EXHIBIT 10.5
FIELD EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of this
22nd day of September, 1999, by and between Manufacturers Bank (the "Bank") and
▇▇▇▇▇▇ ▇. Field (the "Employee").
WHEREAS, the Bank is the wholly-owned subsidiary of MB Financial, Inc.
(the "Holding Company");
WHEREAS, the Employee serves as the President and Chief Executive
Officer of the Bank;
WHEREAS, the Employee and the Bank have entered into an employment
agreement dated November 12, 1992 (the "Prior Employment Agreement"), which the
Employee is willing to terminate with no obligation to him thereunder on the
part of the Bank or any of its affiliates, in consideration of the Bank's
entering into this Agreement;
WHEREAS, the board of directors of the Bank (the " Board of Directors")
believes it is in the best interests of the Bank and its subsidiaries and its
shareholder for the Bank to enter into this Agreement with the Employee in order
to assure continuity of management of the Bank and its subsidiaries;
WHEREAS, the Board of Directors has approved and authorized the
execution of this Agreement with the Employee;
NOW THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein, it is AGREED as follows:
1. DEFINITIONS.
(a) The term "Change in Control" means (1) an event of a
nature that (i) results in a change in control of the Holding Company or the
Bank within the meaning of the Bank Holding Company Act of 1956, as amended and
12 C.F.R. Part 225 (or any successor statute or regulation) or (ii) requires the
filing of a notice with the Federal Deposit Insurance Corporation under 12
U.S.C. sections 1817(j) and 12 C.F.R. Part 303 (or any successor statute or
regulation); (2) an event that would be required to be reported in response to
Item 1 of the current report on Form 8-K, as in effect on the Effective Date,
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), other than an event at the completion of which the stockholders
of the Holding Company hold more than 40% of the outstanding stock of the
resulting entity; (3) any person (as the term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) directly or indirectly of securities of the
Holding Company (the "Incumbent Board") cease for any reason to constitute at
least a majority thereof, PROVIDED THAT any person becoming a director
subsequently whose election was approved by a vote of at least three-quarters of
the directors comprising the Incumbent Board, or whose nomination for election
by the Holding Company's stockholders was approved by the nominating committee
serving under an Incumbent Board, shall be considered a member of the Incumbent
Board; or (5) consummation of a plan of reorganization, merger, consolidation,
sale of all or substantially all of the assets of the Holding Company or a
similar transaction in which the Holding Company is not the resulting entity,
other than an event at the completion of which the stockholders of the Holding
Company hold more than 40% of the outstanding stock of the resulting entity;
PROVIDED THAT the term "change in control" shall not include an acquisition of
securities by an employee benefit plan of the Bank or the Holding Company or the
merger of Coal City Corporation into Avondale Financial Corp.
(the former name of the Holding Company).
(b) The term "Date of Termination" means the date upon which
the Employee's employment with the Bank ceases, as specified in a notice of
termination pursuant to Section 8 of this Agreement,
(c) The term "Effective Date" means September 1, 1999.
(d) The term "Involuntary Termination" means the termination
of the employment of Employee (i) by the Bank without his express written
consent; or (ii) by the Employee by reason of a material diminution of or
interference with his duties, responsibilities or benefits, including (without
limitation) any of the following actions unless consented to in writing by the
Employee: (1) a requirement that the Employee be based at any place other than
Chicago, Illinois, or within a radius of 35 miles from the location of the
Bank's principal office located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, except for reasonable travel on Bank business; (2) a material
demotion of the Employee; (3) a material reduction in the number or seniority of
personnel reporting to the Employee or a material reduction in the frequency
with which, or in the nature of the matters with respect to which, such
personnel are to report to the Employee, other than as part of a Bank and
Holding Company-wide reduction in staff; (4) a reduction in the Employee's
salary or a material adverse change in the Employee's perquisites, benefits,
contingent benefits or vacation, other than as part of an overall program
applied uniformly and with equitable effect to all members of the senior
management of the Bank and the Holding Company; (5) a material permanent
increase in the required hours of work or the workload of the Employee; or (6)
the failure of the Board of Directors to elect Employee as President and Chief
Executive Officer of the Bank (or successor of the Bank) or any action by the
Board of Directors (or a board of directors of a successor of the Bank) removing
him from such office, or the failure of the Holding Company (or any successor of
the Holding Company) to elect him as a director of the Bank (or any successor of
the Bank) or any action by the Holding Company removing him from such office.
