FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
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This First Amendment to Employment Agreement (the "Amendment") is made
by and between WINTRUST FINANCIAL CORPORATION ("Wintrust"), an Illinois banking
corporation and XXXXXX X. XXXXXX ("Executive"), an individual resident in the
State of Illinois.
WITNESSETH THAT:
WHEREAS, Wintrust and Executive have previously entered an Employment
Agreement (the "Employment Agreement") executed by such parties on December 22,
1998 (the "Effective Date"); and
WHEREAS, the Wintrust and the Executive desire to amend the Employment
Agreement pursuant to this Amendment, effective as of the Effective Date,
pursuant to Section 11(g) of the Employment Agreement; and
WHEREAS, certain capitalized terms not defined herein shall have the
meaning ascribed to such terms in the Employment Agreement.
1. Subsection 9(e)(B) of the Agreement is hereby amended to read
as follows:
For the purposes of this Section 9(e), the Executive will not
be deemed to have incurred a Constructive Termination under
Section 9(e)(ii) if there is a general reduction in base
salaries and/or perquisites applicable to the President, Chief
Executive Officer and all Vice Presidents of Wintrust.
2. Section 9(f) is amended to read as follows:
f. Termination Upon Change In Control. In the event
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that within eighteen (18) months of a Change in Control of
Wintrust (as defined below) (i) Executive's employment is
terminated without Cause (as such term is defined in Section
9(h) hereof) prior to the expiration of the initial term or
any succeeding one (1) year term of this Agreement or (ii)
Executive suffers a Constructive Termination, Wintrust (or the
successor thereto) shall pay Severance Pay to Executive in the
amount described in Section 9(d) hereof in a lump sum within
thirty (30) days following the date of Executive's termination
or Constructive Termination. For the purposes of this
Agreement, a "Change in Control" shall have the same meaning
as provided in Section 12(b) of the Wintrust 1997 Stock
Incentive Plan. Notwithstanding the foregoing, if the payment
required to be paid under this Section 9(f), when considered
either alone or with other payments paid or imputed to the
Executive from Wintrust or an Affiliate that would be deemed
"excess parachute payments" under Section 280G(b)(1) of the
Internal Revenue Code of 1986, as amended (the "Code"), is
deemed by Wintrust to be a "parachute payment" under Section
280G(b)(2) of Code, then the amount of Severance Pay required
to be paid under this Section 9(f) shall be automatically
reduced to an amount equal to $1.00 less than three times the
"base amount" (as defined in Section 280G(3) of the Code) (the
"Reduced Amount"). Provided, however, the preceding sentence
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shall not apply if the sum of (a) the amount of Severance Pay
described in this Section 9(f) less (b) the amount of excise
tax payable by the
Executive under Section 4999 of the Code with respect to the
amount of such Severance Pay and any other payments paid or
imputed to the Executive from Wintrust or an Affiliate that
would be deemed to be "excess parachute payments" under
Section 280G(b)(1) of the Code, is greater than the Reduced
Amount. The decision of Wintrust (based upon the
recommendations of its tax counsel and accountants) as to the
characterization of payments as parachute payments, the value
of parachute payments, the amount of excess parachute
payments, and the payment of the Reduced Amount shall be
final.
For the purposes of this Section 9(f), the term "Constructive
Termination" shall have the same meaning as such term is defined in Section 9(e)
with the following modifications:
(A) A Constructive Termination shall be deemed to have
occurred if after a Change in Control, the Executive's Adjusted Total
Compensation is reduced to less than (1) 100% of the Adjusted Total
Compensation of Executive for the twelve-month period ending as of the
last day of the month immediately preceding the month in which the
Constructive Termination occurs; or (2) less than 100% percent of the
Executive's Adjusted Total Compensation for the twelve-month period
ending as of the last day of the month preceding the Effective Date,
whichever is greater.
(B) Subsection 9(e)(B) shall not be applicable to a
Constructive Termination following a Change in Control.
IN WITNESS WHEREOF, the parties have executed and delivered this
Amendment to Employment Agreement as of the date and year first above written.
WINTRUST FINANCIAL CORPORATION
By:__________________________________________
Xxxxx X. Xxxxxxx, Chief Financial Officer
Date: ________________________________________
EXECUTIVE:
______________________________________________
Xxxxxx X. Xxxxxx
Date: _________________________________________
