EMPLOYMENT AGREEMENT
THIS
AGREEMENT (this "Agreement") is made and entered into as of this 14th day
of December, 2007, by and between MB Financial, Inc. (the “Corporation") and
Xxxxxxxx Xxxxxx (the "Executive").
WHEREAS,
the Executive is the President and Chief Executive Officer of the Corporation
and is a party to a written employment agreement with the Corporation dated
March 19, 2003 (the “2003 Employment Agreement”);
WHEREAS,
the parties believe it is in their respective best interests to enter into
this
Agreement in replacement of the 2003 Employment Agreement; and
WHEREAS,
the Organization and Compensation Committee of the Board of Directors (the
“Committee”) and the Board of Directors of the Corporation (the “Board of
Directors”) has approved and authorized the execution of this Agreement with the
Executive.
NOW
THEREFORE, in consideration of the foregoing and of the respective covenants
and
agreements of the parties herein, it is AGREED as follows:
1. Definitions.
(a) The
term
“Change in Control” means (1) any Person is or becomes the Beneficial Owner
directly or indirectly of securities of the Corporation or the MB Financial
Bank, National Association (the “Bank”) representing 35% or more of the combined
voting power of the Corporation’s or the Bank’s outstanding securities entitled
to vote generally in the election of directors; (2) individuals who were members
of the Board of Directors on the Effective Date (the “Incumbent Board”) cease
for any reason to constitute at least a majority thereof, provided that
any person becoming a member of the Board of Directors subsequent to the
Effective Date (a) whose appointment as a director by the Board of Directors
was
approved by a vote of at least three-quarters of the directors comprising the
Incumbent Board, or (b) whose nomination for election as a member of the Board
of Directors by the Corporation’s stockholders was approved by the Incumbent
Board or recommended by the nominating committee serving under the Incumbent
Board, shall be considered a member of the Incumbent Board; (3) consummation
of
a plan of reorganization, merger or consolidation involving the Corporation
or
the Bank or the securities of either, other than (a) in the case of the
Corporation, a transaction at the completion of which the stockholders of the
Corporation immediately preceding completion of the transaction hold more than
60% of the outstanding securities of the resulting entity entitled to vote
generally in the election of its directors or (b) in the case of the Bank,
a
transaction at the completion of which the Corporation holds more than 50%
of
the outstanding securities of the resulting institution entitled to vote
generally in the election of its directors; (4) consummation of a sale or other
disposition to an unaffiliated third party or parties of all or substantially
all of the assets of the Corporation or the Bank or approval by the stockholders
of the Corporation or the Bank of a plan of complete liquidation or dissolution
of the Corporation or the Bank; provided that for purposes of clause (1),
the term “Person” shall not include the Corporation, any employee benefit plan
of the Corporation or the Bank, or any corporation or other entity owned
directly or indirectly by the stockholders of the Corporation in substantially
the same proportions as their ownership of stock of the
Corporation. Each event comprising a “Change in Control” is intended
to constitute a “change in ownership or effective control,” or a “change in the
ownership of a substantial portion of the assets,” of the Corporation or the
Bank as such terms are defined for purposes of Section 409A of the Code and
“Change in Control” as used herein shall be interpreted consistently
therewith.
(b) The
term
"Date of Termination" means the date upon which the Executive's employment
with
the Corporation ceases, as specified in a notice of termination pursuant to
Section 9 hereof; provided, that “termination,” “termination of employment” and
“Date of Termination” as used herein are intended to mean a termination of
employment which constitutes a “separation from service” under Code Section 409A
determined without regard to Executive’s service as a member of the Board of
Directors or of the board of directors of any subsidiary of the
Corporation.
(c) Subject
to the remainder of this Section 1(c), the term "Involuntary Termination" means
the termination of the employment of the Executive (i) by the Corporation
without his express written consent; (ii) by the Executive by reason of a
material diminution of or interference with his duties, responsibilities or
benefits, including (without limitation) any of the following actions unless
consented to in writing by the Executive: (1) a requirement that the Executive
be based at any place other than Chicago, Illinois, or within a radius of 35
miles from the location of MB Financial Center at 0000 Xxxxx Xxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx, except for reasonable travel on Corporation or Bank
business; (2) a material demotion of the Executive; (3) a material reduction
in
the number or seniority of personnel reporting to the Executive or a material
reduction in the frequency with which, or in the nature of the matters with
respect to which such personnel are to report to the Executive, other than
as
part of a Corporation and Bank-wide reduction in staff; (4) a reduction in
the
Executive's salary or a material adverse change in the Executive's perquisites,
benefits, contingent benefits or vacation, other than as part of an overall
program applied uniformly and with equitable effect to all members of the senior
management of the Corporation and the Bank; (5) a material permanent increase
in
the required hours of work or the workload of the Executive beyond what is
expected of comparably situated chief executive officers performing
substantially the same duties; (6) the failure of the Board of
Directors (or board of directors of any successor of the Corporation including
its ultimate parent company) to elect the Executive as President and Chief
Executive Officer of the Corporation (or any successor of the Corporation
including its ultimate parent company) or any action by the Board of Directors
(or a board of directors of a successor of the Corporation including its
ultimate parent company) removing him from such office; or (7) failure of the
Corporation to obtain an assumption agreement from a successor as required
by
Section 12(a) hereof; or (iii) by the Executive within 90
days after he receives written notice from the Corporation pursuant to Section
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hereof that the term of this Agreement will not be extended (a ”Non-Extension
Termination”). The term "Involuntary Termination" does not include
Termination for Cause, termination of employment due to death or disability
or
termination pursuant to Section 7(g) of this Agreement, or suspension or
temporary or permanent prohibition from participation in the conduct of the
Bank's affairs under Section 8 of the Federal Deposit Insurance Act. The term
“Involuntary Termination” does not include the resignation by the Executive for
the reasons set forth in clauses (ii) and (iii) above, unless the notice
provisions set forth in Section 9 are satisfied.
(d) The
terms
"Termination for Cause" and "Terminated For Cause" mean termination of the
employment of the Executive with the Corporation and the Bank because of the
Executive's willful misconduct, breach of a fiduciary duty involving personal
profit, repeated failure to perform stated duties (after written notice and
reasonable opportunity to cure), willful violation of any law, rule, or
regulation (other than traffic violations or similar offenses) or final
cease-and-desist order issued by a federal banking regulator, or (except as
provided below) material breach of any provision of this Agreement (after
written notice and reasonable opportunity to cure). No act or failure
to act by the Executive shall be considered willful unless the Executive acted
or failed to act in bad faith and without a reasonable belief that his action
or
failure to act was in the best interest of the Corporation or the
Bank. The Executive shall not be deemed to have been Terminated for
Cause unless and until there shall have been delivered to the Executive a copy
of a resolution, duly adopted by the affirmative vote of not less than a
majority of the entire membership of the Board of Directors at a meeting of
the
Board duly called and held for such purpose (after reasonable notice to the
Executive and an opportunity for the Executive, together with the Executive's
counsel, to be heard before the Board), stating that in the good faith opinion
of the Board of Directors the Executive has engaged in conduct described in
the
preceding sentence and specifying the particulars thereof in
detail.
