Exhibit 10.11
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of September 1, 1997 (the
"Effective Date"), by and between First Midwest Bancorp, Inc., a Delaware
Corporation hereinafter called the "Employer "), and the undersigned executive,
_____________________, (hereinafter called the "Executive").
WITNESSETH THAT:
WHEREAS, the Employer desires to employ or to continue to employ the
Executive as its
____________________________________________________________________, and the
Executive desires to continue in such employment;
NOW, THEREFORE, the Employer and the Executive, each intending to be
legally bound, hereby mutually covenant and agree as follows:
1. Employment and Term.
(a) Employment. The Employer shall employ the Executive as the
________________________________________________________________________, of the
Employer, and the Executive shall so serve, for the term set forth in Paragraph
1(b).
(b) Term. The initial term of the Executive's employment under this
Agreement shall commence on September 1, 1997 and end on
____________________________________, subject to the extension of such term as
hereinafter provided and subject to earlier termination as provided in Paragraph
7. The term of this Agreement shall be extended automatically for two (2)
additional years after the initial term expires, and each second anniversary
date thereof unless, no later than ninety (90) days prior to any such renewal
date, either the Board of Directors of the Employer, or a duly authorized
committee thereof (the "Board"), on behalf of the Employer, or the Executive
gives written notice to the other, in accordance with Paragraph 15, that the
term of this Agreement shall not be so extended. Anything in this Agreement to
the contrary, if at any time during the Executive's period of employment under
this Agreement there is a Change in Control (as defined in Paragraph 7), the
term of this Agreement shall automatically extend to a date which is three (3)
years from the date of the Change in Control (and shall be further extended
pursuant to the foregoing provisions of this Paragraph 1(b), unless written
notice to the contrary is given in accordance with this Paragraph 1(b)).
2. Duties and Responsibilities.
(a) The duties and responsibilities of Executive are and shall
continue to be of an executive nature as shall be required by the Employer in
the conduct of its business. Executive's powers and authority shall be as
prescribed by the by-laws of the Employer and shall include all those presently
delegated to him, together with the performance of such other duties and
responsibilities as from time to time may be assigned to him by the Board of
Directors of the Employer consistent with the position(s) of
_________________________. Executive recognizes, that during the period of his
employment hereunder, he owes an undivided duty of loyalty to the Employer, and
agrees to devote his entire business time and attention to the performance of
said duties and responsibilities and to use his best efforts to promote and
develop the business of the Employer. Executive will not perform any duties for
any other business without the prior written consent of the Employer, and may
engage in charitable, civic or community activities, provided that such duties
or activities do not materially interfere with the proper performance of his
duties under this Agreement. During the period of employment, Executive agrees
to serve as a director on the Board of Directors of the Employer and/or any of
its affiliates, as well as to serve as a member of any committee of any said
Board, to which he may be elected or appointed.
(b) Notwithstanding that this Agreement provides for the employment of
Executive in his present capacity as the Employer's
______________________________, nothing herein contained shall assure
Executive, nor in any manner be construed to constitute an agreement by the
Employer to continue the employment of Executive after the expiration of this
Agreement in such capacity or in any other capacity.
3. Salary.
(a) Base Salary. For services performed by the Executive for the
Employer pursuant to this Agreement during the period of employment as provided
in Paragraph 1(b) hereof, the Employer shall pay the Executive a base salary at
the rate of _________________________________________ thousand dollars
($____,000) per year, payable in substantially equal installments in accordance
with the Employer's regular payroll practices. The Executive's base salary (with
any increases under paragraph (b), below) shall not be subject to reduction
without the Executive's written consent. Any compensation which may be paid to
the Executive under any additional compensation or incentive plan of the
Employer or which may be otherwise authorized from time to time by the Board (or
an appropriate committee thereof) shall be in addition to the base salary to
which the Executive shall be entitled under this Agreement. Executive's base
salary shall be subject to review from time to time and the Employer may (but is
not required to) increase the base salary as the Board, in its discretion, may
determine.
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4. Annual Bonuses. For each fiscal year during the term of employment, the
Executive shall be eligible to receive a bonus pursuant to the Employer's Short
Term Incentive Compensation Plan, with an annual target bonus amount, in
accordance with the terms of such Plan as adopted and administered by the Board
for senior executives of the Employer, which plan may be amended from time to
time by the Board in its discretion.
5. Equity Incentive Compensation. During the term of employment hereunder
the Executive shall be eligible to participate in the First Midwest Bancorp,
Inc. 1989 Omnibus Stock and Incentive Plan, and in any other equity-based
incentive compensation plan or program adopted by First Midwest Bancorp, Inc.
("First Midwest"), including (but not by way of limitation) any plan providing
for the granting of (a) options to purchase stock, (b) restricted stock or (c)
similar equity-based units or interests to officers of the Employer.
6. Other Benefits. In addition to the compensation described in Paragraphs
3, 4 and 5, above, the Executive shall also be entitled to the following:
(a) Participation in Benefit Plans. The Executive shall be entitled to
participate in all of the various retirement, welfare, fringe benefit, and
expense reimbursement plans, programs and arrangements of the Employer to the
extent the Executive is eligible for participation under the terms of such
plans, programs and arrangements, including, but not limited to non-qualified
retirement programs and deferred compensation plans.
(b) Vacation. The Executive shall be entitled to such number of days
of vacation with pay during each calendar year during the period of employment
in accordance with the Employer's applicable personnel policy as in effect from
time to time.
