MIDWEST BANC HOLDINGS, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS AGREEMENT made as of the _20th__ day of June, 2000, by and between
Midwest Banc Holdings, Inc., a Delaware corporation (the "Company"), and the
undersigned executive (the "Executive").
INTRODUCTION
The Company has agreed to provide supplemental retirement benefits to
certain executives and to enter into individual agreements with the executives
to set forth the terms thereof. Such agreements are intended to encourage the
executive to remain an employee of the Company or one or more of its
Subsidiaries. The Company and the Subsidiaries will pay the benefits from their
general assets. These agreements are intended to constitute an unfunded plan
maintained primarily to provide deferred compensation to a select group of
management or highly compensated employees within the meaning of Sections
201(2), 301(3) and 401(a)(1) of ERISA and regulations issued thereunder.
In furtherance of the foregoing, the Company and Executive agree as
follows:
AGREEMENT
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have
the meanings specified:
1.1 "Accrual Rate" means an interest rate equal to _4__ percent per annum.
1.2 "Agreement" means this Midwest Banc Holdings, Inc. Supplemental
Executive Retirement Agreement entered into between the Company and the
Executive.
1.3 "Benefit Percentage" means _35__ percent.
1.4 "Change of Control" means:
(a) The Company is merged or consolidated or reorganized into or with
another corporation or other legal person (an "Acquiror") and as a result of
such merger, consolidation or reorganization less than 50% of the outstanding
voting securities or other capital interests of the surviving, resulting or
acquiring corporation or other legal person are owned in the aggregate directly
or indirectly by the stockholders of the Company, in substantially the same
proportion of their ownership of stock in the Company immediately prior to such
merger, consolidation or reorganization;
(b) The Company sells all or substantially all of its business and/or
assets to an Acquiror, of which less than 50% of the outstanding voting
securities or other capital interests are owned in the aggregate directly or
indirectly by the stockholders of the Company, in substantially the same
proportion of their ownership of stock in the Company immediately prior to such
sale;
(c) Any person or group (as the terms "person" and "group" are used in
Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934,
("Exchange Act") and the rules and regulations promulgated thereunder) has
become the beneficial owner (as the term "beneficial owner" is defined under
Rule 13d-3 or any successor rule or regulation promulgated under the Exchange
Act) of more than 50% of the issued and outstanding shares of voting securities
of Company, other than (i) a trustee or other fiduciary holding securities under
any employee benefit plan of the Company or any Subsidiary or (ii) a corporation
owned directly or indirectly by the stockholders of the Company in substantially
the same proportion as their ownership of stock in the Company.
(d) Individuals who are members of the Incumbent Board cease to
constitute a majority of the Board of Directors of the Company. For this
purpose, "Incumbent Board" means (i) the members of the Board of Directors of
the Company on the Effective Date and (ii) any individual who becomes a member
of the Board of Directors of the Company after the Effective Date, if such
individual's election or nomination for election as a Director was approved by
the affirmative vote of the then Incumbent Board.
1.5 "Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation thereto.
1.6 "Company" means Midwest Banc Holdings, Inc., a Delaware corporation, as
well as any successor to such entity as provided in Section 10.3 hereof.
1.7 "Compensation Committee" means the Compensation Committee of the
Company's Board of Directors.
1.8 "Disability" means, if the Executive is covered by a Company-sponsored
disability policy, total disability as defined in such policy without regard to
any waiting period. If the Executive is not covered by such a policy, Disability
means the Executive suffering a sickness, accident or injury which, in the
judgment of a physician satisfactory to the Company, prevents the Executive from
performing substantially all of the Executive's normal duties for the Employer.
As a condition to receiving any Disability benefits, the Company may require the
Executive to submit to such physical or mental evaluations and tests as the
Company's Board of Directors deems appropriate.
1.9 "Early Retirement Age" means the Executive's 60th birthday.
1.10 "Effective Date" means June _20__, 2000.
