Exhibit 10.7
XXXX X. XXXXXXX
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as of the
_17_ day of ___February______, 2004 (the "Effective Date"), by and between Main
Street Trust, Inc., a Delaware Corporation ("MSTI") and XXXX X. XXXXXXX
("Xxxx").
RECITALS
A. MSTI desires to employ Xxxx as the Executive Vice President-Sales and
Marketing of MSTI.
X. Xxxx desired to become employed as the Executive Vice President-Sales and
Marketing of MSTI.
C. MSTI and Xxxx have made commitments to each other on a variety of important
issues concerning his employment, including the performance that will be
expected of him, the compensation that he will be paid, how long and under
what circumstances he will remain employed, and the financial details
relating to any decision that either Xxxx or MSTI might ever make to
terminate his employment and this Agreement.
D. MSTI and Xxxx believe that the commitments they have made to each other
should be memorialized in writing, and that is the purpose of this
Agreement.
THEREFORE, the MSTI and Xxxx agree as follows:
AGREEMENTS
Section 1. Term with Automatic Renewal Provision. The term of this Agreement and
Paul's employment hereunder will be two (2) years commencing as of the Effective
Date. This Agreement and the term of Paul's employment hereunder will
automatically renew for one (1) additional year on each anniversary of the
Effective Date unless this Agreement and Paul's employment hereunder are
terminated in accordance with the provisions of Section 4.
Section 2. Employment.
(a) Positions. Subject to the terms of this Agreement, MSTI hereby employs
Xxxx, and Xxxx agrees to serve, as the Executive Vice President-Sales and
Marketing of MSTI or in such other capacities with MSTI or its subsidiaries
as the Board of Directors deems appropriate in its sole discretion, under
the terms and conditions set forth herein as of the Effective Date.
(b) Duties. Paul's duties, authority and responsibilities as the Executive Vice
President-Sales and Marketing of MSTI include all duties, authority and
responsibilities customarily held by such officer of comparable companies,
subject always to the charter and bylaw provisions and the policies of MSTI
and the directions of the President.
(c) Care and Loyalty. Xxxx will devote his best efforts and full business time,
energy, skills and attention to the business and affairs of MSTI and its
subsidiaries, and will faithfully and loyally discharge his duties to MSTI
and its subsidiaries.
(d) Transfers. The Board may, in its sole discretion, cause Paul's employment
to be transferred from MSTI to any wholly owned subsidiary, in which case
all references in this Agreement to "MSTI" will be deemed to refer to such
subsidiary.
Section 3. Compensation. MSTI will compensate Xxxx for his services as follows
during the term of this Agreement and his employment hereunder:
(a) Base Compensation. Paul's annual base salary will be $140,000 ("Base
Salary"). The Board will review Paul's Base Salary annually during the term
of this Agreement to determine whether it should be maintained at its
existing level or increased. Paul's annual Base Salary for any year after
2004 will not be lower than his Base Salary for the immediately preceding
year.
(b) Discretionary Performance Bonus. MSTI will consider Xxxx for a bonus each
year based on performance criteria established by the Board and/or Paul's
senior officers and any other factors deemed by the Board to be
appropriate. Bonuses will be awarded, if at all, in the sole discretion of
the Board, and nothing in this Agreement will require the payment of a
bonus in any given year.
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(c) Profit Sharing Benefit. Xxxx will receive an annual profit sharing benefit
of up to 10% of the combined amount of his annual Base Salary and, if
applicable, his performance bonus after he meets the eligibility
requirements of the applicable profit sharing plan. The Board will decide
the exact amount of this benefit annually within that range. MSTI will
contribute this benefit for the account of Xxxx to MSTI's tax-qualified
retirement plans and/or any nontax-qualified deferred compensation programs
that MSTI may elect to establish. All such benefit payments will be
determined and governed by the terms of the particular plan or program.
(d) Car Allowance. MSTI will pay Xxxx a car allowance of $600 per month. The
car allowance will be subject to annual review by the Board starting in
2005 and may be terminated, decreased, maintained or increased as the Board
deems appropriate.
