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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 

 
FORM 8-K
 

 
CURRENT REPORT
 
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
 
Date of Report (Date of earliest event reported): August 11, 2025
 

 
BANKFINANCIAL CORPORATION
(Exact Name of Registrant as Specified in Charter)
 
 

 
 
 
         
Maryland
 
0-51331
 
75-3199276
(State or Other Jurisdiction
of Incorporation)
 
(Commission File No.)
 
(I.R.S. Employer
Identification No.)
 
 
     
60 North Frontage Road, Burr Ridge, Illinois
 
60527
(Address of Principal Executive Offices)
 
(Zip Code)
 
 
Registrant’s telephone number, including area code: (800) 894-6900
 
Not Applicable
(Former name, former address and former fiscal year, if changed since last report) 
 
 

 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
 
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
Securities registered pursuant to Section 12(b) of the Act:
 
Title of each class
 
Trading
Symbol(s)
 
Name of each exchange on which registered
Common Stock, par value $0.01 per share
 
BFIN
 
The NASDAQ Stock Market LLC
 
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
 
Emerging growth company ☐
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
 






 
Item 5.02
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
 
On August 11, 2025, and in connection with BankFinancial Corporation (“BankFinancial”), the parent company of BankFinancial, National Association (“Bank Financial NA”), and First Financial Bancorp., the parent company of First Financial Bank, entering into an Agreement and Plan of Merger, dated as of August 11, 2025 (the “Merger Agreement”), BankFinancial and Bank Financial NA entered into amendments to the employment agreements with each of F. Morgan Gasior, President and Chief Executive Officer of BankFinancial and Bank Financial NA, and Paul A. Cloutier, Chief Financial Officer and Executive Vice President of BankFinancial and Bank Financial NA (collectively, the “Amendments”).  The Amendments provide: (i) for Mr. Gasior only, upon the closing of the transaction contemplated by the Merger Agreement, his employment will be terminated without cause and he will be entitled to a severance payment as provided under the employment agreements, as amended, (ii) for Mr. Cloutier only, subject to his continued employment through September 30, 2026, on the first payroll date following September 30, 2026, he will be entitled to a severance payment as provided under the employment agreements, as amended, provided he has not been paid a severance payment earlier than September 30, 2026, (iii) that severance payments will be reduced, if necessary, to avoid an excess parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended, and (iv) for new non-competition restrictions.
 
The foregoing description of the Amendments does not purport to be complete and is qualified in its entirety by reference to the Amendments, attached hereto as Exhibits 10.1 and 10.2, respectively.
 
 
Item 9.01.
Financial Statements and Exhibits.
 
(a)
 
Not Applicable.
(b)   Not Applicable.
(c)   Not Applicable.
(d)   Exhibits.
     
Exhibit No.   Description
10.1   Amendment Number One to the BankFinancial Corporation Amended and Restated Employment Agreement and BankFinancial, National Association Amended and Restated Employment Agreement with F. Morgan Gasior
10.2   Amendment Number One to the BankFinancial Corporation Amended and Restated Employment Agreement and BankFinancial, National Association Amended and Restated Employment Agreement with Paul A. Cloutier
104   Cover Page Interactive Data Files (embedded within the Inline XBRL Document)
 
 






 
SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
     
BANKFINANCIAL CORPORATION
(Registrant)
 
           
Date:
August 14, 2025  
By:
/s/ F. Morgan Gasior
 
       
F. Morgan Gasior
 
       
Chairman of the Board, Chief Executive Officer and President
 
 
 
EX-10.1 2 ex_852913.htm EXHIBIT 10.1 FMG ex_852913.htm

Exhibit 10.1

 

AMENDMENT NUMBER ONE

TO THE

BANKFINANCIAL CORPORATION AMENDED AND RESTATED EMPLOYMENT AGREEMENT AND BANKFINANCIAL, NATIONAL ASSOCIATION AMENDED AND RESTATED EMPLOYMENT AGREEMENT WITH F. MORGAN GASIOR