(c) Executive Perquisites. The Employer shall furnish Executive with
such perquisites which may from time to time be provided by the Employer which
are suitable to the Executive's position and adequate for the performance of his
duties hereunder and reasonable in the circumstances.
(d) Expense Reimbursement. The Employer shall reimburse Executive's
reasonable expenses incurred in performing services hereunder, which are
incurred and accounted for in accordance with Employer's policies and procedures
applicable thereto.
7. Termination. Unless earlier terminated in accordance with the following
provisions of this Paragraph 7, the Employer shall continue to employ the
Executive and the Executive shall remain employed by the Employer during the
entire term of this Agreement as set forth in Paragraph 1(b). Paragraph 8 hereof
sets forth certain obligations of the Employer in the event that the Executive's
employment hereunder is terminated. Certain capitalized terms used in this
Paragraph 7 and in Paragraph 8 hereof are defined in Paragraph 7(d), below.
(a) Death or Disability. Except to the extent otherwise provided in
Paragraph 8 with respect to certain post-Date of Termination payment obligations
of the Employer, this
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Agreement shall terminate immediately as of the Date of Termination in the event
of the Executive's death or in the event that the Executive becomes disabled.
The Executive will be deemed to be disabled upon the earlier of (i) the end of a
six (6)-consecutive month period, or of an aggregate period of nine (9) months
out of any consecutive twelve (12) months, during which, by reason of physical
or mental injury or disease, the Executive has been unable to perform
substantially all of his usual and customary duties under this Agreement or (ii)
the date that a reputable physician selected by the Board, and as to whom the
Executive has no reasonable objection, determines in writing that the Executive
will, by reason of physical or mental injury or disease, be unable to perform
substantially all of the Executive's usual and customary duties under this
Agreement for a period of at least six (6) consecutive months. If any question
arises as to whether the Executive is disabled, upon reasonable request therefor
by the Board, the Executive shall submit to reasonable medical examination for
the purpose of determining the existence, nature and extent of any such
disability. The Board shall promptly give the Executive written notice of any
such determination of the Executive's disability and of any decision of the
Board to terminate the Executive's employment by reason thereof. In the event of
disability, until the Date of Termination, the base salary payable to the
Executive under Paragraph 3 hereof shall be reduced dollar-for-dollar by the
amount of disability benefits, if any, paid to the Executive in accordance with
any disability policy or program of the Employer.
(b) Discharge for Cause. In accordance with the procedures hereinafter
set forth, the Board may discharge the Executive from his employment hereunder
for Cause (as hereinafter defined). Except to the extent otherwise provided in
Paragraph 8 with respect to certain post-Date of Termination obligations of the
Employer, this Agreement shall terminate immediately as of the Date of
Termination in the event the Executive is discharged for Cause. Any discharge of
the Executive for Cause shall be communicated by a Notice of Termination to the
Executive given in accordance with Paragraph 15 of this Agreement.
(c) Termination for Other Reasons. The Employer may discharge the
Executive without Cause by giving written notice to the Executive in accordance
with Paragraph 15. The Executive may resign from his employment with or without
Good Reason, without liability to the Employer, by giving written notice to the
Employer in accordance with Paragraph 15 at least thirty (30) days prior to the
Date of Termination; provided, however, that no resignation shall be treated as
a resignation for Good Reason unless the written notice thereof is given within
sixty (60) days after the occurrence which constitutes "Good Reason" or during
the ninety (90) day period described in the final sentence of Paragraph 7(d)(v).
Except to the extent otherwise provided in Paragraph 8 with respect to certain
post-Date of Termination obligations of the Employer, this Agreement shall
terminate immediately as of the Date of Termination in the event the Executive
is discharged without Cause or resigns.
(d) Definitions. For purposes of this Agreement, the following
capitalized terms shall have the meanings set forth below:
(i) "Accrued Obligations" shall mean, as of the Date of
Termination, the sum of (A) the Executive's base salary under Paragraph 3
through the Date of Termination to the
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extent not theretofore paid, (B) the amount of any deferred compensation and
other cash compensation accrued by the Executive as of the Date of Termination
to the extent not theretofore paid, (C) any vacation pay, expense reimbursements
and other cash entitlements accrued by the Executive as of the Date of
Termination to the extent not theretofore paid, (D) any grants and awards vested
or accrued under any equity-based incentive compensation plan or program and (E)
all other benefits which have accrued as of the Date of Termination. For the
purpose of this Paragraph 7(d)(i), except as provided in the applicable plan,
program or policy, amounts shall be deemed to accrue ratably over the period
during which they are earned, but no discretionary compensation shall be deemed
earned or accrued until it is specifically approved by the Board in accordance
with the applicable plan, program or policy.
(ii) "Cause" shall mean (A) the Executive's willful and
continued (for a period of not less than ten (10) business days after written
notice thereof) failure to perform substantially the duties of his employment
(other than as a result of physical or mental incapacity, or while on vacation);
or (B) the Executive's willful engaging in illegal conduct or gross misconduct
which is materially and demonstrably injurious to the Employer; or (C) the
Executive's conviction of a felony involving moral turpitude, but specifically
excluding any conviction based entirely on vicarious liability (with "vicarious
liability" meaning liability based on acts of the Employer for which the
Executive is charged solely as a result of his offices with the Employer and in
which he was not directly involved and did not have prior knowledge of such
actions or intended actions); provided, however, that no act or failure to act,
on the part of the Executive, shall be considered "willful" unless it is done,
or omitted to be done, by the Executive in bad faith or without reasonable
belief that the Executive's action or omission was in the best interests of the
Employer; and provided further that no act or omission by the Executive shall
constitute Cause hereunder unless the Employer has given detailed written notice
thereof to the Executive, and the Executive has failed to remedy such act or
omission.
