EXHIBIT 10.10
MIDCITY FINANCIAL CORPORATION
CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT, (the "Agreement") is entered into this _____ day
of ___________, _______ (the "Effective Date"), by and between MidCity Financial
Corporation, a Delaware corporation (the "Company") and ____________________
(the "Executive");
WITNESSETH THAT:
WHEREAS, the Executive is employed by the Company, and the Company desires
to provide protection to Executive in connection with any change in control of
the Company; and
WHEREAS, the Executive and the Company wish to substitute this Agreement
for the Executive's participation in the Top Management Change in Control
Severance Plan;
NOW, THEREFORE, it is hereby agreed by and between the parties, for good
and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, as follows:
Article I. Establishment and Purpose
1.1 TERM OF THE AGREEMENT. This Agreement shall commence on the Effective
Date and shall terminate on the earliest to occur of the date (i) that is the
first anniversary of the date the Company notifies the Executive in writing that
the Company is terminating the Agreement effective on or after such anniversary,
(ii) the Company terminates the Executive's employment for Just Cause, (iii) the
Executive voluntarily terminates his employment without Good Reason, or (iv) the
Company no longer employs Executive on a full-time basis. However, in the event
a Change in Control occurs while this Agreement is effective, this Agreement
will remain irrevocably in effect for the greater of twenty-four (24) months
from the date of the Change in Control or until all benefits have been paid to
the Executive hereunder.
1.2 PURPOSE OF THE AGREEMENT. The purpose of this Agreement is to advance
the interests of the Company by providing the Executive with an assurance of
equitable treatment, in terms of compensation and economic security, in the
event of an acquisition or other Change in Control of the Company. An assurance
of equitable treatment will enable the Executive to maintain productivity and
focus during a period of significant uncertainty that is inherent in an
acquisition or other Change in Control. Further, the Company believes that
Agreements of this kind will aid it in attracting and retaining the highly
qualified, high-performing professionals who are essential to its success.
1.3 CONTRACTUAL RIGHT TO BENEFITS. This Agreement establishes and vests in
the Executive a contractual right to the benefits to which he is entitled
hereunder, enforceable by the Executive against the Company. However, nothing
herein contained shall require or be deemed to require the Company to segregate,
earmark, or otherwise set aside any funds or other assets to provide for any
payments made hereunder.
Subject to Section 3.2 herein, the Company shall retain the right to
terminate the Executive's employment at any time prior to a Change in Control of
the Company. In the event an Executive's employment is terminated prior to a
Change in Control of the Company, this Agreement shall no longer be applicable
to the Executive, and any and all rights and obligations of the Company and such
Executive hereunder shall cease; provided, however, that in the event the
effective date of a Change in Control occurs within six (6) months following the
effective date of an involuntary termination without Just Cause, such
termination may be deemed to be a Qualifying Termination pursuant to Section 3.2
of this Agreement.
Article II. Definitions and Construction
2.1 DEFINITIONS. Whenever used in the Agreement, the following terms shall
have the meanings set forth below and, when the meaning is intended, the initial
letter of the word is capitalized.
(a) "Average Annual Bonus" means the Executive's actual average annual
bonus earned over the three (3) complete fiscal years prior to the
Effective Date of Termination, or, if shorter, over the Executive's
entire period of employment. However, if the Executive's period of
employment is less than one (1) year, the average bonus shall be
considered zero (0).
(b) "Base Salary" means the base rate of compensation paid to the
Executive as annual salary, excluding amounts received under incentive
or other bonus plans, as in effect as of the Effective Date of
Termination, PROVIDED, HOWEVER, that if the Executive's Base Salary
was reduced within twenty-four (24) months of the Effective Date of
Termination, then "Base Salary" shall mean the Executive's annual Base
Salary as in effect immediately prior to such reduction
(c) "Beneficial Owner" shall have the meaning ascribed to such term in
Rule 13d-3 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), namely, any
person, who directly or indirectly, through any contract, arrangement,
understanding or otherwise, has or shares voting power which includes
the power to vote or direct the voting of such securities and/or
investment power, which includes the power to dispose of, or direct
the disposition of, such security.
