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 29th day of December, 2008 (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.            The
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 March 8,
2004, as amended (the “Employment Agreement”).


 


E.             The
parties desire to amend and restate the Employment Agreement in accordance with
the terms, and subject to the conditions, set forth herein in order to comply
with the requirements of Section 409A of the Internal Revenue Code of
1986, as amended, and the related U.S. Treasury Department regulations and
guidance promulgated thereunder (“Code Section 409A”).


 


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 the
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, 2011.  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, 2009, 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 twenty eight thousand three
hundred fifty five and 30/100 dollars ($228,355.30) 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 2009 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”).  The Bonus, if any, shall be paid no later
than March 15th of the year following the calendar year in
which the Bonus is earned.


 


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


 


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such reimbursement shall be made no later than the end
of the calendar year following the year in which the dues or other charges were
incurred.


 


(d)           DEFERRED
COMPENSATION.  The Employer shall
make contributions for the benefit of the Executive to the Employer’s Directors
and Senior Management Deferred Compensation Plan (“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.  The Executive shall receive paid
vacation days of at least such number of paid vacation days as the 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.  The
Employer shall provide the Executive and the 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; provided that such reimbursement will be
made as soon as practicable and, when taxable to the Executive, shall be made
no later than the end of the calendar year following the year in which the
expenses or other charges were incurred.


 


(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.


 


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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 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.  The Executive’s employment during the term of
this Agreement may be terminated by the Employer or the Executive without any
breach of this Agreement only under the circumstances described in this Section 5
(where such termination constitutes a “separation from service” pursuant to
Code Section 409A):


 


(a)           AGREEMENT
NON-EXTENSION OR EMPLOYMENT TERMINATION BY THE EMPLOYER AND TERMINATION BY THE
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), the Employer shall pay the Executive a lump sum
payment equal to the sum of the amount of his Base Salary payable for the
remainder of the current term, plus the amount of the Executive’s annual
Bonus(es) payable for the remainder of the current term based on an amount
equal to the average of his most recent three (3) years’ annual Bonus
amounts.  Such payment shall be paid to
the Executive within thirty (30) days of the Executive’s termination of
employment.  In addition, the Employer
shall continue to provide coverage for the Executive at the same or equivalent
level as the Executive’s coverage prior to his termination of employment 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) by payment of the applicable premiums and reimbursements in
accordance with the Employer’s standard payment practice, unless unable to
continue such coverage by law, for the remainder of the term 


 


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of this Agreement, provided, however, that the payment of these amounts by the
Employer shall not offset or diminish any compensation or benefits accrued as
of the date of termination.  In the event
of a 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 pursuant to the Employer’s
standard payroll practice; (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 pursuant to the Employer’s standard Bonus payment
practices; and (C) continue to provide coverage for the Executive at the
same or equivalent level as the Executive’s coverage prior to the non-extension
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) by payment of the applicable premiums and reimbursements in
accordance with the Employer’s standard payment practice, 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 the notice of non-extension.  In
addition, within thirty (30) days of the 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 the 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 the Executive and as amended from
time to time and such retirement plans under which the Executive participated
at the time of the termination of his employment.


 


(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 forty-five (45) 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 the 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 


 


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and practices concerning
reimbursement of expenses.  Further
provided, that the 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 the Executive and as amended from time to time and such retirement plans
under which the Executive participated at the time of the termination of his
employment.


 


(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, as permitted
pursuant to Code Section 409A, 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 the
initial existence of such Constructive Discharge condition, 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 8 hereof; provided, however,
the Employer shall have thirty (30)
days from the date of such notice in which to cure the condition giving rise to
a Constructive Discharge, if curable. 
If, during such thirty (30) day period, the Employer cures the condition
giving rise to Constructive Discharge, then the Executive’s notice of
termination hereunder shall not be effective, the Executive’s employment shall
continue until otherwise terminated under this Agreement, and no benefits shall
be due under this Agreement with respect to such occurrence.  If the Employer fails to cure the condition
giving rise to Constructive Discharge within such thirty (30) day period,
the Executive shall 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
to be paid within thirty (30) days of the Executive’s termination of
employment.


 


(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 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.