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1.11 "Employer" means the entity from among the Company and the
Subsidiaries that is, or was, the primary employer of the Executive.
1.12 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
1.13 "Executive" means the individual named on this Agreement and on whose
behalf the Agreement is entered.
1.14 "Final Salary" means the highest annual base salary rate paid by the
Company and any Subsidiary to the Executive during the three (3) years ending on
the date of Termination of Employment, or if earlier, the date the Executive
attains Normal Retirement Age.
1.15 "Involuntary Termination of Employment" means, for the purposes of the
Agreement, Termination of Employment by the Employer without Cause (as defined
in Section 1.20 of this Agreement) or by the Executive because of Constructive
Discharge (as defined in Section 1.20 of this Agreement).
1.16 "Normal Retirement Age" means the Executive's 65th birthday.
1.17 "Normal Retirement Date" means the later of the Normal Retirement Age
or Termination of Employment.
1.18 "Plan Year" means a twelve-month period commencing on January 1 and
ending on December 31 of each year. The initial Plan Year shall be a short Plan
Year which shall commence on the Effective Date.
1.19 "Subsidiary" means Midwest Bank and Trust Company, Midwest Bank of
Hinsdale, Midwest Bank of XxXxxxx County, Midwest Bank of Western Illinois,
First Midwest Data Corp, and any other direct or indirect subsidiary of the
Company.
1.20 "Termination of Employment"
(a) For purposes of this Agreement, the term "Termination of Employment"
shall mean (i) termination by the Company and all Subsidiaries of the employment
of the Executive with the Company and all Subsidiaries for any reason including
death, disability or "Cause" (as defined below), or (ii) resignation from
employment with the Company and all Subsidiaries by the Executive for any
reason, including "Constructive Discharge" (as defined below).
(b) "Cause" shall mean, with respect to termination of an Executive's
employment or directorship, the occurrence of any one or more of the following,
as determined by the Committee, in the exercise of good faith and reasonable
judgment:
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(i) In the case where there is no employment, change in control
or similar agreement in effect between the Executive and the Employer at
the time of Termination of Employment, or where there is such an agreement
but the agreement does not define "cause" (or similar words) or a "cause"
termination would not be permitted under such agreement at that time
because other conditions were not satisfied, the termination of an
employment or consulting arrangement due to the willful and continued
failure or refusal by the Executive to substantially perform assigned
duties (other than any such failure resulting from the Executive
Disability), the Executive's dishonesty or theft, the Executive's violation
of any obligations or duties under any employee agreement, or the
Executive's gross negligence or willful misconduct; or
(ii) In the case where there is an employment, change in control
or similar agreement in effect between the Executive and the Employer at
the time of Termination of Employment that defines "cause" (or similar
words) and the occurrence of an event for which resignation for "cause"
would be permitted under such agreement at that time.
No act or failure to act on an Executive's part shall be considered willful
unless done, or omitted to be done, by the Executive not in good faith and
without reasonable belief that his action or omission was in the best
interest of the Company.
(c) The term "Constructive Discharge" shall mean the Executive's
resignation from employment with the Company and all Subsidiaries upon any one
of the following:
(i) In the case where there is an employment, change in control
or similar agreement in effect between the Executive and the Employer at
the time of Termination of Employment that defines "constructive discharge"
(or similar words), the occurrence of an event for which resignation for
"constructive discharge" would be permitted under such agreement at that
time; or
(ii) In the case where there is no employment, change in control
or similar agreement in effect between the Executive and the Employer, or
where there is such an agreement but the agreement does not define
"constructive discharge" (or similar words), or a resignation for
"constructive discharge" would not be permitted at that time because other
conditions were not satisfied, there shall have occurred:
(A) a reduction in the Executive's base salary or annual
bonus opportunity from that in effect immediately prior to the
date of a Change in Control.
