AMENDED AND RESTATED OMNIBUS INCENTIVE PLAN INCENTIVE STOCK OPTION AGREEMENT
MB
FINANCIAL,
INC.
AMENDED
AND RESTATED
OMNIBUS INCENTIVE PLAN
ISO
NO.
________
This
option, intended to qualify as an Incentive Stock Option under Section 422
of
the Internal Revenue Code of 1986, as amended, is granted as of
_____________________ by MB Financial, Inc. (the "Company") to
________________ (the "Optionee"), in accordance with the
following terms and conditions:
1. Option
Grant and Exercise Period. The Company hereby grants to the
Optionee an Option (this "Option") to purchase, pursuant to the MB Financial,
Inc. Amended and Restated Omnibus Incentive Plan (as the same may from time
to
time be amended, the "Plan"), and upon the terms and conditions therein and
hereinafter set forth, an aggregate of _________ shares (the "Option Shares")
of
the Common Stock, par value $.01 per share ("Common Stock"), of the Company
at
the price of $_______ per share (the "Exercise Price"). A copy of the
Plan, as currently in effect, is incorporated herein by reference, and either
is
attached hereto or has been delivered previously to the Optionee. Capitalized
terms used but not otherwise defined in this Agreement shall have the meanings
ascribed to them in the Plan.
Except
as set forth in Section 5 below,
this Option shall be exercisable only during the period (the "Exercise Period")
commencing on _________________ and ending at 5:00 p.m., Chicago, Illinois
time,
on ___________________, such later time and date being hereinafter referred
to
as the "Expiration Date."
During
the Exercise Period, this Option shall be exercisable in whole at any time
or in
part from time to time subject to the provisions of this
Agreement. In the event this Option or any portion thereof fails to
qualify as an Incentive Stock Option for any reason whatsoever, this Option
or
such portion thereof shall automatically be deemed a Non-Qualified Stock
Option. For example, to the extent that this Option or any portion
thereof becomes or remains exercisable after the expiration of three months
following the Optionee’s termination of employment (other than by reason of
death or Disability with respect to that portion of this Option that
is exercisable at time of death or Disability), this Option shall no longer
qualify as an Incentive Stock Option but shall deem to be a Non-Qualified Stock
Option for tax purposes.
2. Method
of Exercise of This Option. This Option may be exercised during
the Exercise Period by providing written notice to the Chief Financial Officer
or Secretary of the Company specifying the number of Option Shares to be
purchased. The notice must be in the form prescribed by Section 6.6
of the Plan. The date of exercise is the date on which such notice is
received by the Company. Such notice must be accompanied by payment
in full of the aggregate Exercise Price for the Option Shares to be purchased
upon such exercise. Payment shall be made (i) in cash or its
equivalent, (ii) by tendering previously acquired shares of Common Stock having
an aggregate fair market value at the time of exercise equal to the aggregate
Option Price, or (iii) by a combination of (i) and (ii). In addition,
the Company may establish a cashless exercise program in accordance with
applicable laws and regulations. Promptly after such payment, subject
to Section 3 below, the Company shall issue and deliver to the Optionee or
other
person exercising this Option (pursuant to Section 6.8(a) of the Plan in the
event of the death of the Optionee) a certificate or certificates representing
the shares of Common Stock so purchased, registered in the name of the Optionee
(or such other person), or, upon request, in the name of the Optionee (or such
other person) and in the name of another jointly with right of
survivorship.
3. Delivery
and Registration of Shares of Common Stock. The Company's
obligation to deliver shares of Common Stock hereunder shall, if the Committee
so requests, be conditioned upon the receipt of a representation as to the
investment intention of the Optionee or any other person to whom such shares
are
to be delivered pursuant to Section 6.8(a) of the Plan in the event of the
death
of the Optionee, in such form as the Committee shall determine to be necessary
or advisable to comply with the provisions of the Securities Act of 1933, as
amended (the "Securities Act"), or any other Federal, state or local securities
law or regulation. In requesting any such representation, it may be
provided that such representation requirement shall become inoperative upon
a
registration of such shares or other action eliminating the necessity of such
representation under the Securities Act or other securities law or
regulation. The Company shall not be required to deliver any shares
upon exercise of this Option prior to (i) the admission of such shares to
listing on any stock exchange or system on which the shares of Common Stock
may
then be listed, and (ii) the completion of such registration or other
qualification of such shares under any state or Federal law, rule or regulation,
as the Committee shall determine to be necessary or advisable.
