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Exhibit 10.1
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September 18, 2000
Mr. Gordon H. Gunnlaugsson
c/o Marshall & Ilsley Corporation
770 North Water Street
Milwaukee, Wisconsin 53202
Dear Gordy:
This letter agreement is intended to reflect our agreement concerning
your early retirement from Marshall & Ilsley Corporation ("M&I") and all
related matters. You have tendered your resignation from M&I in connection
with your intention to take early retirement effective as of the close of
business on December 31, 2000 (the "Retirement Date").
1. Until the Retirement Date, you will continue to perform
such duties as M&I's Chairman and Chief Executive Officer directs.
During the period from the date of this letter agreement until the
Retirement Date, you shall continue to receive your current base salary
in accordance with M&I's regular payroll practices and shall
participate in all of M&I's qualified and nonqualified plans to the
same extent and on the same terms that you currently participate
therein and in accordance with your status as a full-time employee of
M&I until the Retirement Date.
2. Any M&I stock options which by their terms will vest on or
before the Retirement Date will do so in accordance with their terms
and in accordance with your status as a full-time employee until the
Retirement Date.
3. In accordance with your continued employment through
December 31, 2000, M&I will pay you an annual incentive for the period
ending December 31, 2000 determined by the Executive Compensation
Committee of M&I's Board of Directors (the "Compensation Committee") in
accordance with the Annual Executive Incentive Plan, which payment will
be made on the same date as other participants in such Plan receive the
payments of their annual incentives. In addition, you will receive a
payment for the 10,000 units which were awarded to you under M&I's 1994
Long-Term Incentive Plan, as amended (the "LTIP") in December 1997 for
the period ended December 31, 2000. The amount of the payment under
the LTIP will be determined by the Compensation Committee in accordance
with the terms of the LTIP and will be paid to you at such time and
upon such terms as payments are made to the other participants in the
LTIP. The annual incentive and LTIP payments will be reduced by all
applicable federal and state income tax withholding and employment
taxes.
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Mr. Gordon H. Gunnlaugsson
September 18, 2000
Page 2
4. Your right to make additional deferrals into M&I's Amended
and Restated Executive Deferred Compensation Plan will end on the
Retirement Date. The balance in your Account, as defined therein, will
be distributed to you in accordance with your form of Payment Election
in accordance with that Plan's terms.
5. All of your M&I stock options (including options
transferred to family members) which are vested as of the Retirement
Date will remain exercisable in accordance with their terms for the
period allowable for age 65 retirees from M&I (for the lesser of (a)
the remaining respective terms of the options for age 65 retirees or
(b) one (1) year after your death) so long as you comply with the
provisions of Section12(C)(i)-(v) hereof and Paragraph 5 of the
Consulting Agreement in the form attached hereto as Exhibit A (the
"Consulting Agreement"). Should you violate any of those contractual
undertakings, you agree that your outstanding M&I stock options
(including those transferred to family members) shall, without any
action by M&I, remain exercisable only for the shorter of the remainder
of their respective terms or the ninety (90) day period running from
the date of your breach. Further, you will be treated as an age 65
retiree from M&I as regards the 10,000 units which were awarded to you
under the LTIP in December 1998 and the 5,000 units which were awarded
to you in December 1999. The amount of the payment for such units, in
each instance, will be determined by the Compensation Committee in
accordance with the terms of the LTIP and will be paid to you at such
time and upon such terms as payments are made to the other participants
in the LTIP. The LTIP payments will be reduced by all applicable
federal and state income tax withholding and employment taxes.
6. On January 1, 2001, the title to your current company
vehicle will be transferred to you at no cost. The value will be
reported for income tax purposes as compensation to you. From the date
of this letter agreement until the Retirement Date, you will have the
right to use the employer-owned vehicle you are currently using on the
same basis as previously.
7. You have the right to accept the terms of a Consulting
Agreement. You agree not to apply for unemployment compensation
benefits from M&I respecting the end of your employment with it or the
termination of the Consulting Agreement.
