Exhibit 10.4
XXXXXXX XXXX
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into as of the
1st day of March, 2001 (the "Effective Date"), by and between FIRST NATIONAL
BANK OF DECATUR, a national banking association with its main office located in
Decatur, Illinois (the "Bank"), MAIN STREET TRUST, INC., an Illinois corporation
("Main Street"), FIRSTECH, INC., a Delaware corporation ("FirsTech") and XXXXXXX
XXXX ("Phil").
RECITALS
A. Phil has served as the President of the Bank since the Effective Date.
B. The Bank is wholly owned subsidiary of Main Street.
C. Phil has served as an executive vice president of Main Street since the
Effective Date.
D. Main Street, the Bank and Phil 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 Phil, Main
Street or the Bank might ever make to terminate this Agreement.
E. Main Street, the Bank and Phil believe that the commitments they have made
to each other should be memorialized in writing, and that is the purpose of
this Agreement.
THEREFORE, Main Street, the Bank and Phil agree as follows:
AGREEMENTS
Section 1. Employment. For purposes of this Agreement the term "Employer" shall
mean the Bank through September 30, 2001 and shall mean Main Street after
September 30, 2001. The Employer agrees to employ Phil, and Phil agrees to serve
the Employer, in accordance with the terms of this Agreement.
(a) Positions. Subject to the terms of this Agreement, until September 30, 2001
the Bank agrees to employ Phil as the President of the Bank and Main Street
agrees to employ Phil as an executive vice president, upon which date Main
Street agrees to continue to employ Phil as an executive vice president and
the Bank agrees to employ him as Chairman and FirsTech agrees to employ him
as Chairman. Subject to the terms of this Agreement, Phil agrees to serve
in the positions set forth above.
(b) Duties. Phil's duties, authority and responsibilities in the positions set
forth in subsection (a) above include all duties, authority and
responsibilities customarily held by such officers of comparable banks and
companies, subject always to the charter and bylaw provisions and the
policies of the Bank, Main Street and FirsTech and the directions of their
respective Board of Directors. For purposes of this Agreement, the "Board"
shall mean the Board of Directors of Main Street.
(c) Care and Loyalty. Phil will devote his best efforts and full business time,
energy, skills and attention to the business and affairs of Main Street,
the Bank and FirsTech, and will faithfully and loyally discharge his duties
to Main Street, the Bank and FirsTech.
Section 2. Compensation. The Employer will compensate Phil for his services as
follows during the term of this Agreement and his employment hereunder:
(a) Base Compensation. Phil will receive an annual base salary of $145,000
during 2001. The Board will review Phil's base salary annually during the
term of this Agreement to determine whether it should be maintained at its
existing level or increased. Phil's annual base salary after 2001 will not
be lower than his base salary for the immediately preceding year.
Notwithstanding anything contained herein to the contrary, Main Street
shall be entitled in its sole and absolute discretion to allocate among
Main Street, the Bank and FirsTech the amount of base salary payable to
Executive.
(b) Performance Bonus. The Employer will consider Phil for a bonus at the end
of each year based on performance criteria established by the Board and/or
Phil'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.
(c) Profit Sharing Benefit. Phil will receive an annual profit sharing benefit
that will range between 5% and 10% of the combined amount of his annual
base salary and if applicable, his performance bonus. The Board will decide
the exact amount of this benefit annually within that range. The Employer
will contribute this benefit for the account of Phil to the Bank's or Main
Street's tax-qualified retirement plans and/or any nontax-qualified
deferred compensation programs that the Bank or Main Street 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. At the Employer's discretion, the Employer will either (i)
pay Phil a car allowance of $400 per month or (ii) provide Phil with a
company-owned vehicle, a credit card for gasoline and all necessary
maintenance. The car allowance will be subject to annual review by the
Board starting in 2001 and will be maintained or increased as the Board
deems appropriate. The Employer will also insure Phil's car at the
Employer's expense under the Employer's general corporate automobile
insurance program.
(e) Club Membership. The Employer expects Phil to entertain clients and
prospective clients of Main Street and the Bank at the country club to
which he belongs, and thus will reimburse Phil's dues for his country club
membership in an amount not to exceed $365 per month. This allowance will
be subject to annual review by the Board starting in 2001, and may be
maintained or increased as the Board deems appropriate.
(f) Reimbursement of Expenses. The Employer will reimburse Phil for all travel,
entertainment and other out-of-pocket expenses that he reasonably and
necessarily incurs in the performance of his duties. Phil will document
these expenses to the extent necessary to comply with all applicable laws
and internal policies.
(g) Other Benefits. Phil will be entitled to participate in all plans and
benefits that are now or later made available by Main Street or the Bank to
its officers of equal or junior ranking generally.
