Exhibit
10.5


 


WEST SUBURBAN BANCORP, INC.


 


RESTATED EMPLOYMENT AGREEMENT – MICHAEL P. BROSNAHAN


 


This RESTATED EMPLOYMENT AGREEMENT (this “Agreement”), is made and entered into as of
the 8th day of March, 2004 (the “Effective
Date”), by and between WEST SUBURBAN BANCORP, INC., an Illinois
corporation (the “Employer”), and
MICHAEL P. BROSNAHAN, an Illinois resident (the “Executive”).


 


R
E  C  I  T  A  L  S:


 


A.            The Employer owns all of the issued and outstanding
capital stock of West Suburban Bank, Lombard, Illinois (the “Bank”).


 


B.             The Employer desires to continue to employ the Executive
as an officer of the Employer and of the Bank for a specified term and the
Executive is willing to continue such employment upon the terms and conditions
hereinafter set forth.


 


C.             Additionally, the Employer recognizes that circumstances
may arise which may result in a change in control of the Employer and/or the
Bank (through acquisition or otherwise) thereby causing uncertainty with
respect to the Executive’s employment without regard to the competence or past
contributions of the Executive and that such uncertainty may result in the loss
to the Employer and/or the Bank of the valuable services provided by the
Executive.  In such circumstances, the
Employer and the Executive wish to provide reasonable security to the Executive
against changes in the Executive’s employment relationship with the Employer
and/or the Bank.


 


D.            Executive currently serves as the Vice President of
Employer and the Senior Vice President, Commercial Lending and Community
Reinvestment Act Officer of the Bank pursuant to that certain Employment
Agreement dated May 1, 1997, as amended pursuant to that certain Amendment to
Employment Agreement dated January 21, 1999 (as amended, the “1997 Employment Agreement”).


 


E.             The parties desire to amend and restate the 1997
Employment Agreement in accordance with the terms, and subject to the
conditions, set forth herein.


 


NOW,
THEREFORE, in consideration of the promises and of the
covenants and agreements hereinafter contained, it is covenanted and agreed by
and between the parties hereto as follows:


 


A
G  R  E  E  M  E  N  T  S:


 


1.             TERM
OF EMPLOYMENT WITH AUTOMATIC RENEWAL PROVISIONS.  The period of Executive’s employment under this Agreement shall
be deemed to have commenced on the Effective Date and shall continue for a
period of approximately three (3) years through December 31, 2006.  The term of employment of the Executive
under this Agreement shall automatically be extended for one (1) additional
year on December 31st of each year beginning December 31, 2004,
unless either the Employer or


 

















 


the Executive notifies the other
party, by written notice delivered no later than November 1st
of such year, that the term of employment of the Executive under this Agreement
shall not be extended for an additional year. 
In addition, upon the occurrence of a Change in Control (as defined
below), the term of employment of the Executive under this Agreement shall be
automatically renewed and extended to provide a term of employment (in accordance
with the terms, and subject to the conditions, set forth herein) equal to a
period of three (3) years from the date of the consummation of the Change in
Control.


 


2.             POSITION
AND DUTIES.  The Employer hereby
continues to employ the Executive as the Vice President of the Employer and as
the Senior Vice President, Commercial Lending and Community Reinvestment Act
Officer of the Bank or in such other senior executive capacity as shall be
mutually agreed between the Employer and the Executive.  During the period of the Executive’s
employment hereunder, the Executive shall devote his best efforts and full
business time, energy, skills and attention to the business and affairs of the
Employer and its affiliates, including the Bank.  The Executive’s duties and authority shall consist of and include
all duties and authority customarily performed and held by persons holding
equivalent positions with business organizations similar in nature and size to
the Employer, as such duties and authority are reasonably defined, modified and
delegated from time to time by the Board of Directors of the Employer (the “Board”). 
The Executive shall have the powers necessary to perform the duties
assigned to him and shall be provided such supporting services, staff and other
assistance, office space and accoutrements as shall be reasonably necessary and
appropriate in the light of such assigned duties.


 


3.             COMPENSATION.  As compensation for the services to be
provided by the Executive hereunder, the Executive shall receive the following
compensation, expense reimbursement and other benefits:


 


(a)           BASE
SALARY.  The Executive shall receive
an aggregate annual minimum base salary at the rate of two hundred thirteen
thousand one hundred seventy-two and 00/100 dollars ($213,172.00) payable in
installments in accordance with the regular payroll schedule of the Bank (“Base Salary”).  Such Base Salary shall be subject to review annually commencing
in 2004 and shall be maintained or increased during the term hereof in
accordance with the Employer’s established management compensation policies and
practices.


 


(b)           BONUS.  The Executive shall be eligible for an
annual bonus (“Bonus”) with
respect to each fiscal year of the Employer in accordance with the Employer’s
compensation and bonus policies and practices for senior executive
officers.  The amount of the Bonus, if
any, shall be determined by the Compensation Committee of the Board (the “Compensation Committee”).