(e) Club Membership. MSTI expects Xxxx to entertain clients and prospective
clients of MSTI at the country club to which he belongs, and thus will
reimburse Paul's dues for his country club membership in an amount not to
exceed $4,800 per year. This allowance will be subject to annual review by
the Board starting in 2005, and may be terminated, decreased, maintained or
increased as the Board deems appropriate.
(f) Reimbursement of Expenses. MSTI will reimburse Xxxx for all travel,
entertainment and other out-of-pocket expenses that he reasonably and
necessarily incurs in the performance of his duties. Xxxx will document
these expenses to the extent necessary to comply with all applicable laws
and internal policies.
(g) Other Benefits. Xxxx will be entitled to participate in all plans and
benefits that are now or later made available by MSTI to its officers of
equal or junior ranking generally.
(h) Vacations. Xxxx will receive at least 15 days of paid vacation annually,
subject to MSTI's general vacation policy.
(i) Withholding. Xxxx acknowledges that MSTI may withhold any applicable
federal, state or local withholding or other taxes from payments that
become due or allowances that are provided to him.
Section 4. Termination.
(a) Termination Without Cause. Either MSTI or Xxxx xxx terminate this Agreement
and Paul's employment hereunder for any reason by delivering written notice
of termination to the other party no less than ninety (90) days before the
effective date of termination, which date will be specified in the notice
of termination. If Xxxx voluntarily terminates his employment under this
Agreement other than pursuant to Sections 4(c) (Constructive Discharge) or
4(d) (Change of Control), then MSTI shall only be required to pay Xxxx such
Base Salary as shall have accrued through the effective date of such
termination and MSTI shall have no further obligations to Xxxx.
(b) Termination for Cause. MSTI may terminate this Agreement and Paul's
employment hereunder for Cause by delivering written notice of termination
to Xxxx no less than thirty (30) days before the effective date of
termination. "Cause" for termination will exist if: (i) Xxxx engages in one
or more unsafe and unsound banking practices or material violations of a
law or regulation applicable to MSTI or its subsidiaries, any repeated
violations of a policy of MSTI after being warned in writing by the Board
and/or a senior officer not to violate such policy, any single violation of
a policy of MSTI if such violation materially and adversely affects the
business or affairs of MSTI, or a direction or order of the Board and/or
one of Paul's senior officers; (ii) Xxxx engages in a breach of fiduciary
duty or act of dishonesty involving the affairs of MSTI; (iii) Xxxx is
removed or suspended from banking pursuant to Section 8(e) of the Federal
Deposit Insurance Act or any other applicable State or Federal law; (iv)
Xxxx commits a material breach of his obligations under this Agreement; or
(v) Xxxx fails to perform his duties to MSTI with the degree of skill, care
or competence expected by the Board and/or Paul's senior officers. If
Paul's employment is terminated pursuant to this Section 4(b), then MSTI
shall only be required to pay Xxxx such Base Salary as shall have accrued
through the effective date of such termination and MSTI shall have no
further obligations to Xxxx.
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(c) Constructive Discharge. If Xxxx is ever Constructively Discharged, he may
terminate this Agreement and his employment hereunder by delivering written
notice to MSTI no less than thirty (30) days before the effective date of
termination. "Constructive Discharge" means the occurrence of any one or
more of the following, without Paul's prior consent: (i) Xxxx is not
reelected to or is removed as an Executive Vice President of MSTI (other
than by promotion to a higher position); (ii) MSTI fails to xxxx Xxxx with
or removes from him the duties, responsibilities, authority or resources
that he reasonably needs to competently perform his duties as an Executive
Vice President of MSTI; (iii) MSTI notifies Xxxx that it is terminating
this Agreement pursuant to Section 4(a); (iv) MSTI changes the primary
location of Paul's employment to a place that is more than fifty (50) miles
from Champaign, Illinois; or (v) MSTI otherwise commits a material breach
of its obligations under this Agreement and fails to cure the breach within
thirty (30) days after Xxxx gives MSTI written notice of the breach.
