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Exhibit
10.1
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS AGREEMENT is made
and entered into as of the 30th day of January, 2008 by and between
Cole Taylor Bank (“ Bank ”), Taylor Capital
Group, Inc. (“ TCGI ”) and Mark A. Hoppe
(“ Executive ”).
RECITALS:
A. The Bank desires to employ
Executive as its President and Chief Executive Officer, and TCGI
desires to employ Executive as it President, and Executive desires
to be employed in such capacities by the Bank and TCGI, 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
the Executive’s employment with the Bank and TCGI.
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:
1. EMPLOYMENT .
The Bank hereby employs Executive, and Executive hereby accepts
employment from the Bank upon and subject to the terms and
conditions set forth herein. Executive will serve as President and
Chief Executive Officer of the Bank, and as President of
TCGI.
2. DUTIES .
During his employment, 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 the Bank’s and TCGI’s policies then
in effect and in a diligent, trustworthy, businesslike and
efficient manner. Executive shall have the responsibility,
authority, and such other duties that are customary for an officer
of a similar corporation having similar titles and duties. In his
capacity as President and Chief Executive Officer of the Bank, the
Executive shall report directly to the Chairman of the Bank’s
board of directors. In his capacity as President of TCGI, Executive
shall report directly to the Chairman of TCGI’s board of
directors. However, nothing in this Agreement shall preclude the
Executive from devoting a reasonable amount of his time and efforts
to personal investments, charitable, professional and trade
association affairs and matters.
3. COMPENSATION
. For services rendered by Executive on behalf of the Bank and
TCGI, the Bank will pay to Executive the following
compensation:
3.1 Base Salary
. The Bank will pay to Executive a base salary of no less than
Five Hundred Fifty Thousand Dollars ($550,000.00), subject to
applicable deductions and withholdings to be paid in periodic
payments in accordance with the Bank’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 the Bank, unless such reduction
occurs during the two year period commencing upon a Change of
Control), at the discretion of the Compensation Committee of
TCGI’s board of directors.
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3.2 Annual Incentive
Compensation . Upon commencing employment, Executive will
be eligible to participate in TCGI’s annual incentive
compensation (“Success”) program. Eligibility and
benefits shall be determined by the terms of the Success program as
then in effect. Executive’s starting target shall be one
hundred percent (100%) of Executive’s annual Base
Salary, although Executive’s actual award shall be determined
in accordance with the terms of the Success program.
Notwithstanding the foregoing, Executive shall be entitled to
receive a minimum of Three Hundred Thousand Dollars ($300,000.00)
of incentive compensation under the Success program for the year
2008, provided that Executive continues to be employed by the Bank
on the date payment is required for the year 2008 under the Success
program. Payments made under the Success program are also referred
to as the Executive’s “Bonus”. Any Bonus earned
by Executive shall be paid to Executive in a lump sum not later
than two and one-half (2 1
/ 2 ) months after the end of
TCGI’s taxable year in which such Bonus was
earned.
3.3 Long-Term Incentive
Plan. Executive will be eligible for participation in the
Taylor Capital Group, Inc. Incentive Bonus Long Term Incentive Plan
(“LTIP”) in accordance with its terms then in effect.
Executive’s annual starting target will be approximately one
hundred percent (100%) of Executive’s Base Salary, but
benefits under this Plan will depend on agreed-upon business goals
as well as other terms and conditions of this Plan being met. The
benefits payable under the LTIP shall be paid in restricted stock,
and such benefits shall vest at the rate of twenty-five percent
(25%) per year.
3.4 Deferred
Compensation Plan. Executive shall be eligible to
participate in the Taylor Capital Group, Inc. Deferred Compensation
Plan in accordance with the terms of the applicable plan documents
then in effect.
3.5 401(k) Profit
Sharing Plan. Executive shall be eligible to participate in
the Taylor Capital Group, Inc. 401(k)/Profit Sharing plan in
accordance with the terms of the applicable plan documents then in
effect.
3.6 Payment of
Executive’s Legal Fees. The Bank shall pay the legal
fees incurred by Executive in connection with the negotiation and
preparation of the Agreement and related documents in an amount not
to exceed Twenty Thousand Dollars ($20,000.00) within thirty
(30) days of the Bank’s receipt of statements evidencing
such legal fees, and, in any event, no later than March 15,
2008.
