EXHIBIT 10
AMENDED AND RESTATED
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TRANSITIONAL COMPENSATION AGREEMENT
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AGREEMENT by and between Amcore Financial, Inc., a Nevada corporation
(the "Company"), and ____________ (the "Executive"), dated as of the 1st day of
April, 2002. This Agreement amends, restates and supersedes any and all prior
agreements between the Company and the Executive relating to the subject matter
of this Agreement, including (but not by way of limitation) the Transitional
Compensation Agreement dated (previous agreement date).
The Board of Directors of the Company (the "Board") has determined that
it is in the best interests of the Company and its shareholders to assure that
the Company will have the continued dedication of the Executive, notwithstanding
the possibility, threat or occurrence of a Change of Control (as defined below)
of the Company. The Board believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal uncertainties and risks
created by a pending or threatened Change of Control, to encourage the
Executive's full attention and dedication to the Company currently and in the
event of any threatened or pending Change of Control, and to provide the
Executive with compensation and benefit arrangements upon a Change of Control
which ensure that the compensation and benefits expectations of the Executive
will be satisfied and which are competitive with those of other similar
corporations.
Therefore, in order to accomplish these objectives, the Board has
caused the Company to enter into this Agreement.
As a condition to the effectiveness of this Agreement, the Executive
has executed the Confidentiality and Non-Competition Agreement attached hereto
as Exhibit B.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
(a) The "Effective Date" shall mean the first date during the Change of
Control Period (as defined in paragraph (b), below) on which a Change of Control
(as defined in Section 2) occurs. Anything in this Agreement to the contrary
notwithstanding, if a Change of Control occurs and if the Executive's employment
with the Company is terminated or the Executive ceases to be an officer of the
Company prior to the date on which the Change of Control occurs, and if it is
reasonably demonstrated by the Executive that such termination of employment or
cessation of status as an officer (i) was at the request of a third party who
has taken steps reasonably calculated to effect the Change of Control, or (ii)
otherwise arose in connection with or anticipation of the Change of Control and
was not (A) for conduct by the Executive of the type described in Section 4(b),
below, (B) for significant deficiencies in the Executive's performance of his
duties to the Company (including, but not by way of limitation, significant
failure to cooperate in implementing a decision of the Board), or (C) for some
other specific substantial business reason unrelated to the 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 employment or cessation of
status as an officer.
(b) The "Change of Control Period" shall mean the period which commenced on
April 1, 2002 and ending on the third anniversary of such date; provided,
however, that on April 1, 2003, and on each annual anniversary of such date
(such date and each annual anniversary thereof being hereinafter referred to as
a "Renewal Date"), this Agreement and the Change of Control Period shall be
automatically extended so as to terminate three (3) years from such Renewal
Date, unless at least sixty (60) days prior to the Renewal Date the Company
shall give notice to the Executive that the Change of Control Period shall not
be so extended, in which case this Agreement shall terminate upon the expiration
of the Change of Control Period or, if an Effective Period (as defined in
Section 3) is then in effect, upon the expiration of the Effective Period.
2. Change of Control. For the purpose of this Agreement, a "Change of
Control" shall mean the occurrence, after the date hereof, of any of the
following events:
(a) The acquisition, other than from the Company, by any individual, entity
or group (within the meaning of Section 13(d)(3) or l4(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) of Company securities
immediately after which such person is the beneficial owner (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of fifteen percent (15%) or
more of either the then outstanding shares of common stock of the Company or the
combined voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors, but excluding for this
purpose any such acquisition by the Company or any of its subsidiaries, or any
employee benefit plan (or related trust) of the Company or its subsidiaries, or
any corporation with respect to which, following such acquisition, more than
sixty percent (60%) 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 common stock and voting securities of the Company
immediately prior to such acquisition in substantially the same
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proportion as their ownership, immediately prior to such acquisition, of the
then outstanding shares of common stock of the Company or the combined voting
power of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors, as the case may be; 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 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 is in connection
with an actual or threatened election contest, including, but not limited to, a
consent solicitation, relating to the election of the directors of the Company
(as such terms are used in Rule 14a-11 of Regulation l4A promulgated under the
Exchange Act); or
(c) There occurs (i) a reorganization, merger or consolidation of the
Company or any direct or indirect subsidiary of the Company, in each case, with
respect to which all or substantially all of the individuals and entities who
were the respective beneficial owners of the common stock and voting securities
of the Company immediately prior to such reorganization, merger or consolidation
do not, following such reorganization, merger or consolidation, beneficially
own, directly or indirectly, more than sixty percent (60%) of, respectively, the
then outstanding shares of common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the ultimate parent corporation of any
corporation resulting from such reorganization, merger or consolidation, or (ii)
shareholder approval of a complete liquidation or dissolution of the Company, or
(iii) the sale or other disposition of all or substantially all of the assets of
the Company.
3. Effective Period.
(a) Effective Period. This Agreement shall be in effect for the period
commencing on the Effective Date and ending on the third anniversary of such
date (the "Effective Period").