(d) Termination upon Change of Control. Xxxx xxx terminate this Agreement and
his employment hereunder for any reason within one (1) year after a Change
of Control occurs by delivering written notice of termination to MSTI or
its successor no less than thirty (30) days before the effective date of
termination. After one year following the Change of Control, Xxxx xxx
terminate this Agreement and his employment hereunder only in accordance
with Section 4(a) or (c).
(i) A "Change of Control" will be deemed to have occurred if: (A) 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"))
acquires beneficial ownership (within the meaning of Rule 13d-3
promulgated under the 0000 Xxx) of more than fifty percent (50%) of
the combined voting power of the then outstanding voting securities
of MSTI; or (B) the individuals who were members of the Board of
Directors of MSTI on the Effective Date (the "Current Board
Members") cease for any reason (other than the reasons specified in
Subsection 4(d)(ii) below) to constitute a majority of the Board of
MSTI or its successor; however, if the election or the nomination
for election of any new director of MSTI or its successor is
approved by a vote of a majority of the individuals who are Current
Board Members, such new director shall, for the purposes of this
Section 4(d)(i), be considered a Current Board Member; or (C) the
consummation of (1) a merger or consolidation of MSTI and the
stockholders of MSTI 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 outstanding securities of MSTI 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 MSTI.
(ii) Notwithstanding and in lieu of Section 4(d)(i), a Change of Control
will not be deemed to have occurred: (A) solely because more than
fifty percent (50%) of the combined voting power of the then
outstanding voting securities of MSTI are acquired by (1) a trustee
or other fiduciary holding securities under one or more employee
benefit plans maintained for employees of MSTI or its subsidiaries,
or (2) any person pursuant to the will or trust of any existing
stockholder of MSTI, or who is a member of the immediate family of
such stockholder, or (3) any corporation which, immediately prior to
such acquisition, is owned directly or indirectly by the
stockholders in the same proportion as their ownership of stock
immediately prior to such acquisition; or (B) if Xxxx agrees in
writing that the transaction or event in question does not
constitute a Change of Control for the purposes of this Agreement.
(e) Termination upon Disability. MSTI will not terminate this Agreement and
Paul's employment hereunder if Xxxx becomes disabled within the meaning of
MSTI's then current employee disability program or, at MSTI's election, as
determined by a physician selected by MSTI, unless as a result of such
disability, Xxxx is unable to perform his duties with the requisite level
of skill and competence for a period of six (6) consecutive months.
Thereafter, MSTI may terminate this Agreement for Cause in accordance with
Subsection 4(b)(v).
(f) Termination upon Death. This Agreement will terminate if Xxxx dies during
the term of this Agreement, effective on the date of his death. Any
payments that are owing to Xxxx under this Agreement or otherwise at the
time of his death will be made to whomever Xxxx xxx designate in writing as
his beneficiary, or absent such a designation, to the executor or
administrator of his estate.
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(g) Severance Benefits. MSTI will pay severance benefits to Xxxx as follows:
(i) If this Agreement and Paul's employment hereunder are terminated by
MSTI without Cause pursuant to Section 4(a), or by reason of Paul's
Constructive Discharge pursuant to Section 4(c), MSTI will pay Xxxx
an amount equal to the sum of (A) his then applicable annual Base
Salary, plus (B) the amount of the most recent performance bonus
that MSTI awarded to Xxxx pursuant to Section 3(b) (collectively,
the "Severance Payment"). If the effective date of termination
occurs before the last day of the then current term, the Severance
Payment will also include the value of the contributions that would
have been made to Xxxx or for his benefit under all applicable
retirement and other employee benefit plans had he remained in
MSTI's employ through the last day of the then current term. MSTI
will also continue to provide Xxxx and his dependents, at the
expense of MSTI, with continuing coverage under all existing health
and disability programs for a period of one (1) year following the
effective date of termination, provided that, to the extent Xxxx
paid a portion of the premium for such benefit while employed he
shall continue to pay such portion during the period of continuation
hereunder and provided further, that if such benefit is subject to
the health care continuation rules of the Consolidated Omnibus
Budget Reconciliation Act of 1985 ("COBRA") then any period of
continuation hereunder shall be credited against the continuation
rights under COBRA and Xxxx will be required to complete all COBRA
election and other forms.
