METROPOLITAN FINANCIAL CORPORATION
EXECUTIVE MANAGEMENT
CHANGE IN CONTROL SEVERANCE PAY PLAN
As Adopted Effective as of March 23, 1993
METROPOLITAN FINANCIAL CORPORATION
EXECUTIVE MANAGEMENT
CHANGE IN CONTROL SEVERANCE PAY PLAN
Table of Contents
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Page
ARTICLE 1 Introduction 1
1.1 Plan Name 1
1.2 Plan Type 1
1.3 Plan Purposes 1
ARTICLE 2 Definitions, Construction and Interpretations 2
2.1 Affiliate 2
2.2 Annual Base Salary 2
2.3 Benefit Plan 2
2.4 Board 2
2.5 Cause 2
2.6 Change in Control 3
2.7 Code 4
2.8 Company 4
2.9 Date of Termination 4
2.10 Eligible Participant 5
2.11 ERISA 5
2.12 Exchange Act 5
2.13 Good Reason 5
2.14 Governing Law 6
2.15 Headings 6
2.16 Notice of Termination 7
2.17 Number and Gender 7
2.18 Parent Corporation 7
2.19 Participant 7
2.20 Plan 7
2.21 Person 7
2.22 Qualified Employee 7
2.23 Successor 7
ARTICLE 3 Participation and Eligibility for Benefits 8
3.1 Commencement of Participation 8
3.2 Ceasing to be a Qualified Employee 8
3.3 Eligibility for Benefits 8
ARTICLE 4 Benefits 9
4.1 Compensation and Benefits Before Date of Termination 9
4.2 Cash Payment 9
4.3 Continuation of Welfare Benefits 9
4.4 Pension Plans 10
4.5 Out Placement Counseling Services 10
4.6 Gross-Up Payments 10
4.7 Indemnification 11
ARTICLE 5 Administration and Enforcement of Rights 12
5.1 Plan Administration 12
5.2 Duration and Amendment 12
5.3 Benefit Claims 12
5.4 Disputes 13
5.5 Funding and Payment 13
ARTICLE 6 Miscellaneous 15
6.1 Successors 15
6.2 Binding Plan 15
6.3 Validity 15
6.4 No Mitigation 15
6.5 No Set-off 15
6.6 Taxes 15
6.7 Notices 15
6.8 Effect of Plan Benefits on Other Severance Plans 16
6.9 Related Plans 16
6.10 No Employment or Service Contract 16
6.11 Survival 16
6.12 Effect on Other Plans 16
6.13 Prohibition of Alienation 16
METROPOLITAN FINANCIAL CORPORATION
EXECUTIVE MANAGEMENT
CHANGE IN CONTROL SEVERANCE PAY PLAN
1
Introduction
____________
.1 Plan Name. The name of the Plan is the "Metropolitan Financial
Corporation Executive Management Change in Control Severance Pay Plan."
.2 Plan Type. The Plan is unfunded and is maintained by the Company
primarily for the purpose of providing benefits for a select group of
management or highly compensated employees. As such, the Plan is intended
to be exempt from the provisions of Parts 2 through 4 of Subtitle B of
Title I and from Title IV of ERISA by operation of sections 201(2),
302(a)(3), 401(a)(1) and 4021(b)(6) thereof, respectively.
.3 Plan Purposes. The Board considers the attraction and retention of a
strong executive management team to be essential to protecting and enhancing
the best interests of the Company and its stockholders. In this connection,
the Board recognizes that absent adequate assurances and protections, the
possibility of a Change in Control may inhibit the Company's fulfillment of
this essential objective. To this end, the Company has established this
Plan to:
(a) Permit the Company to effectively recruit and retain
executive management personnel who, in the absence of adequate
assurances and protections, may be deterred by the possibility of a
Change in Control from accepting or continuing employment with the
Company;
(b) Enable executive management to evaluate objectively whether
a potential change in control is in the best interests of the Parent
Corporation and its shareholders;
(c) Assure the Parent Corporation and its shareholders of
continuity of executive management in the event of an actual or
threatened change in control; and
(d) Ease the transition to new employment for executive
management personnel terminated as a result of a Change in Control.
2
Definitions, Construction and Interpretations
_____________________________________________
The definitions and rules of construction and interpretation set forth in this
Article 2 apply in construing the Plan unless the context otherwise indicates.
.1 Affiliate. An "Affiliate" is:
(a) any corporation at least a majority of whose securities
having ordinary voting power for the election of directors is owned
directly or indirectly by the Parent Corporation; or
(b) any other form of business entity in which the Parent
Corporation, by virtue of a direct or indirect ownership interest,
has the right to elect a majority of the members of such entity's
governing body.
.2 Annual Base Salary. A Participant's "Annual Base Salary" is his or
her annual base cash salary from the Company attributable to services
rendered as an employee of the Company at the rate in effect (a) immediately
prior to the Change in Control or (b) at the time Notice of Termination is
given, whichever is greater, disregarding any decrease which constitutes
Good Reason for the Participant's termination of employment and determined
before any reduction for contributions or deferrals, whether voluntarily or
involuntarily, pursuant to any Benefit Plan.