(h) Vacations. Phil will receive at least 20 days of paid vacation annually,
subject to the Employer's general vacation policy.
(i) Withholding. Phil acknowledges that the Employer may withhold any
applicable federal, state or local withholding or other taxes from payments
that become due to him.
Section 3. Term and Termination.
(a) Term and Automatic Renewal. The term of this Agreement and Phil's
employment hereunder will be one (1) year commencing as of the Effective
Date. This Agreement and the term of Phil's employment hereunder will
automatically renew for one (1) additional year on each anniversary of the
Effective Date unless this Agreement and Phil's employment hereunder are
terminated in accordance with the provisions of this Section 3.
(b) Termination Without Cause. Either the Employer or Xxxx xxx terminate this
Agreement and Phil'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 Phil voluntarily terminates his employment
under this Agreement other than pursuant to Sections 3(d) or 3(e), then the
Employer shall only be required to pay Phil such base salary as shall have
accrued through the effective date of such termination and the Employer
shall have no further obligations to Phil.
(c) Termination for Cause. The Employer may terminate this Agreement and Phil's
employment hereunder for Cause by delivering written notice of termination
to Phil no less than 30 days before the effective date of termination.
"Cause" for termination will exist if: (i) Phil engages in one or more
unsafe and unsound banking practices or material violations of a law or
regulation applicable to Main Street, the Bank or FirsTech, any repeated
violations of a policy of Main Street, the Bank or FirsTech 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 Main Street, the Bank or
FirsTech if such violation materially and adversely affects the business or
affairs of Main Street, the Bank or FirsTech, or a direction or order of
the Board and/or one of Phil's senior officers; (ii) Phil engages in a
breach of fiduciary duty or act of dishonesty involving the affairs of Main
Street, the Bank or FirsTech; (iii) Phil 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) Phil commits a material
breach of his obligations under this Agreement; or (v) Phil fails to
perform his duties to Main Street, the Bank or FirsTech with the degree of
skill, care or competence expected by the Board and/or Phil's senior
officers. If Phil's employment is terminated pursuant to this Section 3(c),
then the Employer shall only be required to pay Phil such base salary as
shall have accrued through the effective date of such termination and the
Employer shall have no further obligations to Phil.
(d) Constructive Discharge. If Phil is ever Constructively Discharged, he may
terminate this Agreement and his employment hereunder by delivering written
notice to the Employer no later than thirty (30) days before the effective
date of termination. "Constructive Discharge" means the occurrence of any
one or more of the following, without Phil's prior consent: (i) Phil is not
reelected to or is removed from the positions set forth in Section 1(a)
(other than by promotion to a higher position or positions); provided,
however, that removal from his position(s) with FirsTech shall not
constitute a Constructive Discharge hereunder; (ii) the Employer fails to
xxxx Xxxx with or removes from him the duties, responsibilities, authority
or resources that he reasonably needs to competently perform his duties;
(iii) the Employer notifies Phil that it is terminating this Agreement
pursuant to Section 3(b); (iv) the Employer changes the primary location of
Phil's employment to a place that is more than fifty (50) miles from
Decatur, Illinois; or (v) the Employer otherwise commits a material breach
of its obligations under this Agreement and fails to cure the breach within
thirty (30) days after Phil gives the Employer written notice of the
breach.
(e) 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 the
Employer 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 3(b) or (d).
(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 Main Street;
or (B) the individuals who were members of the Board of Directors of
Main Street on the Effective Date (the "Current Board Members") cease
for any reason (other than the reasons specified in Subsection
3(e)(ii) below) to constitute a majority of the Board of Main Street
or its successor; however, if the election or the nomination for
election of any new director of Main Street 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 3(e)(i), be considered a Current Board Member; or (C) Main
Street's stockholders approve (1) a merger or consolidation of Main
Street or the Bank and the stockholders of Main Street 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 Main Street
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 Main Street
or the Bank.
(ii) Notwithstanding and in lieu of Section 3(e)(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 Main Street are acquired by (1) a
trustee or other fiduciary holding securities under one or more
employee benefit plans maintained for employees of Main Street or the
Bank, or (2) any person pursuant to the will or trust of any existing
stockholder of Main Street, 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 Phil agrees in
writing that the transaction or event in question does not constitute
a Change of Control for the purposes of this Agreement.
(f) Termination upon Disability. The Employer will not terminate this Agreement
and Phil's employment hereunder if Phil becomes disabled within the meaning
of the Employer's then current employee disability program or, at the
Employer's election, as determined by a physician selected by the Employer,
unless as a result of such disability, Phil is unable to perform his duties
with the requisite level of skill and competence for a period of six
consecutive months. Thereafter, the Employer may terminate this Agreement
for Cause in accordance with Subsection 3(c)(v).