(e) The
term
“Voluntary Termination” shall mean termination of employment by the Executive
voluntarily as set forth in Section 7(d) of this Agreement.
2. Term. The
term of this Agreement shall be a period of three years commencing on the date
hereof, subject to earlier termination as provided herein, and on each day
thereafter the term of this Agreement shall be extended for one day in addition
to the then-remaining term, creating on each such day a new three year term,
provided that the Corporation has not at any time given Executive
prior written notice that the term of this Agreement will not be so
extended.
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3. Employment. The
Executive is employed as the President and Chief Executive Officer of the
Corporation. As such, the Executive shall have supervision and
control over strategic planning (with each strategic plan being subject to
approval by the Board of Directors of the Corporation) and daily consolidated
operations of the Corporation, shall render administrative and management
services as are customarily performed by persons situated in similar executive
capacities, and shall have such other powers and duties as the Board of
Directors may prescribe from time to time consistent with services performed
by
similarly situated executives and consistent with the terms of this
Agreement. The Executive shall also render services without
additional compensation to any subsidiary or subsidiaries of the Corporation
as
requested by the Corporation from time to time consistent with his executive
position and with the terms of this Agreement. The Executive may also
serve as a member of the Board, or as a member of the board of directors of
any
subsidiary, and shall be entitled to receive compensation for such service
as
determined by such boards. The Executive shall devote his best
efforts and reasonable time and attention to the business and affairs of the
Corporation and its subsidiaries to the extent necessary to discharge his
responsibilities hereunder. The Executive may (a) serve on charitable
boards or committees at the Executive’s discretion without consent of the Board
of Directors and, in addition, on such corporate boards as are approved in
a
resolution adopted by a majority of the Board of Directors, and (b) manage
personal investments, so long as such activities do not interfere materially
with performance of his responsibilities hereunder.
4. Compensation.
(a) Salary.
The Corporation agrees to pay the Executive during the term of this Agreement
a
base salary (the "Corporation Salary") the annualized amount of which shall
be
not less than $600,000. The Corporation Salary shall be paid no less
frequently than monthly and shall be subject to customary tax
withholding. The amount of the Corporation Salary shall be increased
(but under no circumstances may the Corporation Salary be decreased) from time
to time in accordance with the amounts of salary approved by the Committee
or
Board of Directors. In order to effectuate the purpose of the
preceding sentence, the amount of the Corporation Salary shall be reviewed
by
the Committee or Board of Directors at least every year during the term of
this
Agreement. If and to the extent that the Bank and/or any other
entities directly or indirectly controlled by the Corporation (the “Consolidated
Subsidiaries”) pay salary or other amounts or provide benefits to the Executive
that the Corporation is obligated to pay or to provide to the Executive under
this Agreement, the Corporation’s obligations to the Executive shall be reduced
accordingly.
(b) Annual
Incentive Bonus. On or before March 31st of
each year of
the term of this Agreement, the Committee or Board of Directors shall adopt
consolidated performance criteria for the current calendar year based upon
which
the Executive shall be entitled to earn an annual cash incentive bonus (the
“Annual Cash Bonus”) for such calendar year if he is employed by the Corporation
on the last day of such year. In adopting such criteria the Committee
or Board of Directors shall establish performance levels based upon which the
Executive will be entitled to earn an Annual Cash Bonus, at target, equal to
not
less than 60% of the Corporation Salary and performance levels based upon which
the Executive will be entitled to earn an Annual Cash Bonus in an amount less
or
greater than the target amount of the Corporation Salary. The Annual
Cash Bonus earned by the Executive for a calendar year shall be paid within
two
and one-half months after the expiration of such calendar
year. Executive shall also be entitled to receive such other annual
bonus compensation, if any, as the Committee or Board of Directors may in its
sole discretion, award to Executive.
(c) Stock-Based
Incentive Compensation. Each year while the Executive is employed
pursuant to this Agreement, he shall be considered for an award of one or more
stock options and/or other stock-based awards (“Stock-Based Awards”) under the
Corporation’s Amended and Restated Omnibus Incentive Plan and any successor or
substitute for such plan (the “Omnibus Incentive Plan”) by the Committee at such
time as awards are granted to other senior executives of the Corporation. It
is
expected, if the Executive is then employed by the Corporation, that the
Committee will grant to the Executive Stock-Based Awards under the Omnibus
Incentive Plan having a value at the date of grant, at target, equal to 100%
of
the Corporation Salary earned by the Executive for the preceding calendar year,
which value shall be determined utilizing the same methodology (and the same
assumptions applied to such methodology) that is used for grants of stock
options or other stock-based awards granted at such time to other senior
executives of the Corporation. The Executive may be awarded Stock-Based Awards
having a lesser or great value. The Stock-Based Awards will be made in the
form
of stock options, restricted stock, performance shares or other forms of award
permitted under the Omnibus Incentive Plan, and, except as provided below,
the
mix and terms and conditions of which shall be the same as the awards made
at
such time to the other senior officers of the Corporation. Each option granted
pursuant to the provisions hereof shall have an option term of 10 years (or
such
other period applicable to stock options granted at such time to the other
senior officers of the Corporation) and may be subject to a vesting schedule,
provided: (i) vesting will continue following an Involuntary Termination at
any
time, (ii) such option to the extent outstanding and unexercisable shall become
fully vested and exercisable upon the death or disability of the Executive,
(iii) other than as provided in the following subparts (iv) and (v)
of this subsection, all such options which have vested at the time of
termination of employment shall remain exercisable for one year following such
termination (but not beyond the expiration of the option’s term), and any such
options that become vested after Involuntary Termination shall be exercisable
for one year following the date such options vest (but not beyond the expiration
of an option’s term), (iv) such option to the extent outstanding and
unexercisable shall become fully exercisable upon a Change in Control if the
unexercisable portion of the option would otherwise terminate or cease to be
enforceable, in whole or in part, by reason of such Change in Control, and
(v)
the option shall expire, terminate, and be forfeited upon a Termination for
Cause or a termination pursuant to Section 7(g) below. Nothing in
this Agreement shall affect the provisions of the 2003 Employment Agreement
and
previous employment agreements relating to options granted thereunder, which
shall continue to govern the terms and conditions of options issued by the
Corporation to Executive prior to the effective date of this
Agreement.