.3 Benefit Plan. A "Benefit Plan" is any compensation plan (such as a
stock option, stock purchase, restricted stock or other equity-based plan),
any employee benefit plan (such as a thrift, savings, profit sharing,
pension, medical, dental, disability, accident, life insurance, relocation,
salary continuation, expense reimbursement, vacation, fringe benefit, office
and support staff plan or policy) or any other plan, program, policy,
practice, perquisite or agreement of the Company intended to benefit
employees (and/or their families or dependents) generally, executive
management employees (and/or their families or dependents) as a group or a
Participant (and/or a Participant's family or dependents) in particular.
.4 Board. The "Board" is the board of directors of the Parent
Corporation duly qualified and acting at the time in question.
.5 Cause. (A) Subject to Subsection (B), "Cause" with respect to a
particular Participant is any of the following:
(1) the Participant's gross misconduct which is materially and
demonstrably injurious to the Company;
(2) the Participant's willful and continued failure to perform
substantially his or her duties with the Company (other than a
failure resulting from the Participant's incapacity due to
bodily injury or physical or mental illness) after a demand
for substantial performance is delivered to the Participant by
the Board which specifically identifies the manner in which the
Board believes that the Participant has not substantially
performed his or her duties and provides for a reasonable period
of time within which the Participant may take corrective
measures; or
(3) the Participant's conviction (including a plea of nolo
contendere) of willfully engaging in illegal conduct constituting a
felony or gross misdemeanor under federal or state law which is
materially and demonstrably injurious to the Company or which
impairs the Participant's ability to perform substantially his
or her duties with the Company.
An act or failure to act will be considered "gross" or "willful" for this
purpose only if done, or omitted to be done, by the Participant in bad faith
and without reasonable belief that it was in, or not opposed to, the best
interests of the Company. Any act, or failure to act, based upon authority
given pursuant to a resolution duly adopted by the board of directors or
governing body of any Company (or any committee thereof) or based upon the
advice of counsel for the Company will be conclusively presumed to be done, or
omitted to be done, by the Participant in good faith and in the best interests
of the Company. A Participant's attention to matters not directly related to
the business of the Company will not provide a basis for termination for Cause
so long as the Board did not expressly disapprove in writing of his or her
engagement in such activities either before or within a reasonable period of
time after the Board knew or could reasonably have known that the Participant
engaged in those activities.
(B)Notwithstanding Subsection (A), a Participant will not be
deemed to have been terminated for Cause unless and until there has been
delivered to such Participant a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the entire membership of
the Board at a meeting of the Board called and held for such purpose
(after reasonable notice to such Participant and an opportunity for such
Participant, together with his or her counsel, to be heard before the
Board), finding that in the good faith opinion of the Board such
Participant was guilty of the conduct set forth in clause (1), (2) or
(3) of Subsection (A) and specifying the particulars thereof in detail.
.6 Change in Control. (A) "Change in Control" is any of the following:
(1) the sale, lease, exchange or other transfer, directly or
indirectly, of all or substantially all of the assets of the Parent
Corporation, in one transaction or in a series of related
transactions, to any Person;
(2) the approval by the stockholders of the Parent Corporation
of any plan or proposal for the liquidation or dissolution of the
Parent Corporation;
(3) any Person is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
(a) 20 percent or more, but not more than 50 percent, of the
combined voting power of the Parent Corporation's outstanding
securities ordinarily having the right to vote at elections of
directors, unless the transaction resulting in such ownership has
been approved in advance by the "continuity directors," as defined
at Subsection (B), or (b) more than 50 percent of the combined
voting power of the Parent Corporation's outstanding securities
ordinarily having the right to vote at elections of directors
(regardless of any approval by the continuity directors);
(4) a merger or consolidation to which the Parent Corporation is
a party if the stockholders of the Parent Corporation immediately
prior to the effective date of such merger or consolidation have
"beneficial ownership" (as defined in Rule 13d-3 under the Exchange
Act) immediately following the effective date of such merger or
consolidation of securities of the surviving company representing
(a) 50 percent or more, but not more than 80 percent, of the
combined voting power of the surviving corporation's then
outstanding securities ordinarily having the right to vote at
elections of directors, unless such merger or consolidation has
been approved in advance by the continuity directors, or (b) less
than 50 percent of the combined voting power of the surviving
corporation's then outstanding securities ordinarily having the
right to vote at elections of directors (regardless of any by the
continuity directors);
(5) the continuity directors cease for any reason to constitute
at least a majority the Board; or
(6) a change in control of a nature that is determined by
outside legal counsel to the Parent Corporation to be required
pursuant to section 13 or 15(d) of the Exchange Act, whether or
not the Parent Corporation is then subject to such reporting
requirement.
(B) For purposes of this section, a "continuity director" means
any individual who is a member of the Board on May 5, 1993, while
he or she is a member of the Board, and any individual who
subsequently becomes a member of the Board whose election or
nomination for election by the Parent Corporation's stockholders
was approved by a vote of at least a majority of the directors
who are continuity directors (either by a specific vote or by
approval of the proxy statement of the Parent Corporation in
which such individual is named as a nominee for director without
objection to such nomination).
.7 Code. The "Code" is the Internal Revenue Code of 1986, as amended.
