UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): November 16, 2009
Associated Banc-Corp
(Exact name of registrant as specified in its charter)
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Wisconsin
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0-5519 and 001-31343
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39-1098068
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(State or other jurisdiction
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(Commission
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(I.R.S. Employer
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of incorporation)
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File Number)
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Identification No.)
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1200 Hansen Road, Green Bay,
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Wisconsin
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54304
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(Address of principal executive
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(Zip Code)
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offices)
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Registrants telephone number, including area code: 920-491-7000
Not Applicable
Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
Appointment of Philip B. Flynn as President and Chief Executive Office and a Director
On November 16, 2009, Associated Banc-Corp (the Company) announced that it had elected Philip B.
Flynn to serve as the President and Chief Executive Officer of the Company and as a member of the
Board of Directors of the Company (the Board) effective December 1, 2009 or such earlier date as
Mr. Flynn commences employment with the Company. Mr. Flynn will also serve as President and Chief
Executive Officer and as a director of Associated Bank, National Association.
Prior to joining the Company, Mr. Flynn, age 52, was previously employed by Union Bank of
California since 1980. Most recently, he served as Vice Chairman and Chief Operating Officer of
UnionBanCal and Union Bank since March 2005. He served as Vice Chairman and head of the Commercial
Financial Services Group of UnionBanCal and Union Bank from April 2004 to March 2005. He served as
Executive Vice President and Chief Credit Officer of UnionBanCal and Union Bank from September 2000
to April 2004, as Executive Vice President and head of Specialized Lending from May 2000 to
September 2000 and as Executive Vice President and head of the Commercial Banking Group from June
1998 to May 2000. Mr. Flynn has been a Director of UnionBanCal since April 2004. Mr. Flynn has a
B.A. in economics from Claremont McKenna College in Claremont, California.
The Board has not determined Mr. Flynns committee appointments. There is no arrangement or
understanding between Mr. Flynn and any other persons pursuant to which Mr. Flynn was selected as a
director or officer of the Company.
Terms of Employment
The Board, based on the approval and recommendation of the Compensation and Benefits Committee,
entered into an Employment Agreement with Mr. Flynn dated as of November 16, 2009 (the
Agreement). The Agreement provides that Mr. Flynn shall commence employment no later than
December 1, 2009 and is an at will employee and specifies the terms of compensation through
December 31, 2011 (the Term).
The Agreement specifies the following annual compensation during the Term (which shall be prorated
for any partial period of employment during the Term):
Base Salary
: $1,200,000 payable in cash in accordance with the Companys payroll policies.
Share Salary
: $2,256,000 payable at the time that Base Salary is payable to Mr. Flynn, net
of applicable tax withholdings and deductions, in grants of shares of the Companys common stock,
having a fair market value on the date of grant equal to the pro rata portion of the salary payable
on each such pay date pursuant to the terms of the Companys 2003 Long-Term Incentive Plan or its
successor equity incentive plan (the LTIP). Each share payable to Mr. Flynn as Share Salary
shall be fully vested as of the date of grant, and shall be subject to restrictions on transfer
that lapse as follows: Share Salary paid in the following periods lapse on the first business day
of the following respective years: during calendar year 2009 2011; during the months of January,
February, March and April the first calendar year following the calendar year in which such
shares were paid; during the months of May, June, July and August the second calendar year
following the calendar year in which such shares were paid; and during the months of September,
October, November and December the third calendar year following the calendar year in which such
shares were paid.
Restricted Shares
: $1,200,000 payable in restricted shares of the Companys common stock or
restricted stock units (Restricted Stock), based on their fair market value at the date of grant.
The grant dates will be the date Mr. Flynn commences employment for the 2009 grant and the first
business day of subsequent years during the Term. The Restricted Stock will vest in 25% increments
on the dates that the Company makes repayments in 25% increments of the aggregate funds received by
the Company under the U.S. Treasurys TARP program. If Mr. Flynns employment with the Company is
terminated for any reason other than as a result of Mr. Flynns death or
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disability or a change in control of the Company, within two years of the date on which an award of
Restricted Stock is granted, Mr. Flynn shall forfeit such award in accordance with the TARP
requirements.
Supplemental Retirement Benefit
: 9.5% of Base Salary and Share Salary (each at their annual
rate) less the applicable dollar limitation in effect for such calendar year set forth in Section
401(a)(17) of the Internal Revenue Code (currently $245,000) payable on the last day of each
payroll period (the Supplemental Retirement Benefit). Each Supplemental Retirement Benefit
accrual will be vested on the date of such accrual and will be distributed in a lump sum upon Mr.
Flynns separation from service within the meaning of Section 409A of the Internal Revenue Code.
The Companys obligation to accrue for the Supplement Retirement Benefit continues during Mr.
Flynns employment following the Term.
During Mr. Flynns employment, the Company shall make available to Mr. Flynn such fringe and other
benefits and perquisites as are regularly and generally provided to the other senior executives of
the Company, subject to the terms and conditions of any employee benefit plans and arrangements
maintained by the Company and all applicable TARP requirements, including, without limitation, the
restriction on tax gross-up payments. The Company will reimburse the reasonable expenses of Mr.
Flynn in connection with him entering into the Agreement. The Agreement provides for the Companys
indemnification of Mr. Flynn subject to applicable law and the Companys bylaws and maintenance of
directors and officers insurance coverage for the later of six years or the date that claims
would be time barred with coverage to Mr. Flynn no less favorable than coverage provided to any
current or former executive.
During Mr. Flynns employment, Mr. Flynn is subject to confidentiality provisions and restrictive
covenants, including non-competition and non-solicitation covenants. Following the termination of
his employment, Mr. Flynn is subject to the non-competition and non-solicitation of customers
covenants for six months and the non-solicitation of employees for one year.
The Agreement provides for compliance with any golden parachute payment limitations and any other
compensation limitations under TARP. Further, the Agreement does not provide for severance and tax
gross-ups.
The foregoing brief description of the terms and conditions of the Agreement does not purport to be
complete and is qualified in its entirety by reference to the Agreement, which is filed as Exhibit
99.1 hereto and is incorporated herein by reference.
Since January 1, 2008, there have been no transactions, and there are no currently proposed
transactions, to which the Company was or is a participant and in which Mr. Flynn had or is to have
a direct or indirect material interest that would require disclosure pursuant to Item 404(a) of
Regulation S-K.
2003 Long-Term Incentive Stock Plan
In connection with the Agreement, the Board approved the Amendment to the Associated Banc-Corp 2003
Long-Term Incentive Stock Plan (the Amendment). The Amendment provides for the issuance of
restricted stock units.
In connection with the Agreement, the Board approved the Form of Restricted Stock Unit Grant
Agreement (the Grant Agreement). The Grant Agreement was approved in order to issue restricted
stock units under the Associated Banc-Corp 2003 Long-Term Incentive Stock Plan.
The foregoing brief description of the terms and conditions of the Amendment and the Grant
Agreement does not purport to be complete and is qualified in its entirety by reference to the
Amendment and Grant Agreement, which are filed as Exhibit 99.2 and Exhibit 99.3, respectively,
hereto and are incorporated herein by reference.
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Retirement of Paul S. Beideman
Paul S. Beideman will retire as Chairman, director and Chief Executive Officer of the Company and
Associated Bank, National Association, upon Mr. Flynns commencement of employment and will remain
employed as an at will employee of the Company until February 1, 2010 to facilitate the CEO
transition.
