EXHIBIT 10.4B
MB FINANCIAL BANK,
N.A.
Change In Control Severance
Agreement
THIS SEVERANCE
AGREEMENT , (the “
Agreement ”) is entered into as of December 5,
2008 (the “ Effective Date ”), by and between MB
Financial Bank, N.A., a national banking association (the “
Company ”) and the undersigned officer (the “
Executive ”);
WITNESSETH THAT:
WHEREAS , the Executive is employed by the Company, and
the Company desires to provide protection to Executive in
connection with any change in control of the Company.
NOW , THEREFORE , it is hereby agreed by and
between the parties, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, as
follows:
ARTICLE I
ESTABLISHMENT AND PURPOSE
1.1
Term of the
Agreement . Unless expired earlier as provided
in Section 1.3 or terminated by the Company pursuant to
Section 2.4 , this Agreement will commence on the
Effective Date and remain in effect for an initial term of three
years which will be automatically extended for one year on each
anniversary of the Effective Date. In addition, if a Change in
Control occurs while this Agreement is effective, this Agreement
will remain irrevocably in effect for the greater of twenty four
months from the date of the Change in Control or until all benefits
have been paid to the Executive hereunder, and will then
expire.
1.2
Purpose of the
Agreement . The purpose of this Agreement is to
advance the interests of the Company by providing the Executive
with an assurance of equitable treatment, in terms of compensation
and economic security, in the event of an acquisition or other
Change in Control of the Company. An assurance of
equitable treatment will enable the Executive to maintain
productivity and focus during a period of significant uncertainty
that is inherent in an acquisition or other Change in
Control. Further, the Company believes that agreements
of this kind will aid it in attracting and retaining the highly
qualified, high performing professionals who are essential to its
success.
1.3
Contractual Right to
Benefits . This Agreement establishes and
vests in the Executive a contractual right to the benefits to which
he or she is entitled hereunder, enforceable by the Executive
against the Company. However, nothing in this Agreement
will require or be deemed to require the Company to segregate,
earmark, or otherwise set aside any funds or other assets to
provide for any payments to be made under it.
Subject to Section 3.2 ,
the Company will retain the right to terminate the
Executive’s employment at any time prior to a Change in
Control of the Company. If the Executive’s
employment is terminated prior to a Change in Control of the
Company, this Agreement will no longer be applicable to the
Executive, and any and all rights and obligations of the Company
and the Executive under this Agreement will
cease. Notwithstanding the foregoing, if the effective
date of a Change in Control occurs within six months following the
effective date of an involuntary termination without Just Cause,
the Executive’s termination may be deemed to be a Qualifying
Termination pursuant to Section 3.2 of this Agreement
as of the date of the Change in Control.
ARTICLE II
DEFINITIONS AND CONSTRUCTION
2.1
Definitions
. Whenever used in the
Agreement, the following terms have the meanings set forth below
and, when the meaning is intended, the initial letter of the word
is capitalized.
(a) “
Average Annual Bonus ” means the
Executive’s actual average annual bonus earned over the two
complete fiscal years prior to the Effective Date of Termination,
or, if shorter, over the Executive’s entire period of
employment. However, if the Executive’s period of
employment is less than one year, the average bonus will be
considered zero.
(b) “
Base Salary ” means the base rate of
compensation paid to the Executive as annual salary, excluding
amounts received under incentive or other bonus plans, as in effect
as of the Effective Date of Termination. Notwithstanding
the foregoing, if the Executive’s Base Salary was reduced
within twenty-four months of the Effective Date of Termination,
then “Base Salary” will mean the Executive’s
annual Base Salary as in effect immediately prior to the
reduction.
(c) “
Beneficial Owner ” has the meaning ascribed to that
term in Rule 13d-3 of the General Rules and Regulations under the
Exchange Act, namely, any person, who directly or indirectly,
through any contract, arrangement, understanding or otherwise, has
or shares voting power, which includes the power to vote or direct
the voting of securities, and/or investment power, which includes
the power to dispose of, or direct the disposition of, a
security.
(d) “
Beneficiary ” means the persons or entities designated
or deemed designated by the Executive pursuant to
Section 8.2 herein.
(e) “
Board ” means the Board of Directors of the
Company.
(f) The term “
Change in Control ” means (1) any Person is or
becomes the Beneficial Owner directly or indirectly of securities
of the Parent or the Company representing 35% or more of the
combined voting power of the Parent’s or the Company’s
outstanding securities entitled to vote generally in the election
of directors; (2) individuals who were members of the Parent
Board on the Effective Date (the “ Incumbent Parent
Board ”) cease for any reason to constitute at least a
majority thereof, provided that any person becoming a member of the
Parent Board subsequent to the Effective Date (a) whose
appointment as a director by the Parent Board was approved by a
vote of at least three quarters of the directors comprising the
Incumbent Parent Board, or (b) whose nomination for election
as a member of the Parent Board by the Corporation’s
stockholders was approved by the Incumbent Parent Board or
recommended by the nominating committee serving under the Incumbent
Parent Board, shall be considered a member of the Incumbent Parent
Board; (3) consummation of a plan of reorganization, merger or
consolidation involving the Parent or the Company or the securities
of either, other than (a) in the case of the Parent, a
transaction at the completion of which the stockholders of the
Parent immediately preceding completion of the transaction hold
more than 60% of the outstanding securities of the resulting entity
entitled to vote generally in the election of its directors or
(b) in the case of the Company, a transaction at the
completion of which the Parent holds more than 50% of the
outstanding securities of the resulting institution entitled to
vote generally in the election of its directors;
(4) consummation of a sale or other disposition to an
unaffiliated third party or parties of all or substantially all of
the assets of the Parent or the Company or approval by the
stockholders of the Parent or the Company of a plan of complete
liquidation or dissolution of the Parent or the Company; provided
that for purposes of clause (1), the term “Person”
shall not include the Parent, any employee benefit plan of the
Parent or the Company, or any corporation or other entity owned
directly or indirectly by the stockholders of the Parent in
substantially the same proportions as their ownership of stock of
the Parent. Each event comprising a “Change in
Control” is intended to constitute a “change in
ownership or effective control,” or a “change in the
ownership of a substantial portion of the assets,” of the
Parent or the Company as such terms are defined for purposes of
Section 409A of the Code and “Change in Control”
as used herein shall be interpreted consistently
therewith.