 


(c)           CLUB
MEMBERSHIP.  The Executive shall be
reimbursed for membership dues and other customary charges at the Naperville
Country Club.


 


(d)           DEFERRED
COMPENSATION.  Employer shall make
contributions for the benefit of Executive to the Employer’s Directors and
Senior Management Deferred Compensation Plan


 


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(“Deferred Compensation Plan”),
including any successor plan or program thereto, in an annual amount of not
less than twenty-five thousand dollars ($25,000).


 


(e)           VACATIONS. 
Executive shall receive paid vacation days of at least such number of
paid vacation days as Executive shall be entitled to receive as of the date
hereof in accordance with the Employer’s vacation policy in effect as of the
date hereof.  The method of accrual,
forfeiture and scheduling of vacation days shall be in accordance with, and
subject to, the Employer’s general vacation policies and practices.


 


(f)            LONG TERM CARE INSURANCE.  Employer shall provide Executive and
Executive’s spouse with coverage under, and shall pay the premiums with respect
to, long term care insurance in accordance with the terms, and subject to the
conditions, as the Employer shall provide to other senior executive
officers.  The Executive acknowledges
that this benefit shall be subject to the continued availability of such long
term care insurance from the insurer under which this benefit is provided to
other senior executives from time to time.


 


(g)           REIMBURSEMENT
OF EXPENSES.  The Executive shall be
reimbursed, upon submission of appropriate vouchers and supporting
documentation, for all travel, entertainment and other out-of-pocket expenses
reasonably and necessarily incurred by the Executive in the performance of his
duties hereunder and shall be entitled to attend seminars, conferences and
meetings relating to the business of the Employer consistent with the
Employer’s established policies in that regard.


 


(h)           OTHER
BENEFITS.  The Executive shall be
entitled to all benefits specifically established for him and, when and to the
extent he is eligible therefor, to participate in all plans and benefits
generally accorded to senior executives of the Employer, including, but not
limited to the following to the extent provided, if at all, to other senior
executives of the Employer:  pension;
profit-sharing; employee stock ownership plan; supplemental retirement;
incentive compensation; bonus; disability income; split-dollar life insurance;
group life; health, medical (including dental, vision and prescription drug
insurance, if any) and hospitalization insurance; long term care insurance; and
similar or comparable plans, and also to perquisites extended to similarly
situated senior executives; provided, however, that such plans, benefits and
perquisites shall be no less than those made available to all other employees
of the Employer.


 


(i)            WITHHOLDING.  The Employer shall be entitled to withhold
from amounts payable to the Executive hereunder, any federal, state or local
withholding or other taxes or charges which it is from time to time required to
withhold.  The Employer shall be
entitled to rely upon the opinion of its legal counsel with regard to any
question concerning the amount or requirement of any such withholding.


 


4.             CONFIDENTIALITY
AND LOYALTY.  The Executive acknowledges
that heretofore or hereafter during the course of his employment he has
produced and may hereafter produce and have access to material, records, data,
trade secrets and information not generally available to the public
(collectively, “Confidential Information”)
regarding the Employer and its subsidiaries and affiliates.  Accordingly, during and subsequent to
termination of this Agreement, the Executive shall hold in confidence and not
directly or indirectly disclose, use, copy or make lists of any such
Confidential Information, except to the extent that such


 


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information is or thereafter becomes lawfully available from public
sources, or such disclosure is authorized in writing by the Employer, required
by a law or any competent administrative agency or judicial authority, or
otherwise as reasonably necessary or appropriate in connection with performance
by the Executive of his duties hereunder. 
All records, files, documents and other materials or copies thereof
relating to the Employer’s business which the Executive shall prepare or use,
shall be and remain the sole property of the Employer, shall not be removed
from the Employer’s premises without its written consent, and shall be promptly
returned to the Employer upon termination of the Executive’s employment hereunder.  The Executive agrees to abide by the
Employer’s reasonable policies, as in effect from time to time, respecting
avoidance of interests conflicting with those of the Employer.  In the event of any violation or threatened
violation of these restrictions, the Employer, in addition to and not in
limitation of being relieved of all further obligations under this Agreement
and of any other rights, remedies or damages available to the Employer under
this Agreement or otherwise at law or in equity, shall be entitled to
preliminary and permanent injunctive relief to prevent or restrain any such
violation by the Executive and any and all persons directly or indirectly
acting for or with him, as the case may be.


 


5.             TERMINATION.


 


(a)                                  AGREEMENT
NON-EXTENSION OR EMPLOYMENT TERMINATION BY EMPLOYER AND TERMINATION BY
EXECUTIVE.


