
This Change in Control Agreement is entered into ,
19 , by and between Mid Am, Inc. ("Company") and , a resident of
, Ohio ("Employee").
ARTICLE I.
EMPLOYMENT
Section 1. Employment. Company shall employ Employee and Employee
shall accept employment with Company upon the terms and subject
to the conditions set forth in this Agreement.
Section 2. Duties and Services. Employee shall be employed in the
capacity of - and shall have such other duties and
responsibilities as are designated by the Board of Directors from
time to time consistent with Employee's level of authority and
responsibility with Company. Employee agrees to perform
designated duties and services and to devote Employee's full and
exclusive business time, skill, best efforts and attention
(excluding vacations and other leaves of absence) to promote
the business of Company and to perform faithfully to the fullest
extent of Employee's ability all of Employee's duties under this
Agreement. Employee further agrees, upon any appointment or
election to the Board of Directors of Company, Company's parent,
or any of Company's affiliates, to accept such appointment or
election and to devote Employee's best efforts to perform any
duties as director.
Section 3. Term. The term of this Agreement ("Employment") shall
begin on the date above and shall continue until the first
anniversary of the Agreement, unless sooner terminated pursuant
to Article II, Section 1. This Agreement shall be automatically
renewed for additional one year periods following the original
term, at the end of each subsequent one year period, upon the
same terms and conditions.
Section 4. Place of Employment. Employee's initial place of
employment is. However, Company may require that Employee work at
any other place as Company may direct. If Employee is required to
relocate, however, Company shall pay Employee's reasonable moving
expenses actually incurred in accordance with Company policy.
Section 5. Compensation. Company shall pay to Employee as
compensation for services rendered during the Employment such
salary, bonus, commission or other remuneration as the Board of
Directors of Company may determine from time to time.
Section 6. Adherence to Standards. Employee shall comply with the
policies, standards, rules and regulations of Company from time
to time established including, but not limited to, rules
established by Company covering hours of work, vacation periods,
sick leave and other terms and conditions of the Employment.
Section 7. Expense Reimbursement. Company shall reimburse
Employee for authorized travel and other reasonable expenses
actually incurred in promoting, fostering, furthering and
perpetuating the business of Company upon receipt and approval by
Company of expense vouchers prepared by Employee and submitted to
Company promptly after such expenses are incurred.
Section 8. Benefits. Employee shall be included, to the extent
eligible, in any and all benefit plans and policies which apply
to Company's salaried employees generally.
Section 9. Authority. Except for the authority granted to the
officers of Company by Company's Code of Regulations, as amended
from time to time, Employee has no authority to commit or
obligate Company, financially or otherwise, without Company's
prior written approval.
Section 10. Other Employment. Employee shall refrain from acting
in any other employment or consulting capacity without the prior
written consent of Company. It is Company's intention that
Employee devote all of Employee's work effort towards the
fulfillment of Employee's obligations under this Agreement.
Employee may in any event hold securities in any publicly held
corporation and may serve as a member of the board of directors
of any business which is not in competition with Company.
ARTICLE II.
TERMINATION OF EMPLOYMENT
Section 1. Termination for Cause. If Employee is terminated for
"cause", then Company's obligation under this Agreement to make
any further payments to Employee or to continue any benefits
shall cease. "Cause" shall mean:
A. Misappropriating any funds or property of Company;
B. Being convicted of a felony;
C. Mismanaging the assets of Company;
D. Inability to fulfill the duties of the position for a period
longer than three consecutive months;
▇. ▇▇▇▇▇ incompetence, gross insubordination, willful misconduct,
dishonesty, or gross neglect in the performance of the duties
of the position;
F. Material breach of this Agreement;
G. Being under the habitual influence of alcohol or other drugs;
or
H. (i). If Employee is suspended from office or temporarily
prohibited from participating in the conduct of Company's
affairs by any regulatory agency, Company's obligations under
this Agreement shall be suspended upon suspension or
prohibition. Once the matter is resolved and Employee is
permitted to return to his or her position, the Company, in
its sole discretion, may reinstate, in whole or in part, any
of the obligations.
(ii). If Employee is removed from office and/or permanently
prohibited from participating in the conduct of Company's
affairs by any regulatory agency, Company's obligations
under this Agreement shall terminate, but vested rights of
the parties shall not be affected.
Section 2. Involuntary Termination or Diminution of Status
Following Change in Control. Employee shall be entitled to
certain payments and benefits upon involuntary termination or
Diminution of Status, as defined below, following a Change in
Control.
A. Compensation. In the event of involuntary termination or
Diminution of Status of Employee's employment other than for
cause, as defined above, in connection with or within two years
after a Change in Control, Company shall pay to Employee a lump
sum cash amount or monthly installments, as Employee chooses,
equal to the product of 1.5 times the Employee's Average Annual
Compensation. For purposes of this subparagraph, Average Annual
Compensation shall mean either: (i) the average total annual
compensation (salary and incentive) payable during the preceding
two years; or (ii) in the event that the Employee shall have been
employed by the Company less than two years, the annualized
average total compensation (salary and incentive) payable during
the period in which Employee has been employed by the Company. If
Employee chooses to receive this payment in a lump sum, this
amount shall be paid within 30 days after the effective date of
involuntary termination or Diminution of Status. If Employee
chooses to receive this payment in a series of equal monthly
installments over a one and one half year period, payments shall
be made in accordance with the payroll practice of Company but no
less frequently than once a month. These payments are subject to
reduction to the extent necessary so that they do not constitute
"excess parachute payments" under the Internal Revenue Code and
so that they violate no applicable law governing executive
compensation.
