FIRST AMENDMENT TO CHANGE IN CONTROL SEVERANCE AGREEMENT
FIRST
AMENDMENT TO CHANGE IN CONTROL SEVERANCE AGREEMENT
This
First Amendment to Change in
Control Severance Agreement (this “Amendment”) is made and entered into as of
the 14th day of December, 2007, by and between MB Financial Bank, N.A. (the
“Company”) and Xxxxxx X. Xxxxx (the “Executive”).
WHEREAS,
the Executive and the Company are parties to that certain Change in Control
Severance Agreement dated effective February 19, 2002 (the “Agreement”);
and
WHEREAS,
the Executive and the Company wish to amend the Agreement in the manner herein
provided.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, it is AGREED as follows:
1. The
last sentence of Section 1.3 of the Agreement is hereby amended to read as
follows:
“Notwithstanding
the foregoing, if the
effective date of a Change in Control occurs within six months following the
effective date of an involuntary termination without Just Cause, the Executive's
termination may be deemed to be a Qualifying Termination pursuant to Section
3.2
of this Agreement as of the date of the Change in Control.”
2. Section
2.1(f) of the Agreement is hereby amended to read in its entirety as
follows:
“(f) The
term “Change in Control” means (1) any Person is or becomes the Beneficial Owner
directly or indirectly of securities of the Parent or the Company representing
35% or more of the combined voting power of the Parent’s or the Company’s
outstanding securities entitled to vote generally in the election of directors;
(2) individuals who were members of the Parent Board on the Effective Date
(the
“Incumbent Parent Board”) cease for any reason to constitute at least a majority
thereof, provided that any person becoming a member of the Parent Board
subsequent to the Effective Date (a) whose appointment as a director by the
Parent Board was approved by a vote of at least three-quarters of the directors
comprising the Incumbent Parent Board, or (b) whose nomination for election
as a
member of the Parent Board by the Corporation’s stockholders was approved by the
Incumbent Parent Board or recommended by the nominating committee serving under
the Incumbent Parent Board, shall be considered a member of the Incumbent Parent
Board; (3) consummation of a plan of reorganization, merger or consolidation
involving the Parent or the Company or the securities of either, other than
(a)
in the case of the Parent, a transaction at the completion of which the
stockholders of the Parent immediately preceding completion of the transaction
hold more than 70% of the outstanding securities of the resulting entity
entitled to vote generally in the election of its directors or (b) in the case
of the Company, a transaction at the completion of which the Parent holds more
than 50% of the outstanding securities of the resulting institution entitled
to
vote generally in the election of its directors; or (4) consummation of a sale
or other disposition to an unaffiliated third party or parties of all or
substantially all of the assets of the Parent or the Company or approval by
the
stockholders of the Parent or the Company of a plan of complete liquidation
or
dissolution of the Parent or the Company; provided that for purposes of
clause (1), the term “Person” shall not include the Parent, any employee benefit
plan of the Parent or the Company, or any corporation or other entity owned
directly or indirectly by the stockholders of the Parent in substantially the
same proportions as their ownership of stock of the Parent.
3. Section
2.4 of the Agreement is hereby amended to read in its entirety as
follows:
“The
provisions of this Agreement may be amended by written agreement between the
Company and the Executive, with any material amendment approved by the
Compensation Committee or the Board. Subject to the final sentence of
Section 1.1, the Company may terminate this Agreement by written resolution
of
the Compensation Committee or the Board, effective as of a date at least twelve
months following the date the Company gives written notice to the Executive
of
its intent to terminate the Agreement.”
4. The
first paragraph of Section 5.1 of the Agreement is amended to read as
follows:
“5.1 Form
and Timing of Severance Benefits. The Severance Benefits
described in Sections 3.3(a) and (b) will be paid in cash to the Executive
in a
single lump sum as soon as practicable following the Effective Date of
Termination, but in no event more than thirty days after the Effective Date
of
Termination. The vesting of benefits under Section 3.3(c) shall occur
on the Effective Date of Termination.
5. Section
11.1 of the Agreement is hereby amended to read in its entirety as
follows:
“11.1 Exclusivity
of Severance Benefits. Subject to Section 7.1, if the
Company is contractually obligated to pay to the Executive any severance
benefits pursuant to another agreement, plan, program, policy, or any other
change of control agreement, the terms and provisions of the program
under which the aggregate level of severance benefits is the highest (as
determined by the Executive) will operate to completely replace and supersede
the terms and provisions of this Agreement and/or all other programs that
provide for the payment of severance benefits.
6. The
terms of the Agreement as in effect prior to this Amendment that are not amended
hereby shall be and remain in full force and effect and are not affected by
this
Amendment.
7. This
Amendment may be executed in counterparts, each of which shall be an original
and together shall constitute one agreement.
[Signature
page follows]
The
parties have executed this Amendment as of the day and year first above
written.
MB
FINANCIAL BANK, N.A.
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EXECUTIVE
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By:
/s/Xxxx
X. York
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/s/
Xxxxxx X.
Xxxxx
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Xxxx
X.
York
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Xxxxxx
X.
Xxxxx
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Executive
Vice President and Chief Financial Officer
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