Transition agreement, dated September 2, 2010, by and among MB Financial, Inc. and MB Financial Bank, N.A. and Thomas Panos

 

6. Withholding.  All payments required to be made by the Company hereunder to the Executive shall be subject to withholding of such amounts relating to taxes as the Company may reasonably determine it should withhold pursuant to any applicable law or regulation.

 

7. Section 409A Compliance.  It is intended that any amounts payable under this Agreement and the Company’s and Executive’s exercise of authority or discretion hereunder shall comply with the provisions of Internal Revenue Code Section 409A and the treasury regulations and guidance thereunder (“Section 409A”) so as not to subject the Executive to the payment of interest and tax penalty which may be imposed under Section 409A.  Notwithstanding anything contained herein to the co ntrary, if, at the Executive’s separation from service, (a) Executive is a specified employee as defined in Section 409A and (b) any of the payments or benefits provided hereunder constitute deferred compensation under Section 409A, then, and only to the extent required by such provisions, the date of payment of such payments or benefits otherwise provided shall be delayed for a period of six (6) months following the separation from service.

 

 

8. Execution of Agreement; Releases.  The payments and benefits to the Executive pursuant to this Agreement are contingent upon (i) the Executive executing and delivering to the Company this Agreement and a release of claims in the form attached to this Agreement as Exhibit A (the “Release”) by 3:00 p.m. (CDT) on Thursday, September 2, 2010, (ii) the Executive executing and delivering to the Company on the last day of the Transition Period a release of claims in substantially the same form as the Release, effective as of that date, and (iii) in each case , Executive does not thereafter revoke such Release in accordance with the terms thereof.  At such time as Executive delivers the release required under clause (ii), the Company shall execute a release, in the form set forth at Exhibit B, and shall deliver such release to Executive.

 

9. Entire Agreement.  Executive acknowledges and agrees that this Agreement includes the entire agreement and understanding between the parties and supercedes any prior agreements, written or oral, including Executive’s Change in Control Severance Agreement and Gross-Up Agreement with the Company, with respect to the subject matter hereof, including the termination of Executive’s employment and all amounts to which Executive shall be entitled whether during the Transition Period or thereafter; provided, however, that Executive acknowledges and agrees tha t (a) provisions of the Protective Covenants Agreement between Executive and the Company; (b) the provisions of any prior agreements between the Company and Executive (including award agreements) relating to the effect of certain laws and regulations on Executive’s compensation and Executive’s agreement to forgo compensation or to repay amounts of compensation received which are determined to not be or to not have been permitted under such laws and regulations; and (c) the provisions of any prior agreements between the Company and Executive relating to confidentiality, protection of the Company’s confidential or proprietary information; shall in each case continue to apply to Executive during and after his employment as if fully set forth and applicable to this Agreement including the compensation which may be payable to Executive hereunder. As a material inducement to the Company entering into this Agreement, Executive reaffirms that the foregoing provisions remain fully binding on Executi ve.

1. For valuable consideration, the adequacy of which is hereby acknowledged, the undersigned (“Executive”), for himself, his spouse, heirs, administrators, children, representatives, executors, successors, assigns, and all other persons claiming through Executive, if any (collectively, “Releasers”), does hereby release, waive, and forever discharge MB Financial, Inc. and MB Financial Bank National Association (collectively, “Company”), Company’s Subsidiaries, parents, affiliates, related organizations, empl oyees, officers, directors, attorneys, successors, and assigns (collectively, the “Releasees”) from, and does fully waive any obligations of Releasees to Releasers for, any and all liability, actions, charges, causes of action, demands, damages, or claims for relief, remuneration, sums of money, accounts or expenses (including attorneys’ fees and costs) of any kind whatsoever, whether known or unknown or contingent or absolute, which heretofore has been or which hereafter may be suffered or sustained, directly or indirectly, by Releasers in consequence of, arising out of, or in any way relating to Executive’s employment with Company or any of its affiliates and the termination of Executive’s employment.  The foregoing release and discharge, waiver and covenant not to sue includes, but is not limited to, all claims and any obligations or causes of action arising from such claims, under common law including wrongful or retaliatory discharge, breach of contract (including, but not limited to, the Transition Agreement between the Company and the Executive (the “Transition Agreement”)), with respect to which this is the Release referred to in Section 8 thereof, and any claims under any stock option and restricted stock unit agreements between Executive and the Company) and any action arising in tort including libel, slander, defamation or intentional infliction of emotional distress, and claims under any federal, state or local statute including Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866 and 1871 (42 U.S.C. § 1981), the National Labor Relations Act, the Fair Labor Standards Act, the Americans with Disabilities Act of 1990, the Rehabilitation Act of 1973, the Illinois Human Rights Act, the Age Discrimination in Employment Act or the discrimination or employment laws of any state or municipality, and/or any claims under any express or implied contract which Releasers may claim existed with Releasees.  This also includes a release by Executive of any claims for breach of contract, wrongful discharge and all claims for alleged physical or personal injury, emotional distress relating to or arising out of Executive’s employment with Company or the termination of that employment; and any claims under the WARN Act or any similar law, which requires, among other things, that advance notice be given of certain work force reductions.  This release and waiver does not apply to any claims or rights that may arise after the date Executive signs this General Release.  The foregoing release does not apply to (a) any claims or rights for compensation, benefits, indemnification and any other surviving rights now existing under the Transition Agreement, the organization documents of the Company or any other agreement providing for indemnification regardless of when any claim is filed, or (b) any claims or ri ghts under directors and officers liability insurance.

 

 

2. Excluded from this release and waiver are any claims which cannot be waived by law, including but not limited to the right to participate in an investigation conducted by certain government agencies.  Executive does, however, waive Executive’s right to any monetary recovery should any agency (such as the Equal Employment Opportunity Commission) pursue any claims on Executive’s behalf.  Executive represents and warrants that Executive has not filed any complaint, charge, or lawsuit against the Releasees with any government agency or any court.

 

3. Executive agrees never to sue Releasees in any forum for any claim covered by the above waiver and release language.  If Executive violates this General Release by suing Releasees, other than as set forth in Section 1 hereof, Executive shall be liable to the Company for its reasonable attorneys’ fees and other litigation costs incurred in defending against such a suit.

 

4. In the event Executive is the prevailing party in an action against the Company to enforce the provisions of the Transition Agreement relating to payment of the Retention Payment, then the Company shall be liable to the Executive for his reasonable attorneys’ fees and other litigation costs incurred in such action.

 

5. Executive acknowledges and recites that:

 

 

(a) Executive has read and understands the Transition Agreement and this General Release in its entirety;

 

 

(b) Executive has been advised and directed orally and in writing (and this subparagraph (c) constitutes such written direction) to seek legal counsel and any other advice he wishes with respect to the terms of the Transition Agreement and this General Release before executing it;

 

 

(c) Executive has been given up to twenty-one (21) days to review this Agreement before executing it and has seven (7) days after signing it to revoke it by giving written notice to Mitchell Feiger, MBFI’s President and Chief Executive Officer.

 

 

(d) Executive has executed the Transition Agreement and this General Release knowingly and voluntarily; and

 

 

(e) Executive’s execution of the Transition Agreement and this General Release has not been forced by any employee or agent of the Company, and Executive has had an opportunity to negotiate about the terms of the Transition Agreement and this General Release.

 

 

6. This General Release shall be governed by the internal laws (and not the choice of laws) of the State of Illinois, except for the application of pre-emptive Federal law.

 

PLEASE READ THIS AGREEMENT CAREFULLY.  IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.