(d) "Beneficiary" means the persons or entities designated or deemed
designated by the Executive pursuant to Section 8.2 herein.
(e) "Board" means the Board of Directors of the Company.
- 2 -
(f) A "Change in Control" of the Company will be deemed to occur if any of
the events described in subparagraphs (i), (ii), (iii) and (iv) below
occurs.
(i) Any Person who is not a direct lineal descendent, or legally
adopted child of a direct lineal descendent, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇ becomes the direct or indirect Beneficial Owner of
35% or more of the combined voting power of the outstanding
shares of capital stock of the Company that are entitled to vote
generally in the election of directors.
(ii) During any period of 24 consecutive months beginning on or after
the Effective Date, individuals who, at the beginning of that
24-month period, constitute the Board of Directors of the
Company, cease for any reason to constitute at least a majority
of the board, unless the election or nomination for election of
each new director of the Company was approved by a vote of at
least two-thirds of the directors then still in office who were
directors of the Company at the beginning of the 24-month period.
(iii) More than 75% of the assets of the Company are, or are agreed to
be, sold or otherwise disposed of, or the Company dissolves or
liquidates, or effects a partial liquidation involving more than
75% of its assets.
(iv) The Board agrees, by a two-thirds vote, that a Change in Control
of the Company is about to occur.
(g) "Code" means the Internal Revenue Code of 1986, as amended.
(h) "Company" means MidCity Financial Corporation, a Delaware corporation,
or any successor thereto that adopts the Agreement, as provided in
Section 8.1 herein.
(i) "Compensation Committee" means the Compensation Committee of the Board
of Directors of the Company.
(j) "Disability" means a physical or mental condition that would entitle
the Executive to benefits under the Company's long-term disability
plan, or if the Company maintains no such plan, then under the federal
Social Security Law.
(k) "Effective Date of Termination" means the date on which a Qualifying
Termination occurs which triggers Severance Benefits hereunder.
(l) "Expiration Date" means the date the Agreement expires, as provided in
Section 1.1 herein.
- 3 -
(m) "Good Reason" means (i) the occurrence of a fifteen percent (15%) or
greater reduction in the aggregate value of the Executive's annual
Base Salary, bonus opportunity, and benefits excluding profit sharing;
(ii) the assignment to the Executive of any duties inconsistent in any
respect with the Executive's position, including status, offices,
titles and reporting relationships, authority, duties or
responsibilities, or any other action by the Company that results in a
significant diminution in such position, authority, duties or
responsibility; or (iii) a required relocation of the Executive to a
location more than thirty-five (35) miles from the Executive's then
existing job location to which the Executive does not consent to in
writing; or the Executive's Disability within two (2) years after a
Change in Control.
(n) "Just Cause" means a termination of the Executive's employment by the
Company, for which no Severance Benefits are payable, as provided in
Article IV herein.
(o) "Person" shall mean a natural person, company, or government, or
political subdivision, agency, or instrumentality of a government,
including a "group" as defined in Section 13(d) of the Exchange Act.
When two or more persons act as a partnership, limited partnership,
syndicate or other group for the purpose of acquiring the securities
of the Company, they shall be deemed a Person for purposes of the
Agreement. "Person" shall be construed in the same manner as under
Section 3(a)(9) of the Exchange Act, and "group" shall be construed in
the same manner as under Section 13(d) of the Exchange Act.
(p) "Qualifying Termination" means any of the events described in Section
3.2 herein, the occurrence of which triggers the payment of Severance
Benefits hereunder.
(q) "Severance Benefit" means the payment of severance compensation as
provided in Article III herein.
2.2 GENDER AND NUMBER. Except where otherwise indicated by the context, any
masculine term used herein also shall include the feminine, the plural shall
include the singular, and the singular shall include the plural.
2.3 SEVERABILITY. In the event any provision of this Agreement shall be
held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of this Agreement, and this Agreement shall be
construed and enforced as if the illegal or invalid provision had not been
included.