Any reference to a specific provision of the Code includes a reference to
such provision as it may be amended from time to time and to any successor
provision.
.8 Company. The "Company" is the Parent Corporation, any Affiliate
and any Successor.
.9 Date of Termination. The "Date of Termination" with respect to a
Participant means:
(a) if the Participant's employment is to be terminated by the
Participant for Good Reason, the date specified in the Notice of
Termination which in no event may be a date more than 60 days
after the date on which Notice of Termination is given unless
the Company agrees in writing to a later date;
(b) if the Participant's employment is to be terminated by the
Company for Cause, the date specified in the Notice of
Termination;
(c) if the Participant's employment is terminated by reason of
death, the date of death; or
(d) if the Participant's employment is to be terminated by the
Company for any reason other than Cause or death, the date
specified in the Notice of Termination, which in no event may be a
date earlier than 60 days after the date on which a Notice of
Termination is given, unless the Participant expressly agrees
in writing to an earlier date.
In the case of termination by the Company of a Participant's employment for
Cause, if the Participant has not previously expressly agreed in writing to
the termination, then within the 30-day period after the Participant's receipt
of the Notice of Termination, the Participant may notify the Company that a
dispute exists concerning the termination, in which event the Date of
Termination will be the date set either by mutual written agreement of the
parties or by the arbitrators or a court in a proceeding as provided in
Section 5.4.
.10 Eligible Participant. An "Eligible Participant" is a Participant
who has become eligible to receive benefits pursuant to Section 3.3.
.11 ERISA. "ERISA" is the Employee Retirement Income Security Act of
1974, as amended. Any reference to a specific provision of ERISA includes
a reference to such provision as it may be amended from time to time and
to any successor provision.
.12 Exchange Act. The "Exchange Act" is the Securities Exchange Act of
1934, as amended. Any reference to a specific provision of the Exchange
Act or to any rule or regulation thereunder includes a reference to such
provision as it may be amended from time to time and to any successor
provision.
.13 Good Reason. (A) Subject to Subsection (B), "Good Reason" with
respect to a Participant is any of the following:
(1) an adverse change in the Participant's status or position
as an executive of the Company as in effect immediately prior to
the Change in Control, including, without limitation, any
adverse change in the Participant's status or position as a
result of a material diminution in his or her duties or
responsibilities (other than, if applicable, any such change
directly attributable to the fact that the Company is no longer
publicly owned) or the assignment to the Participant of duties
or responsibilities which, in such Participant's reasonable
judgment, are inconsistent with such status or position, or any
of the Participant from or any failure to reappoint or reelect the
Participant to such position (except in connection with the
termination of his or her employment for Cause or as a result of
his or her death or by a Participant other than for Good Reason);
however, Good Reason does not include an adverse change in a
Participant's status or position caused by an insubstantial and
inadvertent action that is remedied by the Company promptly
after receipt of notice of such change is given by the
Participant;
(2) a reduction by the Company in the Participant's Annual Base
Salary, or an adverse change in the form or timing of the payment
thereof, as in effect immediately prior to the Change in Control
or as thereafter increased;
(3) the failure by the Company to continue in effect any Benefit
Plan in which the Participant (and/or his or her family or
dependents) is participating at any time during the 90-day
period immediately preceding the Change in Control (or Benefit
Plans providing a Participant (and/or his or her family or
dependents) with at least substantially similar benefits) other
than as a result of the normal expiration of any such Benefit
Plan in accordance with its terms as in effect immediately prior
to the 90-day period immediately preceding the Change in Control,
or the taking of any action, or the failure to act, by the
Company which would adversely affect a Participant's (and/or his
or her family's or dependent's) continued participation in any
of such Benefit Plans on at least as favorable a basis to such
Participant (and/or his or her family or dependents) as is the
case immediately prior to the Change in Control or which would
materially reduce a Participant's (and/or his or her family's
or dependent's) benefits in the future under any of such Benefit
Plans or deprive a Participant (and/or his or her family or
dependents) of any material benefit enjoyed by such Participant
(and/or his or her family or dependents) immediately prior to
the Change in Control;
(4) the Company's requiring a Participant to be based more than
30 miles from where his or her office is located immediately
prior to the Change in Control, except for required travel on
the Company's business, and then only to the extent substantially
consistent with the business travel obligations which the
Participant undertook on behalf of the Company during the 90-day
period immediately preceding the Change in Control (without
regard to travel related to or in anticipation of the Change in
Control);
(5) the failure of the Parent Company to obtain from any
Successor the assent to this Plan contemplated by Section 6.1;
(6) any purported termination by the Company of a Participant's
employment which is not properly effected pursuant to a Notice of
Termination and pursuant to any other requirements of this Plan,
and for purposes of this Plan, no such purported termination
will be effective; or
(7) the Participant's termination of employment with the Company
for any reason other than death during the twenty-fourth month
following the month during which the Change in Control occurs.
(B)A Participant's continued employment does not constitute consent
to, or waiver of any rights arising in connection with, circumstance
constituting Good Reason. Termination by a Participant of his or her
employment for Good Reason as defined in this section will constitute Good
Reason for all purposes of this Plan, notwithstanding that the Participant
may also thereby be deemed to have "retired" under any applicable retirement
programs of the Company.