(ii) Notwithstanding Section 4(g)(i) and in lieu of any payments provided
for thereunder, MSTI or its successor will pay Xxxx an amount equal
to two (2) times the Severance Payment if this Agreement and Paul's
employment are terminated by Xxxx pursuant to Section 4(d) within
one year after the occurrence of a Change of Control or by MSTI or
its successor pursuant to Section 4(a) at any time after a Change of
Control occurs. In this event, MSTI or its successor will also
continue to provide Xxxx and his dependents, at the expense of MSTI
or its successor, with continuing coverage under all existing health
and disability programs for a period of two (2) years following the
effective date of termination, provided that, to the extent Xxxx
paid a portion of the premium for such benefit while employed he
shall continue to pay such portion during the period of continuation
hereunder. If permitted by MSTI's then-existing group medical
insurance policy or program, MSTI shall continue such coverage for
six (6) months and the remaining eighteen (18) months shall be
provided pursuant to and credited against the health care
continuation rights under COBRA and Xxxx will be required to
complete all COBRA election and other forms. If MSTI is not
permitted by MSTI's then-existing group medical insurance policy or
program to continue such coverage after Paul's termination of
employment, then the first eighteen (18) months of continued
coverage shall be pursuant to and credited against the health care
continuation rights under COBRA and MSTI shall pay Xxxx six (6)
times the monthly amount of MSTI's share of the premium.
(iii) All payments that become due to Xxxx under this Section 4(g) will be
made in twenty-four (24) equal monthly installments commencing on
the first day of the month immediately succeeding Paul's termination
of employment, unless MSTI elects to make those payments in one (1)
lump sum. MSTI will be obligated to make all payments that become
due to Xxxx under this Section 4(g) whether or not he obtains other
employment following termination or takes steps to mitigate any
damages that he claims to have sustained as a result of termination.
The payments and other benefits provided for in this Section 4(g)
are intended to supplement any compensation or other benefits that
have accrued or vested with respect to Xxxx or for his account as of
the effective date of termination.
(iv) MSTI and Xxxx intend that no portion of any payment under this
Agreement, or payments to or for the benefit of Xxxx under any other
agreement or plan, be deemed to be an "Excess Parachute Payment" as
defined in Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code"), or its successors. It is agreed that the
present value of any payments to or for the benefit of Xxxx in the
nature of compensation, as determined by the legal counsel or
certified public accountants for MSTI in accordance with Section
280G(d)(4) of the Code, receipt of which is contingent on the Change
of Control of MSTI, and to which Section 280G of the Code applies
(in the aggregate "Total Payments"), shall not exceed an amount
equal to one dollar ($1.00) less than the maximum amount which MSTI
may pay without loss of deduction under Section 280G(a) of the Code.
(v) MSTI may elect to defer any payments that may become due to Xxxx
under this Section 4(g) if, at the time the payments become due,
MSTI is not in compliance with any regulatory-mandated minimum
capital requirements or if making the payments would cause MSTI's
capital to fall below such minimum capital requirements. In this
event, MSTI will resume making the payments as soon as it can do so
without violating such minimum capital requirements.
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(h) Payment Equalization. If MSTI is paying, or in the case of a lump sum, has
paid, Xxxx x Xxxxxxxxx Benefit under Section 4(g), then Xxxx agrees to not
seek or apply for unemployment compensation under the Illinois Unemployment
Act 820 ILCS 405/100 et seq. or any other state or federal unemployment
compensation law at any time prior to a date following the final payment
made hereunder or with respect to the period during which such payments
were or were to be made until the final payment is made.
(i) Release. As a condition to MSTI's obligation to pay any Severance Benefit
under Section 4(g), Xxxx agrees that he will execute a general release of
MSTI and its affiliates, substantially in the form attached hereto as
Exhibit A.