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(B) a material diminution in the Executive's title,
duties or responsibilities from those in effect immediately prior
to the date of a Change in Control;
(C) a change by the Employer of the Executive's primary
employment location to a place that is more than 35 miles from
Executive's primary employment location immediately prior to date
of a Change in Control.
1.21 "Year of Service" means a twelve-month period commencing on the
Executive's most recent date of hire by the Company or a Subsidiary and on each
anniversary thereof.
ARTICLE 2
LIFETIME BENEFITS
2.1 Normal Retirement Benefit. Subject to Article 6, upon Termination of
Employment on or after the Normal Retirement Age for reasons other than death,
the Employer shall pay to the Executive the benefit described in this Section
2.1 in lieu of any other benefit under this Agreement.
2.1.1 Amount of Benefit. The annual benefit under this Section 2.1 is an
amount equal to the Executive's Final Salary multiplied by the Benefit
Percentage.
2.1.2 Payment of Benefit. The Employer shall pay the annual benefit to
the Executive in twelve (12) equal monthly installments payable on the first day
of each month commencing with the month following the Executive's Termination of
Employment. The annual benefit shall be paid to the Executive for fifteen (15)
years.
2.1.3 Benefit Increases. Commencing on the first anniversary of the
first benefit payment, and continuing on each subsequent anniversary, the
Company's Board of Directors, in its sole discretion, may increase the benefit.
2.2 Early Retirement Benefit. Subject to Article 6, upon Termination of
Employment (a) on or after the Early Retirement Age but before the Normal
Retirement Age for reasons other than death or Disability and (b) after
completing five continuous years of employment with the Employer or any
Subsidiary after the Effective Date, the Employer shall pay to the Executive the
benefit described in this Section 2.2 in lieu of any other benefit under this
Agreement.
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2.2.1 Amount of Benefit. The annual benefit under this Section 2.2 is
an amount equal to a percentage of the annual benefit that would be payable as
described in Section 2.1.1 above, computed as follows:
AGE AT TERMINATION PERCENTAGE OF
OF EMPLOYMENT SECTION 2.1.1 BENEFIT
------------------ ---------------------
60 years 50%
61 years 60%
62 years 70%
63 years 80%
64 years 90%
65 years 100%
2.2.2 Payment of Benefit. The Employer shall pay the annual benefit to
the Executive in twelve (12) equal monthly installments payable on the first day
of each month commencing with the month following the Executive's Termination of
Employment. The annual benefit shall be paid to the Executive for fifteen (15)
years.
2.3 Early Termination Benefit. Subject to Article 6, upon Termination of
Employment before the Early Retirement Age, for reasons other than death or
Disability, the Employer shall pay to the Executive the benefit described in
this Section 2.3 in lieu of any other benefit under this Agreement.
2.3.1 Amount of Benefit. If the Executive has completed 10 or more Years
of Service and five (5) continuous years of employment with the Employer or any
Subsidiary after the Effective Date, the benefit under this Section 2.3 is the
total liability then accrued on the Employer's records at the time of the
Executive's Termination of Employment. The Early Termination annual benefit
amount is determined by calculating a 15-year fixed annuity from the accrual
balance, crediting interest on the unpaid balance at an annual rate equal to the
Accrual Rate, compounded monthly. If the Executive has completed less than ten
(10) Years of Service or less than five (5) years continuous service after the
Effective Date, the Employer shall pay no benefit under this Section 2.3.
2.3.2 Payment of Benefit. The Employer shall pay the annual benefit to
the Executive in twelve (12) equal monthly installments payable on the first day
of each month commencing with the month following the Executive's Normal
Retirement Date. The annual benefit shall be paid to the Executive for fifteen
(15) years.
2.4 Disability Benefit. Subject to Article 6, if the Executive terminates
employment due to Disability prior to Normal Retirement Age, the Employer shall
pay to the Executive the benefit described in this Section 2.4 in lieu of any
other benefit under this Agreement.