4. Termination of Employment.
(a) Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Effective Period. If the
Company determines in good faith that the Disability of the Executive has
occurred during the Effective Period (pursuant to the definition of Disability
as set forth below), it may give to the Executive written notice in accordance
with Section 11(b) 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 the 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 and
eighty (180)
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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 (such agreement as to acceptability not to be withheld
unreasonably).
(b) Cause.
(i) The Company may terminate the Executive's employment during the
Effective Period for Cause and may suspend the Executive from his duties with
full pay and benefits if the Executive is indicted for a felony involving moral
turpitude; provided, however, that the Executive will repay all amounts paid by
the Company from the date of such suspension if the Executive is convicted of
such felony. For purposes of this Agreement, "Cause" shall mean (A) the willful
and continued failure by the Executive to substantially perform the Executive's
duties with the Company (other than any such failure resulting from the
Executive's incapacity due to physical or mental illness or any such actual or
anticipated failure after the issuance of a Notice of Termination for Good
Reason by the Executive pursuant to Section 4(d) hereof) after a written demand
for substantial performance is delivered to the Executive by the Board, which
demand specifically identifies the manner in which the Board believes that the
Executive has not substantially performed the Executive's duties, or (B) the
willful engaging by the Executive in conduct which is demonstrably and
materially injurious to the Company or its subsidiaries, monetarily or
otherwise. For purposes of clauses (A) and (B) of this definition, (x) no act,
or failure to act, on the Executive's part shall be deemed "willful" unless
done, or omitted to be done, by the Executive not in good faith and without
reasonable belief that the Executive's act, or failure to act, was in the best
interest of the Company and (y) in the event of a dispute concerning the
application of this provision, no claim by the Company that Cause exists shall
be given effect unless the Company establishes to the Board by clear and
convincing evidence that Cause exists, and the Board adopts a finding to that
effect.
(ii) A Notice of Termination for Cause must include a copy of a resolution
duly adopted by the affirmative vote of not less than three-quarters (3/4) of
the entire membership of the Board at a meeting of the Board which was called
and held for the purpose of considering such termination (after reasonable
notice to the Executive and an opportunity for the Executive, together with the
Executive's counsel, to be heard before the Board) finding that, in the good
faith opinion of the Board, the Executive was guilty of conduct set forth in
clause (A) or (B) of the definition of Cause herein, and specifying the
particulars thereof in detail.
(c) Good Reason. The Executive's employment may be terminated during the
Effective Period by the Executive for Good Reason. For purposes of this
Agreement, "Good Reason" shall mean:
(i) The assignment to the Executive of any duties inconsistent in any
material respect with the Executive's position (including status, offices,
titles and reporting requirements), authority, duties or responsibilities as in
effect immediately prior to the Effective Date, or any other action by the
Company which results in a diminution in such position, authority, duties or
responsibilities, including, without limitation, if the Executive was,
immediately prior to the Effective Date, an executive officer of a public
company, the Executive ceasing to be an executive officer of a public company,
but excluding for this purpose an isolated, insubstantial and inadvertent action
not taken in bad faith and which is remedied by the Company within thirty (30)
days after receipt of notice thereof given by the Executive;
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(ii) Any reduction by the Company in Executive's compensation or benefits
as in effect immediately prior to the Effective Date, other than an isolated,
insubstantial and inadvertent reduction not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(iii) The Company's requiring the Executive to be based at any office or
location more than twenty (20) miles from that in effect immediately prior to
the Effective Date;
(iv) Any purported termination by the Company of the Executive's employment
otherwise than as expressly permitted by this Agreement; or
(v) Any failure by the Company to comply with and satisfy Section 10(c) of
this Agreement, provided that such successor has received at least ten (10)
days' prior written notice from the Company or the Executive of the requirements
of Section 10(c) of this Agreement.
For purposes of this Section 4(c), any good faith determination of "Good Reason"
made by the Executive shall be conclusive.
(d) Notice of Termination. Any termination by the Company for Cause, or by
the Executive for Good Reason, shall be communicated by a Notice of Termination
to the other party given in accordance with Section 11(b) of this Agreement. For
purposes of this Agreement, a "Notice of Termination" means 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), if the Date of
Termination (as defined below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than fifteen (15)
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company hereunder or preclude the Executive or the Company
from asserting such fact or circumstance in enforcing the Executive's or the
Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i), if the
Executive's employment is terminated by the Company for Cause, or by
the Executive for Good Reason, the date of receipt of the Notice of
Termination or any later date specified therein, as the case may be,
(ii), if the Executive's employment is terminated by the Company other
than for Cause or Disability, the Date of Termination shall be the
date on which the Company notifies the Executive of such termination,
and (iii), if the Executive's employment is terminated by reason of
death or Disability, the Date of Termination shall be the date of
death of the Executive or the Disability Effective Date, as the case
may be.
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5. Obligations of the Company upon Termination.
