EXHIBIT 10.11
MIDCITY FINANCIAL CORPORATION
RETENTION BONUS PLAN
MidCity Financial Corporation hereby adopts this MidCity Financial
Corporation Retention Bonus Plan for its eligible employees and the eligible
employees of its Subsidiaries, effective as of February 1, 2000. The purpose of
the Plan is to encourage eligible employees to continue their employment with
the Company and its Subsidiaries during its exploration of strategic
alternatives.
ARTICLE I - DEFINITIONS
The following terms have the meanings ascribed to them for this Plan:
1.1. "Board" means the Board of Directors of MidCity Financial Corporation.
1.2. A "Change in Control" will be deemed to occur if any of the events
described in subparagraphs (a), (b), (c) and (d) below occurs.
(a) Any person who is not a direct lineal descendent, or legally adopted
child of a direct lineal descendent, of Edward Morris and Helen Swift
becomes the direct or indirect beneficial owner of 35% or more of the
combined voting power of the outstanding shares of capital stock of
the Company that are entitled to vote generally in the election of
directors.
(b) During any period of 24 consecutive months beginning on or after the
Effective Date, individuals who, at the beginning of that 24-month
period, constitute the Board of Directors of the Company, cease for
any reason to constitute at least a majority of the board, unless the
election or nomination for election of each new director of the
Company was approved by a vote of at least two-thirds of the directors
then still in office who were directors of the Company at the
beginning of the 24-month period.
(c) More than 75% of the assets of the Company are, or are agreed to be,
sold or otherwise disposed of, or the Company dissolves or liquidates,
or effects a partial liquidation involving more than 75% of its
assets.
(d) The Board agrees, by a two-thirds vote, that a Change in Control of
the Company is about to occur.
For purposes of subparagraph (a), a "person" is a natural person, company or
government, or political subdivision, agency or instrumentality of a government,
including a "group" as defined
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in Section 13(d) of the Exchange Act. When two or more persons act as a
partnership, limited partnership, syndicate or other group for the purpose of
acquiring the securities of MidCity, they will be deemed a person for purposes
of the Agreement. "Person" will be construed in the same manner as under Section
3(a)(9) of the Exchange Act, and "group" will be construed in the same manner as
under Section 13(d) of the Exchange Act. Also for purposes of subparagraph (a),
"beneficial owner" means any person who directly or indirectly, through any
contract, arrangement, understanding or otherwise, has or shares voting power,
which includes the power to vote or direct the voting of securities and/or
investment power, which includes the power to dispose of, or direct the
disposition of, the securities, all as described in Rule 13d-3 of the General
Rules and Regulations under the Exchange Act.
1.3. "Committee" means a Committee appointed by the Company to administer
the Plan. The Committee must have at least three members.
1.4. "Company" means MidCity Financial Corporation, a Delaware corporation.
1.5. "Disability" occurs when an Eligible Employee becomes entitled to
benefits under his or her employer's group long-term disability plan or when the
Committee determines in its sole discretion that the Eligible Employee is
permanently and totally disabled.
1.6. "Effective Date" means February 1, 2000.
1.7. "Eligible Employee" means each employee of the Company or a Subsidiary
whose retention is determined by the Board to be of key importance to the
Company and its Subsidiaries throughout the period during which the Company
explores its strategic alternatives. The Board will approve the individuals
chosen as Eligible Employees. A list of Eligible Employees is attached hereto as
Appendix A.
1.8. "Good Cause" means:
(a) a 15% or larger reduction in the aggregate value of the Eligible
Employee's annual base salary, bonus opportunity and benefits
(excluding profit sharing;
(b) assignment to the Eligible Employee of any duties inconsistent in any
respect with the Eligible Employee's position, status, offices, titles
and reporting relationships, authority, duties or responsibilities, or
any other action by the Eligible Employee's employer that results in a
significant diminution in his or her position, authority, duties or
responsibility; or
(c) the Eligible Employee's employer's requiring him or her (without his
or her consent) to relocate to a job location more than 35 miles from
the Eligible Employee's then existing job location.
