RICHARD M. RIESER SEPARATION AND SETTLEMENT AGREEMENT AND MUTUAL RELEASEEmployment Agreement |
|
|
You are currently viewing: This Employment Agreement involves
MB Financial, Inc. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
|
RICHARD M. RIESER
SEPARATION AND SETTLEMENT AGREEMENT
AND MUTUAL RELEASE
This
Separation and Settlement Agreement and Mutual Release (this
“ Agreement ”) is made this 23rd day
of October, 2007, by and between Richard M. Rieser (the
“ Executive ”) and MB Financial, Inc.
(the “ Company ”) concerning the
Executive’s termination of employment with the
Company.
WHEREAS,
the Company and the Executive entered into that certain
Employment Agreement dated as of August 25, 2006, (the “
Employment Agreement ”);
WHEREAS,
the Company and Executive have legitimate disagreements with
respect to the duties and responsibilities of the Executive
and differences of opinion regarding the direction of the
Company and the parties are hereby entering into this
Agreement as an arm’s length settlement of a bona fide
dispute with respect to the rights and obligations of the
parties, including with respect to the terms and conditions of
the Employment Agreement; and
WHEREAS,
the Company and the Executive intend that this Agreement shall
be in complete settlement of all rights of the Executive under
the Employment Agreement or otherwise relating to his
employment by the Company.
NOW
THEREFORE, in consideration of the mutual promises and
agreements set forth below, the Company and the Executive
agree as follows:
1.
Termination . The Executive’s employment with
the Company will terminate effective as of the close of business on
October 23, 2007 (the “ Termination Date ”) and
the Executive will continue to be paid his current monthly salary,
expense reimbursements and other employee benefits through the
Termination Date.
2.
Resignation . The Executive hereby agrees to resign
as the Vice Chairman, Executive Vice President and Chief Marketing
and Legal Strategist of the Company and from all other officer,
director and other positions with the Company and all of its
affiliates effective as of the close of business on the Termination
Date. Executive agrees to execute a letter of
resignation, in the form attached hereto as
Exhibit A.
3.
Settlement Payment . The Executive shall receive a
settlement payment from the Company in the aggregate gross amount
of Three Million Nine Hundred and Sixty-Five Thousand Dollars
($3,965,000.00), to be paid in a single lump sum cash payment (the
“ Settlement Payment ”) on April 24, 2008 (the
“ Payment Date ”).
4.
Restricted Stock and Restricted Stock Units
. Effective as of the Termination Date, the Executive
shall become fully vested in (i) the 5,551 shares of Restricted
Stock granted on August 25, 2006, and (ii) the 5,604 Restricted
Stock Units granted on August 25, 2007. The Restricted
Stock Units shall be settled on the Payment Date in an equal number
of shares of unrestricted common stock of the Company.
5.
Stock Options . Effective as of the Termination
Date, the Executive shall become fully vested in all unvested
outstanding stock options awarded under any plan or program
maintained by the Company or any of its affiliates or
predecessors. All outstanding options which are vested
as of the Termination Date shall continue to be exercisable per the
terms of the applicable plan and award documents; provided,
however , that for purposes of determining the expiration of
such options, the Executive’s termination hereunder shall be
deemed a “Retirement” per the terms of such
options.
6.
Supplemental Pension Benefit Agreement . The Company
shall honor the terms and conditions of the First Oak Brook Bank
(“ FOBB ”) Supplemental Pension Benefit
Agreement, as required by Section 19 of the Employment
Agreement. The estimated benefits thereunder shall be
calculated by the Company’s independent auditors or actuaries
and a report shall be delivered to Executive within 5 calendar days
of the Termination Date. In calculating the benefits
thereunder, (i) the credited years of service shall be 20, (ii) the
accrual fraction shall be 100%, (iii) the “Final Base
Salary” as used therein shall be $775,000, and (iv) the
mortality tables and interest rates described in Code Section
417(e)(3)(A)(ii) shall be used, based on October 1,
2007. The actual benefit shall be based upon the
foregoing assumptions, but shall use the applicable rate on
December 1, 2007. The supplemental benefit shall be a
monthly life and 15 year certain annuity paid on a monthly basis
commencing January 1, 2008, subject to the limitations of Section
22 of this Agreement. To
the extent necessary under the transitional guidance under Internal
Revenue Service (“IRS”) Notice 2007-86, this Agreement
constitutes an amendment to the Supplemental Pension Benefit
Agreement, and a new election thereunder, to properly modify the
time or manner of payment under a deferred compensation
plan.
