Exhibit 10.1
SEVERANCE AGREEMENT, RELEASE AND WAIVER
This Severance Agreement, Release and Waiver ("Agreement") is
voluntarily entered into by the parties this 10th day of July, 2006, by and
between AMCORE Bank, N.A., its parent, subsidiaries and affiliates, ("AMCORE"),
and Xxxxxx XxXxxxxx ("Executive").
Whereas, Executive was employed by AMCORE as an Executive Vice
President of AMCORE Bank, N.A.; and
Whereas, Executive's employment with AMCORE terminated as of June 30,
2006; and
Whereas, AMCORE wishes to provide Executive with a severance package
and Executive wishes to release, compromise, and settle any and all claims or
disputes existing between them;
NOW, THEREFORE, in consideration of the foregoing recitals and the
premises and covenants set forth below, the parties agree as follows:
1. AMCORE's Undertakings: On or after the Effective Date (as defined in
Section 8) AMCORE shall perform the undertakings described in this Section 1.
1.1 AMCORE shall pay to Executive the gross sum of
$230,000.00, minus all withholdings and deductions required by law (the
"Severance Payment"), payable in equal installments over twelve months (the
"Severance Payment Period") on the same schedule as that applicable from time to
time to AMCORE's salaried executive employees. The parties acknowledge that the
Severance Payment is equivalent to Executive's base salary as of his termination
date for the Severance Payment Period, but that Executive shall not be entitled
to any other compensation or benefits during the Severance Payment Period other
than as specifically described in this Agreement. All amounts will be direct
deposited into Executive's bank account used for normal payroll deposits unless
Executive submits other written directions.
1.1.a Per the Deferred Plan Document, payout of Executive's
deferred compensation balance under the plan document in effect prior to
January, 2005 may be in five annual payments if that is Executive's preference.
Should a lump sum payment be preferred, please note that preference on the
attached Payment Election Form. Your balance in that plan is on or about
$1,204,538.16 (actual number will be calculated using a daily valuation for a
June 30, 2006 effective date). Balances in the current plan must be paid out in
a lump sum, which will be done within 30 days of termination. The balance is
$28,964.92. As stated previously, the actual balance in this plan will be
calculated using a daily valuation for a June 30, 2006 effective date.
1.2 If Executive makes a timely election to continue his group
health insurance coverage under the federal law commonly known as "COBRA,"
AMCORE shall pay the Executive an amount equal to the first eighteen (18) months
of Executive's COBRA premiums for family coverage for both medical and dental
insurance. These payments will be made in equal installments over twelve months.
1.3 AMCORE shall pay Executive's car allowance through June
30, 2006, at the rate AMCORE would have paid had Executive been actively
employed through that date. AMCORE shall also continue to pay Executive's
current country club dues through December 31, 2006, at the rates and in
accordance with AMCORE's policies for the payment of country club dues for its
actively employed executive employees, as if Executive had remained actively
employed through that date.
1.4 AMCORE and Executive acknowledge that Executive is
entitled to participate on a pro rata basis in AMCORE's Short Term Incentive
Plan and Long Term Incentive Plan (the "Incentive Plans"). AMCORE agrees that it
will prorate Executive's bonuses, if any, under such Incentive Plans as if
Executive had remained employed through June 30, 2006 except for the Long-term
incentive plan which cycle began January 1, 2006. there will be no pro-rata paid
for this. Executive understands and acknowledges that, in accordance with the
terms of the Incentive Plans, any compensation payable under such Incentive
Plans shall not be paid at least until calendar year 2007, and shall be
calculated on a pro rata basis based upon AMCORE's performance during the entire
calendar year for 2006. All payments will be made at the same time and in the
same manner as other participants in the Plans.
1.5 AMCORE shall reimburse Executive for his normal and
necessary business expenses incurred through June 30, 2006, in accordance with
AMCORE's normal policies and procedures for the reimbursement of such expenses
and upon receipt of such proper documentation for the expenses as is required by
such policy.
1.6 AMCORE shall provide to Executive either Level Three
outplacement services provided through Xxxxx Transitions, 0000 Xxxx Xxxx,
Xxxxxxxx, XX or the equivalent ($7,500) of services through Xxx Xxxx. This
outplacement service is provided on a voluntary basis. Executive must call Xxxxx
Transitions on or before 14 days following the Effective Date in order for these
services to be provided courtesy of AMCORE. Detailed information regarding these
services is provided separate from this document.