3.7 Flexible Benefits
Plan. Executive will be eligible for enrollment in the
Taylor Capital Group, Inc. Flexible Spending Account Program in
accordance with the terms of the applicable plan documents then in
effect.
3.8 Benefits.
Executive will be eligible to participate in the Bank’s
health and welfare benefit plans (which currently include medical,
dental, vision, disability, life insurance and flexible spending
accounts) in accordance with the applicable plan documents then in
effect.
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3.9 Additional
Benefits . Executive’s perquisite package shall also
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
then in effect at a discount of twenty percent (20%) off 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.
3.10 Paid Time
Off. Executive shall be eligible to accrue on a monthly
basis up to twenty-four (24) days of paid time off each year
in accordance with the Bank’s policies then in
effect.
3.11 Other Benefits
. During his employment, Executive shall be eligible to
participate in such other insurance programs and other benefit
plans not specifically set forth herein that the Bank and TCGI may
now have in effect or may hereinafter adopt for similar executives
to the extent allowable under the terms of such programs and plans
then in effect; provided, however, that neither the Bank nor TCGI
shall be required to establish or maintain any of the benefits or
plans described in this Section 3, except to the extent
required by the terms of the applicable plans, policies, programs,
or other agreements.
4. TERM OF EMPLOYMENT
AND TERMINATION .
4.1 Term of
Employment . The term of Executive’s employment
hereunder shall commence on the date hereof and continue for a
period of four (4) years (the “Initial Term”).
UPON THE EXPIRATION OF THE INITIAL TERM, THE TERM OF
EMPLOYEE’S EMPLOYMENT SHALL BE AUTOMATICALLY RENEWED FOR
ADDITIONAL TWELVE (12) MONTH PERIODS UNLESS EITHER PARTY GIVES
NOTICE TO THE OTHER AT LEAST NINETY (90) DAYS PRIOR TO THE
EXPIRATION OF THE INITIAL TERM OR SUCH TWELVE (12) MONTH
PERIOD OF HIS OR ITS INTENT NOT TO CONTINUE THE TERM OF EMPLOYMENT.
Each twelve (12) month period beginning on the date hereof is
hereinafter referred to as an “Employment
Year”.
4.2 Termination Due to
Death or Disability . If the Executive dies while this
Agreement remains in effect or if the Executive’s employment
is terminated on account of Disability, as hereinafter defined,
this Agreement shall terminate upon the date of the
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Executive’s death or
Disability, provided, however, that the Bank shall pay (i) his
Base Salary earned but not yet paid up to the date of his death or
the date of determination of Disability, (ii) any Bonus earned
but not yet paid for the year preceding such death or Disability,
and (iii) an amount equal to the preceding year’s bonus
multiplied by a fraction whose numerator is the number of days
elapsed during the year prior to the Executive’s date of
death or determination of Disability, 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 22.11. Any of the Executive’s
stock options or restricted stock provided under this Agreement and
any other arrangement with the Bank or TCGI shall vest, terminate,
expire, or be subject to exercise by the appropriate party, in
accordance with the applicable plan documents or other agreement
then in effect.
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 the Bank or
TCGI; (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 the Bank or TCGI; (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 the Bank or TCGI;
(e) Executive’s refusal, after thirty (30) days
written notice thereof, to perform specific reasonable directives
from the board of directors of the Bank or TCGI 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 the Bank or TCGI. 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 of directors of TCGI. No act
or failure to act shall be considered “intentional”
unless it is done, or omitted to be done, by the Executive in bad
faith or without reasonable belief that
Executive’s
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action or omission was in the
best interests of the Bank or TCGI; and provided further that no
act or omission shall constitute Cause hereunder absent such a
finding by the board of directors of TCGI.
(iii) “Change in
Control” means:
(1) a change in the ownership
of TCGI or the Bank (as defined in Treasury Regs.
Section 1.409A-3(i)(5)(v)) (other than a transfer to a group
comprised of members of the Taylor Family or an Employee Stock
Ownership Plan established by TCGI); or
(2) a change in effective
control of TCGI or the Bank (as defined in Treasury Regs.
Section 1.409A-3(i)(5)(vi)), or
(3) a change in the ownership
of a substantial portion of the assets of TCGI or the Bank (as
defined in Treasury Regs.
Section 1.409A-3(i)(5)(vii)).
