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Exhibit 10.1
CHANGE OF CONTROL AGREEMENT
THIS AGREEMENT, entered into as of the 18th day of December,
2008, by and between MARSHALL & ILSLEY CORPORATION (the
"Company"), and «Name» (the "Executive")
(hereinafter collectively referred to as "the parties").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that the possibility of a Change of Control (as
hereinafter defined in Section 2) exists and that the threat of or
the occurrence of a Change of Control can result in significant
distractions of its key management personnel because of the
uncertainties inherent in such a situation; and
WHEREAS, the Board has determined that it is essential and in
the best interests of the Company and its shareholders to retain
the services of the Executive in the event of a threat or
occurrence of a Change of Control and to ensure his continued
dedication and efforts in such event without undue concern for his
personal financial and employment security; and
WHEREAS, in order to induce the Executive to remain in the
employ of the Company, particularly in the event of a threat of or
the occurrence of a Change of Control, the Company desires to enter
into this Agreement with the Executive.
NOW, THEREFORE, in consideration of the respective agreements of
the parties contained herein, it is agreed as follows:
1. Employment Term . (a) The "Employment
Term" shall commence on the first date during the Protected Period
(as defined in Section 1(c), below) on which a Change of Control
(as defined in Section 2, below) occurs (the "Effective Date") and
shall expire on the third anniversary of the Effective Date;
provided , however , that at the end of each day of
the Employment Term the Employment Term shall automatically be
extended for one (1) day unless either the Company or the Executive
shall have given written notice to the other at least thirty (30)
days prior thereto that the Employment Term shall not be so
extended.
(b) Notwithstanding anything contained in this Agreement
to the contrary, if the Executive’s employment is terminated
prior to the Effective Date and the Executive reasonably
demonstrates that such termination (i) was at the request of a
third party who has indicated an intention or taken steps
reasonably calculated to effect a Change of Control, or (ii)
otherwise occurred in connection with or in anticipation of a
Change of Control, then for all purposes of this Agreement, the
Effective Date shall mean the date immediately prior to the date of
such termination of the Executive’s employment.
(c) For purposes of this Agreement, the "Protected Period"
shall be the three (3) year period commencing on the date hereof;
provided, however , that at the end of each day the
Protected Period shall be automatically extended for one (1) day
unless at least thirty (30) days prior thereto the Company shall
have given written notice to the Executive that the Protected
Period shall not be so extended; and provided ,
further , that notwithstanding any such notice by the
Company not to extend, the Protected Period shall not end if prior
to the expiration thereof
any third party has indicated an intention or taken steps
reasonably calculated to effect a Change of Control, in which event
the Protected Period shall end only after such third party publicly
announces that it has abandoned all efforts to effect a Change of
Control.
2. Change of Control . For purposes of this
Agreement, a "Change of Control" shall mean the first to occur of
the following:
(a) The acquisition by any individual, entity or "group"
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"))
of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of thirty-three percent (33%)
or more of either (i) the then outstanding shares of common stock
of the Company (the "Outstanding Company Common Stock") or (ii) the
combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors
(the "Outstanding Company Voting Securities"); provided ,
however , that the following acquisitions of common stock
shall not constitute a Change of Control: (i) any acquisition
directly from the Company (excluding an acquisition by virtue of
the exercise of a conversion privilege or by one person or a group
of persons acting in concert), (ii) any acquisition by the Company,
(iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation
controlled by the Company or (iv) any acquisition by any
corporation pursuant to a reorganization, merger, statutory share
exchange or consolidation which would not be a Change of Control
under subsection (c) of this Section 2; or
(b) Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided , however ,
that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by the
Company’s shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall
be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of
either an actual or threatened "election contest" or other actual
or threatened "solicitation" (as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act) of proxies or
consents by or on behalf of a person other than the Incumbent
Board; or
(c) Consummation of a reorganization, merger, statutory
share exchange or consolidation, unless, following such
reorganization, merger, statutory share exchange or consolidation,
(i) more than two-thirds (2/3) of, respectively, the then
outstanding shares of common stock of the corporation resulting
from such reorganization, merger, statutory share exchange or
consolidation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such reorganization, merger,
statutory share exchange or consolidation in substantially the same
proportions as their ownership, immediately prior to such
reorganization, merger, statutory share exchange or consolidation,
(ii) no person (excluding the Company, any employee benefit plan