.14 Governing Law. To the extent that state law is not preempted by
provisions of ERISA or any other laws of the United States, this Plan will
be administered, construed, and enforced according to the internal,
substantive laws of the State of Minnesota, without regard to its conflict
of laws rules.
.15 Headings. The headings of articles and sections are included solely
for convenience. If there is a conflict between the headings and the text
of the Plan, the text will control.
.16 Notice of Termination. A "Notice of Termination" is a written notice
which indicates the specific termination provision in this Plan pursuant to
which the notice is given. Any purported termination by the Company or by a
Participant following a Change in Control (or prior to a Change in Control if
a Participant's termination was either a condition of the Change in Control or
was at the request or insistence of any Person related to the Change in
Control) must be communicated by written Notice of Termination to be
effective; provided, that a Participant's failure to provide Notice of
Termination will not limit any of his or her rights under the Plan except to
the extent the Company can demonstrate that it suffered material actual
damages by reason of such failure.
.17 Number and Gender. Wherever appropriate, the singular number may be
read as the plural, the plural number may be read as the singular and a
reference to one gender may be read as a reference to the other.
.18 Parent Corporation. The "Parent Corporation" is Metropolitan
Financial Corporation and any Successor.
.19 Participant. A "Participant" is a Qualified Employee who is
participating in the Plan pursuant to Article 3.
.20 Plan. The "Plan" is that set forth in this instrument as it may
be amended from time to time.
.21 Person. A "Person" includes any individual, corporation,
partnership, group, association or other "person," as such term is used in
section 14(d) of the Exchange Act, other than the Parent Corporation, any
Affiliate of the Parent Corporation or any Benefit Plan sponsored by the
Parent Corporation or an Affiliate.
.22 Qualified Employee. A "Qualified Employee" is an individual employed
by the Company on a full-time basis at a salary grade of 20 or higher. If
an individual is a Qualified Employee immediately prior to a Change in
Control, he or she will continue to be a Qualified Employee until his or
her Date of Termination.
.23 Successor. A "Successor" is any Person that succeeds to, or has
the practical ability to control (either immediately or with the passage of
time), the Parent Corporation's business directly, by merger, consolidation
or other form of business combination, or indirectly, by purchase of the
Parent Corporation's outstanding securities ordinarily having the right to
vote at the election of directors, all or substantially all of its assets or
otherwise.
3
Participation and Eligibility for Benefits
__________________________________________
.1 Commencement of Participation. Each Qualified Employee will commence
participation in the Plan on the first day on which he or she performs services
for the Company as a Qualified Employee.
.2 Ceasing to be a Qualified Employee. (A) A Participant who ceases for
any reason to be a Qualified Employee will, except with respect to any
current or future benefit to which he or she is then entitled, thereupon
cease his or her participation in the Plan.
(B) Notwithstanding any other provision of the Plan to the contrary, a
Participant will cease to be a Qualified Employee if, prior to a Change in
Control: (1) an Affiliate is sold, merged, transferred or in any other manner
or for any other reason ceases to be an Affiliate and no Change in Control
occurs in connection therewith; (2) the Participant's primary employment
duties are with the Affiliate at the time of the occurrence of such event;
and (3) such Participant does not, in conjunction therewith, transfer
employment directly to the Company.
.3 Eligibility for Benefits. A Participant will become eligible for the
benefits provided in Article 4 if (a) (i) his or her employment with the
Company is terminated for any reason other than his or her death or Cause or
(ii) the Participant terminates employment with the Company for Good Reason,
and (b) such termination occurs either (i) within the period beginning on
the date of a Change in Control and ending on the last day of the
twenty-fourth month that begins after the month in which the Change in
Control occurs or (ii) prior to a Change in Control if such termination was
either a condition of the Change in Control or was at the request or
insistence of a Person related to the Change in Control.
4
Benefits
________
.1 Compensation and Benefits Before Date of Termination. During the
period beginning on the date an Eligible Participant or the Company, as the
case may be, receives Notice of Termination and ending on the Date of
Termination, the Company will continue to pay the Eligible Participant his or
her Annual Base Salary and cause his or her continued participation in all
Benefit Plans in accordance with the terms of such Benefit Plans.
.2 Cash Payment. (A) The Company will make a lump-sum cash payment to
an Eligible Participant in an amount equal to three times the sum of (1)
the Participant's Annual Base Salary plus (2) the maximum annual cash target
or incentive bonus that could be payable to the Participant for the annual
performance period that includes the date on which Notice of Termination is
given or, if greater, the Eligible Participant's actual annual cash target
or incentive bonus for the immediately preceding annual performance period.
(A) The payment provided for in Subsection (A) will be made no
later than the thirtieth day following the Eligible Participant's Date
of Termination; provided, however, that if the amount of such payment
cannot be finally determined on or before such day, the Company will pay
to the Eligible Participant on such day an estimate, as determined in
good faith by the Company, of the amount of such payment and will pay
the remainder (together with interest from the date of such estimated
payment at the rate provided in Code section 1274(b)(2)(B)) as soon as
the amount thereof can be determined but in no event later than 60 days
after the Date of Termination. If the amount of the estimated payment
exceeds the amount subsequently determined to have been due, such excess
will constitute a loan by the Company to the Eligible Participant
payable no later than 30 days after demand by the Company (together with
interest from the date of such estimated payment at the rate provided in
Code section 1274(b)(2)(B)).