 


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(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.  The 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 the
Executive’s termination for Cause, the Employer shall have no obligations to
the 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, the 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 the Executive and as amended from
time to time and such retirement plans under which the Executive participated
at the time of the termination of his employment.


 


(d)           TERMINATION UPON
DEATH.  Upon the Executive’s death,
the Employer shall have no obligations to the 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 date of death; (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, the 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 the Executive and as amended from time to time and such
retirement plans under which the Executive participated at the time of his
death.  Payment shall be made to such
beneficiary as the 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.


 


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(e)           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’ Employer contributions to all
Employer-sponsored tax-qualified retirement plans; plus (z) the average of
his most recent three (3) years’ annual Bonuses.  The payment of such lump sum shall be paid to
the Executive within thirty (30) days of his termination of employment.  In the event of a Change in Control, the Employer
shall also provide the Executive with the benefits contemplated in subparagraph
(ii) of paragraph (g) (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, the 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
the Executive and as amended from time to time and such retirement plans under
which the Executive participated at the time of the termination of his
employment 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 (e).  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)           The
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


 


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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 any Gross-Up Payment).  Such
Gross-Up Payment shall be paid to the Executive no later than the end of the
Executive’s taxable year following the taxable year in which the Executive
remits the Excise Tax.  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, which amounts shall be paid to the Executive no later than the end of
the Executive’s taxable year following the taxable year in which the Executive
remits the deficient Excise Tax.  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 the
Executive’s “base amount,” as determined in accordance with Code Section 280G;
provided, however, 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 the Executive thereon.  The allocation of the reduction required by
the preceding sentence shall be determined by the Executive and the Executive
shall notify the Employer in writing of the allocation; provided,
however, that if the Executive fails to notify the Employer, then
the Employer shall make the allocation; and provided further, however,
that any such allocation shall not be effective where it would result in an
imposition of additional income tax under Code Section 409A.


 


(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


 


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(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)           Consummation
by 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 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.


 


(f)            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.


 


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(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.


 


(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.


 


(g)           CERTAIN INSURANCE
BENEFITS.


 


(i)            In the event of the
termination of the Executive’s employment under this Agreement due to “retirement”
(as hereinafter defined), 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 the Executive’s
Spouse under the 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.  The term “retirement” for
purposes of this paragraph (g) shall mean the Executive:  (a) terminates employment at or after
the attainment of age 62; and (b) does not engage in any form of gainful
employment on or after his termination of employment.  The continued coverage under this
subparagraph (g)(i) shall be for benefits at a level equivalent to the
Executive’s benefits at the time of the Executive’s termination of employment.
The continued coverage under this subparagraph (g)(i) shall terminate
upon the Executive’s engaging in any gainful employment on or after his
termination of employment.


 


(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 the 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 the Executive’s employment under this Agreement other than as
contemplated above in this paragraph (g) or pursuant to paragraph (c) (TERMINATION
FOR CAUSE) of Section 5 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 


 


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necessary, 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.


 


(iv)          The payment of premiums
for insurance benefits listed in this paragraph (g) shall be remitted to
the appropriate carrier no later than thirty (30) days following receipt of the
applicable premium invoice.


 


6.             PAYMENT UPON
DISABILITY.  If during the term of this
Agreement the Executive is deemed to have a Disability (as hereinafter
defined), the Employer shall provide the Executive with the payments and
benefits set forth in this Section 6. 
“Disability,” for purposes of this
Agreement shall mean that: (i) the Executive is unable to engage in any
substantial gainful activity by reason of any medically determinable physical
or mental impairment that can be expected to result in death or can be expected
to last for a continuous period of not less than twelve (12) months, or (ii) the
Executive is, by reason of any medically determinable physical or mental
impairment that can be expected to result in death or can be expected to last
for a continuous period of not less than twelve (12) months, receiving income
replacement benefits for a period of not less than three (3) months under
an accident and health plan covering employees of the Employer.  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.  If the
Executive is determined to have a Disability, 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 by the payment of applicable premiums in accordance
with the Employer’s standard payment practice until the earlier of the date the
Executive returns to full-time employment, either with the Employer or another
employer, or the Executive’s normal retirement age under the Social Security
Act, as amended.  In addition, if the
Executive’s employment is terminated following his Disability, 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 the 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 the Executive and as
amended from time to time and such retirement plans under which the Executive
participated at the time of his termination. 
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 


 


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maintained by the Employer on his behalf transferred
to him, and he shall assume all obligations thereunder.