8. Except as otherwise provided in this letter agreement and
the Consulting Agreement, your participation in all welfare and benefit
plans will end on the Retirement Date. Notwithstanding anything
contained herein to the contrary, you hereby agree that, in
consideration for M&I executing the Consulting Agreement, you will no
longer participate in the M&I Short-Term or Long-Term Disability Income
Plans starting on the date of this letter such that if you become
disabled, within the meaning of the Plans, starting with the date
hereof, you will not be entitled to any payments under the Plans.
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Mr. Gordon H. Gunnlaugsson
September 18, 2000
Page 3
9. Any vested benefits you have in M&I's qualified or
nonqualified benefit plans as of the Retirement Date, including the
Supplementary Retirement Benefits Plan, as amended, and the
Nonqualified Retirement Benefits Plan, as amended, will thereafter be
governed by the terms of those plans.
10. M&I will pay or reimburse you for your membership dues and
annual (but not extraordinary) capital assessments at Blue Mound Golf
& Country Club and the Milwaukee Yacht Club for the 2001 and 2002
calendar years and will pay for income tax preparation for your 2000
and 2001 federal and state income tax returns and associated financial
planning in accordance with M&I's policies for executive officers. The
value of these benefits will be reported for income tax purposes in a
manner consistent with past M&I practice.
11. You or the owners of any split dollar insurance on your
life may purchase M&I's interest in such policy (or policies) for the
net premiums paid by M&I from the inception of such policies so long as
you do so by the Retirement Date.
12. In exchange for the benefits provided to you above, you
agree as follows:
(A) You acknowledge that you and M&I have agreed on the
form of press release announcing your early retirement and the
related communication plan.
(B) You hereby resign as an officer and director of M&I
and any of M&I's Affiliates, as defined below in subsection
(C)(i), effective as of 5:00 p.m. (C.S.T.) on December 31, 2000.
(C) You agree to act in accordance with each of the
following limitations on your conduct which you acknowledge to be
severable and independent of one another:
(i) Non-Solicitation of Customers.
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During your employment with M&I and for two (2) years after
the Retirement Date, you agree not to solicit, entice or
encourage any Customer of M&I or any of its Affiliates (the
"Company") so as to cause or attempt to cause such Customer
not to do business with the Company, to materially diminish
its business with the Company, or to purchase a material
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Mr. Gordon H. Gunnlaugsson
September 18, 2000
Page 4
amount of products or services sold by the Company from any
source other than the Company. For purposes of this
paragraph, "Customer" shall mean any person or business
(i) which purchased a material amount of products or
services from the Company during the one (1) year period
preceding the Retirement Date and (ii) with whom you had
contact on behalf of the Company during such one (1) year
period. You will not be treated as having contact with a
Customer if your only interaction with that Customer was a
general mailing containing your signature or other similar
contact. For purposes of this Paragraph, "Affiliate" shall
mean any corporation, partnership, limited liability
company or other business entity which, directly or
indirectly through one or more intermediaries, is
controlled by M&I. The term "control" means the power,
directly or indirectly, to vote 50% or more of the
securities which have ordinary voting power in the election
of directors (or individuals filling any analogous
positions).
(ii) Non-Solicitation of Employees.
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During your employment with M&I and for two (2) years after
the Retirement Date, you will not induce or attempt to
induce any employee of the Company to terminate his/her
employment with or reduce the hours he/she works for the
Company.
(iii) Preservation of Confidential Information.
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During the term of your employment with M&I, you will not
directly or indirectly use or disclose any Confidential
Information or Trade Secret Information except in the
interest and for the benefit of the Company or if you are
required to disclose such information pursuant to a
subpoena or court or administrative order. After the
termination of your employment with M&I, you will not
directly or indirectly use or disclose (except in the
discharge of your duties under the Consulting Agreement)
any Trade Secret, Trade Secret Information, or Confidential
Information unless such information ceases to be deemed a
Trade Secret, Trade Secret Information or Confidential
Information by means of one of the exceptions set forth
below or if you are required to disclose such information
pursuant to a subpoena or court or administrative order.