(or related trust) of the Company or such corporation resulting
from such reorganization, merger, statutory
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share exchange or consolidation and any person beneficially
owning, immediately prior to such reorganization, merger, statutory
share exchange or consolidation, directly or indirectly,
thirty-three percent (33%) or more of the Outstanding Company
Common Stock or Outstanding Voting Securities, as the case may be)
beneficially owns, directly or indirectly, thirty-three percent
(33%) or more of, respectively, the then outstanding shares of
common stock of the corporation resulting from such reorganization,
merger, statutory share exchange or consolidation or the combined
voting power of the then outstanding voting securities of such
corporation, entitled to vote generally in the election of
directors and (iii) at least a majority of the members of the board
of directors of the corporation resulting from such reorganization,
merger, statutory share exchange or consolidation were members of
the Incumbent Board at the time of the execution of the initial
agreement providing for such reorganization, merger or
consolidation; or
(d) Consummation of (i) a complete liquidation or
dissolution of the Company or (ii) the sale or other disposition of
all or substantially all of the assets of the Company, other than
to a corporation, with respect to which following such sale or
other disposition, (A) more than two-thirds (2/3) of, respectively,
the then outstanding shares of common stock of such corporation and
the combined voting power of the then outstanding voting securities
of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities immediately
prior to such sale or other disposition in substantially the same
proportion as their ownership, immediately prior to such sale or
other disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (B) no
person (excluding the Company and any employee benefit plan (or
related trust) of the Company or such corporation and any person
beneficially owning, immediately prior to such sale or other
disposition, directly or indirectly, thirty-three percent (33%) or
more of the Outstanding Company Common Stock or Outstanding Company
Voting Securities, as the case may be) beneficially owns, directly
or indirectly, thirty-three percent (33%) or more of, respectively,
the then outstanding shares of common stock of such corporation or
the combined voting power of the then outstanding voting securities
of such corporation entitled to vote generally in the election of
directors and (C) at least a majority of the members of the board
of directors of such corporation were members of the Incumbent
Board at the time of the execution of the initial agreement or
action of the Board providing for such sale or other disposition of
assets of the Company.
3. Employment . (a) Subject to the
provisions of Section 3, hereof, the Company agrees to continue to
employ the Executive and the Executive agrees to remain in the
employ of the Company during the Employment Term. During the
Employment Term, the Executive shall be employed in such executive
capacity as may be mutually agreed to by the parties. During
the Employment Term, Executive’s position (including status,
offices, titles and reporting requirements), authority, duties and
responsibilities shall be at least commensurate in all material
respects with the most significant of those held or assigned at any
time during the twelve (12) month period immediately preceding the
Effective Date, and Executive’s services shall be performed
at the location where Executive was employed immediately preceding
the Effective Date or at any office or location less than
thirty-five (35) miles from such location, unless mutually agreed
to in writing by the parties.
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(b) Excluding periods of vacation and sick leave to which
the Executive is entitled, during the Employment Term the Executive
agrees to devote full time attention to the business and affairs of
the Company to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, provided that
the Executive may take reasonable amounts of time to (i) serve on
corporate, civic or charitable boards or committees, and (ii)
deliver lectures, fulfill speaking engagements or teach at
educational institutions, if such activities do not significantly
interfere with the performance of the Executive’s
responsibilities hereunder. It is expressly understood and
agreed that to the extent any such activities have been conducted
by the Executive prior to the Effective Date, the continued conduct
of such activities (or the conduct of activities similar in nature
and scope) subsequent to the Effective Date shall not thereafter be
deemed to interfere with the performance of Executive’s
responsibilities hereunder.
4. Compensation . (a) Base
Salary . During the Employment Term, the Executive shall
receive an annual base salary ("Annual Base Salary"), which shall
be paid at a monthly rate, at least equal to twelve (12) times the
highest monthly base salary paid or payable to the Executive by the
Company and its affiliated companies in respect of the twelve (12)
month period immediately preceding the month in which the Effective
Date occurs, including any amounts which were deferred under any
plans of the Company and its affiliated companies. During the
Employment Term, the Annual Base Salary shall be reviewed at least
annually and shall be increased at any time and from time to time
as shall be substantially consistent with increases in base salary
generally awarded in the ordinary course of business to other peer
executives of the Company and its affiliated companies. Any
increase in Annual Base Salary shall not serve to limit or reduce
any other obligation to the Executive under this Agreement.