1.9. "Good Reason" means the Eligible Employee's material and willful
breach of his or her responsibilities, his or her willful failure to comply with
the reasonable directives or policies of his or her employer, disclosure of
trade secrets, fraud or criminal
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misconduct, other willful, malicious conduct that is prejudicial to the best
interests of the Company or the Eligible Employee's employer, or other grave
misconduct on the Eligible Employee's part that is substantially injurious to
the Company or the Eligible Employee's employer.
1.10. "Plan" means this MidCity Financial Corporation Retention Bonus Plan,
as amended from time to time.
1.11. "Retention Bonus" means the amount payable to an Eligible Employee
under the terms of this Plan.
1.12. "Retention Bonus Pool" means the total amount the Company establishes
for paying Retention Bonuses; the Retention Bonus Pool shall not exceed
$2,250,000. The Company may, but is not required, to fund the Retention Bonus
Pool. No Eligible Employee will be entitled to receive any income or interest on
assets that may be set aside to fund the Retention Bonus Pool.
1.13. A "Spin-off Change in Control" will be deemed to occur as to any
Subsidiary if either of the events described in subparagraphs (a) and (b) below
occurs.
(a) The Company sells, in one transaction, or in a series of related
transactions during any period of 24 or fewer consecutive months
beginning on or after the Effective Date, at least 50% of the combined
voting power of the outstanding shares of capital stock of the
Subsidiary that are entitled to vote generally in the election of
directors.
(b) During any period of 24 consecutive months beginning on or after the
Effective Date, individuals who, at the beginning of that 24-month
period, constitute the Board of Directors of the Subsidiary, cease for
any reason to constitute at least a majority of the board, unless the
election or nomination for election of each new director of the
Subsidiary was approved by a vote of at least two-thirds of the
directors then still in office who were directors of the Subsidiary at
the beginning of the 24-month period.
(c) More than 75% of the assets of the Subsidiary are, or are agreed to
be, sold or otherwise disposed of, or the Subsidiary dissolves or
liquidates, or effects a partial liquidation involving more than 75%
of its assets.
(d) The Board agrees, by a two-thirds vote, that a Change in Control of
the Subsidiary is about to occur.
1.14. "Subsidiary" means a business entity of which the Company directly or
indirectly owns at least 80%. Ownership is measured by either combined voting
power or fair market value of all outstanding capital stock.
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ARTICLE II - AMOUNT OF RETENTION BONUS
2.1. REQUIREMENTS FOR PAYMENT OF RETENTION BONUS. An Eligible Employee will
be entitled to payment of a Retention bonus if:
(a) he or she is still employed by the Company or a Subsidiary 60 days
after the date a Change in Control closes; or
(b) he or she is still employed by a Subsidiary 60 days after the date a
Spin-off Change in Control of that Subsidiary closes.
For purposes of this Section 2.1, an Eligible Employee will be deemed to be
still employed by the Company or applicable Subsidiary if his or her employment
ends earlier than 60 days after the Change in Control or Spin-off Change in
Control because of death, Disability, transfer to employment with a company
affiliated with the acquirer of the Company or applicable Subsidiary,
termination without Good Reason or resignation for Good Cause.
2.2. TIMING AND MEDIUM OF PAYMENT. An Eligible Employee's Retention Bonus
will be paid in cash, in one lump sum, as soon as possible after the Eligible
Employee meets the requirements for payment in Section 2.1.
2.2. AMOUNT OF RETENTION BONUS. At any time before the closing of a Change
in Control or Spin-off Change in Control, the Committee will determine the
percentage of each Eligible Employee's annual base salary that will be paid to
him or her if he or meets the requirements of Section 2.1. The Committee may
determine a different dollar amount or percentage of base salary for each
Eligible Employee, but no Retention Bonus will exceed 50% of any Eligible
Employee's annual base salary in effect at the time the amount of his or her
future award is determined.