For two (2) years after the Retirement Date, you will not
directly or indirectly use or disclose any Confidential
Information, unless such information ceases to be deemed
Confidential Information by means of one of the exceptions
set forth below. The term "Trade Secret" or "Trade Secret
Information" shall have that
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Mr. Gordon H. Gunnlaugsson
September 18, 2000
Page 5
meaning set forth under Wisconsin law. You shall not be
deemed to have breached the provisions contained in this
Paragraph 12(C)(iii) in the event you use or disclose
information which (i) you, acting in good faith, are
unaware constitutes Confidential Information, Trade Secret
Information or a Trade Secret; and (ii) does not result in
material damage to M&I's business interests. The term
"Confidential Information" shall mean all non-Trade Secret
or proprietary information of the Company which has value
to the Company and which is not known to the public or the
Company's competitors, generally, including, but not
limited to, new products, customer lists, pricing policies,
employment records and policies, operational methods,
marketing plans and strategies, product development
techniques and plans, business acquisition plans, technical
processes, designs, inventions, research programs and
results, and source code. Notwithstanding the foregoing,
the terms "Trade Secret Information", "Trade Secret" and
"Confidential Information" shall not include, and the
obligations set forth in this Agreement shall not apply to,
any information which: (a) can be demonstrated by you to
have been known by you prior to your employment by the
Company; (b) is or becomes generally available to the
public through no act or omission of you; (c) is obtained
by you in good faith from a third party who discloses such
information to you on a non-confidential basis without
violating any obligation of confidentiality or secrecy
relating to the information disclosed; or (d) is
independently developed by you outside the scope of your
employment without use of Confidential Information or Trade
Secrets.
(iv) General Non-Competition Provisions.
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During your employment with M&I and for two (2) years after
the Retirement Date, you agree not to directly or
indirectly perform services of the type performed by you
for M&I for any competitor of the Company where the
services you provide directly relate to or benefit any of
the competitor's business activities in the State of
Wisconsin respecting deposit taking, lending, or trust
products or services in the context of a financial services
business.
(v) Non-Competition Provisions Respecting Internet
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Activities with M&I Employees.
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During your employment with M&I and for two (2) years after
the Retirement Date, you agree not to directly or
indirectly (as described below) own 5% or more of the
equity interests in any entity which (a) markets or
delivers internet banking services (such an entity
hereinafter referred to as an "Internet Entity") and (b)
engages as an employee or other
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Mr. Gordon H. Gunnlaugsson
September 18, 2000
Page 6
service provider an individual who (i) was employed by the
Marshall & Ilsley Corporation or M&I Mortgage Corporation
(the "Internet Banking Providers") at any time during the
one-year period prior to the Retirement Date and (ii)
provided internet development, internet banking services,
or supervisory services respecting the same, to the
Internet Banking Providers. Direct or indirect ownership
within the meaning of this section means ownership by you
and your immediate family, or trusts for the benefit of you
or your immediate family, or partnerships or other entities
in which you or your immediate family own a majority of the
equity interests; provided, however, that nothing in this
Subparagraph 12(C)(v) shall limit your issue or the spouses
of your issue from owning any portion of any Internet
Entity which employs individuals formerly employed by
Metavante. For purposes of this subsection, "immediate
family" means your spouse, issue and spouses of your issue.
(vi) Acknowledgements/Consequences of Breach.
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You acknowledge that irreparable and incalculable injury
will result to the Company, its business or properties, in
the event of a breach by you of any of the restrictions set
forth in this Section 12(C). You therefore agree that, in
the event of any such actual, impending or threatened
breach, the Company will be entitled, in addition to any
other remedies, to temporary and permanent injunctive
relief (without the necessity of posting a bond or other
security) restraining the violation or further violation of
such restrictions by you. Moreover, in the event of any
breach by you of any of the provisions of this
Section 12(C), M&I, in addition to the rights it has under
Paragraph 5 of this Agreement, shall have the right to
cease the payments to you under the Consulting Agreement in
addition to securing any damages and/or injunctive relief
from or against you. Notwithstanding the foregoing, in the
event that you breach any of the provisions of this
Section 12(C) during the two (2) year period following
termination of the Consulting Agreement, the Company's sole
remedy against you will be acceleration of the exercise
period respecting your outstanding M&I stock options as
described in Section 5 of this Agreement.