The term "Involuntary Termination" does not include Termination for Cause,
termination of employment due to death, disability pursuant to Section 7(h) of
this Agreement, retirement or suspension or temporary or permanent prohibition
from participation in the conduct of the Bank's affairs under Section 8 of the
Federal Deposit Insurance Act.
(e) The terms "Termination for Cause" and "Terminated For
Cause" mean termination of the employment of the Employee with the Bank because
of the Employee's willful misconduct, breach of a fiduciary duty involving
personal profit, intentional failure to perform stated duties, willful violation
of any law, rule, or regulation (other than traffic violations or similar
offenses) or final cease-and-desist order, or (except as provided below)
material breach of any provision of this Agreement. No act or failure to act by
the Employee shall be considered willful unless the Employee acted or failed to
act in bad faith and without a reasonable belief that his action or failure to
act was in the best interest of the Bank. The Employee shall not be deemed to
have been Terminated for Cause unless and until there shall have been delivered
to the Employee a copy of a resolution, duly adopted by the affirmative vote of
not less than a majority of the entire membership of the Board of Directors at a
meeting of the Board duly called and held for such purpose (after reasonable
notice to the Employee and an opportunity for the Employee, together with the
Employee's counsel, to be heard before the Board), stating that in the good
faith opinion of the Board of Directors the Employee has engaged in conduct
described in the preceding sentence and specifying the particulars thereof in
detail.
(f) The term "Voluntary Termination" shall mean termination of
employment by the Employee voluntarily as set forth in Section 7(e) of this
Agreement.
2. TERM; TERMINATION OF PRIOR EMPLOYMENT AGREEMENT. The term of this
Agreement shall be a period of three years commencing on the Effective Date,
subject to earlier termination as provided herein. Beginning on the first
anniversary of the Effective Date, and on each anniversary thereafter, the term
of this Agreement shall be extended for a period of one year in addition to the
then-remaining term, PROVIDED THAT the Bank has not given 90 days prior written
notice that the extensions will cease. The Prior Employment Agreement shall
terminate as of immediately prior to the Effective Date, with no obligation to
the Employee thereunder on the part of the Bank and its affiliates, except for
Salary (as defined in Section 4 below) and benefits accrued prior to the
Effective Date, which shall be paid at the times such payments are due. Such
termination of the Prior Employment Agreement shall not affect the Employee's
vested rights to deferred compensation.
3. EMPLOYMENT. The Employee is employed as the President and Chief
Executive Officer of the Bank. As such, the Employee shall render such
management services as are specified by the Board of Directors and are
customarily performed by persons situated in similar executive capacities
consistent with the Employee's duties as of the date of this Agreement. The
Employee shall also render services to any subsidiary or subsidiaries of the
Bank as requested by the Bank from time to time. The Employee shall devote his
best efforts and reasonable time and attention to the business and affairs of
the Bank to the extent necessary to discharge his responsibilities hereunder.
The Employee may (i) serve on charitable boards or committees at the Employee's
discretion without consent of the Board of Directors and, in addition, on such
corporate boards as are approved in a resolution adopted by a majority of the
Board of Directors, and (ii) manage personal investments, so long as such
activities do not interfere materially with performance of his responsibilities
hereunder.
4. CASH COMPENSATION.
(a) SALARY. The Bank agrees to pay the Employee during the
term of this Agreement a base salary (the "Salary") the annualized amount of
which shall be not less than Four Hundred Thousand Dollars ($400,000). The
Salary shall be paid no less frequently than monthly and shall be subject to
customary tax withholding. The amount of the Salary shall be increased (but
under no circumstances may the Salary be decreased) from time to time in
accordance with the amounts approved by the Board of Directors after the
Effective Date. In order to effectuate the purpose of the
preceding sentence, the amount of the Salary shall be reviewed by the Board of
Directors at least every three years during the term of this Agreement. At his
option, the Employee may defer payment of a portion of the Salary consistent
with deferred compensation programs of the Bank and the Holding Company and
applicable IRS regulations.
(b) BONUSES. The Employee shall be entitled to participate in
an equitable manner with all other executive officers of the Bank in such
performance-based and discretionary bonuses, if any, as are authorized and
declared by the Board of Directors for executive officers of the Bank.
(c) EXPENSES. The Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Employee in performing
services under this Agreement in accordance with the policies and procedures
applicable to the executive officers of the Holding Company and the Bank,
PROVIDED THAT the Employee accounts for such expenses as required under such
policies and procedures.