2.4 AMENDMENT OR TERMINATION. The material provisions of this Agreement may
be amended by written agreement between the Company and the Executive, approved
by at least two-thirds of the Board holding office at such time, without regard
to their presence at the meeting. Any agreed amendment of a non-material
provision of the Agreement shall be approved by at least one-half of the Board
at such time, without regard to their presence at any meeting. The Company may
terminate this Agreement by written resolution of its Board of
- 4 -
Directors, effective as of a date at least twelve months following the date the
Company gives written notice to the Executive of its intent to terminate the
Agreement.
2.5 APPLICABLE LAW. To the extent not preempted by the laws of the United
States, the laws of the State of Illinois, without regard to its conflict of
laws provisions, shall be the controlling law in all matters relating to this
Agreement.
Article III. Severance Benefits
3.1 RIGHT TO SEVERANCE BENEFITS. Subject to the provisions hereof, the
Executive shall be entitled to receive from the Company Severance Benefits as
described in Section 3.3 herein, if there has been a Change in Control of the
Company and if any of the events designated within Section 3.2 herein shall
occur. The Executive shall not be entitled to receive Severance Benefits if his
employment with the Company ends due to death, voluntary retirement, a voluntary
termination by the Executive without Good Reason, or due to an involuntary
termination by the Company for Just Cause.
3.2 QUALIFYING TERMINATIONS. The occurrence of any one (1) of the following
events within twenty-four (24) calendar months after a Change in Control of the
Company shall trigger the payment of Severance Benefits under this Agreement:
(a) An involuntary termination of the Executive's employment without Just
Cause;
(b) A voluntary termination of the Executive's employment with the
Company, for Good Reason;
(c) A successor company (including, but not limited to, an individual,
corporation, association, or partnership) fails or refuses to assume
the Company's obligations under this Agreement, as required by Section
8.1 herein; or
(d) The Company or any successor company breaches any of the provisions of
this Agreement.
In addition, an involuntary termination without Just Cause shall trigger
the payment of Severance Benefits under this Agreement if the Executive's
employment is terminated by the Company without Just Cause within six (6) months
prior to a Change in Control that actually occurs during the term of this
Agreement and (i) such termination was at the request or direction of a Person
who has entered into an agreement with the Company the consummation of which
would constitute a Change in Control, or (ii) the Executive reasonably
demonstrates that such termination is otherwise in connection with or in
anticipation of the Change in Control.
3.3 DESCRIPTION OF SEVERANCE BENEFITS. In the event that the Executive
becomes entitled to receive Severance Benefits, as provided in Sections 3.1 and
3.2 herein, the Company shall pay to the Executive and provide him with the
following:
(a) An amount equal to the Executive's annual Base Salary multiplied by
three; and
- 5 -
(b) An amount equal to the Executive's Average Annual Bonus multiplied by
three; and
(c) The right to receive an immediate payment in amount equal to the then
current value of the Executive's vested benefits, if any, under the
MidCity Financial Corporation Supplemental Profit Sharing Plan (the
"Supplemental Plan"), as provided in Section 7.1 therein (the
Executive shall receive payment under the Supplemental Plan, if he is
covered by the Supplemental Plan, or this Agreement, but not both);
and
(d) A continuation of the welfare benefits of medical insurance, long-term
disability, and group term life insurance at the same premium cost to
the Executive and at the same coverage level as in effect as of the
Executive's Effective Date of Termination for three (3) full years
after the Effective Date of Termination, without regard to the federal
income tax consequences of such continuation. However, these benefits
will be discontinued prior to the end of the three (3) full year
period in the event the Executive receives substantially similar
benefits in the aggregate from a subsequent employer, as determined by
the Compensation Committee; and
(e) The Company shall offer the Executive the opportunity to purchase all
whole life insurance policies held by the Company, insuring the
Executive's life, for the cash surrender value as of the Effective
Date of Termination.
3.4 SUPPLEMENTAL BENEFIT. In the event of an involuntary termination (other
than for Just Cause) in the third year after a Change in Control, or the
voluntary termination of the Executive's employment with the Company for Good
Reason in the third year after a Change in Control, the Company shall pay the
Executive a lump sum supplemental benefit of one (1) times Base Salary.
Article IV. Just Cause or Retirement
4.1 JUST CAUSE. Nothing in this Agreement shall be construed to prevent the
Company from terminating the Executive's employment for Just Cause. In such
case, no Severance Benefits shall be payable to the Executive under this
Agreement.