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Mr. Gordon H. Gunnlaugsson
September 18, 2000
Page 7
(vii) Change in Control.
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Notwithstanding anything herein contained to the contrary,
in the event of a Change in Control, as defined in the
Company's 2000 Executive Stock Option and Restricted Stock
Plan, you will no longer be bound by this Section 12(C).
13. Consents, Approvals and Authorizations. M&I warrants and
represents to you that all consents, approvals and authorizations
required for M&I to execute, deliver and perform this letter
agreement, the Consulting Agreement and the Mutual Release referred
to below (the "Agreements") have been obtained and are in full force
and effect as of the date hereof, and the Agreements are valid,
binding and enforceable obligations of M&I in accordance with their
terms. Without in any way limiting the foregoing, the Executive
Compensation Committee of M&I's Board of Directors has duly
authorized the Agreements and consented to your early retirement
(prior to age 65) under the LTIP and for purposes of your M&I stock
options and the exercise period respecting such options, subject to
the conditions contained in the Agreements.
14. Miscellaneous. Should you accept the terms of M&I's
proposal, the following will apply:
(A) The Agreements constitute the complete
understanding between you and M&I concerning all matters
affecting your employment with M&I and the termination thereof.
If you accept this proposal, the Agreements supersede all prior
agreements, understandings and practices, concerning such
matters, including, but not limited to, the Employment
Agreement dated November 5, 1990 between you and M&I, or any
successor thereto, and any personnel documents, handbooks, or
policies and any prior customs or practices of M&I.
(B) As a condition to this letter agreement, we have
contemporaneously signed a Mutual Release Agreement.
(C) This letter agreement and its interpretation shall
be governed and construed in accordance with the laws of
Wisconsin without regard to its principles of conflicts of laws
and shall be binding upon the parties hereto and their
respective successors and assigns.
You may accept this letter agreement by signing it in the space
provided below and the Mutual Release Agreement and returning them to Paul
Renard at Marshall & Ilsley Corporation, 770 North Water Street, Milwaukee,
Wisconsin, 53202.
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Mr. Gordon H. Gunnlaugsson
September 18, 2000
Page 8
Gordy, we look forward to our new relationship with you.
Very truly yours,
MARSHALL & ILSLEY CORPORATION
By: /s/ J.B. Wigdale
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James B. Wigdale, Chairman of the
Board and Chief Executive Officer
I agree with and accept the above-mentioned terms contained in this letter
agreement and agree to be bound by them.
Dated this 18th day of September, 2000.
/s/ G.H. Gunnlaugsson
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Gordon H. Gunnlaugsson
MW446467_12.DOC
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CONSULTING AGREEMENT
THIS AGREEMENT, made effective as of September 18, 2000 between
MARSHALL & ILSLEY CORPORATION (the "Company") and GORDON H. GUNNLAUGSSON
("Executive").
RECITALS
Executive has over 30 years of experience with the Company, M&I
Marshall & Ilsley Bank (the "Bank"), and/or their affiliates and is
currently employed as Executive Vice President and Chief Financial Officer
of the Company, a Vice President of the Bank and holds certain other
offices with affiliates of the Company. Executive possesses intimate
knowledge of the business and affairs of the Company and its affiliates.
By virtue of his employment, Executive has acquired certain confidential
information and data with respect to the Company and its affiliates.
The Company desires to assure the continued services of Executive
following his retirement from the Company and its affiliates for the period
provided in this Agreement, and Executive is willing to continue to provide
certain services to the Company for such period, upon the terms and
conditions hereinafter set forth. In addition, the Company wishes to
prevent Executive from competing with them for the period provided in this
Agreement and Executive is willing to consent to such a limitation.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
1. Consulting. Commencing January 1, 2001, Executive agrees to
provide the services requested by the Company for the period stated in
Paragraph 2 hereof, subject to the other terms and conditions herein
provided.