(iii) "Change in Control" shall mean the occurrence of any one
of the following events:
(A) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended), other than (i) a
trustee or other fiduciary holding securities under an employee benefit
plan of First Midwest or any of its subsidiaries, or (ii) a corporation
owned directly or indirectly by the stockholders of First Midwest in
substantially the same proportions as their ownership of stock of First
Midwest, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of First Midwest
representing 10% or more of the total voting power of the then outstanding
shares of capital stock of First Midwest entitled to vote generally in the
election of directors (the "Voting Stock"), provided, however, that the
following shall not constitute a change in control: (1) such person becomes
a beneficial owner of 10% or more of the Voting Stock as the result of an
acquisition of such Voting Stock directly from First Midwest, or (2) such
person becomes a beneficial owner of 10% or more of the Voting Stock as a
result of the decrease in the number of outstanding shares of Voting Stock
caused by the repurchase of shares by First Midwest; provided, further,
that in the event a person described
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in clause (1) or (2) shall thereafter increase (other than in circumstances
described in clause (1) or (2)) beneficial ownership of stock representing
more than 1% of the Voting Stock, such person shall be deemed to become a
beneficial owner of 10% or more of the Voting Stock for purposes of this
paragraph (A), provided such person continues to beneficially own 10% or
more of the Voting Stock after such subsequent increase in beneficial
ownership, or
(B) During any period of two consecutive years, individuals
(the "Incumbent Board"), who at the beginning of such period constitute the
board of directors of First Midwest and any new director, whose election by
the board of directors of First Midwest or nomination for election by First
Midwest's stockholders was approved by a vote of at least two-thirds (2/3)
of the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority
thereof, or
(C) Consummation of a reorganization, merger or
consolidation or the sale or other disposition of all or substantially all
of the assets of First Midwest (a "Business Combination"), in each case,
unless (1) all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Voting Stock immediately
prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of the total voting power represented by the
voting securities entitled to vote generally in the election of directors
of the corporation resulting from the Business Combination (including,
without limitation, a corporation which as a result of the Business
Combination owns First Midwest's or all or substantially all of First
Midwest's assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately prior to
the Business Combination of the Voting Stock of First Midwest, and (2) at
least a majority of the members of the board of directors of the
corporation resulting from the Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or
action of the Incumbent Board, providing for such Business Combination; or
(D) the stockholders of First Midwest approve a plan of
complete liquidation or dissolution of First Midwest.
The board of directors of First Midwest has final authority to construe and
interpret the provisions of the foregoing paragraphs (A), (B), (C) and (D) and
to determine the exact date on which a change in control has been deemed to have
occurred thereunder.
(iv) "Date of Termination" shall mean (A) in the event of a
discharge of the Executive for or without Cause, the date the Executive receives
a Notice of Termination, or any later date specified in such Notice of
Termination, as the case may be, (B) in the event of a resignation by the
Executive, the date specified in the written notice to the Employer, which date
shall be no less than thirty (30) days from the date of such written notice, (C)
in the event of the Executive's death, the date of the Executive's death, and
(D) in the event of termination of the Executive's employment by reason of
disability pursuant to Paragraph 7(a), the date the Executive receives written
notice of such termination.
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(v) "Good Reason" shall mean the occurrence, other than in
connection with a discharge, of any of the following without the Executive's
consent: (A) Executive is not re-elected or is removed from the positions with
the Employer set forth in Paragraph 1(a), other than as a result of Executive's
election or appointment to positions of equal or superior scope and
responsibility; or (B) Executive shall fail to be vested by the Employer with
the power and authority of any of said positions, excluding for this purpose any
isolated action not taken in bad faith and which is remedied by the Employer
promptly after receipt of written notice thereof given by the Executive in
accordance with Paragraph 15; or (C) any failure by the Employer to comply with
any of the provisions of this Agreement, other than any isolated, insubstantial
and inadvertent failure not occurring in bad faith and which is remedied by the
Employer promptly after receipt of written notice thereof given by the Executive
in accordance with Paragraph 15; or (D) the Employer giving notice to the
Executive pursuant to Paragraph 1(b) that the term of this Agreement shall not
be extended upon the expiration of the then-current term; or (E) the Employer
requiring the Executive to be based at an office or location which is more than
80 miles from the Executive's office as of the Effective Date. In addition, any
termination by the Executive during the ninety (90) day period beginning on the
first anniversary of the date of a Change in Control shall be deemed to be for
"Good Reason."
(vi) "Notice of Termination" shall mean a written notice which
(A) indicates the specific termination provision in this Agreement relied upon,
(B) sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated and (C) if the Date of Termination is to be other than
the date of receipt of such notice, specifies the termination date.
8. Obligations of the Employer Upon Termination. The following provisions
describe the obligations of the Employer to the Executive under this Agreement
upon termination of employment. However, except as explicitly provided in this
Agreement, nothing in this Agreement shall limit or otherwise adversely affect
any rights which the Executive may have under applicable law, under any other
agreement with the Employer or any of its affiliates or subsidiaries, or under
any compensation or benefit plan, program, policy or practice of the Employer or
any of its affiliates or subsidiaries.
