EXHIBIT 10.16
AGREEMENT REGARDING POST-
EMPLOYMENT RESTRICTIVE COVENANTS
THIS AGREEMENT made effective as of April 27, 1999, by and between
CoVest Bancshares, Inc. (the "Company"), CoVest Banc, National Association (the
"Bank") and XXXXXX X. XXXXXXXXX ("Executive").
WITNESSETH:
WHEREAS, Company and its affiliates are engaged in depository, lending
and other financial services businesses (the "Business");
WHEREAS, Executive has expertise, experience and capability in the
Business;
WHEREAS, the Company and Bank have invested significant amounts in the
development of there Business;
WHEREAS, Executive will serve as Executive Vice President Retail
Banking of the Company and the Bank pursuant to an employment agreement of even
date herewith (the "Employment Agreement"), which, among other things, contains
Executive's agreement to enter into this Agreement regarding confidentiality and
post-employment restrictive covenants for the Company, the Bank, and/or their
subsidiaries (the Company, the Bank and/or subsidiaries hereinafter "Company or
its affiliates") in return for the compensation set forth therein; and
WHEREAS, Executive is willing to provide such agreements to the Company
and the Bank.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which consideration is mutually acknowledged by the parties, it
is hereby agreed as follows:
1. RECITALS.
The recitals hereinbefore set forth constitute an integral part of this
Agreement, evidencing the intent of the parties in executing this Agreement, and
describing the circumstances surrounding its execution. Said recitals are by
express reference made a part of the covenants hereof, and this Agreement shall
be construed in light thereof.
2. CONFIDENTIAL INFORMATION.
Executive acknowledges that during the course of his employment he will learn or
develop Confidential Information (as that term is defined in this Section 2).
Executive further acknowledges that unauthorized disclosure or use of
Confidential Information, other than in discharge of Executive's duties, will
cause the Company or its affiliates irreparable harm. Executive further agrees
to pay reasonable attorney fees and costs of litigation incurred by the Company
or its affiliates in any proceeding relating to the enforcement of the Agreement
or to any alleged breach thereof in which the Company or its affiliates prevail
in full as determined by a final order entered in such action. In the event of a
breach or a violation by Executive of any of the covenants and provisions of
this Agreement, the running of the Non-Compete Period (but not of Executive's
obligation thereunder), shall be tolled during the period of the continuance of
any actual breach or violation.
For purposes of this Section, Confidential Information means trade secrets (such
as proprietary technical and non-technical data, a program, method, technique,
process) and other confidential information concerning the products, processes,
services, or customers of the Company or its affiliates, including but not
limited to: computer programs; marketing, or organizational research and
development; business plans; revenue forecasts; personnel information, including
the identity of other employees of the Company or its affiliates, their
responsibilities, competence, abilities, and compensation; pricing and financial
information; current and prospective customer lists and information on customers
or their employees; information concerning planned or pending acquisitions or
divestitures; and information concerning purchases of major equipment or
property, which information: (a) has not been made generally available to the
public; and (b) is useful or of value to the current or anticipated business, or
research or development activities of the Company or its affiliates; or (c) has
been identified to Executive as confidential by the Company or its affiliates,
either orally or in writing during his employment.
Except in the course of his employment and in the pursuit of the business of the
Company or its affiliates, Executive shall not, during the course of his
employment, or following termination of his employment for any reason, directly
or indirectly, disclose, publish, communicate or use on his behalf or another's
behalf, any Confidential Information, proprietary information or other data of
the Company or its affiliates.
Executive acknowledges that as to certain aspects of its business, the Company
and its affiliates operate and compete throughout Xxxx County, Illinois and
adjacent counties and that the Company or its affiliates will be harmed by
unauthorized disclosure or use of Confidential Information regardless of where
such disclosure or use occurs, and that therefore this confidentiality agreement
is not limited to any single state or other jurisdiction.
3. NON-COMPETITION.
During the term of his employment and for the period ending upon the later of
(a) twelve (12) months after the date Executive's employment with the Company
and its affiliates terminates, or (b) the date the Executive receives the final
payment of any severance payments under the Employment Agreement (the
"Non-Compete Period"), the Executive shall not, in the Territory (except in his
capacity as an officer or director of the Company or its affiliate), (a) engage
or participate in the business of an institution insured by the Federal Deposit
Insurance Corporation or the National Credit Union Administration (an "Insured
Institution"), (b) engage or participate in, be employed by or render services
to any Insured Institution or any affiliate thereof engaged in lending
activities, or (c) directly or indirectly become interested in any Insured
Institution or any affiliate thereof engaged in lending activities referred to
in clause (b) above in any capacity, including without limitation, as an
individual, partner, shareholder, lender, officer, director, principal, agent or
trustee; provided, however, that the Executive may own, directly or indirectly,
solely as an investment, securities of any Insured Institution or affiliate
thereof if Executive is not a controlling person of such entity, or a member of
a group which controls such entity and Executive does not own more than 5% of
any class of equity securities of such entity.
"Territory" for purposes hereof shall mean those communities in which the
Company or any of its affiliates has an office or branch, or has filed an
application for regulatory approval to establish an office or branch (whether de
novo or by acquisition), together with those communities which are within a 25
mile radius of any such financial institutions or branches. The "Territory"
shall become fixed as of the earlier date of (1) the date the Executive's
employment terminates, or (2) the date immediately preceding the date of a
Change in Control (as defined in the Employment Agreement), and shall not be
expanded as a result of any additional communities in which the Company or any
of its affiliates may thereafter establish a financial institution or branch.