2. Term. The term shall commence as of January 1, 2001 and shall
continue until December 31, 2002, unless this Agreement is sooner
terminated as hereinafter set forth (the "Term").
3. Duties. During the Term, Executive shall devote his best
efforts and such of his business time, attention, skill and efforts as he
deems necessary to consult with the executive officers of the Company with
respect to such matters as may be reasonably requested by the Company;
provided, however, that nothing in this Agreement shall preclude Executive
from (i) devoting reasonable periods required for rendering services to any
other business organization so long as Executive does not violate his
covenants of confidentiality, noncompetition and nonsolicitation (the "Non-
Compete") contained in Section 5 of this Agreement and Section 12(C) of the
letter agreement between Executive and the Company of even date herewith
(the "Letter Agreement"), (ii) engaging in charitable and community
activities, and (iii) managing his personal investments. The parties
hereto acknowledge and agree that (i) Executive shall be free to reside and
work at the
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geographical location of his choice, (ii) in most circumstances, Executive
may respond to the Company's requests for his services by telephone, mail,
facsimile or similar means of communication, (iii) in requiring Executive's
services hereunder, the Company shall consider the reasonable convenience
of Executive and the demands of his other commitments and shall require his
physical attendance at meetings and events remote from his residence only
in matters for which Executive's presence is essential; (iv) the conduct
and control of the consulting services to be performed hereunder shall be
the sole responsibility of Executive, and (v) the Company shall have no
power to direct or dictate Executive's schedule or the hours during which
he shall be required to perform consulting services hereunder. The Company
hereby acknowledges and agrees that Executive shall continue to receive
compensation and benefits pursuant to this Agreement as set forth in
Paragraph 4 hereof notwithstanding the failure or refusal of the Company to
request the performance of consulting services by Executive hereunder.
4. Compensation and Benefits. As compensation for the services to
be provided pursuant to this Agreement, Executive shall receive from the
Company or its affiliates the compensation and other benefits set forth
below:
A. Cash Compensation. The Company will pay to Executive
Seventy-Five Thousand Dollars ($75,000.00) in each month beginning on
January 1, 2001 and ending on December 31, 2002 for a total amount of
One Million Eight Hundred Thousand Dollars ($1,800,000.00) for the
Term. These payments will be made in accordance with the Company's
regular payroll practices, will be reduced by all applicable federal
and state income tax withholding and employment taxes, and will not
be included as compensation for purposes of any qualified or
nonqualified pension or welfare benefit plans of the Company except
as otherwise provided herein. The parties agree that the cash
compensation will be reflected as wages on a Form W-2 on an annual
basis and will be subject to income and employment tax withholding
when each payment is made.
B. Nonqualified Pension Benefit. During the Term, the
Company shall contribute to Executive's Account in the Company's
Amended and Restated Executive Deferred Compensation Plan (the
"Plan"), an amount equal to what would have been contributed to the
qualified and nonqualified retirement plans of the Company if
Executive were employed by the Company for the Term. For example,
using the contribution rates for Company contributions attributable
to calendar year 1999, the contributions hereunder would have been
(i) eight percent (8%) of any amounts paid to Executive pursuant to
Section 4A hereof and (ii) fifty percent (50%) of the maximum amount
that the Executive would be entitled to contribute to the Company's
401(k) plan (known as the Incentive Savings component of the
retirement plan) if Executive were still in the employ of the
Company. The amounts set forth in this subparagraph shall be
contributed to the Plan by March 31 of the year following the year to
which the contribution relates. Once amounts are contributed to
Executive's Account, they shall be governed by the terms of the Plan.
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C. Health and Dental Coverage. For the Term, the Company
shall provide to Executive and his current spouse continuation of
health and dental coverage under the Company's plans, subsidized by
the Company to the same extent as for active employees, provided,
however, that if Executive becomes reemployed with another employer
and chooses to receive health or other benefits under another
employer-provided plan, the health and dental benefits provided
hereunder shall be secondary to those provided under such other plan.