 


(i)            In
the event of the termination of the Executive’s employment under this Agreement
by the Employer prior to the last day of the then current term for any reason
other than a termination in accordance with the provisions of paragraph (c) of
this Section 5 (TERMINATION FOR CAUSE), or the non-extension of this Agreement
by the Employer in accordance with the provisions of Section 1, the Employer
shall (A) continue to pay the Executive the Base Salary then payable to the
Executive, (B) continue to pay the Executive an annual Bonus in an amount equal
to the average of his most recent three (3) years’ annual Bonus amounts, and
(C) shall continue to provide coverage for the Executive under all plans and
benefits otherwise provided to senior executives of the Employer (including
without limitation, group health, life, disability and long term care insurance
coverage, club dues, and Deferred Compensation Plan contributions), unless
unable to continue such coverage by law, for the remainder of the term of this
Agreement, provided, however, that in the circumstance where the term of this
Agreement is not extended, the Executive must remain employed with the Employer
to receive such payments and benefits; further provided, that the continued
payment of these amounts by the Employer shall not offset or diminish any
compensation or benefits accrued as of the date of termination or
non-extension.  In addition, within
thirty (30) days of Executive’s termination of employment, the Employer shall
pay the Executive (a) such Base Salary and vacation pay (for unused vacation
days in accordance with the Employer’s policies and practices with respect to
vacation pay) as shall have accrued and remains unpaid through the effective
date of the termination, (b) Bonuses previously determined by the Compensation
Committee for any prior fiscal year(s) that remain unpaid, (c) for all accrued
and unused sick days and (d) reimbursement of previously incurred expenses
eligible for reimbursement pursuant to the Employer’s policies and practices
concerning reimbursement of expenses. 
Further provided, that Executive shall also have such rights to
payments, if any, as are provided under the terms of the Deferred Compensation
Plan, the Amended and Restated Life Insurance Agreement entered into


 


4

















 


by and between the Employer and Executive and as amended from time to
time and such retirement plans under which Executive participated at the time
of his termination.


 


(ii)           In
the event that the term of this Agreement is not extended in accordance with
the provisions of Section 1, the Executive may elect to terminate his
employment, and upon such termination, the Employer shall pay the Executive a
lump sum amount equal to nine (9) times the sum of (A) the monthly Base Salary
then payable to the Executive, plus (B) one twelfth (1/12) of the base annual
deferred compensation contribution made by the Employer under the Deferred
Compensation Plan for the year prior to the Executive’s termination.  The election by the Executive to terminate
his employment pursuant to this subparagraph (a)(ii) must be delivered in
writing to the Employer within sixty (60) days of the later of his receipt of
notice of the non-extension of the term of this Agreement or December 31st
of the year during which such notice is delivered.  Payment to the Executive will be made within thirty (30) days of
such termination.  In addition, within
thirty (30) days of Executive’s termination of employment, the Employer shall
pay the Executive (a) such Base Salary and vacation pay (for unused vacation
days in accordance with the Employer’s policies and practices with respect to
vacation pay) as shall have accrued and remains unpaid through the effective
date of the termination, (b) Bonuses previously determined by the Compensation
Committee for any prior fiscal year(s) that remain unpaid, (c) for all accrued
and unused sick days, and (d) reimbursement of previously incurred expenses eligible
for reimbursement pursuant to the Employer’s policies and practices concerning
reimbursement of expenses.  Further
provided, that Executive shall also have such rights to payments, if any, as
are provided under the terms of the Deferred Compensation Plan, the Amended and
Restated Life Insurance Agreement entered into by and between the Employer and
Executive and as amended from time to time and such retirement plans under
which Executive participated at the time of his termination.


 


(iii)          Unless
a Change in Control shall have occurred, if the Employer is not in compliance
with its minimum capital requirements or if the payments required under
subparagraph (i) or (ii) above would cause the Employer’s capital to be reduced
below its minimum capital requirements, such payments shall be deferred until
such time as the Employer is in capital compliance.


 


(b)           CONSTRUCTIVE
DISCHARGE.  If at any time during
the term of this Agreement, except in connection with a termination pursuant to
paragraph (c) (TERMINATION FOR CAUSE) of this Section 5, the Executive is
Constructively Discharged (as hereinafter defined) then the Executive shall
have the right, by written notice to the Employer within sixty (60) days of
such Constructive Discharge, to terminate his services hereunder, effective as
of the thirtieth (30th) day after such notice, and the Executive shall have no
rights or obligations under this Agreement other than as provided in Sections 4
and 7 hereof.  The Executive shall in
such event be entitled to a lump sum payment of compensation and benefits and
continuation of all plans and benefits as if such termination of his employment
was pursuant to subparagraph (a)(i) of this Section 5.