Through the end of his employment, Mr. Beideman will continue to receive his current base salary
and participate in the benefits programs as disclosed in the Companys Proxy Statement for the 2009
Annual Meeting of Shareholders. The Company has not entered into any compensation agreement with
Mr. Beideman in connection with his retirement. Following his employment, Mr. Beideman will receive
the benefits under the Companys retirement plans disclosed for him in the Companys Proxy
Statement for the 2009 Annual Meeting of Shareholders.
The Company is not aware of any disagreement between Mr. Beideman and the Company on any matter
relating to the Companys operations, policies or practices.
Appointment of William R. Hutchinson, Chairman of the Board
On November 16, 2009, the Company also announced that the Board elected William R. Hutchinson as
its Chairman effective December 1, 2009. Mr. Hutchinson has served as a director of the Company
since April 1994 and has served as Lead Independent Director since April 2009.
Mr. Hutchinsons compensation as Chairman
is expected to be determined at the regularly scheduled meeting of
the Compensation and Benefits Committee in January 2010.
A copy of the press release announcing these appointments is attached hereto as Exhibit 99.4 and is
incorporated by reference herein.
Item 9.01.
Financial Statements and Exhibits.
(d) Exhibits
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Exhibit No.
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Description
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99.1
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Employment Agreement between Philip B. Flynn and Associated
Banc-Corp dated as of November 16, 2009.
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99.2
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Amendment to Associated Banc-Corp 2003 Long-Term Incentive
Stock Plan effective November 15, 2009.
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99.3
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Form of Restricted Stock Unit Grant Agreement.
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99.4
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Press Release by Associated Banc-Corp dated November 16, 2009.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Associated Banc-Corp
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November 16, 2009
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By:
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Brian R. Bodager
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Name:
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Brian R. Bodager
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Title:
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Chief Administrative Officer, General Counsel & Corporate
Secretary
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Exhibit Index
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Exhibit No.
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Description
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99.1
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Employment Agreement between Philip B. Flynn and Associated
Banc-Corp dated as of November 16, 2009.
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99.2
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Amendment to Associated Banc-Corp 2003 Long-Term Incentive
Stock Plan effective November 15, 2009.
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99.3
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Form of Restricted Stock Unit Grant Agreement.
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99.4
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Press Release by Associated Banc-Corp dated November 16, 2009.
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Exhibit 99.1
ASSOCIATED BANC-CORP
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the
Agreement
) is entered into as of the 16th day of
November 2009 by and between Associated Banc-Corp, a Wisconsin corporation (the
Company
),
and Philip B. Flynn (
Executive
) (the Company and Executive referred to collectively as
the
Parties
and individually as a
Party
).
WHEREAS, the Company and Executive wish to enter into an employment relationship on the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the
Company and Executive hereby agree as follows:
ARTICLE ONE
EMPLOYMENT
1.01
Agreement as to Employment
.
This Agreement will be deemed to be effective as of December 1, 2009 or such earlier date as
Executive commences employment with the Company (the
Effective Date
). As of the
Effective Date, the Company hereby agrees to employ Executive as its President and Chief Executive
Officer (
CEO
), and Executive hereby accepts such employment by the Company, subject to
the terms of this Agreement. Executive agrees that the Company may announce Executives acceptance
of employment with the Company under this Agreement at any time after the close of business on the
Effective Date or such earlier date as the Parties agree or as required by applicable law.
1.02
Agreement Term
.
The term of Executives employment by the Company under this Agreement shall commence on the
Effective Date and shall end on December 31, 2011 (the
Term
). Upon expiration of the
Term, unless Executives employment has been previously terminated, this Agreement will terminate.
Notwithstanding any provision in this Agreement to the contrary, the Parties acknowledge that
Executives employment with the Company shall be on an at-will basis and can be terminated at any
time in accordance with
Section 1.08
hereof.
1.03
Freedom to Contract
.
Executive represents and warrants that he has the right to enter into this Agreement and that,
except as to confidentiality obligations to Executives former employer, there are no existing
agreements, covenants, arrangements or understandings, written or oral, that would prevent or
restrict Executive in any way from rendering services to the Company during Executives employment
or would be breached by the future performance by Executive of Executives duties hereunder.
Executive represents and warrants that he will fulfill his obligation to maintain confidential
treatment for confidential matters learned during Executives employment with his former employer.
Executive represents and warrants that he has not made and will not make any contractual or other
commitments that do or would conflict with or prevent his performance of his obligations hereunder,
except that the foregoing shall not prevent Executive from entering
into an agreement for future employment with another company or organization.
1.04
Title and Duties.
(a) Executive shall be employed by the Company to serve as its President and CEO and perform
such duties consistent with those positions and relating to the Company and its affiliates,
including any subsequently-acquired affiliates (collectively, the
Affiliates
), and shall
report to the Companys Board of Directors (the
Board
). In that capacity, Executive
shall serve as president and chief executive officer and as a director of each of the Companys
subsidiaries that are material to the business of the Company, as determined by the Board in its
discretion (collectively, the
Material Subsidiaries
). Executive shall have such
authority, responsibility and duties as are normally associated with the positions of President and
CEO with respect to the Company and with the positions of president and chief executive officer
with respect to the Material Subsidiaries. Executive shall be appointed to such positions with the
Company and the Material Subsidiaries on the Effective Date. All employees of the Company and the
Material Subsidiaries shall report directly to Executive, except for those employees that the Board
and Executive reasonably determine shall report directly to the Board or to a committee thereof.
(b) Subject to the provisions of this
Section 1.04(b)
, Executive agrees to devote
substantially all of his business time and efforts to the Company as long as he is employed as
President and CEO of the Company. Notwithstanding the foregoing, Executive may continue,
throughout his employment, to engage in charitable, community and personal activities and in the
management of personal investments and his personal and family affairs, and he may serve on the
board of directors of up to two (2) for-profit corporations, provided that such activities in the
aggregate do not conflict with the interests of the Company or interfere with his obligations under
the terms of his employment with the Company.
(c) Executive shall be appointed to the Board on the Effective Date, and the Company shall use
its reasonable best efforts to cause Executive to be nominated for reelection to the Board at each
annual meeting of the stockholders of the Company held during the Term.
1.05
Compensation
.
(a)
Base Salary
. During the Term, the Company shall pay to Executive a gross annual
cash salary of $1,200,000, payable in accordance with the Companys payroll policies, plans and
practices and pro-rated for any partial year of employment during the Term.
(b)
Share Salary
. During the Term, the Company shall pay to Executive a gross annual
salary of $2,256,000, payable at the time that Base Salary is payable to Executive and pro-rated
for any partial year of employment during the Term, net of applicable tax withholdings and
deductions, in grants of shares of the Companys common stock, par value $0.01 per share (the
Common Stock
), having a Fair Market Value (as defined below) on the date of grant equal
to the
pro rata
portion of the salary payable on each such pay date (the
Share Salary
).