(a) By Company Other Than for Cause or Disability or By Executive for Good
Reason. If, during the Effective Period, 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
thirty (30) days after the Date of Termination the aggregate of the following
amounts:
(A) The sum of (1) the Executive's then current annual base
salary through the Date of Termination to the extent not theretofore paid; (2)
the product of (x) Executive's Recent Average Bonus (as defined below) and (y) a
fraction, the numerator of which is the number of days in the then current
fiscal year through the Date of Termination, and the denominator of which is
three hundred and sixty-five (365); (3) any compensation previously deferred by
the Executive (together with any accrued interest or earnings thereon and as
adjusted to reflect any other appreciation or depreciation in value); and (4)
any accrued vacation pay; in each case to the extent not theretofore paid (the
sum of the amounts described in parts (1), (2), (3) and (4), above, being
hereinafter referred to as the "Accrued Obligations"). For purposes of this
Agreement, Executive's Recent Average Bonus shall be 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) bonus paid or payable, before taking into account any
deferral, 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 termination of Executive's employment occurs (if Executive was not
employed by the Company in a given fiscal year, that year will be excluded from
the calculation of Recent Average Bonus); and
(B) The amount (such amount being hereinafter referred to as the
"Severance Amount") equal to the product of multiplying (l) the sum of (i) the
Executive's then current monthly base salary (without, in the event of a
termination of the Executive's employment pursuant to Section 4(c)(ii) hereof,
giving effect to any reduction in the Executive's base salary) and (ii) the
Executive's Recent Average Bonus divided by 12 and (2) the number of months
determined in accordance with Exhibit A attached to this Agreement, which
Exhibit A sets forth a specific number of months or describes a method of
determining a specific number of months on the basis of the Executive's then
current (a) completed years of service with the Company and its affiliates, (b)
annual base salary and (c) age; provided, however, that such amount shall be
reduced by the present value (determined as provided in Section 280G(d)(4) of
the Internal Revenue Code of 1986, as amended (the "Code")) of any other amount
of severance relating to salary or bonus continuation to be received by the
Executive, upon such termination of employment, under any other severance plan,
policy or arrangement of the Company. One-third of the Severance Amount (the
"Non-Compete Payment") shall be deemed to be allocable to the performance of the
covenants applicable to Executive pursuant to the Confidentiality and
Non-Competition Agreement attached hereto as Exhibit B;
(ii) At the Date of Termination, stock options, restricted stock, and other
awards relating to stock under equity incentive plans or programs of the Company
and its affiliates which would have become vested (non-forfeitable) if
Executive's employment had continued for thirty-six (36) months thereafter,
excluding awards that require performance goals
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to be achieved in addition to passage of time and continued employment, will be
immediately vested and exercisable, and any such stock options and other
outstanding stock options already vested at or before the Date of Termination
shall remain outstanding and exercisable for a period that is the greater of one
year after the Date of Termination (but in no event after the stated expiration
date of such option) or such longer period as may be provided under the
applicable plan or program, and any such awards subject to settlement at a date
later than the vesting date shall be immediately settled; and
(iii) For twenty-four (24) months after the Date of Termination, or for
such longer period as any other 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, if the
Executive's employment had not been terminated, in accordance with (A) the
welfare benefit plans, practices, programs or policies of the Company and its
affiliated companies as in effect and applicable generally to other peer
executives and their families during the ninety (90)-day period immediately
preceding the Effective Date or (B) if more favorable to the Executive, those in
effect generally from time to time thereafter with respect to other peer
executives of the Company and its affiliated companies and their families (such
continuation of such benefits for the applicable period herein set forth being
hereinafter referred to as "Welfare Benefit Continuation"); provided that if
such continued coverage is not permitted by the applicable plans or by
applicable law, the Company shall provide the Executive and/or Executive's
family with comparable benefits of equal value; and provided further that if the
Executive becomes reemployed with another employer and is eligible to receive
medical or other welfare benefits under another employer-provided plan, the
medical and other welfare benefits described herein shall be secondary to those
provided under such other plan during such applicable period of eligibility. 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 during the twenty-four (24) month period
immediately following the Date of Termination and to have retired on the last
day of such period; and
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(iv) For twenty-four (24) months following the Date of Termination (such
period, the "Other Benefits Continuation Period"), the Company shall continue to
provide the Executive and his family with the benefits and perquisites (such
benefits and perquisites being hereinafter referred to as the "Other Benefits")
(or, in the event that the provision of such benefits and perquisites is not
possible, the cash value of such benefits and perquisites), at least equal to
those which would have been provided to them if the Executive's employment had
not been terminated, in accordance with the terms generally applicable with
respect to the provision of such benefits and perquisites during the ninety (90)
day period immediately preceding the Effective Date, or, if more favorable to
the Executive, in effect generally from time to time thereafter during such
Other Benefits Continuation Period with respect to other peer executives of the
Company and its affiliated companies and their families. The Other Benefits
shall include (but shall not be limited to) the following: employer
contributions to the AMCORE Financial Security Plan, AMCORE Top Hat Plan, AMCORE
Cash Profit Plan or any other defined contribution retirement plan, club
membership fees, financial planning allowance and car allowance. Such benefits
shall be paid or made available to the Executive in the manner and at such time
or times as they would otherwise have been paid or made available absent the
occurrence of an event which triggers the application of this Section 5(a)(iv).
