EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Employment Agreement") is made and
entered into on December 8, 2003 (the "Effective Date") by and between
Xxxxxx X. Xxxxx ("Executive"), Clover Leaf Bank, an Illinois-chartered
commercial bank (the "Bank"), and Clover Leaf Financial Corp., a Delaware
corporation (the "Holding Company").
RECITALS
A. Executive is currently employed as the President and Chief Executive
Officer of the Bank and the Holding Company.
B. Executive and the Bank desire for Executive to continue to render
services to and on behalf of the Bank and its Affiliates (as defined below),
including the Holding Company.
C. The Holding Company, the sole shareholder of the Bank, desires for
Executive and the Bank to enter into this Employment Agreement for the benefit
of the Bank and the Holding Company.
AGREEMENT
In consideration of the mutual promises contained in this Employment
Agreement and in the Change in Control Agreement entered into between the
parties hereto on this day ("Change in Control Agreement"), the parties agree as
follows:
1. POSITION AND RESPONSIBILITIES. During the Employment Term (as defined
below), Executive agrees to serve as President and Chief Executive Officer of
the Bank and the Holding Company, or in such other position or positions as the
Bank's Board of Directors (the "Bank Board") or the Holding Company's Board of
Directors (the "Holding Company Board") may from time to time determine.
Executive also agrees to serve as an officer and director of any Affiliate
during the Employment Term, if requested by the Bank or the Holding Company. For
purposes of this Employment Agreement, "Affiliate" means the Bank, the Holding
Company, and any other entity the majority of the outstanding equity or voting
shares (or other indicia of ownership) of which is owned by the Bank or the
Holding Company. Executive's duties shall include those customarily performed by
a President and Chief Executive Officer of a commercial bank and a bank holding
company, including activities and services related to the organization,
operation, and management of the Bank, and such other duties as may be
determined by the Bank Board or the Holding Company Board from time to time.
Executive shall at all times faithfully perform his duties in the highest
professional, ethical, and legal manner and in accordance with the directives
issued and policies adopted by the Bank Board and the Holding Company Board.
2. EMPLOYMENT TERM. The period of Executive's employment under this
Employment Agreement shall begin as of the Effective Date and shall continue
until September 30, 2005 (the "Employment Term" or the "Term"), unless sooner
terminated pursuant to the provisions of Section 4 or extended by mutual written
agreement of the parties.
3. COMPENSATION AND REIMBURSEMENT.
(a) As compensation for all of the services to be rendered by Executive
as described in Section 1 of this Employment Agreement, the Bank shall pay
Executive a salary of at least $140,000.00 per year ("Base Salary") during the
Employment Term, payable bi-weekly or in accordance with such other periodic
payroll periods as the Bank may adopt for the payment of its management
employees. The Bank Board shall review Executive's performance at least annually
during the Employment Term and as a result of such reviews the Bank Board may
cause the Bank to increase, but not decrease, Executive's Base Salary. The Bank
Board may pay Executive additional compensation in the form of a bonus or
bonuses, depending on the Bank's profitability, Executive's performance, and
other factors the Bank Board deems relevant, all in the Bank Board's sole
discretion.
(b) The Bank shall provide Executive with such benefits as are provided
to its permanent, full-time management employees, including any retirement
plans, profit-sharing plans, health insurance plans, or other benefit plans or
programs, all as the Board may adopt or amend from time to time in its sole
discretion. Nothing herein shall limit the Bank's right to amend or terminate
any benefit, plan, or program in the Bank Board's sole discretion, so long as
the amendment or termination is not designed to affect only the benefit of
Executive. The Bank does not guarantee that Executive will qualify for any
insurance or that any policy or benefit plan or program now in effect will be
continued. In no case shall the Bank be liable for any death benefit, medical
expenses, or other amount in excess of the Bank's portion of the premiums or
contributions for coverage under the plan or plans that may be in effect.
(c) The Bank shall pay or reimburse Executive for all reasonable travel
and other reasonable expenses incurred by Executive in performing his duties,
subject to and in accordance with applicable policies and procedures as the Bank
Board may enact from time to time.
