TAX GROSS UP AGREEMENT
This Tax
Gross Up Agreement (this “Agreement”) is entered into as
of the 5th day of December, 2008 by and between MB Financial, Inc. (the “Company”) and the undersigned
officer (the “Executive”).
WHEREAS, it is possible that
the Executive may receive or be entitled to receive payments or benefits from
the Company and/or its subsidiaries (“Payments”) in connection with
or arising from a Change in Control (as hereinafter defined), or an associated
event linked to a Change in Control, which could result in the receipt by the
Executive of an “excess parachute payment” (as such term is defined in
Section 280G(b)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”));
WHEREAS, if the Executive
receives such an “excess parachute payment” from the Company and/or any of its
subsidiaries; the Executive will be subject to a 20% excise tax under
Section 4999 of the Code;
WHEREAS, it is the intention
of the parties that the Executive should not be subject to any penalty tax by
virtue of any Payments unless his employment ceases due to a Termination for
Cause (as such term is hereinafter defined); and
WHEREAS, it has been agreed to
by the Company and the Executive that if the Executive is subject to an excise
tax under Section 4999 by virtue of any Payments in connection with or
arising from a Change in Control, then, the Company shall make an additional
cash payment or cash payments to the Executive that will provide the Executive
with sufficient funds, on an after tax basis, to pay the penalty tax imposed on
any such Payment and the penalty tax imposed on the additional cash payment or
payments, unless the Executive’s employment ceases due to a Termination for
Cause, except that such additional cash payment shall not be made and the
Payments shall be reduced in the event the Payments, prior to reduction, do not
exceed a threshold amount described below.
NOW, THEREFORE, in consideration of
the premises, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties, it is agreed by the
parties as follows:
1. Definition
of Certain Terms.
(a) “Change in Control” means a
change in ownership or control of the Company or a substantial portion of the
assets of the Company as defined in Section 280G of the
Code. For purposes of this Agreement, references to sections of the
Code shall mean such section and each successor or replacement section, together
with regulations and other published guidance thereunder.
(b) “Termination for Cause” means,
in the case of an Executive who is party to an Employment Agreement, Change in
Control Severance Agreement or similar agreement with the Company or a Company
subsidiary (any such agreement an “Employment Agreement”), means
a termination of the Executive’s employment by the Company for “cause,” or “just
cause” or words of similar import under such Employment Agreement, and for any
Executive who is not party to an Employment Agreement, means termination of the
employment of the Executive by the Company or a Company subsidiary at any time
prior to or within one year following a Change in Control because of the
Executive’s willful misconduct, breach of a fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule, or regulation (other than traffic violations or similar offenses) or
final cease-and-desist order. 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 Company or a Company
subsidiary. The Executive shall not be subject to or experience a
Termination 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 of the
Company (the “Board”) 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 the Executive has engaged in conduct described above
and specifying the particulars thereof in detail.
2. Tax Gross
Up Payment.
(a) In the
event that any Payments would be subject to excise tax under Section 4999
of the Code (such excise tax and any penalties and interest collectively, the
“Penalty Tax”), then,
except in the case of a De Minimus Excess Amount (as described below), the
Company shall pay to the Executive in cash an additional amount equal to the Tax
Gross Up Payment.
(b) In the
event that the amount by which the present value of the Payments which
constitute “parachute payments” (within the meaning of Section 280G of the Code)
(the “Parachute
Payments”) exceeds three (3) times the Executive’s “base amount” (within
the meaning of Section 280G of the Code) (the “Base Amount”) is an amount
that is less than 30% of the Base Amount, such excess shall be deemed to be a De
Minimus Excess Amount and the Executive shall not be entitled to an Tax Gross-Up
Payment. In such an instance, the Payments shall be reduced to an
amount (the “Non-Triggering
Amount”) such that the present value of the Parachute Payments is one
dollar ($1.00) less than an amount equal to three (3) times Executive’s Base
Amount. The reduction required hereby shall be made by first by reducing any
cash severance amounts payable to Executive, then by reducing other cash amounts
included in the Payments and finally, to the extent necessary, reducing non-cash
amounts included in the Payments. The amount of any reduction pursuant to this
Section 2(b) is
referred to below as the “Reduction
Amount.”