The coverage period for purposes of the group health and dental
continuation requirements of the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended, shall commence on July 1,
2001. After December 31, 2002, Executive and his current spouse
shall be eligible to participate in the M&I Retiree Health Plan in
accordance with its terms, as amended from time to time.
D. Participation in Plans. For the Term, unless this
Consulting Agreement or the Letter Agreement expressly provides
otherwise, Executive will not be eligible to participate in any
Company benefit plan and Executive waives any rights attendant
thereto.
5. Restrictive Covenants. During the term of the Consulting
Agreement and for two (2) years thereafter, Executive agrees to abide by
the restrictive covenant provisions of Section 12(C) of the Letter
Agreement, the restrictions of which (with the exception of the durational
language) are incorporated by reference. Executive further acknowledges
that each of these provisions incorporated by reference is severable and to
be construed independently. Notwithstanding anything herein contained to
the contrary, (a) in the event of a Change in Control, as defined in the
Company's 2000 Executive Stock Option and Restricted Stock Plan, Executive
will no longer be bound by Section 12(C) of the Letter Agreement and this
Paragraph 5 and (b) the sole and exclusive right and remedy of the Company
for any breach of this Paragraph 5 after the Term ends shall be the
reduction in the exercise period of Executive's outstanding M&I stock
options, (including those transferred to family members) as provided in
Section 12(C) of the Letter Agreement.
6. Early Termination and Consequences. This Consulting Agreement
will terminate prior to December 31, 2002 in the case of any of the
following events:
A. Executive's Death or Disability. Executive's obligations
under Section 3 of this Agreement shall terminate upon his death or
his disability. Under such circumstances, however, the Company's
obligation to pay the cash compensation discussed in Paragraph 4A and
the nonqualified pension benefit contributions discussed in Paragraph
4B shall continue with the amounts in Paragraph 4A being paid to his
estate, in the case of his death, and to him or his court-appointed
guardian, in the case of his disability, and the amounts in Paragraph
4B being paid to his Account in the Plan in each case whether his
death or his disability occurs prior to or during the Term.
Notwithstanding the foregoing, in the event of the Executive's death
prior to the beginning of the Term, the amounts owing to Executive
under Paragraph 4A hereof shall be reduced by any life insurance
proceeds which Executive's beneficiaries receive from the M&I Life
Insurance Plan. For example, if Executive dies prior to January 1,
2001 and his beneficiaries are entitled to a $1,000,000 life
insurance benefit from the M&I Plan, the amount owing to the
Executive under
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Paragraph 4A hereof shall be reduced to $800,000 which would be paid
at a rate of $33,333.34 per month for 24 months. In the event of
Executive's death, the health insurance benefit discussed in
Paragraph 4C shall continue for Executive's spouse to the extent
provided therein.
B. Termination by the Company for Cause. The Company may
terminate the Executive's employment hereunder for Cause. There will
be Cause for termination under any of the following circumstances:
(i) any act of Personal Dishonesty (as hereinafter defined) by the
Executive; (ii) any act of Willful Misconduct (as hereinafter
defined) by the Executive; (iii) any act by the Executive
constituting a breach of his fiduciary duty to the Company which
results or is intended to result in personal gain to, or personal
enrichment of, the Executive at the Company's expense; or (iv) any
breach by Executive of the restrictive covenant provisions contained
in Paragraph 5 of this Agreement and Section 12(C) of the Letter
Agreement. For purposes of this Agreement: "Personal Dishonesty"
means conduct on the part of the Executive which demonstrates a lack
of integrity or an intentional breach of trust and which directly
causes (or the Board of Directors of the Company determines is
reasonably likely to directly cause) material injury to the Company;
and "Willful Misconduct" means conduct on the part of the Executive
which evinces a deliberate disregard of the interest of the Company
and which directly causes (or the Board of Directors of the Company
determines is reasonably likely to directly cause) material injury to
the Company. Executive acknowledges and agrees that after the
Termination Date, as hereafter defined, he shall no longer be
entitled to receive any of the compensation provided under Paragraph
4 hereof other than the health insurance opportunity provided in
Paragraph 4C hereof, but that the Non-Compete contained in the Letter
Agreement and this Agreement shall continue to apply in accordance
with their terms.