However, a Change in Control
shall not occur under Paragraphs (1), (2) or (3) if the
Taylor Family continues to be the beneficial owner, directly or
indirectly, of at least 30% of the combined voting power of the
then outstanding securities of TCGI (or of the Bank for a Change in
Control under Subparagraph (3) involving the Bank), and no
other person or group is or becomes the beneficial owner, directly
or indirectly, of securities of TCGI (or the Bank for a Change in
Control under Subparagraph (3) involving the Bank) having
combined voting power greater than that beneficially owned,
directly or indirectly, by the Taylor Family.
For purposes of the
definition of Change in Control, Employee Stock Ownership Plan
means a retirement plan that is qualified under Section 401(a)
and 409 of the Internal Revenue Code and is sponsored by TCGI (or a
member of its controlled group, as determined under
Section 414(b) of the Internal Revenue Code).
The term “Exchange
Act” means the Securities Exchange Act of 1934. The terms
“beneficial owner” and “beneficially owned”
shall have the meaning set forth in Rule 13d-3 under the Exchange
Act.
The term “outstanding
securities” when used in the context of the “combined
voting power of TCGI’s then outstanding securities”
shall mean only the common stock of TCGI and securities convertible
into such common stock.
(iv) “Change in Control
Period” means the continuous period commencing on the
Effective Date and ending on the second anniversary of the
Effective Date.
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(v) “COBRA Continuation
Coverage” means the medical, dental and vision care benefits
that the Executive and his Qualifying Family Members elect and are
eligible to receive upon the Executive’s termination of
employment with TCGI pursuant to Section 4980B of the Internal
Revenue Code, 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, COBRA Continuation Coverage
under this Agreement shall terminate for any individual when it
terminates under the terms of the applicable benefit plan of TCGI
in accordance with such Section 4980B and Section 601 et.
al.
(vi) “Disability”
for the purposes of this Agreement, 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,
which 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 section 409A of the Internal Revenue Code of 1986, as amended,
(“Code”), and the regulations promulgated 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.
(vii) “Effective
Date” means the date on which a Change in Control occurs.
Anything in this Agreement to the contrary notwithstanding, if the
Executive incurs a Qualifying Termination, then for all purposes of
this Agreement the “Effective Date” shall mean the date
of such Qualifying Termination.
(viii) “Good
Reason” shall mean the occurrence of any of the following
events unless, (A) such event occurs with the
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 the Executive, (C) the event occurs in
connection with the termination of the Executive’s employment
for Cause, Disability or death or (D) the event occurs in
connection with the 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 the Bank or TCGI); or
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(2) a change in the
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 the Bank, unless such reduction
occurs during the two year period commencing upon a Change of
Control); or
(4) a material breach of the
Agreement by the Company.
Anything herein to the
contrary notwithstanding, the Executive shall be required to give
written notice to the Board of Directors of TCGI that the Executive
believes an event has occurred that constitutes a Good Reason event
within ninety (90) days of the initial occurrence, which
written notice shall specify the particular act or acts, on the
basis of which the Executive intends to so terminate the
Executive’s employment, and TCGI shall then be given the
opportunity, within thirty (30) days of its receipt of such
notice, to cure said event. Executive’s termination shall not
be considered to be a termination for Good Reason unless such
termination occurs on or before the second anniversary of the
Effective Date of the Change in Control.
(ix) “Prior
Year’s Bonus” means the Bonus paid by the Bank to the
Executive in the year preceding the year in which the Effective
Date occurs.
(x) “Qualifying
Termination” means a termination of employment where the
Executive’s employment with TCGI is terminated by TCGI
without Cause or by the Executive for Good Reason and a Change in
Control occurs within one hundred eighty (180) days of the
termination of the Executive’s employment.
(xi) “Section 280G
Compensation” means the sum of (i) Executive’s
annual Base Salary at the greater of the rate in effect on the
Effective Date of the Change in Control or the rate in effect
immediately prior to the date when notice of termination of
Executive’s employment was given and (ii) the average of
(a) the Prior Year’s Bonus and (b) the greatest of
(1) the Prior Year’s Bonus, (2) Executive’s
actual Bonus for the year in which the Effective Date occurs, or
(3) Executive’s Bonus at target for the year in which
his termination of service occurs. Section 280G Compensation
does not include any accrued balances in the 1997 Long Term
Incentive Plan (or its successor).