4. TERMINATION. This Employment Agreement and Executive's employment
shall terminate upon the first of the following to occur:
(a) The end of the Employment Term, as provided above, unless extended by
mutual agreement of the Executive and the Bank.
(b) Upon Executive's death.
(c) Upon Executive's Disability. For purposes of this Employment
Agreement, "Disability" means: Executive becoming materially incapacitated from
fully performing Executive's duties under this Employment Agreement (taking into
account reasonable accommodation by the Bank to the extent required by law) by
reason of any illness, injury, or any other condition for any period of time in
excess of the paid and unpaid leave to which he may then be entitled pursuant to
the Bank's policies as may be in effect from time to time or by law. Provided,
nothing in this paragraph shall limit Executive's rights under the Family
Medical Leave Act, the Americans with Disabilities Act, or any other applicable
law. Nothing in this Employment Agreement shall require the Bank to pay
Executive during any time that he is
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absent from work due to illness or injury beyond the time provided in the Bank's
then effective sick leave and other policies.
(d) In the event of a Change in Control (as defined in the Change in
Control Agreement), in which case Executive's employment and this Employment
Agreement shall terminate when the Change in Control becomes effective.
(e) Upon written notice to Executive by the Bank for Cause. For purposes
of this Employment Agreement, "Cause" means Executive: (i) stealing or
misappropriating any funds or other property of the Bank or of any customer of
the Bank, or committing any other act involving dishonesty or moral turpitude in
connection with the Bank's business, assets, customers, or Affiliates; (ii)
breaching any term or provision of this Employment Agreement, including, without
limitation, habitually or repeatedly neglecting his duties, failing to comply
with any policy of the Bank or any directive of the Board (that is not in
contravention of this Employment Agreement) and failing to cure the breach
within such reasonable time as requested by the Bank, not to exceed 30 days
after written notice of breach to Executive; (iii) committing any act
constituting a felony under federal or state law; (iv) using or possessing any
illegal drug; or (v) operating while under the influence of alcohol or drugs a
vehicle while on Bank or Holding Company business, or at any time while
operating a vehicle owned or leased by the Bank, the Holding Company, or another
Affiliate.
(f) Notwithstanding anything else, if Executive remains employed by the
Bank or any other Affiliate after the end of the Employment Term, then, unless
the parties execute a written agreement regarding the terms of such employment,
Executive shall be an employee at-will (except as provided in the next sentence)
and the terms of this Employment Agreement shall not apply, except to the extent
any provision hereof is expressly stated to survive the termination of this
Employment Agreement. Provided, either party shall give the other at least 14
days advance written notice in order to terminate Executive's employment at
anytime when he is employed by the Bank or the Holding Company, unless there is
a written agreement then in effect requiring notice further in advance of the
termination. The terms of this paragraph shall survive the termination of this
Employment Agreement and the termination of Executive's employment, and remain
effective unless superceded by a written agreement executed by the Bank and/or
the Holding Company, and by Executive.
5. NON-COMPETITION.
(a) Executive agrees that he will not Compete (as defined below) anywhere
within the Non-Compete Area (as defined below) at any time during the
Non-Compete Period (as defined below).
(b) For purposes of this Employment Agreement, "Compete," "Competes
with," "Competing," and similar terms mean to work for or advise, consult with,
assist, or otherwise serve, directly or indirectly, whether as an employee,
independent contractor, director, consultant, owner, or otherwise, any
commercial bank, home savings bank, savings and loan association, credit union,
other financial institution, or other entity whose business materially competes
with the depository, lending, or other business activities of the Bank, the
Holding
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Company, or any other Affiliate (but as to Affiliates other than the Bank or the
Holding Company, only those that are existing and constitute Affiliates while
Executive is employed by the Bank, the Holding Company, or another Affiliate,
whether such employment is pursuant to this Employment Agreement or otherwise).
(c) The "Non-Compete Area" means all of Madison County, Illinois and St.