(a) Death, Disability, Discharge for Cause, or Resignation Without
Good Reason. In the event this Agreement terminates pursuant to Paragraph 7(a)
by reason of the death or disability of the Executive, or pursuant to Paragraph
7(b) by reason of the discharge of the Executive by the Employer for Cause, or
pursuant to Paragraph 7(c) by reason of the resignation of the Executive other
than for Good Reason, the Employer shall pay to the Executive, or his heirs or
estate, in the event of the Executive's death, all Accrued Obligations in a lump
sum in cash within thirty (30) days after the Date of Termination; provided,
however, that any portion of the Accrued Obligations which consists of bonus,
deferred compensation, incentive compensation, insurance benefits or other
employee benefits shall be determined and paid in accordance with the terms of
the relevant plan or policy as applicable to the Executive.
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(b) Discharge Without Cause or Resignation with Good Reason . In the
event that this Agreement terminates pursuant to Paragraph 7(c) by reason of the
discharge of the Executive by the Employer other than for Cause or disability or
by reason of the resignation of the Executive for Good Reason:
(i) The Employer shall pay all Accrued Obligations to the
Executive in a lump sum in cash within thirty (30) days after the Date of
Termination; provided, however, that any portion of the Accrued Obligations
which consists of bonus, deferred compensation, incentive compensation,
insurance benefits or other employee benefits shall be determined and paid in
accordance with the terms of the relevant plan or policy as applicable to the
Executive;
(ii) Within thirty (30) days after the Date of Termination, the
Employer shall pay to the Executive a bonus for the year during which
termination occurs, calculated as a prorata portion of his then current target
annual bonus amount based on the number of days elapsed during the year through
the Date of Termination;
(iii) Continuation for a period of twelve (12) months (the
"Severance Period") of his then current annual base salary, payable in
substantially equal installments in accordance with the Employer's regular
payroll practices;
(iv) Continuation for the Severance Period of the Executive's
right to maintain COBRA continuation coverage under the applicable plans at
premium rates on the same "cost-sharing" basis as the applicable premiums paid
for such coverage by active employees as of the Date of Termination; and
(v) Outplacement counseling, the scope and provider of which
shall be selected by the Employer for a period beginning on the Date of
Termination and ending on the date the Executive is first employed elsewhere or
otherwise is provided compensated services of any type (including self-
employment), provided that in no event shall such outplacement services be
provided for a period greater than two (2) years.
In the event that upon the expiration of the Severance Period, Executive is not
employed or otherwise providing compensated services of any type (including
self-employment), and has not done so during the final ninety (90) days of the
Severance Period, the Employer may, in its sole discretion (which discretion
need not be applied in a consistent manner from one Executive to another), agree
to extend the Severance Period for up to an additional six (6) months (the
"Extended Severance Period"). The payments to Executive described in
subparagraph (iii) above and the reduce COBRA continuation premium described in
subparagraph (iv) above shall continue during the Extended Severance Period,
subject to earlier termination effective as of the first day of the month
following the date the on which the Executive becomes employed or provides
compensated services of any type (including self-employment).
The Executive shall provide such information as the Employer may reasonably
request to determine Executive's continued eligibility for the payments and
benefits provided by this Paragraph 8(b).
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(c) Effect of Change in Control. In the event that a Change in
Control occurs and this Agreement thereafter terminates pursuant to Paragraph
7(c) by reason of the discharge of the Executive by the Employer other than for
Cause or disability or by reason of the resignation of the Executive for Good
Reason:
(i) The Employer shall pay all Accrued Obligations to the
Executive in a lump sum in cash within thirty (30) days after the Date of
Termination; provided, however, that any portion of the Accrued Obligations
which consists of bonus, deferred compensation, incentive compensation,
insurance benefits or other employee benefits shall be determined and paid in
accordance with the terms of the relevant plan or policy as applicable to the
Executive;
(ii) Within thirty (30) days after the Date of Termination, the
Employer shall pay to the Executive a bonus for the year during which
termination occurs, calculated as a prorata portion of his then current target
annual bonus amount based on the number of days elapsed during the year through
the Date of Termination;
(iii) The Employer shall pay the Executive a lump sum payment
within thirty (30) days after such termination of employment in the amount of
three (3) times the sum of the following:
(A) the amount of Executive's annual base salary determined as of
the Date of Termination, or the date immediately preceding the date of the
Change in Control, whichever is greater; plus
(B) the greater of (A) the Executive's target bonus under the
Employer's annual bonus plan for the calendar year in which the Date of
Termination occurs, or (B) the average of the sum of the amounts earned by
Executive under the annual bonus plan with respect to the three (3)
calendar years immediately preceding the calendar year in which Executive's
Date of Termination occurs, or if such sum would be greater, with respect
to the three (3) calendar years immediately preceding the calendar year of
the date of the Change in Control; plus
(C) the sum of:
(I) the annual value of the contributions that would have
been expected to be made or credited by the Employer to, and benefits
expected to be accrued under, the qualified and non-qualified employee
profit sharing, 401(k), pension and any other benefit plans maintained
by the Employer to or for the benefit of Executive; plus
(II) the annual value of the Other Benefits described in
Paragraph 6(a) and (c) above.
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For purposes of paragraph (C)(I) above, the annual value of the contributions
and accruals to or under the employee benefit plans shall be determined on the
basis of the actual rate of contributions or accruals, as applicable, and the
provisions of the plans as in effect during the calendar year immediately
preceding the date of the Change in Control, or if the value so determined would
be greater, during the calendar year immediately preceding the Date of
Termination. The "annual value" of the executive perquisites described in
Paragraph 6(c) for purposes of paragraph (C)(I) above shall be 7.5% of the
annual base salary amount applicable under clause (iii)(A) above.
