Change of Control Agreement, dated as of February 1, 2020, between Midland States Bank and Donald J. Spring
This Change Of Control Agreement (this “Agreement”) is made and entered into as of February 1, 2020 (the “Effective Date”) by and between Midland States Bank, an Illinois banking corporation (the “Bank, and collectively with Midland States Bancorp, Inc. (the “Company”), the “Employer”), and Don Spring (the “Executive”).
Now, therefore, in consideration of the premises and of the covenants and agreements hereinafter contained, the parties hereby agree as follows:
1. Employment Status and Term of Agreement. This Agreement does not affect Executive’s status as an at-will employee of Employer. Executive shall continue to perform services for the Employer customarily performed by persons employed in similar capacities. Executive shall devote full business time, energies, and talents to promote the interests of the Employer and to perform such duties as assigned by the Bank. The term of this Agreement shall commence on the Effective Date and shall continue until December 31, 2020. This Agreement shall automatically renew for additional one year terms from January 1st to December 31st of each year unless either the Employer or the Executive notifies the other party, by written notice delivered no later than 90 days prior to December 31st of each year that this Agreement shall not be extended for an additional year. Notwithstanding anything contained herein to the contrary, if a Change of Control occurs during Executive’s employment with the Bank or any Bank Affiliate, this Agreement shall remain in effect for twelve (12) months period following the Change of Control and shall then terminate.
2. Definitions. As used throughout this Agreement, all of the terms defined in this Section 2 shall have the meanings given below.
However, in no event shall a Change of Control be deemed to have occurred, with respect to the Executive if the Executive is part of a purchasing group that consummates the Change-in-Control transaction. The Executive shall be deemed “part of a purchasing group” for purposes of the preceding sentence if the Executive is an equity participant in the purchase company or group
(except for (i) passive ownership of less than two percent (2%) of the stock of the purchasing company; or (ii) ownership of equity participation in the purchasing company or group which is otherwise not significant, as determined prior to the Change in Control by a majority of the non‑employee continuing Directors).
In the event that any benefit under this Agreement constitutes deferred compensation under Section 409A of the Code, and the settlement of, or distribution of such benefits is to be triggered by a Change of Control, then such settlement or distribution shall be subject to the event constituting the Change of Control also constituting a “change in the ownership” or “change in the effective control” of the Company, as permitted under Code Section 409A.
(v) a material breach by the Employer, or its successor, of this Agreement.
Notwithstanding the foregoing, prior to Executive’s Termination for Good Reason, Executive must give the Employer written notice of the existence of any condition set forth in clause (i) – (v) above within thirty (30) days of such initial existence and the Employer shall have thirty (30) days from the date of receipt of such notice in which to cure the condition giving rise to Good Reason, if curable. If, during such thirty (30) day period the Employer cures the condition giving rise to Good Reason, no payments or benefits shall be due under Section 3 of this Agreement with respect to such occurrence. If, during such thirty (30) day period, the Employer fails or refuses to cure the condition giving rise to Good Reason, Executive shall be entitled to payments or benefits under Section 3 of this Agreement upon such Termination; provided such Termination occurs within 30 days after the end of such cure period.
(h) “Minimum Payments” shall mean, as applicable, the following amounts:
(l) “Termination” shall mean termination of Executive’s employment either:
(o) “Voting Securities” shall mean any securities that ordinarily possess the power to vote in the election of directors without the happening of any pre-condition or contingency.
3. Rights and Payments Upon Termination in a Covered Period.
(a) Subject to Section 4 below, if Executive is subject to a Termination within a Covered Period, then, in addition to Minimum Payments, which shall be paid as part of the Employer’s next payroll date, the Employer shall provide Executive the following benefits:
4. Release. Notwithstanding anything contained in this Agreement to the contrary, except for the Minimum Payments, no payments or benefits payable to Executive under Section 3(a) and 3(b) shall be paid or provided to Executive unless he/she first executes (without subsequent revocation) and delivers to the Employer a Release. To the extent any of the payments and/or benefits due under Section 3(a) or 3(b) are determined to be subject to Section 409A of the Code, the Release must be executed and become irrevocable on or before the 60th day following the Termination Date. Provided that an executed, irrevocable Release has been delivered on or before the 60th day following the Termination Date, any payments and benefits that are determined to be subject to Section 409A of the Code shall become payable, or shall otherwise commence, as of the 60th day following the Termination Date. If an executed, irrevocable Release is not delivered on or before the 60th day following the Termination Date, Executive shall forever forfeit any and all rights to any payment or benefit (to the extent such payment or benefit is determined to be subject to Section 409A of the Code) under Section 3(a), or 3(b) or any payment or benefit in lieu thereof.
5. Restrictive Covenants.
(d) Work for Hire Provisions.
If to the Employer (with a copy to the Company):
Midland States Bancorp, Inc.
Attention: Chief Executive Officer and Corporate Counsel
1201 Network Centre Drive
Effingham, Illinois 62401
If to Executive, to such home address or other address as Executive has most recently provided to the Employer.
or to such other address as either party may furnish to the other in writing, except that notices of changes of address shall be effective only upon receipt.
MIDLAND STATES BANKDON SPRING
By: /s/ Jeffrey G. Ludwig /s/ Donald J. Spring
Name: Jeffrey G. Ludwig
Its: President and Chief Executive Officer
General Release and Waiver
IN WITNESS WHEREOF, the parties have executed this Release as of the date first stated above.
MIDLAND STATES BANK [EXECUTIVE’S NAME]
By: _________________________________ _________________________________