Exhbit 10.2
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
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This Second Amendment to Employment Agreement is made this 31st day of
January, 2002, by and between WINTRUST FINANCIAL CORPORATION ("Wintrust"), an
Illinois banking company and XXXXX X. XXXXXXX, 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, 2002 and payable to Wintrust in the principal amount of
$500,000.00 (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 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 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 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
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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/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx
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Its: President Xxxxx X. Xxxxxxx
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Dated: 1/31/02 Dated: 1/31/02
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