Executive shall also be entitled to out-placement counseling from a firm
selected by Employer for a period beginning on the date of termination of
employment and ending on the date Executive is first employed or otherwise
providing compensated services of any type (including, but not limited to, self-
employment), provided, that in no event shall Executive be entitled to out-
placement counseling after the date which is two (2) years from the date of
termination of employment.
Notwithstanding the foregoing, if a Change in Control occurs and this Agreement
terminated prior to the Change in Control pursuant to Paragraph 7(c) by reason
of the discharge of the Executive by the Employer other than for Cause or
disability or by reason of the resignation of the Executive for Good Reason,
then Executive shall be deemed for purposes of this Paragraph 8(c) to have so
terminated pursuant to Paragraph 7(c) immediately following the date the Change
in Control occurs if it is reasonably demonstrated by Executive that such
earlier termination was (i) at the request of a third party who had taken steps
reasonably calculated to effect the Change in Control, or (ii) otherwise arose,
or the circumstances that precipitated the termination otherwise arose, in
connection with or in anticipation of the Change in Control.
(d) Effect on Other Amounts. The payments provided for in this
Paragraph 8 shall be in addition to all other sums then payable and owing to
Executive shall be subject to applicable federal and state income and other
withholding taxes and shall be in full settlement and satisfaction of all of
Executive's claims and demands. Upon such termination of this Agreement,
Employer shall have no rights or obligations under this Agreement, other than
its obligations under this Paragraph 8, and Executive shall have no rights and
obligations under this Agreement, other than Executive's obligations under
Paragraphs 12 and 13 hereof (to the extent applicable).
(e) Conditions. Any payments of benefits made or provided pursuant to
this Paragraph 8 are subject to the Executive's:
(i) compliance with the provisions of Paragraphs 12 and 13 hereof
(to the extent applicable);
(ii) delivery to the Employer of an executed Release and
Severance Agreement, which shall be substantially in the form attached hereto as
Exhibit A, with such changes therein or additions thereto as needed under then
applicable law to give effect to its intent and purpose; and
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(iii) delivery to the Employer of a resignation from all offices,
directorships and fiduciary positions with the Employer, its affiliates and
employee benefit plans.
Notwithstanding the due date of any post-employment payments, any amounts due
under this Paragraph 8 shall not be due until after the expiration of any
revocation period applicable to the Release and Severance Agreement.
9. Certain Additional Payments by the Employer.
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution by the Employer to
or for the benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this
Paragraph 9) (a "Payment") would be subject to the excise tax imposed by Section
4999 of the Internal Revenue Code of 1986, as amended, (the "Code") or if any
interest or penalties are incurred by the Executive with respect to such excise
tax (such excise tax, together with any such interest and penalties, being
hereinafter collectively referred to as the "Excise Tax"), then the Executive
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that, after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payment.
(b) Subject to the provisions of paragraph (c), below, all
determinations required to be made under this Paragraph 9, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by the independent public accountants then regularly retained by the Employer
(the "Accounting Firm") in consultation with counsel acceptable to Executive,
which shall provide detailed supporting calculations both to the Employer and
the Executive within fifteen (15) business days of the receipt of notice from
the Executive that there has been a Payment, or such earlier time as is
requested by the Employer. In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting a Change in
Control, the Executive shall appoint another nationally recognized accounting
firm to make the determinations required hereunder (which accounting firm shall
then be referred to as the Accounting Firm hereunder) in consultation with
counsel acceptable to Executive. All fees and expenses of the Accounting Firm
and such counsel shall be borne solely by the Employer. Any Gross-Up Payment, as
determined pursuant to this Paragraph 9, shall be paid by the Employer to the
Executive within five (5) days of the receipt of the Accounting Firm's
determination. If the Accounting Firm determines that no Excise Tax is payable
by the Executive, it shall furnish the Executive with a written opinion that
failure to report the Excise Tax on the Executive's applicable federal income
tax return would not result in the imposition of a negligence or similar
penalty. Any good faith determination by the Accounting Firm shall be binding
upon the Employer and the Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the
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Employer should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that the Employer
exhausts its remedies pursuant to paragraph (c), below, and the Executive
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Employer to or for the benefit of the
Executive.
(c) The Executive shall notify the Employer in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Employer of a Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than fifteen (15) business days after the Executive is
informed in writing of such claim and shall apprise the Employer of the nature
of such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the thirty (30)-
day period following the date on which Executive gives such notice to the
Employer (or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Employer notifies the Executive in
writing prior to the expiration of such period that it desires to contest such
claim, the Executive shall:
(i) Give the Employer any information reasonably requested by the
Employer relating to such claim,
(ii) Take such action in connection with contesting such claim as
the Employer shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Employer,
(iii) Cooperate with the Employer in good faith in order
effectively to contest such claim, and
(iv) Permit the Employer to participate in any proceedings
relating to such claim;
provided, however, that the Employer shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limiting the foregoing provisions of this
paragraph (c), the Employer shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and xxx for a refund or contest the claim
in any permissible manner; and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Employer shall
determine; provided, however, that if the Employer directs the Executive to pay
such claim and xxx for a refund, the Employer shall advance the amount of such
payment to the Executive on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income
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tax (including interest or penalties with respect thereto) imposed with respect
to such advance or with respect to any imputed income with respect to such
advance; and further provided that any extension of the statute of limitations
relating to payment of taxes for the taxable year of the Executive with respect
to which such contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Employer's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and the Executive shall be entitled to settle or contest, as the case
may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by
the Employer pursuant to paragraph (c), above, the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject to
the Employer's complying with the requirements of said paragraph (c)) promptly
pay to the Employer the amount of such refund (together with any interest paid
or credited thereon, after taxes applicable thereto). If, after the receipt by
the Executive of an amount advanced by the Employer pursuant to said paragraph
(c), a determination is made that the Executive shall not be entitled to any
refund with respect to such claim and the Employer does not notify the Executive
in writing of its intent to contest such denial of refund prior to the
expiration of thirty (30) days after such determination, then such advance shall
be forgiven and shall not be required to be repaid; and the amount of such
advance shall offset, to the extent thereof, the amount of the Gross-Up Payment
required to be paid.