.3 Continuation of Welfare Benefits. (A) During the period described in
Subsection (B), the Company will maintain welfare Benefit Plans (including,
without limitation, medical, vision, dental, life, disability and accidental
death and dismemberment plans) which by their terms cover each Eligible
Participant (and his or her family members and dependents who were eligible
to be covered at any time during the 90-day period immediately prior to a
Change in Control under the corresponding plan) under terms and at a cost to
the Eligible Participant and his or her family members and dependents that
is at least as favorable as the most favorable terms and cost in effect at
any time during the 90-day period immediately preceding the Change in
Control. The continuation period under federal and state continuation laws,
to the extent applicable, will be gin to run from the date on which coverage
pursuant to this Section 4.3 ends.
(A) For purposes of Subsection (A), the continuation period with
respect to any particular type of benefit is the period beginning on an
Eligible Participant's Date of Termination and ending on the earlier of
(1) the last day of the thirty-sixth month following the month in which
the Date of Termination occurs or (2) the date on which the Eligible
Participant becomes covered under a plan of another employer providing
such benefit to the Eligible Participant and his or her eligible family
members and dependents without any pre-existing condition limitation or
exclusion.
(B) To the extent an Eligible Participant incurs a tax liability
(including federal, state and local taxes and any interest and penalties
with respect thereto) in connection with a benefit provided pursuant to
Subsection (A) which he or she would not have incurred had he or she
been an active employee of the Company participating in a generally
applicable Benefit Plan, the Company will make a payment to the Eligible
Participant in an amount equal to such tax liability plus an additional
amount sufficient to permit the Eligible Participant to retain a net
amount after all taxes (including penalties and interest) equal to the
initial tax liability in connection with the benefit. For purposes of
applying the foregoing, an Eligible Participant's tax rate will be
deemed to be the highest statutory marginal state and federal tax rate
(on a combined basis) then in effect. The payment pursuant to this
subsection will be made within 30 days after the Eligible Participant's
remittal of a written request therefor accompanied by a statement
indicating the basis for and amount of the liability.
.4 Pension Plans. An Eligible Participant will be credited with three
additional years of service for all purposes (including eligibility,
vesting, benefit accrual and amount and entitlement to rights and features)
under any Benefit Plan that constitutes a "pension plan" within the meaning
of ERISA section 3(2). To the extent that the Company determines in good
faith that such service credit will cause any such Benefit Plan to lose its
qualified status under Code section 401(a), the Eligible Participant will
not be entitled to such credit but will be entitled to a cash payment from the
Company, made at the same time as the cash payment pursuant to Section 4.2,
in an amount equal to the actuarially equivalent (as determined in accordance
with the provisions of the Metropolitan Financial Corporation Pension Plan in
effect immediately prior to the Change in Control) lump sum value of the
benefits lost.
.5 Out Placement Counseling Services. The Company will pay up to 30
percent of an Eligible Employee's Annual Base Salary for individual out
placement counseling to the Eligible Participant. Such payments will be made
either directly to the counselor or to the Eligible Participant upon
presentation of an invoice for services rendered or to be rendered.
.6 Gross-Up Payments. The Company will cause its independent auditors
promptly to review, at the Company's sole expense, the applicability of Code
section 4999 to payments pursuant to the Plan. If such auditors determine
that any payment or distribution of any type by the Company to or for the
benefit of an Eligible Participant, whether paid or payable or distributed
or distributable pursuant to the terms of the Plan, any Benefit Plan or
otherwise (the "Total Payments"), would be subject to the excise tax imposed
by Code section 4999 or any comparable state or local law, or any interest or
penalties with respect to such excise tax (such excise tax together with any
such interest and penalties, are collectively referred to as the "Excise
Tax"), the Company will make an additional cash payment (a "Gross-Up
Payment") to the Eligible Participant within 30 days after such determination
equal to an amount such that after payment by the Eligible Participant of
all taxes (including any interest or penalties imposed with respect to such
taxes), including any Excise Tax, imposed upon the Gross Payment, the
Eligible Participant would retain an amount of the Gross-Up Payment equal to
the Excise Tax imposed upon the Total Payments. For purposes of the
foregoing determination, an Eligible Participant's tax rate will be deemed
to be the highest statutory marginal state and federal tax rate (on a
combined basis) then in effect. If no determination by the Company's auditors
is made prior to the time a tax return reflecting the Total Payments is
required to be filed by the Eligible Participant, he or she will be entitled
to receive from the Company a Gross-Up Payment calculated on the basis of the
Total Payments he or she reported in such tax return, within 30 days of the
filing of such tax return. In all events, if any tax authority determines
that a greater Excise Tax should be imposed upon the Total Payments than is
determined by the Company's independent auditors or reflected in the Eligible
Participants' tax return pursuant to this Section 4.6, the Eligible
Participant is entitled to receive from the Company the full Gross-Up Payment
calculated on the basis of the amount of Excise Tax determined to be payable
by such tax authority within 30 days after such determination.