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(xii) “Separation from
Service” means Executive’s termination of employment
with TCGI or the Bank which constitutes a “separation from
service,” as such term is defined under Section 409A of
the Internal Revenue Code of 1986, as amended (the
“Code”) or applicable guidance or regulations
thereunder.
(xiii) “Taylor
Family” means (i) Iris Taylor and the Estate of Sidney
J. Taylor, (ii) a descendant (or a spouse of a descendant) of
Sidney J. Taylor and Iris Taylor, (iii) any estate, trust,
guardianship or custodianship for the primary benefit of any
individual described in (i) or (ii) above, or (iv) a
proprietorship, partnership, limited liability company, or
corporation controlled directly or indirectly by one or more
individuals or entities described in (i), (ii), or
(iii) above.
(b) Certain Terminations
of Employment . If the Executive’s employment is
terminated or not renewed except as a result of his death or
Disability:
(i) (x) by the board of
directors of TCGI (other than for Cause), (y) as a result of
TCGI’s notice of its intent not to renew the term of this
Agreement without Cause, or (z) as a result of the
Executive’s voluntary resignation for Good Reason within one
hundred twenty (120) days of the Good Reason event, the
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, (B) any Bonus earned but unpaid for
the calendar year preceding such termination, (C) a Pro-Rata
Bonus for the year in which such Termination occurs payable on or
before the later of March 15 of the year in which such termination
occurs or the thirtieth (30th) day after such termination,
(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 from
the date of termination through the period ending on the eighteen
(18) month anniversary of the termination of Executive’s
employment in accordance with the Bank’s normal payroll
practices; (E) for a period of not more than eighteen
(18) consecutive months beginning with the date of the
Executive’s termination of employment, the Bank shall
provide, at no cost to the Executive and his Qualifying Family
Members, COBRA Continuation Coverage; and (F) outplacement
assistance benefits for a period of up to eighteen (18) months
following the Executive’s termination of employment through a
provider of the Bank’s choosing, provided, however that the
amount of outplacement services provided during one calendar year
shall not affect the amount of services provided during a
subsequent calendar year and shall not exceed Forty Thousand
Dollars ($40,000.00) during any one calendar year, the outplacement
services may not be exchanged or substituted for other forms of
compensation to Executive, and any reimbursement or payment for
outplacement services will be made no later
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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. 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 breaches any of his
post-closing obligations set forth in Sections 8, 9, 10, 11, 12 and
13, the Bank’s and TCGI’s obligation to make any
further payments to Executive under this Agreement shall terminate,
and the 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) the Executive’s voluntary resignation other than in
accordance with the provisions relating to a Good Reason
termination, or (B) termination by the board of directors of
TCGI for Cause, the Executive shall be entitled to all previously
earned and accrued but unpaid Base Salary and Benefits up to the
date of such termination, but shall not be entitled (I) to any
Bonus or awards under Sections 3.3 or 3.4 for the year in which his
employment terminates, nor any Bonus with respect to the prior year
if Executive is not employed by the Bank on the payment date for
such Bonus, or (II) to any further Base Salary, Bonus or award
under Sections 3.3 or 3.4, or Benefits for the remainder of that
year or any future year, or to any other severance compensation of
any kind, nature or amount.
(c) Change of Control
. Subject to the limitations of this Agreement and in addition to
any payments the Executive is entitled to receive pursuant to
Section 4.3(b), if during the Change in Control Period (x) the
Bank shall terminate the Executive’s employment other than
for Cause or Disability, (y) TGCI shall send notice not to renew
the terms of this Agreement without cause or (z) the Executive
shall terminate his employment with the Bank for Good Reason,
(i) the Bank shall pay to the Executive an amount equal to one
and one-half (1.5) times the Executive’s
Section 280G Compensation (the “Change in Control
Payment”), (ii) the Bank shall provide outplacement
assistance benefits for a period of up to twenty-four
(24) months following the Executive’s termination of
employment through a provider of the Bank’s choosing,
provided, however that the amount of outplacement services provided
during one calendar year shall not affect the amount of services
provided during a subsequent calendar year and shall not exceed
Forty Thousand Dollars ($40,000.00) during any one calendar year,
the outplacement services may not be exchanged or substituted for
other forms of compensation to Executive, and any reimbursement or
payment for outplacement services will
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