Such payments of Share Salary under this
Section 1.05(b)
shall be made pursuant to the
terms of the Companys 2003 Long-Term Incentive Stock Plan or its successor equity incentive plan
(the
LTIP
). Each share payable to Executive as Share Salary shall be fully vested as of
the date of grant, and shall be subject to restrictions on transfer that lapse in accordance with
the following schedule:
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With respect to shares paid as Share Salary during calendar year 2009, on the first
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business day of calendar year 2011;
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With respect to shares paid as Share Salary during the months of January, February,
March and April of calendar years 2010 and 2011, on the first business day of the first
calendar year following the calendar year in which such shares were paid;
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With respect to shares paid as Share Salary during the months of May, June, July and
August of calendar years 2010 and 2011, on the first business day of the second calendar
year following the calendar year in which such shares were paid; and
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With respect to shares paid as Share Salary during the months of September, October,
November and December of calendar years 2010 and 2011, on the first business day of the
third calendar year following the calendar year in which such shares were paid.
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Any attempted transfer of shares payable as Share Salary that does not comply with the provisions
of this
Section 1.05(b)
shall be invalid and of no effect, except that Executive shall be
permitted, subject to advice and counsel from the Companys General Counsel or his designee as to
any legal limitations, to transfer shares payable as Share Salary for estate planning purposes.
For purposes of this Agreement,
Fair Market Value
shall have the meaning ascribed to such
term by the LTIP. The Company shall use its reasonable best efforts to maintain registration of
the shares paid as Share Salary on a Form S-8.
(c)
Restricted Stock
. The Company shall award to Executive, on an annual basis during
the Term, an additional amount in restricted shares of the Companys Common Stock (
Restricted
Stock
), the Fair Market Value of which is equal to $1,200,000 per annum, pro-rated for any
partial year of employment during the Term. Restricted Stock shall be awarded with respect to any
calendar year during the Term on the first business day of such calendar year, except that
Restricted Stock awarded with respect to calendar year 2009 shall be awarded on the Effective Date
or as soon as is administratively practicable thereafter. Restricted Stock shall be subject to the
terms and conditions of the LTIP, the separate written restricted stock award agreement entered
into between the Company and Executive in respect of the Restricted Stock, and, until the Company
is no longer subject to the terms and conditions of the Troubled Asset Relief Program (the
TARP
) under the Emergency Economic Stabilization Act of 2008, as amended, including the
Interim Final Rule published by the Department of the Treasury on June 15, 2009, any other rules
and regulations that are applicable to the Company pursuant to its participation in the TARP, as
they may be promulgated and/or amended from time to time, and any other compensation limitations
that may become applicable to Executive pursuant to laws or other rules, regulations or written
guidance issued pursuant to the authority of the Federal Reserve Board, the Office of the
Comptroller of the Currency, the Federal Deposit Insurance Corporation or other applicable federal
or state regulatory agency (the
TARP Requirements
), shall be subject to all applicable
TARP Requirements.
Restricted Stock awarded under this
Section 1.05(c)
shall vest in accordance with the
following schedule:
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25% at the time the Company repays 25% of the aggregate financial assistance received
by the Company under the TARP;
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An additional 25% at the time the Company repays 50% of the aggregate financial
assistance received by the Company under the TARP;
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An additional 25% at the time the Company repays 75% of the aggregate financial
assistance received by the Company under the TARP; and
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The remaining 25% at the time the Company repays 100% of the aggregate financial
assistance received by the Company under the TARP.
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Notwithstanding the foregoing, and as required pursuant to the TARP Requirements, no award of
Restricted Stock will vest in accordance with the above schedule if Executive does not continue to
perform substantial services to the Company for at least two (2) years after the date on which such
award of Restricted Stock is granted;
provided
that the immediately preceding requirement
will not apply if, prior to the second anniversary of the date on which an award of Restricted
Stock is granted, Executive ceases to provide substantial services to the Company due to
Executives death or disability, or a change in control event (as defined in 26 CFR 1.280G-1,
Q&A-27 through Q&A-29 or as defined in 26 CFR 1.409A-3(i)(5)(i)) with respect to the Company. For
purposes of this
Section 1.05(c
), Executive will be deemed to have ceased to provide
substantial services to the Company if he has incurred a separation from service for purposes of
Section 409A (as defined below in
Section 4.01
), which shall occur when the Company and
Executive reasonably anticipate that the level of bona fide services Executive will perform after
such date (whether as an employee or as an independent contractor) will permanently decrease to no
more than twenty percent (20%) of the average level of bona fide services performed (whether as an
employee or an independent contractor) over the immediately preceding thirty-six (36) month period
(or the full period of services to the Company if Executive has been providing services to the
Company for fewer than thirty-six (36) months). Upon any such separation from service for death
or disability, or upon a change in control event, Executive shall be vested in any Restricted Stock
that as of such date was vested in accordance with the vesting schedule set forth above. In lieu
of Restricted Stock, the Company may, in its discretion, satisfy its obligations under this
Section 1.05(c)
by awarding restricted stock units in accordance with the terms of the
LTIP. All distributions of restricted stock units and all dividend equivalents on restricted stock
units or restricted stock shall be made within the applicable short-term deferral periods under
Section 409A (as defined below in
Section 4.01
), and all applicable written restricted
stock unit award agreements and restricted stock award agreements shall be drafted accordingly.
Executive shall not be entitled to any award of Restricted Stock under this
Section 1.05(c)
with respect to the employment period described in
Section 1.08(a)
after Executive has
given written notice of his intent to terminate his employment.
(d)
Business Expenses
. The Company shall promptly pay directly, or shall reimburse
Executive for, business expenses, including but not limited to expenses for travel and
entertainment, paid or incurred by Executive during Executives employment, that are reasonable and
appropriate to the conduct by Executive of the Companys business, subject to Executives providing
reasonable substantiation of such expenses to the Company in accordance with Company policies. In
addition, the Company shall pay all reasonable expenses incurred by Executive in connection with
the drafting and negotiation of this Agreement.
1.06
Supplemental Retirement Benefit
.
On the last day of each regular payroll period (pro-rated for any partial pay period) during
Executives employment with the Company, the Company shall accrue for the benefit of Executive a
supplemental retirement accrual (the
Supplemental Retirement Benefit
) equal to
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9.5% of the Base Salary and Share Salary (each at their annual rate) less the applicable
dollar limitation in effect for such calendar year set forth in Section 401(a)(17) of the Internal
Revenue Code of 1986, as amended, provided Executive is still employed by the Company on the date
of each such Supplemental Retirement Benefit accrual. Each Supplemental Retirement Benefit accrual
will be fully vested on the date of such accrual and will be distributed (subject to
Section
4.01(a)
of this Agreement) in a lump sum within thirty (30) days following Executives
separation from service within the meaning of Section 409A (as defined below in
Section
4.01
). Until such distribution, the Supplemental Retirement Benefit will be deemed invested as
directed by Executive among such generally available investment alternatives as determined by the
Company, provided that no available investment alternative will relate directly to the performance
of the Company, its Affiliates or Executive. The Parties intend that the arrangement described in
this
Section 1.06
be unfunded for tax purposes and for purposes of Title I of the Employee
Retirement Income Security Act of 1974, as amended, and shall be administered and interpreted in
the sole discretion of the Company or such other persons selected by the Company to manage the
operation and administration of this
Section 1.06
. Executives right to benefits under
this
Section 1.06
are not subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment or garnishment by creditors of Executive or
his beneficiaries, nor may Executive or his beneficiaries sell, assign, transfer, encumber, or
otherwise dispose of Executives right to receive payments under this
Section 1.06
.