 

This Amendment Number One (the “Amendment”) to the BankFinancial Corporation Amended and Restated Employment Agreement effective as of May 3, 2022 (the “Company Agreement”) and the BankFinancial, National Association Amended and Restated Employment Agreement effective May 3, 2022 (the “Bank Agreement”) by and among BankFinancial Corporation, a Maryland corporation (the “Company”), BankFinancial, National Association, a national banking association (the “Bank”) and F. Morgan Gasior (the “Executive”) is entered into as of August 11, 2025. The Company Agreement and Bank Agreement are collectively referred to herein as the “Agreements.” Capitalized terms which are not defined herein shall have the same meaning as set forth in the Agreements.

 

W I T N E S S E T H:

 

WHEREAS, the Executive is currently employed as the President and Chief Executive Officer of the Company and the Bank pursuant to the terms of the Agreements; and

 

WHEREAS, the Company, the Bank and the Executive desire to amend the Agreements in several respects; and

 

WHEREAS, Section 11 of the Agreements provide that the Agreements may be amended.

 

NOW, THEREFORE, in consideration of the premises, the mutual agreements herein set forth and such other consideration the sufficiency of which is hereby acknowledged, the Agreements are hereby amended as follows:

 

Section 1.    Adverse Constructive Termination. Section 4(c)(2) of each of the Agreements is hereby deleted in its entirety.

 

Section 2.    Payment. A new Section 3(k) is added to each of the Agreements as follows:

 

“Payment. Subject to Executive's continued employment through September 30, 2026, on the Company's first payroll date following September 30, 2026, the Executive shall, if not paid a Severance Payment pursuant to an employment termination Settlement Agreement with the Company and Bank or its successors by merger, be paid a lump sum equal to the sum of (x) the amount per Sections 6(c)(2) and (4), plus (y) provided Executive has not been offered employment by the Company or the Bank, or either of its successors by merger, and accepted such employment, the amount per Section 6(g) ."

 

Section 3.     Termination on Merger Close. A new Section 4(d) is added to each of the Agreements as follows:

 

“Termination on Merger Close. Upon the closing of the transaction contemplated by the Agreement and Plan of Merger, dated as of August 11, 2025 by and between First Financial Bancorp., an Ohio corporation, and BankFinancial Corporation, a Maryland corporation, the Executive’s employment with the Company and the Bank shall be immediately terminated Without Cause and the terms of Section 6(c) shall apply.”

 

Section 4.    Termination for Disability. Sections 6(b)(4), (5) and (6) of each of the Agreements are hereby amended and restated to read as follows:

 

“(4)          pay Executive an amount equal to three (3) times Executive’s Average Annual Compensation (defined below);

 

(5)         [reserved];

 

(6)         provide the Executive with the payment per Section 6(g) below.”

 







 

 

Section 5.    Termination Without Cause. Sections 6(c)(5) and (6) of each of the Agreements are hereby amended and restated to read as follows:

 

“(5)         [reserved];

 

(6)         provide the Executive with the payment per Section 6(g) below.”

 

Section 6.    Termination for Good Reason. Section 6(e)(3) of each of the Agreements is hereby amended and restated to read as follows:

 

“(3) provide the Executive with the payment per Section 6(g) below.”

 

Section 7.    Termination Upon Death. Section 6(f)(3) of each of the Agreements is hereby amended and restated to read as follows:

 

“(3)         provide the Executive’s surviving spouse with the payment per Section 6(g) below.”