(g) Termination upon Death. This Agreement will terminate if Phil dies during
the term of this Agreement, effective on the date of his death. Any
payments that are owing to Phil 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.
(h) Severance Benefits. Subject to the conditions hereinafter set forth, the
Employer will pay severance benefits to Phil as follows:
(i) If this Agreement and Phil's employment hereunder are terminated by
the Employer without Cause pursuant to Section 3(b), or by Phil by
reason of his Constructive Discharge pursuant to Section 3(d), the
Employer will pay Phil an amount equal to the sum of his then
applicable annual base salary, plus the amount of the most recent
performance bonus that the Employer awarded to Phil pursuant to
Section 2(b) (collectively, the "Severance Payment"); provided,
however, that termination of Phil's employment with FirsTech shall not
constitute termination of employment for purposes of the right to
receive the Severance Payment hereunder. 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 Phil or for his benefit under all
applicable retirement and other employee benefit plans had he remained
in the Employer's employ through the last day of the then current
term. The Employer will also continue to provide Phil and his
dependents, at the expense of the Employer, with continuing coverage
under all existing life, health and disability programs for a period
of one (1) year following the effective date of termination, provided
that, to the extent Phil 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 Phil will be required to complete
all COBRA election and other forms.
(ii) Notwithstanding Section 3(h)(i) and in lieu of any payments provided
for thereunder, the Employer or its successor will pay Phil an amount
equal to two (2) times the Severance Payment if this Agreement is
terminated within one year after the occurrence of a Change of Control
by Phil pursuant to Sections 3(b), 3(d) or 3(e), or by the Employer or
its successor pursuant to Sections 3(b) or 3(c) either in
contemplation of a Change of Control or at any time after a Change of
Control occurs. In this event, the Employer or its successor will also
continue to provide Phil and his dependents, at the expense of the
Employer or its successor, with continuing coverage under all existing
life, health and disability programs for a period of two (2) years
following the effective date of termination, provided that, to the
extent Phil 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 the Employer's then-existing
group medical insurance policy or program, the Employer 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 Phil will be required to
complete all COBRA election and other forms. If the Employer is not
permitted by the Employer's then-existing group medical insurance
policy or program to continue such coverage after Phil' 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 the Employer shall pay Phil six (6) times the
monthly amount of the Employer's share of the premium.
(iii)All payments that become due to Phil under this Section 3(h) will be
made in equal monthly installments unless the Employer elects to make
those payments in one (1) lump sum. The Employer will be obligated to
make all payments that become due to Phil under this Section 3(h)
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 3(h) are intended to supplement any compensation
or other benefits that have accrued or vested with respect to Phil or
for his account as of the effective date of termination.
(iv) The Employer and Phil intend that no portion of any payment under this
Agreement, or payments to or for the benefit of Phil 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 Phil in the nature of
compensation, as determined by the legal counsel or certified public
accountants for the Employer in accordance with Section 280G(d)(4) of
the Code, receipt of which is contingent on the Change of Control of
Main Street, and to which Section 280G of the Code applies (in the
aggregate "Total Payments"), shall not exceed an amount equal to one
dollar less than the maximum amount which the Employer may pay without
loss of deduction under Section 280G(a) of the Code.
(v) The Employer may elect to defer any payments that may become due to
Phil under this Section 3(h) if, at the time the payments become due,
the Employer is not in compliance with any regulatory-mandated minimum
capital requirements or if making the payments would cause the
Employer's capital to fall below such minimum capital requirements. In
this event, the Employer will resume making the payments as soon as it
can do so without violating such minimum capital requirements.
(i) Payment Equalization. If the Employer is paying, or in the case of a lump
sum, has paid, Xxxx x Xxxxxxxxx Benefit under Section 3(h), then Phil
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.
(j) Release. As a condition to the Bank's obligation to pay any Severance
Benefit under Section 3(h), Phil agrees that he will execute a general
release of the Employer and its affiliates, substantially in the form
attached hereto as Exhibit A.
Section 4. Confidentiality. Phil 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 Main Street and its
subsidiaries and affiliates ("Confidential Information"). Phil will hold in
confidence and not directly or indirectly disclose any Confidential Information
to third parties unless disclosure becomes reasonably necessary in connection
with Phil'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 Main Street 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 Main Street or any
of its subsidiaries or affiliates that Phil prepares or uses will always be the
sole property of Main Street. Phil will promptly return all originals and copies
of such Confidential Information and other records, files, documents and other
materials to Main Street if his employment with the Bank is terminated for any
reason.
Section 5. Non-Competition Covenant.