1.07
Fringe and Other Benefits
.
During Executives employment, the Company shall make available to Executive such fringe and
other benefits and perquisites as are regularly and generally provided to other senior executives
of the Company from time to time, including, but not limited to, any health, disability or life
insurance benefits, pension benefits, and 401(k) savings plan or other benefits under employee
compensation or benefit policies, programs or plans, but excluding benefits provided under the
Companys Supplemental Executive Retirement Plan, subject to the terms and conditions (including
eligibility or qualification requirements) of any employee benefit plans and arrangements
maintained by the Company and all applicable TARP Requirements, including, without limitation, the
restriction on tax gross-up payments.
1.08
Termination of Employment
.
(a)
Termination Events
. The Company may terminate Executives employment effective
immediately following notice of termination given by the Company and, in such event, Executives
employment under this Agreement shall terminate. Executive may voluntarily resign Executives
position as President and CEO of the Company effective thirty (30) days following notice to the
Company of Executives intent to voluntarily resign, except that, in the event of a material breach
of this Agreement by the Company, Executive may resign Executives position as President and CEO of
the Company effective five (5) days following notice to the Company thereof if such material breach
is not cured by the Company prior thereto. This Agreement shall terminate upon the termination
date specified in such notice or such earlier date as may be determined by the Company. During
such notice period, the Company may require that Executive cease performing some or all of
Executives duties, not be present at the Companys offices, or not be present at other facilities
or activities of or involving the Company.
(b)
Payments Upon Termination
. Upon the Executives termination of employment for any
reason, Executive shall receive from the Company: any unpaid Base Salary and Share
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Salary for any period ending on or before the date of termination of employment, any accrued
Supplemental Retirement Benefit under
Section 1.06
, any unreimbursed business expenses
subject to reimbursement under
Section 1.05(d)
, vacation pay for accrued but unused
vacation days through the date of termination (subject to the terms and conditions of the Companys
vacation and paid time off policies) and any benefits to which Executive may be entitled pursuant
to the terms and conditions of any applicable employee benefit plan of the Company, which shall be
paid on the Companys first payroll date following Executives termination of employment (or, for
purposes of benefits under an employee benefit plan of the Company, provided pursuant to the terms
of the applicable employee benefit plan). Notwithstanding anything to the contrary, no payment or
benefit will be provided to Executive if any such payment or benefit would violate the TARP
Requirements.
(c)
Return of Company Property
. Upon termination of Executives employment for any
reason, or upon the request of the Company at any time, Executive shall terminate his use of and
return to the Company all Company property, including without limitation, any Confidential
Information (as defined below), vehicles, credit cards, equipment, computers, phones, cell phones,
pagers, equipment, supplies, tools, keys or locks, except that any personal or family contact
information and any contact devices and/or records used by Executive exclusively for personal or
family reasons shall not be deemed Company property and may be retained by Executive.
Notwithstanding the foregoing, Executive may make a paper copy of, and retain for his personal use
only, his personal rolodex, address book and similar contact information.
(d)
No Further Obligations
. Upon termination of Executives employment under this
Agreement, the Parties shall have no further obligations under this Agreement to each other except
as expressly stated herein and in any written employee benefit plans and arrangements applicable to
Executive that are maintained by the Company at the time of such termination of Executives
employment, and no further payments of Base Salary or Share Salary or other compensation or
benefits shall be payable by the Company to Executive, except such obligations and payments (i) as
are set forth
Section 1.08(b)
; (ii) as are required by the express terms of any written
employee benefit plans and arrangements applicable to Executive that are maintained by the Company
at the time of such termination of Executives employment; (iii) as may be required by law; or (iv)
as may be mutually agreed upon between the Parties in a signed written negotiated agreement entered
into in connection with a termination of Executives employment under this Agreement, which
agreement shall contain a release in favor of the Company that is comparable in scope to the
release referred to in the next sentence. Notwithstanding any other provision of this Agreement,
as a precondition to the payment of any compensation or benefits in excess of those otherwise
required by law to be paid upon termination of employment, Executive agrees to execute a release of
any claims against the Company, its employees, officers, directors, shareholders, Affiliates and
subsidiaries arising out of, in connection with or relating to Executives employment with or
termination of employment from the Company including any claims under the terms of this Agreement,
and specifically including but not limited to a release of claims under the Age Discrimination in
Employment Act and any similar rights under any state or local law, in a form reasonably acceptable
to the Company. Anything to the contrary herein notwithstanding, nothing in the release described
in this
Section 1.08(d)
shall release any releasee from any claims or damages based on (a)
any right or claim that arises exclusively from events occurring after the date Executive executes
such release, (b) any right Executive may have to payments, benefits or entitlements under this
Agreement or any applicable plan, policy, program or arrangement of, or other agreement with, the
Company or
6
any Affiliate, (c) Executives eligibility for indemnification in accordance with this
Agreement, the organizational documents of the Company and the Material Subsidiaries (said
documents collectively referred to as the
Corporate Documents
), or applicable laws, or
under any applicable insurance policy, with respect to any liability Executive incurs as a
director, officer or employee of the Company or any Affiliate, or (d) any right Executive may have
to obtain contribution as permitted by law in the event of entry of judgment against Executive as a
result of any act or failure to act for which Executive and any releasee are jointly liable. For so
long as the Company is subject to the TARP Requirements, any such agreement or release shall be
subject to the TARP Requirements.
ARTICLE TWO
RESTRICTIVE COVENANTS
2.01
Confidentiality
.
In the course of performing his duties for the Company, the Company agrees to provide
Executive with certain proprietary, confidential and trade secret information of the Company and
its affiliates, including but not limited to: the database of customer accounts; customer, supplier
and distributor lists; customer profiles; information regarding sales and marketing activities and
strategies; trade secrets; data regarding technology, products and services; information regarding
pricing, pricing techniques and procurement; financial data and forecasts regarding the Company and
customers, suppliers and distributors of the Company; software programs and intellectual property
(collectively,
Confidential Information
). All Confidential Information shall be and
remains the sole property of the Company and its assigns, and the Company shall be and remains the
sole owner of all patents, copyrights, trademarks, names and other rights in connection therewith
and without regard to whether the Company is at any particular time developing or marketing the
same. Executive acknowledges that the Confidential Information is a valuable, special and unique
asset of the Company and that his access to and knowledge of the Confidential Information is
essential to the performance of his duties as an employee of the Company. In light of the
competitive nature of the business in which the Company is engaged, Executive agrees that he will,
both during Executives employment with the Company and thereafter, maintain the strict
confidentiality of all Confidential Information known or obtained by him or to which he has access
in connection with his employment by the Company and that he will not, without prior written
consent of the Board for and on behalf of the Company, except in good faith performance of his
duties (i) disclose any Confidential Information to any person or entity or (ii) make any use of
any Confidential Information for his own purposes or for direct or indirect benefit of any person
or entity other than the Company. Confidential Information shall not be deemed to include (a)
information that becomes generally available to the public through no fault of Executive, (b)
information that is previously known by Executive prior to his receipt of such information from the
Company, (c) information that becomes available to Executive on a non-confidential basis from a
source which, to Executives knowledge, is not prohibited from disclosing such information by
legal, contractual or fiduciary obligation to the Company or (d) information that is required to be
disclosed in order to comply with any applicable law or court order. Immediately upon termination
of Executives employment or at any other time upon the Companys request, Executive will return to
the Company all memoranda, notes and data, computer software and hardware, records or other
documents compiled by Executive or made available to Executive during Executives employment with
the Company concerning the
7
business of the Company, including without limitation, all files, records, documents, lists,
equipment, supplies, promotional materials, keys, phone or credit cards and similar items and all
copies thereof or extracts therefrom.
