MB FINANCIAL, INC. AMENDED AND RESTATED OMNIBUS INCENTIVE PLAN RESTRICTED STOCK AGREEMENT
Exhibit
10.18B
MB
FINANCIAL, INC.
AMENDED
AND RESTATED OMNIBUS INCENTIVE PLAN
RS-M NO.
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Shares of
Restricted Stock are hereby awarded on ____________ by MB Financial, Inc., a
Maryland corporation (the “Company”), to ______________ (the "Grantee"), in
accordance with the following terms and conditions.
Subject
to Section 3 of this Agreement and the TARP Addendum to Restricted Stock
Agreement attached hereto and incorporated herein (the “TARP Addendum”), the
Shares will vest per the following schedule:
100% (one
hundred percent) of the Shares will vest on July 22, 2012 (the “Scheduled
Vesting Date”), provided that:
(a) Grantee is then
serving as an employee of the Company or any Subsidiary, and
(b) the
closing price of a share of Common Stock as reported by the NASDAQ Global Stock
Market (or such other principal trading market on which shares of Common Stock
are traded) on each trading day during any 10 consecutive trading day period
during the period commencing on the date hereof and ending on the day before the
Scheduled Vesting Date has equaled or exceeded $18.14 (the “Minimum Value
Requirement”). In the event the Minimum Value Requirement is not
satisfied by the Scheduled Vesting Date, the Shares shall vest on any date
(“Extended Vesting Date”) after the Scheduled Vesting Date on which both the
Grantee is still serving as an employee of the Company or any Subsidiary and the
Minimum Value Requirement is met with respect to a 10 consecutive trading day
period ending on the day prior to the Extended Vesting Date, provided that any
Shares that have not become vested pursuant to this Section 2 or Section 3 below
on or before the fifth anniversary of the date of this award shall be forfeited
and returned to the Company.
If the
Grantee’s employment is terminated by reason of death, Disability, involuntary
termination without Cause, Pre-Age 65 Service Retirement, Retirement, Post-Age
65 Service Retirement, or a termination upon or after a Change in Control
resulting in severance benefits becoming payable to the Grantee under any
employment, severance or other agreement to which the Grantee is a party with
the Company or any Subsidiary, the Shares, if not theretofore vested, shall vest
in full on the date of termination, provided that the Minimum Value Requirement
has been satisfied prior to the date of termination. If the Minimum
Value Requirement has not been satisfied, then the Shares shall not be
immediately vested or forfeited, but instead shall remain outstanding and shall
vest upon achievement of the Minimum Value Requirement, provided the Minimum
Value Requirement is achieved prior to the fifth anniversary of the date of this
award. If the Minimum Value Requirement is not so achieved, the
Shares shall be forfeited and returned to the Company upon such fifth
anniversary.
If the
Grantee’s employment is voluntarily or involuntarily terminated other than for
Cause or death prior to age 65 and the Grantee’s age plus years of service is
equal to or greater than ninety (90), then the termination is considered to be a
“Pre-Age 65 Service Retirement.”
If the
Grantee’s employment is voluntarily or involuntarily terminated other than for
Cause or death on or after age 65 and the Grantee’s age plus years of service is
less than ninety (90), then the termination is considered to be a
“Retirement.”
If the
Grantee’s employment is voluntarily or involuntarily terminated other than for
Cause or death on or after age 65 and the Grantee’s age plus years of service is
equal to or greater than ninety (90), then the termination is considered to be a
“Post-Age 65 Service Retirement.”
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To
the extent the terms of any employment, severance or other agreement to
which the Grantee is a party with the Company or any Subsidiary that is
then in effect provide vesting rights with respect to the Shares in
addition to those contained in this Section 3, such additional rights
shall be deemed to be part of this Agreement and are incorporated herein
by reference.
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Notwithstanding
the foregoing, vesting pursuant to the provisions of this Section 3 shall be
subject to the TARP Addendum.
"The sale
or other transfer of the shares of stock represented by this certificate,
whether voluntary, involuntary, or by operation of law, is subject to certain
restrictions on transfer as set forth in the MB Financial, Inc. Amended and
Restated Omnibus Incentive Plan and in a Restricted Stock agreement dated
_____________. A copy of the Plan and such Restricted Stock Agreement
may be obtained from the Chief Financial Officer of MB Financial,
Inc.”
The
Grantee further agrees that simultaneously with his/her execution of this
Agreement, he/she shall execute a stock power endorsed in blank in favor of the
Company with respect to the Shares and he/she shall promptly deliver such stock
power to the Company.