(d) Expenses. The
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in performing services under this Agreement
in accordance with the policies and procedures applicable to the executive
officers of the Corporation and the Bank, provided that the
Executive accounts for such expenses as required under such policies and
procedures.
5. Employee
Benefits.
(a) Participation
in Benefit Plans. While the Executive is employed by the
Corporation, the Executive shall be entitled to participate, to the same extent
as executive officers of the Corporation and the Bank generally, in all plans,
programs and practices of the Corporation and the Bank relating to pension,
retirement thrift, profit-sharing, savings, group or other life insurance,
hospitalization, medical and dental coverage, travel and accident insurance,
education, retirement or employee benefits or combination thereof. In
addition, the Executive shall be entitled to be considered for benefits under
all of the stock and stock option related plans in which the Corporation's
or
the Bank’s executive officers are eligible or become eligible to participate
provided any grants made to the Executive pursuant to Section 4(c) hereof shall
be considered in making any determination with respect thereto.
(b) Fringe
Benefits. While the Executive is employed by the Corporation, the
Executive shall be eligible to participate in, and receive benefits under,
any
other fringe benefit plans, programs and practices or perquisites which are
or
may become generally available to the Corporation's or the Bank's executive
officers, including but not limited to, supplemental retirement, supplemental
medical or life insurance plans, company car, club dues, physical examinations,
financial planning and tax preparation services. Without limiting the
generality of the foregoing, the Corporation agrees to pay for the Executive's
membership dues and related business expenses in Twin Orchard Country Club
(Long
Grove, Illinois), The Standard Club, and expenses for an executive automobile
which shall be replaced with a new vehicle at least every three
years. Moreover, during the Executive’s employment with the
Corporation, he shall be entitled to receive long-term disability coverage
and
benefits as in effect on the date hereof (to the extent available at a
reasonable cost). In no event will the Executive receive any benefit
which is less favorable than a benefit generally being provided to the senior
executive officers of the Corporation or the Bank.
(c) Post-Employment
Health Benefit. In recognition of the past service of the
Executive to the Corporation and its subsidiaries, the Executive has earned
and
shall be entitled to receive, subject to unconditional forfeiture thereof upon
a
Termination for Cause or a termination pursuant to Section 7(g) hereof,
post-employment continuing health benefit coverage from the Corporation or
its
successor in interest (the “Post-Employment Health Benefit”) upon any
termination of employment of the Executive which does not result in forfeiture
of the Post-Employment Health Benefit, as follows: (i) the Corporation (or
its
successor in interest) shall provide to the Executive (for himself, his spouse
and his other eligible dependents) until the date that Executive becomes
eligible for Medicare benefits (for his spouse until the date that is seven
full
calendar months after Executive becomes eligible for Medicare benefits), or
if
he should die prior thereto then to his surviving spouse and his other eligible
dependents until the date that is seven full calendar months after the date
that
Executive would have become eligible for Medicare benefits if he had survived,
the same family health insurance, hospitalization, medical, dental, prescription
drug and other health benefits as the Executive would have been eligible for
if
Executive had continued to serve as an executive officer of the Corporation
(or
its successor) until the Executive became eligible for Medicare benefits (and
for his spouse until the date that is seven full calendar months thereafter)
on
terms as favorable to the Executive as to other executive officers of the
Corporation (or its successor) from time to time, including amounts of coverage
and deductibles, which shall be at the Corporation's (or its successor’s) sole
cost other than co-payments and deductibles; and (ii) the Corporation (or its
successor) shall, at the election of the Executive, provide the same coverage
as
set forth in subpart (i) of this subsection for the benefit of the Executive,
his spouse and his other eligible dependents after the Executive becomes
eligible for Medicare benefits and during the remainder of his lifetime (for
Executive’s spouse, not ending before the date that is seven full calendar
months after the date that Executive becomes eligible for Medicare benefits),
at
the sole cost of the Executive. To the extent the Corporation shall
determine that the provisions of the coverage described in clause (i) at the
Corporation’s sole cost may result in taxability of the benefits provided
thereunder to Executive or his dependents because such benefits are
self-insured, then (A) the Corporation shall provide such benefits through
a
Corporation-paid insurance policy, or, if the Corporation determines that such
insurance policy cannot be reasonably obtained, (B) Executive (or his spouse)
shall be obligated to pay the monthly COBRA or similar premium for such
coverage. Within thirty (30) days following the end of each calendar
quarter during which COBRA premiums are paid with respect to the coverage
described in clause (i), the Executive (or his spouse) shall be entitled to
receive a lump sum payment equal to 150% of the aggregate COBRA premiums paid
during such quarter, subject to Section 21(b) hereof.
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(d) Supplemental
Deferred Compensation. Commencing December 31, 2007 and
continuing on each December 31 thereafter during the term of this Agreement,
if
Executive is employed by the Corporation on such December 31, then the
Corporation shall credit an employer contribution (“DC Contribution”) to a
fully-vested deferral account under the Corporation’s Non-Stock Deferred
Compensation Plan, as may be amended from time to time, or any successor or
substitute plan (“Deferred Compensation Plan”) in an amount determined in
accordance with this Section 5(d). The DC Contribution to be credited
pursuant to this Section 5(d) shall be an amount equal to 20% of the Corporation
Salary in effect on such December 31. The deferral account
established pursuant to this Section 5(d) shall be subject to crediting and
debiting with respect to the deemed investment of the account, and the account
shall be distributed to Executive, in accordance with Executive’s elections
under the provisions of the Deferred Compensation Plan.
6. Vacations;
Leave. The Executive shall be entitled (i) to annual paid
vacation in accordance with the policies established by the Board of Directors
which shall not be less favorable than that provided to any other executive
officer of the Corporation or the Bank, and (ii) to voluntary leaves of absence,
with or without pay, from time to time at such times and upon such conditions
as
the Board of Directors may determine in its discretion.
7. Termination
of Employment.