5. BENEFITS.
(a) PARTICIPATION IN BENEFIT PLANS. The Employee shall be
entitled to participate, to the same extent as executive officers of the Holding
Company and the Bank generally, in all plans of the Holding Company and the Bank
relating to pension, retirement, thrift, profit-sharing, savings, group or other
life insurance, hospitalization, medical and dental coverage, travel and
accident insurance, education, cash bonuses, retirement or employee benefits or
combination thereof. In addition, the Employee shall be entitled to be
considered for benefits under all of the stock and stock option related plans in
which the Holding Company's or the Bank's executive officers are eligible or
become eligible to participate.
(b) FRINGE BENEFITS. The Employee shall be eligible to
participate in, and receive benefits under, any other fringe benefit plans or
perquisites which are or may become generally available to the Holding Company's
or the Bank's executive officers, including but not limited to supplemental
retirement, incentive compensation, supplemental medical or life insurance
plans, company cars, club dues, physical examinations, financial planning and
tax preparation services. Without limiting the generality of the foregoing, the
Bank agrees to pay for Employee's membership dues and related expenses in
Mission Hills Country Club (Northbrook, Illinois) and expenses for an automobile
provided to Employee by the Bank commensurate with similarly situated officers
of the Holding Company and the Bank.
(c) LIFE INSURANCE AND DISABILITY INSURANCE POLICIES. Until
the soonest of the expiration of the term of this Agreement (including
extensions of the term as provided for in Section 2), the date of Voluntary
Termination, the date of Termination for Cause or the date on which the Employee
attains age 70, the Bank shall pay premiums on the following life insurance
policies. The Guardian Life Insurance Company of America Policy Numbers 2932634
($180,000 face amount) and 2880468 ($180,000 face amount). Until the soonest of
the expiration of the term of this Agreement (including extensions as provided
for in Section 2), the date of Voluntary Termination, the date of Termination
for Cause or the date on which the employee attains the age at which disability
coverage expires under the following disability policies, the Bank shall pay the
premiums on the following disability policies: The Guardian Life Insurance
Company of America Disability Policy Nos. G-441671 and G-418069.
6. VACATIONS; LEAVE. The Employee shall be entitled (i) to annual paid
vacation of four weeks in accordance with the policies established by the Board
of Directors for executive officers, and (ii) to voluntary leaves of absence,
with or without pay, from time to time at such times and upon such conditions as
the Board of Directors may determine in its discretion.
7. TERMINATION OF EMPLOYMENT.
(a) INVOLUNTARY TERMINATION. If the Employee experiences an
Involuntary Termination, such termination of employment shall be subject to the
Bank's obligations under this Section 7. In the event of the Involuntary
Termination, if the Employee has offered to continue to provide services as
contemplated by this Agreement and such offer has been declined, then, subject
to Section 7(b) of this Agreement, the Bank shall, as liquidated damages (i)
during the remaining term of this Agreement, pay to the Employee monthly
one-twelfth of the Salary at the annual rate in effect immediately prior to the
Date of Termination and one-twelfth of the average annual amount of cash bonus
of the Employee, based on the average amounts of cash bonus earned by the
Employee for the two full fiscal years preceding the Date of Termination; (ii)
provide the benefits set forth in Section 7(f) of this Agreement on the terms
set forth therein PROVIDED THAT during the remaining term of this Agreement, the
Bank shall pay the same portion of the cost of benefits under Section 7(f) as it
would have paid if no termination of employment had occurred; and (iii) if the
Employee is the record or beneficial
owner of any options for stock of the Holding Company as of the Date of
Termination, then notwithstanding the provisions of any other agreements or
documents relating to such options, such options shall be deemed to be fully
vested on the Date of Termination and shall be exercisable for a period of not
less one year from the Date of Termination and the Bank shall guarantee that the
Employee shall receive the benefits of such vesting; and (iv) if the Employee is
not fully vested under any other benefit plan or arrangement in which he is a
participant as of the Date of Termination (except for any "employee pension
plan" as defined in Section 3(2) of the Employee Retirement Income Security Act
of 1974, as amended, including any "multiemployer plan" as defined in Section
3(37) of such Act), deem the Employee to be fully vested therein and the Bank
shall guarantee that he shall receive benefits thereunder accordingly.
(b) MITIGATION OF THE BANK'S OBLIGATIONS UNDER SECTION 7(a).