(b) Death. If the Executive's employment is terminated by reason of the
Executive's death during the Effective Period, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, other than for (i) payment of the Accrued Obligations (which shall be
paid to the Executive's estate or beneficiary, as applicable, in a lump sum in
cash within thirty (30) days of the Date of Termination) and (ii) the timely
payment or provision of the Welfare Benefit Continuation and Other Benefits.
(c) Disability. If the Executive's employment is terminated by reason of
the Executive's Disability during the Effective Period, this Agreement shall
terminate without further obligations to the Executive, other than for (i)
payment of the Accrued Obligations (which shall be paid to the Executive in a
lump sum in cash within thirty (30) days of the Date of Termination) and (ii)
the timely payment or provision of the Welfare Benefit Continuation and Other
Benefits during the twelve (12) month period immediately following the Date of
Termination.
(d) Cause; Other than for Good Reason. If, during the Effective Period, the
Executive's employment shall be terminated by the Company for Cause or the
Executive terminates employment not for Good Reason:
(i) The Company may elect to have the Confidentiality and Non-Competition
Agreement attached hereto as Exhibit B become effective and remain in effect in
accordance with the terms of that Agreement, by giving notice of such election
to the Executive, not later than five (5) business days after the effectiveness
of the Executive's termination of employment. If the Company makes such
election, the Company will be obligated to pay to the Executive, in equal
installments payable on the dates salary would have been paid had the
Executive's employment not terminated, during the one-year period following such
termination, an amount equal to one-third of the Severance Amount (the
"Non-Compete Payment") determined in accordance with Section 4(a)(i)(B) hereof.
The Non-Compete Payment shall represent payment for the performance of the
covenants applicable to Executive pursuant to the Confidentiality and
Non-Competition Agreement.
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(ii) If the Executive's employment was terminated by the Company for Cause,
the Company shall pay the Executive's then current annual base salary through
the Date of Termination, plus the amount of any compensation previously deferred
by the Executive (together with any accrued interest or earnings thereon and as
adjusted to reflect any other appreciation or depreciation in value and any
accrued vacation pay; in each case to the extent theretofore unpaid.
(iii) If the Executive terminates his employment other than for Good
Reason, the Company shall pay to the Executive the Accrued Obligations. In such
case, all Accrued Obligations shall be paid to the Executive in a lump sum in
cash within thirty (30) days of the Date of Termination.
(iv) Upon payment by the Company of the applicable amounts under this
Section 5(d), the Agreement shall terminate without further obligations to the
Executive.
6. Limitation of Payments. The Company agrees that:
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution by the Company to
or for the benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
6) (a "Payment") would be subject to the excise tax imposed by Section 4999 of
the Code.
(b) All determinations required to be made under this Section 6 shall be
made by KPMG Peat, Marwick (the "Accounting Firm"), which shall provide detailed
supporting calculations both to the Company and the Executive within fifteen
(15) business days of receipt of a written request from the Company or the
Executive for a determination as to whether reductions of a payment is necessary
in order to avoid the excise tax imposed by Section 4999 of the Code. In the
event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change of Control, the Executive shall
appoint another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Company. If the Accounting Firm determines that a payment
under this Agreement (without reduction pursuant to paragraph (a), above) will
not be subject to the excise tax imposed by Section 4999 of the Code, the
Accounting Firm shall furnish the Executive with a written opinion that failure
to report, on the Executive's applicable federal income tax return, any excise
tax in connection with such payment would not result in the imposition of a
negligence or similar penalty. Any good faith determinations by the Accounting
Firm shall be binding upon the Company and the Executive.
7. Non-exclusivity of Rights. Except as explicitly provided in this
Agreement, nothing in this Agreement shall prevent or limit the Executive's
continuing or future participation in any plan, program, policy or practice
provided by the Company or any of its affiliated companies and for which the
Executive may qualify, nor shall anything herein limit or otherwise affect such
rights as the Executive may have under applicable law or under any other
contract or agreement with the Company or any of its affiliated companies.
