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Exhibit (10)(tt)
CHANGE OF CONTROL
AGREEMENT
THIS AGREEMENT, entered into
as of the 1st day of January, 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 (by any party, including the C
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