(g) “
Code ” means the Internal Revenue Code of 1986, as
amended.
(h) “
Company ” means MB Financial Bank, N.A., a national
banking association, or any successor thereto that adopts the
Agreement, as provided in Section 8.1
herein.
(i) “
Compensation Committee ” means the Compensation
Committee of the Board of Directors of the Parent
Company.
(j) “
Director ” means a member of the Board or of the
Parent Board, as the case may be.
(k) “
Disability ” means a physical or mental condition that
would entitle the Executive to benefits under the Company’s
long-term disability plan, or if the Company maintains no such
plan, then under the federal Social Security laws.
(l) “
Effective Date of Termination ”
means the date on which a Qualifying Termination occurs which
triggers Severance Benefits hereunder.
(m) “
Exchange Act ” means the Securities Exchange
Act of 1934, as amended from time to time, or any successor to
it.
(n) “
Expiration Date ” means the date the Agreement
expires, as provided in Section 1.1 herein.
(o) “
Good Reason ” means (i) the occurrence of
a ten percent or greater reduction in the aggregate value of the
Executive’s annual Base Salary, bonus opportunity, and
benefits excluding profit sharing; (ii) the assignment to the
Executive of any duties inconsistent with, and commonly (in the
banking industry) considered beneath, the Executive’s
position, or a change in the Executive’s status, offices,
titles and reporting relationships, authority, duties or
responsibilities, or any other action by the Company, in each case
if the assignment, change or action results in a significant
diminution in the Executive’s position, authority, duties or
responsibility; or (iii) a required relocation of the
Executive to a location more than fifty miles from the
Executive’s then existing job location to which the Executive
does not consent to in writing. In determining whether
an assignment, change or action described in clause (ii) above
constitutes Good Reason, due consideration will be given to the
size of the organization and other facts and circumstances
surrounding the Executive’s situation before and after the
assignment, change or action. For example, if the
Executive is moved to a position that carries a title generally
considered to be of a lower degree, but he or she is working in a
larger division or company than before the change, has more
employees reporting to him or her, or has authority for projects
controlling more dollars, or if other circumstances exist that
suggest the Executive’s new position is not a demotion, then
Good Reason will not exist for the Executive to terminate his or
her employment.
(p) “ Just
Cause ” means a termination of the Executive’s
employment by the Company, for which no Severance Benefits are
payable, as provided in Article IV.
(q) “
Parent ” means MB Financial, Inc., a Maryland
corporation, or any direct parent of a successor of the Company
that adopts the Agreement as provided in Section 8.1
.
(r) “ Parent
Board ” means the Board of Directors of the
Parent.
(s) “
Person ” means a natural person, company, or
government, or a political subdivision, agency, or instrumentality
of a government, including a “group” as defined in
Section 13(d) of the Exchange Act. When two or more
persons act as a partnership, limited partnership, syndicate or
other group for the purpose of acquiring the securities of the
Company, they will be deemed a Person for purposes of the
Agreement. “Person” will be construed in the
same manner as under Section 3(a)(9) of the Exchange Act, and
“group” will be construed in the same manner as under
Section 13(d) of the Exchange Act.
(t) “
Qualifying Termination ” means any of the events
described in Section 3.2 , the occurrence of which
triggers the payment of Severance Benefits.
(u) “
Severance Benefit ” means the payment of severance
compensation as provided in Article III.
2.2
Gender and
Number . Except where otherwise indicated by
the context, any masculine term used herein also includes the
feminine, the plural includes the singular, and the singular
includes the plural.
2.3
Severability
. If any provision of
this Agreement is held to be illegal or invalid for any reason, the
illegality or invalidity will not affect the remaining parts of
this Agreement, and this Agreement will be construed and enforced
as if the illegal or invalid provision had not been
included.
2.4
Amendment or
Termination . The provisions of this Agreement
may be amended by written agreement between the Company and the
Executive, with any material amendment approved by the Compensation
Committee or the Board. Subject to the final sentence of
Section 1.1 , the Company may terminate this Agreement
by written resolution of the Compensation Committee or the Board,
effective as of a date at least twelve months following the date
the Company gives written notice to the Executive of its intent to
terminate the Agreement.
2.5
Applicable Law
. To the extent not
preempted by the laws of the United States, the laws of the State
of Illinois, without regard to its conf