(a) Involuntary
Termination. If the Executive experiences an Involuntary
Termination prior to (and not in connection with) a Change in Control, such
termination of employment shall be subject to the Corporation's obligations
under this Section 7(a) in lieu of any other compensation and employee benefits
under this Agreement. If such Involuntary Termination is not a
Non-Extension Termination, the Corporation shall pay to the Executive monthly,
during the unexpired term of this Agreement after the Date of Termination,
an
amount equal to the sum of: (i) one-twelfth of the Corporation Salary at the
annual rate in effect immediately prior to the Date of Termination, (ii)
one-twelfth of the average Annual Cash Bonus, based on the average amount of
such Annual Cash Bonus for the two full calendar years preceding the Date of
Termination, and (iii) one-twelfth of the amount of the DC Contribution that
would have been made at the end of the calendar year in which the Involuntary
Termination occurs, based on the amount of the Corporation Salary determined
under clause (i) above. If such Involuntary Termination is a
Non-Extension Termination, the Corporation shall pay the Executive monthly
the
compensation set forth in the preceding sentence for a period of eighteen months
following the Date of Termination. In addition to the foregoing, in
connection with an Involuntary Termination, the Executive shall be entitled
to
receive (A) any accrued Corporation Salary through the Date of Termination
within 30 days after the Date of Termination, (B) any unpaid Annual Cash Bonus
earned by the Executive for the preceding calendar year within the time period
set forth in Section 4(b) hereof, (C) prompt reimbursement of any expenses
incurred through the Date of Termination in accordance with Section 4(d), and
(D) all vested employee benefits described in Section 5 hereof (collectively,
the “Accrued Compensation”) plus the Post-Employment Health Benefit described in
Section 5(c), such benefits to be paid in accordance with this Agreement and
the
applicable plan, program, arrangement or agreement. If the Executive
should die after amounts become payable under this Section 7(a), such amounts
shall thereafter be paid to the Executive’s estate until satisfied in
full. Payments pursuant to this Section 7(a) shall be subject to
Section 21(b).
(b) Change
in Control. If the Executive experiences an Involuntary
Termination in connection with or following a Change in Control, such
termination of employment shall, in lieu of any other compensation and employee
benefits under this Agreement, be subject to the Corporation’s (or its
successor-in-interest’s) obligations under this Section 7(b).
(i) Accrued
Compensation and Post-Employment Health Benefit. In addition to
any other amounts to which the Executive may be entitled to receive under this
Section 7(b), the Corporation (or its successor-in-interest) shall pay to the
Executive the Accrued Compensation and provide the Post-Employment Health
Benefit.
(ii) Change
in Control Payment. If an Involuntary Termination occurs in
connection with or within 18 months following a Change in Control, in addition
to the Corporation’s (or its successor-in-interest’s) obligations under Section
7(b)(i) above, the Corporation (or its successor-in-interest) shall pay to
the
Executive in cash, within 30 days after the Date of Termination, an amount
equal
to the sum of (A) three times the sum of the Corporation Salary and the target
Annual Cash Bonus in effect under Sections 4(a) and 4(b) respectively,
immediately prior to the Date of Termination, plus (B) an amount equal to the
present value of the DC Contributions (but not any earnings or other adjustments
thereto pursuant to the Deferred Compensation Plan) that would be credited
to
Executive under Section 5(d) as if his employment under this Agreement continued
until the later of three years after the Date of Termination or the December
31
of the calendar year during which the Executive would attain age
60. Such present value shall be determined by assuming each annual DC
Contribution during the applicable period would be equal to the DC Contribution
that would have been credited at the end of the calendar year in which the
Date
of Termination occurs and by using an interest rate equal to 120% of the
applicable federal long-term rate, compounded annually, applicable to the month
in which the Date of Termination occurs.
If
the
Executive should die after amounts become payable under any provision of this
Section 7(b), such amounts shall thereafter be paid to the Executive’s estate
until satisfied in full. Payments under this Section 7(b) are subject
to Section 21(b).
(c) Termination
for Cause. In the event of Termination for Cause, the Corporation
shall have no further obligation to the Executive under this Agreement after
the
Date of Termination except for the Accrued Compensation. Payments
under this Section 7(c) are subject to Section 21(b).
(d) Voluntary
Termination. The Executive may terminate his employment
voluntarily at any time by a notice pursuant to Section 9 of this
Agreement. In the event that the Executive voluntarily terminates his
employment other than by reason of any of the actions that constitute
Involuntary Termination ("Voluntary Termination"), the Corporation shall only
be
obligated to the Executive for the amount of the Accrued Compensation and to
provide the Post-Employment Health Benefit, and the Corporation shall have
no
further obligation to the Executive under this Agreement. Payments
under this Section 7(d) are subject to Section 21(b).
(e) Death. In
the event of the death of Executive during the term of this Agreement and prior
to any termination of employment, the Corporation shall pay to the Executive's
estate the Accrued Compensation and shall provide to the Executive’s surviving
spouse and other eligible dependents the Post-Employment Health
Benefit.
(f) Disability. If
the Executive becomes entitled to benefits under the terms of the
then-current disability plan, if any, of the Corporation or the Bank (a
"Disability Plan"), he shall be entitled to receive such group and other
disability benefits, if any, as are then provided by the Corporation or the
Bank
for executive officers. In the event of such disability, this
Agreement shall not be suspended, except that (i) the Corporation's obligation
to pay the Corporation Salary to the Executive shall be reduced in accordance
with the amount of disability income benefits received by the Executive, if
any,
pursuant to this Section 7(f) such that, on an after-tax basis, the Executive
shall realize from the sum of disability income benefits and Corporation Salary
the same amount as he would realize on an after-tax basis from the Corporation
Salary if the Corporation’s obligation to pay salary were not reduced pursuant
to this Section 7(f); (ii) the Executive shall not be entitled to earn an Annual
Cash Bonus pursuant to Section 4(b) hereof or option grants pursuant to Section
4(c) if the disability prevents the Executive from rendering full time service
to the Corporation for a period of in excess of six months during an applicable
calendar year; and (iii) upon a resolution adopted by a majority of the
disinterested members of the Board of Directors, the Corporation may discontinue
payment of the Corporation Salary beginning six months following a determination
that the Executive has become entitled to benefits under a Disability Plan
or
otherwise unable to fulfill his duties under this Agreement. The
Corporation may terminate the employment of the Executive at any time after
the
expiration of one year following such disability if such disability is then
continuing and upon such termination the Executive shall only be entitled to
receive the Accrued Compensation and the Post-Employment Health
Benefit. Payments under this Section 7(f) are subject to Section
21(b).
(g) Regulatory
Action. Notwithstanding any other provisions of this Agreement,
if the Executive is removed and/or permanently prohibited from participating
in
the conduct of the Bank's affairs by an order issued under Section 8(e)(4)
or
(g)(1) of the Federal Deposit Insurance Act, 12 U.S. C. § 1818(e)(4) and (g)(1),
all obligations of the Corporation under this Agreement shall terminate as
of
the effective date of the order, except for the obligation of the Corporation
to
pay the Accrued Compensation.
(h) No
Other Obligation to Mitigate Damages; No Offset. Except as provided in
Section 7(i), Executive shall not be obligated to mitigate amounts payable
or
arrangements made under the provisions of this Section 7 and the obtaining
of
other employment shall in no event effect any reduction of the Corporation’s
obligations under this Section 7. Except as provided in Section 7(i), the
Corporation’s obligation to make payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right or action
which
the Corporation may have against the Executive or others.
