Exhibit 10.3A
MB Financial Bank,
N.A.
Change in Control Severance
Agreement
This Severance
Agreement , (the “Agreement”) is entered
into as of September 1, 2008 (the “Effective Date”), by
and between MB Financial Bank, N.A., a national banking association
(the “Company”) and Burton J. Field (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.
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“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.
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“Base
Salary” means the average annual salary received by the
Executive during the 24-month period immediately preceding the
Effective Date of Termination.
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“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.
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“Beneficiary” means the persons or entities designated
or deemed designated by the Executive pursuant to
Section 8.2 herein.
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“Board”
means the Board of Directors of the Company.
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(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 Executive 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.
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“Code”
means the Internal Revenue Code of 1986, as amended.
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“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.
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“Compensation
Committee” means the Compensation Committee of the Board of
Directors of the Parent Company.
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“Director” means a member of the Board or of the Parent
Board, as the case may be.
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“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.
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“Effective
Date of Termination” means the date on which a Qualifying
Termination occurs which triggers Severance Benefits hereunder.
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“Exchange
Act” means the Securities Exchange Act of 1934, as amended
from time to time, or any successor to it.
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“Expiration
Date” means the date the Agreement expires, as provided in
Section 1.1 herein.
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“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
Executives 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.
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“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.
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“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.
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“Parent
Board” means the Board of Directors of the Parent.
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“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.
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“Qualifying
Termination” means any of the events described in Section
3.2, the occurrence of which triggers the payment of Severance
Benefits.
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“Severance
Benefit” means the payment of severance compensation as
provided in Article III.
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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 provis
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