Amounts which are vested
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benefits or which the Executive is otherwise entitled to receive under any other
plan, policy, practice or program of; or any other contract or agreement with,
the Company or any of its affiliated companies at, or subsequent to, the Date of
Termination shall be payable in accordance with such plan, policy, practice or
program or contract or agreement except as explicitly modified by this Agreement
8. Full Settlement; Resolution of Disputes.
(a) 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 set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against the Executive or others (except as
specifically provided with respect to the Non-Compete Payment). In no event
shall the Executive be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to the Executive under any of
the provisions of this Agreement and, except as provided in Section 5(a)(iii) of
this Agreement, such amounts shall not be reduced whether or not the Executive
obtains other employment. The Company agrees to pay promptly upon receipt of
proper invoices, to the fullest extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result of any contest by
the Company, the Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee of performance
thereof (including as a result of any contest initiated by the Executive about
the amount of any payment due pursuant to this Agreement), plus in each case
interest on any delayed payment at the applicable federal rate provided for in
Section 7872(f)(2)(A) of the Code; provided, however, that in the event that it
is finally judicially determined that the Executive was terminated for Cause,
then the Executive shall be obligated to repay to the Company the full amount of
all such legal fees and expenses paid for the Executive by the Company in
connection with that contest, plus interest at the rate described above.
(b) If there shall be any dispute between the Company and the Executive (i)
in the event of any termination of the Executive's employment by the Company,
whether such termination was for Cause, or (ii) in the event of any termination
of employment by the Executive, whether Good Reason existed, then, unless and
until there is a final, nonappealable judgment by a court of competent
jurisdiction declaring that such termination was for Cause or that the
determination by the Executive of the existence of Good Reason was not made in
good faith, the Company shall pay all amounts, and provide all benefits, to the
Executive and/or the Executive's family or other beneficiaries, as the case may
be, that the Company would be required to pay or provide pursuant to Section
5(a) hereof as though such termination were by the Company without Cause or by
the Executive with Good Reason; provided, however, that the Company shall not be
required to pay any disputed amounts pursuant to this paragraph except upon
receipt of an undertaking by or on behalf of the Executive and/or the other
recipient(s), as the case may be, to repay all such amounts to which the
Executive or other recipient, as the case may be, is ultimately adjudged by such
court not to be entitled.
9. Confidential Information. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliated companies,
and their respective businesses, which shall have
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been obtained by the Executive during the Executive's employment by the Company
or any of its affiliated companies and which shall not be or become public
knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). After termination of the Executive's
employment with the Company, the Executive shall not, without the prior written
consent of the Company or as may otherwise be required by law or legal process,
communicate or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it. However, in no event shall an
asserted violation of the provisions of this Section 9 constitute a basis for
deferring or withholding any amounts otherwise payable to the Executive under
this Agreement.
10. Successors.
(a) This Agreement is personal to the Executive and, without the prior
written consent of the Company, no obligations or rights hereunder shall be
assignable by the Executive otherwise than by will or the laws of descent or
distribution. This Agreement shall inure to the benefit of and be enforceable by
the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
(c) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to assume expressly 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. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement, by operation of law or otherwise.
11. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of Illinois, without reference to principles of choice of
law. The captions of this Agreement are for convenience only and are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing and
shall be given to the other party by hand delivery or commercial messenger
delivery or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive:
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(Named Executive, address)
If to the Company:
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Amcore Financial, Inc.
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or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
(d) The Company may withhold from any amounts payable under this Agreement
such federal, state or local taxes as shall be required to be withheld pursuant
to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision hereof or the failure to assert any right that the
Executive or the Company may have hereunder, including, without limitation, the
right of the Executive to terminate employment for Good Reason pursuant to
Section 4(c) of this Agreement, shall not be deemed to be a waiver of such
provision or right or of any other provision of or right under this Agreement.
(f) The Executive and the Company acknowledge that this Agreement is not a
contract of employment and that, except as may otherwise be provided under any
other written agreement between the Executive and the Company, the employment of
the Executive by the Company is, and shall remain during the Effective Period,
"at will" and may, subject to Section 5, above, be terminated by either the
Executive or the Company at any time. Moreover, subject to Section 1, above, if
prior to the Effective Date (i) the Executive's employment with the Company and
all affiliates terminates or (ii) the Executive ceases to be an officer of the
Company and of all affiliates, then the Executive shall have no further rights
under this Agreement.
(g) This Agreement embodies the entire agreement and understanding between
the Company and the Executive and supersedes all prior agreements and
understandings between the Company and Executive relating to the subject matter
hereof, including (but not by way of limitation) the Transitional Compensation
Agreement dated (previous agreement date).
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization of its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
AMCORE FINANCIAL, INC.
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its Executive Vice President & Chief
Administrative Officer
By:
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("Executive")
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Exhibit A
The number of months to be used in calculating the Severance Amount under
Section 5(a)(i)(B) of the Agreement to which this Exhibit A is attached is to be
determined by multiplying (a) the number of months determined under paragraph 2,
below, by (b) the Applicable Percentage determined under paragraph 3, below.