14. Electronic
Signature. All
references to signatures and delivery of documents in this Agreement may be
satisfied by procedures the Company has established or may establish from time
to time for an electronic system for execution and delivery of any such
documents, including this Agreement. Grantee’s electronic signature,
including, without limitation, “click-through” acceptance of this Agreement
through a website maintained by or on behalf of the Company, is the same as, and
shall have the same force and effect as, Grantee’s manual
signature. Any such procedures and delivery may be effected by a
third party engaged by the Company to provide administrative services relating
to this Agreement.
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MB
FINANCIAL, INC.
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Xxxx
X. York
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Vice
President and Chief Financial Officer
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ACCEPTED:
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Name
of Grantee:
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(Street
Name)
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(City,
State and Zip Code)
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For value
received, I hereby sell, assign, and transfer to MB Financial, Inc. (the
"Company") ______ shares
of the common stock of the Company, standing in my name on the books and records
of the Company, represented by Certificate No. , and do hereby
irrevocably constitute and appoint the Secretary of the Company attorney, with
full power of substitution, to transfer this stock on the books and records of
the Company.
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Name
of Grantee:
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Dated:
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In
the presence of:
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MB
FINANCIAL, INC.
TARP
ADDENDUM TO RESTRICTED STOCK AGREEMENT
Additional Terms and
Conditions Applicable to July 22, 2009 Award
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The
purpose of this TARP Addendum to Restricted Stock Agreement (“TARP
Addendum”) is to incorporate into the terms of the Restricted Stock
Agreement (“Agreement”), to which this Addendum is attached and hereby
incorporated therein, provisions necessary to ensure compliance by the
Company and Grantee with the applicable requirements of Section 111 of the
Emergency Economic Stabilization Act of 2008 (“EESA”), as amended by the
American Recovery and Reinvestment Act of 2009 (the “ARRA”), as such
requirements are implemented by rules, regulations or other guidance
issued by the U.S. Department of Treasury from time to time, including,
but not limited to, the Interim Final Rule published June 15, 2009 (the
“IFR”) (the provisions of EESA, as amended by ARRA, as implemented by the
IFR, together with such amendments or modifications thereto and any other
rules, regulations or guidance relating thereto as may be published from
time to time are referred to herein, collectively, as the “TARP
Requirements”). To the extent not otherwise defined in the
Agreement or this TARP Addendum, capitalized terms shall have the meaning
ascribed to such term in the IFR. References to “Q-xx” in this
TARP Addendum are references to the corresponding question and answer
section in the IFR as may be amended.
In
the event all or any portion of the provisions of the Agreement is found
to be in conflict with any applicable TARP Requirements, then in such
event this award and the provisions of the Agreement shall be subject to
and automatically modified by this TARP Addendum to reflect such TARP
Requirements and this award and the Agreement shall be interpreted and
administered accordingly.
As
a condition of receiving this award of Shares of Restricted Stock, Grantee
acknowledges and agrees that (A) this award is and shall remain
subject to any applicable TARP Requirements, (B) this award is
subject to modification in order to comply with applicable TARP
Requirements, and (C) Grantee agrees to immediately repay any amounts
that may have been received by Grantee under this award that are later
determined to be in conflict with any applicable TARP
Requirements.
In
furtherance of and without limiting the foregoing, the Shares of
Restricted Stock awarded under the Agreement shall be subject to the
provisions set forth below in this TARP Addendum.
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This
TARP Addendum and the TARP Requirements are only applicable to this award
if (A) Grantee is or becomes a Most Highly Compensated Employee of the
Company whose compensation is subject to the limitations on paying or
accruing any bonus, retention award and incentive compensation, described
in Section 111(3)(D) of EESA, as amended by ARRA, and Q-1 (Sec. 30.1) and
Q-10 (Sec. 30.10), prior to the date the Shares of Restricted Stock become
vested and transferable under the terms of the Agreement (such limitations
the “Bonus Limitations”), (B) Grantee is a Senior Executive Officer
or a Most Highly Compensated Employee of the Company with respect to whom
the Company is prohibited from making any golden parachute payment
described in Section 111(3)(C) of EESA, as amended by ARRA, and Q-1 and
Q-9 (Sec. 30.9) (such prohibition the “Golden Parachute Prohibition”), or
(C) TARP Requirements otherwise apply to this award to
Grantee.