10. Dispute Resolution. In the event any dispute arises and the parties
after good faith efforts are unable to agree as to the calculation of the
amounts payable under this Agreement, it shall be settled in accordance with the
majority opinion of a committee consisting of an accountant chosen by the
Employer, an accountant chosen by Executive and an independent accountant
acceptable to both Executive and the Employer, as the case may be. The
committee's determination shall be binding and conclusive on the parties hereto.
The Employer shall pay all fees and expenses of the dispute resolution.
11. Enforcement. In the event the Employer shall fail to pay any amounts
due to Executive under this Agreement as they come due, the Employer agrees to
pay interest on such amounts at a rate equal to the prime rate (as from time to
time published in The Wall Street Journal (Midwest Edition) plus four percent
(4%) per annum. The Employer agrees that Executive and any successor shall be
entitled to recover all costs of enforcing any provision of this Agreement,
including reasonable attorneys' fees and costs of litigation.
12. Confidential Information. Executive shall not at any time during or
following his employment hereunder, directly or indirectly, disclose or use on
his behalf or another's behalf, publish or communicate, except in the course of
his employment and in the pursuit of the business of the Employer or any of its
subsidiaries or affiliates, any proprietary information or data of the Employer
or any of its subsidiaries or affiliates, which is not generally known in the
banking business and which the Employer may reasonably regard as confidential
and proprietary. Executive recognizes and acknowledges that all knowledge and
information which he has or may acquire in the course of his employment, such
as, but not limited to the business, developments, procedures, techniques,
activities
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or services of the Employer or the business affairs and activities of any
customer, prospective customer, individual firm or entity doing business with
the Employer 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 Executive's possession, whether prepared by him, or
otherwise, shall remain the sole property of the Employer and upon termination
of his employment for any reason, said records shall be left with the Employer
as part of its property.
13. Non-Competition. Executive acknowledges that the Employer and its
affiliates and subsidiaries by nature of their respective businesses have a
legitimate and protectable interest in their clients, customers and employees
with whom they have established significant relationships as a result of a
substantial investment of time and money, and but for his employment hereunder,
he would not have had contact with such clients, customers and employees.
Executive agrees that during the period of his employment with the Employer and
for a period of two (2) years after termination of his employment for any reason
(other than termination of employment by resignation for Good Reason prior to a
Change in Control or for any reason upon or after a Change in Control) (the
"Non-Compete Period"), he will not (except in his capacity as an employee of the
Employer) directly or indirectly, for his own account, or as an agent, employee,
director, owner, partner, or consultant of any corporation, firm, partnership,
joint venture, syndicate, sole proprietorship or other entity which has a place
of business (whether as a principal, division, subsidiary, affiliate, related
entity, or otherwise) located within the Market Area (as hereinafter defined):
(a) solicit or induce, or attempt to solicit or induce any client or
customer of the Employer or any of its subsidiaries or affiliates not to do
business with the Employer or any of its subsidiaries or affiliates; or
(b) solicit or induce, or attempt to solicit or induce, any employee
or agent of the Employer or any of its subsidiaries or affiliates to
terminate his or her relationship with the Employer or any of its
subsidiaries or affiliates.
For purposes of this Agreement, "Market Area" shall be an area encompassed
within a twenty-five (25) mile radius surrounding any place of business of the
Employer or of any of its subsidiaries or affiliates (existing or planned as of
the Date of Termination of employment) in year one (1) of the Non-Compete Period
and an area encompassing a twenty-five (25) mile radius surrounding the
Executive's primary employment location in year two (2) of the Non-Compete
Period. For purposes of this Agreement, "Executive's primary employment
location" shall be defined to mean that place of employment where Executive
spends the greatest amount of his/her working time.
The foregoing provisions shall not be deemed to prohibit (i) Executive's
ownership, not to exceed ten percent (10%) of the outstanding shares, of capital
stock of any corporation whose securities are publicly traded on a national or
regional securities exchange or in the over-the-counter market or (ii) Executive
serving as a director of other corporations and entities to the extent these
directorships do not inhibit the performance of his duties hereunder or conflict
with the business of the Employer.
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14. Remedies. Executive acknowledges that the restraints and agreements
herein provided are fair and reasonable, that enforcement of the provisions of
Paragraphs 12 and 13 will not cause him/her undue hardship and that said
provisions are reasonably necessary and commensurate with the need to protect
the Employer and its legitimate and proprietary business interests and property
from irreparable harm. Executive acknowledges and agrees that (a) a breach of
any of the covenants and provisions contained in Paragraphs 12 or 13 above, will
result in irreparable harm to the business of the Employer, (b) a remedy at law
in the form of monetary damages for any breach by him of any of the covenants
and provisions contained in Paragraphs 12 and 13 is inadequate, (c) in addition
to any remedy at law or equity for such breach, the Employer shall be entitled
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 (d) the covenants on his part contained in Paragraphs 12
and 13, 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
Executive against the Employer, whether predicated on this Agreement or
otherwise, shall not constitute a defense or bar to the specific enforcement by
the Employer of said covenants. In the event of a breach or a violation by
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.