2. Executive's Additional Undertakings. As of the Effective
Date, Executive agrees to the following undertakings and obligations.
2.1 Release and Waiver. Executive hereby releases, acquits,
and forever discharges AMCORE, its officers, directors, shareholders, agents,
employees, affiliated and subsidiary companies, successors or assigns, from any
and all claims, charges, demands, damages, debts, liabilities, obligations,
costs, expenses, attorneys' fees, rights in law or equity, actions and causes of
action of every kind and nature whatsoever, whether or not now or heretofore
known, suspected or unsuspected, by reason of anything whatsoever from the
beginning of time up to the date hereof, including, but not limited to, the
termination of Executive's employment with AMCORE. THIS INCLUDES, BUT IS NOT
LIMITED TO, TORT CLAIMS (INCLUDING WITHOUT LIMITATIONS CLAIMS FOR LIBEL AND
DEFAMATION), CONTRACTUAL AND QUASI-CONTRACTUAL CLAIMS, AND STATUTORY CLAIMS,
INCLUDING, BUT NOT LIMITED TO, CLAIMS UNDER THE ILLINOIS HUMAN RIGHTS ACT, THE
WAGE PAYMENT AND COLLECTION ACT, THE WHISTLE-BLOWERS ACT, ANY OTHER APPLICABLE
STATE OR LOCAL STATUTE, CODE, REGULATION OR ORDINANCE, THE FAIR LABOR STANDARDS
ACT, THE FAMILY AND MEDICAL LEAVE ACT OF 1993, THE AMERICANS WITH DISABILITIES
ACT, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, SARBANNES-OXLEY, AND ANY OTHER
APPLICABLE FEDERAL STATUTE OR REGULATION; provided, however, that the parties
agree and acknowledge that Executive by signing this Agreement does not waive or
release any claim: 1) to vested benefits under any employee benefit plan that is
regulated by the Employee Retirement Income Security Act; or 2) that first
arises after the date Executive signs this Agreement.
2.1.a Notwithstanding any other provision of the Agreement,
including without limitation Section 2.1, the parties agree that in no event
shall Executive be deemed to have released, acquitted, and/or discharged AMCORE
from and against any claim by Executive for defense of and/or indemnification
from any claims asserted by third parties for actions taken by Executive both
during his employment with AMCORE and within the scope of such employment.
Nothing in this provision is intended to expand Executive's rights to defense
and/or indemnification beyond those he would have had, had he continued to be
actively employed by AMCORE.
2.2 Non-Disparagement. Executive agrees that he will not make
or publish any written or oral statement or remark (including, without
limitation, the repetition or distribution of derogatory rumors, allegations,
negative reports or comments) which is or may be disparaging, deleterious or
damaging to the integrity, reputation or good will of AMCORE or its employees or
management.
2.3 Agreement Not to Xxx. Executive agrees that he shall
neither file nor instigate the filing of any suit, claim, or charge based upon
or related to his employment against AMCORE, its officers, employees, or agents,
with any federal, state, or local court or administrative agency, body, or
tribunal.
2.4 Agreement Not to Seek Reinstatement. Executive agrees that
he shall not apply for or seek reinstatement, reemployment or employment with
AMCORE or any division, department, or subsidiary thereof after the time of the
execution of this Agreement.
2.5 Agreement to Return Property. Executive agrees immediately
to return any and all AMCORE property in his possession and control, including,
but not limited to, all originals and copies of any files, memos, or other
documents (including all electronically stored information such as computer
programs and files) he may have in his possession.
2.6 Agreement To Cooperate. Executive agrees that, if asked,
he will cooperate in transitioning all matters under his authority. Executive
agrees that he will provide his full cooperation and knowledge to AMCORE
regarding any matter in which he was involved while employed should AMCORE deem
such cooperation and/or knowledge necessary or desirable for a period of two
years from the Effective Date.
2.7 Confidentiality of this Agreement. Except as otherwise
required by law, Executive agrees to keep the existence and provisions of this
Agreement confidential and not disclose the existence or content of this
Agreement to any other person other than his spouse and tax and legal advisors,
each of whom shall agree to maintain the same level of confidentiality.