 

Section 8.    Cash in Lieu of Post-Employment Health Insurance. Section 6(g) of each of the Agreements is hereby amended and restated to read as follows:

 

“(g) Cash In Lieu of Certain Health Insurance. Notwithstanding anything in the Agreement to the contrary:

 

 

(1)

In the event of the Executive’s termination of employment pursuant to Section 4(b), Section 4(c), Section 5(b) or Section 5(c), the Company will pay the Executive, or in the event of the Executive’s death, then Executive’s surviving spouse (or, if no surviving spouse, then his qualified beneficiary under COBRA, or, if none, per Section 23(b) below), an amount equal to the product of (i) the premiums for the first full month of COBRA continuation coverage of the Executive’s benefits under the Core Plans (each such premium subject to the requirements of 29 U.S. Code Section 1162(b)(3)) multiplied by (ii) the number of full months in the period of time beginning on each applicable expiration date of health, vison or dental insurance coverage for the Executive under the Core Plans provided pursuant to Section 6 hereof (each such expiration date being the first day of the month immediately following the termination of employment) and ending on the earlier of: (A) the date that is thirty-six (36) months from the Executive’s termination of employment date, or (B) the date on which the Executive becomes entitled to benefits under Medicare coverage (and the date on which the Executive’s spouse becomes entitled to benefits under Medicare with respect to the right to continued coverage for such spouse).

 

 

(2)

The payment per subsection (g)(1) above will be made in a lump sum on the first payroll date following the Executive’s termination of employment.”

 

Section 9.    Definition of Change in Control. For purposes of this Agreement, a “Change in Control” means a “change of control” and “Change of Control”, as applicable, as defined in Section 5(b)(4) of the Agreements.

 

Section 10.    280G. A new Section 6(j) is added to each of the Agreements as follows:

 

“(j) Section 280G Limitation. Notwithstanding any other provisions of this Agreement, in no event shall the aggregate payments or benefits to be made or afforded to the Executive pursuant to this Agreement together with any other amounts and the value of benefits received or to be received by the Executive in connection with a Change in Control, constitute an "excess parachute payment" under Section 280G of the Code. In order to avoid such a result, such aggregate payments or benefits will be reduced, if necessary, to a lesser 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 said Section 280G.”

 

2

 

Section 11.        Non-Competition. A new Section 8(f) is added to each of the Agreements as follows:

 

“Non-Competition. The Executive acknowledges that Executive serves a critical business role and has acquired confidential information about the business, operations, customers, and partners of the Company, the Bank and their affiliates and developed critical relationships with the Company's and the Bank's customers. In exchange for compensation and benefits set forth in this Agreement, including, but limited to, the payments set forth in Section 6, and in order to enforce the Executive's promise to protect Confidential Information, the Executive shall not, during the Non-Restriction Period (as defined below), without the written consent of Company and Bank, either directly or indirectly become an officer, employee, consultant, director, independent contractor, agent, sole proprietor, joint venturer, greater than 5% equity-owner or stockholder, partner or trustee of any savings bank, savings and loan association, savings and loan holding company, credit union, bank or bank holding company, insurance company or agency, any mortgage or loan broker or any other entity competing with Company, Bank, their affiliates or successors in the Territory.

 

(1)         'Restriction Period' means two (2) years immediately following the termination date of the Executive's employment; except that if a court or arbitrator finds that a two (2) year Restriction Period is not reasonably necessary to protect legitimate business interests of the Company or the Bank, the Restriction Period shall be the eighteen (18) months immediately following the termination date of the Executive's employment; except that if a court or arbitrator finds that an eighteen (18) month Restriction Period is not reasonably necessary to protect legitimate business interests of the Company or the Bank, the Restriction Period shall be the twelve (12) months immediately following the termination date of the Executive's employment.

 

(2)         'Territory' means the States of Illinois and Indiana; except that if a court or arbitrator finds that the States of Illinois and Indiana as a Territory are not reasonably necessary to protect legitimate business interests of the Company or the Bank, then the Parties agree that the Territory shall be the Chicago Metropolitan Statistical Area (MSA)."

