FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
..
FIRST
AMENDMENT TO EMPLOYMENT AGREEMENT
This
First
Amendment to Employment Agreement (this “Amendment”) is made and entered into
this 22nd
day of
February, 2007 (but effective as of January 1, 2005), by and between MB
Financial, Inc. (the “Corporation”) and Xxxxxxxx Xxxxxx (the
“Executive”).
WHEREAS,
the Executive and the Corporation are parties to that certain Employment
Agreement dated effective January 1, 2003 (the “Employment Agreement”);
and
WHEREAS,
in order to ensure that the Employment Agreement complies with Section 409A
of
the Internal Revenue Code of 1986, as amended, the Executive and the Corporation
wish to amend the Employment Agreement in the manner herein provided.
NOW,
THEREFORE, in consideration of the foregoing, and of the respective agreements
of the parties herein, it is AGREED as follows:
1.
A
new
Section 21 is added to the Employment Agreement, to read as
follows:
"21. Compliance
with Code Section 409A.
(a) General.
It is
intended that this Agreement comply with the provisions of Section 409A of
the
Code and the regulations and guidance of general applicability issued thereunder
(referred to herein as “Section 409A”) so as to not subject the Executive to the
payment of additional interest and taxes under Section 409A. In furtherance
of
this intent, this Agreement shall be interpreted, operated and administered
in a
manner consistent with these intentions, and to the extent Section 409A would
result in the Executive being subject to the payment of additional income taxes
or interest under Section 409A, the parties agree to amend the Agreement in
order to avoid the application of such taxes and interest.
(b) Specific
Provisions.
(1) Termination
of Employment.
For
purposes of Section 7 of this Agreement, no termination of employment shall
be
considered to have occurred unless such termination of employment also qualifies
as a “separation from service” within the meaning of Section
409A.
(2) Delayed Payments. Notwithstanding any provision in the Agreement to the contrary, as needed to comply with Section 409A, if the Executive is a “specified employee” (within the meaning of Section 409A), payments due under Section 7 shall be subject to a six (6) month delay such that amounts otherwise payable during the six (6) month period following the Executive’s separation from service shall be accumulated and paid in a lump-sum catch-up payment as of the first day of the seventh month following the Executive’s separation from service (or, if earlier, the date of the Executive’s death).
(3) Section
162(m) Delays.
Deferred
Payments under Section 4(b) of this Agreement shall be paid upon the earliest
date that the Corporation reasonably anticipates that the deduction of the
payment will not be limited by Code Section 162(m) or the calendar year in
which
the Executive separates from service.
(c) Treatment
as Separation Pay.
This
Section 21 shall not apply to the extent such payments can be considered to
be
separation pay that is not part of a deferred compensation arrangement under
Section 409A. If permitted by Section 409A, cash payments to the Executive
pursuant to Section 7 shall be considered first to come from separation
pay.”
2.
The
terms
of the Employment 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.
3. 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.
Attest: MB
FINANCIAL, INC.
|
/s/
Xxxxx X. Xxxxx
|
By:
/s/ Xxxx X. York
|
|
|
|
Xxxxx
X. Xxxxx
|
Xxxx
X. York
|
|
|
|
Secretary
|
Vice
President and Chief Financial Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EXECUTIVE
|
|
|
|
|
/s/
Xxxxxxxx Xxxxxx
|
|
|
|
|
Xxxxxxxx
Xxxxxx
|
|
|
|
|
President
and Chief Executive
Officer
|
|
|