7.
Agreement Regarding Post-Employment Restrictive Covenants
. The Company and the Executive shall honor the terms
and conditions of the Agreement Regarding Post-Employment
Restrictive Covenants, dated October 19, 1994. The
restrictive covenants, as provided therein shall lapse on October
24, 2009. The payments to be made to the Executive
thereunder shall be paid on an annual basis commencing November 1,
2007, subject to the limitations of Section 22 of this Agreement. To the extent
necessary under the transitional guidance under IRS Notice 2007-86,
this Agreement constitutes an amendment to the Agreement Regarding
Post-Employment Restrictive Covenants, and a new election
thereunder, to properly modify the time or manner of payment under
a deferred compensation plan.
8.
Executive Deferred Compensation Plan . The
Company shall honor the terms and conditions of the FOBB Executive
Deferred Compensation Plan. Subject to the limitations
of Section 22 of this Agreement, the
distribution of post-2004 amounts thereunder (amounts subject to
Code Section 409A) shall be paid in a lump within 90 days of the
Termination Date. The distribution of pre-2005 amounts
thereunder shall be paid in substantially equal monthly
installments over 5 years, commencing on November 1, 2007, in
accordance with the elections currently in effect with respect to
such amounts.
9.
Medical Benefits . The Company shall provide the
“Post-Employment Health Benefit” pursuant to Section
5(c) of the Employment Agreement, subject to the terms, conditions
and limitations stated therein; provided, however , that
the limitations of subsection (y) thereunder shall only begin to
apply with respect to amounts expended by the Company on and after
October 24, 2009, and the Company shall bear such costs prior to
such date on the same basis as in effect immediately prior to the
Termination Date, and; provided, further , that Executive
and his spouse will use best efforts to obtain Medicare and
Medicare “supplemental coverage” (of their choosing) as
soon as they are eligible to do so.
10.
Termination of Benefits . Except as specifically
provided in this Agreement with respect to plans or arrangements
specifically identified in this Agreement, the Executive’s
continued participation in all compensation plans will cease as of
the Termination Date. Nothing contained herein shall
limit or otherwise impair Executive’s right to receive
pension or similar benefit payments which are vested as of the
Termination Date under any applicable pension or other benefit plan
(whether or not tax-qualified).
11.
Company Stock . Upon Executive’s written
instructions, the Company shall use its best efforts to perform all
necessary actions required by the Company, and shall promptly use
its best efforts to cause its transfer agent and legal counsel to
perform all necessary actions required by them as soon as
reasonably practicable to effect either (i) the transfer of shares
of common stock owned of record by Executive (or his immediate
family members), whether or not held in certificate form, with or
without restrictive legends, to accounts maintained by a bank or
broker for the benefit of the Executive (or such immediate family
member), where after such transfer(s) no legends or stop order
instructions shall be attributable to such shares, or (ii) the
exchange of certificated shares of common stock of the Company held
by the Executive (or his immediate family members) for replacement
certificates with no legends or restrictions
thereon. Executive hereby agrees and acknowledges that
any sales of Company stock must be in compliance with all
securities rules and regulations, including without limitation,
Rules 144 and 145 under the Securities Act of 1933 (the
“Securities Act”), as may be in effect at the time of
sale. The Company hereby represents that it will use its
best efforts to maintain current filings with the Securities and
Exchange Commission, as contemplated by paragraph (c)(i) of Rule
144 under the securities Act, during all such periods as Executive
may be subject to Rule 145 under the Securities Act.
12.