(a) Restrictive Covenant. The Employer and Phil have jointly reviewed the
customer lists and operations of the Employer and agree that the Employer's
primary service area for its lending and deposit activities encompasses a
fifty (50) mile radius from the Employer's main office in Decatur,
Illinois. Phil agrees that, for a period of one (1) year after the
termination of this Agreement, he will not, without the Employer's prior
written consent, directly or indirectly Compete with the Employer. For the
purposes of Section 5(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 the Employer or its
affiliates to terminate employment with the Employer or any of its
affiliates 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
substantial lending and deposit taking activities within a fifty (50)
mile radius of the Employer's main office.
(b) Successors. In the event that a successor to Main Street or the Bank
succeeds to or assumes the Employer's rights and obligations under this
Agreement, Section 5(a) will apply only to the primary service area of the
Employer 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 5(a) will not prohibit Phil 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. Phil agrees that a violation of this Section 5 would
result in direct, immediate and irreparable harm to the Employer, and in
such event, agrees that the Employer, in addition to its other rights and
remedies, would be entitled to injunctive relief enforcing the terms and
provisions of this Section 5.
Section 6. Indemnity; Other Protections.
(a) Indemnification. The Employer will indemnify Phil (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 the Employer. 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 Main Street or the Bank, or any resolution of Main Street or
the Bank, or any applicable statute.
(b) Advancement of Expenses. In the event that Phil becomes a party, or is
threatened to be made a party, to any pending, threatened or completed
action, suit or proceeding for which Main Street or the Bank is permitted
or required to indemnify him under this Agreement, any applicable bylaw or
charter provision of Main Street or the Bank, any resolution of Main Street
or the Bank, or any applicable statute, the Employer will, to the fullest
extent permitted by law, advance all Expenses incurred by Phil in
connection with the investigation, defense, settlement, or appeal of any
threatened, pending or completed action, suit or proceeding, subject to
receipt by the Employer of a written undertaking from Phil to reimburse the
Employer for all Expenses actually paid by the Employer to or on behalf of
Phil in the event it shall be ultimately determined that Main Street or the
Bank cannot lawfully indemnify Phil for such Expenses, and to assign to the
Employer all rights of Phil to indemnification under any policy of
directors' and officers' liability insurance to the extent of the amount of
Expenses actually paid by the Employer to or on behalf of Phil.
(c) Litigation. Unless precluded by an actual or potential conflict of
interest, the Employer will have the right to recommend counsel to Phil to
represent him in connection with any claim covered by this Section 6.
Further, Phil'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 the Employer's prior written approval, which approval
shall not be unreasonably withheld by the Employer.
Section 7. General Provisions.
(a) Successors; Assignment. This Agreement will be binding upon and inure to
the benefit of Phil, Main Street, the Bank and their respective personal
representatives, successors and assigns. For the purposes of this
Agreement, any successor or assign of the Employer shall be deemed to be
the "Employer." The Employer will require any successor or assign of the
Employer or any direct or indirect purchaser or acquiror of all or
substantially all of the business, assets or liabilities of the Employer,
whether by transfer, purchase, merger, consolidation, stock acquisition or
otherwise, to assume and agree in writing to perform this Agreement and the
Employer's obligations hereunder in the same manner and to the same extent
as the Employer would have been required to perform them if no such
transaction had occurred.
(b) Entire Agreement; Survival. This Agreement constitutes the entire agreement
between the Phil and the Employer concerning the subject matter hereof, and
supersedes all prior negotiations, undertakings, agreements and
arrangements with respect thereto, whether written or oral, including not
by way of limitation, any prior employment contract. 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. This Agreement may not be
amended or modified except by a writing signed by Phil, Main Street and
Bank, and except for the employment obligations set forth in Section 1, all
rights and obligations of Phil, Main Street and the Bank hereunder shall
survive the termination of this Agreement.
(c) Main Street Rights as Third Party Beneficiary. The Bank and Phil
acknowledge that Main Street is a third party beneficiary of certain
obligations of Phil under this Agreement, including, not by way of
limitations, Phil's obligations to the Bank pursuant to Sections 4 and 5 of
this Agreement.
(d) 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.
(e) 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 Phil within fifty (50) miles from Champaign, Illinois,
in accordance with the rules of the American Arbitration Association.
(f) 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.
(g) 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.
(h) 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 the Bank, addressed to the principal headquarters of
Main Street, attention: President; or, if to Phil, to the address set forth
below Phil'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.
FIRST NATIONAL BANK OF DECATUR
By: /s/ Xxxx Xxxxxxxx /s/ Xxxxxxx Xxxx
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Chairman XXXXXXX XXXX
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Address
MAIN STREET TRUST, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Vice Chairman
FIRSTECH, INC.
By: /s/ Xxxxxx X. Xxxxxx
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President
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 _________________________________, a
wholly-owned subsidiary of 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. 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 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.
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.
By:
------------------------------- --------------------------------
[Employee Name]
Title:
---------------------------
Date: Date:
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