.7 Indemnification. The Company will indemnify and advance expenses to
an Eligible Participant to the full extent permitted by law for damages,
costs and expenses (including, without limitation, judgments, fines,
penalties, settlements and reasonable fees and expenses of the Participant's
counsel) incurred in connection with all matters, events and transactions
relating to such Eligible Participant's service to or status with the Company
or any other corporation, employee benefit plan or other entity with whom the
Eligible Participant served at the request of the Company.
5
Administration and Enforcement of Rights
________________________________________
.1 Plan Administration. The Board has the power and authority to
construe, interpret and administer the Plan. Prior to a Change in Control,
the Board may delegate such power and authority to any committee or
individual but such delegation will automatically cease to be effective at
the time of the Change in Control and thereafter the Board's duties are not
delegable. Prior to (but not after) a Change in Control, the power and
authority of the Board and any individual or committee to whom such power
and authority is in whole or in part delegated is discretionary as to all
matters.
.2 Duration and Amendment. (A) This Plan is effective as of March 23,
1993 and will remain in effect until December 31, 1995. Beginning on
January 1, 1994 and on each subsequent January 1, the term of this Plan will
automatically be extended for an additional calendar year unless the Board
gives written notice to all Participants not less than 90 days prior to any
such date of automatic extension that the term of the Plan will not be so
extended. In any event, the term of the Plan cannot and will not expire
within the period beginning on the date of a Change in Control and ending on
the last day of the twenty-fourth month that begins after the month in which
the Change in Control occurs.
(A)The Board may amend the Plan from time to time in such respects as
the Board may deem advisable; provided, first, that no amendment that
reduces, either directly or indirectly, a benefit or right to a benefit
provided or that may be provided under the Plan to any Qualified Employee
will be effective with respect to that Qualified Employee if a Change in
Control occurs within the 24-month period immediately following the later of
the date on which the amendment is adopted or the date on which the amendment
is effective; and, second, that on and after the date of a Change in Control,
the Plan may be amended only if each Participant and Eligible Participant is
provided with written notice of the amendment (which must include a complete
and accurate description of the amendment and its intended and potential
affects on Participants and Eligible Participants and a copy of the proposed
amendment) at least 90 days before the adoption of the amendment and the
amendment is approved by the affirmative vote of not less than 80 percent of
all Participants and Eligible Participants.
.3 Benefit Claims. A person whose employment relationship with the
Company has terminated and who has not been awarded benefits under the Plan
or who objects to the amount of the benefits so awarded may, within 60 days
after his or her employment has terminated, file a written request for
benefits with the Board. The Board will review such request and will notify
the claimant of its decision within 10 days after such request is filed. If
the Board denies the claim for benefits, the notice of the denial will
contain
(a) the specific reason for the denial,
(b) a specific reference to the provision of the Plan on which
denial is based,
(c) a description of any additional information or material
necessary for the person to perfect his or her claim (and an
explanation of why such information is material or necessary), and
(d) an explanation of the Plan's claim review procedure.
If the Board determines that a claimant is not eligible for benefits, or if
the claimant believes that he or she is entitled to greater or different
benefits, the claimant may file a petition for review with the Board within 60
days after the claimant receives the notice issued by the Board. Within 10
days after the Board receives the petition, the Board will give the claimant
(and his or her counsel, if any) an opportunity to present his or her position
to the Board orally or in writing, and the claimant (or his or her counsel)
will have the right to review the pertinent documents. Within 10 days after
the hearing (or the date of receipt of the petition if the claimant presents
his or her position in writing) the Board will notify the claimant of its
decision in writing, stating the decision and the specific provisions of the
Plan on which the decision is based.
.4 Disputes. (A) If a Participant so elects, any dispute or controversy
arising under or in connection with this Plan will be settled exclusively by
arbitration in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's
award in any court having jurisdiction; provided, that a Participant may
seek specific performance of his or her right to receive compensation or
benefits until the Date of Termination during the pendency of any dispute or
controversy arising under or in connection with the Plan. If any dispute,
controversy or claim for damages arising under or in connection with this
Plan is settled by arbitration, all expenses incurred and related to such
arbitration will be paid by the Company.
(A)If a Participant does not elect arbitration, he or she may
pursue all available legal remedies. The Company will pay or reimburse
each Participant for all reasonable legal fees, court costs, experts'
fees and related costs and expenses incurred by such Participant in
connection with any actual, threatened or contemplated litigation
relating to this Plan to which the Participant is or reasonably expects
to become a party, whether or not initiated by the Participant, if the
Participant is successful in recovering any benefit under this Plan as a
result of such action. Such costs include (1) all such fees and
expenses, if any, incurred in contesting or disputing any termination of
employment or (2) any effort by the Participant to obtain or enforce any
right or benefit provided by this Plan.
(B)The Company will not assert in any dispute or controversy
with any Participant arising under or in connection with this Plan the
Participant's failure to exhaust administrative remedies.