 

Section 12.      Beneficiary. Section 23(b) of each of the Agreements is hereby restated to read as follows:

 

“(b)   Beneficiary. In the event of the Executive’s death, any amounts to be paid to the Executive shall be paid to the Executive’s Beneficiary. The ‘Beneficiary’ will be the beneficiary or beneficiaries named by the Executive (which may be the trustee of a trust established by the Executive), with such designation to be done in a written instrument that must be received by the Company prior to the Executive’s death. In the event there is no such named beneficiary, or no surviving named beneficiary, then the Beneficiary shall be the Executive’s surviving spouse, or, if none, the Executive’s Representative per the terms of 755 ILCS Sec. 1-2.15. In the event of the Executive’s incapacity, any amounts to be paid to the Executive shall be paid to the Executive care of the Executive’s spouse, or, if none, then care of the Executive’s Representative per the terms of 755 ILCS Sec. 1-2.15.”

 

Section 13.    Code Section 409A Limitations. Section 24(e) of the Agreements is hereby restated to read as follows:

 

“(e) Code Section 409A Limitations. To the extent: (i) any portion of the applicable payment amount under this Agreement exceeds the “safe harbor” amount described in Treasury Regulation Section 1.409A-1(b)(9)(iii)(A), (ii) receipt of such payment is contingent on the Executive providing a release as referenced in Section 6(i) above, and (iii) the period in which the Executive may sign such release crosses two calendar years; then the Executive shall receive such portion of the applicable payment that exceeds the “safe harbor” amount on the first payroll date falling in the second calendar year.” Section 14. Tax Matters. Section 25 of the Agreements is hereby added to read as follows:

 

3

 

 

“25         TAX MATTERS. If the Executive’s employment is terminated following a Change in Control, the parties may mutually agree to a non-competition restriction which shall apply for a period of time mutually agreed to by the parties, and in no event shall the time period be less than six months or exceed two years. The Company and the Executive hereby recognize that: (i) the non-solicitation restriction in Section 8 of this Agreement and any non competition restriction may have value, and (ii) the value, if any, shall be recognized in any calculations the Company performs with respect to determining the affect, if any, of the parachute payment provisions of Section 280G of the Code (‘Section 280G’), by allocating a portion of any payments, benefits or distributions in the nature of compensation (within the meaning of Section 280G(b)(2)), including the payments under Section 6 of this Agreement, to the fair value of the non-solicitation and non-competition restrictions (the ‘Appraised Value’). The Company, at the Company’s expense, shall obtain an independent appraisal to determine the Appraised Value no later than forty-five (45) days after entering into an agreement, that if completed, would constitute a Change in Control as defined in this Agreement. The Appraised Value will be considered reasonable compensation for post Change in Control services within the meaning of Q&A-40 of the regulations under Section 280G; and accordingly, any aggregate parachute payments, as defined in Section 280G, will be reduced by the Appraised Value.”

 

Section 15.      Continuation of Agreements. Except as expressly set forth herein, this Amendment shall not by implication or otherwise alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect and shall be otherwise unaffected.

 

Section 16.      Governing Law. This Amendment and the rights and obligations hereunder shall be governed by and construed in accordance with the laws of the State of Illinois.

 

Section 17.      Counterparts. This Amendment may be executed in any number of counterparts, each of which shall for all purposes be deemed an original, and all of which together shall constitute but one and the same instrument. Counterparts may be delivered via facsimile, email (including PDF) or DocuSign, Adobe Sign or similar transmission system, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.

 

Signature page follows.

 

4

 

IN WITNESS WHEREOF, the Company, the Bank and the Executive have duly executed this Amendment as of the day and year first written above.

