SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
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This Second Amendment to Employment Agreement is made this 31st day of
January, 2000, by and between WINTRUST FINANCIAL CORPORATION ("Wintrust"), an
Illinois banking company and XXXXXX X. XXXXXX, an individual resident in the
State of Illinois ("Executive").
WITNESSETH THAT:
WHEREAS, Wintrust and Executive have previously entered into an
Employment Agreement, dated the 22nd day of December, 1998, which was amended by
the First Amendment to Employment Agreement dated May 22, 1999 (the "Employment
Agreement"); and ;
WHEREAS, concurrently with the execution of this Second Amendment,
Wintrust, in consideration of the outstanding efforts of the Executive on behalf
of Wintrust, has entered into a secured loan transaction (the "Loan") with
Executive and, in consideration of the Executive's continued employment with
Wintrust, the parties hereto desire to amend the Employment Agreement to provide
for additional consideration payable to Executive relating to the Loan.
NOW, THEREFORE, the Employment Agreement is amended as follows:
1. Section 2 of the Employment Agreement is amended by the inclusion of
the following sentences at the end of said section:
"In addition to the foregoing, during the term of this
Employment Agreement, Wintrust shall pay Executive a special
annual bonus in a gross amount equal to the annual accrued
interest on that certain Note made by Executive dated January
31, 2000 and payable to Wintrust in the principal amount of
$1,200,000.00 (the "Note"). This special bonus shall be deemed
paid to the Executive one business day prior to each
anniversary of the date of the Note, including the due date of
the Note. This bonus shall apply only to interest accruing on
the Note prior to the due date of the principal balance of the
Note, including any accelerated maturity of the principal of
the Note. The bonus shall be subject to applicable employment
withholding taxes." This special bonus shall be considered
part of Executive's aggregate benefits.
2. Section 9(d) of the Employment Agreement is amended to read as
follows:
d. Termination Without Cause. In the event Executive's employment
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is terminated without Cause (as such term is defined in
Section 9(h) hereof) by Wintrust other than upon the
expiration of the initial term or the expiration of any
succeeding one (1) year term of this Agreement,
Wintrust shall pay Executive (a) a special severance payment
equal to all accrued interest then due and owing on the Note,
and (b) Severance Pay in an amount equal to two (2) times the
sum of (i) Executive's base annual salary in effect at the
time of Executive's termination plus (ii) an amount equal to
any bonuses paid to Executive during the twelve (12) month
period prior to termination (excluding, however the special
bonus described in the last four sentences of Section 2
hereof). Severance Pay under this Section 9(d) shall be paid
to the Executive ratably over a twenty-four (24) month period
beginning on the first payroll period following such
termination and on each payroll period thereafter during the
twenty-four (24) month Severance Pay period. The amount of
Severance Pay under this Section 9(d) shall be reduced by any
income earned by Executive, whether paid to Executive
immediately or deferred until a later date, during the
twenty-four (24) month Severance Pay period from employment or
any sort, including without limitation full, part time or
temporary employment or work as an independent contractor or
as a consultant. Executive agrees to promptly notify Wintrust
if he obtains employment of any sort during the twenty-four
(24) month Severance Pay period and to provide Wintrust with a
copy of any W-2 or 1099 forms or other payroll or income
records and a summary of contributions received under any
deferred compensation arrangement. Notwithstanding the
foregoing, Executive's Severance Pay to be paid under this
Section 9(d) shall be not less than an amount to provide
Executive with a monthly payment of $4,166.67 during the
twenty-four (24) month Severance Pay period. All severance
payments provided for in this Section 9(d) shall be net of all
applicable employment withholding taxes.
3. Section 9 of the Employment Agreement is further amended by the
addition of the following new Subsection l to read as follows:
"l. Notwithstanding any other provision of this Section 9, in the
event that within eighteen (18) months of a Change of Control of
Wintrust, Executive terminates employment with the Company for any
reason or Executive is terminated by Wintrust (or the successor
thereto) from employment for any reason other than termination for
Cause, and any amount remains outstanding on the Note, Wintrust (or
the successor thereto) shall pay to Executive, as a special
severance payment, a gross amount equal to all accumulated interest
then owing on the Note. The Company shall pay apply this severance
payment (net of all applicable withholding taxes) to the
outstanding amount of interest then due and owing on the Note. This
special severance payment shall be an addition to the severance
payment due Executive under Section
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9(f) hereof, but will be excluded for the purpose of calculating
the severance payments due to Executive under Section 9(f) hereof.
Such amount will be deemed paid to Executive on the date that the
principal amount of Note becomes payable as the result of
Executive's termination of employment. Wintrust (or the successor
thereto) shall have no obligation to make additional severance
payments under this Section 9(l) to Executive with respect to any
post-maturity interest accruing on the Note arising as the result
of the failure of Executive to pay the principal amount of the
Note when due and payable. The parties hereto agree that this
special severance payment obligation of Wintrust (or its
successor) shall not relieve Executive from its obligations to pay
all accumulated interest and principal on the Note in accordance
with its terms."
4. Section 9 of the Employment Agreement is further amended by the
addition of the following new Subsection (m) to read as follows:
"m. Wintrust reserves the right (but not the obligation) to
maintain key man life insurance or other insurance on the life of
the Executive in the principal amount of the Note, it being
understood that such insurance shall be the property of Wintrust.
If Executive should die while any principal balance remains due and
owing on the Note, Wintrust shall apply the proceeds from such key
man life insurance policy to the principal balance outstanding on
the Note. Wintrust reserves the right to cancel, amend or modify
any such key man life insurance policy."
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Second Amendment to Employment Agreement as of the dates written below.
WINTRUST FINANCIAL CORPORATION: EXECUTIVE:
By: /s/ Xxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Its: Executive Vice President
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Dated: 1/31/2000 Dated: 1/31/2000
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