exhibit10_5a.htm


     

    Exhibit
10.5A

     

    Compensation
Amendment and Waiver Agreement

     

    Under the
TARP Capital Purchase Program

     

    July
2009

     

    TO:           [employee
name]

    


    As you
know, MB Financial, Inc. is a participant in the United States Department of
Treasury (“Treasury”) TARP
Capital Purchase Program (“CPP”).  The
Company entered  into a letter agreement with Treasury in connection
with that participation, which included a Securities Purchase Agreement –
Standard Form (“Treasury Investment
Agreement”) providing for the sale to the Treasury of preferred stock and
a warrant .  The period that Treasury holds the preferred stock
acquired from the Company in the CPP is the “TARP
Period.”  Certain other terms used in this agreement are
defined below.

     

    In order
for the Company to maintain compliance with the requirements of participation in
the CPP as amended by legislation and regulations issued earlier this year, the
Company is required to take certain actions and adopt certain standards, and to
make certain changes, to certain compensation arrangements of its senior
executive officers and most highly compensated employees, in each case as those
individuals are determined under applicable rules.  You are or may
become a senior executive officer and/or a most highly compensated employee to
whom some or all of the requirement may apply.

     

    To comply
with these requirements, and in consideration of your eligibility to receive
future incentive compensation (including equity compensation) and the benefits
that you receive as an employee, officer and/or stockholder of the Company as a
result of the Company’s participation in the CPP, you agree as
follows:

     

    
      	
              (A)

            	
              Prohibition on Certain
      Bonus, Retention or Incentive Compensation.  If you are
      one of the Company’s top five most highly compensated employees (a “High-5
      Employee”) during the TARP Period, you may not earn, nor may the
      Company pay or award to you, any bonus, retention or incentive
      compensation for or at the times you are a High-5 Employee. However, this
      restriction does not preclude the awarding or earning of incentive
      compensation in the form of restricted stock or units to the extent
      permitted under the applicable Treasury regulations, or bonus, retention
      or incentive compensation as may otherwise be permitted under the Treasury
      regulations. Such permitted compensation includes bonus payments made
      prior to June 15, 2009, compensation attributable to long-term incentive
      awards or other contractual commitments in effect on February 9, 2009, or
      compensation which qualifies as commission payments under
      EESA.

            


    

     

    
      	
              (B)

            	
              Clawback and Repayment
      of Bonus and Incentive Compensation.  If, during the TARP
      Period, you are a senior executive officer (a “SEO”) or you are one of top
      twenty most highly compensated of the other employees (a “Top-20
      Employee”), any bonus, retention or incentive compensation payments
      you receive will be subject to recovery (clawback) by the Company if the
      payment was based on materially inaccurate financial statements or any
      other materially inaccurate performance metric or
  criteria.

            


    

     

    
      	
              (C)

            	
              No Tax Gross-Up
      Payment.  If you are one of the Company’s SEOs or a
      Top-20 Employee during the TARP Period, the Company may not pay you any
      amount as a reimbursement of taxes owed by you with respect to your
      compensation.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      	
              (D)

            	
              Prohibition on
      Severance or CIC Payments.  If at the time of your
      departure (termination of employment) or a change in control (“CIC”) of the
      Company during the TARP Period you are one of the Company’s SEOs or you
      are one of the top five most highly compensated of the other employees
      (each such individual referred to as a “Top-10
      Employee”), the Company may not make any severance or CIC payment
      to you at that time or later, including after the TARP Period. A severance
      or CIC payment for this purpose has the same meaning as “golden parachute
      payment” under EESA.  Generally, a payment (such as cash
      payment) or a benefit (such as accelerated vesting of an equity award)
      will be a golden parachute payment under EESA if it is triggered by a
      change in control of the Company or if the payment or benefit is triggered
      by the circumstances relating to termination of employment (such as
      severance pay paid upon involuntary termination without cause). A payment
      or benefit will not be a prohibited severance or CIC payment if the
      payment or benefit has already been earned (such as vested deferred
      compensation or a vested stock option) by the date of the CIC or
      termination of employment.