B. Continuation of Benefits. In addition, all ESOP contributions
to Employee's account, all stock option grants which are not
vested at the date of termination or Diminution of Status, and
all amounts credited to Employee's SERP account at that time, if
any, shall immediately vest and become due and payable by
Company. During the one and one-half year period after
involuntary termination or Diminution of Status of Employee's
employment, Employee shall also be entitled to participate in the
Company's health or medical plan, at a level identical to that
in effect at the time of termination or Diminution of Status at
Company's expense, regardless of whether Company is partially or
fully self-insured. Company will continue payment for these
benefits unless impermissible under applicable law. These
payments are subject to reduction to the extent necessary so that
they do not constitute "excess parachute payments" under the
Internal Revenue Code and so that they violate no applicable law
governing executive compensation. These payments may be
terminated if Employee receives comparable benefits
through other full-time employment with an unaffiliated
employer. Upon expiration of this one and one-half year period,
Employee shall be permitted to participate in Company's health
or medical plan, at Employee's cost (which cost shall be equal to
that charged to COBRA participants) until Employee is eligible
for Medicare.
Section 3. Definitions.
A. "Change in Control" means any one or more of the following
events: (a) the merger or consolidation of Employer with or into
any other corporation and Employer is not the surviving
corporation; (b) in excess of 24.99 percent of the outstanding
common stock of Employer is owned, held or controlled by an
entity, person or group acting in concert with the power to
control the Company as that term is defined in Rule 405 of the
Securities Act of 1933; (c) the sale or exchange of in excess of
24.99 percent of the assets of Employer to any entity, person, or
group acting in concert; (d) the recapitalization,
reclassification of securities or reorganization of Employer
which has the effect of either subpart (b) or (c) above; (e) the
issuance by Employer of securities in an amount in excess of
24.99 percent of the outstanding common stock of Employer to any
entity, person, or group acting in concert and intending to
exercise control of Employer or (f) the removal, termination or
retirement of more than 49 percent of the members of the Board
of Directors.
B. "Diminution of Status" means a material diminution of or
interference with Employee's duties, responsibilities and
benefits. By way of example and not by way of limitation, any of
the following actions, if unreasonable or materially adverse to
Employee, shall constitute diminution or interference unless
consented to in writing by Employee: (1) a reduction in the size
or a change in the location of Employee's office; (2) a reduction
or adverse change in the scope or nature of the secretarial or
other administrative support of Employee; (3) a reduction or
adverse change in Employee's title or decision-making
responsibilities; (4) a reduction in the number or seniority of
other Company personnel reporting to Employee, other than as part
of a Company-wide reduction in staff, or a reduction in the
frequency with which personnel are to report to Employee; (5) an
increase in the number of, or a decrease in the seniority of, the
persons (other than the Board of Directors) to whom Employee must
report; or an increase in the frequency of, or in the nature of
matters with respect to which, reports by Employee shall be
required; (6) a reduction or adverse change in the salary,
perquisites, benefits, contingent benefits or vacation time which
had previously been provided to Employee, other than as part of
an overall program applied uniformly and with equitable effect to
all members of the senior management of the Company; and (7) a
material increase in the required hours of work or the workload
of Employee.
ARTICLE III.
OTHER TERMS
Section 1. Governing Law. This Agreement and all questions
relating to its validity, interpretation, performance and
enforcement shall be governed by the laws of the State of Ohio.
Section 2. No Duty to Mitigate. Employee has no duty to mitigate
the payment of any compensation or benefits received under this
Agreement and any amount earned by Employee after termination or
Diminution of Status shall not reduce the amount owed by Company
pursuant to the terms of this Agreement.
Section 3. Damages. Employer and Employee agree that no damages
shall be payable upon Involuntary Termination or Diminution of
Status prior to a Change in Control, regardless of whether
Involuntary Termination or Diminution of Status occur with or
without notice, or with or without reason. If such action occurs
after a Change in Control, Article II, Section 2 is controlling
on the issue of damages.
Section 4. Entire Agreement. This Agreement constitutes the
entire agreement between the parties on this subject matter and
may not be modified or amended except in a writing signed by both
parties. All prior agreements, representations, statements,
negotiations and understandings are superseded. This Agreement
may not be modified or amended after a Change in Control.
Section 5. Assignability. This Agreement shall be freely
assignable in whole or in part by Company but may not be assigned
by Employee.
Section 6. Waiver. Neither the failure nor any delay on the part
of Company to exercise any right, remedy, power or privilege
hereunder shall operate as a waiver, nor shall any single or
partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or any other
right, remedy, power, privilege, nor shall any waiver of any
right, remedy, power or privilege with respect to any occurrence
be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence.
Section 7. Binding Obligation. This Agreement shall be binding on
Employee's heirs, legal representatives and assigns and shall be
binding on any successors and assigns of Company. All terms and
conditions of this Agreement shall survive the termination of the
Employment.
Section 8. Severability. All clauses of this Agreement are
distinct and severable, and if any clause shall be deemed
invalid, illegal or unenforceable in whole or in part, for any
reason, and such clause cannot be amended so as to make it
enforceable, it shall not affect the legality or enforceability
of any other clause of this Agreement.
Section 9. Counterparts. This Agreement may be executed in more
than one counterpart and each counterpart shall be considered an
original.
Section 10. Headings. The paragraph headings are for convenience
only and shall not in any way affect the interpretation or
enforceability of any provision of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
WARNING - READ CAREFULLY - THIS AGREEMENT AFFECTS THE CONDITIONS
OF YOUR EMPLOYMENT.
MID AM, INC.
By:
Its:
EMPLOYEE