C. Termination by Executive. Executive may terminate this
Agreement at any time by giving ninety (90) days' prior written
notice to the Company. In such event, Executive shall receive no
further compensation hereunder after the Termination Date as defined
herein other than the health insurance opportunity provided in
Paragraph 4C hereof, but that the Non-Compete contained in the Letter
Agreement and this Agreement shall continue to apply in accordance
with their terms.
D. Termination Notice and Procedure. The term "Termination
Date" shall mean (i) the date the Company notifies the Executive that
his duties hereunder are being terminated for Cause if this Agreement
is terminated by the Company pursuant to Paragraph 6B; or (ii) the
day after expiration of the ninety (90) day period specified in
Paragraph 6C if this Agreement is terminated by the Executive
pursuant to Paragraph 6C unless the Executive and the Company agree
on an earlier date. Any termination by the Company for Cause as
provided under Paragraph 6B hereof or by Executive as provided under
Paragraph 6C hereof shall be made by written Notice of Termination to
the other party delivered by hand or certified mail (postage
prepaid), return receipt requested.
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7. General Provisions.
A. Successors and Assigns. (i) This Agreement shall be
binding upon and shall inure to the benefit of the Company, its
successors and assigns. The term "Company" as used herein shall
include such successors and assigns. The term "successors and
assigns" as used herein shall mean a corporation or other entity
acquiring all or substantially all the assets and business of the
Company (including this Agreement) whether by operation of law or
otherwise.
(ii) Neither this Agreement nor any right or interest
hereunder shall be assignable or transferable by the Executive,
nor shall Executive's rights hereunder be subject to
encumbrance or to the claims of the Executive's creditors.
This Agreement and all rights of the Executive hereunder shall
inure to the benefit of and be enforceable by Executive's
personal or legal representatives, Estate, spouse, executors,
administrators, heirs and beneficiaries.
B. Enforcement. The provisions of this Agreement shall be
regarded as divisible, and if any of said provisions or any part
hereof are declared invalid or unenforceable by a court of competent
jurisdiction, the validity and enforceability of the remainder of
such provisions or parts hereof and the applicability thereof shall
not be affected thereby.
C. Amendment. This Agreement may not be amended or modified
except by written instrument executed by the Company and Executive.
D. Governing Law. This Agreement and the rights and
obligations hereunder shall be governed by and construed in
accordance with the laws of the State of Wisconsin without giving
effect to its principles of conflicts of laws.
E. Notice. Notices given pursuant to this Agreement shall be
in writing and shall be considered to be given and received in all
respects when personally delivered, when transmitted by facsimile or
on the second business day following the date deposited in the United
States mail, certified mail, postage pre-paid, return receipt
requested, addressed to the parties as set forth below or at such
other address as each party may specify by notice to the other party,
or in the case of a facsimile, to the facsimile number indicated:
If to Company: Marshall & Ilsley Corporation
770 North Water Street
Milwaukee, Wisconsin 53202
Attention: Corporate Secretary
Facsimile: 414.765.7899
If to Executive: His most recent home address as it appears on
the Company's records
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F. No Waiver. No waiver by either party at any time of any
breach of the other party of, or compliance with, any condition or
provision of this Agreement to be performed by the other party shall
be deemed a waiver of similar or dissimilar provisions or conditions
at the same time or any prior or subsequent time.
G. Headings. The headings herein contained are for reference
only and shall not affect the meaning or interpretation of any
provision of this Agreement.
H. Effect of Payments. The payments hereunder will not be
included as compensation for purposes of any qualified or
nonqualified pension or welfare benefit plans of the Company and are
in lieu of any rights Executive may have to severance under any plan,
practice or arrangement of the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
MARSHALL & ILSLEY CORPORATION
By: J.B. Wigdale
---------------------------------
-
James B. Wigdale, Chairman of the
Board and Chief Executive Officer
EXECUTIVE
G.H. Gunnlaugsson
---------------------------------
-
Gordon H. Gunnlaugsson
MW446566_9.DOC
6