(1) In the event that the Employee becomes entitled
to liquidated damages pursuant to Section 7(a), (i) the Bank's obligation under
clause (i) of Section 7(a) with respect to cash damages shall be reduced by the
amount of the Employee's cash income, if any, earned from providing services
other than to the Bank (or any successor) or its affiliates during the remaining
term of this Agreement; and (ii) if the Employee receives benefits under a
supplemental retirement plan pursuant to clause (iv) of Section 7(a), the Bank's
obligation under clause (iv) of Section 7(a) shall be reduced to the extent, if
any, that the Employee receives benefits under a supplemental retirement plan of
an employer other than the Holding Company (or any successor) or any of its
affiliates. For purposes of this Section 7(b), the term "cash income" shall
include amounts of salary, wages, bonuses, incentive compensation and fees paid
to the Employee in cash but shall not include shares of stock, stock options,
stock appreciation rights or other earned income not paid to the Employee in
cash.
(2) The Employee agrees that in the event he becomes
entitled to liquidated damages pursuant to Section 7(a), throughout the period
during which he is so entitled, he shall promptly inform the Bank of the nature
and amounts of cash income and other non-cash income and benefits which he earns
from providing services other than to the Bank (or any successor) or its
affiliates, and shall provide such documentation of such cash and non-cash
income and benefits as the Bank may request. In the event of changes to such
cash and non-cash income and benefits from time to time, the Employee shall
inform the Bank of such changes, in each case within 15 days after the change
occurs, and shall provide such documentation concerning the change as the Bank
may request.
(c) CHANGE IN CONTROL. In the event that within the 18 months
following a Change in Control the Employee experiences an Involuntary
Termination, in addition to the Bank's obligations under Section 7(a) of this
Agreement, the Bank shall pay to the Employee in cash, within 25 days after the
Date of Termination, an amount equal to 299% of the Employee's "base amount" as
determined under Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"), reduced (not less than zero) by the present value of payments to
be made under clause (i) of Section 7(a) of this Agreement. For this purpose,
present value shall be determined as present value of a payment is determined
under Section 280G of the Code using the applicable Federal rate in effect on
the date such determination is made or the date of this Agreement, whichever is
lower. Notwithstanding any other provision of this Agreement, if the payment
under this Section 7(c), together with any other amounts and the value of
benefits received or to be received by the Employee in connection with the
Change in Control would cause any amount to be nondeductible by the Bank (or any
successor), or the consolidate group of which the Bank (or any successor) is a
member for federal income tax purposes, pursuant to or by reason of Section 280G
of the Code, then the payment under this Section 7(c) shall be further reduced
(not less than zero) to the extent necessary so as to maximize amounts and the
value of benefits to be received by the Employee without causing any amount to
become nondeductible pursuant to or by reason of Section 280G of the Code. The
Employee shall determine the allocation of such reduction among payments and
benefits to the Employee.
(d) TERMINATION FOR CAUSE. In the event of Termination for
Cause, the Bank shall have no further obligation to the Employee under this
Agreement after the Date of Termination except as set forth in Section 7(f)
hereof.
(e) VOLUNTARY TERMINATION. The Employee may terminate his
employment voluntarily at any time by a notice pursuant to Section 8 of this
Agreement. Except as may be provided in Sections 7(c) and 7(f) of this
Agreement, in the event that the Employee voluntarily terminates his employment
other than by reason of any of the actions that constitute Involuntary
Termination under Section 7(b) of this Agreement ("Voluntary Termination"), the
Bank shall be obligated to the Employee for the amount of his Salary and
benefits only through the Date of Termination, at the time such payments are due
(accrued vacation shall be payable within seven days after the Date of
Termination), and the Bank shall have no further obligation to the Employee
under this Agreement except a final annual bonus in an amount consistent with
the Bank's year-end bonus practices, PROVIDED THAT the Board of Directors shall
determine the amount of such bonus in good
faith at the time of the Employee's termination, taking into consideration the
portion of the year elapsed prior to termination, and the Bank shall pay such
bonus in cash on the Date of Termination.