4. Non-transferability
of This Option. This Option may not be assigned, encumbered, or
transferred except, in the event of the death of the Optionee, by will or the
laws of descent and distribution to the extent provided in Section 5
below. This Option is exercisable during the Optionee's lifetime only
by the Optionee. The provisions of this Option shall be binding upon,
inure to the benefit of and be enforceable by the parties hereto, the successors
and assigns of the Company and any person to whom this Option is transferred
by
will or by the laws of descent and distribution.
5. Termination
of Employment. This Option expires upon a termination of
Optionee’s employment for Cause. If the Optionee is terminated for
Cause, all rights under this Option shall expire immediately upon the giving
to
the Optionee of notice of such termination.
Except
as
otherwise provided below, if the Optionee’s employment is involuntarily
terminated without Cause, or voluntarily terminated for Good Reason (as defined
in any change in control, severance or employment agreement between the Optionee
and the Company or any Subsidiary of the Company which is in effect immediately
prior to such employment termination, or any voluntary termination of employment
which under the terms of any such employment agreement constitutes an
“Involuntary Termination” of the Optionee’s employment, as defined therein),
this Option shall continue to vest; provided in such case all rights under
this
Option (except as provided below in the case of death following such a
termination of employment) shall expire on the later of one year after (a)
the
vesting date or (b) the date of employment termination, but in no event later
than the Expiration Date.
If
the
Optionee voluntarily terminates employment for any reason other than death,
Good
Reason, a Pre-Age 65 Service Retirement (as defined below), a Retirement (as
defined below) or a Post-Age 65 Service Retirement (as defined below), then
the
Optionee shall have ninety (90) days after such termination of employment to
exercise this Option to the extent it is otherwise exercisable on the date
of
employment termination; provided this Option shall only be exercisable during
the Exercise Period.
If
the
Optionee’s employment is voluntarily or involuntarily terminated other than for
Cause or death prior to age 65 and the Optionee’s age plus years of service is
equal to or greater than ninety (90) (“Pre-Age 65 Service Retirement”), this
Option shall continue to vest and shall remain exercisable (except as provided
below in the case of death following such a termination of employment) for
one
year after the later of (a) the vesting date or (b) the date of the Pre-Age
65
Service Retirement, but in no event later than the Expiration Date.
If
the
Optionee’s employment is voluntarily or involuntarily terminated other than for
Cause or death on or after age 65 and the Optionee’s age plus years of service
is less than ninety (90) (a “Retirement”), then this Option to the extent not
otherwise exercisable shall become immediately exercisable and shall remain
exercisable (except as provided below in the case of death following such a
termination of employment) for a period of one year after Retirement, but in
no
event later than the Expiration Date.
If
the
Optionee’s employment is voluntarily or involuntarily terminated other than for
Cause or death on or after age 65 and the Optionee’s age plus years of service
is equal to or greater than ninety (90) (“Post-Age 65 Service Retirement”), then
this Option to the extent not otherwise exercisable shall become exercisable
and
shall remain exercisable (except as provided below in the case of death
following such a termination of employment) until the later of (a) one year
after the date of the Post-Age 65 Service Retirement or (b) one year after
the
date this Option would have become exercisable (the vesting date) had its
exercise not been accelerated, but in no event later than the Expiration
Date.
In
the
event of the death of the Optionee while employed by the Company or following
any of an involuntary termination of employment without Cause, a voluntary
termination of employment for Good Reason, a Pre-Age 65 Service Retirement,
a
Retirement or a Post-Age 65 Service Retirement but prior to the date this Option
would otherwise cease to be exercisable, then in any such event the person
to
whom the Option has been transferred by will or by the laws of descent and
distribution may exercise this Option at any time within one year following
the
death of the Optionee, but in no event after the Expiration Date.
Nothing
herein is intended to diminish the rights of the Optionee under the Plan if
the
Optionee’s employment is terminated due to Disability.
Notwithstanding
the foregoing, to the extent the terms of any employment, severance or other
agreement to which the Optionee is a party with the Company or any Subsidiary
that is then in effect provide vesting or exercise rights in addition to those
contained in this Section 5, such additional rights shall be deemed to be part
of this Agreement and are incorporated herein by reference.