Section 5. Confidentiality. Xxxx acknowledges that the nature of his employment
will require that he produce and have access to records, data, trade secrets and
information that are not available to the public regarding MSTI and its
subsidiaries and affiliates ("Confidential Information"). Xxxx will hold in
confidence and not directly or indirectly disclose any Confidential Information
to third parties unless disclosure becomes reasonably necessary in connection
with Paul's performance of his duties hereunder, or the Confidential Information
lawfully becomes available to the public from other sources, or he is authorized
in writing by MSTI to disclose it, or he is required to make disclosure by a law
or pursuant to the authority of any administrative agency or judicial body. All
Confidential Information and all other records, files, documents and other
materials or copies thereof relating to the business of MSTI or any of its
subsidiaries or affiliates that Xxxx prepares or uses will always be the sole
property of MSTI. Xxxx will promptly return all originals and copies of such
Confidential Information and other records, files, documents and other materials
to MSTI if his employment with MSTI is terminated for any reason.
Section 6. Non-Competition Covenant.
(a) Restrictive Covenant. MSTI and Xxxx have jointly reviewed the customer
lists and operations of MSTI and agree that MSTI's primary service area for
its lending and deposit activities encompasses a fifty (50) mile radius
from MSTI's main office in Champaign, Illinois. Xxxx agrees that, for a
period of one (1) year after the termination of this Agreement, he will
not, without MSTI's prior written consent, directly or indirectly Compete
with MSTI. For the purposes of Section 6(a):
(i) "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 MSTI to terminate
employment with MSTI or any of its subsidiaries and become employed
by a Competitor.
(ii) "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 similar financial institution (a
"Financial Institution") that is physically located and conducts
lending and deposit taking activities within a fifty (50) mile
radius of MSTI's main office.
(b) Successors. In the event that a successor to MSTI succeeds to or assumes
MSTI's rights and obligations under this Agreement, Section 6(a) will apply
only to the primary service area of MSTI as it existed immediately before
the succession or assumption occurred and will not apply to any of the
successor's other offices.
(c) Investment Exception. Section 6(a) will not prohibit Xxxx from directly or
indirectly owning or acquiring any capital stock or similar securities that
are listed on a securities exchange or quoted on the NASDAQ and do not
represent more than five percent (5%) of the outstanding capital stock of
any Financial Institution.
(d) Injunctive Relief. Xxxx agrees that a violation of this Section 6 would
result in direct, immediate and irreparable harm to MSTI, and in such
event, agrees that MSTI, in addition to its other right and remedies, would
be entitled to injunctive relief enforcing the terms and provisions of this
Section 6.
Section 7. Indemnity; Other Protections.
(a) Indemnification. MSTI will indemnify Xxxx (and, upon his death, his heirs,
executors and administrators) to the fullest extent permitted by law
against all expenses, including reasonable attorneys' fees, court and
investigative costs, judgments, fines and amounts paid in settlement
(collectively, "Expenses") reasonably incurred by him in connection with or
arising out of any pending, threatened or completed action, suit or
proceeding in which he may become involved by reason of his having been an
officer or director of MSTI. The indemnification rights provided for herein
are not exclusive and will supplement any rights to indemnification that
Xxxx xxx have under any applicable bylaw or charter provision of MSTI, or
any resolution of MSTI, or any applicable statute.
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(b) Advancement of Expenses. In the event that Xxxx becomes a party, or is
threatened to be made a party, to any pending, threatened or completed
action, suit or proceeding for which MSTI is permitted or required to
indemnify him under this Agreement, any applicable bylaw or charter
provision of MSTI, any resolution of MSTI, or any applicable statute, MSTI
will, to the fullest extent permitted by law, advance all Expenses incurred
by Xxxx in connection with the investigation, defense, settlement, or
appeal of any threatened, pending or completed action, suit or proceeding,
subject to receipt by MSTI of a written undertaking from Xxxx to reimburse
MSTI for all Expenses actually paid by MSTI to or on behalf of Xxxx in the
event it shall be ultimately determined that MSTI cannot lawfully indemnify
Xxxx for such Expenses, and to assign to MSTI all rights of Xxxx to
indemnification under any policy of directors' and officers' liability
insurance to the extent of the amount of Expenses actually paid by MSTI to
or on behalf of Xxxx.
