AGREEMENT
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This Agreement ("Agreement") is made and entered into as of this 6th day
of October, 2003, by and between Xxxxxxx X. Xxxxx (hereinafter referred to as
the "Executive") and UnionBancorp, Inc. (hereinafter referred to as the
"Company").
RECITALS
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A. Executive has provided many years of service to the Company and its
Affiliates (the term "Affiliates" as used herein means any direct or indirect
subsidiary of the Company).
B. Satisfaction of this Agreement shall fully satisfy the obligations
of the Company and the Executive under any and all contracts, benefit plans,
employment policies, perquisites and programs of the Company.
AGREEMENTS
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NOW, THEREFORE, in consideration of the recitals and the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
Section 1. Termination of Employment and Duties. The parties agree that the
Executive has resigned and retired from employment with the Company and each of
its Affiliates. Effective September 3, 2003, Executive relinquished his titles
as President and Chief Executive Officer of the Company and also resigned and
retired from all other positions he had with the Company and the Affiliates,
including all positions on the Company's and the Affiliates' Boards of
Directors.
Section 2. Payments to Executive. In satisfaction of the Company's and the
Affiliates' obligations under any and all contracts, employee benefit plans,
employment policies, perquisites and programs of the Company and the Affiliates
and as consideration for the promises made in this Agreement, including the
waivers and releases provided for in Section 7, the Company shall pay Executive
the following amounts:
(a) Executive shall be paid monthly Five Thousand Dollars ($5,000.00)
for a period of eighteen (18) consecutive monthly periods commencing October 31,
2003 and ending March 31, 2005.
(b) The Company shall continue in effect the bank owned life insurance
policy ("BOLI") on the life of Executive which provides for a benefit of Six
Hundred Thousand Dollars ($600,000.00) to be paid to a beneficiary designated by
the Executive upon the death of the Executive. In the event the Company shall
elect to terminate or otherwise modify the BOLI policy, it will make other
arrangements to provide for a benefit of Six Hundred Thousand Dollars
($600,000.00) to be paid to such beneficiary upon the Executive's death. The
Company will notify executive not less than thirty (30) days prior to any
termination or material modification of the BOLI policy.
(c) Nothing contained herein shall be deemed to affect any rights the
Executive may have under any qualified plans of the Company or the Affiliates or
any stock option rights the Executive may have.
Executive acknowledges and agrees:
(i) All payments to be made to Executive shall be subject to all
withholding requirements imposed by state and federal law.
(ii) Executive expressly agrees, understands, and acknowledges that
the payments and benefits provided the Executive under this
Section 2 constitute an amount in excess of that to which an
employee otherwise terminating his employment with the Company
would be entitled to receive. The Executive acknowledges that
the above payments and benefits are being provided as
consideration for the Executive's entering into this
Agreement, including the release of claims and waiver of
rights provided for in Section 7.
Section 3. Conduct. Executive agrees that, at all times following the signing
of this Agreement, he shall not make Negative Statements about the Company or
the Affiliates. The Company agrees that, at all times following the signing of
this Agreement, its directors and executive officers shall not make any Negative
Statements about the Executive. The term Negative Statements shall mean false,
negative, critical or disparaging statements, in the case of the Company,
concerning the Company or the Affiliates, its management, its method of doing
business, the quality of its products and services, its role in the community,
or its treatment of employees, including the Executive, and in the case of the
Executive, concerning the Executive or his job performance. Executive and the
Company each further agree to do nothing that would damage the other's
reputation or goodwill. Nothing contained herein shall preclude the Company or
the Affiliates from making such statements as the Company may deem necessary or
appropriate, upon advice from legal counsel, in conjunction with securities or
banking laws or other legal requirements.
Section 4. Cooperation. For a period of eighteen (18) months after the date
hereof, the Executive shall provide consulting services up to two (2) hours per
month to the Company and the Affiliates and shall cooperate and provide such
other assistance to the Company and the Affiliates as the Company may reasonably
request in conjunction with matters arising prior to the date hereof in the
course of his employment with the Company and the Affiliates. Executive will be
reimbursed for reasonable out-of-pocket expenses incurred in conjunction
therewith.