Clair County, Illinois. For purposes of this Employment Agreement, Executive's
activities during the Non-Compete Period shall be deemed to be within the
Non-Compete Area if (i) Executive is employed by, consults with, or otherwise
assists or serves any bank, home savings bank, credit union, savings and loan
association, or other financial institution that has an office within Madison or
St. Clair Counties in Illinois, regardless of the location of Executive's
principal office, if any, provided for him by such entity, or (ii) Executive
would be deemed to be Competing in the Non-Compete Area without regard to this
sentence. Provided, however, clause (i) of the preceding sentence shall not
apply if Executive is employed in a state other than Illinois or Missouri.
Executive acknowledges and agrees that the scope of the restriction on Competing
as set forth in this paragraph is reasonable because of the clarity and
reduction of the chance of ambiguity it provides and in view of the ease with
which banking business may be transacted electronically and by other means that
would otherwise allow the spirit and intent of the provisions of this Section 5
to be frustrated.
(d) The "Non-Compete Period" means the time period from the Effective
Date until 2 years after the later of the termination of this Employment
Agreement, or if Executive is employed by the Bank, the Holding Company, or
another Affiliate at any time after the termination of this Employment
Agreement, the termination of Executive's employment by such Affiliate,
regardless of the reason for termination and regardless of whether termination
is initiated by Executive or by the Bank, the Holding Company, or other
Affiliate.
(e) Executive agrees that he will not, at any time during the Non-Compete
Period: (i) induce or attempt to induce any person to leave the employ of the
Bank, the Holding Company, or any other Affiliate; or (ii) induce or attempt to
induce any customer or potential customer not to transact business with the Bank
or any other Affiliate, or to transact business with any entity that Competes
with the Bank or any Affiliate.
(f) Executive acknowledges that the Bank and the Holding Company have
entered into this Employment Agreement and the Change in Control Agreement in
reliance on the terms of this Section 5 and would not have entered into this
Employment Agreement or the Change in Control Agreement without receiving in
return the promises of Executive contained in this Section 5. However, in the
event any of the provisions of this Section 5 are deemed by a court of competent
jurisdiction to exceed the time, geographic, or other limitations permitted by
applicable law, such provisions shall be reformed to the maximum time,
geographic, or other limitations permitted by applicable law, and shall be fully
enforceable as reformed. In addition to enforcement by restraining order and
injunction, the Bank and the Holding Company shall be entitled to pursue all
other remedies available at law or in equity for breach or threatened breach of
the terms of this Section 5.
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(g) The restrictions on Executive's activities shall cease to apply and
Executive shall be permitted to Compete without restriction if Executive's
employment is terminated other than for Cause during the Employment Term and
such termination results in a breach of this Employment Agreement by the Bank or
the Holding Company. (h) The terms of this Section 5 shall survive the
termination of this Employment Agreement and the termination of Executive's
employment.
6. CONFIDENTIAL INFORMATION.
(a) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Bank and the
Holding Company, as may exist from time to time, are valuable, special, and
unique assets of the Bank and the Holding Company. Executive acknowledges that
the business of the Bank and other Affiliates is highly competitive and that the
Bank has provided and will provide Executive with access to Confidential
Information (as defined below) relating to the business of the Bank, the Holding
Company, and other Affiliates. Executive agrees that he will not, during or
after the Employment Term, make any disclosure of Confidential Information
except (i) as necessary in the performance of his duties on behalf of the Bank,
the Holding Company, or another Affiliate, (ii) as may be required to be
provided to any federal or state banking agency with jurisdiction over the Bank,
the Holding Company, or Executive, or (iii) as may be required by any court
order or lawfully issued subpoena. Executive also agrees to preserve and protect
the confidentiality of each third party's confidential information (such as, for
example, confidential information of a customer of the Bank obtained by
Executive in the course of his employment) to the same extent, and on the same
basis, as the Confidential Information.