(f) HEALTH BENEFITS. Notwithstanding any other provision of
this Agreement, upon cessation of the Employee's service as an employee of the
Bank (or any successor) or any of its affiliates for any reason other than
death, the Bank (or any successor, directly or through its affiliates) shall
provide or make available to the Employee thereafter during the lifetime of the
Employee the same health insurance, hospitalization, medical, dental,
prescription drug and other health benefits, and long-term disability insurance,
as he would have been eligible for if he had continued to serve as an executive
officer of the Bank (or any successor), for the benefit of himself and his
dependents and beneficiaries who would have been eligible for such benefits if
the Employee had continued to serve as an executive officer of the Bank (or any
successor), on terms as favorable to the Employee as to other executive officers
of the Bank (or any successor) from time to time, including amounts of coverage
and deductibles, PROVIDED THAT the Employee shall pay during the term of this
Agreement the same portion of the cost of such benefits and insurance as he
would pay if employed by the Bank (or a successor) during the term of this
Agreement (even if his employment is terminated during the term) and the
Employee shall pay the full cost of such benefits and insurance after the term
of this Agreement ends; PROVIDED FURTHER THAT the Bank's obligations under this
Section 7(f) shall be reduced to the extent that, and so long as, the Employee
receives such benefits on no less favorable terms from another employer. The
Bank's obligations under this Section 7(f) shall survive the term of this
Agreement.
(g) DEATH. In the event of the death of Employee during the
term of this Agreement and prior to any termination of employment, the Bank
shall pay to the Employee's estate, or such person as the Employee may have
previously designated in writing, the Salary which was not previously paid to
the Employee and which he would have earned if he had continued to be employed
under this Agreement through the last day of the calendar month in which the
Employee died, and a bonus (prorated in accordance with the portion of the
fiscal year expired as of the date of his death) in an amount consistent with
the Bank's year-end bonus practices as determined by the Board of Directors in
good faith, which bonus shall be paid within 90 days after the death of the
Employee.
(h) DISABILITY. If the Employee becomes entitled to benefits
under the terms of the then-current disability plan, if any, of the Holding
Company or the Bank (a "Disability Plan"), he shall be entitled to receive such
group and other disability benefits, if any, as are then provided by the Holding
Company or the Bank for executive employees. In the event of such disability,
this Agreement shall not be suspended, except that (i) the Holding Company's
obligation to pay the Salary to the Employee shall be reduced in accordance with
the amount of disability income benefits received by the Employee, if any,
pursuant to this Section 7(h) or the policies described in Section 5(c) such
that on an after-tax basis, the Employee shall realize from the sum of
disability income benefits and a portion of the Salary (if any) the same amount
as he would realize on an after-tax basis from the Salary if the Bank's
obligation to pay salary were not reduced pursuant to this Section 7(h); and
(ii) upon a resolution adopted by a majority of the disinterested members of the
Board of Directors, the Bank may discontinue payment of the Salary beginning six
months following a determination that the Employee has become entitled to
benefits under a Disability Plan or otherwise unable to fulfill his duties under
this Agreement.
(i) REGULATORY ACTION. Notwithstanding any other provisions
of this Agreement, if the Employee is removed and/or permanently prohibited
from participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.
C. sections 1818(e)(4) and (g)(1), all obligations of the Bank under this
Agreement shall terminate as of the effective date of the order, but vested
rights of the parties shall not be affected.
8. NOTICE OF TERMINATION. Subject to the provisions of Section 1(e) of
this Agreement, in the event that the Bank desires to terminate the employment
of the Employee during the term of this Agreement, the Bank shall deliver to the
Employee a written notice of termination, stating whether such termination
constitutes Termination for Cause or Involuntary Termination, setting forth in
reasonable detail the facts and circumstances that are the basis for the
termination, and specifying the date upon which employment shall terminate,
which date shall be at least 30 days after the date upon which the notice is
delivered, except in the case of Termination for Cause. In the event that the
Employee determines in good faith that he has experienced an Involuntary
Termination of his employment, he shall send a written notice to the Bank
stating the circumstances that constitute such Involuntary Termination and the
date upon which his employment shall have ceased due to such Involuntary
Termination. In the event that the Employee desires to effect a Voluntary
Termination, he shall deliver a written notice to the Bank, stating the date
upon which employment shall terminate, which date shall be at least 90 days
after the date upon which the notice is delivered, unless the parties agree to a
date sooner.
9. COVENANT NOT TO COMPETE. The Employee agrees that his services are
special and unique, and of an unusual and extraordinary character which gives
them peculiar value for which monetary damages cannot provide adequate
compensation. In consideration of the Bank's entering into this Agreement, the
Employee hereby agrees that during the Non-Compete Period (as defined below), he
shall not without the prior written consent of the Bank:
(1) serve as a director, officer, or employee of, or
directly or indirectly, as a consultant, independent
contractor or otherwise, provide any personal
services to any institution insured by the Federal
Deposit Insurance Corporation or any affiliate of
such an institution which institution or affiliate
has an office in ▇▇▇▇ County, Illinois or adjacent
counties in Illinois; or
(2) solicit, or directly or indirectly cause to be
solicited, any employee of the Bank to leave his or
her employment; or
(3) solicit, or directly or indirectly cause to be
solicited, customers of the Bank for the purpose of
offering loans or other financing services to such
customers.