2.02
No Solicitation of Employees
.
Executive agrees that, both during Executives employment with the Company and for a period of
one (1) year following Executives termination of employment with the Company for any reason,
Executive will not knowingly, directly or indirectly, on behalf of himself or any other person or
entity, hire, engage or solicit to hire for employment or consulting or other provision of
services, any person who is actively employed (or in the six (6) months preceding Executives
termination of employment with the Company was actively employed) by the Company, except for rehire
by the Company. This includes, but is not limited to, inducing or attempting to induce, or
influence or attempting to influence, any person employed by the Company to terminate his or her
employment with the Company, other than in good faith performance of Executives duties while
employed by the Company. Notwithstanding the foregoing, this
Section 2.02
shall not be
construed to restrict or limit (i) general employee-related advertising not targeted at employees
of the Company or (ii) Executives ability to provide employment references regarding particular
individuals upon request of an organization or company that neither employs nor is associated with
Executive,
provided
Executive does not identify to such company or organization any
individuals who have not been previously contacted by the organization or company with respect to
employment or retention issues.
2.03
No Solicitation of Customers
.
Executive agrees that, during Executives employment with the Company and for a period of six
(6) months following Executives termination of employment with the Company for any reason,
Executive will not directly, on behalf of any competitor of the Company in the business of the
Company, solicit the business of any entity within the United States who is a customer of the
Company.
2.04
Non-Competition
.
In return for the Companys promises herein, including the promise to provide Executive with
Confidential Information, and in accordance with Executives acknowledgements and promises in
Section 2.01
, during Executives employment with the Company and for a period of six (6)
months following Executives termination of employment with the Company for any reason, Executive
shall not, on behalf of himself or for others, directly or indirectly, alone or in combination with
any other person or entity, own, operate, manage, control, engage or participate in, consult or
advise, render services for, or otherwise assist, in any executive or strategic role, any person or
entity (other than the Company) that engages in the business of the Company in the states of
Illinois, Wisconsin or Minnesota (a
Competitive Entity
), in which (i) the Competitive
Entitys corporate headquarters is in the states of Illinois, Wisconsin or Minnesota; (ii) the
Competitive Entity has a majority share of its business operations in the states of Illinois,
Wisconsin and/or Minnesota (either individually or in the aggregate); or (iii) Executives position
with the Competitive Entity would involve directly and materially influencing the Competitive
Entitys operations in the states of Illinois, Wisconsin or Minnesota. The Parties agree that this
Section 2.04
shall not prohibit the ownership by Executive, solely as an investment, of
securities of a person engaged in the business of the Company if (a) Executive is not an
affiliate (as such term is defined in Rule 12b-2 of the regulations promulgated under
8
the Securities Exchange Act of 1934, as amended) of the issuer of such securities, (b) such
securities are publicly traded on a national securities exchange and (c) Executive does not,
directly or indirectly, beneficially own more than two percent (2%) of the class of which such
securities are a part.
2.05
Enforcement
.
Executive acknowledges and agrees that the services to be provided by him under this Agreement
are of a special, unique and extraordinary nature. Executive further acknowledges and agrees that
the restrictions contained in this Article Two are necessary to prevent the use and disclosure of
Confidential Information and to protect other legitimate business interests of the Company.
Executive acknowledges that all of the restrictions in this Article Two are reasonable in all
respects, including duration, territory and scope of activity. In the event a court of competent
jurisdiction determines as a matter of law that any of the terms of this Article Two are
unreasonable or overbroad, the Parties expressly allow such court to reform this Agreement to the
extent necessary to make it reasonable as a matter of law and to enforce it as so reformed.
Executive agrees that the restrictions contained in this Article Two shall be construed as separate
agreements independent of any other provision of this Agreement or any other agreement between
Executive and the Company. Executive agrees that the existence of any claim or cause of action by
Executive against the Company (whether predicated on this Agreement or otherwise) shall not
constitute a defense to the enforcement by the Company of the covenants and restrictions in this
Article Two. Executive agrees that the restrictive covenants contained in this Article Two are a
material part of Executives obligations under this Agreement for which the Company has agreed to
compensate Executive and provide him with Confidential Information as provided in this Agreement.
Executive agrees that the injury the Company will suffer in the event of the breach by Executive of
any clause of this Article Two will cause the Company irreparable injury that cannot be adequately
compensated by monetary damages alone. Therefore, Executive agrees that the Company, without
limiting any other legal or equitable remedies available to it, shall be entitled to obtain
equitable relief by injunction or otherwise from any court of competent jurisdiction, including,
without limitation, injunctive relief to prevent Executives failure to comply with the terms and
conditions of this Article Two. The restricted periods referenced in Article Two shall be extended
on a day-for-day basis for each day during which Executive violates the provisions of any
respective provision hereof in any material respect, so that Executive is restricted from engaging
in the activities prohibited by Article Two for the full periods specified therein, as applicable.
2.06
Intangible Property
.
Executive will not at any time during or after his termination of employment with the Company
have or claim any right, title or interest in any trade name, trademark, patent, copyright, work
for hire or other similar rights belonging to or used by the Company and shall not have or claim
any right, title or interest in any material or matter of any sort prepared for or used in
connection with the business or promotion of the Company, whatever Executives involvement with
such matters may have been, and whether procured, produced, prepared, or published in whole or in
part by Executive, it being the intention of the Parties that Executive shall and hereby does
recognize that the Company now has and shall hereafter have and retain the sole and exclusive
rights in any and all such trade names, trademarks, patents, copyrights (all Executives work in
this regard being a work for hire for the Company under the copyright laws of the United States),
material and matter as described above. If any such work created by
9
Executive is not a work made for hire under the copyright laws of the United States, then Executive
hereby assigns to the Company all right, title and interest in each such work (including without
limitation all copyright rights). Executive shall cooperate fully with the Company, at the cost
and expense of the Company, during his employment and thereafter in the securing of trade name,
trademark, patent or copyright protection or other similar rights in the United States and in
foreign countries and shall give evidence and testimony and execute and deliver to the Company all
papers reasonably requested by it in connection therewith.
2.07
Survival
.
Any termination of Executives employment or of this Agreement (or breach of this Agreement by
Executive or the Company) shall have no effect on the continuing operation of this Article Two.
ARTICLE THREE
MISCELLANEOUS
3.01
Entire Agreement.
This Agreement constitutes the entire agreement and understanding between the Parties hereto
concerning the subject matter hereof. No modification, amendment, termination or waiver of this
Agreement shall be binding unless in writing and signed by Executive and duly authorized officer(s)
of the Company. Notwithstanding anything in this
Section 3.01
to the contrary, in the
event that all or any portion of this Agreement is found to be in conflict with the TARP
Requirements, then in such event this Agreement shall be automatically modified to comply with the
TARP Requirements, and this Agreement shall be interpreted and administered accordingly. Failure
of the Company or Executive to insist upon strict compliance with any of the terms, covenants or
conditions hereof shall not be deemed a continuing waiver of such or other terms, covenants and
conditions.
