Exhibit 10.4
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT (this “
Agreement ”) is made and entered into as of the 4th
day of September, 2008 by and among Taylor Capital Group, Inc.
(“ TCGI ”), Cole Taylor Bank (the “
Bank ”) and Bruce Taylor (“ Executive
”) (together, the “ Parties ”). This
Agreement shall become effective only upon the Closing on the
Closing Date (as such terms are defined in the Securities Purchase
Agreement) contemplated by that certain Securities Purchase
Agreement dated as of September 4, 2008 by and among TCGI, the
Bank and each of the preferred stock investors listed on the
Schedule of Buyers attached thereto (the “ Securities
Purchase Agreement ”). Prior to such Closing and
notwithstanding any provision in this Agreement to the contrary,
this Agreement shall not be effective and Executive shall have no
rights of any kind hereunder. In the event that the Closing
contemplated by the Securities Purchase Agreement does not occur on
or before December 31, 2008, this Agreement shall not become
effective and shall be void and of no effect.
RECITALS:
A. TCGI desires to employ Executive
to serve as its Chief Executive Officer and Chairman of the Board
of Directors of TCGI, and the Bank desires to employ Executive to
serve as the Chairman of the Board of Directors of the Bank, and
Executive desires to be employed in such capacity by TCGI and the
Bank on the terms and conditions set forth in this Agreement;
and
B. The Parties desire to enter into
this Agreement to set forth the terms and provisions of
Executive’s employment with TCGI and the Bank and certain
other agreements which will survive Executive’s employment,
as set forth below.
NOW, THEREFORE
, in consideration of the premises,
the mutual covenants, promises and agreements hereinafter set
forth, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties
hereto, intending to be legally bound, agree as set forth
herein.
1. EMPLOYMENT
. TCGI and the Bank hereby employ
Executive, and Executive hereby accepts employment with TCGI and
the Bank upon and subject to the terms and conditions set forth
herein. Executive will serve as Chairman of the Bank, and as
Chairman and Chief Executive Officer of TCGI. During the Term and
thereafter for so long as the Executive is one of the “Taylor
Family” nominees to the Board of Directors of TCGI pursuant
to Section 2.9 of the Bylaws of TCGI:
A. TCGI shall make its best effort
to cause the Executive to be elected to the Board of Directors of
TCGI and as its Chairman;
B. at each meeting of the
stockholders of TCGI at which directors of TCGI are to be elected
and in each proxy statement relating thereto, TCGI shall recommend
that the stockholders elect the Executive to the Board of Directors
of TCGI as its Chairman;
C. TCGI shall cause Executive to be
elected to and maintained as a member and Chairman of the Board of
Directors of the Bank and to each executive or other committee
thereof (other than a traditional audit or compensation committee);
and
D. to the extent that TCGI fails to
cause the Executive to be appointed to and maintained on the Board
of Directors of TCGI, TCGI shall cause the Executive to be
appointed as an observer of the Board of Directors of TCGI (other
than a traditional audit or compensation committee but including
any executive committee) entitled to attend all meetings thereof
and receive copies of all actions to be taken by written consent at
the same time as the members thereof.
The foregoing obligations shall not
limit or preclude the Board of Directors of TCGI or the Bank from
taking or failing to take any action that the Board of Directors of
TCGI or the Bank determines in good faith, consistent with the
legal opinion of its outside legal counsel, that to do otherwise
would violate its fiduciary duties under applicable law.