The term "Non-Compete Period" shall mean (i) in the event of
Termination for Cause, the period of three years following the Date of
Termination, (ii) in the event of Involuntary Termination not following a Change
in Control, the period of the remaining term of this Agreement, (iii) in the
event of Involuntary Termination following a Change in Control which occurs
during the term of this Agreement, the period of the lesser of one year or the
remaining term of this Agreement, (iv) in the event of Voluntary Termination not
following a Change in Control, the period of 18 months, and (v) in the event of
Voluntary Termination following a Change in Control which occurs during the term
of this Agreement, the period of one year following the Date of Termination. The
provisions of this Section 9 shall survive expiration of the term of this
Agreement.
If any provision of this Section 9, as applied to any party or to any
circumstances, is adjudged by a court to be invalid or unenforceable, the same
shall in no way affect any other provision of this Section 9 or any other part
of this Agreement, the application of such provision in any other circumstances
or the validity or enforceability of this Agreement. If any such provision, or
any part thereof, is held to be unenforceable because of the duration of such
provision or the area covered thereby, the parties agree that the court making
such determination shall have the power to reduce the duration and/or area of
such provision, and/or to delete specific words or phrases, and in its reduced
form such provision shall then be enforceable and shall be enforced. Upon breach
of any provision of this Section 9, the Bank shall be entitled to injunctive
relief, since the remedy at law would be inadequate and insufficient. In
addition, the Bank shall be entitled to such damages as it can show it has
sustained by reason of such breach.
10. ATTORNEYS' FEES. The Bank shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by the
Employee as a result of (i) the Employee's contesting or disputing any
termination of employment, or (ii) the Employee's seeking to obtain or enforce
any right or benefit provided by this Agreement or by any other plan or
arrangement maintained by the Bank (or any successor) or an affiliate under
which the Employee is or may be entitled to receive benefits; PROVIDED THAT the
Bank's obligation to pay such fees and expenses is subject to the Employee's
prevailing with respect to the matters in dispute in any proceeding initiated by
the Employee or the Employee's having been determined to have acted reasonably
and in good faith with respect to any proceeding initiated by the Bank.
11. NO ASSIGNMENTS EXCEPT BY OPERATION OF LAW IN CERTAIN MERGERS.
(a) This Agreement is personal to each of the parties hereto,
and neither may assign or delegate any of its rights or obligations hereunder
without first obtaining the written consent of the other party except that, by
operation of law in a merger in which the Bank is a party but not the resulting
entity, the Bank's obligations may be assigned to and assumed by the resulting
entity of such a merger; provided, however, that the Bank shall require any
successor or assign (other than by operation of law in a merger in which the
Bank is a party but not the resulting entity) by an assumption agreement in form
and substance satisfactory to the Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the Bank
would be required to perform it if no such succession or assignment had taken
place. Failure of the Bank to obtain such an assumption agreement prior to the
effectiveness of any such succession or assignment shall be a breach of this
Agreement and shall entitle the Employee to compensation and benefits from the
Bank in the same amount and on the same terms as the compensation pursuant to
Section 7(a), Section 7(c) and Section 7(f) hereof. For purposes of implementing
the provisions of this Section 11, the date on which any such succession becomes
effective shall be deemed the Date of Termination.
(b) This Agreement and all rights of the Employee hereunder
shall inure to the benefit of and be enforceable by the Employee's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
12. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, to the Bank at its home office,
to the attention of the Board of Directors with a copy to the Secretary of the
Bank, or, if to the Employee, to such home or other address as the Employee has
most recently provided in writing to the Bank.
13. AMENDMENTS. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties.
14. HEADINGS. The headings used in this Agreement are included solely
for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
15. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provisions shall not
affect the validity or enforceability of the other provisions hereof.
16. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Illinois.
17. ATTORNEY'S FEES. Avondale shall be solely responsible for payment
of any and all legal fees incurred by Employee in the preparation, negotiation
and execution of this Agreement.
18. SUCCESSORS TO CODE SECTIONS. All provisions of this Agreement
referring to sections of the U.S.C. (United State Code) or to the Internal
Revenue Code shall be deemed to refer to successor code sections in the event of
renumbering of code sections.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above
written.
Attest: MANUFACTURERS BANK
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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SECRETARY ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
CHAIRMAN
EMPLOYEE:
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