 


7.             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.


 


8.             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 8,
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 8, 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.


 


9.             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, the Executive’s estate.  This Agreement shall be binding upon and
inure 


 


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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 matter hereof, and
supersedes all prior employment agreements 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
JAMS/Endispute (“JAMS”) then in effect.  The arbitrator shall be selected by the
parties from a list of arbitrators provided by JAMS, 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.  The Employer shall make any
required payment under this paragraph 


 


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(e) as soon as practicable following the time at
which such expense and/or fee is incurred, but in no event later than December 31
of the year following the year in which the expense and/or fee is incurred by
the Executive.


 


(f)            SURVIVAL.  The provisions of Sections 4 and 8 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 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.


 


(i)            INTERNAL REVENUE
CODE SECTION 409A.


 


(i)            To the extent that any
of the terms and conditions contained herein constitute an amendment or
modification of the time or manner of payment under a non-qualified deferred
compensation plan (as defined under Code Section 409A), then to the extent
necessary under the transitional guidance under Internal Revenue Service Notice
2007-86, this Agreement, as amended, constitutes an amendment to, and a new
election under, such deferred compensation plan, in order to properly modify
the time or manner of payment consistent with such guidance.


 


(ii)           It is intended that the
Agreement shall comply with the provisions of Code Section 409A so as not
to subject the Executive to the payment of additional taxes and interest under
Code Section 409A.  In furtherance
of this intent, this Agreement shall be interpreted, operated and administered
in a manner consistent with these intentions, and to the extent that any
regulations or other guidance issued under Code Section 409A would result
in the Executive being subject to payment of additional income taxes or
interest under Code Section 409A, the parties agree to amend the Agreement
to maintain to the maximum extent practicable the original intent of the
Agreement while avoiding the application of such taxes or interest under Code Section 409A.


 


(iii)          Notwithstanding any
provision in the Agreement to the contrary if, as of the effective date of the
Executive’s termination of employment, he is a Specified Employee (as
hereinafter defined), then, only to the extent required pursuant to Code Section 409A(a)(2)(B)(i),
payments due under this Agreement which are deemed to be deferred compensation
shall be subject to a six (6) month delay following the Executive’s
separation from service.  For purposes of
Code Section 409A, all installment payments of deferred compensation made
hereunder, or pursuant to another plan or arrangement, shall be deemed to be
separate payments and, accordingly, the aforementioned deferral shall only
apply to separate payments which would occur during the six (6) month
deferral period and all other payments shall be unaffected.  All 


 


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delayed payments shall be
accumulated and paid in a lump-sum catch-up payment as of the first day of the
seventh-month following separation from service (or, if earlier, the date of
death of the Executive) with all such delayed payments being credited with
interest (compounded monthly) for this period of delay equal to the prime rate
in effect on the first day of such six-month period.  Any portion of the benefits hereunder that
were not otherwise due to be paid during the six-month period following the
termination shall be paid to the Executive in accordance with the payment
schedule established herein.


 


(iv)          The term “Specified Employee” shall mean any person
who is a “key employee” (as defined in Code Section 416(i) without
regard to paragraph (5) thereof), as determined by the Employer based upon
the 12-month period ending on each December 31st (such 12-month period is
referred to below as the “identification period”).  If the Executive is determined to be a key
employee under Code Section 416(i) (without regard to paragraph (5) thereof)
during the identification period he shall be treated as a Specified Employee
for purposes of this Agreement during the 12-month period that begins on the April 1
following the close of such identification period.  For purposes of determining whether the
Executive is a key employee under Code Section 416(i), “compensation”
shall mean the Executive’s W-2 compensation as reported by the Employer for a
particular calendar year.


 


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 G. Debs

  	
   

  	
  /s/ Michael P. Brosnahan

  
	
  Name: 

  	
  Duane Debs

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Address)

  



 


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