2.4.1 Amount of Benefit. The benefit under this Section 2.4 is an amount
equal to the Executive's Normal Retirement Benefit, calculated under Section 2.1
above, as if the
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Executive remained employed, with no increase in annual base salary through his
Normal Retirement Age.
2.4.2 Payment of Benefit. The Employer shall pay the annual benefit
amount to the Executive in twelve (12) equal monthly installments payable on the
first day of each month commencing with the month following the Executive's
Normal Retirement Date. The annual benefit shall be paid to the Executive for
fifteen (15) years.
2.5 Change of Control Benefit. Subject to Article 6, in the event of the
Executive's Involuntary Termination of Employment for reasons other than death
or Disability following a Change of Control, but prior to Normal Retirement Age,
the Employer shall pay to the Executive the benefit described in this Section
2.5 in lieu of any other benefit under this Agreement.
2.5.1 Amount of Benefit. The benefit under this Section 2.5 is 100
percent of the benefit projected to be earned had the Executive remained
employed through Normal Retirement Age with an annual positive 4% salary
adjustment effective on each anniversary of the Involuntary Termination of
Employment until the Executive reached his Normal Retirement Age.
2.5.2 Payment of Benefit. The Employer shall pay the annual benefit
amount to the Executive in twelve (12) equal monthly installments payable on the
first day of each month commencing with the month following the Executive's
Normal Retirement Date. The annual benefit shall be paid to the Executive for
fifteen (15) years.
2.5.3 Lump Sum Benefit. Notwithstanding Sections 2.1.2, 2.2.2, 2.3.2 or
2.5.2 above, upon a Termination of Employment after a Change in Control, the
Executive may elect to receive a lump sum payment equal to the lump sum present
value of the payments described in Sections 2.1.2, 2.2.2, 2.3.2 or 2.5.2 above,
whichever is applicable, where such present value is to be determined using a
discount rate equal to the applicable federal rate in effect on the date of the
Change in Control for purposes of determining present value of payments subject
to the non-deductibility and excise tax provisions of Section 280G and Section
4999 of the Code, respectively, and regulations thereunder.
ARTICLE 3
DEATH BENEFITS
3.1 Death During Active Service. If the Executive dies while in the active
service of the Employer, the Employer shall pay to the Executive's beneficiary
the benefit described in this Section 3.1. This benefit shall be paid in lieu of
the benefits under Article 2.
3.1.1 Amount of Benefit. The annual benefit under this Section 3.1 is
the total age 65 liability then accrued on the Employer's records at the time of
the Executive's death, or, if later, the total liability accrued on the
Employer's records at the date of his death.
3.1.2 Payment of Benefit. The Employer shall pay the benefit to the
Executive's beneficiary in a lump sum within 60 days following the Executive's
death.
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3.2 Death During Payment of a Lifetime Benefit. If the Executive dies after
any payments have commenced under Article 2 of this Agreement but before
receiving all such payments, the Employer shall pay the remaining benefits to
the Executive's beneficiary at the same time and in the same amounts they would
have been paid to the Executive had the Executive survived.
3.3 Death After Termination of Employment But Before Payment of a Lifetime
Benefit Commences. If the Executive is entitled to a benefit under Article 2 of
this Agreement, but dies after Termination of Employment and prior to the
commencement of said benefit payments, the Employer shall pay the same benefit
payments to the Executive's beneficiary that the Executive was entitled to prior
to death except that the benefit payments shall commence on the first day of the
month following the date of the Executive's death.
ARTICLE 4
LIABILITY FOR BENEFITS
4.1 Primary Obligor. The Employer shall be the primary obligor with respect
to the obligation to pay benefits owing to a Executive under this Agreement.
4.2 Company Guaranty. The Company hereby guarantees the obligations of each
Employer to pay benefits owing to an Executive under this Agreement.