 

 

 

BANKFINANCIAL CORPORATION
 

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

Patricia Smith Lawler

 

 

 

Executive Vice President of the Human

Resources Division of the Company

 

       
  BANKFINANCIAL, NATIONAL ASSOCIATION  
       
       
  By:    
    Patricia Smith Lawler  
   

Executive Vice President of the Human

Resources Division of the Company

 
       
       
     
  F. MORGAN GASIOR  

 

 

 

(Signature Page to Amendment to Dual Employment Agreement)

EX-10.2 3 ex_852914.htm EXHIBIT 10.2 PAC AMEND ex_852914.htm

Exhibit 10.2

 

AMENDMENT NUMBER ONE

TO THE

BANKFINANCIAL CORPORATION AMENDED AND RESTATED EMPLOYMENT AGREEMENT AND BANKFINANCIAL, NATIONAL ASSOCIATION AMENDED AND RESTATED EMPLOYMENT AGREEMENT WITH PAUL A. CLOUTIER

 

This Amendment Number One (the “Amendment”) to the BankFinancial Corporation Amended and Restated Employment Agreement effective as of May 3, 2022 (the “Company Agreement”) and the BankFinancial, National Association Amended and Restated Employment Agreement effective May 3, 2022 (the “Bank Agreement”) by and among BankFinancial Corporation, a Maryland corporation (the “Company”), BankFinancial, National Association, a national banking association (the “Bank”) and Paul A. Cloutier (the “Executive”) is entered into as of August 11, 2025. The Company Agreement and Bank Agreement are collectively referred to herein as the “Agreements.” Capitalized terms which are not defined herein shall have the same meaning as set forth in the Agreements.

 

W I T N E S S E T H:

 

WHEREAS, the Executive is currently employed as the Chief Financial Officer and Executive Vice President of the Company and the Bank pursuant to the terms of the Agreements; and

 

WHEREAS, the Company, the Bank and the Executive desire to amend the Agreements in several respects; and

 

WHEREAS, Section 11 of the Agreements provide that the Agreements may be amended.

 

NOW, THEREFORE, in consideration of the premises, the mutual agreements herein set forth and such other consideration the sufficiency of which is hereby acknowledged, the Agreements are hereby amended as follows:

 

Section 1.    Adverse Constructive Termination. Section 4(c)(2) of each of the Agreements is hereby deleted in its entirety.

 

Section 2.    Payment. A new Section 3(k) is added to each of the Agreements as follows:

 

“Payment. Subject to Executive's continued employment through September 30, 2026, on the Company's first payroll date following September 30, 2026, the Executive shall, if not paid a Severance Payment pursuant to an employment termination Settlement Agreement with the Company and Bank or its successors by merger, be paid a lump sum equal to the sum of (x) the amount per Sections 6(c)(2) and (4), plus (y) provided Executive has not been offered employment by the Company or the Bank, or either of its successors by merger, and accepted such employment, the amount per Section 6(g) ."

 

Section 3.    Termination for Disability. Sections 6(b)(4), (5) and (6) of each of the Agreements are hereby amended and restated to read as follows:

 

“(4)          pay Executive an amount equal to three (3) times Executive’s Average Annual Compensation (defined below);

 

(5)         [reserved];

 

(6)         provide the Executive with the payment per Section 6(g) below.”

 

Section 4.    Termination Without Cause. Sections 6(c)(5) and (6) of each of the Agreements are hereby amended and restated to read as follows:

 

“(5)         [reserved];

 

(6)         provide the Executive with the payment per Section 6(g) below.”

 







 

 

Section 5.    Termination for Good Reason. Section 6(e)(3) of each of the Agreements is hereby amended and restated to read as follows:

 

“(3) provide the Executive with the payment per Section 6(g) below.”

 

Section 6.    Termination Upon Death. Section 6(f)(3) of each of the Agreements is hereby amended and restated to read as follows:

 

“(3)         provide the Executive’s surviving spouse with the payment per Section 6(g) below.”