3.02
Successors and Assigns
.
This Agreement shall be binding upon and inure to the benefit of Executive and the heirs,
executors, assigns and administrators of Executive or his estate and property and shall be binding
upon and inure to the benefit of the Company and its successors and assigns (as provided below).
Executive may not assign or transfer to others the obligation to perform Executives duties
hereunder, and there are no third party beneficiaries to Executives rights hereunder. The Company
may assign or transfer its rights and obligations under this Agreement, as, and only as, provided
in the following sentence. The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company to assume expressly and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform it if no such succession had
taken place. As used in this Agreement, Company shall mean the Company as hereinbefore defined
and any successor to its business and/or assets as aforesaid.
3.03
Indemnification and Directors and Officers Liability Insurance
.
(a) To the extent permitted by the Companys by-laws and applicable law, the Company hereby
agrees to indemnify Executive from and against all loss, costs, damages and expenses including,
without limitation, legal expenses of counsel (which expenses the Company
10
will, to the extent so permitted, advance to Executive as the same are incurred) arising out
of or in connection with the fact that Executive is or was an officer, employee or agent of the
Company and/or its Affiliates. However, Executive shall repay any expenses paid or reimbursed by
the Company if it is ultimately determined that he is not legally entitled to be indemnified by the
Company. If the Companys ability to make any payment contemplated by this
Section 3.03(a)
depends on an investigation or determination by the Board, at Executives request the Company will
use its best efforts to cause the investigation to be made (at the Companys expense) and to have
the Board reach a determination as soon as reasonably possible.
(b) A directors and officers liability insurance policy (or policies) shall be kept in place
during Executives employment with the Company until the later of (i) the sixth anniversary of the
date on which Executives employment with the Company terminates or (ii) the date on which all
claims against Executive that would otherwise be covered by the policy (or policies) would become
fully time barred, providing coverage to Executive that is no less favorable to him in any respect
(including, without limitation, with respect to scope, exclusions, amounts and deductibles) than
the coverage then being provided to any other present or former executive officer or director of
the Company.
(c) The provisions of this
Section 3.03
shall survive any termination of Executives
employment.
3.04
Insurance
.
If the Company desires at any time or from time to time during Executives employment with the
Company to apply in its own name or otherwise for life, health, accident or other insurance
covering Executive, the Company may do so and may take out such insurance for any sum that the
Company may deem necessary to protect its interests. Executive will have no right, title or
interest in or to such insurance, but will, nevertheless, assist the Company in procuring and
maintaining the same by submitting from time to time to the usual customary medical, physical, and
other examinations and by signing such applications, statements and other instruments as may
reasonably be required by the insurance company or companies issuing such policies.
3.05
Notices
.
Notices hereunder shall be deemed delivered upon the confirmation of delivery of a facsimile
or of actual receipt by the addressee and shall be sent as follows (or if receipt is acknowledged
by the recipient, by email):
If to the Company, to:
Associated Banc-Corp
1200 Hansen Road
Green Bay, Wisconsin 54304
Attention: Brian R. Bodager, General Counsel
11
with a copy to:
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
Attention: Christine Edwards
If to Executive, to:
Philip B. Flynn
Chief Executive Officer
Associated Banc-Corp
1200 Hansen Road
Green Bay, Wisconsin 54304
or to such home address as may be reflected in the Companys records at the time the notice is
given, with a copy to:
Proskauer Rose
1585 Broadway
New York, New York 10036
Attention: Michael S. Sirkin
or to such other address and/or person designated by a Party in writing and in the same manner to
the other Party. Any written notice required to be provided by or to Executive under this Agreement
may be provided by or to such representative or representatives as Executive may designate by
written notice to the Company.
3.06
Offset/Breach
.
The Companys obligation to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any setoff, counterclaim, recoupment,
defense or other claim, right or action that the Company may have against Executive or others.
Performance of Executives obligations hereunder shall not be affected by any setoff, counterclaim,
recoupment, defense or other claim, right or action that Executive may have against the Company or
others. The Companys termination of Executives employment hereunder for any reason shall not be a
breach of this Agreement.
3.07
Counterparts
.
This Agreement may be signed in counterparts, each of which shall be deemed an original and
all of which taken together shall constitute one and the same agreement, and delivered by facsimile
or other electronic transmission confirmed promptly thereafter by actual delivery of executed
counterparts.
3.08
Applicable Law
.
This Agreement and all rights and liabilities of the Parties shall be governed by and
interpreted in accordance with the laws of the State of Wisconsin, excluding any choice of law
12
rules that would refer the matter to the laws of another jurisdiction. The Parties each
submit and consent to the jurisdiction of the courts in the State of Wisconsin, Brown County, in
any action brought to enforce or otherwise relating to this Agreement.
3.09
Headings
.
The captions and headings contained in this Agreement are for convenience only and shall not
be construed as a part of the Agreement.
3.10
Severability
.
To the extent any provision of this Agreement or portion hereof shall be invalid or
unenforceable, it shall be considered deleted herefrom and the remainder of such provision and of
this Agreement shall be unaffected and shall continue in full force and effect and the Parties
agree to meet promptly to negotiate in good faith a substitute enforceable provision that preserves
to the greatest extent possible the benefits (economic and other) intended to be conferred on the
Parties under this Agreement.
3.11
Representations, Warranties and Covenants
.
The Company represents and warrants that (i) the execution and performance of this Agreement,
including the employment of Executive as President and CEO of the Company and the appointment of
Executive to the Board, have been duly authorized by all necessary action of the Company and/or the
Board and (ii) that the information relating to the Company as set forth in the Agreement is true
and correct.
3.12
TARP Repayment
.
In the event the Company repays in full its obligation arising from financial assistance under
the TARP before the expiration of the Term, the Parties may agree to modify Executives
compensation arrangements under this Agreement in order to develop an alternative compensation
structure of appropriate comparable value, in accordance with the Companys objectives of enhancing
shareholder value and rewarding individual performance.
3.13
Golden Parachute Payment
.
If any payment or benefit to Executive under this Agreement or otherwise would be a Golden
Parachute Payment that is prohibited by applicable law, then the total payments and benefits will
be reduced to the Golden Parachute Limit. For purposes of this
Section 3.13
, Golden
Parachute Payment means a golden parachute payment within the meaning of Section 18(k) of the
Federal Deposit Insurance Act and Golden Parachute Limit means the greatest amount of payments
and benefits that could be made to Executive without having any payment or benefit be a Golden
Parachute Payment.
ARTICLE FOUR
TAXATION AND TARP
4.01
Taxation
.