The following matrix shall be used to determine a specific number of months
on the basis of the Executive's completed years of service with the Company and
its affiliates ("Years of Service") and the Executive's annual base salary
("Base Salary"):
Years of Service
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0-2 3-5 6-10 11-20 21-30 Over 30
--- --- ---- ----- ----- -------
Base Salary
$100,000 and Over 14 16 18 20 24 28
$75,000 to $99,999 10 12 14 16 20 24
$50,000 to $74,999 6 8 10 12 16 20
$30,000 to $49,999 3 4 6 8 10 12
Less than $30,000 2 3 4 5 6 8
Number of Months
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The Applicable Percentage shall be determined according to the following
chart on the basis of Executive's age on the Date of Termination, with that age
being determined as of the Executive's most recent birth anniversary date
preceding the Date of Termination:
Age at Date of Termination Applicable Percentage
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Under 40 Years 100%
40 to 54 Years 125%
55 to 59 Years 150%
60 Years and Over 200%
EXHIBIT B
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT, dated as of April 1, 2002,
by and between Amcore Financial, Inc. (the "Company") and ___________________
("Executive").
Section 1. Non-Competition; Non-Solicitation.
(a) During the period beginning on the "Effective Date," as that term is
defined in the Transitional Compensation Agreement of even date herewith, and
continuing while Executive is serving as an executive officer of the Company and
for one year following the termination of Executive's employment with the
Company, any successor thereto, and its or their
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subsidiaries (the "Noncompetition Period"), if such termination of employment
occurs within one year after the Effective Date and Executive becomes entitled
to receive the "Non-Compete Payment" as defined in Section 5 of the Transitional
Compensation Agreement, Executive will not, within thirty-five (35) miles of the
Company's headquarters in Rockford, Illinois as of the Effective Date, engage in
"Competition" with the Company. For purposes of this Confidentiality and
Non-Competition Agreement, Competition by Executive shall mean Executive's:
(i) engaging in, including without limitation consulting or start-up
activities for Executive's own account or any third party, the business of
commercial banking (including trust and asset management and mortgage
banking); or
(ii) becoming interested in, or otherwise directly or indirectly being
employed by or acting as a consultant or lender to, or render any services
to, or being a director, officer, employee, principal, agent, stockholder,
manager, member, owner or partner of, employer of, or permitting his name
to be used in connection with the activities of any other business or
organization (a "Competing Business") which engages in, or is preparing to
engage in, the business of commercial banking (including trust and asset
management and mortgage banking); provided, however, that, notwithstanding
the foregoing, it shall not be a violation of this Section 2(a) for
Executive to become the registered or beneficial owner of up to two(2%)
percent of any class of the capital stock of a Competing Business
registered under the Securities Exchange Act of 1934, as amended, provided
that Executive does not otherwise participate in the business of such
corporation.
(b) during the Noncompetition Period, Executive will not in any manner,
directly or indirectly:
(i) solicit (or cause, or authorize, to be solicited), divert or
otherwise attempt to obtain the business of any person who is, or has at
any time within three years prior to the date of such action been, a
customer, supplier, licensee or business relation of the Company for any
purpose which is competitive with the Company's business;
(ii) intentionally disturb or attempt to disturb in any adverse
respect any business relationship between any person and the Company;
(iii) solicit from any customer of the Company, or from any known
potential customer of the Company, business which has been the subject of a
known written or oral bid, offer or proposal by the Company, or of
substantial preparation with a view to making such a bid, proposal or
offer, in any case, during the two-year period immediately preceding the
termination for any reason whatsoever of his service with the Company;
(iv) seek or attempt to persuade, induce or encourage any director,
officer, employee, consultant, advisor or other agent of the Company to
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discontinue his or her status or employment therewith or to become employed
or otherwise engaged in a Competing Business; and
(v) solicit or employ, or otherwise hire or engage as an employee,
independent contractor, consultant, advisor or otherwise, any person at any
time within 12 months following the date of cessation of employment of such
person or the termination of such person's other status, as the case may
be, with the Company.
Section 2. Confidentiality; Intellectual Property; Disclosure.
(a) Except as otherwise provided in this Confidentiality and
Non-Competition Agreement, at all times hereafter, Executive shall keep secret
and retain in strictest confidence, any and all Confidential Information (as
hereinafter defined) relating to the Company, and shall use such Confidential
Information only in furtherance of the performance by him of his duties as an
executive officer of the Company and not for personal benefit or the benefit of
any interest adverse to the interests of the Company. For purposes of this
Confidentiality and Non-Competition Agreement, "Confidential Information" shall
mean any confidential or proprietary information including, without limitation,
plans, specifications, models, samples, data, customer lists and customer
information, computer programs and documentation, and other technical and/or
business information, in whatever form, tangible or intangible, printed,
electronic or magnetic, that can be communicated by whatever means available at
such time, that relates to the Company's current business or future business
contemplated during the period Executive serves as an executive officer of the
Company, products, services and/or developments, or information received from
others that the Company is obligated to treat as confidential or proprietary,
and Executive shall not disclose such Confidential Information to any person
other than the Company, except as may be required by law or court or
administrative order (in which event Executive shall so notify the Company as
promptly as practicable). Upon the termination of Executive's position as an
executive officer of the Company for any reason, Executive shall promptly return
to the Company or destroy all copies, reproductions and summaries of
Confidential Information in his possession or control and erase the same from
all media in his possession or control, and, if the Company so requests, shall
certify in writing that he has done so. All Confidential Information is and
shall remain the property of the Company, or in the case of information that the
Company receives from a third party which it is obligated to treat as
confidential, then the property of such third party.