2.3 RETENTION BONUS POOL. Retention Bonuses will be paid from the
Retention Bonus Pool. The total amount of Retention Bonuses paid under the Plan
cannot exceed the Retention Bonus Pool. If an Eligible Employee forfeits payment
of a Retention Bonus that was previously allocated for him or her by failing to
satisfy the requirements of Section 2.1, the forfeited amount will be credited
to the Retention Bonus Pool and be available for awards to other Eligible
Employees. If the total amount of Retention Bonuses that must ultimately be paid
in connection with any Changes in Control or Spin-off Changes in Control that
closed on a given day would require payment of more than is then credited to the
Retention Bonus Pool, all of those Retention Bonuses will be reduced
proportionately, so that the total amount that must be paid does not exceed the
amount then credited to the Retention Bonus Pool. It is not necessary for the
entire Retention Bonus Pool to be paid to Eligible Employees, and any amount
that is credited to the Retention Bonus Pool when the Plan terminates will
revert to the Company.
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ARTICLE III - GENERAL PROVISIONS
3.1. ADMINISTRATION BY THE COMMITTEE. The Committee will administer the
Plan in accordance with its terms, and will have all powers necessary to carry
out the Plan's provisions. The Committee has full discretion to, and will,
interpret the Plan and determine all questions arising in its administration,
interpretation and application, including but not limited to questions of
eligibility and the status and rights of employees, Eligible Employees and other
persons. Any determination by the Committee of a matter in its discretion will
be conclusive and binding on all persons.
3.2. COMMITTEE MEMBER AS ELIGIBLE EMPLOYEE. A member of the Committee who
is also an Eligible Employee may not participate in any decision concerning his
or her Plan rights.
3.3. AMENDMENT OR TERMINATION. The Company may amend the Plan by resolution
of the Board, or by action of an officer duly authorized by the Board, but if a
Change in Control has occurred, an amendment that would or could have the effect
of reducing any amounts that is or may be payable under the Plan will be
ineffective. The Plan may not be terminated. Notwithstanding the foregoing, the
Plan will automatically terminate on March 31, 2001, if no definitive agreement
to effect a Change in Control or Spin-off Change in Control is then outstanding.
An agreement described in the previous sentence will be deemed to be outstanding
if it has been entered into by the Company or a Subsidiary, but the transactions
contemplated by the agreement have not closed. In addition, the Plan will
automatically terminate if and when the entire Retention Bonus Pool has been
paid out to Eligible Employees.
3.4. NO ENLARGEMENT OF EMPLOYEE RIGHTS. Establishment or maintenance of the
Plan does not and will not give any Eligible Employee the right to be retained
in the service of the Company or a Subsidiary.
3.5. SPENDTHRIFT PROVISION. No interest of any person or entity in, or
right to receive a distribution under, the Plan will be subject in any manner to
sale, transfer, assignment, pledge , attachment, garnishment, or other
alienation or encumbrance of any kind; nor may such an interest or right to
receive a distribution be taken, either voluntarily or involuntarily, for the
satisfaction of the debts of, or other obligations or claims against, the person
or entity, including claims for alimony, support, separate maintenance and
claims in bankruptcy proceedings.
3.6. APPLICABLE LAW. The Plan will be construed and administered under the
laws of the State of Illinois, except to the extent they are preempted by
federal law.
3.7. INCAPACITY OF RECIPIENT. Subject to applicable state law, if any
person entitled to a payment under the Plan is deemed by the Committee to be
incapable of personally receiving and giving a valid receipt for the payment,
then, unless and until a claim for the payment is made by a dully appointed
guardian or other legal representative of the person, the Committee may provide
that the payment will be made to an other person or institution then
contributing toward or providing for the care and maintenance of the person. A
payment pursuant to the preceding
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sentence will be a payment for the account of the person entitled to the
payment, and will completely discharge the Plan's liability to make the payment.
3.8. CORPORATE SUCCESSORS. The Plan will be continued after the merger or
consolidation of the Company into or with any other corporation or other entity.
3.9. LIMITATIONS ON LIABILITY. Notwithstanding any of the preceding
provisions of the Plan, neither any member of the Board or the Committee, nor
any individual acting as an employee or agent of the Company or the Committee,
will be liable to any Eligible Employee or any beneficiary or other person for
any claim, loss, liability or expense incurred in connection with the Plan.
IN WITNESS WHEREOF, the undersigned has caused this Retention Bonus Plan to
be executed on behalf of the Company this _____ day of _________________, 2000.
MIDCITY FINANCIAL CORPORATION
By:_________________________________
Its: Executive Vice President and Secretary
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