SECOND AMENDMENT To THE TRANSITIONAL employment agreement between FIRST OAK BROOK BANCSHARES, INC. and ROSEMARIE BOUMAN
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SECOND
AMENDMENT
To
THE
TRANSITIONAL
employment agreement between
FIRST
OAK BROOK BANCSHARES, INC. and
XXXXXXXXX
XXXXXX
RECITALS:
WHEREAS,
effective January 26, 0000, Xxxxx Xxx Xxxxx Bancshares, Inc. (“First Oak Brook”)
and Xxxxxxxxx Xxxxxx (the “Executive”) entered into a Transitional Employment
Agreement (the “Agreement”);
WHEREAS,
on August 25, 0000, Xxxxx Xxx Xxxxx was merged (the “Merger”) with and into MBFI
Acquisition Corp. (“Acquisition Corp”), a wholly owned subsidiary of MB
Financial, Inc. (“MBFI”), pursuant to the Agreement and Plan of Merger, dated as
of May 1, 2006, by and among MBFI, Acquisition Corp. and First Oak Brook, and
immediately thereafter, Acquisition Corp. was merged with and into
MBFI;
WHEREAS,
effective August 25, 2006, the Agreement was amended (the “First Amendment”) to
provide that the Executive would be entitled to receive a Retention Amount
in
the aggregate amount of $853,185 (“Retention Amount”), provided that the
Executive remained employed through the end of a specified post-Merger
transitional period (or such earlier date as mutually agreed upon by Executive
and MBFI);
WHEREAS,
notwithstanding the foregoing, it was MBFI’s intention at the time it entered
into the First Amendment that the Executive would be entitled to receive the
full Retention Amount, regardless of whether she remained employed through
the
end of the post-Merger transitional period or her employment terminated for
any
reason prior to the end of the post-Merger transitional period; and
WHEREAS,
in order to better reflect the original intentions of the parties at the time
of
execution of the First Amendment, the parties wish to further amend the
Agreement as provided hereinbelow.
NOW
THEREFORE, in consideration of the premises and of good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
Agreement is hereby amended as follows effective as of August 25,
2006:
1. Appendix
B, which was added to the Agreement by the First Amendment, is amended and
restated in its entirety to read as follows:
“APPENDIX
B
EFFECT
OF MERGER WITH MB FINANCIAL, INC.
This
Appendix B shall become effective upon the effective date (“Effective Date”) of
the merger (the “Merger”) contemplated by that certain Agreement and Plan of
Merger, dated as of May 1, 2006, by and between MB
Financial,
Inc. (“MBFI”), MBFI Acquisition Corp. and First Oak Brook Bancshares, Inc.
Notwithstanding the provisions of this Agreement to the contrary:
(a) During
the post-Merger transitional period (the period ending on the first to occur
of
six months after the systems conversion or the first anniversary of the
Effective Date), MBFI will continue Executive’s employment on substantially the
same economic terms and conditions as in effect at the time of the Merger,
in
such positions, with such duties and authority, as those contemplated by the
post-Merger organization structure communicated by MBFI to its senior officers
as of the Effective Date. In addition, Executive will receive any 2006 bonus
payment in full at the January 2007 payment date, together with all previously
earned and accrued but unpaid annual bonuses. During the post-Merger
transitional period, Executive agrees that she will not have the right to resign
due to “constructive discharge” under the Agreement.
(b) Notwithstanding
the foregoing, regardless of whether Executive remains employed through the
end
of the post-Merger transitional period or her employment terminates for any
reason prior to the end of the post-Merger transitional period, Executive will
be entitled to receive a Retention Amount in the aggregate amount of $853,185
(“Retention Amount”). The Retention Amount is subject to reduction in accordance
with Section 8 of the Agreement, in the event such amount would constitute
an
“excess parachute payment” subject to the 20% excise tax. The Retention Amount
will be paid in a lump sum during the 30-day period following the first
anniversary of the Merger. In the event of Executive’s death while employed
during the post-Merger transitional period or thereafter but prior to full
payment of Executive’s Retention Amount, Executive’s Retention Amount will be
paid to Executive’s surviving spouse or other designated beneficiary. Upon
payment of the Retention Amount, the Agreement shall terminate, provided that
the provisions of Section 11 relating to indemnification shall survive such
termination for legal actions against the Executive based on the performance
or
nonperformance of her duties under the Agreement prior to the Merger. It is
acknowledged and agreed by the Executive that the Retention Amount is in lieu
of
and in complete satisfaction of all of the rights and benefits of the Executive
under the Agreement other than the Executive’s right to indemnification under
Section 11 to the extent provided in this Appendix B.
2. The
terms
of the Agreement as in effect prior to this Second Amendment not amended hereby
shall be and remain in full force and effect and not affected by this
Amendment.
3. This
Second Amendment may be executed in counterparts, each of which shall be an
original and shall together constitute one agreement.
The
parties have executed this Second Amendment on the ___ day of November, 2006,
but effective as of August 25, 2006.
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Executive
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MB
FINANCIAL, INC.
(as successor to First Oak Brook Bancshares, Inc.)
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/s/ Xxxxxxxxx
Xxxxxx
Xxxxxxxxx
Xxxxxx
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By:
/s/ Xxxx X. York
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Title: Vice
President and Chief Financial Officer
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