(c) In
the event the present value of the Parachute Payments exceed the Non-Triggering
Amount by more than 30% of the Base Amount, then the Company shall pay the Tax
Gross Up Payment to the Executive. The “Tax Gross Up Payment” shall be
an amount such that after payment by the Executive of all federal, state, local,
employment and Medicare taxes thereon (and any penalties and interest with
respect thereto), the Executive retains on an after tax basis a portion of such
amount equal to the aggregate of 100% of the Penalty Tax imposed upon the
Payments and 100% of the Penalty Tax imposed upon the Tax Gross Up
Payment. For purposes of determining the amount of the Tax Gross Up
Payment, the value of any non-cash benefits and deferred payments or benefits
subject to the Penalty Tax shall be determined by the Company’s independent tax
advisor in accordance with the principles of Section 280G(d)(3) and
(4) of the Code. The Tax Gross Up Payment less required tax
withholding shall be paid by the Company to the Executive on or within five
business days after the earlier of (i) the date the Company and/or any of
its subsidiaries is required to withhold tax with respect to any Payment or
(ii) the date any Penalty Tax is required to be paid by the
Executive. As a result of uncertainty in the application of Sections
280G and 4999 of the Code at the time the determinations are made under this
Section 2, or
as a result of a subsequent determination by the Internal Revenue Service or a
judicial authority, it is possible that the Company should have made Tax
Gross-Up Payments and, the reduction, if any, of the Payments pursuant to Section 2(b) should
not have been made (collectively an “Underpayment”), or that Tax Gross Up
Payments will have been made by the Company which should not have been made and,
if applicable, a reduction of the Payments under Section 2(b) should
have occurred (collectively an “Overpayment”). In the case of the
Underpayment, the amount of such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive. In the case of an
Overpayment, the Executive shall, at the direction and expense of the Company,
take such steps as are reasonably necessary (including the filing of returns and
claims for refund), follow reasonable instructions from, and procedures
established by, the Company, and otherwise reasonably cooperate with the Company
to correct such Overpayment, including repayment of such Overpayment to the
Company. Notwithstanding the foregoing, in the event the Executive
experiences a Termination for Cause within one year of the Change in Control,
then in that event, (a) if such termination occurs prior to the payment to
the Executive of any Tax Gross Up Payment, then the Executive shall not be
entitled to receive any Tax Gross Up Payment, or (b) if such termination
occurs after an Tax Gross Up Payment has been made to the Executive, then the
Executive shall remit to the Company within five days after such termination the
full amount of the Tax Gross Up Payments thereto are paid to the Executive and
the Executive shall not be entitled to receive any other payments pursuant to
this Section 2. However,
if it is later determined that the Executive’s Termination for Cause was
improper, then the Executive shall be entitled to receive the Tax Gross Up
Payment, together with any actual consequential and incidental damages arising
from the delay in his receipt of such payments.
3. TARP. Notwithstanding
anything in this Agreement or in any compensation plan, program or arrangement
maintained by the Company which covers Executive or to which Executive is a
party or in which Executive participates, as of the date hereof, or which may
become applicable to Executive hereinafter (collectively, the “Compensation Arrangements”),
each provision of this Agreement and the Compensation Arrangements is amended
and any amounts payable hereunder and thereunder are hereby amended and modified
with respect to Executive, if and to the extent necessary, for the Company to
comply with any requirements of the Emergency Economic Stabilization Act of 2008
(“EESA”) and/or the TARP
Capital Purchase Program (“CPP”) (and the guidance or
regulations issued thereunder by the United States Treasury Department at 31 CFR
Part 30, effective October 20, 2008 (the “CPP Guidance”) which may become
applicable to the Company, including, but not limited to, provisions prohibiting
the Company from making any “golden parachute payments,” providing the Company
may recover (“clawback”) bonus and incentive compensation in certain
circumstances, and precluding bonus and incentive arrangements that encourage
unnecessary or excessive risks that threaten the value of the Company, in each
case within the meaning of EESA and the CPP Guidance and only to the extent
applicable to the Company and Executive. For purposes of this Section 3, references
to “Company” means MB Financial, Inc. and any entities treated as a single
employer with MB Financial, Inc. under the CPP Guidance. Executive
hereby agrees to execute such documents, agreements or waivers as the Company
deems necessary or appropriate to effect such amendments to this Agreement or
the Compensation Arrangements or to facilitate the participation of the Company
in the TARP Capital Purchase Program or any other programs under
EESA.
The
application of this Section 3 is intended
to, and shall be interpreted, administered and construed to, comply with Section
111 of EESA and the CPP Guidance and, to the maximum extent consistent with this
Section 3 and
such statute and regulations, to permit the operation of this Agreement and the
Compensation Arrangements in accordance with their terms before giving effect to
the provisions of this Section 3, EESA and
the CPP Guidance.
4. Repeal
and Replacement of Contrary Provisions. In the event the
Company and/or its subsidiaries, on the one hand, and the Executive, on the
other hand, are parties to any agreement or arrangement, including without
limitation, any employment agreement, change in control agreement, severance
agreement or arrangement, stock option agreement, restricted stock agreement
(other than this Agreement), that provides for (a) a reduction of payments or
benefits to the Executive so that the payments or benefits do not become
nondeductible pursuant to or by reason of Section 280G of the Code or (b) a
limitation on the circumstances under which a tax gross up payment is to be
paid, or the amount of a gross up payment to be paid, to the Executive, (the
“Contrary Provisions”), such Contrary Provisions are hereby repealed and
terminated and superceded and replaced by the provisions of Section 2 of this
Agreement; provided, however, that the foregoing shall not apply to any Contrary
Provisions implementing provisions similar to those set forth in Section 3 above,
provided, further, that the foregoing shall not apply to that certain
Transitional Employment Agreement, dated as of January 26, 1999, between the
Executive and the Company (as successor to First Oak Brook Bancshares,
Inc.).
5. Final
Agreement and Binding Effect. This Agreement represents the
final agreement between the parties relating to the subject matter hereof, and
may only be modified or amended by subsequent writing that is executed by the
parties. This Agreement shall be binding upon and inure to the
benefit of the Company, its successors and assigns and the Executive and his or
her estate, heirs and beneficiaries.
6. Governing
Law. This Agreement shall be governed by the laws of the State
of Illinois.
7. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original.
This
Agreement has been executed by the parties hereto as of the date first above
written.
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MB
FINANCIAL, INC.
By:
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EXECUTIVE
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Name:
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