2. DUTIES
. During the Term, Executive will
employ his best efforts and will devote the whole of his normal
business time, energy, skill and attention to carrying out the
responsibilities assigned to him, in accordance with TCGI’s
and the Bank’s policies in effect from time to time and in a
diligent, trustworthy, businesslike and efficient manner. In each
case, Executive shall have the responsibility, authority, and such
other duties that are customary for an executive officer of a
similar corporation having similar titles and duties. The TCGI
Board of Directors (the “ Board ”) shall oversee
Executive in his duties as Chief Executive Officer and Chairman and
the Bank’s Board of Directors shall oversee Executive in his
duties as Chairman of the Board of Directors of the Bank. To the
extent that such activities do not inhibit Executive from
performing his duties for TCGI and the Bank, and do not conflict
with the interests of TCGI or the Bank, nothing in this Agreement
shall preclude Executive from (a) subject to prior approval of
the Audit Committee of the Board, service as a director at any
other entity in accordance with TCGI or Bank policy,
(b) service to any civic, religious, charitable or similar
type organization, (c) public speaking engagements, and
(d) management of personal and family investments. As of the
date hereof, Executive’s continuing service on the boards of
directors of Mutual Trust Financial Group and MTL Insurance Company
has been permitted by the Audit Committee of the Board, and the
Parties agree that, if at some future time the Audit Committee of
the Board shall reasonably determine that such service would be a
conflict or contrary to TCGI or Bank policy, then, promptly upon
written notice thereof from the Audit Committee of the Board,
Executive shall resign from such board(s). The duties and services
to be performed by Executive hereunder shall be substantially
rendered at TCGI’s principal offices in the Chicagoland area,
except for reasonable travel on business incidental to the
performance of Executive’s duties to TCGI or the
Bank.
3. COMPENSATION
.
3.1 Base Salary
. During the Term, TCGI will pay to
Executive a base salary at an annual rate of no less than Five
Hundred Twenty-Five Thousand Two Hundred Dollars ($525,200),
subject to applicable deductions and withholdings for taxes to be
paid in periodic payments in accordance with TCGI’s usual
payroll practices (“ Base Salary ”).
Executive’s Base Salary shall be subject to increase, but not
decrease (other than permitted proportionate reductions applicable
to all similarly situated senior executives of TCGI or the Bank,
but not any such reduction during the two (2) year period
commencing upon a Change in Control, as defined in
Section 4.3(a)(iii)), at the discretion of the Compensation
Committee of the Board.
3.2 Annual Incentive
Compensation . During
the Term, Executive will continue to be eligible to participate in
the Taylor Capital Group, Inc. 2007 Incentive
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Bonus Plan or any such successor
plan in effect from time to time (“ Bonus Plan
”). Eligibility and benefits shall be determined by the terms
of the Bonus Plan as in effect from time to time. Executive’s
benefits under the Bonus Plan (referred to as the “
Bonus ”) shall be based upon annual quantitative
performance targets as established by the Compensation Committee in
its sole discretion in accordance with the Bonus Plan.
Executive’s 2008 target shall remain sixty percent
(60%) of Executive’s Base Salary, as previously
established by the Compensation Committee of the Board. Any Bonus
earned by Executive shall be paid to Executive in accordance with
the terms of the Bonus Plan.
3.3 Long-Term Incentive
Compensation Plan .
During the Term, Executive will continue to be eligible to
participate in the Taylor Capital Group, Inc. 2002 Incentive
Compensation Plan or any successor plan in effect from time to time
(“ Incentive Plan ”) in accordance with its
terms as in effect from time to time. Executive shall have annual
targets consistent with similar executive officers of TCGI and the
Bank.
3.4 Deferred Compensation
Plan . During the
Term, Executive will continue to be eligible to participate in the
Taylor Capital Group, Inc. Deferred Compensation Plan or any such
successor plan in effect from time to time in accordance with its
terms as in effect from time to time.
3.5 401(k) Profit Sharing
Plan . During the
Term, Executive will continue to be eligible to participate in the
Taylor Capital Group, Inc. 401(k)/Profit Sharing plan or any
successor plan in effect from time to time in accordance with its
terms as in effect from time to time.