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(i) Release
and Restrictive Covenants. Notwithstanding the foregoing, the
Corporation’s obligations to pay or provide any benefits, under this Section
7(a) or 7(b) below shall (i) cease as of the date the Executive knowingly and
materially violates the provisions of Section 8 hereof and (ii) be conditioned
on the Executive signing a release of claims in favor of the Corporation in
the
form annexed hereto within forty-give (45) days of such termination and the
expiration of any revocation period provided for in such release; provided
that,
if such Date of Termination is after November 8 of any year, no payment
conditioned on such release shall be made until the calendar year following
the
calendar year of termination even if the release is signed and the revocation
period concluded earlier.
(j) Tax
Gross Up Agreement. The Corporation and Executive have entered
into a Tax Gross-Up Agreement, dated November 3, 2004, which provides certain
payments in the event Executive shall become subject to excise tax under Code
Section 4999 of the Code in the event of a Change in Control.
8. Confidential
Information; Restrictive Covenants.
(a) The
Executive shall not at any time during or following the Executive’s employment
with the Corporation, directly or indirectly, disclose or use on the Executive’s
behalf or another’s behalf, publish or communicate, except in the course of the
Executive’s employment and in the pursuit of the business of the Corporation or
any of its subsidiaries or affiliates, any proprietary information or data
of
the Corporation or any of its subsidiaries or affiliates, which is not generally
known to the public or which could not be recreated through public means and
which the Corporation may reasonably regard as confidential and proprietary,
except as may be compelled by legal process and in the event of legal process
compelling disclosure, Executive shall provide the Corporation as much advance
notice thereof as may be practicable. The Executive recognizes and
acknowledges that all knowledge and information which the Executive has or
may
acquire in the course of the Executive’s employment, such as, but not limited to
the business, developments, procedures, techniques, activities or services
of
the Corporation or the business affairs and activities of any customer,
prospective customer, individual firm or entity doing business with the
Corporation are its sole valuable property, and shall be held by Executive
in
confidence and in trust for their sole benefit. All records of every
nature and description which come into the Executive’s possession, whether
prepared by the Executive, or otherwise, shall remain the sole property of
the
Corporation and upon termination of the Executive’s employment for any reason,
said records shall be left with the Corporation as part of its property;
provided, however, that Executive’s contact list and other personal information
stored on the Corporation’s information systems shall not be deemed Confidential
Information for purposes of the prohibition on Executive’s possession or use of
such information set forth in this Section 8(a).
(b) Non-Competition;
Non-Solicitation. The Executive acknowledges that the Corporation
by nature of its respective businesses has a legitimate and protectable interest
in its clients, customers and employees with whom the Corporation has
established significant relationships as a result of a substantial investment
of
time and money, and but for the Executive’s employment hereunder, the Executive
would not have had contact with such clients, customers and
employees. The Executive agrees that during the period of the
Executive’s employment with the Corporation and for a period of one
(1) year after termination of the Executive’s employment for any reason
(such one (1) year period the “Post-Employment Non-Compete Period”), the
Executive will not (except in the Executive’s capacity as an employee of the
Corporation) directly or indirectly, for the Executive’s own account, or as an
agent, employee, director, owner, partner, or consultant of any corporation,
bank, thrift, firm, partnership, joint venture, syndicate, sole proprietorship
or other entity, or any division, subsidiary or affiliate thereof:
(i) engage,
directly or indirectly, within the Market Area (as defined below) in any
business that provides Banking Products or Banking Services that compete with
the Banking Products or Banking Services actually provided by Corporation during
the period of the Executive’s employment with the Corporation and prior to a
Change in Control (such Banking Products or Banking Services hereinafter
referred to as “Competitive Banking Products or Banking Services”);
(ii) solicit
or induce, or attempt to solicit or induce any client or customer of the
Corporation or any of its subsidiaries or affiliates for purposes of providing
Competitive Banking Products or Banking Services; or
(iii) solicit
or induce, or attempt to solicit or induce, any employee or agent of the
Corporation or any of its subsidiaries or affiliates to terminate his or her
relationship with the Corporation or any of its subsidiaries or
affiliates.
(c) For
purposes of this Section 8:
(i) “Corporation”
means the Corporation and all of its subsidiaries during the period of the
Executive’s employment with the Corporation, provided that with respect to the
Post-Employment Non-Compete Period, “Corporation” means only the Corporation and
all of its subsidiaries as of the date immediately prior to commencement of
the
Post-Employment Non-Compete Period, or if earlier, the date immediately
preceding a Change in Control;
(ii) “Market
Area” shall be an area encompassed within a thirty (30) mile radius surrounding
any office, branch or other place of business of the Corporation during the
period of the Executive’s employment with the Corporation, provided that with
respect to the Post-Employment Non-Compete Period, “Market Area” shall be
limited to an area encompassed within a thirty (30) mile radius surrounding
any
office, branch or other place of business of the Corporation as of the date
immediately prior to commencement of the Post-Employment Non-Compete Period,
or
if earlier, the date immediately preceding a Change in Control;
(iii) “Banking
Products or Banking Services” means (1) credit, deposit and treasury management
services offered to businesses, (2) financial services related to equipment
leasing, (3) credit and deposit services offered to individuals, (4) asset
management services of the type actually provided by the Corporation, and (5)
any other product or service provided by the Corporation; provided, that with
respect to the Post-Employment Non-Compete Period, asset management services
shall be deemed Banking Products or Banking Services only if the Corporation’s
revenues from such services during the Reference Period (as defined below)
exceeded 1% of the Corporation’s Annual Revenues (as defined below) during the
Reference Period; and provided further, that with respect to the Post-Employment
Non-Compete Period, an other product or service described in clause (5) shall
be
deemed Banking Products or Banking Services only if the Corporation’s revenues
from other product or service during the Reference Period (as defined below)
exceeded 2% of the Corporation’s Annual Revenues (as defined below) during the
Reference Period;
(iv) “Reference
Period” means the four completed calendar quarters immediately preceding the
commencement of the Post-Employment Non-Compete Period, or if earlier, the
date
immediately preceding a Change in Control; and
(v) “Annual
Revenue” means the sum of the Corporation’s net interest income and non-interest
income during the Reference Period.