(c) Litigation. Unless precluded by an actual or potential conflict of
interest, MSTI will have the right to recommend counsel to Xxxx to
represent him in connection with any claim covered by this Section 7.
Further, Paul's choice of counsel, his decision to contest or settle any
such claim, and the terms and amount of the settlement of any such claim
will be subject to MSTI's prior written approval, which approval shall not
be unreasonably withheld by MSTI.
Section 8. General Provisions.
(a) Successors; Assignment. This Agreement will be binding upon and inure to
the benefit of Xxxx, MSTI and their respective personal representatives,
successors and assigns. For the purposes of this Agreement, any successor
or assign of MSTI shall be deemed to be "MSTI". MSTI will require any
successor or assign of MSTI or any direct or indirect purchaser or acquiror
of all or substantially all of the business, assets or liabilities of MSTI,
whether by transfer, purchase, merger, consolidation, stock acquisition or
otherwise, to assume and agree in writing to perform this Agreement and
MSTI's obligations hereunder in the same manner and to the same extent as
MSTI would have been required to perform them if no such transaction had
occurred.
(b) Entire Agreement; Survival. This Agreement constitutes the entire agreement
between Xxxx and MSTI concerning the subject matter hereof, and supersedes
all prior negotiations, undertakings, agreements and arrangements with
respect thereto, whether written or oral. The provisions of this Agreement
will be regarded as divisible and separate; if any provision is ever
declared invalid or unenforceable, the validity and enforceability of the
remaining provisions will not be affected. In the event any provision of
this Agreement (including, but not limited to, any provision of the
covenant not to compete set forth in Section 6) is held to be overbroad as
written, such provision shall be deemed to be amended to narrow the
application of such provision to the extent necessary to make such
provision enforceable according to applicable law. This Agreement may not
be amended or modified except by a writing signed by Xxxx and MSTI. The
parties acknowledge and agree that the obligations under Section 5
(Confidentiality), Section 6 (Non-Competition Covenant) and Section 7
(Indemnity; Other Protections) shall survive the termination of this
Agreement.
(c) Governing Law and Enforcement. This Agreement will 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 shall be settled exclusively by arbitration conducted at a
location selected by MSTI within fifty (50) miles from Champaign, Illinois,
in accordance with the rules of the American Arbitration Association.
(e) Legal Fees. All reasonable legal fees paid or incurred in connection with
any dispute or question of interpretation relating to this Agreement shall
be paid to the party who is successful on the merits by the other party.
(f) 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.
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(g) 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 MSTI, addressed to the principal headquarters of MSTI,
attention: President; or, if to Xxxx, to the address set forth below Paul's
signature on this Agreement, or to such other address as the party to be
notified shall have given to the other.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Main Street Trust, Inc.
By:
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Xxxx Xxxxxxx President and CEO
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Address
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EXHIBIT A
AGREEMENT AND RELEASE
This Agreement and Release (this "Agreement") is made and entered into as of
this _______ day of ___________, ______, by and between _______________________
(hereinafter referred to as "_____") and Main Street Trust, Inc., (hereinafter
referred to as the "Employer"). In consideration of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
Section 1. Separation. The parties agree that ______'s employment with the
Employer shall end ---------- effective _________________________.
Section 2. Payment and Benefits. In consideration of the promises made in this
Agreement, the Employer has agreed to pay ______ the compensation and benefits
as provided in the Employment Agreement entered into between _______ and the
Employer on ______________________. ______ expressly agrees, understands and
acknowledges that the pay provided him under this Section 2 constitutes an
amount in excess of that which a separated employee of the Employer would be
entitled without entering into this Agreement. ______ acknowledges that the
above pay is being provided by the Employer as consideration for ______ entering
into this Agreement, including the release of claims and waiver of rights
provided in Section 3.