3.6 Expenses
. The Bank shall pay the legal fees
and expenses incurred by Executive in connection with the
negotiation and preparation of this Agreement and related documents
and relating to the transactions being contemplated with Harrison
Steans and certain of his affiliates within thirty (30) days
of the Bank’s receipt of statements evidencing such legal
fees and expenses; provided, that such fees and expenses, together
with other fees and expenses of the Taylor Family (including
without limitation, the consulting agreement among TCGI, the Bank
and Jeffrey Taylor) relating to such matters shall not in the
aggregate exceed $100,000; provided, further, that such
reimbursements shall not be made later than March 15,
2009.
3.7 Benefits
. For so long as Executive is an
employee of TCGI or the Bank, Executive will continue to be
eligible to participate in the health and welfare benefit plans
(which currently include medical, dental, vision, disability, life
insurance and flexible spending accounts) sponsored by TCGI or the
Bank in accordance with the applicable plan documents in effect
from time to time. Nothing in this Agreement shall require TCGI or
the Bank to continue to maintain any particular health or welfare
or other employee benefit plan.
3.8 Additional
Benefits . During the
Term, Executive’s perquisite package shall include the
payment of club dues in an amount not to exceed Thirty Thousand
Dollars ($30,000.00) per year, the reimbursement of automobile
expenses in an amount not to exceed One Thousand Five Hundred
Dollars ($1,500.00) per month, and the provision of wealth
management services in accordance with the Bank’s policies in
effect from time to time at a discount of twenty percent
(20%) off
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the Bank’s standard charges,
with the amount of the discount not to exceed Four Thousand Dollars
($4,000.00) per year (“ Benefits ”).
Notwithstanding anything to the contrary herein provided, the
amount of Benefits provided during one calendar year shall not
affect the amount of Benefits provided during a subsequent calendar
year, the Benefits may not be exchanged or substituted for other
forms of compensation to Executive, and any reimbursement or
payment under the Benefit arrangements will be paid in accordance
with applicable plan or policy terms and no later than the last day
of Executive’s taxable year following the taxable year in
which he incurred the expense giving rise to such reimbursement or
payment.
3.9 Paid Time
Off . For so long as
Executive is an employee of TCGI or the Bank, Executive shall
continue to be eligible for up to twenty-four (24) days of
paid time off each year in accordance with TCGI’s or the
Bank’s policies in effect from time to time.
3.10 Other
Benefits . During the
Term, Executive shall be eligible to participate in such other
insurance programs and other benefit plans not specifically set
forth herein that TCGI and the Bank may now have in effect or may
hereinafter adopt for similar executives to the extent permitted
under the terms of such programs and plans in effect from time to
time.
3.11 Director
Fees . For so long as
Executive is a director (but not an employee of TCGI or the Bank at
such time) of TCGI or the Bank, he shall be entitled to and shall
receive customary cash, equity and other compensation for board
service on the same terms and conditions as other non-employee
directors of TCGI or the Bank (as applicable). If the Executive is
an employee of TCGI or the Bank at any time that he serves as a
director of TCGI or the Bank, he shall not be entitled to or paid
any compensation described under this Section 3.11.
4. TERM OF EMPLOYMENT AND
TERMINATION .
4.1 Term of
Employment .
Executive shall be employed at will, and the term of
Executive’s employment hereunder shall commence on the date
of this Agreement and continue until terminated pursuant to the
provisions of this Section 4 (the “ Term
”). Unless otherwise provided in this Section 4 or
unless the context requires otherwise, the Parties shall each
provide to the other thirty (30) days prior written notice of
any termination of employment; provided however, that nothing
herein shall prevent immediate termination of employment of
Executive by TCGI or the Bank if such termination is for
Cause.