2.8. Limited Noncompetition and Nonsolicitation Agreement
2.8.1 Acknowledgements. Executive acknowledges that
AMCORE is currently engaged in the business of brokering, marketing, and issuing
and re-selling residential and commercial real estate mortgages (collectively,
the "Business"). Executive acknowledges that the position held by him was one of
trust and confidence and that AMCORE disclosed to Executive, and Executive had
access to, confidential information of a technical or business nature relating
to the Business that is not known to the industry at large and which Executive
did not know prior to his employment with AMCORE. Such information
("Confidential Information ") may concern lists and other identifications of
customers and prospects, customer histories, pricing techniques and processes,
specialized business methods, techniques, plans and know-how relating to the
business of AMCORE, advertising and marketing materials and concepts, customer
information, methods for developing and maintaining business relationships with
customers and prospects, procedural manuals, employee training and review
programs and techniques, technical product and service information, AMCORE's
internal financial information and other confidential and/or proprietary
information and/or trade secrets of AMCORE. Executive recognizes that this
Confidential Information constitutes a valuable and unique asset of AMCORE
developed and perfected over considerable time at substantial expense to AMCORE.
Executive further acknowledges that AMCORE has, with considerable effort and at
significant expense, developed "good will" and long-term relationships with its
customers.
2.8.2 Limited Agreement Not to Compete. For a period of
one year from the Effective Date, Executive agrees that he will not directly or
indirectly engage in, or have any interest in any person, firm, corporation,
limited liability company, limited liability or general partnership, business or
other entity (collectively, a "Person") (whether as an employee, officer,
director, member, manager, agent, independent contractor, partner, investor,
lender, consultant, or otherwise) that engages in any activity that competes
with or is competitive with the Business anywhere within a region consisting of
a fifty (50) mile radius of Rockford, IL (the "Restricted Territory"). For
purposes of this paragraph, prohibited activities will be deemed to be occurring
within the Restricted Territory if the Executive or Person: i) has any fixed or
permanent location within the Restricted Territory from which he or it conducts
activities that compete with the Business; ii) actually conducts any competitive
activities within the Restricted Territory; and/or iii) issues a mortgage to any
customer that is located within the Restricted Territory. In the event that
Executive violates this paragraph, Executive agrees that the period of
proscription shall be extended to a period of one year from the date that he
ceases (whether voluntarily, by court order or otherwise) to engage in or do
those acts constituting the violation of this paragraph. Notwithstanding the
foregoing, Executive may own 1% or less of the issued and outstanding shares of
stock in any publicly traded company, regardless of whether such company engages
in the activities described in this paragraph.
2.8.3 Agreement Not to Solicit Customers. Executive
agrees that, for a period of one year from the Effective Date, he will not
directly or indirectly (whether on his own account or as an employee,
consultant, partner, joint venturer, owner, officer, director, member, manager,
investor, creditor or stockholder of any other Person) solicit, divert, or take
away or attempt to solicit, divert, or take away from AMCORE the business of any
Person who was a customer or a prospect of AMCORE at the time Executive's
employment with AMCORE ended. For purposes of this paragraph, a Person will be
deemed to have been a customer or prospect of AMCORE at the time Executive's
employment ended if: 1) AMCORE held a mortgage for real estate owned (legally or
beneficially) by such Person at any time in the one-year period prior to the end
of Executive's employment; or 2) AMCORE had identified the Person as a potential
customer and was actively soliciting such Person to become a customer of AMCORE.
Notwithstanding the foregoing, the parties agree that this restriction applies
only to solicitations the purpose of which is to conduct activities that compete
with or are competitive with all or any portion(s) of the Business. In the event
that Executive violates this paragraph, Executive agrees that the period of
proscription shall be extended to a period of three years from the date that he
ceases (whether voluntarily, by court order or otherwise) to engage in or do
those acts constituting the violation of this paragraph.
2.8.4 Agreement to Maintain Confidentiality. Executive
will at all times keep confidential all of AMCORE's proprietary and/or
confidential information and trade secrets that he may have learned at any time
during the course of his employment. Executive shall not communicate or divulge
such information to any other person, other than as specifically directed or
permitted by AMCORE. Executive understands and agrees that all files, records or
other documents containing such proprietary or confidential information and
trade secrets shall remain the exclusive property of AMCORE. Executive agrees
that the types of information covered by these restrictions include without
limitation strategic plans, marketing plans, and market analyses.