To
the extent the TARP Requirements are not and do not become applicable to
Grantee for the reasons described above, then this TARP Addendum and the
TARP Requirements shall not apply to this award and Grantee’s rights to
the Shares shall be governed solely by the terms of the Agreement without
regard to this TARP Addendum.
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To
the extent the granting of this award or Grantee’s rights to the accrual
or payment (within the meaning of the TARP Requirements) of all or any
portion of the Shares covered by this award are subject to the Bonus
Limitations, this award shall be an award of Long-Term Restricted Stock
described in Q-1 intended to satisfy the TARP Requirements.
To
the extent required to comply with the TARP Requirements, the Shares of
Restricted Stock covered by this award shall, to the extent applicable,
(A) be subject to reduction, as more particularly
described below, to such number of Shares as is necessary so
that the value of the Shares of Restricted Stock granted to Grantee
hereunder does not exceed the limitations set forth in Q-10(e), (B) not
become vested to the extent such vesting is not permitted by the TARP
Requirements, (C) be subject to a Restricted Period (as defined under the
Agreement) of not less than two years (except for death, disability or a
change in control event (under Treas. Reg. Section 1.409A-3(i)(5)(i)) and
(D) to the extent otherwise vested, not become transferable earlier than
permitted under the schedule set forth in Q-1 (under the definition of
Long-Term Restricted Stock) pertaining to redemption by the Company of all
or a certain portions of the preferred stock issued to the U.S. Treasury
under EESA (or for certain merger or acquisition
transactions).
The
reduction described in clause (A) above shall be equal to the excess, if
any, by which the aggregate value of the Shares (determined as of the date
of grant) exceeds one-third of Grantee’s total annual compensation for the
fiscal year of the grant. If such excess occurs, then, except as provided
below, without any further action by the Company or Grantee, the number of
Shares of Restricted Stock covered by this award shall be reduced by the
number of Shares (rounded up to the nearest whole Share) determined by
multiplying the number of Shares covered by the ratio of the amount by
which such aggregate value exceeded one-third of Grantee’s total annual
compensation to the aggregate value of the Shares as of the date of
grant. Such reduction shall be effective and such excess Shares
shall be cancelled as of December 31 of the fiscal year of the date of
grant. The foregoing determinations shall be made in accordance
with the provisions of Q-10(e). In the event Grantee received
other grants of restricted stock during the year, then the determinations
described above shall be made on a cumulative basis and the reduction, if
any, shall be applied pro rata across all such awards.
The
reduction described above shall only occur if Grantee was subject to the
Bonus Limitations on the date of grant.
In
the event Grantee is not subject to the Bonus Limitations on the date of
grant, but becomes subject to the Bonus Limitations prior to becoming
vested in the Shares pursuant to the terms of the Agreement, then (i) that
portion of this award, if any, that would have been reduced if Grantee had
been subject to the Bonus Limitations on the date of grant shall not be
considered a Long-Term Restricted Stock award and (ii) the remaining
portion of this award shall continue to be treated as a Long-Term
Restricted Stock award hereunder respecting the remaining portion of the
Restricted Period on and following the date Grantee becomes subject to the
Bonus Limitations.
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The
Shares shall vest in accordance with the provisions of the Agreement;
provided, however, that in the event Grantee is subject to the Golden
Parachute Prohibitions at the time of Grantee’s termination of employment
or a change in control (as provided under Q-1 and Q-9), then provisions of
the Agreement relating to the vesting of the Shares in such circumstances
shall apply only to the extent permitted by the TARP
Requirements.
In
the event Grantee was not subject to the Bonus Limitations on the date of
grant of the award but becomes subject to the Bonus Limitations prior to
becoming vested in the Shares pursuant to the terms of the Agreement, then
the vesting of that portion (if any) of the Shares that is not a Long-Term
Restricted Stock award shall be limited to the extent necessary to comply
with the Bonus Limitations as described in Q-10 and the above provisions
of this TARP Addendum.
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Grantee
understands and acknowledges that the Shares covered by the award may
become taxable to Grantee prior to the date transfer of such Shares is
permitted under the TARP Requirements. In such event and as permitted by
TARP Requirements, Shares having a fair market value equal to the minimum
required statutory tax withholding shall be withheld from the award in
satisfaction of such tax withholding. Grantee acknowledges that such
withholding shall not be permitted if Grantee is subject to the Bonus
Limitations on the date of grant and Grantee makes a Section 83(b)
election to be taxed on the value of the Shares on that date.
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