(d) Notwithstanding
the foregoing provisions of this Section 8, Section 8(b)(i) above shall not
be
deemed to prohibit:
(i) the
Executive’s ownership, not to exceed five percent (5%), of the outstanding
capital stock or equity interests entity engaged in providing Competing Banking
Products or Banking Services in the Market Area, provided such investment is
passive and Executive does not provide any services to such entity either as
an
employee, consultant, director or otherwise,
(ii) the
Executive from serving as a director of other corporations and entities to
the
extent these directorships do not inhibit the performance of the Executive’s
duties hereunder or conflict with the business of the Corporation;
(iii) the
Executive from serving or continuing to serve as a director of other
corporations and entities following his termination of employment for which
he
served in such capacity at any time during his employment with the
Corporation,
4
(iv) the
Executive’s ownership of, or activity with respect to any business (whether
publicly or privately-held corporation or entity) disclosed to the Board during
the period of his employment and not objected to by the Board, or
(v) the
Executive during the Post-Employment Non-Compete Period from being employed
by
or otherwise providing services to an entity which is engaged within the Market
Area in any business that provides Competitive Banking Products or Banking
Services, so long as Executive has advised such entity of his obligations under
this Section 8 and Executive does not provide any services or otherwise engages
in any way, directly or indirectly, in any business of such entity which
provides Competitive Banking Products or Banking Services within the Market
Area.
(e) Remedies. The
Executive acknowledges that the restraints and agreements herein provided are
fair and reasonable, that enforcement of the provisions of this Section 8 will
not cause the Executive undue hardship and that said provisions are reasonably
necessary and commensurate with the need to protect the Corporation and its
legitimate and proprietary business interests and property from irreparable
harm. The Executive acknowledges and agrees that, (i) a breach
of any of the covenants and provisions contained in this Section 8, will result
in irreparable harm to the business of the Corporation, a remedy at law in
the
form of monetary damages for any breach by the Executive of any of the covenants
and provisions contained in this Section 8 is inadequate, in addition to any
remedy at law or equity for such breach, the Corporation shall be entitled
to
recover any amounts paid pursuant to Section 7(a) or 7(b) and to institute
and
maintain appropriate proceedings in equity, including a suit for injunction
to
enforce the specific performance by Executive of the obligations hereunder
and
to enjoin Executive from engaging in any activity in violation hereof and the
covenants on the Executive’s part contained in this Section 8, shall be
construed as agreements independent of any other provisions in this Agreement,
and the existence of any claim, setoff or cause of action by the Executive
against the Corporation, whether predicated on this Agreement or otherwise,
shall not constitute a defense or bar to the specific enforcement by the
Corporation of said covenants. The Corporation acknowledges and
agrees that it shall not suspend or discontinue any payments due to Executive
under this Agreement except pursuant to the order of a state or federal court
that has personal and subject matter jurisdiction. In the event of a
breach or a violation by the Executive of any of the covenants and provisions
of
this Agreement, the running of the Non-Compete Period (but not of Executive’s
obligation thereunder) shall be tolled during the period of the continuance
of
any actual breach or violation.
(f) Severability. The
parties hereto agree that the covenants set forth in this Section 8 are
reasonable with respect to their duration, geographical area and
scope. If the final judgment of a court of competent jurisdiction
declares that any term or provision of this Section 8 is invalid or
unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing
the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
9. Notice
of Termination. Subject to the provisions of Section 1(d) hereof,
in the event that the Corporation or the Bank, or both, desire to terminate
the
employment of the Executive during the term of this Agreement, the Corporation
or the Bank, or both, shall deliver to the Executive a written notice of
termination, stating whether such termination constitutes Termination for Cause,
Involuntary Termination, or termination for disability, setting forth in
reasonable detail the facts and circumstances that are the basis for the
termination, and specifying the date upon which employment shall terminate,
which date shall be at least 30 days after the date upon which the notice is
delivered, except in the case of Termination for Cause. In the event
that the Executive determines in good faith that he has experienced an
Involuntary Termination of his employment in accordance with Section 1(c),
he
shall (a) send a written notice to the Corporation stating the circumstances
that constitute such Involuntary Termination, which notice shall be given within
90 days of the Executive’s first learning of such circumstances and shall state
his intention to terminate his employment due to such Involuntary Termination
and (b) provide the Corporation with 30 days from the date of such notice to
cure such circumstances. If the Corporation fails to cure such circumstances,
then Executive will be deemed to have terminated his employment due to
Involuntary Termination at the end of such 30 day period. In the
event that the Executive desires to effect a Voluntary Termination, he shall
deliver a written notice to the Corporation, stating the date upon which
employment shall terminate, which date shall be at least 90 days after the
date
upon which the notice is delivered, unless the parties agree to a date
sooner.
10. Attorneys'
Fees. The Corporation shall pay all legal fees and related expenses
(including the costs of experts, evidence and counsel) incurred by the Executive
as a result of (i) the Executive's contesting or disputing any termination
of
employment, or (ii) the Executive's seeking to obtain or enforce any right
or
benefit provided by this Agreement or by any other plan or arrangement
maintained by the Corporation (or any successor) or the Consolidated
Subsidiaries under which the Executive is or may be entitled to receive
benefits; provided that the Corporation's obligation to pay such fees and
expenses is subject to the Executive's prevailing with respect to the matters
in
dispute in any proceeding initiated by the Executive or the Executive's having
been determined to have acted reasonably and in good faith with respect to
any
proceeding initiated by the Corporation or the Consolidated
Subsidiaries.
11. Indemnification. During
Executive’s term of employment with the Corporation and thereafter, the
Corporation shall indemnify and hold Executive harmless to the maximum extent
now or hereafter permitted under the Articles of Incorporation and By-Laws
of
the Corporation. In the event that legal action is instituted or
threatened against the Executive during or after the term of his employment
with, or membership on the Board of Directors of, the Corporation, the Bank
or
any affiliate the Corporation, in connection with such employment or membership,
the Corporation will advance to the Executive the costs and expenses incurred
by
Executive in the defense of such action (including reasonable attorneys, expert
and other professional fees) to the maximum extent permitted by law without
prejudice to or waiver by the Corporation of its rights and remedies against
the
Executive. In the event that there is a final judgment entered
against the Executive in any such litigation which, in accordance with its
Articles of Incorporation and By-Laws, is not subject to indemnification, then
the Executive shall reimburse the Corporation for all such costs and expenses
paid or incurred by it in the Executive’s defense of such litigation (the
“Reimbursement Amount”). The Reimbursement Amount shall be paid by the Executive
within 30 days after rendition of the final judgment and a determination by
the
Board of Directors that such costs and expenses are not subject to
indemnification. The parties shall cooperate in the defense of any asserted
claim, demand or liability against the Executive or the Corporation or any
of
the Consolidated Subsidiaries. The term “final judgment” as used
herein shall be defined to mean the decision of a court of competent
jurisdiction, and in the event of an appeal, then the decision of the appellate
court, after petition for rehearing has been denied, or the time for filing
the
same (or the filing of further appeal) has expired. The rights to
indemnification under this Section 11 shall be in addition to any rights which
Executive may now or hereafter have under any insurance contract maintained
by
the Corporation or any of its other affiliates or any other agreement between
Executive and the Corporation or any of its affiliates. Anything in
this Agreement to the contrary notwithstanding, Executive’s indemnification
rights under this Section 11, the Articles of Incorporation and By-Laws of
the
Corporation and applicable law, shall survive the termination of Executive’s
employment with the Corporation and his membership on the Board of Directors
of
the Corporation, the Bank and any affiliate of the Corporation.