 

Section 7.    Cash in Lieu of Post-Employment Health Insurance. Section 6(g) of each of the Agreements is hereby amended and restated to read as follows:

 

“(g) Cash In Lieu of Certain Health Insurance. Notwithstanding anything in the Agreement to the contrary:

 

 

(1)

In the event of the Executive’s termination of employment pursuant to Section 4(b), Section 4(c), Section 5(b) or Section 5(c), the Company will pay the Executive, or in the event of the Executive’s death, then Executive’s surviving spouse (or, if no surviving spouse, then his qualified beneficiary under COBRA, or, if none, per Section 23(b) below), an amount equal to the product of (i) the premiums for the first full month of COBRA continuation coverage of the Executive’s benefits under the Core Plans (each such premium subject to the requirements of 29 U.S. Code Section 1162(b)(3)) multiplied by (ii) the number of full months in the period of time beginning on each applicable expiration date of health, vison or dental insurance coverage for the Executive under the Core Plans provided pursuant to Section 6 hereof (each such expiration date being the first day of the month immediately following the termination of employment) and ending on the earlier of: (A) the date that is thirty-six (36) months from the Executive’s termination of employment date, or (B) the date on which the Executive becomes entitled to benefits under Medicare coverage (and the date on which the Executive’s spouse becomes entitled to benefits under Medicare with respect to the right to continued coverage for such spouse).

 

(2)

The payment per subsection (g)(1) above will be made in a lump sum on the first payroll date following the Executive’s termination of employment.”

 

Section 8.    Definition of Change in Control. For purposes of this Agreement, a “Change in Control” means a “change of control” and “Change of Control”, as applicable, as defined in Section 5(b)(4) of the Agreements.

 

Section 9.    280G. A new Section 6(j) is added to each of the Agreements as follows:

 

“(j) Section 280G Limitation. Notwithstanding any other provisions of this Agreement, in no event shall the aggregate payments or benefits to be made or afforded to the Executive pursuant to this Agreement together with any other amounts and the value of benefits received or to be received by the Executive in connection with a Change in Control, constitute an "excess parachute payment" under Section 280G of the Code. In order to avoid such a result, such aggregate payments or benefits will be reduced, if necessary, to a lesser 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 said Section 280G.”

 

Section 10.    Non-Competition. A new Section 8(f) is added to each of the Agreements as follows:

 

“Non-Competition. The Executive acknowledges that Executive serves a critical business role and has acquired confidential information about the business, operations, customers, and partners of the Company, the Bank and their affiliates and developed critical relationships with the Company's and the Bank's customers. In exchange for compensation and benefits set forth in this Agreement, including, but limited to, the payments set forth in Section 6, and in order to enforce the Executive's promise to protect Confidential Information, the Executive shall not, during the Non-Restriction Period (as defined below), without the written consent of Company and Bank, either directly or indirectly become an officer, employee, consultant, director, independent contractor, agent, sole proprietor, joint venturer, greater than 5% equity-owner or stockholder, partner or trustee of any savings bank, savings and loan association, savings and loan holding company, credit union, bank or bank holding company, insurance company or agency, any mortgage or loan broker or any other entity competing with Company, Bank, their affiliates or successors in the Territory.

 

(1)         'Restriction Period' means two (2) years immediately following the termination date of the Executive's employment; except that if a court or arbitrator finds that a two (2) year Restriction Period is not reasonably necessary to protect legitimate business interests of the Company or the Bank, the Restriction Period shall be the eighteen (18) months immediately following the termination date of the Executive's employment; except that if a court or arbitrator finds that an eighteen (18) month Restriction Period is not reasonably necessary to protect legitimate business interests of the Company or the Bank, the Restriction Period shall be the twelve (12) months immediately following the termination date of the Executive's employment.

 

(2)         'Territory' means the States of Illinois and Indiana; except that if a court or arbitrator finds that the States of Illinois and Indiana as a Territory are not reasonably necessary to protect legitimate business interests of the Company or the Bank, then the Parties agree that the Territory shall be the Chicago Metropolitan Statistical Area (MSA)."