Just Cause shall be defined to include, but shall not be limited to,
willful, malicious conduct by the Executive, which is prejudicial to the best
interests of the Company, including theft, embezzlement, the conviction of a
criminal act, disclosure of trade secrets, a gross dereliction of duty, or other
grave misconduct on the part of the Executive which is substantially injurious
to the Company.
4.2 RETIREMENT. If the Executive's employment with the Company ends due to
voluntary retirement, the Executive: (i) shall not be entitled to receive
Severance Benefits under this Agreement; and (ii) shall not be eligible to
participate in a Company-sponsored severance plan or arrangement at any time
following his retirement.
- 6 -
Article V. Form and Timing of Severance Benefits
5.1 FORM AND TIMING OF SEVERANCE BENEFITS. The Severance Benefits described
in Sections 3.3(a), 3.3(b), 3.3(c), and 3.4 herein, shall be paid in cash to the
Executive in a single lump sum as soon as practicable following the Effective
Date of Termination, but in no event beyond ninety (90) days from such date.
The Severance Benefits described in Section 3.3(d) herein shall be provided
by the Company to the Executive immediately upon the Effective Date of
Termination and shall continue to be provided for three (3) full calendar years
from the Effective Date of Termination. However, the Severance Benefits
described in Section 3.3(d) herein shall be discontinued prior to the end of the
three (3) year period immediately upon the Executive receiving similar benefits
from a subsequent employer, as determined by the Compensation Committee.
5.2 WITHHOLDING OF TAXES. The Company shall withhold from any amounts
payable under this Agreement all Federal, state, city, or other taxes as legally
shall be required.
Article VI. Parachute Payments
6.1 EXCISE TAX CAP. In the event that a Change in Control of the Company
shall occur and the Company determines, pursuant to Code Sections 280G and 4999,
that a golden parachute excise tax is due, the Executive's Severance Benefits
under this Agreement shall be limited to the amount just necessary to avoid the
excise tax.
6.2 SUBSEQUENT RECALCULATION. In the event the Internal Revenue Service
adjusts the computation of the Company, as provided in Section 6.1 herein, and
such adjustment is either acceptable to the Company, or the adjustment of the
Internal Revenue Service is finally determined to be correct, such that the
Executive is liable for the payment of an excise tax under Sections 280G and
4999 of the Code, or such that the Executive does not receive the full benefit
that he would have received, the Company shall reimburse the Executive for the
full amount necessary to make the Executive whole, including the value of
Severance Benefits that were erroneously limited, the value of the excise tax,
all corresponding interest and penalties due to the Internal Revenue Service,
and the Executive's regular income tax due on these reimbursement payments.
Article VII. Other Rights and Benefits Not Affected
7.1 OTHER BENEFITS. Except as provided in this Section below, neither the
provisions of this Agreement nor the Severance Benefits provided for hereunder
shall reduce any amounts otherwise payable, or in any way diminish the
Executive's rights as an employee of the Company, whether existing now or
hereafter, under any benefit, incentive, retirement, stock option, stock bonus,
stock purchase plan, or any employment agreement, or other Agreement or
arrangement. Notwithstanding the foregoing, an Executive who is also a covered
employee under The MidCity Financial Corporation Severance Plan shall be
entitled to receive the severance benefits provided under this Agreement in lieu
of any severance pay provided under The MidCity Financial Corporation Severance
Plan. Benefits provided under this Agreement shall not increase any amounts
otherwise payable under any other arrangement, if that other
- 7 -
arrangement does not provide that severance benefits will be taken into account
in determining benefits.
7.2 EMPLOYMENT STATUS. This Agreement does not constitute a contract of
employment or impose on the Executive or the Company any obligation to retain
the Executive as an employee, to change the status of the Executive's
employment, or to change the Company's policies regarding termination of
employment.