12. No
Assignments.
(a) This
Agreement is personal to each of the parties hereto, and neither may assign
or
delegate any of its rights or obligations hereunder without first obtaining
the
written consent of the other party; provided, however, that this Agreement
shall
be binding upon and inure to the benefit of any successor of the Corporation
and
the Corporation shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) by an assumption agreement in
form
and substance reasonably satisfactory to the Executive, to expressly assume
and
agree to perform this Agreement in the same manner and to the same extent that
the Corporation would be required to perform it if no such succession had taken
place. Executive’s resignation following the failure of the
Corporation to obtain such an assumption agreement prior to the effectiveness
of
any such succession shall constitute an Involuntary Termination as defined
in
Section 1(c).
(b) This
Agreement and all rights of the Executive hereunder shall inure to the benefit
of and be enforceable by the Executive's personal and legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees.
13. Notice. For
the purposes of this Agreement, notices and all other communications provided
for in this Agreement shall be in writing and shall be deemed to have been
duly
given when personally delivered or five days after the date that sent by
certified mail, return receipt requested, postage prepaid, to the Corporation
at
its home office, to the attention of the Board of Directors with a copy to
the
Secretary of the Corporation, or, if to the Executive, to such home or other
address as the Executive has most recently provided in writing to the
Corporation.
14. Amendments. No
amendments or additions to this Agreement shall be binding unless in writing
and
signed by both parties.
15. Headings. The
headings used in this Agreement are included solely for convenience and shall
not affect, or be used in connection with, the interpretation of this
Agreement.
16. Severability. The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provisions shall not affect the validity or
enforceability of the other provisions hereof.
5
17. Governing
Law. This Agreement shall be governed by the laws of the State of
Illinois.
18. Preparation
Fees. The Corporation shall be solely responsible for payment of
any and all legal fees incurred by Executive in the preparation, negotiation
and
execution of this Agreement, but in an amount not to exceed
$15,000.
19. Successors
to Code Sections. All provisions of this Agreement referring to
sections of the U.S.C. (United State Code) or to the Code shall be deemed to
refer to successor code sections in the event of renumbering of code
sections.
20. 2003
Employment Agreement. Except with respect to stock options
awarded pursuant to the 2003 Employment Agreement (and previous employment
agreements that remain outstanding), this Agreement supersedes and replaces
the
2003 Employment Agreement and as of the date hereof, the 2003 Employment
Agreement shall terminate and have no further force or effect.
21. Code
Section 409A.
(a) The
intent of the parties is that payments and benefits under this Agreement comply
with Internal Revenue Code Section 409A and the regulations and guidance
promulgated thereunder (collectively “Code Section 409A”) and,
accordingly, to the maximum extent permitted, this Agreement shall be
interpreted to be in compliance therewith. If the Executive notifies
the Corporation (with specificity as to the reason therefore) that the Executive
believes that any provision of this Agreement (or of any award of compensation,
including equity compensation or benefits) would cause the Executive to incur
any additional tax or interest under Code Section 409A and the Corporation
concurs with such belief or the Corporation (without any obligation whatsoever
to do so) independently makes such determination, the Corporation shall, after
consulting with the Executive, reform such provision to try to comply with
Code
Section 409A through good faith modifications to the minimum extent reasonably
appropriate to conform with Code Section 409A. To the extent that any
provision hereof is modified in order to comply with Code Section 409A, such
modification shall be made in good faith and shall, to the maximum extent
reasonably possible, maintain the original intent and economic benefit to the
Executive and the Corporation of the applicable provision without violating
the
provisions of Code Section 409A.
(b) If
the
Executive is deemed on the date of “separation from service” to be a “specified
employee” within the meaning of that term under Code Section 409A(a)(2)(B), then
with regard to any payment or the provision of any benefit that is specified
as
subject to this Section, such payment or benefit shall be made or provided
at
the date which is the earlier of (A) the expiration of the six (6)-month period
measured from the date of such “separation from service” of the Executive, and
(B) the date of the Executive’s death (the “Delay Period”). Upon the
expiration of the Delay Period, all payments and benefits delayed pursuant
to
this Section 21(b) (whether they would have otherwise been payable in a single
sum or in installments in the absence of such delay) shall be paid or reimbursed
to the Executive in a lump sum, and any remaining payments and benefits due
under this Agreement shall be paid or provided in accordance with the normal
payment dates specified for them herein. Whenever a payment is to be
made promptly after a date, it shall be made within sixty (60) days
thereafter.
(c) With
regard to any provision herein that provides for reimbursement of expenses
or
in-kind benefits: (i) the right to reimbursement or in-kind benefits is not
subject to liquidation or exchange for another benefit, and (ii) the amount
of
expenses eligible for reimbursement or in-kind benefits provided during any
taxable year shall not effect the expenses eligible for reimbursement or in-kind
benefits to be provided in any other taxable year, provided that the foregoing
shall not be violated with regard to expenses covered by Code Section 105(h)
that are subject to a limit related to the period in which the arrangement
is in
effect. Any expense or other reimbursement payment made pursuant to
this Agreement or any plan, program, agreement or arrangement of the Corporation
referred to herein, shall be made on or before the last day of the taxable
year
following the taxable year in which such expense or other payment to be
reimbursed.
6
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
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ATTEST:
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MB
FINANCIAL,
INC.
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/s/
Xxxxx X. Xxxxx
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Secretary
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||||
| BY: /s/ Xxxxx Xxx | ||||
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Its:Chair-Organization
&
Compensation Committee
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| WITNESS: | EXECUTIVE: | |||
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/s/
Xxxxx X. Xxxxx
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/s/
Xxxxxxxx Xxxxxx
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Xxxxxxxx Xxxxxx |
7
ANNEX
TO EXECUTIVE EMPLOYMENT AGREEMENT
Form
of Release
AGREEMENT
AND GENERAL RELEASE
MB
Financial, Inc., its affiliates, subsidiaries, divisions, successors and assigns
in such capacity, and the current, future and former employees, officers,
directors, and agents thereof in such capacities (collectively referred to
throughout this Agreement as “Corporation”) and Xxxxxxxx
Xxxxxx (“Executive”), the Executive’s heirs, executors,
administrators, successors and assigns (collectively referred to throughout
this
Agreement as “Executive”) agree:
1. Consideration. The
parties acknowledge that this Agreement and General Release is being executed
in
accordance with Section 7 of the Employment Agreement by and between
Executive and the Corporation.