 


(i)            For
purposes of this Agreement, the Executive shall be “Constructively Discharged” upon the occurrence of any one of
the following events:


 


(A)          The Executive is not re-elected or is
removed from the positions with the Employer or any affiliate set forth in
Section 1 hereof, other than as a


 


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result of the Executive’s election or appointment to
positions of equal or superior scope and responsibility; or


 


(B)           The Executive shall fail to be vested
by the Employer with the powers and authority of his appointed office; or


 


(C)           The Employer changes the primary
employment location of the Executive to a place that is more than thirty (30)
miles from the primary employment location as of the Effective Date of this
Agreement; or


 


(D)          The Employer otherwise commits a
material breach of its obligations under this Agreement.


 


(c)           TERMINATION
FOR CAUSE.  The Executive’s
employment hereunder may be terminated for cause as hereinafter defined.  “Cause”
shall mean:  (i) the Executive’s death;
(ii) a material violation by the Executive of any applicable material law or
regulation respecting the business of the Employer; (iii) the Executive being
found guilty of a felony or an act of dishonesty in connection with the
performance of his duties as an officer of the Employer, or which disqualifies the
Executive from serving as an officer or director of the Employer; or (iv) the
willful or negligent failure of the Executive to perform his duties hereunder
in any material respect.  Executive’s
employment under this Agreement may be terminated immediately for any cause
except under (iv) above.  The Executive
shall be entitled to at least thirty (30) days’ prior written notice of the
Employer’s intention to terminate his employment under (iv) above, specifying
the grounds for such termination, a reasonable opportunity to cure any conduct
or act, if curable, alleged as grounds for such termination, and a reasonable
opportunity to present to the Board his position regarding any dispute relating
to the existence of such cause.  Upon
Executive’s termination for Cause, the Employer shall have no obligations to
Executive other than payment, within thirty (30) days, of (A) such Base Salary
and vacation pay (for unused vacation days in accordance with the Employer’s
policies and practices with respect to vacation pay) as shall have accrued and
remains unpaid through the effective date of the termination, (B) Bonuses
previously determined by the Compensation Committee for any prior fiscal
year(s) that remain unpaid, (C) all accrued and unused sick days, and (D) reimbursement
for previously incurred expenses eligible for reimbursement pursuant to the
Employer’s policies and practices concerning reimbursement of expenses.  In addition, Executive shall also have such
rights to payments, if any, as are provided under the terms of the Deferred
Compensation Plan, the Amended and Restated Life Insurance Agreement entered
into by and between the Employer and Executive and as amended from time to time
and such retirement plans under which Executive participated at the time of his
termination.


 


(d)           TERMINATION
UPON DEATH.  Upon Executive’s death,
the Employer shall have no obligations to Executive other than payment, within
thirty (30) days, of (i) such Base Salary and vacation pay (for unused vacation
days in accordance with the Employer’s policies and practices with respect to
vacation pay) as shall have accrued and remains unpaid through the effective
date of the termination, (ii) Bonuses previously determined by the Compensation
Committee for any prior fiscal year(s) that remain unpaid, (iii) all accrued
and unused sick days, and (iv) reimbursement for previously incurred expenses
eligible for reimbursement pursuant to the Employer’s policies and practices
concerning reimbursement of expenses. 
In addition,


 


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Executive shall also have such rights to payments as are provided under
the Deferred Compensation Plan, the Amended and Restated Life Insurance
Agreement entered into by and between the Employer and Executive and as amended
from time to time and such retirement plans under which Executive participated
at the time of his death.  Payment shall
be made to such beneficiary as Executive may designate in writing, or failing
such designation, to the executor of his estate, in full settlement and
satisfaction of all claims and demands on behalf of the Executive.  Such payments shall be in full settlement
and satisfaction of all payments provided for in this Agreement.


 


(e)           PAYMENT
UPON TERMINATION FOR DISABILITY. 
The Employer may terminate the Executive’s employment hereunder after
the Executive is determined to be permanently disabled under the Employer
sponsored disability income insurance program or by a physician engaged by the
Employer.  In the event of a dispute
regarding the Executive’s disability, each party shall choose a physician who
together will choose a third physician to make a final determination.  The Executive shall be entitled to the
compensation and benefits provided for under this Agreement for any period
during the term of this Agreement and prior to the establishment of the
Executive’s disability during which the Executive is unable to work due to a
physical or mental infirmity.  In the
event of the termination of the Executive’s employment hereunder due to the permanent
disability of the Executive, the Employer shall continue to pay the Executive
eighty percent (80%) of the Base Salary per month then payable to the
Executive, reduced by any amounts received under the Employer sponsored
disability income insurance program, and shall continue to provide coverage for
the Executive under the health and life insurance programs maintained by the
Employer until the earlier of the date the Executive returns to full-time
employment, either with the Employer or another employer, or Executive’s
death.  In addition, the Employer shall
pay the Executive, within thirty (30) days of termination, (i) such Base Salary
and vacation pay (for unused vacation days in accordance with the Employer’s
policies and practices with respect to vacation pay) as shall have accrued and
remains unpaid through the effective date of the termination, (ii) Bonuses
previously determined by the Compensation Committee for any prior fiscal
year(s) that remain unpaid, (iii) for all accrued and unused sick days, and
(iv) reimbursement of previously incurred expenses eligible for reimbursement
pursuant to the Employer’s policies and practices concerning reimbursement of
expenses.  Further provided, that
Executive shall also have such rights to payments, if any, as are provided
under the terms of the Deferred Compensation Plan, the Amended and Restated
Life Insurance Agreement entered into by and between the Employer and Executive
and as amended from time to time and such retirement plans under which
Executive participated at the time of his termination.  Notwithstanding anything contained in this
Agreement to the contrary, until the date specified in a notice of termination
relating to the Executive’s disability, the Executive shall be entitled to
return to his positions with the Employer as set forth in this Agreement in
which event no disability of the Executive will be deemed to have
occurred.  Notwithstanding any other
provision of this Agreement, in the event of the termination of the Executive’s
employment under this Agreement for any reason, if permitted by law, the
Executive may elect to have any disability income insurance policy maintained
by the Employer on his behalf transferred to him, and he shall assume all
obligations thereunder.