2.8.5 Agreement Not to Solicit Employees. Executive
agrees that for a period of two years from the Effective Date, Executive will
not induce, or attempt to induce, directly or indirectly, any employee,
consultant or agent of AMCORE to terminate any relationship with AMCORE. In the
event that Executive violates this paragraph, Executive agrees that the period
of proscription shall be extended to a period of two years from the date that he
ceases (whether voluntarily, by court order or otherwise) to engage in or do
those acts constituting the violation of this paragraph.
2.9 Executive acknowledges that he is involved in a number of
community organizations and activities, and that his involvement in such
activities reflects an implicit representation of AMCORE in the community.
Executive further covenants and agrees that he will resign, at the request of
AMCORE, from all community boards, organizations and activities in which he is
involved, including without limitation the Rockford Chamber of Commerce, but
that he will also cooperate with AMCORE by identifying to AMCORE all such
activities and tendering such resignations in a fashion that will permit AMCORE
to suggest other AMCORE employees who might substitute for Executive on such
boards, organizations and/or activities. The parties agree that this undertaking
shall not require Executive to resign from any involvement that he may have with
his church. Executive may identify other activities that he believes are
unrelated to AMCORE's involvement in the community, and he will not be required
to resign from such activities that AMCORE approves in writing.
3. Notice to Executive. THIS DOCUMENT HAS SPECIFIC LEGAL CONSEQUENCES.
Executive acknowledges that he is a highly-educated and sophisticated individual
whose career has consisted of reading, interpreting and working with legal
documents, that he has had a sufficient opportunity to review this Agreement and
its contents, and that he understands the contents of this Agreement and their
legal effect. Executive acknowledges that all of his questions regarding this
Agreement have been answered.
4. Cooling Off Period:
4.1 AMCORE will hold this offer open until July 12, 2006.
Executive has until this expiration date to decide whether or not to accept this
offer. However, no benefits will be paid until 7 calendar days after Executive
has signed this Agreement.
4.2 Executive acknowledges that he had 21 calendar days from
the date in which AMCORE first presented this document to him in which to
consider the terms contained herein, and that he did not have to sign this
document until the expiration of that 21-day period. Executive's signature below
constitutes his acknowledgement of that 21-day period. This offer will expire by
its own terms if AMCORE has not received a signed original of this Agreement by
the close of business July 12, 2006.
4.3 Executive understands that, even if he signs this
Agreement, he can revoke his acceptance by submitting a written revocation to
AMCORE within 7 calendar days after signing the Agreement. To be effective, the
written revocation must be received by Xxxxx Xxxxxxx at AMCORE within 7 calendar
days of Executive's signing the Agreement.
4.4 This document has specific legal consequences, and you
should consult an attorney before signing it. Executive represents and warrants
that he has had the opportunity to seek the assistance and advice of his own
legal counsel and that the terms of this Agreement have been explained to him.
5. No Admission: AMCORE admits no liability as a result of this
Agreement and its performance of the terms contained herein.
6. Tax Consequences: AMCORE makes no representations regarding the tax
treatment of any payments made to Executive pursuant to this Agreement.
Executive understands that all payments made to Executive will be reported to
the appropriate authorities as income to Executive.
7. Allocation of Consideration. Payments made to Executive pursuant to
this Agreement which exceed any compensation otherwise owed to Executive shall
be evenly allocated among Executive's undertakings under Section 2 of this
Agreement. Executive acknowledges that AMCORE is under no legal obligation to
make the payments described in Sections 1.1 through 1.3 of this Agreement, and
that such payments represent gratuitous payments by AMCORE in exchange for
Executive's undertakings hereunder.
8. Effective Date. The Effective Date of this Agreement shall be the
date seven calendar days after Executive has signed the Agreement, unless
Executive has revoked his acceptance of the Agreement pursuant to Section 4.3.
9. No Assignment. Executive represents and warrants to AMCORE that he
has not assigned any interest in any claim that he is releasing herein.
10. General Provisions:
10.1 Governing Law. This Agreement is executed under and shall
be construed, interpreted and enforced according to the substantive laws of the
State of Illinois, without respect to choice of law principles, and shall be
binding and inure to the benefit of the parties hereto and their respective
successors and assigns.
10.2 Entire Agreement. This Agreement contains the entire
agreement of the parties and may not be modified, supplemented, or otherwise
amended except in a document signed by both parties.