Annual Base Salary shall not be reduced after any such
increase and the term Annual Base Salary as utilized in this
Agreement shall refer to Annual Base Salary as so increased.
As used in this Agreement, the term "affiliated companies"
shall include any company controlled by, controlling or under
common control with the Company.
(b) Annual Bonus . In addition to Annual
Base Salary, the Executive shall be awarded, for each fiscal year
ending during the Employment Term, an annual bonus (the "Annual
Bonus") in cash at least equal to the average annualized (for any
fiscal year consisting of less than twelve (12) full months or with
respect to which the Executive has been employed by the Company for
less than twelve (12) full months) bonuses paid or payable,
including any amounts which were deferred under any plans of the
Company and its affiliated companies, to the Executive by the
Company and its affiliated companies in respect of the three (3)
fiscal years immediately preceding the fiscal year in which the
Effective Date occurs (the "Recent Average Bonus"). Each such
Annual Bonus shall be paid no later than seventy-five (75) days
after the end of the fiscal year for which the Annual Bonus is
awarded, unless the Executive shall elect to defer the receipt of
such Annual Bonus under any plan or arrangement of the Company
allowing therefor.
(c) Incentive, Savings and Retirement Plans .
During the Employment Term, the Executive shall be entitled
to participate in all incentive, savings and retirement plans,
practices, policies and programs applicable generally to other peer
executives of the Company and its affiliated companies, but in no
event shall such plans, practices, policies and programs provide
the Executive with incentive opportunities (measured with respect
to both regular and special incentive opportunities, to the extent,
if any, that such distinction is applicable), savings opportunities
and retirement benefit opportunities, in each case, less favorable,
in the aggregate,
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than the most favorable of those provided by the Company and its
affiliated companies for the Executive under such plans, practices,
policies and programs as in effect at any time during the twelve
(12) month period immediately preceding the Effective Date, or, if
more favorable to the Executive, those provided generally at any
time after the Effective Date to other peer executives of the
Company and its affiliated companies.
(d) Benefit Plans . During the Employment
Term, the Executive and/or the Executive’s family, as the
case may be, shall be eligible for participation in and shall
receive all benefits under benefit plans, practices, policies and
programs provided by the Company and its affiliated companies
(including, without limitation, medical, prescription drug, dental,
disability, salary continuance, employee life, group life,
accidental death and travel accident insurance plans and programs)
to the extent applicable generally to other peer executives of the
Company and its affiliated companies and their families; but in no
event shall such plans, practices, policies and programs provide
the Executive with benefits which are less favorable, in the
aggregate, than the most favorable of such plans, practices,
policies and programs in effect for the Executive and his family at
any time during the twelve (12) month period immediately preceding
the Effective Date or, if more favorable to the Executive, those
provided generally at any time after the Effective Date to other
peer executives of the Company and its affiliated companies and
their families.
(e) Expenses . During the Employment Term,
the Executive shall be entitled to receive prompt reimbursement for
all reasonable expenses incurred by the Executive in accordance
with the most favorable policies, practices and procedures of the
Company and its affiliated companies in effect for the Executive at
any time during the twelve (12) month period immediately preceding
the Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other peer
executives of the Company and its affiliated companies.
(f) Fringe Benefits . During the Employment
Term, the Executive shall be entitled to fringe benefits (including
but not limited to Company cars, club dues and physical
examinations) in accordance with the most favorable plans,
practices, programs and policies of the Company and its affiliated
companies in effect for the Executive at any time during the twelve
(12) month period immediately preceding the Effective Date or, if
more favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and
its affiliated companies.
(g) Office and Support Staff . During the
Employment Term, the Executive shall be entitled to an office or
offices of a size and with furnishings and other appointments, and
to exclusive personal secretarial and other assistance, in
accordance with the most favorable of the foregoing provided to the
Executive by the company and its affiliated companies at any time
during the twelve (12) month period immediately preceding the
Effective Date or, if more favorable to the Executive, as provided
generally at any time thereafter with respect to other peer
executives of the Company and its affiliated companies.
(h) Vacation and Sick Leave . During
the Employment Term, the Executive shall be entitled to paid
vacation and sick leave (without loss of pay) in accordance with
the most favorable plans, policies, programs and practices of the
Company and its affiliated companies as
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in effect for the Executive at any time during the twelve (12)
month period immediately preceding the Effective Date or, if more
favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and
its affiliated companies.