Section 5. Agreement Not to Compete; Confidential Information. Executive and
the Company have each reviewed the customer lists and operations of the Company
and the Affiliates and agree that the Company's and the Affiliates' primary
service area for lending and deposit activities which relate to Executive's
services encompass the counties of Bureau and LaSalle in Illinois (the
"Territory"). Executive agrees that commencing on the date hereof and ending
twenty-four (24) months after the date hereof, he will not, without the
Company's prior written consent, directly or indirectly Compete with the Company
or the Affiliates. For the purposes of this Section 5:
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(a) "Compete" means directly or indirectly owning, managing, operating
or controlling a Competitor, or directly or indirectly serving as an employee,
officer or director of or a consultant to a Competitor, or soliciting or
inducing any employee or agent of the Company or the Affiliates to terminate
employment with the Company or the Affiliates or to become employed by a
Competitor, or soliciting or inducing any customer of the Company or the
Affiliates to terminate their relationship as a depositor, borrower or otherwise
as a customer of the Company or the Affiliates.
(b) "Competitor" means any person, firm, partnership, corporation,
trust or other entity that owns, controls or is a bank, savings and loan
association, credit union or other company which accepts deposits or makes loans
and which has an office located in the Territory (each a "Financial Services
Company").
(c) This Section 5 will not prohibit the Executive from having a
passive investment which involves the ownership of any capital stock or similar
securities which do not represent more than two percent (2%) of the outstanding
capital stock of any Financial Services Company.
Executive further agrees that, without the prior written consent of the
Company, he will not use in any manner or disclose to any person any customer
lists, customer financial or other information, know how, marketing plans,
confidential information, correspondence, files or records pertaining to the
Company or the Affiliates.
Notwithstanding any other term of this Agreement to the contrary, the
Company agrees that Executive shall not violate the terms of this Agreement, and
in particular the terms of this Section 5, if Executive (a) is employed by or
otherwise associated with an insurance company or brokerage company (by way of
example and not limitation, Xxxxxx Xxxxx or Prudential), and (b) the services
that Executive provides are limited to investment and financial planning and
related services.
Section 6. Payment Equalization. Notwithstanding anything to the contrary
herein, should the Executive collect or receive unemployment compensation, which
is treated in any respect as an unemployment compensation claim against the
Company or the Affiliates, under any state or federal unemployment compensation
law at any time while payments are being made under Section 2(a), then in such
event: (a) the Executive shall provide prompt written notice to the Company of
the foregoing, and (b) the payments which the Executive is entitled to receive
under Section 2(a) shall be reduced by the amount of unemployment compensation
collected or received by the Executive. The Company shall apply such reductions
ratably against each installment payment due to the Executive under Section 2(a)
to reflect the amount of unemployment compensation collected or received by the
Executive during each applicable installment period.
Section 7. Release of Claims and Waiver of Rights.
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(a) The Company hereby releases and forever discharges the Executive,
and his heirs, personal representatives and assigns, of and from all liability,
claims and demands arising out of his employment with, and services as director
of, the Company and the Affiliates.
(b) Executive hereby releases and forever discharges the Company and
the Affiliates, and its and their respective present and former officers,
directors, shareholders, agents, employees, servants, attorneys,
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representatives, predecessors, successors, and assigns from any and all known or
unknown grievances, disputes, actions, causes of action, claims of appointment,
employment, reemployment or reinstatement, claims at law or in equity, or
sounding in contract (including breach of express or implied employment contract
or other contract) or tort, arising under the common law, any federal, state or
local statute or ordinance, including, but not limited to, Title VII of the
Civil Rights Act of 1964, as amended (42 U.S.C. ss.2000e, et seq.), the Age
Discrimination in Employment Act of 1967, as amended (29 U.S.C. ss.621 et seq.)
("the ADEA"), the Illinois Human Rights Act (775 ILCS 5/1-101 et seq.), the
Americans with Disabilities Act (42 U.S.C. ss.12101 et seq.), the Equal Pay Act
(29 U.S.C. ss.206 et seq.), the Family and Medical Leave Act (29 U.S.C. ss.2601
et seq.), the Fair Labor Standards Act of 1938 (29 U.S.C. ss.201 et seq.) and
any other federal, state or local law dealing with payment of wages, minimum
wage, overtime or equal pay, the Consolidated Omnibus Budget Reconciliation Act
(COBRA), the Employee Retirement Income Security Act of 1974, as amended (29
U.S.C. ss.1001 et seq.), and any and all actions, charges, complaints or
allegations which have been or could in the future be filed with the Illinois
Department of Human Rights, the Illinois Human Rights Commission, the United
States Equal Employment Opportunity Commission, the National Labor Relations
Board, and any other local, state or federal administrative agency, which arise
out of, or are connected with, in any way, the employment of or any other
relationship between the Executive and the Company or the Affiliates, including
the Executive's separation and/or termination therefrom.