10.3 Duplicate Originals. This Agreement may be executed on
separate duplicate originals.
10.4 Severability and Blue-Penciling. If any provision(s) of
this Agreement as applied to any part or to any circumstances are adjudged by a
court of competent jurisdiction to be invalid or unenforceable, the court shall
have the authority to reform the invalid or unenforceable part to make it valid
and enforceable, while giving the maximum permitted effect to the original
intent of the parties in making the provision. In the event any provision(s) of
this Agreement as applied to any part or to any circumstances are adjudged by a
court of competent jurisdiction to be invalid or unenforceable, and they cannot
be reformed in a fashion to make them valid and enforceable, the same will in no
way affect any other provisions of this Agreement, the application of such
provision in any other circumstances, or the validity or enforceability of this
Agreement. The foregoing clause is not intended to be an admission or evidence
that the geographic extent or duration of this Agreement is unreasonable.
10.5 Venue. For the purpose of any suit, action or proceeding
arising out of or relating to this Agreement, AMCORE and Executive irrevocably
consent and submit to the jurisdiction and venue of any state or federal court
of competent jurisdiction located within Winnebago County, Illinois, and agree
that such courts shall have exclusive jurisdiction to entertain any such suit,
action or proceeding. Executive agrees that service of the summons and complaint
and all other process that may be served in any such suit, action or proceeding
may be effected by mailing by registered mail a copy of such process to
Executive at his last known home address. Executive irrevocably waives any
objection which he or she may now or hereafter have to the venue of any such
suit, action or proceeding brought in such court and any claim that such suit,
action or proceeding brought in such court has been brought in an inconvenient
forum and agrees that service of process in accordance with this Section will be
deemed in every respect effective and valid personal service of process upon the
Executive. Nothing in this Agreement will be construed to prohibit service of
process by any other method permitted by law. The provisions of this Section
will not limit or otherwise affect the right of AMCORE to institute and conduct
an action in any other appropriate manner, jurisdiction or court. Executive
agrees that final judgment in such suit, action or proceeding will be conclusive
and may be enforced in any other jurisdiction by suit on the judgment or in any
other manner provided by law.
10.6 WAIVER OF JURY TRIAL. AMCORE AND EXECUTIVE KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY
LITIGATION RELATING TO THIS AGREEMENT. IN SO DOING, EACH PARTY INTENDS THAT ANY
CLAIMS AND DISPUTES ARISING HEREUNDER WILL BE RESOLVED BY A JUDGE ACTING WITHOUT
A JURY IN ORDER TO AVOID THE DELAYS, EXPENSES AND RISKS OF MISTAKEN
INTERPRETATION THAT EACH PARTY ACKNOWLEDGES ARE MORE LIKELY WITH A JURY TRIAL
THAN WITH A NON-JURY TRIAL.
10.7 Remedies. Executive acknowledges that it would be
impracticable or extremely difficult to fix the actual damages resulting from a
breach of the covenants made in this Agreement, and that such breach would
likely cause irreparable harm to AMCORE. Accordingly, Executive understands and
agrees that AMCORE shall have the right to terminate any remaining payments due
to Executive (including without limitation payments under the Incentive Plans),
recover all amounts already paid to Executive and, in addition to such
termination and recovery, enjoin him in addition to any other rights AMCORE may
have. AMCORE shall be entitled to all its costs and reasonable attorneys' fees
in any action to enforce this or any other provision of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed the day and year
first written above.
AMCORE BANK, N.A.:
By /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Chief Administrative Officer
Executive:
/s/ Xxxxxx XxXxxxxx
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Xxxxxx XxXxxxxx
State of Illinois )
) SS.
County of Winnebago )
I, the undersigned, a Notary Public, in and for said County
and State aforesaid, DO HEREBY CERTIFY THAT Xxxxxx XxXxxxxx, who is personally
known to me to be the same person whose name is subscribed to the foregoing
Severance Agreement, Release and Waiver, as having executed the same, appeared
before me this day in person and acknowledged that they signed, sealed and
delivered the said instrument as their free and voluntary act for the purposes
therein set forth, including the release and waiver of certain rights as
specified therein.
Given under my hand and Notarial Seal this ___10th___ day of
July, 2006.
/s/ Xxxxx X. Xxxxxx
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Notary Public