6. Notice
of Sale. The Optionee or any person to whom this Option or the
Option Shares shall have been transferred by will or by the laws of descent
and
distribution promptly shall give notice to the Company in the event of the
sale
or other disposition of Option Shares within the later of (i) two years from
the
date of grant of this Option or (ii) one year from the date of exercise of
this
Option. Such notice shall specify the number of Option Shares sold or
otherwise disposed of and be directed to the address set forth in Section 10
below.
7. Adjustments
for Changes in Capitalization of the Company. In the event of any
merger, reorganization, consolidation, recapitalization, separation,
liquidation, stock dividend, split-up, share combination or other change in
the
corporate structure of the Company affecting the shares of the Company’s Common
Stock, such adjustment shall be made in the number and class of shares covered
by this Option and the Exercise Price of this Option as shall be determined
to
be appropriate and equitable by the Committee to prevent dilution or enlargement
of rights; and provided that the number of shares subject to this Option shall
always be a whole number.
8. Effect
of Change in Control. A Change in Control of the Company or any
of its Affiliates shall not accelerate the vesting of this Option or in any
other manner affect this Option; provided, however, that in the case of a Change
in Control or any other transaction where the Company is not the continuing
entity (a “Transaction”), unless this Option (whether vested or unvested) is, in
accordance with the agreement to which the Company is a party providing for
the
Transaction (the “Transaction Agreement”), assumed by the continuing entity or
such entity’s ultimate parent entity or cancelled in exchange for consideration
payable to the Optionee as specified in the Transaction Agreement, the Optionee
shall upon consummation of such Transaction be entitled to receive a cash
payment from the continuing entity or such entity’s ultimate parent entity equal
to the excess, if any, of the Fair Market Value of a Share on the day prior
to
the effective date of the Transaction over the Exercise Price, multiplied by
the
number of remaining unexercised Option Shares (whether vested or unvested);
provided, further, that no such payment shall be owed to the Optionee if the
Fair Market Value of a Share on the day prior to the effective date of the
Transaction does not exceed the Exercise Price.
9. Shareholder
Rights Not Granted by This Option. The Optionee is not entitled
by virtue hereof to any rights of a shareholder of the Company or to notice
of
meetings of shareholders or to notice of any other proceedings of the
Company.
10. Withholding
Tax. The Company shall have the power and the right to deduct or withhold,
or require the Optionee to remit to the Company, an amount sufficient to satisfy
federal, state and local taxes (including the Optionee’s FICA and medicare
obligations) required by law to be withheld with respect to any grant, exercise,
or payment with respect to any of the Option Shares.
11. Notices. All
notices hereunder to the Company shall be delivered or mailed to it addressed
to
the Secretary of MB Financial, Inc., 0000 X. Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000. Any notices hereunder to the Optionee shall be delivered
personally or mailed to the Optionee's address noted below. Such
addresses for the service of notices may be changed at any time provided written
notice of the change is furnished in advance to the Company or to the Optionee,
as the case may be.
12. Plan
and Plan Interpretations as Controlling. This Option and the
terms and conditions herein set forth are subject in all respects to the terms
and conditions of the Plan, which are controlling. All determinations
and interpretations of the Committee shall be binding and conclusive upon the
Optionee or his legal representatives with regard to any question arising
hereunder or under the Plan.
13. Optionee
Service. Nothing in this Option shall limit the right of the
Company or any of its Affiliates to terminate the Optionee's service as an
officer or employee, or otherwise impose upon the Company or any of its
Affiliates any obligation to employ or accept the services of the
Optionee.
14. Optionee
Acceptance. The Optionee shall signify his acceptance of the
terms and conditions of this Option by signing in the space provided below
and
returning a signed copy hereof to the Company at the address set forth in
Section 10 above.
IN
WITNESS WHEREOF, the parties hereto have caused this INCENTIVE STOCK OPTION
AGREEMENT to be executed as of the date first above written.
MB
FINANCIAL,
INC.
Xxxx
X.
York
Vice
President
and
Chief
Financial Officer
Attested
By:
ACCEPTED:
Xxxxx
X.
Xxxxx (Street
Address)
Corporate
Secretary
(City,
State, and Zip Code)