 


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(f)            TERMINATION
UPON CHANGE IN CONTROL.


 


(i)            In
the event of a Change in Control and the termination of the Executive’s
employment under either (A) or (B) below, the Executive shall be entitled to a
lump sum payment equal to three (3) times the sum of the following: (w) his
annual Base Salary then payable plus (x) the average of his most recent three
(3) years’ annual Deferred Compensation Plan contributions plus (y) the average
of his most recent three (3) years’ employee stock ownership plan contributions
plus (z) the average of his most recent three (3) years’ annual Bonuses.  In the event of a Change in Control, the
Employer shall also provide the Executive with the benefits contemplated in
subparagraph (ii) of paragraph (h) (CERTAIN INSURANCE BENEFITS) of this Section
5 below and, upon termination of the Executive’s employment under either (A) or
(B) below, shall pay the Executive, within thirty (30) days of termination: (a)
such Base Salary and vacation pay (for unused vacation days in accordance with
the Employer’s policies and practices with respect to vacation pay) as shall
have accrued and remains unpaid through the effective date of the termination,
(b) Bonuses previously determined by the Compensation Committee for any prior
fiscal year(s) that remain unpaid, (c) for all accrued and unused sick days,
and (d) reimbursement of previously incurred expenses eligible for
reimbursement pursuant to the Employer’s policies on reimbursement of expenses.  In addition, Executive shall also have such
rights to payments, if any, as are provided under the terms of the Deferred
Compensation Plan, the Amended and Restated Life Insurance Agreement entered
into by and between the Employer and Executive and as amended from time to time
and such retirement plans under which Executive participated at the time of his
termination.  If the Executive’s
employment has terminated prior to the Change in Control in accordance with the
terms of this Agreement and the Employer has made all required payments under
any other applicable provision of this Section 5, then no amount shall be paid
under this paragraph (f).  Either of the
following shall constitute termination under this paragraph:


 


(A)          The Executive terminates his
employment by a written notice to that effect delivered to the Employer within
twenty-four (24) months after the Change in Control.


 


(B)           Executive’s employment under this
Agreement is terminated by the Employer either in contemplation of or after the
Change in Control.


 


(ii)           Notwithstanding
the preceding paragraphs of this Section 5 and except as provided in this
subparagraph (ii), in the event that it shall be determined that any payment,
benefit or other entitlement under this Agreement and any other plan or
arrangement of the Employer or the Bank (the “Total
Payments”) would constitute an “Excess Parachute Payment” within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and thereby be subject to the excise
tax imposed by Section 4999 of the Code or any similar successor provision or
any interest or penalties with respect to such excise tax (collectively the “Excise Tax”), then, except in the case of a
de Minimus Excess Amount (as defined below), the Executive shall be entitled to
receive an additional payment (a “Gross-Up
Payment”) in an amount such that after payment by the Executive of
all taxes imposed upon the Gross-Up Payment (including any federal, state and
local income, payroll and excise taxes and any interest or penalties imposed with
respect to such taxes), the Executive retains an amount of the Gross Up Payment
equal to the Excise Tax imposed upon the Total Payments (not including


 