(b) All Intellectual Property (as hereinafter defined) created, developed,
co-developed, obtained or conceived of by Executive during the period Executive
is serves as an executive officer of the Company, and all business opportunities
presented to Executive during the period Executive serves as an executive
officer of the Company, shall be owned by and belong exclusively to the Company,
provided that they reasonably relate to any of the business of the Company on
the date of such creation, development, obtaining or conception, and Executive
shall (i) promptly disclose any such Intellectual Property or business
opportunity to the Company, and (ii) promptly execute and deliver to the
Company, without additional compensation, such instruments as the Company may
require from time to time to evidence its ownership of any such Intellectual
Property or business opportunity (the "Intellectual Property Documents"). If the
Company is unable because of Executive's mental or physical incapacity or
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for any other reason to secure Executive's signature for any Intellectual
Property Document, then Executive hereby irrevocably designates and appoints the
Company and its duly authorized officers and agents as his agent and attorney in
fact, to act for and in his behalf and stead to execute and file any
Intellectual Property Document and to do all other lawfully permitted acts to
evidence or perfect the Company's ownership and rights of and to any
Intellectual Property or business opportunity with the same legal force and
effect as if executed by Executive. For purposes of this Confidentiality and
Non-Competition Agreement, the term "Intellectual Property" means any and all of
the following and all statutory and/or common law rights throughout the world
in, arising out of, or associated therewith: (i) all patents and applications
therefor, including docketed patent disclosures awaiting filing, reissues,
divisions, renewals, extensions, provisionals, continuations and
continuations-in-part thereof; (ii) all inventions (whether patentable or not),
inventions disclosures and improvements, all trade secrets, confidential
business information (including ideas, research and development, know-how,
compositions, designs, specifications, pricing and cost information and business
and market plans and proposals), proprietary information, manufacturing,
engineering and technical drawings and specifications, processes, designs and
technology; (iii) all works of authorship, "moral rights," copyrights (including
derivative works thereof), mask works, copyright and mask work registrations and
applications therefor; (iv) all trade names, trade dress, logos, product names,
collective marks, collective membership marks, trademarks certification marks
and service marks, trademark and service ▇▇▇▇ registrations and applications
together with the goodwill of the business symbolized by the names and the
marks; (v) all data and related documents, object code, databases, passwords,
encryption technology, firmware, development tools, files, records and data, and
all media on which any of the foregoing is recorded; (vi) any similar,
corresponding or equivalent rights to any of the foregoing; (vii) all
documentation related to any of the foregoing; and (viii) all goodwill
associated with any of the foregoing.]
Section 3. Non-Disparagement.
Executive shall not, at any time from and after the Effective Date, make
statements or representations, or otherwise communicate, directly or indirectly,
in writing, orally, or otherwise, or take any action which may, directly or
indirectly, disparage or be damaging to the Company, its successors,
subsidiaries or affiliates or their respective officers, directors, employees,
advisors, businesses or reputations, and the Company, its successors,
subsidiaries and affiliates and their respective officers, employees, and agents
shall not make any such statements or representations regarding Executive.
Notwithstanding the foregoing, nothing in this Agreement shall preclude
Executive or any other person from making truthful statements that are required
by applicable law, regulation or legal process.
Section 4. Cooperation With Regard to Litigation.
Executive agrees to cooperate with the Company, at any time from and after
the Effective Date (including following Executive's termination of employment),
by making himself available to testify on behalf of the Company or any
successor, subsidiary or affiliate of the Company, in any action, suit, or
proceeding, whether civil, criminal, administrative, or investigative, and to
assist the Company, or any successor, subsidiary or affiliate of the Company, in
any such action, suit, or proceeding, by providing information and meeting and
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consulting with the Board or its representatives or counsel, or representatives
or counsel to the Company, or any subsidiary or affiliate of the Company, as may
be reasonably requested and after taking into account Executive's
responsibilities and obligations to third parties. The Company agrees to
reimburse Executive, on an after-tax basis, for all expenses actually incurred
in connection with his provision of testimony or assistance hereunder.
Section 5. Covenants Reasonable.
Executive hereby acknowledges that the business of the Company is highly
competitive. Executive further acknowledges that this Confidentiality and
Non-Competition Agreement is being entered into in connection with the
Transitional Compensation Agreement, that his service to the Company will be of
a special and unique character, and that he will continue to be identified
personally with the Company. Executive also acknowledges that service as an
executive officer of the Company will require that he have access to some of the
Company's most highly confidential business information, trade secrets and
proprietary information. The parties therefore acknowledge that the restrictions
contained in Sections 1 and 2 hereof are a reasonable and necessary protection
of the immediate interests of the Company, and any violation of these
restrictions would cause substantial injury to the Company and that the Company
would not have entered into the Transitional Compensation Agreement and this
Confidentiality and Non-Competition Agreement without receiving the additional
consideration offered by Executive in binding himself to any of these
restrictions.