ARTICLE 5
BENEFICIARIES
5.1 Beneficiary Designations. The Executive shall designate a beneficiary
by filing a written designation with the Employer. The Executive may revoke or
modify the designation at any time by filing a new designation. However,
designations will only be effective if signed by the Executive and accepted by
the Employer during the Executive's lifetime. The Executive's beneficiary
designation shall be deemed automatically revoked if the beneficiary predeceases
the Executive, or if the Executive names a spouse as beneficiary and the
marriage is subsequently dissolved. If the Executive dies without a valid
beneficiary designation, all payments shall be made to the Executive's estate.
5.2 Facility of Payment. If a benefit is payable to a minor, to a person
declared incapacitated, or to a person incapable of handling the disposition of
his or her property, the Employer may pay such benefit to the guardian, legal
representative or person having the care or custody of such minor, incapacitated
person or incapable person. The Employer may require proof of incapacity,
minority or guardianship as it may deem appropriate prior to distribution of the
benefit. Such distribution shall completely discharge the Employer from all
liability with respect to such benefit.
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ARTICLE 6
GENERAL LIMITATIONS
6.1 Termination for Cause. Notwithstanding any provision of this Agreement
to the contrary, neither the Company nor any Subsidiary shall pay any benefit
under this Agreement if the Company or any Subsidiary terminates the Executive's
employment for Cause.
6.2 Suicide Misstatement. The Company shall not pay any benefit under the
Agreement if the Executive commits suicide within two years after the Effective
Date.
6.3 Restrictive Covenants.
6.3.1 The Company has agreed to provide benefits under this Agreement in
return for the Executive's acceptance of restrictive covenants set forth in this
Section 6.3. The Executive hereby acknowledges that the benefits provided
hereunder constitute adequate consideration for Executive's obligations under
this Section 6.3.
6.3.2 Neither the Company nor any Subsidiary shall pay any benefit under
this Agreement, and the Executive shall be obligated to repay any lump sum
payment received under this Agreement if, at any time prior to the
_____second____ anniversary of the Termination of Employment of the Executive,
without the prior written consent of the Company and the affected Subsidiary or
Subsidiaries, Executive:
(a) engages in, becomes interested in, directly or indirectly,
as a sole proprietor, as a partner in a partnership, or as a
substantial equity owner in a corporation or other entity, or becomes
associated with, in the capacity of employee, director, officer,
principal, agent, trustee or in any other capacity whatsoever, any
enterprise conducted in the business area (a 35 mile radius) of the
Company or any Subsidiary, which enterprise is, or may deemed to be,
competitive with any business carried on by the Company or any
Subsidiary as of the date of termination of employment; or
(b) either as an individual, on his or her own account, or as an
agent, employee, director, shareholder or otherwise, directly or
indirectly, solicit, induce or encourage, or attempt to solicit,
induce or encourage any customer of the Company or any of its
affiliates not to do business with the Company or any of its
affiliates. For purposes of this paragraph, such customers and such
affiliates shall be limited to those persons or entities which are
customers or affiliates as of the date immediately preceding the date
of the Executive's termination of employment; or
(c) directly or indirectly solicits, induces or encourages any
person who, as of the date immediately preceding the date of the
termination of employment, is an employee of the Company or any of its
affiliates to terminate his or her relationship with the Company or
any of its affiliates.
6.3.3 Executive represents and warrants that:
(a) Executive has read and understands this Agreement;
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(b) Executive has had an opportunity to consult with legal
counsel in connection herewith;
(c) the restraints and agreements herein provided are fair and
reasonable;
(d) enforcement of the provisions of Section 6.3 will not cause
him or her undue hardship; and
(e) that the above restrictions are reasonable in scope and
duration and are the least restrictive means to protect the Company's
and its affiliates' legitimate and proprietary business interests and
property from irreparable harm.
6.3.4 The Employer and the Employee hereby recognize that
the restrictive non compete provisions of Section 6.3.2 have value and
that value shall be recognized in the Section 280 G calculations by an
allocation of the termination benefits between the non compete
provision and the other Termination Benefits based on the value of the
fair market value of the non compete provisions. The Employer shall
make the determination of the fair value to be assigned.