8

















 


any Gross-Up Payment).  If, at a
later date, the Internal Revenue Service assesses a deficiency against the
Executive for the Excise Tax which is greater than that which was determined at
the time such amounts were paid, then the Employer shall pay to the Executive
the amount of such unreimbursed Excise Tax plus any interest, penalties and
reasonable professional fees or expenses incurred by the Executive as a result
of such assessment, including all such taxes with respect to any such
additional amount.  The highest marginal
tax rate applicable to individuals at the time of the payment of such amounts
will be used for purposes of determining the federal and state income and other
taxes with respect thereto.  The
Employer shall withhold from any amounts paid under this Agreement the amount
of any Excise Tax or other federal, state or local taxes then required to be
withheld.  Computations of the amount of
the Gross-Up Payment paid under this subparagraph shall be conclusively made by
the Employer’s independent accountants, in consultation, if necessary, with the
Employer’s independent legal counsel. 
If, after the Executive receives any Gross-Up Payment or other amount
pursuant to this subparagraph, the Executive receives any refund with respect
to the Excise Tax, the Executive shall promptly pay the Employer the amount of
such refund within ten (10) days of receipt by the Executive.  Notwithstanding the foregoing, in the event
that the amount by which the present value of the Total Payments which would
constitute an Excess Parachute Payment is less than two percent (2%) of the
Total Payments, then such Excess Parachute Payment shall be deemed to be a “de Minimus Excess Amount” and the Executive
shall not be entitled to a Gross-Up Payment. 
In such a case, the Total Payments will be reduced to an amount (the “Non-Triggering Amount”), the value of which
is one dollar ($1.00) less than an amount equal to three (3) times Executive’s
“base amount,” as determined in accordance with Code Section 280G; provided
that such reduction shall not be made unless the Non-Triggering Amount would be
greater than the aggregate value of the Total Payments (without such reduction)
minus the amount of Excise Tax required to be paid by Executive thereon.  The allocation of the reduction required by
the preceding sentence shall be determined by the Executive.


 


(iii)          For
purposes of this Agreement, the term “Change
in Control” shall mean any of the following:


 


(A)          The consummation of the acquisition by
any person (as such term is defined in Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the “1934
Act”)) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the 1934 Act) of fifty percent (50%) or more of the combined
voting power of the then outstanding voting securities of the Employer or the
Bank; or


 


(B)           The individuals who, as of the date
hereof, are members of the Board of the Employer or the Bank cease for any
reason to constitute a majority of the Board, unless the election, or
nomination for election by the shareholders, of any new director was approved
by a vote of a majority of the Board, and such new director shall, for purposes
of this Agreement, be considered as a member of the Board; or


 


(C)           Approval by shareholders of the
Employer or the Bank of:  (1) a merger
or consolidation if the shareholders immediately before such merger or
consolidation do not, as a result of such merger or consolidation, own,
directly or


 


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indirectly, more than fifty percent (50%) of the
combined voting power of the then outstanding voting securities of the entity
resulting from such merger or consolidation in substantially the same
proportion as their ownership of the combined voting power of the voting
securities of the Employer or the Bank outstanding immediately before such
merger or consolidation; or (2) a complete liquidation or dissolution or an
agreement for the sale or other disposition of all or substantially all of the
assets of the Employer or the Bank.


 


Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because fifty percent (50%) or more of the
combined voting power of the then outstanding securities of the Employer or the
Bank is acquired by:  (1) a trustee or
other fiduciary holding securities under one or more employee benefit plans
maintained for employees of the Employer or the Bank; or (2) any corporation
which, immediately prior to such acquisition, is owned directly or indirectly
by the shareholders in the same proportion as their ownership of stock of the
Employer or the Bank immediately prior to such acquisition.


 


(g)           REGULATORY
SUSPENSION AND TERMINATION.


 


(i)            If
the Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the Employer’s affairs by a notice served under
Section 8(e)(3) (12 U.S.C. Section 1818(e)(3)) or 8(g) (12 U.S.C. Section
1818(g)) of the Federal Deposit Insurance Act, as amended, the Employer’s
obligations under this contract shall be suspended as of the date of service,
unless stayed by appropriate proceedings. 
If the charges in the notice are dismissed, the Employer shall (A) pay
the Executive all of the compensation withheld while the contract obligations
were suspended and (B) reinstate any of the obligations which were suspended.


 


(ii)           If
the Executive is removed and/or permanently prohibited from participating in
the conduct of the Employer’s affairs by an order issued under Section 8(e) (12
U.S.C. Section 1818(e)) or 8(g) (12 U.S.C. Section 1818(g)) of the Federal
Deposit Insurance Act, as amended, all obligations of the Employer under this
contract shall terminate as of the effective date of the order, but vested
rights of the contracting parties shall not be affected.


 


(iii)          If
the Employer is in default as defined in Section 3(x) (12 U.S.C. Section
1813(x)(1)) of the Federal Deposit Insurance Act, as amended, all obligations
of the Employer under this contract shall terminate as of the date of default,
but this paragraph shall not affect any vested rights of the contracting parties.


 


(iv)          All
obligations of the Employer under this contract shall be terminated, except to
the extent determined that continuation of the contract is necessary for the
continued operation of the institution by the Federal Deposit Insurance
Corporation (the “FDIC”), at the
time the FDIC enters into an agreement to provide assistance to or on behalf of
the Employer under the authority contained in Section 13(c) (12 U.S.C. Section
1823(c)) of the Federal Deposit Insurance Act, as amended, or when the Employer
is determined by the FDIC to be in an unsafe or unsound condition.  Any rights of the parties that have already
vested, however, shall not be affected by such action.


