Exhibit 10.4


 


WEST
SUBURBAN BANCORP, INC.


 


RESTATED EMPLOYMENT AGREEMENT – DUANE G. DEBS


 


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 DUANE G. DEBS, 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 President and Chief Financial Officer of Employer and
the Senior Vice President, Comptroller and Trust 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 President
and Chief Financial Officer of the Employer and as the Senior Vice President,
Comptroller and Trust 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 fourteen thousand two
hundred forty four and 91/100 dollars ($214,244.91) 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)           DEFERRED COMPENSATION.  The Employer shall make contributions for the
benefit of the Executive to the Employer’s Directors and Senior Management
Deferred 


 


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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).


 


(d)           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.


 


(e)           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.


 


(f)            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.


 


(g)           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.


 


(h)           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 


 


3

















 


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 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 


 


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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 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 


 


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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.


 


(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


 


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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.


 


(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 


 


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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 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


 


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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


 


(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


 


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(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.


 


(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 


 


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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 (e) (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 (e) (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 (e) (LONG TERM CARE INSURANCE) of Section 3
above, the Employer shall take all actions 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 (e) (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.


 


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(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 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;


 


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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 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.


 


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(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 (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.


 


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(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 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.


 


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(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.

  	
  DUANE G. DEBS

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Kevin J. Acker

  	
   

  	
  /s/ Duane G. Debs

  
	
  Name:

  	
  Kevin J. Acker

  	
   

  
	
  Title:

  	
  Chief Executive Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Address)

  
					



 


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