ARTICLE 7
CLAIMS AND REVIEW PROCEDURES
7.1 Claims Procedure. The Company shall notify any person or entity that
makes a claim under this Agreement (the "Claimant") in writing, within 90 days
of Claimant's written application for benefits, of his or her eligibility or
noneligibility for benefits under the Agreement. If the Company determines that
the Claimant is not eligible for benefits or full benefits, the notice shall set
forth (1) the specific reasons for such denial, (2) a specific reference to the
provisions of the Agreement on which the denial is based, (3) a description of
any additional information or material necessary for the Claimant to perfect his
or her claim, and a description of why it is needed, and (4) an explanation of
this Agreement's claims review procedure and other appropriate information as to
the steps to be taken if the Claimant wishes to have the claim reviewed. If the
Company determines that there are special circumstances requiring additional
time to make a decision, the Company shall notify the Claimant of the special
circumstances and the date by which a decision is expected to be made, and may
extend the time for up to an additional 90 days.
7.2 Review Procedure. If the Claimant is determined by the Company not to
be eligible for benefits, or if the Claimant believes that he or she is entitled
to greater or different benefits, the Claimant shall have the opportunity to
have such claim reviewed by the Company by filing a petition for review with the
Company within 60 days after receipt of the notice issued by the Company. Said
petition shall state the specific reasons which the Claimant believes entitle
him or her to benefits or to greater or different benefits. Within 60 days after
receipt by the Company of the petition, the Company shall afford the Claimant
(and counsel, if any) an opportunity to present his or her position to the
Company verbally or in writing, and the Claimant (or counsel) shall have the
right to review the pertinent documents. The Company
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shall notify the Claimant of its decision in writing within the 60-day period,
stating specifically the basis of its decision, written in a manner calculated
to be understood by the Claimant and the specific provisions of the Agreement on
which the decision is based. If, because of the need for a hearing, the 60-day
period is not sufficient, the decision may be deferred for up to another 60 days
at the election of the Company, but notice of this deferral shall be given to
the Claimant.
ARTICLE 8
AMENDMENT AND TERMINATION
8.1 Amendment. This Agreement may be amended or terminated only by a
written agreement signed by the Company and the Executive.
Notwithstanding the previous paragraph in this Article 7, the Company may
amend or terminate this Agreement at any time if, pursuant to legislative,
judicial or regulatory action, continuation of the Agreement would (i) cause
benefits to be taxable to the Executive prior to actual receipt, or (ii) result
in significant financial penalties or other significantly detrimental
ramifications to the Company (other than the financial impact of paying the
benefits).
8.2 Effect of Change in Control.
8.2.1 Notwithstanding any other provision of this Agreement,
following a Change in Control, the provisions or the interpretation or
administration of this Agreement may not be amended or terminated in any
manner which would adversely affect in any way the computation or amount of
or entitlement to benefits under the Agreement as in effect immediately
prior to the Change in Control, including, but not by way of limitation,
any adverse change in or to:
(i) the formula pursuant to which benefits are earned or the
date on which benefits become vested;
(ii) Final Salary recognized under the Agreement for purposes of
determining benefits; or
(iii) the time or manner of payment of benefits available to any
Executive or beneficiary, including the commencement of the benefit
payments or any present value or other factors, including any methods
of accounting, used in determining the amount thereof.
8.2.2 The Employer shall deposit assets equal in value to the
aggregate of all accrued benefits then payable or reasonably expected to be
payable in the future under the Agreement as of the date of such Change in
Control with a bank or corporate trustee pursuant to one or more grantor
trusts in a form satisfactory to the Company and Executive.