.5 Funding and Payment. (A) Benefits payable to an Eligible Participant
under this Plan will be paid only from the general assets of the Company. No
person has any right to or interest in any specific assets of the Company by
reason of this Plan. To the extent benefits under this Plan are not paid when
due to an Eligible Participant, he or she is a general unsecured creditor of
the Company with respect to any amounts due under the Plan.
(A)The employer with whom an Eligible Participant was employed
immediately before his or her Date of Termination has primary
responsibility for any benefits to which the Eligible Participant is
entitled pursuant to the Plan but to the extent such employer is unable
or unwilling to provide such benefits, the Parent Corporation and each
other Affiliate are jointly and severally responsible therefor to the
extent permitted by applicable law. If an Eligible Participant was
simultaneously employed by more than one employer immediately before his
or her Date of Termination, each such employer has primary
responsibility for a portion of the benefits to which the Eligible
Participant is entitled pursuant to the Plan that bears the same ratio
to the total benefits to which he or she is entitled under the Plan as
his or her Annual Base Salary from the employer immediately before his
or her Date of Termination bears to his or her aggregate Annual Base
Salary from all such employers.
6
Miscellaneous
_____________
.1 Successors. The Parent Company will require any Successor to expressly
assume and agree to perform the obligations of this Plan in the same manner
and to the same extent that the Parent Company would be required to perform
if no such succession had taken place. Failure of the Parent Company to
obtain such assumption and agreement at least three business days prior to
the time a Person becomes a Successor (or where the Parent Company does not
have at least three business days' advance notice that a Person may become a
Successor, within one business day after having notice that such Person may
become or has become a Successor) will constitute Good Reason for termination
of a Participant's employment. The date on which any such succession becomes
effective will be deemed the Date of Termination and Notice of Termination
will be deemed to have been given on such date.
.2 Binding Plan. This Plan is for the benefit of, and is enforceable by,
each Participant, each Participant's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees, but each Participant may not otherwise assign any of his or her
rights or delegate any of his or her obligations under this Plan. If a
Participant dies after becoming entitled to, but before receiving, any
amounts payable under this Plan, all such amounts, unless otherwise provided
in this Plan, will be paid in accordance with the terms of this Plan to such
Participant's devisee, legatee or other designee or, if there be no such
designee, to such Participant's estate.
.3 Validity. The invalidity or unenforceability of any provision of the
Plan does not affect the validity or enforceability of any other provision of
the Plan, which will remain in full force and effect.
.4 No Mitigation. No Eligible Participant will be required to mitigate
the amount of any benefits the Company becomes obligated to provide in
connection with this Plan by seeking other employment or otherwise and the
benefits to be provided in connection with this Plan may not be reduced,
offset or subject to recovery by the Company by any benefits an Eligible
Participant may receive from other sources.
.5 No Set-off. The Company has no right to set-off benefits owed under
this Plan against amounts owed or claimed to be owed by an Eligible
Participant to the Company under this Plan or otherwise.
.6 Taxes. All payments to be made to each Eligible Participant in
connection with this Plan will be subject to required withholding of federal,
state and local income, excise and employment-related taxes.
.7 Notices. For the purposes of this Plan, notices and all other
communications provided for in, or required under, this Plan must be in
writing and will be deemed to have been duly given when personally delivered
or when mailed by United States registered or certified mail, return receipt
requested, postage prepaid and addressed to each Participant's or the
Company's (as the case may be) respective address (provided that all notices
to the Company must be directed to the attention of the chair of the Board).
For purposes of any such notice requirement, the Company will use the
Participant's most current address on file in the Company's personnel
records. Any notice of a Participant's change of address will be effective
only upon receipt by the Company.
.8 Effect of Plan Benefits on Other Severance Plans. A Participant who
receives any payment under the terms of this Plan will not be eligible to
receive benefits under any other severance pay plan sponsored or maintained
by the Company.
.9 Related Plans. To the extent that any provision of any other Benefit
Plan or agreement between the Company and a Participant limits, qualifies or
is inconsistent with any provision of this Plan, then for purposes of this
Plan, while such other Benefit Plan or agreement remains in force, the
provision of this Plan will control and such provision of such other Benefit
Plan or agreement will be deemed to have been superseded, and to be of no
force or effect, as if such other agreement had been formally amended to the
extent necessary to accomplish such purpose. Nothing in this Plan prevents
or limits a Participant's continuing or future participation in any Benefit
Plan provided by the Company, and nothing in this Plan limits or otherwise
affects the rights Participants may have under any Benefit Plans or other
agreements with the Company. Amounts which are vested benefits or which
Participants are otherwise entitled to receive under any Benefit Plan or
other agreement with the Company at or subsequent to the Date of Termination
will be payable in accordance with such Benefit Plan or other agreement.
.10 No Employment or Service Contract. Nothing in this Plan is intended
to provide any Participant with any right to continue in the employ of the
Company for any period of specific duration or interfere with or otherwise
restrict in any way Participants' rights or the rights of the Company, which
rights are hereby expressly reserved, to terminate a Participant's employment
at any time for any reason or no reason whatsoever, with or without cause.