4. INDUCEMENT OF OTHER EMPLOYEES.
During the Non-Compete Period, Executive will not directly or indirectly
solicit, induce or encourage any person who, as of the date immediately
preceding the date of the termination of Executive's employment, is an employee
of the Company or any of its affiliates to terminate his or her relationship
with the Company or its affiliates.
5. RETURN OF THE COMPANY'S PROPERTY.
All notes, reports, plans, published memoranda or other documents created,
developed, generated or held by Executive during employment, concerning or
related to the Company's or its affiliates' business, and whether containing or
relating to Confidential Information or not, are the property of the Company or
its affiliates and will be promptly delivered to the Company or its affiliates
upon termination of Executive's employment for any reason whatsoever.
6. REMEDIES.
Executive acknowledges that the restraints and agreements herein provided are
fair and reasonable, that enforcement of the provisions of Sections 2, 3, 4 and
5 will not cause him undue hardship and that said provisions are reasonably
necessary and commensurate with the need to protect the Company or its
affiliates and its legitimate and proprietary business interests and property
from irreparable harm.
Executive acknowledges that failure to comply with the terms of this Agreement
will cause irreparable damage to the Company or its affiliates. Therefore,
Executive agrees that, in addition to any other remedies at law or in equity
available to the Company or its affiliates for Executive's breach or threatened
breach of this Agreement, the Company or its affiliates is entitled to (a) the
repayment by Executive of any severance benefits paid or provided to Executive
under the Employment Agreement and (b) specific performance or injunctive
relief, without bond, against Executive to prevent such damage or breach, and
the existence of any claim or cause of action Executive may have against the
Company will not constitute a defense thereto. Executive further agrees to pay
reasonable attorney fees and costs of litigation incurred by the Company or its
affiliates in any proceeding relating to the enforcement of the Agreement or to
any alleged breach thereof in which the Company or its affiliates prevail in
full as determined by a final order entered in such action.
In the event of a breach or a violation by Executive of any of the covenants and
provisions of this Agreement, the running of the Non-Compete Period (but not of
Executive's obligation thereunder), shall be tolled during the period of the
continuance of any actual breach or violation.
7. ENTIRE UNDERSTANDING.
This Agreement constitutes the entire understanding between the parties relating
to Executive's restrictions on Executive's post-employment services and
supersedes and cancels all prior written and oral understandings and agreements
with respect to such matters.
8. BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of the Company and
its successors and Executive and his successors and assigns. The Company shall
each require any successor or assignee, whether direct or indirect, by purchase,
merger, consolidation or otherwise, expressly and unconditionally to assume and
agree to perform the Company's obligations under this Agreement, in the same
manner and to the same extent that the Company would be required to perform if
no such succession or assignment had taken place.
9. PARTIAL INVALIDITY.
The various provisions of this Agreement are intended to be severable and to
constitute independent and distinct binding obligations. Should any provision of
this Agreement be determined to be void and unenforceable, in whole or in part,
it shall not be deemed to affect or impair the validity of any other provision
or part thereof, and such provision or part thereof shall be deemed modified to
the extent required to permit enforcement. Without limiting the generality of
the foregoing, if the scope of any provision contained in this Agreement is too
broad to permit enforcement to its full extent, but may be made enforceable by
limitations thereon, such provision shall be enforced to the maximum extent
permitted by law, and Executive hereby agrees that such scope may be judicially
modified accordingly.
10. STRICT CONSTRUCTION.
The language used in this Agreement will be deemed to be the language chosen by
the Company and Executive to express their mutual intent and no rule of strict
construction shall be applied against any person.
11. WAIVER.
The waiver of any party hereto of a breach of any provision of this Agreement by
any other party shall not operate or be construed as a waiver of any subsequent
breach.
12. NOTICES.
Any notice or other communication required or permitted to be given hereunder
shall be determined to have been duly given to any party (a) upon delivery to
the address of such party specified on the signature page hereof if delivered
personally or by courier; (b) upon dispatch if transmitted by telecopy or other
means of facsimile, provided a copy thereof is also sent by regular mail or
courier; or (c) within forty-eight (48) hours after deposit thereof in the U.S.
mail, postage prepaid, for delivery as certified mail, return receipt requested,
addressed, in any case to the party at the address(es) or telecopy numbers set
forth on the signature page hereof or to such other address(es) or telecopy
number(s) as any party may designate by written notice in the aforesaid manner.
13. GOVERNING LAW.
This Agreement shall be governed by, and interpreted, construed and enforced in
accordance with, the laws of the State of Illinois.
14. GENDER AND NUMBER.
Wherever from the context it appears appropriate, each term stated in either the
singular of plural shall include the singular and the plural, and the pronouns
stated in either the masculine, the feminine or the neuter gender shall include
the masculine, feminine or neuter.
15. HEADINGS.
The headings of the Sections of this Agreement are for reference purposes only
and do not define or limit, and shall not be used to interpret or construe the
contents of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed at Des Plaines, Illinois, on the date above set forth.
COVEST BANCSHARES, INC.
By:
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Its: President and Chief Executive Officer
COVEST BANC, NATIONAL ASSOCIATION
By:
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Its: President and Chief Executive Officer
Address: 000 Xxx Xxxxxx Xxx Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
EXECUTIVE
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Address: 000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xx 00000
Telecopy No: 847-891-3307