4.2
Termination Due to Death or Disability
. If, during the
Term, Executive dies or if Executive’s employment is
terminated on account of Disability, as defined in
Section 4.3(a)(ix), the Term shall terminate upon the date of
Executive’s death or his termination due to Disability;
provided, however, that TCGI shall pay (i) his Base Salary
earned but not yet paid up to the date of such termination;
(ii) any Bonus earned but not yet paid for the year preceding
such termination; and (iii) an amount equal to the Bonus for
the year preceding the year of such termination multiplied by a
fraction whose numerator is the number of days lapsed from
January 1 st through the date of such
termination, and whose denominator is 365 (hereinafter referred to
as “ Pro-Rata Bonus ”). In the event of the
death of Executive, such payments shall be made in accordance with
Section 22.10. Any of Executive’s stock
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options or restricted stock provided
under any arrangement with TCGI or the Bank shall vest, terminate,
expire or be subject to exercise by the appropriate party, in
accordance with the applicable plan documents or other agreements
in effect at the time of Executive’s termination of
employment.
4.3 Severance
Provisions . The
following additional provisions govern the payment of severance
benefits to Executive in all cases of termination of his
employment, except as a result of his death or
Disability:
(a) Definitions .
(i) “ Affiliate ”
means, with respect to any person, any individual, corporation,
partnership, association, joint-stock company, trust,
unincorporated association or other entity (other than such person)
that directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with that
person.
(ii) “ Cause ”
means: (a) Executive has committed an act of dishonesty that
results, or is intended to result, in material gain or personal
enrichment of Executive or has, or is intended to have, a material
detrimental effect on the reputation or business of TCGI or the
Bank; (b) Executive has committed an act or acts of fraud,
moral turpitude or constituting a felony (other than relating to
the operation of a motor vehicle); (c) any material breach by
Executive of any provision of this Agreement that, if curable, has
not been cured by Executive within thirty (30) days of written
notice of such breach from TCGI or the Bank; (d) an
intentional act or willful gross negligence on the part of
Executive that has, or is intended to have, a material, detrimental
effect on the reputation or business of TCGI or the Bank;
(e) Executive’s refusal, after thirty (30) days
written notice thereof, to perform specific reasonable directives
from the Board or the Board of Directors of the Bank that are
reasonably consistent with the scope and nature of his duties and
responsibilities, as set forth in this Agreement; or
(f) Executive being barred or prohibited by any governmental
authority or agency from holding the position of Chief Executive
Officer of TCGI or Chairman of either TCGI or the Bank. The
decision to terminate Executive’s employment for Cause, to
take other action or to take no action in response to any
occurrence shall be in the sole and exclusive discretion of the
Board. No act or failure to act shall be considered
“intentional” unless it is done, or omitted to be done,
by Executive in bad faith or without reasonable belief that
Executive’s action or omission was in the best interests of
TCGI or the Bank; and provided further, that no act or omission
shall constitute Cause hereunder absent such a finding by the
Board.
(iii) “ Change in
Control ” means the occurrence of any of the following
events:
(1) A change in the ownership of
TCGI or the Bank . A change in the ownership of TCGI or the
Bank shall occur on
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the date that any one person, or
more than one person acting as a “Group” (as defined
below), except for the Taylor Family, or an Employee Stock
Ownership Plan (as defined below), acquires ownership of stock of
TCGI or the Bank that, together with all other stock held by such
person or Group, constitutes more than fifty percent (50%) of
the total fair market value or total voting power of the stock of
TCGI or the Bank.
(2) A change in the effective
control of TCGI or the Bank . A change in the effective control
of TCGI or the Bank occurs on the earlier of the date that a
majority of the members of the Board or the Bank’s Board of
Directors is replaced during any twelve (12) month period by
directors whose appointment or election is not endorsed by a
majority of the members of the Board or the Bank’s Board of
Directors prior to the date of the appointment or election;
provided, however, that, if one person, or more than one person
acting as a Group, is considered to effectively control TCGI or the
Bank, the acquisition of additional control of TCGI or the Bank by
the same person or persons is not considered a change in the
effective control of TCGI or the Bank.