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ARTICLE 9
ADJUSTMENT DUE TO EXCISE TAX
9.1 If it is determined (in the reasonable opinion of independent public
accountants then regularly retained by the Employer), that any amount payable to
Executive by Employer under this Agreement or any other plan, program or
agreement under which Executive participates or is a party would constitute an
"Excess Parachute Payment" within the meaning of Code Section 280G (or any
similar provision), subject to the excise tax imposed by Section 4999 of the
Code, as amended from time to time (the "Excise Tax"), then the Amount of
Benefits payable to the Executive under any provision of this Agreement shall be
reduced to the extent necessary so that no portion of the amounts payable to the
Executive is subject to the Excise Tax. Executive shall be responsible for any
and all Excise Tax (or similar taxes imposed upon such payments).
9.2 The determination of the amount of reduction, if any, in the amounts
payable to the Executive shall be made in good faith by the Employer's chief
financial officer after consultation with the advisors then regularly retained
by the Employer, and a written statement setting forth the calculation thereof
shall be provided to the Executive. If amounts payable to the Executive are to
be reduced pursuant to this Article 9, the Executive, in consultation with the
chief financial officer, shall determine the compensation and benefits to be so
reduced.
ARTICLE 10
MISCELLANEOUS
10.1 No Guarantee of Employment. This Agreement is not an employment policy
or contract. It does not give any Executive the right to remain an employee of
the Company or any Subsidiary, nor does it interfere with the Employer's right
to discharge the Executive. It also does not require the Executive to remain an
employee nor interfere with the Executive's right to terminate employment at any
time.
10.2 Non-Transferability. Benefits under this Agreement may not be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
10.3 Reorganization. The Company shall not merge or consolidate into or
with another company, or reorganize, or sell substantially all of its assets to
another company, firm, or person unless such succeeding or continuing company,
firm, or person agrees to assume and discharge the obligations of the Company
under this Agreement. Upon the occurrence of such event, the term "Company" as
used in this Agreement shall be deemed to refer to the successor or survivor
company.
10.4 Tax Withholding. The Company and the Subsidiaries shall withhold any
taxes that are required to be withheld from the benefits provided under this
Agreement.
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10.5 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of Illinois, except to the extent preempted by the laws of
the United States of America.
10.6 Unfunded Arrangement. The Executives and beneficiaries are general
unsecured creditors of the Company and their respective Employers for the
payment of benefits under this Agreement. The benefits represent the mere
promise by the Company and the respective Employers to pay such benefits. The
rights to benefits are not subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by
creditors. Any insurance on the Executive's life is a general asset of the
Company or the Employer to which the Executive and beneficiary have no preferred
or secured claim.
10.7 Administration. The Company shall have powers which are necessary to
administer this Agreement, including but not limited to:
10.7.1 Construing and interpreting the provisions of the Agreement;
10.7.2 Establishing and revising the method of accounting for the
Agreement;
10.7.3 Maintaining a record of benefit payments; and
10.7.4 Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
10.8 Named Fiduciary. The Company shall be the named fiduciary and plan
administrator under this Agreement. It may delegate to others certain aspects of
the management and operational responsibilities including the employment of
advisors and the delegation of ministerial duties to qualified individuals.
10.9 Gender and Number. In the Agreement, wherever the context permits,
words in the masculine gender include the feminine and neuter genders, words in
the singular include the plural and words in the plural include the singular.
10.10 Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Executive as to the subject matter hereof. No rights
are granted to the Executive by virtue of this Agreement other than those
specifically set forth herein.
10.11 Binding Effect. This Agreement shall bind the Executive and the
Company, and their beneficiaries, survivors, executors, successors,
administrators and transferees. The Company shall require any successor to the
Company and any successor to any Employer by merger, consolidation or
combination to expressly assume in writing the obligations of the Company and/or
such Employer hereunder.
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IN WITNESS WHEREOF, the Executive and a duly authorized company Officer
have signed this Agreement on this __28__ day of September 2001, effective as of
the date first written above.
EXECUTIVE: COMPANY:
MIDWEST BANC HOLDINGS, INC., for
itself and its Subsidiaries
__________________________________ By:_____________________________________
Name: Title:__________________________________
