NATIONAL CITY BANCORPORATION
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT is made by and between NATIONAL CITY BANCORPORATION, an
Iowa corporation (hereinafter called the "Holding Company"); NATIONAL CITY BANK
OF MINNEAPOLIS, a national banking association controlled by the Holding Company
(hereinafter called the "Bank," and together with the Holding Company,
collectively referred to as the "Companies") and Xxxxxx X. Xxxxx (the
"Executive"), as of the 19th day of November , 1996 (the "Effective Date").
RECITALS:
WHEREAS, the Executive is currently employed by the Bank, and may from
time to time be employed by either of the Companies;
WHEREAS, the Board of Directors of the Holding Company (the "Parent
Board") has determined that it is in the best interests of the Holding Company,
its stockholders and the Bank to reinforce and encourage the continued attention
and dedication of certain officers and senior managers of the Companies,
including the Executive, to their assigned duties;
WHEREAS, the existence of this Agreement and any similar agreements
with other employees of either of the Companies shall not be construed to imply
that any successors to their respective positions or offices (or any other
employees) would ever be entitled to severance benefits similar to those
provided thereunder; and
WHEREAS, this Agreement sets forth the minimum severance compensation
that the Executive will receive from the Employer (as defined below) if the
Executive's employment with such Employer terminates under one of the
circumstances described herein in connection with or following a Change in
Control (as defined below).
NOW THEREFORE, in consideration of the mutual covenants and conditions
herein contained and in further consideration of services performed and to be
performed by the Executive for the Companies, the parties hereto agree as
follows:
AGREEMENT
1. CERTAIN DEFINITIONS. For purposes of this Agreement, the terms
defined above and the following terms have the meanings indicated:
(a) EMPLOYER. "Employer" shall mean whichever of the Companies
is the employer of the Executive at the specified time; and shall also
include any other entity that (i) employs the Executive immediately
after a Change in Control, (ii) is a successor to or assignee of the
business and/or assets of one of the Companies and (iii) either
executes and delivers the agreement provided for in Section 5 or
otherwise becomes or remains bound by all the terms and provisions of
this Agreement by operation of law.
(b) CHANGE IN CONTROL. A "Change in Control" of the Employer
shall occur if any person (as defined in Sections 3 (a) (9) and
13(d)(3) of the '34 Act, as defined below) becomes the "beneficial
owner" (as defined in Rule 13d-3 promulgated pursuant to the '34 Act),
directly or indirectly, of thirty percent (30%) or more of combined
voting power of the then outstanding securities of either of the
Companies; provided, however, that no Change in Control shall be deemed
to occur if such person:
(i) includes any individual, corporation or other
entity (or any Affiliate thereof, as defined below) that is
now the beneficial owner of at least five percent (5%) of such
securities; or
(ii) became a beneficial owner of such securities in
a transaction after which the Holding Company remains as the
survivor and the majority of the members of the Parent Board
remain such members after the closing of the transaction.
For purposes of this subsection (b), the term " '34 Act" shall
mean the Securities Exchange Act of 1934, as amended; and the term
"Affiliate" shall mean any individual, corporation or other entity that
controls, is controlled by or is under common control with (as
applicable) any other individual, corporation or other entity referred
to herein.
(c) CAUSE. In the case of a discharge from employment, the
term "Cause" shall mean:
(i) the willful and continued failure by the
Executive to substantially perform his or her duties under
this Agreement or any other employment agreement between the
Executive and the Employer (other than any such failure
resulting from the Executive's incapacity due to physical or
mental illness or any such actual or anticipated failure after
the issuance of a Notice of Termination by the Executive for
Good Reason), after a written demand for substantial
performance is delivered by the Employer that specifically
identifies the manner in which the Employer believes the
Executive has not substantially performed his or her duties;
or
(ii) the willful engaging by the Executive in
misconduct that is materially injurious to either or both of
the Companies, monetarily or otherwise. No act, or failure to
act, on the Executive's part shall be considered "willful"
unless done, or omitted to be done, by him or her not in good
faith and without reasonable belief that his or her action or
omission was in the best interest of one or both of the
Companies.
Notwithstanding the foregoing, the Executive shall
not be deemed to have been terminated for Cause without (x) a
reasonable advance written notice to the Executive, given
before the delivery of a Notice of Termination and setting
forth the reasons for the Employer's intention to terminate
for Cause; (y) an opportunity for the Executive, together with
his or her counsel, to be heard before the Board; and (z)
delivery to the Executive of a Notice of Termination from the
Board stating that, in the good faith opinion of the Board,
the Executive was guilty of conduct set forth above in clause
(i) or (ii) hereof, and specifying the particulars thereof in
detail.
