AMENDMENT TO THE TRANSITIONAL EMPLOYMENT AGREEMENT BETWEEN FIRST OAK BROOK BANCSHARES, INC. AND ROSEMARIE BOUMAN
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AMENDMENT
TO
THE
FIRST
OAK BROOK BANCSHARES, INC. AND
XXXXXXXXX
XXXXXX
Effective
January 26, 1999, First Oak Brook Bancshares, Inc. (the “Company”) and Xxxxxxxxx
Xxxxxx (the “Executive” entered into a Transitional Employment Agreement (the
“Agreement”). The Agreement is hereby amended, effective as of August 25, 2006,
as follows:
1. New
Section 19 is added to read as follows:
“19. Compliance
with Code Section 409A.
(a) General.
It is
intended that the Agreement shall comply with the provisions of Code Section
409A and the Treasury regulations relating thereto so as not to subject
Executive to the payment of additional taxes and interest under Code Section
409A. In furtherance of this intent, this Agreement shall be interpreted,
operated and administered in a manner consistent with these intensions, and
to
the extent that any regulations or other guidance issued under Code Section
409A
would result in the Executive being subject to payment of additional income
taxes or interest under Code Section 409A, the parties agree to amend the
Agreement in order to avoid the application of such taxes or interest under
Code
Section 409A.
(b) Payments.
Notwithstanding any provision in the Agreement to the contrary, as needed to
comply with Code Section 409A(a)(2)(B)(i), payments due under Section 6 shall
be
subject to a six-month delay such that amounts otherwise payable during the
six
month period following the Executive’s separation from service shall be
accumulated and paid in a lump-sum catch-up payment as of the first day of
the
seventh month following separation from service (or, if earlier, the date of
death of the Executive).”
2. New
Appendix B is added to read as follows:
“APPENDIX
B
EFFECT
OF MERGER WITH MB FINANCIAL, INC.
This
Appendix B shall become effective upon the effective date (“Effective Date”) of
the merger (the “Merger”) contemplated by that certain Agreement and Plan of
Merger, dated as of May 1, 2006, by and between MB Financial, Inc. (“MBFI”),
MBFI Acquisition Corp. and First Oak Brook Bancshares, Inc. Notwithstanding
the
provisions of this Agreement to the contrary:
(a) During
the post-Merger transitional period (the period ending on the first to occur
of
six months after the systems conversion or the first anniversary of the
Effective Date), MBFI will continue Executive’s employment on substantially the
same economic terms and conditions as in effect at the time of the Merger,
in
such positions, with such duties and authority, as those contemplated by the
post-Merger organization structure communicated by MBFI to senior officers
as of
the Effective Date. In addition, Executive will receive any 2006 bonus payment
in full at the January 2007 payment date, together with all previously earned
and accrued but unpaid annual bonuses. During the post-Merger transitional
period, Executive agrees that she will not have the right to resign due to
“constructive discharge” under the Agreement.
(b) Provided
Executive remains employed through the end of the post-Merger transitional
period (or such earlier date as mutually agreed upon by Executive and MBFI),
Executive will be entitled to receive a Retention Amount in the aggregate amount
of $853,185 (“Retention Amount”). The Retention Amount is subject to reduction
in accordance with Section 8 of the Agreement, in the event such amount would
constitute an “excess parachute payment” subject to the 20% excise tax. The
Retention Amount will be paid in a lump sum during the 30-day period following
the first anniversary of the Merger. In the event of Executive’s death or
involuntary termination other than for Cause while employed during the
post-Merger transitional period or thereafter but prior to full payment of
Executive’s Retention Amount, Executive’s Retention Amount will be paid to
Executive or applicable, to Executive’s surviving spouse or other designated
beneficiary. In the event Executive voluntary resigns prior to the expiration
of
the post-Merger transitional period, Executive will not be entitled to the
Retention Amount or any other severance benefit under the Agreement. Upon
payment of the Retention Amount, the Agreement shall terminate, provided that
the provision of Section 11 relating to indemnification shall survive such
termination and, if for any reason MBFI defaults in its obligation to pay
compensation, or other amounts referred to in this Appendix B and Executive
is
required to pursue enforcement of such obligation, MBFI shall be liable for
reasonable attorneys fees and court costs. It is acknowledged and agreed by
the
Executive that the Retention Amount is in lieu of and in complete satisfaction
of all Termination Benefits of the Executive under the Agreement.
3. The
terms
of the Agreement as in effect prior to this Amendment not amended herby shall
be
and remain in full force and effect and not affected by this
Amendment.
4. This
Amendment may be executed in counterparts, each of which shall be an original
and shall together constitute one agreement.
IN
WITNESS WHEREOF, the parties have executed this Amendment on the dates indicated
below, effective as of the date set forth above.
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Executive
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First
Oak Brook Bancshares, Inc.
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First
Oak Brook Bancshares, Inc.
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Xxxxxxxxx
Xxxxxx
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BY:
/s/ Xxxxxxxxx Xxxxxx
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BY:
/s/ Xxxxxxx X. Xxxxxx, Xx.
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Title:
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Title:
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Assumption
Upon
the
Effective Date of the Merger (as defined in Appendix B above), MB Financial,
Inc., as successor to First Oak Brook Bancshares, Inc. (“XXXX”), expressly and
unconditionally agrees to perform XXXX’x obligation under the Agreement, as
amended herby, and shall become the Employer thereunder in accordance with
Section 17 of the Agreement.
MB
Financial, Inc.
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BY:
/s/ Xxxxxxxx Xxxxxx
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Title:
President
and Chief Executive Officer
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