15. Notices. Any notice or other communication required or permitted to be
given hereunder shall be determined to have been duly given to any party (a)
upon delivery to the address of such party specified below if delivered
personally or by courier; (b) upon dispatch if transmitted by telecopy or other
means of facsimile, provided a copy thereof is also sent by regular mail or
courier; or (c) within forty-eight (48) hours after deposit thereof in the U.S.
mail, postage prepaid, for delivery as certified mail, return receipt requested,
addressed, in any case to the party at the following address(es) or telecopy
numbers:
(a) If to Executive, at the address set forth on the signature page
hereof.
(b) If to the Employer:
First Midwest Bancorp, Inc.
000 Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Xx. Xxxxxx X. X'Xxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Vedder, Price, Xxxxxxx & Kammholz
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
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Attn: Xx. Xxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
or to such other address(es) or telecopy number(s) as any party may designate by
Written Notice in the aforesaid manner.
16. Indemnification.
(a) In the event that legal action is instituted against Executive
during or after the term hereof by a third party (or parties) based on the
performance or nonperformance by Executive of his duties hereunder, the Employer
will assume the defense of such action by its attorneys or attorneys selected by
Executive reasonably satisfactory to the Employer and advance the costs and
expenses thereof (including reasonable attorneys' fees) without prejudice to or
waiver by the Employer of its rights and remedies against Executive. In the
event that there is a final judgment entered against Executive in any such
litigation, and the Employer's Board of Directors determines that Executive
should, in accordance with its charter, By-Laws, or insurance reimburse such
entities, Executive shall be liable to the Employer for all such costs and
expenses paid or incurred by them in the defense of any such litigation (the
"Reimbursement Amount"). The Reimbursement Amount shall be paid by Executive
within thirty (30) days after rendition of the final judgment. The Employer
shall be entitled to set off the reimbursement amount against all sums which may
be owed or payable by the Employer to Executive hereunder or otherwise. The
parties shall cooperate in the defense of any asserted claim, demand or
liability against Executive or the Employer or its subsidiaries or affiliates.
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.
(b) The rights to indemnification under this Section 16 shall be in
addition to any rights which Executive may now or hereafter have under the
charter or By-laws of the Employer or any of its affiliates or subsidiaries,
under any insurance contract maintained by the Employer or any of its affiliates
or subsidiaries, or any agreement between Executive and the Employer or any of
its affiliates or subsidiaries.
17. Full Settlement; No Mitigation. The Employer's obligation to make the
payments and provide the benefits 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
Employer may have against the Executive or others. In no event shall the
Executive be obligated to seek other employment or take any other action by way
of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement, and such amounts shall not be reduced whether or
not the Executive obtains other employment.
18. Payment in the Event of Death. In the event payment is due and owing by
the Employer to Executive under this Agreement upon the death of Executive,
payment shall be make to such beneficiary as Executive may designate in writing,
or failing such designation, then the
-16-
executor of his estate, in full settlement and satisfaction of all claims and
demands on behalf of Executive, shall be entitled to receive all amounts owing
to Executive at the time of death under this Agreement. Such payments shall be
in addition to any other death benefits of the Employer and in full settlement
and satisfaction of all severance benefit payments provided for in this
Agreement.
19. Entire Understanding. This Agreement constitutes the entire
understanding between the parties relating to Executive's employment hereunder
and supersedes and cancels all prior written and oral understandings and
agreements with respect to such matters, except to the extent to which Executive
may have entered into certain Split-Dollar Life Insurance Agreements, which
agreement(s) shall remain in full force and effect, and except for the terms and
provisions of any employee benefit or other compensation plans (or any
agreements or awards thereunder), referred to in this Agreement, or as otherwise
expressly contemplated by this Agreement.
20. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the heirs and representatives of the Executive and the successors and
assigns of the Employer. The Employer shall require any successor (whether
direct or indirect, by purchase, merger, reorganization, consolidation,
acquisition of property or stock, liquidation, or otherwise) to all or a
substantial portion of its assets, by agreement in form and substance reasonably
satisfactory to the Executive, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Employer would be
required to perform this Agreement if no such succession had taken place.
Regardless of whether such an agreement is executed, this Agreement shall be
binding upon any successor of the Employer in accordance with the operation of
law, and such successor shall be deemed the "Employer" for purposes of this
Agreement.
21. Tax Withholding. The Employer shall provide for the withholding of any
taxes required to be withheld by federal, state, or local law with respect to
any payment in cash, shares of stock and/or other property made by or on behalf
of the Employer to or for the benefit of the Executive under this Agreement or
otherwise. The Employer may, at its option: (a) withhold such taxes from any
cash payments owing from the Employer to the Executive, (b) require the
Executive to pay to the Employer in cash such amount as may be required to
satisfy such withholding obligations and/or (c) make other satisfactory
arrangements with the Executive to satisfy such withholding obligations.
22. No Assignment. Except as otherwise expressly provided herein, this
Agreement is not assignable by any party and no payment to be made hereunder
shall be subject to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or other charge.
23. Execution in Counterparts. This Agreement may be executed by the
parties hereto in two (2) or more counterparts, each of which shall be deemed to
be an original, but all such counterparts shall constitute one and the same
instrument, and all signatures need not appear on any one counterpart.
24. Jurisdiction and Governing Law. Except as provided in Paragraph 10,
jurisdiction over disputes with regard to this Agreement shall be exclusively in
the courts of the State of Illinois,
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and this Agreement shall be construed and interpreted in accordance with and
governed by the laws of the State of Illinois, without regard to the choice of
laws provisions of such laws.