(3) A change in the ownership of
a substantial portion of TCGI’s or the Bank’s
assets . A change in the ownership of a substantial portion of
TCGI’s or the Bank’s assets occurs on the date that any
one person, or more than one person acting as a Group, acquires (or
has acquired during the twelve (12) month period ending on the
date of the most recent acquisition by such person or persons)
assets from TCGI or the Bank that have a total Gross Fair Market
Value (as defined below) equal to or more than fifty percent
(50%) of the total Gross Fair Market Value of all of the
assets of TCGI or the Bank immediately prior to such acquisition or
acquisitions; provided, however, that, a transfer of assets by TCGI
or the Bank is not treated as a change in the ownership of such
assets if the assets are transferred to:
(A) a stockholder of TCGI or the
Bank (immediately before the asset transfer) in exchange for or
with respect to its stock; or
(B) an entity, 50% or more of the
total value or voting power of which is owned, directly or
indirectly, by TCGI or the Bank.
(iv) For purposes of the definition
of Change in Control:
(1) “ Gross Fair Market
Value ” means the value of the assets of TCGI or the Bank
(as applicable), or the value of the assets being disposed of,
determined without regard to any liabilities associated with such
assets;
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(2) “ Group ”
shall have the meaning ascribed to such term in Sections
(i)(5)(v)(B), (vi)(D) or (vii)(C), as applicable, of Treasury
Regulation Section 1.409A-3; and
(3) “ Employee Stock
Ownership Plan ” means a retirement plan that is
(A) intended to be a tax-qualified plan under
Section 401(a) of the Internal Revenue Code of 1986, as
amended (“ Code ”); (B) intended to be an
employee stock ownership plan defined under Code
Section 4975(e)(7); and (C) is sponsored by TCGI (or a
member of its controlled group, as determined under Code
Section 414(b)).
(v) “ Exchange Act
” means the Securities Exchange Act of 1934. The terms
“ beneficial owner ” and “ beneficially
owned ” have the meaning set forth in Rule 13d-3 under
the Exchange Act.
(vi) “ Outstanding
securities ” when used in the context of the
“combined voting power of TCGI’s then outstanding
securities” means only the common stock of TCGI and
securities convertible into such common stock.
(vii) “ Change in Control
Period ” means the continuous period commencing on the
Effective Date and ending on the second anniversary of the
Effective Date.
(viii) “ COBRA Continuation
Coverage ” means the medical, dental and vision care
benefits that Executive and his Qualifying Family Members elect and
are eligible to receive upon Executive’s termination of
employment with TCGI and the Bank pursuant to Code
Section 4980B and Section 601 et. al. of the Employee
Retirement Income Security Act of 1974, as amended. For this
purpose, an Executive’s Qualifying Family Members are his
spouse and his dependent children to the extent they are eligible
for, and elect to receive, continuation coverage under such
Section 4980B and Section 601 et. al. Notwithstanding any
other provision of this Agreement to the contrary, COBRA
Continuation Coverage under this Agreement shall terminate for any
individual when it terminates under the terms of the applicable
benefit plan of TCGI or the Bank in accordance with such
Section 4980B and Section 601 et. al.
(ix) “ Disability
” shall be deemed to have occurred if TCGI determines that
Executive has a physical or mental impairment, as confirmed by a
licensed physician selected by TCGI that renders Executive unable
to engage in any substantial gainful activity, and is expected to
result in death or is expected to last for a continuous period of
not less than twelve (12) months. This definition of
“Disability” is intended to comply with Code
Section 409A, and the regulations in effect thereunder, and
shall be interpreted and administered in accordance with said
provisions. Termination due to Disability shall be deemed to have
occurred upon the first day of the month following the
determination of Disability as defined in the preceding
sentence.
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(x) “ Effective Date
” means the date on which a Change in Control occurs.
Anything in this Agreement to the contrary notwithstanding, if
Executive incurs a Qualifying Termination, then for all purposes of
this Agreement the “Effective Date” shall mean the date
of such Qualifying Termination.