Office and Secretarial Support . In connection with
the services the Executive is providing pursuant to Section
15 of this Agreement, the Company
shall continue to provide Executive with his current office and
secretarial support (or well-qualified replacement), through May
31, 2008, including all appropriate office supplies, equipment and
services (e.g., computer, scanner, fax, copier, phone, email
account, etc.) as if Executive were employed by the
Company. To the extent that the computer equipment and
email account provided to Executive are outside and not connected
to or accessing the Company’s systems, then the Company shall
take all reasonable steps to ensure that the Executive is
immediately forwarded all email communications relating to services
to be performed by the Executive under Section 15 regarding the 60 W. Erie litigation matters
and, for a period of 30 days following the Termination Date, all
non-Company related email directed to the Executive. In
addition, the Company shall copy and or migrate all of the
electronic contact information in Executive’s computer system
to the system he will be provided immediately following the
Termination Date.
13.
Departure Party . The Company shall provide
reasonable funding for a departure party for the Executive, with
the attendance list and arrangements to be made by the
Executive.
14.
Releases . As part of this Agreement, and in
consideration of the benefits provided hereunder, the parties are
each required to execute a General Release and Waiver (a “
Release ”) and deliver the Release following the
Termination Date. This Agreement (including all
Exhibits to this Agreement), and the commitments and
obligations of all parties hereunder:
(a)
shall
become final and binding on the Termination Date, subject only to
Executive’s execution and delivery of the Release, in the
form set forth at Exhibit B-1, to the Company on the Termination
Date and the expiration of the Executive’s right to revoke
the execution of the Release in accordance with Section
3(c) of the Release; and
(b)
shall
not become final and binding if Executive revokes such
execution.
(c)
At
such time as Executive delivers the Release above, the Company
shall execute a Release, in the form set forth at Exhibit B-2, and
shall deliver such Release to Executive.
15.
Assistance with Claims . Subject to continued
indemnification provided in Section 23
of this Agreement, the Executive agrees to reasonably cooperate
with the Company or any affiliate in the prosecution, defense or
evaluation of any pending or potential claims or proceedings
involving or affecting the Company or any affiliate with respect to
the 60 W. Erie litigation matters; provided, that such activities
do not unreasonably interfere with Executive’s full-time
employment entered into after the Termination Date, where such
assistance is to be provided in a manner substantially similar to
such services provided by the Executive prior to the Termination
Date. Executive will make himself available for the
foregoing from time to time as reasonably required or as reasonably
requested by the Company without additional consideration for such
time. Consistent with the Company’s policy for
Executive’s expense reimbursement (as in effect prior to the
Termination Date), promptly upon the receipt of the
Executive’s written request, the Company agrees to reimburse
the Executive for all reasonable out-of-pocket expenses associated
with such cooperation, including, without limitation, attorneys
fees, meals, lodging, air travel and ground transportation
expenses.
16.
Non-Vilification . The Executive agrees that on and
after the date of this Agreement, he will not make any vilifying
statement about the Company, its officers (limited to
“Section 16” officers of the Company) and directors and
the Company, its officers (limited to “Section 16”
officers of the Company) and directors agree not to make any
vilifying statement about the Executive or Executive’s
employment with the Company; provided, however
, that the provisions of this Section 16 shall not apply to testimony as a witness,
any disclosure required by law to be made by the Company or the
Executive, the assertion of or defense against any claim of breach
of this Agreement and shall not require either party to make false
statements or disclosures. Notwithstanding the
foregoing, upon a breach of this provision by either party, the
non-breaching party shall thereafter be released from the
constraints of this Section 16 and any
otherwise vilifying statement made by the non-breaching party after
such breach shall not constitute a breach of this
Agreement. The non-breaching party shall be entitled to
seek all legal remedies available with respect to such breach and
any failure to do so shall not limit or otherwise waive any rights
with respect to any subsequent breach.
17.
Withholding for Taxes . All benefits and payments
provided to the Executive pursuan
|
SITE SEARCH
AGREEMENTS / CONTRACTS
CLAUSES
| Get Email Updates |