Section 3. Release of Claims and Waiver of Rights. ______, on his own behalf and
that of his heirs, executors, attorneys, administrators, successors and assigns,
fully releases and discharges the Employer, its predecessors, successors,
subsidiaries, affiliates and assigns, and its and their directors, officers,
trustees, employees, and agents whether in their individual or official
capacities and the current and former trustees or administrators of any
retirement or other benefit plan applicable to the employees or former employees
of the Employer, in their official and individual capacities from any and all
liability, claims and demands, including but not limited to, claims, demands or
actions arising under the Employer's policies and procedures, whether formal or
informal, United States or State of Illinois Constitutions; the Civil Rights Act
of 1964, as amended; the Civil Rights Act of 1991; the Illinois Human Rights
Act; the Employee Retirement Income Security Act of 1974, as amended; the Age
Discrimination in Employment Act; Executive Order 11246; and any other federal,
state or local statute, ordinance or regulation with respect to employment, and
in addition thereto, from any other claims, demands or actions with respect to
______'s employment with the Employer or other association with the Employer
through the date of this Agreement, including, but not limited to, the
termination of ______'s employment with the Employer, any right of payment for
disability or any other statutory or contractual right of payment or any claim
for relief on the basis of any alleged tort or breach of contract under the
common law of the State of Illinois or any other state, including, but not
limited to, defamation, intentional or negligent infliction of emotional
distress, breach of the covenant of good faith and fair dealing, promissory
estoppel, and negligence. ______ represents that he has not assigned or filed
any claim, demand, action or charge against the Employer.
Section 4. Mutual Non-Disparagement. The Employer and ______ agree that, at all
times following the signing of this Agreement, they shall not engage in any
vilification of the other, and shall refrain from making any false, negative,
critical or disparaging statements, implied or expressed, concerning the other,
including, but not limited to, management style, methods of doing business, the
quality of products and services, role in the community, or treatment of
employees. ______ acknowledges that the only persons whose statements may be
attributed to the Employer for purposes of this Agreement not to make
disparaging statements shall be each member of the Board of Directors of the
Employer and each of ______'s senior officers. The parties further agree to do
nothing that would damage the other's business reputation or good will.
Section 5. Representations by ______. ______ warrants that he is legally
competent to execute this Agreement and that he has not relied on any statements
or explanations made by the Employer or its attorney. Moreover, ______ hereby
acknowledges that he has been afforded the opportunity to be advised by legal
counsel regarding the terms of this Agreement, including the release of all
claims and waiver of rights set forth in Section 3. ______ acknowledges that he
has been offered at least [twenty-one (21)] days to consider this Agreement.
After being so advised, and without coercion of any kind, ______ freely,
knowingly, and voluntarily enters into this Agreement. [______ further
acknowledges that he may revoke this Agreement within seven (7) days after he
has signed this Agreement and further understands that this Agreement shall not
become effective or enforceable until seven (7) days after he has signed this
Agreement as evidenced by the date set forth below his signature (the "Effective
Date"). Any revocation must be in writing and directed to the Employer,
_____________________________, __________, Illinois ___________, Attention:
___________________. If sent by mail, any revocation must be postmarked within
the seven (7)-day period and sent by certified mail, return receipt requested.]
In addition, ______ represents that he has returned all property of the Employer
that is in his possession, custody or control, including all documents, records
and tangible property that are not publicly available and reflect, refer or
relate to the Employer or the Employer's business affairs, operations or
customers, and all copies of the foregoing.
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Section 6. No Admissions. The Employer denies that it or any of its employees or
agents have taken any improper action against ______, and ______ agrees that
this Agreement shall not be admissible in any proceeding as evidence of improper
action by the Employer or any of their employees or agents.
Section 7. Confidentiality. ______ and the Employer agree to keep the existence
and the terms of this Agreement confidential, except for his immediate family
members or their legal or tax advisors in connection with services related
hereto and except as may be required by law or in connection with the
preparation of tax returns.
Section 8. Non-Waiver. The Employer's waiver of a breach of this Agreement by
______ shall not be construed or operate as a waiver of any subsequent breach by
______ of the same or of any other provision of this Agreement.
IN WITNESS WHEREOF, the undersigned have set their hands the day and year set
forth below their respective signatures.
Main Street Trust, Inc.
By:
---------------------------- -----------------------------------
Title: President & CEO [Employee Name]
Date: Date:
----------------------------- -----------------------------------
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