(d) CODE. "Code" shall mean the Internal Revenue Code of 1986,
as amended.
(e) DATE OF TERMINATION. "Date of Termination" shall mean:
(i) if this Agreement is terminated by the Employer
for Disability, the date 30 days after Notice of Termination
is given to the Executive; provided; however, that such date
shall not have been delayed pursuant to the following clause
(ii); or
(ii) if the Executive's employment is terminated by
the Employer for any other reason, the date on which a Notice
of Termination is delivered to the Executive or any later date
specified in such Notice.
(f) DISABILITY. "Disability" shall mean the Executive's
incapacity due to physical or mental illness to substantially perform
his or her duties on a full-time basis for six consecutive months. If
the Executive does not agree with a determination to terminate him or
her because of Disability, the question of the Executive's Disability
shall be subject to the certification of a qualified medical doctor
agreed to by the Employer and the Executive or, in the event of the
Executive's incapacity to designate a doctor, the Executive's legal
representative. In the absence of agreement between the Employer and
the Executive, each party shall nominate a qualified medical doctor and
the two doctors shall select a third qualified medical doctor, who
shall determine the question of the Executive's Disability.
(g) GOOD REASON. In the case of a resignation from employment,
the term "Good Reason" shall mean:
(i) the assignment to the Executive by the Employer
of duties inconsistent with the Executive's position, duties,
responsibilities and status with the Employer immediately
prior to a Change in Control of the Employer;
(ii) a reduction by the Employer in the Executive's
base salary as in effect on the date hereof or as the same may
be increased from time to time during the term of this
Agreement;
(iii) any Relocation of Executive by the Employer;
provided, however, that if Executive resigns in connection
with such a Relocation, then any severance pay due under
Section 3 shall be payable only at the times prescribed by
Section 3(C) and shall be subject to reduction or forfeiture
as provided therein;
(iv) any material breach by either of the Companies
of any provision of this Agreement;
(v) if the assets of the Employer have been sold in
connection with a Change in Control, any failure by either of
the Companies to obtain the assumption of this Agreement by
the purchaser pursuant to Section 5; or
(vi) any purported termination of the Executive's
employment that is not properly effected hereunder and
pursuant to a Notice of Termination. For purposes of this
Agreement, no such purported termination shall be effective.
(h) NOTICE OF TERMINATION. A "Notice of Termination" shall
mean a written notice, which shall indicate the specific employment
termination provisions in this Agreement that are relied upon by the
party giving such notice, and which sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for the Executive's
termination of employment. Any termination of the Executive's
employment by the Employer shall be communicated by a Notice of
Termination.
(i) RELOCATION. A "Relocation" shall mean any requirement that
the Executive perform his or her principal duties at any place other
than (i) the location at which the Executive performed such duties
prior to a Change in Control of the Employer, or (ii) within the city,
town or village wherein such place was located; except for reasonably
required travel by the Executive on the business of the Companies and
their subsidiaries to an extent substantially consistent with the
Executive's business travel obligations at the time of a Change in
Control of the Employer.
2. TERM. This Agreement shall commence on the Effective Date first
above written and shall continue in effect until the first anniversary of the
Effective Date. Commencing on that date, and each anniversary thereof, the term
of this Agreement shall automatically be extended for one additional year,
unless at any time the Employer shall have given the Executive a written notice
that the Companies intend to terminate this Agreement effective eighteen (18)
months from the date of such notice; provided, however, that if a Change of
Control shall have occurred during such term, the term of this Agreement shall
be automatically extended until the end of the twenty-four (24) month period
beginning on the date of such Change of Control and shall terminate at the end
of such period. To the extent that any obligation of the Companies or any of
their successors hereunder remains unpaid as of the end of such term, this
Agreement shall remain in effect until such obligation is satisfied.