(xi) “ Good Reason
” means the occurrence of any of the following events unless,
(A) such event occurs with Executive’s express prior
written consent, (B) the event is an isolated, insubstantial
or inadvertent action or failure to act which is remedied by TCGI
or the Bank promptly after receipt of notice thereof given by
Executive, (C) the event occurs in connection with the
termination of Executive’s employment for Cause, Disability
or death or (D) the event occurs in connection with
Executive’s voluntary termination of employment other than
due to the occurrence of one of the following events:
(1) a material adverse change in the
nature or scope of the authorities, powers, functions, duties or
responsibilities attached to Executive’s position (including,
but not limited to, Executive not being re-elected or removed from
his positions with TCGI or the Bank); or
(2) a change in Executive’s
principal office to a location outside of Cook County, DuPage
County or Lake County; or
(3) any material reduction in
Executive’s Base Salary and Bonus opportunity (other than
permitted proportionate reductions applicable to all similarly
situated senior executives of TCGI or the Bank, unless such
reduction occurs during the two (2) year period commencing
upon a Change in Control); or
(4) a material breach of this
Agreement by TCGI or the Bank.
Notwithstanding any provision herein
to the contrary, removal of Executive from the position of Chief
Executive Officer of TCGI (including a reduction or alteration or
any material adverse change in the nature and/or scope of the
authorities, powers, functions, duties and/or responsibilities
applicable to the position of Chief Executive Officer of TCGI in
accordance with the Bylaws of TCGI) at any time, shall not
constitute a Good Reason event, unless Executive is no longer an
employee of TCGI or there is a material reduction in his
compensation pursuant to clause (3) above or Executive suffers
a material reduction of duties such that Executive no longer has
the duties and responsibilities of an active senior executive of
TCGI as determined from time to time in accordance with the Bylaws
of TCGI. Anything herein to the contrary notwithstanding, Executive
shall be required to give written notice to the Board that
Executive believes an event has occurred that constitutes a Good
Reason event within ninety
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(90) days of the initial occurrence,
which written notice shall specify the particular act or acts, on
the basis of which Executive intends to so terminate
Executive’s employment. Within sixty (60) days of its
receipt of such notice, TCGI or the Bank, as the case may be, shall
have the opportunity to cure such Good Reason event, and if cured,
within such sixty (60) day period, any termination by
Executive due to that particular Good Reason event, shall be a
voluntary termination of employment other than for Good
Reason.
(xii) “ Prior Year’s
Bonus ” means the Bonus paid by TCGI or the Bank to
Executive in the year preceding the year in which the Effective
Date occurs.
(xiii) “ Qualifying
Termination ” means a termination of employment where
Executive’s employment with TCGI or the Bank is terminated by
TCGI or the Bank without Cause or by Executive for Good Reason and
a Change in Control occurs within sixty (60) days of the
termination of Executive’s employment.
(xiv) “ Severance
Compensation ” means the sum of
(A) Executive’s annual Base Salary at the greater of the
rate in effect on the Effective Date or the rate in effect
immediately prior to the date when notice of termination of
Executive’s employment was given and (B) the average of
(1) the Prior Year’s Bonus and (2) the greatest of
(a) the Prior Year’s Bonus, (b) Executive’s
actual Bonus for the year in which the Effective Date occurs, or
(c) Executive’s Bonus at target for the year in which
his Separation from Service occurs.
(xv) “ Separation from
Service ” means Executive’s termination of
employment with TCGI and the Bank that constitutes a
“separation from service,” as such term is defined
under Code Section 409A or applicable guidance or regulations
thereunder.
(xvi) “ Taylor Family
” means (A) Iris Taylor and the Estate of Sidney J.
Taylor, (B) a descendant (or a spouse of a descendant) of
Sidney J. Taylor and Iris Taylor, (C) any estate, trust,
guardianship or custodianship for the primary benefit of any
individual described in item (A) or (B) above, or
(D) a proprietorship, partnership, limited liability company,
or corporation controlled directly or indirectly by one or more
individuals or entities described in item (A), (B) or
(C) above.