(b) For purposes of this Employment Agreement, "Confidential Information"
means and includes the confidential or proprietary information, business and
marketing plans, and trade secrets that have been or are hereafter developed or
used by the Bank, the Holding Company, or any other Affiliate and which cannot
be obtained readily by third parties from outside sources. Confidential
Information includes, by way of example and without limitation, the following
information regarding: (i) plans for additional branches, possible locations of
future branches, and the plans for the marketing of business at those branches;
(ii) customers (including, but not limited to, the name, title, and position of
the customer's key personnel with respect to business of the type conducted with
Bank or any other Affiliate, and the specific needs, preferences, concerns,
corporate "personality," and other information about any customer that is or
would be useful in obtaining and maintaining the customer's repeat business and
goodwill); (iii) employees and applicants for employment (including, but not
limited to, educational background, particular skills and abilities, work
history, compensation data, work preferences, home telephone number, address,
current availability, and other information that is useful in attracting and
assessing qualified employee applicants); and (iv) marketing, financial, and
industry information that is not generally known to the public (including, but
not limited to, strategies, financial information, methods, and proposals).
(c) The provisions of this Section 6 may be enforced by an action for a
temporary restraining order, preliminary injunction, and permanent injunction,
in addition to all other remedies available to the Bank in equity or at law.
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(d) The terms of this Section 6 shall survive the termination of this
Employment Agreement and the termination of Executive's employment.
7. MISCELLANEOUS PROVISIONS.
(a) This Employment Agreement and the Change in Control Agreement contain
the entire understanding between the parties hereto related to Executive's
employment by the Bank and the Holding Company. This Employment Agreement
supersedes any prior employment agreement between Executive and the Bank, the
Holding Company, or any other Affiliate. There are no representations or
agreements, written or oral, between Executive and the Bank, the Holding
Company, or any Affiliate concerning the employment of Executive. No agreement,
amendment, nor any modification of any agreement, term of employment, or other
understanding between Executive and the Bank, the Holding Company, or another
Affiliate, shall be binding on any party unless set forth in writing and signed
by the party against whom enforcement is sought.
(b) This Employment Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that, the services of Executive being unique and of a personal nature,
Executive may not assign this Employment Agreement or any of his rights
hereunder. The Bank and/or the Holding Company may assign any or all of their
respective rights hereunder, but any such assignment shall not relieve the Bank
or the Holding Company of liability for any breach of this Employment Agreement
by the Bank, the Holding Company, or any assignee unless Executive so agrees in
writing.
(c) No term or condition of this Employment Agreement shall be deemed to
have been waived, nor shall there be any estoppel against the enforcement of any
provision of this Employment Agreement, except by written instrument of the
party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each such
waiver shall operate only as to the specific term or condition waived and shall
not constitute a waiver of such term or condition for the future.
(d) If for any reason any term or provision of this Employment Agreement
or part thereof is held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other term or provision, and all terms and
parts thereof shall continue in full force and effect to the greatest extent
allowed by law.
(e) The section and paragraph headings are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Employment Agreement.
(f) This Employment Agreement shall be deemed for all purposes as drafted
and prepared by all parties hereto and no provision hereof shall be construed
against any party on the ground that such party drafted or participated in the
drafting of such provision or any other part or all of this Employment
Agreement.
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(g) In the event of the dispute regarding Executive's employment by the
Bank or the Holding Company, or regarding any term or provision of this
Employment Agreement or the performance thereof, the prevailing party shall be
entitled to recover its attorneys' fees and costs, in addition to all other
remedies to which such party is entitled.
(h) The Bank is primarily liable for the obligations to Executive
pursuant to this Employment Agreement. However, if the Bank fails to perform any
of such obligations, or if the Bank or the Holding Company breaches any term or
provision of this Employment Agreement, the Holding Company and the Bank shall
be jointly and severally liable to Executive.
(i) This Employment Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
(j) The terms of this Section 7 shall survive the termination of this
Employment Agreement and the termination of Executive's employment.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
on the date first above written.
Executive: Clover Leaf Bank
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxxx
------------------------- ------------------------------
Xxxxxx X. Xxxxx By: Xxxxxx X. Xxxxxxxx, Chairman
Attest:
/s/ Xxxx X. Xxxxxx
------------------------------
By: Xxxx X. Xxxxxx, Vice Chairman
Clover Leaf Financial Corp.
/s/ Xxxxxx X. Xxxxxxxx
------------------------------
By: Xxxxxx X. Xxxxxxxx
Attest:
/s/ Xxxx X. Xxxxxx
------------------------------
By: Xxxx X. Xxxxxx, Vice Chairman
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