3. MINIMUM SEVERANCE COMPENSATION IN CONNECTION WITH A CHANGE OF
CONTROL. In the event that (a) a Change in Control of the Employer occurs during
the term of this Agreement; and (b) within the period beginning on the date
either of the Companies announces such Change in Control generally to its
employees and ending twenty-four (24) months after the date of the Change in
Control, either (i) the Employer terminates the Executive's employment for any
reason (or no reason) other than his or her death, Disability or for Cause (it
being understood that a purported termination for Disability or for Cause that
is finally determined not to have such reason, or not to have been properly
done, shall not be a termination for Disability or for Cause), or (ii) the
Executive terminates his or her employment with the Employer for Good Reason,
then:
(A) the Employer shall pay the Executive any unpaid
installment of base salary (to the extent earned and accrued through
the Date of Termination) at the rate in effect at the time the Notice
of Termination is given, any accrued vacation time (at that same rate)
and all other pro-rated and unpaid amounts to which the Executive is
entitled as of the Date of Termination under any compensation plan or
program of the Employer, including without limitation a portion of the
amount (pro-rated based on the number of days in the fiscal year or any
lesser measurement period) that otherwise would be earned under the
Management Incentive Plan or any other executive compensation plan in
which the Executive is then participating for the year in which occurs
such Date of Termination; in each case determined by assuming that a
bonus under such plan would have been earned for the fiscal year or any
lesser measurement period in which the Date of Termination falls, by
performance that reaches the previously budgeted level under the plan
for that period; and all of such payments shall be made in a lump sum
on or before the fifth day following the Date of Termination;
(B) in lieu of any further salary or bonus payments to the
Executive for periods subsequent to the Date of Termination, the
Employer shall pay to the Executive as severance pay an amount equal to
the product of:
(i) the sum of (a) the Executive's annual base salary
in effect as of the Date of Termination, and (b) the annual
amount that otherwise would be earned under the Management
Incentive Plan or any other executive compensation plan in
which the Executive is then participating for the fiscal year
in which occurs such Date of Termination, in each case
determined by assuming that a bonus under such plan would have
been earned for the fiscal year in which the Date of
Termination falls, by performance that reaches the previously
budgeted level under the plan for that year; and
(ii) the number 1.5;
such payment to be made in a lump sum on or before the fifth calendar
day following the Date of Termination; provided, however, that the
amount payable to the Executive under this Section 3(B) shall be
reduced by the sum of any other severance pay amounts due the Executive
from the Employer or either of the Companies under any other plan or
agreement and shall be subject to the conditions of the following
Section 3(C), if applicable;
(C) Notwithstanding any other provision of this Agreement, if
any severance pay amount payable to the Executive under Section 3(B) is
due as a result of Executive's resignation in connection with a
Relocation, such amount shall be payable in installments (without
interest) over an eighteen (18) month period commencing on or before
the fifth calendar day following the Date of Termination, at the times
such amount would have been payable as salary and bonus (if applicable)
if the Executive had not resigned, and such amount shall be subject to
reduction or forfeiture for any one or more of the following reasons:
(i) any such installment of salary or bonus due for a
pay period shall be reduced by any similar compensation earned
by the Executive for the same period as the result of
employment after the Date of Termination by another employer;
(ii) any remaining installments of salary or bonus
due Executive shall be forfeited if the Executive is employed
after the Date of Termination by another employer and the
principal duties of such employment are required to be
performed at any place outside the city, town or village
wherein the place was located at which the Executive performed
his or her principal duties prior to a Change in Control of
the Employer; and
(iii) any remaining installments of salary or bonus
due Executive shall be forfeited if the Executive is employed
at any location after the Date of Termination by another
employer that is engaged in the business of banking.
(D) for the eighteen (18) month period described in Section
3(C), the Employer shall pay the same share of the costs of health
insurance of Executive as was paid for by the Employer prior to the
Date of Termination, except that the Employer shall discontinue paying
for such health insurance if Executive becomes eligible to be covered
by the health insurance of another employer;
(E) to assist Executive in getting a new job, the Employer
will provide out placement assistance through a vendor selected by the
Employer up to a cost of $1,000 to the Employer; provided, however,
that Executive must begin to utilize out placement services within
thirty (30) days of the Date of Termination and that Executive shall
not receive additional compensation for any unused out placement fees.
(F) Executive may, at his or her option, elect to receive the
severance benefits Employee would otherwise be entitled from the
Employer instead and in lieu of the payments and benefits described in
Sections 3(A), (B), (C), (D) and (E), by providing written notice
thereof to Employer within four (4) days after the Date of Termination.
4. NO OBLIGATION TO MITIGATE DAMAGES; NO EFFECT ON OTHER CONTRACTUAL
RIGHTS.
(a) Except as expressly provided in Section 3(C), the
Executive shall not be required to mitigate damages or the amount of
any payment provided for under this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment provided
for under this Agreement be reduced by any compensation earned by the
Executive as the result of employment by another employer after the
Date of Termination, or otherwise.
(b) The provisions of this Agreement, and any payment provided
for hereunder, shall not reduce any amounts otherwise payable, or in
any way diminish the Executive's existing rights, or rights which would
accrue solely as a result of the passage of time, under any employee
benefit plan, incentive plan, Employer securities plan, employment
agreement or other contract, plan or arrangement.