Article VIII. Successors
8.1 SUCCESSORS. The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, or otherwise) of all or
substantially all of the business and/or assets of the Company or of any
division or subsidiary thereof 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 it if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the same
terms as he would be entitled hereunder if terminated voluntarily for Good
Reason, except for the purposes of implementing the foregoing, the date on which
any succession becomes effective shall be deemed the Effective Date of
Termination.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees, and legatees. If the Executive should
die while any amount would still be payable to him hereunder had he continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement, to the Executive's devisee,
legatee, or other designee, or if there is no such designee, to the Executive's
estate.
8.2 BENEFICIARIES. The Executive's beneficiary under the MidCity Financial
Corporation Profit Sharing Agreement and Trust shall be the Executive's
Beneficiary under this Agreement, unless the Executive otherwise designates a
Beneficiary in the form of a signed writing acceptable to the Compensation
Committee. The Executive may make or change such designation at any time.
Article IX. Administration
9.1 ADMINISTRATION. This Agreement shall be administered by the Board, as
advised by the Compensation Committee. In such advisement capacity, and with the
approval of a majority of the Board for all such actions hereunder, the
Compensation Committee, to the extent not contrary to the express provisions of
the Agreement, is authorized in its discretion to interpret this Agreement, to
prescribe and rescind rules and regulations, to provide conditions and
assurances deemed necessary and advisable, to protect the interests of the
Company, and to make all other determinations necessary or advisable for the
administration of this Agreement and similar Agreements.
In fulfilling its administrative duties hereunder, the Compensation
Committee may rely on outside counsel, independent accountants, or other
consultants to render advice or assistance.
- 8 -
9.2 INDEMNIFICATION AND EXCULPATION. The members of the Board, its agents
and officers, directors, and employees of the Company and its affiliates shall
be indemnified and held harmless by the Company against and from any and all
loss, cost, liability, or expense that may be imposed upon or reasonably
incurred by them in connection with or resulting from any claim, action, suit,
or proceeding to which they may be a party or in which they may be involved by
reason of any action taken or failure to act under this Agreement and against
and from any and all amounts paid by them in settlement (with the Company's
written approval) or paid by them in satisfaction of a judgment in any such
action, suit, or proceeding. The foregoing provision shall not be applicable to
any person if the loss, cost, liability, or expense is due to such person's
gross negligence or willful misconduct.
Article X. Legal Fees and Arbitration
10.1 LEGAL FEES AND EXPENSES. The Company (or, in the event of the
acquisition of more than seventy-five percent (75%) of the assets of the
Company, the acquirer of such assets) shall pay all legal fees, costs of
litigation, and expenses directly related to such legal fees and costs of
litigation incurred in good faith by the Executive as a result of the Company's
refusal to provide the Severance Benefits to which the Executive becomes
entitled under this Agreement, or as a result of the Company's contesting the
validity, enforceability, or interpretation of this Agreement.
10.2 ARBITRATION. The Executive and the Company shall have the right and
option to elect (in lieu of litigation) to have any dispute or controversy
arising under or in connection with this Agreement settled by arbitration,
conducted before a panel of three arbitrators sitting in a location selected by
the Executive within fifty (50) miles from the location of his job in accordance
with rules of the American Arbitration Association then in effect. Judgment may
be entered on the award of the arbitrator in any court having jurisdiction. All
expenses of such arbitration, including the fees and expenses of the counsel for
the Executive, shall be borne by the Company. Notwithstanding the right of the
Executive or the Company to elect to enter into arbitration, the Company and the
Executive may mutually agree to resolve any dispute or controversy arising under
or in connection with the Agreement in a court of law, in lieu of arbitration.
Article XI. Exclusivity of Severance Benefits
11.1 EXCLUSIVITY OF SEVERANCE BENEFITS. In the event that the Company is
contractually obligated to pay to the Executive any severance benefits pursuant
to another agreement, plan, program, or policy, the terms and provisions of the
program under which the aggregate level of severance benefits is the highest (as
determined by the Executive) shall operate to completely replace and supersede
the terms and provisions of this Agreement and/or all other programs that
provide for the payment of severance benefits.
IN WITNESS WHEREOF, the Executive has executed this Agreement and the
Company has caused this Agreement to be executed by a resolution of the Board,
as of the day and year first above written.
MIDCITY FINANCIAL CORPORATION EXECUTIVE
By:________________________________ ____________________________________
Its:_______________________________
- 9 -