(a) The Parties believe that the provisions of this Agreement are in compliance with the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended (
Section
409A
), as presently in effect, if and to the extent that such requirements apply. In the
13
event that any of the payment obligations hereunder will be considered by the Internal Revenue Service to
be not in compliance with the requirements of Section 409A, the Parties will cooperate in good
faith to endeavor to meet these requirements in a manner that preserves to the greatest extent
possible the economic benefits intended to be conferred on Executive under this Agreement. If any
payments under this Agreement are made in a series of installments, each installment shall be
deemed a separate payment. If the timing of the payment is within a specified period, the time of
payment within such period shall be determined solely by the Company. Notwithstanding any
provision of this Agreement to the contrary, only to the extent that any payment or benefit paid or
provided to Executive under this Agreement or otherwise (including, but not limited to, the
Supplemental Retirement Benefit) is subject to the requirements of Section 409A and is not exempted
from such requirements, if at the time of Executives separation from service (as defined in
Section 409A) with the Company, he is a specified employee as defined in Section 409A, no payment
or benefit is distributable on account of his separation from service shall be provided until the
date that is six (6) months after the date of his separation from service (or, if earlier, his date
of death). Payments to which Executive would otherwise be entitled during the six-month period
described above shall be accumulated and paid in a lump sum on the first day of the seventh month
after the date of his termination of employment. Notwithstanding anything to the contrary, to the
extent required by Section 409A: (i) the amount of expenses eligible for reimbursement or to be
provided as an in-kind benefit under this Agreement during a calendar year may not affect the
expenses eligible for reimbursement or to be provided as an in-kind benefit in any other calendar
year; (ii) the right to reimbursement or in-kind benefits under this Agreement shall not be subject
to liquidation or exchange for another benefit; and (iii) no reimbursement under this Agreement
shall be made later than the last day of the calendar year following the calendar year in which the
expense was incurred.
(b) The Parties acknowledge and agree that all payments and distributions under this Agreement
are subject to withholding under applicable law and payments hereunder will be made net of
withholding, if any. With respect to withholding in connection with compensation payable in Common
Stock, the Company shall withhold Common Stock having a Fair Market Value (determined on the date
the Participant recognizes taxable income on the award) equal to the minimum amount of withholding
tax required to be collected on the transaction.
4.02
TARP and Other Applicable Law
.
The Parties believe that the provisions of this Agreement are in compliance with the TARP
Requirements and other applicable law, as presently in effect, if and to the extent that such
requirements apply. For so long as the Company is subject to the TARP Requirements, the provisions
of this Agreement are subject to and shall be, to the fullest extent possible, interpreted to be
consistent with the TARP Requirements, which terms control over the terms of this Agreement in the
event of any conflict between the TARP Requirements and this Agreement. The Parties further
acknowledge and understand that this Agreement is subject to modification in order to comply with
the TARP Requirements and that Executive agrees to waive any rights to any payments or benefits
under this Agreement that are later determined to be in conflict with the TARP Requirements.
Notwithstanding anything in this Agreement to the contrary, in no event shall any payment, award or
benefit under this Agreement vest or be settled, paid or accrued, if any such vesting, settlement,
payment or accrual would be in violation of the TARP Requirements or other applicable law. In the
event of any such violation, the Parties will
14
cooperate in good faith to endeavor to meet the TARP
Requirements and other law to the extent
applicable in a manner that preserves to the greatest extent possible the intent and purposes
of this Agreement.
* * *
15
IN WITNESS WHEREOF, the Parties have executed this Agreement on the dates set forth below
opposite their names, effective as of the date first set forth above.
|
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EXECUTIVE:
|
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Dated: November 16, 2009
|
/s/ Philip B. Flynn
|
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Philip B. Flynn
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ASSOCIATED BANC-CORP
|
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Dated: November 16, 2009
|
By:
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/s/ William R. Hutchinson
|
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Name:
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William R. Hutchinson
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Title:
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Lead Independent Director
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16
Exhibit 99.3
ASSOCIATED BANC-CORP
2003 LONG-TERM INCENTIVE STOCK PLAN
RESTRICTED STOCK UNIT GRANT AGREEMENT
This RESTRICTED STOCK UNIT GRANT AGREEMENT (this Agreement) is effective as of the [___] day
of [
,
], (the Grant Date) by and between Associated Banc-Corp on behalf of its
affiliates and subsidiaries (collectively referred to as the Company) and [
]
(Employee).
RECITALS
A. Employee is a Participant and has been selected by the Committee to receive a grant of
restricted stock units pursuant to the terms of the Associated Banc-Corp 2003 Long-Term Incentive
Stock Plan (the Plan). Unless otherwise defined herein, the terms defined in the Plan shall have
the same defined meanings in this Agreement.
B. As provided in the Plan, the Company and Employee desire to set forth the terms of a restricted
stock unit grant to Employee by entering into this restricted stock unit grant agreement (this
Agreement).
AGREEMENTS
In consideration of the Recitals and the mutual agreements set forth herein, the parties agree as
follows:
1.
Effect of the Plan
. The provisions of the Plan are hereby incorporated by reference
into this Agreement and the parties acknowledge the binding nature of such provisions. Employee
acknowledges that he has received a copy of the Plan and is familiar with its terms. The
provisions of the Plan shall control in the event of any conflict with this Agreement.
2.
Grant of Restricted Stock Unit
. The Company hereby grants to Employee [___] restricted
stock units (Restricted Stock Units). Each Restricted Stock Unit is a notional amount that
represents one unvested share of Common Stock, $0.01 par value, of the Company (a Share). Each
Restricted Stock Unit constitutes the right, subject to the terms and conditions of the Plan and
this Agreement, to distribution of a Share if and when the Restricted Stock Unit vests. As of the
Grant Date, the fair market value of the Shares underlying the Restricted Stock Units is $[___].
3.
Transfer Restrictions
. During the term of this Agreement, Employee shall not Transfer
any Restricted Stock Unit or any interest therein, except as permitted by this Agreement. For the
purposes of this Agreement, the term Transfer means any sale, assignment, pledge, encumbrance or
other hypothecation. Any attempted Transfer of any Shares that does not comply with the provisions
of this Agreement shall be invalid and of no effect.
4.
Rights as a Shareholder
.
(a) Unless and until a Restricted Stock Unit has vested and the Share underlying it has been
distributed to Employee, Employee will have no rights as a shareholder with respect to any Shares
subject to the Restricted Stock Units awarded hereunder, including but not limited to voting
rights.
(b) If the Company declares a cash dividend on its Shares, then, on the payment date of the
dividend, Employee will be credited with dividend equivalents equal to the amount of cash dividend
per share multiplied by the number of Restricted Stock Units credited to Employee through the
record date. The dollar amount credited to Employee under the preceding sentence will be credited
to an account (Account) established for Employee for bookkeeping purposes only on the books of
the Company. The amounts credited to the Account will be credited as of the last day of each month
with interest, compounded monthly, until the amount credited to the Account is paid to Employee.
The rate of interest credited under the previous sentence will be the prime rate of interest as
reported by the Midwest edition of the Wall Street Journal for the second business day of each
quarter on an annual basis. The balance in the Account will be subject to the same terms regarding
vesting and forfeiture as Employees Restricted Stock Units awarded hereunder, and will be paid in
cash in a single sum at the same time as the related Shares associated with Employees Restricted
Stock Units are distributed (or forfeited at the time that Employees Restricted Stock Units are
forfeited).
5.
Forfeiture of Restricted Stock Units
. In the event that Employee ceases to provide
substantial services to the Company (as determined under Section 6(b) below) for any or no reason
(including death or disability) before all of the Restricted Stock Units are Vested (see Section
6), Employee shall immediately forfeit (a Forfeiture Event) all of the Unvested Restricted Stock
Units (and any applicable dividend equivalents) upon the date such cessation of substantial
services is effective.