            


    

     

    
      	
              (E)

            	
              Avoidance of
      Compensation Arrangements Encouraging Excessive Risks, Posing Risks to the
      Company or Encouraging Manipulation of Reported
      Earnings.  EESA requires the Organization and
      Compensation Committee of the Company’s Board of Directors (the “Compensation
      Committee”) to periodically review the provisions of the Company’s
      Compensation Arrangements for the purposes of determining if such
      arrangements encourage the taking of unnecessary and excessive risks that
      threaten the value of the Company, or pose unnecessary risks to the
      Company or encourage manipulation of reported earnings. To the extent the
      Compensation Committee determines any such circumstances exist, it is
      obligated to take action to modify such Compensation Arrangements to limit
      unnecessary risks or features that encourage earnings
      manipulation.

            


    

     

    
      	
              (F)

            	
              Amendment of
      Compensation Arrangements; Waiver and Repayment.  Each of
      the Company’s current and future compensation, bonus, incentive and other
      benefit plans, programs, arrangements and agreements of any type under
      which you are or may in the future be covered by or be a party to
      (collectively, “Compensation
      Arrangements”) is deemed amended by this letter agreement to the
      extent necessary to give effect to the prohibitions, limitations and
      requirements of EESA referred to in paragraphs (A) through (F) above, and
      to otherwise comply with the applicable requirements of
      EESA.  For this purpose, Compensation Arrangements include,
      without limitation, all employment agreements, change of control
      agreements, annual bonus and other incentive plans, and stock option,
      restricted stock and other cash-based or equity-based compensation plans
      and agreements.

            


    

     

    
      	
               
      

            	
              To
      the extent required by EESA, any payment or award to you which is provided
      for in any such Compensation Arrangement is subject to waiver, forfeiture
      or repayment to the extent such payment or award is subject to recovery or
      clawback as described above or did or would violate any applicable
      provision of EESA. In the event of any such circumstance, you shall be
      deemed to have waived your right to such payment or award such that no
      obligation on the part of the Company to pay or provide such waived amount
      shall exist, and you agree to such waiver and forfeiture, and, if
      applicable, to repay such amounts within 15 days of receipt of notice from
      the Corporation that such repayment is
required.

            


    

     

    
      	
              (G)

            	
              Definitions,
      Interpretation and Application.  The following
      definitions and interpretations shall apply to this
  letter:

            


    

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    “EESA” means the
Emergency Economic Stabilization Act of 2008, as amended by the American
Recovery and Reinvestment Act, and as implemented by rules, regulations,
guidance or other requirements issued thereunder governing the CPP that have
been issued by the Treasury, including, but not limited to the Interim Final
Rule issued by the U.S. Treasury Department on June 15, 2009, together with any
future amendments thereto, and any subsequent or similar legislation, rules,
regulations and/or interpretations that may from time to time be enacted or
promulgated.

     

    “Senior executive
officer,” “SEO” and “most highly compensated
employee” have the meanings of such terms as defined under EESA and the
regulations thereunder.  Generally, the determination of those
individuals who are the Company’s SEOs or a High-5, Top-20, or Top-10 Employee
for a calendar year during the TARP Period is fixed on January 1 of that year
based on proxy statement rules (which automatically treat the CEO and CFO as
SEOs) and compensation for the prior calendar year. Your execution of this
letter agreement shall not be determinative of your status as an SEO, a High-5,
Top-20 or Top-10 Employee. The Company will advise you as to whether you are an
SEO, High-5, Top 20 and/ or Top-10 Employee of the Company.

     

    “Company” means MB
Financial, Inc. and includes MB Financial Bank, N.A. and any other entities
treated as a single employer with MB Financial, Inc. under EESA.

     

    The
application of paragraphs (A) through (F) of this letter agreement are intended
to, and shall be interpreted, administered and construed to amend the
Compensation Arrangements only to the extent necessary to comply with the
limitations, prohibitions and requirements of EESA and, to the maximum extent
consistent with paragraphs (A) through (F) and EESA, to permit the operation of
the Compensation Arrangements in accordance with their terms before giving
effect to the provisions of this letter agreement.

     

    If this
letter agreement sets forth our agreement on the subject matter hereof, kindly
sign and return to the Company the enclosed copy of this letter agreement which,
together with any agreement and waiver you entered into at the time the Company
entered into the Treasury Investment Agreement,  will then constitute
our agreement on this subject.

     

    
      	 
      	
              Sincerely,

              MB
      Financial, Inc.

               

              By:

               

              Name:[executive
      name]

               

              Title:
      [executive title]

            
	
              Intending
      to be legally bound, I agree to and accept the foregoing
      terms:

               

               

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      Name: ___________________________