Section 8. Representation by Executive. Executive acknowledges that, in
accordance with the ADEA, as amended by the Older Workers Benefit Protection Act
of 1990, and as to any potential claims that could be brought or filed or
brought by Executive under the ADEA, he has been given a period of twenty-one
(21) days to review and consider this Agreement before signing it. If he elects
to sign this Agreement without availing himself of the opportunity to consider
its provisions for at least twenty-one (21) days, the Executive hereby
acknowledges that his decision to shorten the time for considering this
Agreement prior to signing is knowing and voluntary, and such decision is not
induced by the Company or the Affiliates through fraud, misrepresentation, or a
threat to withdraw or alter the provisions set forth in this Agreement prior to
the expiration of the twenty-one (21) day time period, or by providing different
terms should he agree to execute this Agreement prior to the expiration of the
twenty-one (21) day time period.
The Company advises and encourages the Executive to consult with his
attorneys concerning this Agreement prior to executing this Agreement. By
signing this Agreement, the Executive is acknowledging that he has read this
Agreement thoroughly, that he has been advised and encouraged by the Company,
and has had the opportunity, to consult with his attorneys prior to signing this
Agreement, and that his agreement to the terms of this Agreement is knowing,
willing, and voluntary.
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Executive understands that he may revoke this Agreement within seven (7)
days after the date on which he signs this Agreement, and that this Agreement
does not become effective until the expiration of the seven (7) day period. In
the event that the Executive wishes to revoke this Agreement, he must provide
such revocation in writing to UnionBancorp, Inc., 000 Xxxx Xxxx Xxxxxx, Xxxxxx,
Xxxxxxxx 00000, Attention: Chairman of the Board. If sent by mail, any
revocation must be postmarked within the 7-day period and sent by certified mail
return receipt requested. In the event of such a revocation by the Executive,
this Agreement will be without effect as to any of the parties hereto.
Section 9. Non-Waiver. Any waiver of a breach of this Agreement by the
Executive or the Company shall not be construed or operate as a waiver of any
subsequent breach by the Executive or the Company, as the case may be, of the
same or of any other provision of this Agreement.
Section 10. Remedies. Executive agrees that a violation of Section 3, Section 4
or Section 5 of this Agreement would result in direct, immediate and irreparable
harm to the Company and the Affiliates, and in such event, the Executive agrees
that the Company and the Affiliates, in addition to their other right and
remedies, will be entitled to: (a) injunctive relief without bond enforcing the
terms and provisions of Section 3, Section 4 and Section 5 hereof; (b)
discontinue making the payments required by Section 2(a) hereof; and (c)
terminate all rights the Executive or his designated beneficiary have pursuant
to Section 2(b) hereof. In the event the institution of any action by either
party hereto pertaining to the enforcement hereof, the prevailing party shall be
entitled to recover the costs and expenses (including, but not limited to,
attorneys fees) incurred by such party.
Section 11. Entire Agreement. This Agreement sets forth the entire agreement of
the parties, and supercedes all other agreements, and this Agreement is final
and binding as to all claims that have been or could have been advanced on
behalf of the Executive or the Company pursuant to any cause of action arising
out of or related in any way to the Executive's employment with the Company or
the Affiliates and termination of that employment.
Section 12. Governing Law. This Agreement shall be governed by the laws of the
State of Illinois.
Section 13. Heirs, Successors and Assigns. This Agreement and the rights and
obligations hereunder shall be binding on, and shall inure to the benefit of,
the estate, heirs, executors, personal representatives and assigns of the
Executive, and the successors and assigns of the Company.
IN WITNESS WHEREOF, the undersigned have set their hands the day and year
first above written.
UNIONBANCORP, INC. EXECUTIVE
By: /s/ XXXXX X. XXXXXX /s/ XXXXXXX X. XXXXX
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Name: Xxxxx X. Xxxxxx Xxxxxxx X. Xxxxx
Title: President/CEO
ATTEST: ATTEST:
/s/ XXXXXXX XXXXXXX /s/ XXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
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