 

Section 11.    Beneficiary. Section 23(b) of each of the Agreements is hereby restated to read as follows:

 

“(b) Beneficiary. In the event of the Executive’s death, any amounts to be paid to the Executive shall be paid to the Executive’s Beneficiary. The ‘Beneficiary’ will be the beneficiary or beneficiaries named by the Executive (which may be the trustee of a trust established by the Executive), with such designation to be done in a written instrument that must be received by the Company prior to the Executive’s death. In the event there is no such named beneficiary, or no surviving named beneficiary, then the Beneficiary shall be the Executive’s surviving spouse, or, if none, the Executive’s Representative per the terms of 755 ILCS Sec. 1-2.15. In the event of the Executive’s incapacity, any amounts to be paid to the Executive shall be paid to the Executive care of the Executive’s spouse, or, if none, then care of the Executive’s Representative per the terms of 755 ILCS Sec. 1-2.15.”

 

Section 12.    Code Section 409A Limitations. Section 24(e) of the Company Agreement is hereby restated to read as follows:

 

“(e) Code Section 409A Limitations. To the extent: (i) any portion of the applicable payment amount under this Agreement exceeds the “safe harbor” amount described in Treasury Regulation Section 1.409A-1(b)(9)(iii)(A), (ii) receipt of such payment is contingent on the Executive providing a release as referenced in Section 6(i) above, and (iii) the period in which the Executive may sign such release crosses two calendar years; then the Executive shall receive such portion of the applicable payment that exceeds the “safe harbor” amount on the first payroll date falling in the second calendar year.” Section 13. Tax Matters. Section 25 of the Agreements is hereby added to read as follows:

 

2

 

 

“25         TAX MATTERS. If the Executive’s employment is terminated following a Change in Control, the parties may mutually agree to a non-competition restriction which shall apply for a period of time mutually agreed to by the parties, and in no event shall the time period be less than six months or exceed two years. The Company and the Executive hereby recognize that: (i) the non-solicitation restriction in Section 8 of this Agreement and any non competition restriction may have value, and (ii) the value, if any, shall be recognized in any calculations the Company performs with respect to determining the affect, if any, of the parachute payment provisions of Section 280G of the Code (‘Section 280G’), by allocating a portion of any payments, benefits or distributions in the nature of compensation (within the meaning of Section 280G(b)(2)), including the payments under Section 6 of this Agreement, to the fair value of the non-solicitation and non-competition restrictions (the ‘Appraised Value’). The Company, at the Company’s expense, shall obtain an independent appraisal to determine the Appraised Value no later than forty-five (45) days after entering into an agreement, that if completed, would constitute a Change in Control as defined in this Agreement. The Appraised Value will be considered reasonable compensation for post Change in Control services within the meaning of Q&A-40 of the regulations under Section 280G; and accordingly, any aggregate parachute payments, as defined in Section 280G, will be reduced by the Appraised Value.”

 

Section 14.    Continuation of Agreements. Except as expressly set forth herein, this Amendment shall not by implication or otherwise alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect and shall be otherwise unaffected.

 

Section 15.    Governing Law. This Amendment and the rights and obligations hereunder shall be governed by and construed in accordance with the laws of the State of Illinois.

 

Section 16.    Counterparts. This Amendment may be executed in any number of counterparts, each of which shall for all purposes be deemed an original, and all of which together shall constitute but one and the same instrument. Counterparts may be delivered via facsimile, email (including PDF) or DocuSign, Adobe Sign or similar transmission system, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.

 

Signature page follows.

 

3

 

IN WITNESS WHEREOF, the Company, the Bank and the Executive have duly executed this Amendment as of the day and year first written above.

 

 

 

BANKFINANCIAL CORPORATION

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

F. Morgan Gasior

 

 

 

Chairman of the Board of Directors

 

       
       
  BANKFINANCIAL, NATIONAL ASSOCIATION  
       
       
  By:    
    F. Morgan Gasior  
    Chairman of the Board of Directors  
       
       
       
       
     
  PAUL A. CLOUTIER