2. Revocation. Executive
may revoke this Agreement and General Release for a period of seven
(7) calendar days following the day Executive executes this Agreement and
General Release. Any revocation within this period must be submitted,
in writing, hand delivered to Corporation, or if mailed, postmarked, within
seven (7) calendar days of execution of this Agreement and General
Release. This Agreement and General Release shall not become
effective or enforceable until the revocation period has expired.
3. General
Release of Claim. Executive knowingly and voluntarily
releases and forever discharges Corporation from any and all claims, causes
of
action, demands, fees and liabilities of any kind whatsoever, whether known
and
unknown, against Corporation, Executive has, has ever had or may have as of
the
date of execution of this Agreement and General Release, including, but not
limited to, any alleged violation of:
● Title
VII of the Civil Rights Act of 1964, as amended;
● The
Civil Rights Act of 1991;
● Sections 1981
through 1988 of Title 42 of the United States Code, as amended;
● The
Immigration Reform and Control Act, as amended;
● The
Americans with Disabilities Act of 1990, as amended;
● The
Age Discrimination in Employment Act of 1967, as amended;
● The
Older Workers Benefit Protection Act of 1990;
● The
Worker Adjustment and Retraining Notification Act, as amended;
● The
Occupational Safety and Health Act, as amended;
● The
Family and Medical Leave Act of 1993;
● Any
other federal, state or local civil or human rights law or any other local,
state or federal law, regulation or ordinance;
● Any
public policy, contract, tort, or common law; or
● Any
allegation for costs, fees, or other expenses including attorneys’ fees incurred
in these matters.
Notwithstanding
anything herein to the contrary, the sole matters to which the Agreement and
General Release do not apply are: (i) Executive’s rights of indemnification
and directors and officers liability insurance coverage to which Executive
was
entitled immediately prior to DATE with regard to Executive’s service as an
officer and director of Corporation; (ii) Executive’s rights under any
tax-qualified pension or claims for accrued vested benefits under any other
Executive benefit plan, policy or arrangement maintained by Corporation or
under
COBRA; (iii) Executive’s rights under the provisions of the Employment
Agreement which are intended to survive termination of employment; or
(iv) Executive’s rights as a stockholder.
4. No
Claims Permitted. Executive waives Executive’s right to
file any charge or complaint against Corporation arising out of Executive’s
employment with or separation from Corporation before any federal, state or
local court or any state or local administrative agency, except where such
waivers are prohibited by law. This Agreement, however, does not
prevent Executive from filing a charge with the Equal Employment Opportunity
Commission, any other federal government agency, and/or any government agency
concerning claims of discrimination, although Executive waives the Executive’s
right to recover any damages or other relief in any claim or suit brought by
or
through the Equal Employment Opportunity Commission or any other state or local
agency on behalf of Executive under the Age Discrimination in Employment Act,
Title VII of the Civil Rights Act of 1964 as amended, the Americans with
Disabilities Act, or any other federal or state discrimination law, except
where
such waivers are prohibited by law.
5. Affirmations. Executive
affirms Executive has not filed, has not caused to be filed, and is not
presently a party to, any claim, complaint, or action against Corporation in
any
forum or form. Executive further affirms that the Executive has been paid and/or
has received all compensation, wages, bonuses, commissions, and/or benefits
to
which Executive may be entitled and no other compensation, wages, bonuses,
commissions and/or benefits are due to Executive, except as provided in Section
5(d) of the Employment Agreement. Executive also affirms Executive
has no known workplace injuries.
6. Governing
Law and Interpretation. This Agreement and General
Release shall be governed and conformed in accordance with the laws of the
State
of Illinois without regard to its conflict of laws provisions. In the
event Executive or Corporation breaches any provision of this Agreement and
General Release, Executive and Corporation affirm either may institute legal
action to specifically enforce any term or terms of this Agreement and General
Release. Should any provision of this Agreement and General Release
be declared illegal or unenforceable by any court of competent jurisdiction
and
should the provision be incapable of being modified to be enforceable, such
provision shall immediately become null and void, leaving the remainder of
this
Agreement and General Release in full force and effect. Nothing
herein, however, shall operate to void or nullify any general release language
contained in the Agreement and General Release.
7. Nonadmission
of Wrongdoing. Executive agrees neither this Agreement
and General Release nor the furnishing of the consideration for this Release
shall be deemed or construed at any time for any purpose as an admission by
Corporation of any liability or unlawful conduct of any kind.
8
8. Amendment. This
Agreement and General Release may not be modified, altered or changed except
upon express written consent of both parties wherein specific reference is
made
to this Agreement and General Release.
9. Entire
Agreement. This Agreement and General Release sets forth
the entire agreement between the parties hereto and fully supersedes any prior
agreements or understandings between the parties; provided, however, that
notwithstanding anything in this Agreement and General Release, the provisions
in the Employment Agreement which are intended to survive termination of the
Employment Agreement, including but not limited to those contained in
Section 11 thereof, shall survive and continue in full force and
effect. Executive acknowledges Executive has not relied on any
representations, promises, or agreements of any kind made to Executive in
connection with Executive’s decision to accept this Agreement and General
Release.
EXECUTIVE
HAS BEEN ADVISED THAT EXECUTIVE HAS UP TO FORTY-FIVE (45) CALENDAR DAYS TO
REVIEW THIS AGREEMENT AND GENERAL RELEASE AND HAS BEEN ADVISED IN WRITING TO
CONSULT WITH AN ATTORNEY PRIOR TO EXECUTION OF THIS AGREEMENT AND GENERAL
RELEASE.
EXECUTIVE
AGREES ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT AND
GENERAL RELEASE DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL TWENTY-ONE
(21) CALENDAR DAY CONSIDERATION PERIOD.
HAVING
ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL RELEASE, TO FULFILL THE PROMISES
SET FORTH HEREIN, AND TO RECEIVE THE SUMS AND BENEFITS SET FORTH IN THE
EMPLOYMENT AGREEMENT, EXECUTIVE FREELY AND KNOWINGLY, AND AFTER DUE
CONSIDERATION, ENTERS INTO THIS AGREEMENT AND GENERAL RELEASE INTENDING TO
WAIVE, SETTLE AND RELEASE ALL CLAIMS EXECUTIVE HAS OR MIGHT HAVE AGAINST
CORPORATION.