(b) Certain Terminations of
Employment . If Executive’s Separation from Service
occurs except as a result of his death or Disability:
(i) (x) by TCGI (other than for
Cause) or (y) as a result of Executive’s termination for
Good Reason within one hundred fifty (150) days of the Good
Reason event, Executive shall be entitled to receive (A) all
previously earned and accrued but unpaid Base Salary and Benefits
up to the date of such termination shall be paid to Executive
within thirty (30) days of his Separation from Service,
(B)
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any Bonus earned but unpaid for the
calendar year preceding such termination, (C) subject to
Sections 4.3(k) and 4.3(l), a Pro-Rata Bonus for the year in which
such termination occurs, (D) subject to Sections 4.3(k) and
4.3(l), an amount equal to one and one-half (1.5) times the
sum of Base Salary plus the average of (1) the Bonus paid to
Executive with respect to the year preceding the year in which his
employment terminates, and (2) the greater of (I) the
amount described in clause (1) and (II) Executive’s
Bonus at target for the year in which his termination occurs to be
paid in equal installments (subject to the accumulation of the
first installment consistent with Section 4.3(h)) through the
period ending on the eighteen (18) month anniversary of the
termination of Executive’s employment in accordance with the
Bank’s customary payroll practices; and (E) for a period
of not more than eighteen (18) consecutive months beginning
with the date of Executive’s termination of employment, TCGI
or the Bank shall provide, at no cost to Executive and his
Qualifying Family Members, COBRA Continuation Coverage. Any
benefits described under Sections 3.3 and 3.4 shall be payable in
accordance with the terms of the applicable plan or arrangement. In
the event Executive materially breaches any of his obligations set
forth in Sections 8, 9, 10, 11, 12 and/or 13, the Bank’s and
TCGI’s obligation to make any further payments or provide
benefits to Executive under this Agreement shall terminate, and
Executive acknowledges that the remedy offered to the Bank and TCGI
under this Section 4.3(b)(i) is not exclusive and it shall not
preclude TCGI or the Bank from seeking or receiving any other
relief, including, without limitation, any form of monetary or
equitable relief; and
(ii) as a result of
(A) Executive’s voluntary resignation other than for
Good Reason in accordance with the provisions relating to a Good
Reason termination, or (B) termination by the Board for Cause,
Executive shall be entitled to all previously earned and accrued
but unpaid Base Salary which shall be paid to Executive within
thirty (30) days of his employment termination date. Paid time
off and other benefits to which Executive may be entitled shall be
determined in accordance with TCGI’s or the Bank’s
applicable plans, programs, and policies in effect from time to
time. The Executive shall not be entitled to any Bonus or awards
under Section 3.3 or 3.4, or any Benefits, or to any other
severance or other compensation of any kind, nature or amount;
unless otherwise provided pursuant to the terms of applicable
plans, programs and policies of TCGI and the Bank.
(c) Change in Control .
Subject to the limits of this Agreement and in addition to any
payments Executive is entitled to receive pursuant to
Section 4.3(b) and Executive’s obligations thereunder,
if during the Change in Control Period Executive’s Separation
from Service occurs other than as a result of his death or
Disability because, (x) TCGI terminates Executive’s
employment other than for Cause or (y) Executive terminates
his employment with TCGI for Good Reason within one hundred fifty
(150) days of the Good Reason event, then: (i) TCGI shall
pay to Executive an amount equal to one-half
10
(0.5) times Executive’s
Severance Compensation (the “ Change in Control
Payment ”); (ii) TCGI shall continue
Executive’s medical benefits for a period of up to thirty-six
(36) months, provided such continued medical benefits
constitute COBRA Continuation Coverage, and subject to the
limitations of Section 4.3(a)(viii); and (iii) the
vesting of any outstanding Incentive Plan benefits under
Section 3.3 shall be governed by the terms of the controlling
plan documents. Subject to Se