 


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(v)           Any
payments made to the Executive pursuant to this Agreement, or otherwise, are
subject to and conditioned upon their compliance with Section 18(k) (12 U.S.C.
Section 1828(k)) of the Federal Deposit Insurance Act as amended, and any
regulations promulgated thereunder.


 


(h)           CERTAIN
INSURANCE BENEFITS.


 


(i)            In
the event of the termination of Executive’s employment under this Agreement due
to the retirement of the Executive at or after the attainment of age sixty-two
(62), the Employer shall continue to provide the following benefits to the
Executive, at the expense of the Employer, until the Executive’s death: (A)
continuing coverage for the Executive and Executive’s Spouse under Employer’s
health, medical, hospitalization and life insurance programs (including dental,
vision and prescription drug coverage, if provided immediately prior to the
termination); and (B) long term care insurance in accordance with paragraph (f)
(LONG TERM CARE INSURANCE) of Section 3 above including making all required
payments relating to such insurance coverage.


 


(ii)           After
the occurrence of a Change in Control, the Employer shall continue to provide
the following benefits to the Executive, at the expense of the Employer, until
the Executive’s death: (A) continuing coverage that is equivalent to the
coverage provided under Employer’s health, medical, hospitalization and life
insurance programs (including dental, vision and prescription drug coverage, if
provided immediately prior to the termination) maintained by the Employer at
the time of the Change in Control; and (B) long term care insurance in
accordance with paragraph (f) (LONG TERM CARE INSURANCE) of Section 3 above
including making all required payments relating to such insurance coverage.


 


(iii)          In
the event of the termination of Executive’s employment under this Agreement
other than as contemplated above in this paragraph (h) or pursuant to paragraph
(c) (TERMINATION FOR CAUSE) above, at the election of the Executive (including
the estate of the Executive) and the Executive’s Spouse and provided such
action is not prohibited by the policy pursuant to which the Executive receives
the benefit contemplated in paragraph (f) (LONG TERM CARE INSURANCE) of Section
3 above, the Employer shall take all actions including, but not limited to, a
transfer and assignment of its interests in the long term health insurance
provided to the Executive pursuant to paragraph (f) (LONG TERM CARE INSURANCE)
of Section 3, above in order to facilitate the ability of the Executive and the
Executive’s Spouse to continue to maintain the long term health insurance at no
additional cost to the Employer.


 


6.             INTEREST
IN ASSETS.  Neither the Executive nor
his estate shall acquire hereunder any rights in funds or assets of the
Employer, otherwise than by and through the actual payment of amounts payable
hereunder; nor shall the Executive or his estate have any power to transfer,
assign, anticipate, hypothecate or otherwise encumber in advance any of said
payments; nor shall any of such payments be subject to seizure for the payment
of any debt, judgment, alimony, separate maintenance or be transferable by
operation of law in the event of bankruptcy, insolvency or otherwise of the
Executive.


 


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7.             INDEMNIFICATION.


 


(a)           INSURANCE.  The Employer shall provide the Executive
(including his heirs, personal representatives, executors and administrators)
for the term of this Agreement with coverage under a standard directors’ and
officers’ liability insurance policy at its expense.


 


(b)           INDEMNIFICATION
UNDER STATE LAW.  In addition to the
insurance coverage provided for in paragraph (a) of this Section 7, the
Employer shall hold harmless and indemnify the Executive (and his heirs,
executors and administrators) to the fullest extent permitted under applicable
law against all expenses and liabilities reasonably incurred by him in
connection with or arising out of any action, suit or proceeding in which he
may be involved by reason of his having been an officer of the Employer
(whether or not he continues to be an officer at the time of incurring such
expenses or liabilities), such expenses and liabilities to include, but not be
limited to, judgments, court costs and attorneys’ fees and the cost of
reasonable settlements.


 


(c)           ADVANCEMENT
OF EXPENSES.  In the event the
Executive becomes a party, or is threatened to be made a party, to any action,
suit or proceeding for which the Employer has agreed to provide insurance
coverage or indemnification under this Section 7, the Employer shall, to the
full extent permitted under applicable law, advance all expenses (including
reasonable attorneys’ fees), judgments, fines and amounts paid in settlement
(collectively “Expenses”) incurred
by the Executive in connection with the investigation, defense, settlement, or
appeal of any threatened, pending or completed action, suit or proceeding,
subject to receipt by the Employer of a written undertaking from the
Executive:  (i) to reimburse the
Employer for all Expenses actually paid by the Employer to or on behalf of the
Executive in the event it shall be ultimately determined that the Executive is
not entitled to indemnification by the Employer for such Expenses; and (ii) to
assign to the Employer all rights of the Executive to indemnification, under
any policy of directors’ and officers’ liability insurance or otherwise, to the
extent of the amount of Expenses actually paid by the Employer to or on behalf
of the Executive.