(i) Restrictions . As of the Effective Date,
all restrictions limiting the exercise, transferability or other
incidents of ownership of any outstanding award, including but not
limited to restricted stock, options, stock appreciation rights, or
other property or rights of the Company granted to the Executive
shall lapse, and such awards shall become fully vested and be held
by the Executive free and clear of all such restrictions.
This provision shall apply to all such property or rights
notwithstanding the provisions of any other plan or agreement,
unless the effect of the application of this provision to a
particular right or property would result in the loss of favorable
securities law treatment for participants under the plan pursuant
to which the award was granted.
5. Termination of Employment . During the
Employment Term, the Executive’s employment hereunder may be
terminated under the following circumstances:
(a) Death or Disability . The
Executive’s employment shall terminate automatically upon the
Executive’s death during the Employment Term. If the
Company determines in good faith that the Disability of the
Executive has occurred during the Employment Term (pursuant to the
definition of Disability set forth below), it may give to the
Executive written notice in accordance with Section 5 of this
Agreement of its intention to terminate the Executive’s
employment. In such event, the Executive’s employment
with the Company shall terminate effective on the thirtieth (30th)
day after receipt of such notice by the Executive (the "Disability
Effective Date"), provided that, within thirty (30) days after such
receipt, the Executive shall not have returned to full-time
performance of the Executive’s duties. For purposes of
this Agreement, "Disability" shall mean the absence of the
Executive from the Executive’s duties with the Company on a
full-time basis for one hundred eighty (180) consecutive business
days as a result of incapacity due to mental or physical illness
which is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to the
Executive or the Executive’s legal representative, provided
if the parties are unable to agree, the parties shall request the
Dean of the Medical College of Wisconsin to choose such
physician.
(b) Cause . The Company may terminate the
Executive’s employment for "Cause." A termination for
Cause is a termination evidenced by a resolution adopted in good
faith by a majority of the Board that the Executive (i) willfully,
deliberately and continually failed to substantially perform his
duties under Section 3, above (other than a failure resulting from
the Executive’s incapacity due to physical or mental illness)
which failure constitutes gross misconduct, and results in and was
intended to result in demonstrable material injury to the Company,
monetary or otherwise, or (ii) committed acts of fraud and
dishonesty constituting a felony, as determined by a final judgment
or order of a court of competent jurisdiction, and resulting or
intended to result in gain to or personal enrichment of the
Executive at the Company’s expense, provided ,
however , that no termination of the Executive’s
employment shall be for Cause as set forth in (i), above, until (a)
Executive shall have had at least sixty (60) days to cure any
conduct or act alleged to provide Cause for termination after a
written notice of demand has been delivered to the Executive
specifying in detail the manner in which the Executive’s
conduct violates this Agreement, and (b) the Executive shall have
been provided an
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opportunity to be heard by the Board (with the assistance of the
Executive’s counsel if the Executive so desires). No
act, or failure to act, on the Executive’s part, shall be
considered "willful" unless he has acted or failed to act in bad
faith and without a reasonable belief that his action or failure to
act was in the best interest of the Company. Notwithstanding
anything contained in this Agreement to the contrary, no failure to
perform by the Executive after Notice of Termination is given by
the Executive shall constitute Cause for purposes of this
Agreement.
(c) Good Reason .
(1) The Executive may terminate his employment for Good
Reason. For purposes of this Agreement, "Good Reason" shall
mean the occurrence after a Change of Control of any of the events
or conditions described in Subsections (i) through (vi) hereof:
(i) A change in the Executive’s status, title,
position or responsibilities (including reporting responsibilities)
which, in the Executive’s reasonable judgment, does not
represent a promotion from his status, title, position or
responsibilities as in effect immediately prior thereto; the
assignment to the Executive of any duties or responsibilities
which, in the Executive’s reasonable judgment, are
inconsistent with his status, title, position or responsibilities
in effect immediately prior to such assignment; or any removal of
the Executive from or failure to reappoint or reelect him to any
position, except in connection with the termination of his
employment for Disability, Cause, as a result of his death or by
the Executive other than for Good Reason;
(ii) Any failure by the Company to comply with any of the
provisions of Section 4 of this Agreement.
(iii) The insolvency or the filing (
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