.11 Survival. The respective obligations of, and benefits afforded to,
the Company and the Participants which by their express terms or clear intent
survive termination of a Participant's employment with the Company or
termination of this Plan, as the case may be, will remain in full force and
effect according to their terms notwithstanding the termination of a
Participant's employment with the Company or termination of this Plan, as the
case may be.
.12 Effect on Other Plans. Unless otherwise expressly provided therein,
benefits paid or payable under the Plan will not be deemed to be salary or
compensation for purposes of determining the benefits to which a Participant
may be entitled under any other Benefit Plan sponsored, maintained or
contributed to by the Company.
.13 Prohibition of Alienation. No Participant will have the right to
alienate, assign, encumber, hypothecate or pledge his or her interest in any
benefit provided under the Plan, voluntarily or involuntarily, and any
attempt to so dispose of any interest will be void.
METROPOLITAN FINANCIAL CORPORATION
EXECUTIVE MANAGEMENT
CHANGE IN CONTROL SEVERANCE PAY PLAN
First Declaration of Amendment
______________________________
Pursuant to resolution of the Metropolitan Financial Corporation Board of
Directors, the Metropolitan Financial Corporation Executive Management Change
in Control Severance Pay Plan is hereby amended by adding a new Section 6.14
which reads as follows:
"6.14 Special Restrictions. (A) Notwithstanding any other provision
of the Plan to the contrary, the provisions of this Section 6.14 apply
in the case of any Participant who is employed by an Affiliate that is
a "savings association" within the meaning of 12 USC 1813(b)(1)
(an "Association") to the extent a benefit is otherwise required to be
provided to the Participant by the Association.
(A) The Association's board of directors may terminate
the Participant's employment at any time, but any
termination by the Association's board of directors, other
than termination for cause, shall not prejudice the
Participant's right to benefits under the Plan. The
Participant shall have no right to receive compensation or
other benefits for any period after termination for cause.
Termination for cause shall include termination because of
the Participant's personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving
person profit, intentional failure to perform stated
duties, willful violation of any law, rule, or regulation
(other than traffic violations or similar offenses) or
final cease-and-desist order, or material breach of any
provision of an employment contract. In determining
whether a Participant's termination is for cause within
the meaning of this clause (1), the Association shall
follow the procedures specified in Section 2.5(B).
(B) If the Participant is suspended and/or temporarily
prohibited from participating in the conduct of the
Association's affairs by a notice served under section
8(e)(3) or (g)(1) of the Federal Deposit Insurance Act
(12 USC 1818(e)(3) and (g)(1)), the Association's
obligations under the Plan shall be suspended as of the
date of service unless stayed by appropriate proceedings.
(C) If the Participant is removed and/or permanently
prohibited from participating in the conduct of the
Association's affairs by an order issued under section
8(e)(4) or (g)(1) of the Federal Deposit Insurance Act
(12 USC 1818(e)(4) or (g)(1)), all obligations of the
Association under the Plan shall terminate as of the
effective date of the order, but vested rights of the
Participant shall not be affected.
(D) If the Association is in default (as defined in
section 3(x)(1) of the Federal Deposit Insurance Act), all
obligations under the Plan shall terminate as of the date of
default, but this clause (4) shall not affect any vested
rights of the Participant.
(E) All obligations under the Plan shall be terminated,
except to the extent determined that continuation of the
Plan is necessary for the continued operation of the
Association:
_by the Director of the Office of Thrift
Supervision or his or her designee, at the time the
Federal Deposit Insurance Corporation or the
Resolution Trust Corporation enters into an agreement
to provide assistance to or on behalf of the
Association under the authority contained in section
13(c) of the Federal Deposit Insurance Act; or
_by such Director or his or her designee, at the
time the Director or his or her designee approves a
supervisory merger to resolve problems related to
operation of the Association or when the Association
is determined by the Director to be in an unsafe or
unsound condition.
Any rights of the parties that have already vested, however,
shall not be affected by such action.
(F) Any payments made by the Association to the
Participant pursuant to the Plan, or otherwise, are subject
to and conditioned upon their compliance with 12 USC
1828(k) and any regulations promulgated thereunder.
(B) To the extent benefits that would otherwise be provided to
an Eligible Participant pursuant to the Plan are restricted pursuant
to the provisions of Subsection (A), the Parent Corporation and each
other Affiliate other than an Association are jointly and severally
liable to provide such restricted benefits, without interruption and
without regard to Subsection (A), to the Eligible Participant."
The foregoing amendment is effective as of March 23, 1993.
METROPOLITAN FINANCIAL CORPORATION
EXECUTIVE MANAGEMENT CHANGE IN CONTROL
SEVERANCE PAY PLAN
Second Declaration of Amendment
_______________________________
Pursuant to resolution of the Metropolitan Financial Corporation Board of
Directors, Section 2.22 of the Metropolitan Financial Corporation Executive
Management Change in Control Severance Pay Plan is amended to read as follows:
"2.22 Qualified Employee. A "Qualified Employee" is an individual
employed by the Company and classified as a "regular" employee
pursuant to the Company's applicable employment policies with a
salary grade classification of 21 or higher. If an individual is a
Qualified Employee immediately prior to a Change in Control, he or
she will continue to be a Qualified Employee until his or her Date of
Termination."
The foregoing amendment is effective as of January 1, 1994.