6.
Vesting of Restricted Stock Units
.
(a) For the purposes of this Agreement, a Restricted Stock Unit Vests or becomes Vested in
accordance with Section 6(b) below. Any Restricted Stock Units that have not yet Vested are
referred to herein as Unvested Restricted Stock Units.
(b) Restricted Stock Units will Vest pursuant to the schedule set forth in clause (i) below
or, if later, upon satisfaction of clause (ii) below.
(i) The Restricted Stock Units will vest in twenty-five percent (25%) increments based upon
the extent to which the Company has repaid the aggregate financial assistance received by the
Company under the Troubled Asset Relief Program under the Emergency Economic Stabilization Act of
2008, as amended (the TARP Assistance), provided that Employee continues to provide substantial
services to the Company through the date of each such repayment increment:
2
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Vested Percentage
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TARP Assistance Repaid
|
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0
|
%
|
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Less than 25%
|
|
25
|
%
|
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25% to 49%
|
|
50
|
%
|
|
50% to 74%
|
|
75
|
%
|
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75% to 99%
|
|
100
|
%
|
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100%
|
(ii) Notwithstanding Section 6(b)(i) above, and as required pursuant to the Interim Final Rule
published by the Department of the Treasury on June 15, 2009, any other rules and regulations that
are applicable to the Company pursuant to its participation in the TARP, as they may be promulgated
and/or amended from time to time, and any other compensation limitations that may become applicable
to Executive pursuant to laws or other rules, regulations or written guidance issued pursuant to
the authority of the Federal Reserve Board, the Office of the Comptroller of the Currency, the
Federal Deposit Insurance Corporation or other applicable federal or state regulatory agency, that
are applicable to the Company as a result of the Companys receipt of TARP Assistance, no
Restricted Stock Unit will Vest if Employee does not continue to perform substantial services to
the Company for at least two (2) years after the Grant Date; provided that this requirement in
Section 6(b)(ii) will not apply if, prior to the second anniversary of the Grant Date, Employee
ceases to provide substantial services to the Company due to Employees death or disability, or a
change in control event (as defined in 26 CFR 1.280G-1, Q&A-27 through 29 or as defined in 26 CFR
1.409A-3(i)(5)(i)) with respect to the Company. Upon any such separation from service for death or
disability or upon such a change in control event, Employee shall be vested in any Restricted Stock
Units that as of such date satisfied the TARP repayment requirements set forth above.
For purposes of this Agreement, Employee will be deemed to have ceased to provide substantial
services to the Company if he has incurred a separation from service for purposes of section 409A
of the Internal Revenue Code of 1986, as amended, which shall occur when the Company and Employee
reasonably anticipate that the level of bona fide services Employee will perform after such date
(whether as an employee or as an independent contractor) will permanently decrease to no more than
twenty percent (20%) of the average level of bona fide services performed (whether as an employee
or an independent contractor) over the immediately preceding thirty-six (36) month period (or the
full period of services to the Company if Employee has been providing services to the Company for
fewer than thirty-six (36) months).
7.
Timing and Form of Payment
. When a Restricted Stock Unit Vests, Employee will be
entitled to receive a Share in its place. Delivery of the Share will be made as soon as
administratively feasible after its associated Restricted Stock Unit vests, but no later than March
15 of the calendar year following the calendar year in which the Restricted Stock Unit vests.
Shares may be transferred to Employee directly or credited to an account established for the
benefit of Employee with the Companys administrative agent, in the Companys discretion. Employee
will have full legal and beneficial ownership with respect to the Shares at that time.
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8.
Legends
. The share certificate evidencing the Shares, if any, issued hereunder shall be
endorsed with any legend required under the Plan and applicable state securities laws.
9.
Adjustment for Stock Split
. All references to the number of Restricted Stock Units or
Shares in this Agreement shall be appropriately adjusted to reflect any stock split, stock dividend
or other change in the Shares that may be made by the Company after the date of this Agreement.
10.
Code Section 409A
. Notwithstanding any other provision in this Agreement, the
Restricted Stock Units awarded hereunder are intended to be exempt from section 409A of the
Internal Revenue Code of 1986, as amended, as short-term deferrals (as such term is defined under
applicable regulations thereunder), and shall be interpreted consistently with such intent.
11.
General Provisions
.
(a) This Agreement shall be governed by the internal substantive laws, but not the choice of
law rules, of the State of Wisconsin. This Agreement, subject to the terms and conditions of the
Plan, represents the entire agreement between the parties with respect to the grant of the Shares
to Employee. The parties each submit and consent to the jurisdiction of the courts in the State of
Wisconsin, Brown County, in any action brought to enforce or otherwise relating to this Agreement.
(b) Any notice, demand or request required or permitted to be given by either the Company or
Employee pursuant to the terms of this Agreement shall be in writing and shall be deemed given when
delivered personally or deposited in the U.S. mail, First Class with postage prepaid, and addressed
to the parties at the addresses of the parties set forth at the end of this Agreement or such other
address as a party may request by notifying the other in writing.
(c) The rights of the Company under this Agreement shall be transferable to any one or more
persons or entities, and all covenants and agreements hereunder shall inure to the benefit of, and
be enforceable by the Companys successors and assigns. The rights and obligations of Employee
under this Agreement may only be assigned with the prior written consent of the Company.
(d) Either partys failure to enforce any provision of this Agreement shall not in any way be
construed as a waiver of any such provision, nor prevent that party from thereafter enforcing any
other provision of this Agreement. The rights granted both parties hereunder are cumulative and
shall not constitute a waiver of either partys right to assert any other legal remedy available to
it.
(e) Employee agrees upon request to execute any further documents or instruments necessary or
desirable to carry out the purposes or intent of this Agreement.
(f) Employee acknowledges and agrees that the Vesting of Restricted Stock Units hereunder
contingent in part upon continuing employment at the will of the Company (and not through the act
of being hired). Employee further acknowledges and agrees that this Agreement, the transactions
contemplated hereunder and the Vesting provisions set forth herein do not constitute an express or
implied promise of continued employment for the Vesting period, for
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any period, or at all, and shall not interfere with Employees right or the Companys right to
terminate the employment relationship at any time, with or without cause.
(g) Notwithstanding anything herein to the contrary, no payment or benefit under this
Agreement will be provided to Employee if any such payment or benefit would violate the
requirements of the Troubled Asset Relief Program under the Emergency Economic Stabilization Act of
2008, as amended, the Interim Final Rule published by the Department of the Treasury on June 15,
2009 and any other rules and regulations thereunder, as they may be promulgated and/or amended from
time to time, or any other successor laws applicable to Employees compensation.
[SIGNATURE PAGE TO FOLLOW]
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Dated effective as of the date first written above.
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ASSOCIATED BANC-CORP
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By:
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Attest:
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Brian R. Bodager, Chief Administrative
Officer, General Counsel and Corporate
Secretary
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By signing below, Employee represents that he is familiar with the terms and provisions of the
Plan, and hereby accepts this Agreement subject to all of the terms and provisions thereof.
Employee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Agreement and fully understands all provisions
of this Agreement. Employee agrees to accept as binding, conclusive and final all decisions or
interpretations of the Committee upon any questions arising under the Plan or this Agreement.
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