5. SUCCESSORS TO THE COMPANIES.
(a) Each of the Companies will require any successor or assign
that purchases (other than by a merger of corporations) all or
substantially all of the business and/or assets of the Employer, by
agreement in form and substance reasonably satisfactory to the
Executive, to expressly, absolutely and unconditionally assume and
agree to perform this Agreement in the same manner and to the same
extent that the Employer would be required to perform it if no such
purchase had taken place. Any failure of either of the Companies to
obtain such agreement prior to the effectiveness of any such purchase
shall be a material breach of this Agreement and shall entitle the
Executive to terminate his or her employment for Good Reason.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Companies and their successors and assigns, and by
the Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
If the Executive should die while any amounts are still payable to him
or her hereunder, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to the
Executive's beneficiary last designated in a writing delivered to the
Employer before his or her death, or otherwise to the Executive's
devisee or legatee under a last will and testament or testamentary
trust or, if there be none of the foregoing, to the Executive's estate.
6. NOTICE. For purposes of this Agreement, all notices and other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
If to either of the Companies:
National City Bank of Minneapolis
Attention: Chief Executive Officer
00 Xxxxx 0xx Xxxxxx
X.X. Xxx X-0000
Xxxxxxxxxxx, XX 00000
With a copy to:
Xxxxxx Xxxxxxx Xxxxxx & Brand,
a Professional Limited Liability Partnership
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxxx, Esq.
If to the Executive:
Xxxxxx X. Xxxxx
Home Address:
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx XX 00000
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
7. MISCELLANEOUS. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and such officer of the Holding Company as
may be specifically designated by the Parent Board. If any party hereto at any
time waives any breach of this Agreement by another party hereto, or waives
compliance with any condition or provision of this Agreement to be performed by
another party hereto, such waiver shall not be deemed a waiver of that provision
or condition at any prior or subsequent time, or any similar or dissimilar
provision or condition at the same or any other time. No agreements or
representations, oral or otherwise, express or impled, with respect to the
subject matter hereof have been made by either party except as expressly set
forth in this Agreement. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
8. VALIDITY. The invalidity or unenforceability of any provisions of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
9. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same instrument.
10. FEES AND LICENSES. The Employer shall pay all fees and expenses
(including attorney's fees) that the Executive may incur as a result of either
of the Companies contesting the validity, enforceability or the Executive's
interpretation of, or any determinations under, this Agreement.
11. CONFIDENTIALITY. The Executive shall retain in confidence any and
all confidential information known to the Executive concerning the Companies and
their business so long as such information is not otherwise publicly disclosed.
12. EMPLOYER'S RIGHT TO TERMINATE EMPLOYMENT. Notwithstanding anything
contained in this Agreement to the contrary, the Employer may terminate the
Executive's employment at any time, for any reason or no reason, except as may
be otherwise provided under a separate written employment agreement (if any)
between the Executive and the Employer; and no provision contained herein shall
affect the Employer's ability to terminate the Executive's employment at any
time, with or without Cause. Nothing in this Agreement shall in any way require
either of the Companies to provide any of the benefits specified in this
Agreement prior to a Change in Control, nor shall this Agreement be construed in
any way to establish any policies or other benefits for the Executive or any
other employee of either of the Companies whose employment with either of the
Companies is terminated prior to a Change in Control.
13. PREVIOUS CHANGE IN CONTROL AGREEMENT. This Agreement shall
supersede and take the place of the Change in Control Agreement dated October
25, 1996 between the parties hereto and said agreement shall be of no further
force or effect.
IN WITNESS WHEREOF, the parties have executed this Agreement with full
authority as of the Effective Date first above written.
ATTEST: NATIONAL CITY BANCORPORATION
/s/ Xxxxxx X. Xxxxx By /s/ Xxxxx Xxxxxxx
----------------------------------- -----------------------------------
Xxxxxx X. Xxxxx Its Chairman, Xxxxx Xxxxxxx
Secretary
"HOLDING COMPANY"
ATTEST: NATIONAL CITY BANK OF MINNEAPOLIS
/s/ Xxxxxx X. Xxxxx By /s/ Xxxxx Xxxxxxx
----------------------------------- -----------------------------------
Xxxxxx X. Xxxxx Its President, Xxxxx Xxxxxxx
Secretary
"BANK"
/s/ Xxxxxx X. Xxxxx
----------------------------------
Xxxxxx X. Xxxxx
"EXECUTIVE"