25. Severability. If any provision of this Agreement shall be adjudged by
any court of competent jurisdiction to be invalid or unenforceable for any
reason, such judgment shall not affect, impair or invalidate the remainder of
this Agreement. Furthermore, if the scope of any restriction or requirement
contained in this Agreement is too broad to permit enforcement of such
restriction or requirement to its full extent, then such restriction or
requirement shall be enforced to the maximum extent permitted by law, and the
Executive consents and agrees that any court of competent jurisdiction may so
modify such scope in any proceeding brought to enforce such restriction or
requirement.
26. Waiver. The waiver of any party hereto of a breach of any provision of
this Agreement by any other party shall not operate or be construed as a waiver
of any subsequent breach.
27. Amendment. No change, alteration or modification hereof may be made
except in a writing, signed by each of the parties hereto.
28. Construction. The language used in this Agreement will be deemed to be
the language chosen by Employer and Executive to express their mutual intent and
no rule of strict construction shall be applied against any person. Wherever
from the context it appears appropriate, each term stated in either the singular
of plural shall include the singular and the plural, and the pronouns stated in
either the masculine, the feminine or the neuter gender shall include the
masculine, feminine or neuter. The headings of the Paragraphs of this Agreement
are for reference purposes only and do not define or limit, and shall not be
used to interpret or construe the contents of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first above written.
ATTEST: EMPLOYER
By:
------------------------------------- ------------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxxx X. X'Xxxxx
------------------------------------- ----------------------------------
Title: Corporate Secretary Title: President and Chief Executive
Officer
Address: First Midwest Bancorp, Inc. ----------------------------------
-------------------------------------
EXECUTIVE
000 Xxxx Xxxx, Xxxxx 000
------------------------------------- ----------------------------------------
Name:
-----------------------------------
Xxxxxx, Xxxxxxxx 00000 Title:
------------------------------------- -----------------------------------
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Exhibit A to Employment Agreement
RELEASE AND SEVERANCE AGREEMENT
THIS RELEASE AND SEVERANCE AGREEMENT is made and entered into this ____ day
of _______________, _____ by and between First Midwest Bancorp, Inc., its
subsidiaries and affiliates (collectively "FMBI") and
_____________________________ (hereinafter "EXECUTIVE").
EXECUTIVE'S employment with FMBI terminated on ______________, ______; and
EXECUTIVE has voluntarily agreed to the terms of this RELEASE AND SEVERANCE
AGREEMENT in exchange for severance benefits under the Employment Agreement
("Employment Agreement") to which EXECUTIVE otherwise would not be entitled.
NOW THEREFORE, in consideration for severance benefits provided under the
Employment Agreement, EXECUTIVE on behalf of himself and his spouse, heirs,
executors, administrators, children, and assigns does hereby fully release and
discharge FMBI, its officers, directors, employees, agents, subsidiaries and
divisions, benefit plans and their administrators, fiduciaries and insurers,
successors, and assigns from any and all claims or demands for wages, back pay,
front pay, attorney's fees and other sums of money, insurance, benefits,
contracts, controversies, agreements, promises, damages, costs, actions or
causes of action and liabilities of any kind or character whatsoever, whether
known or unknown, from the beginning of time to the date of these presents,
relating to his employment or termination of employment from FMBI, including but
not limited to any claims, actions or causes of action arising under the
statutory, common law or other rules, orders or regulations of the United States
or any State or political subdivision thereof including the Age Discrimination
in Employment Act and the Older Workers Benefit Protection Act.
EXECUTIVE acknowledges that EXECUTIVE'S obligations pursuant to Paragraphs
12 and 13, to the extent applicable, of the Employment Agreement relating to the
use or disclosure of confidential information shall continue to apply to
EXECUTIVE.
This Release and Settlement Agreement supersedes any and all other
agreements between EXECUTIVE and FMBI except agreements relating to proprietary
or confidential information belonging to FMBI, and any other agreements,
promises or representations relating to severance pay or other terms and
conditions of employment are null and void.
This release does not affect EXECUTIVE'S right to any benefits to which
EXECUTIVE may be entitled under any employee benefit plan, program or
arrangement sponsored or provided by FMBI, including but not limited to the
Employment Agreement and the plans, programs and arrangements referred to
therein.
EXECUTIVE and FMBI acknowledge that it is their mutual intent that the Age
Discrimination in Employment Act waiver contained herein fully comply with the
Older Workers Benefit Protection Act. Accordingly, EXECUTIVE acknowledges and
agrees that:
A-1
(a) The Severance benefits exceed the nature and scope of that to
which he would otherwise have been legally entitled to receive.
(b) Execution of this Agreement and the Age Discrimination in
Employment Act waiver herein is his knowing and voluntary act;
(c) He has been advised by FMBI to consult with his personal attorney
regarding the terms of this Agreement, including the aforementioned waiver;
(d) He has had at least twenty-one (21) calendar days within which to
consider this Agreement;
(e) He has the right to revoke this Agreement in full within seven
(7) calendar days of execution and that none of the terms and provisions of
this Agreement shall become effective or be enforceable until such
revocation period has expired;
(f) He has read and fully understands the terms of this agreement;
and
(g) Nothing contained in this Agreement purports to release any of
EXECUTIVE's rights or claims under the Age Discrimination in Employment Act
that may arise after the date of execution.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
indicated above.
FIRST MIDWEST BANCORP, INC., EXECUTIVE
for itself and its Subsidiaries
and Affiliates
By:
----------------------------- ------------------------------
Its:
----------------------------
A-2