 


8.             GENERAL
PROVISIONS.


 


(a)           SUCCESSORS.  This Agreement is personal to the Executive
and shall not be assignable by the Executive other than by will or the laws of
descent and distribution.  This
Agreement shall inure to the benefit of and be enforceable by the Executive’s
designated beneficiary, or if none, Executive’s estate.  This Agreement shall be binding upon and
inure to the benefit of the Employer and its successors, and any successor of
the Employer shall be deemed the “Employer” hereunder.  The Employer shall require any successor to
all or substantially all of the business and/or assets of the Employer, whether
directly or indirectly, by purchase, merger, consolidation, acquisition of
stock, other business combination, or otherwise, by a written agreement in form
and substance satisfactory to the Executive, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent as the Employer would
be required to perform if no such succession had taken place.


 


(b)           ENTIRE
AGREEMENT; MODIFICATIONS.  This
Agreement, along with the Amended and Restated Life Insurance Agreement and the
Participation Agreement under the Deferred Compensation Plan, constitutes the
entire agreement between the parties respecting the subject


 


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matter hereof, and supersedes the 1997 Employment Agreement and all
prior negotiations, undertakings, agreements and arrangements with respect
hereto, whether written or oral. Except as otherwise explicitly provided
herein, this Agreement may not be amended or modified except by written
agreement signed by the Executive and the Employer.


 


(c)           ENFORCEMENT
AND GOVERNING LAW.  The provisions
of this Agreement shall be regarded as divisible and separate; if any of said
provisions should be declared invalid or unenforceable by a court of competent
jurisdiction, the validity and enforceability of the remaining provisions shall
not be affected thereby.  This Agreement
shall be construed and the legal relations of the parties hereto shall be
determined in accordance with the laws of the State of Illinois without reference
to the law regarding conflicts of law.


 


(d)           ARBITRATION.  Any dispute or controversy arising under or
in connection with this Agreement or the Executive’s employment by the Employer
shall be settled exclusively by arbitration, conducted by a single arbitrator
sitting in a location selected by the Executive within fifty (50) miles of the
main office of the Employer, in accordance with the rules of the American
Arbitration Association (the “AAA”)
then in effect.  The arbitrator shall be
selected by the parties from a list of arbitrators provided by the AAA,
provided that no arbitrator shall be related to or affiliated with either of
the parties.  No later than ten (10)
days after the list of proposed arbitrators is received by the parties, the
parties, or their respective representatives, shall meet at a mutually
convenient location or telephonically. 
At that meeting, the party who sought arbitration shall eliminate one
(1) proposed arbitrator and then the other party shall eliminate one (1)
proposed arbitrator.  The parties shall
continue to eliminate names from the list of proposed arbitrators in this
manner until a single proposed arbitrator remains.  This remaining arbitrator shall arbitrate the dispute.  Each party shall submit, in writing, the specific
requested action or decision it wishes to take, or make, with respect to the
matter in dispute, and the arbitrator shall be obligated to choose one (1)
party’s specific requested action or decision, without being permitted to
effectuate any compromise position. 
Judgment may be entered on the arbitrator’s award in any court having
jurisdiction; provided, however, that the Executive shall be entitled to seek
specific performance of his right to be paid through the date of termination
during the pendency of any dispute or controversy arising under or in
connection with this Agreement.


 


(e)           LEGAL
FEES.  All reasonable legal fees
paid or incurred by the Executive pursuant to any dispute or question of
interpretation relating to this Agreement shall be paid or reimbursed by the
Employer if the Executive is successful on the merits pursuant to a legal
judgment, arbitration or settlement.


 


(f)            SURVIVAL.  The provisions of Sections 4 and 7 shall
survive the termination of this Agreement.


 


(g)           WAIVER.  No waiver by either party at any time of any
breach by the other party of, or compliance with, any condition or provision of
this Agreement to be performed by the other party, shall be deemed a waiver of
any similar or dissimilar provisions or conditions at the same time or any
prior or subsequent time.


 


(h)           NOTICES.  Notices pursuant to this Agreement shall be
in writing and shall be deemed given when received; and, if mailed, shall be
mailed by United States registered or


 


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certified mail, return receipt requested, postage prepaid; and if to
the Employer, addressed to the principal headquarters of the Employer,
attention:  Chairman; or, if to the
Executive, to the address set forth below the Executive’s signature on this
Agreement, or to such other address as the party to be notified shall have
given to the other.


 


IN WITNESS
WHEREOF, the parties have executed this Agreement as of the date first above
written.


 


	
  WEST SUBURBAN BANCORP, INC.

  	
  MICHAEL P. BROSNAHAN

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/

  	
  Duane Debs

  	
   

  	
  /s/ Michael P. Brosnahan

  
	
  Name:

  	
  Duane Debs

  	
   

  	
   

  
	
   

  	
  President

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Address)

  



 


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