Section 6. Governing Law; Consent to Jurisdiction; Injunctive Relief.
This Confidentiality and Non-Competition Agreement shall be governed by,
and construed and enforced in accordance with, the laws of the State of
Illinois, without regard to its conflict of laws provisions. In the event of a
breach or threatened breach by Executive of any of these restrictions, the
Company shall be entitled to apply to any court of competent jurisdiction for an
injunction restraining Executive from such breach or threatened breach;
provided, however, that the right to apply for an injunction shall not be
construed as prohibiting the Company from pursuing any other available remedies
for such breach or threatened breach.
Section 7. Notices.
Unless otherwise provided herein, any notice, exercise of rights or other
communication required or permitted to be given hereunder shall be in writing
and shall be given by overnight delivery service such as Federal Express,
telecopy (or like transmission) or personal delivery against receipt, or mailed
by registered or certified mail (return receipt requested), to the party to whom
it is given at such party's address set forth below such party's name on the
signature page or such other address as such party may hereafter specify by
notice to the other party hereto. Any notice or other communication shall be
deemed to have been given as of the date so personally delivered or transmitted
by telecopy or like transmission or on the next business day when sent by
overnight delivery service.
Section 8. Amendment.
This Confidentiality and Non-Competition Agreement may be amended,
modified, superseded or canceled, and the terms and covenants hereof may be
waived, only by a
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written instrument executed by both of the parties hereto, or in the case of a
waiver, by the party waiving compliance. The failure of either party at any time
or times to require performance of any provision hereof shall in no manner
affect the right at a later time to enforce the same.
Section 9. Binding Effect.
This Confidentiality and Non-Competition Agreement is not assignable by
Executive. This Confidentiality and Non-Competition Agreement shall be binding
upon and inure to the benefit of the Company and any successor organizations
which shall succeed to the Company by merger or consolidation or operation of
law or otherwise, or by acquisition of all or substantially all of the assets of
the Company.
Section 10. Severability.
Executive acknowledges and agrees that the restrictive covenants and
agreements contained herein (the "Restrictive Covenants") are reasonable and
valid in geographic and temporal scope and in all other respects, and do not
impose limitations greater than that are necessary to protect the goodwill, the
confidential information and any other business interests of the Company, or any
of its successors or assigns. If, however, any court subsequently determines
that any of such covenants or agreements, or any part thereof, is invalid or
unenforceable, the remainder of such covenants and agreements shall not thereby
be affected and shall be given full effect without regard to the invalid
portions thereof. In addition, if any court construes any of the Restrictive
Covenants, or any part thereof, to be unenforceable because of the duration of
such provision or the area covered thereby, such court shall have the power to
reduce the duration or area of such provision and, in its reduced form, such
provision shall then be enforceable and shall be enforced.
Section 11. Execution in Counterparts.
This Confidentiality and Non-Competition Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original and all of
which shall constitute one and the same instrument.
Section 12. Entire Agreement.
This Confidentiality and Non-Competition Agreement (together with
applicable provisions of the Transitional Compensation Agreement) sets forth the
entire agreement, and supersedes all prior agreements and any other agreement
between the parties and understandings, both written and oral, between the
parties with respect to the subject matter hereof as applicable to any period
after the Effective Date (except for other agreements relating to
confidentiality, proprietary information and intellectual property as may be
entered into by Executive and the Company or any subsidiary or affiliate).
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Section 13. Titles and Headings.
Titles and headings to Sections herein are for purposes of reference only,
and shall in no way limit, define or otherwise affect the meaning or
interpretation of any of the provisions of this Confidentiality and
Non-Competition Agreement.
Section 14. Conflicts of Interest; Representations and Warranties.
Executive specifically covenants, warrants and represents to the Company
that he has the full, complete and entire right and authority to enter into this
Confidentiality and Non-Competition Agreement, that he has no agreement, duty,
commitment or responsibility or obligation of any kind or nature whatsoever with
any corporation, partnership, firm, company, joint venture or other person which
would conflict in any manner whatsoever with any of his duties, obligations or
responsibilities to the Company pursuant to this Confidentiality and
Non-Competition Agreement or which could interfere with Executive's performance
under this Confidentiality and Non-Competition Agreement, that he is not in
possession of any document or other tangible property of any other person of a
confidential or proprietary nature which would conflict in any manner whatsoever
with any of his duties, obligations or responsibilities to the Company pursuant
to this Confidentiality and Non-Competition Agreement and Executive's
performance of his obligations to the Company will not breach any agreement by
which Executive is bound not to disclose any proprietary information, and that
he is fully ready, willing and able to perform each and all of his duties,
obligations and responsibilities pursuant to this Confidentiality and
Non-Competition Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Confidentiality and
Non-Competition Agreement.
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Name: (Named Executive)
Address:
AMCORE FINANCIAL, INC.
By:_________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: EVP & CAO
Address: Amcore Financial, Inc.
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