EXHIBIT 10.12
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EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement"), is made and entered into as
of January 31, 2007 (the "Effective Date") by and between Centrue Financial
Corporation, Inc., a Delaware corporation (the "Employer"), and Xxxxxx X.
Xxxxxxxx (the "Executive").
RECITALS
A. The Executive serves as Head of Commercial Banking of Employer, and
its wholly-owned subsidiary, Centrue Bank (the "Bank").
B. The Employer and the Executive have made commitments to each other
on a variety of important issues concerning the Executive's employment,
including the performance that will be expected of the Executive, the
compensation the Executive will be paid, how long and under what circumstances
the Executive will remain employed and the financial details relating to any
decision that either the Employer or the Executive might ever make to terminate
this Agreement.
C. The Employer and the Executive desire to enter into this Agreement
as of the Effective Date and as of such date this Agreement shall supersede all
terms of any other employment or severance agreement, with Employer, providing
for benefits similar in nature to those contained herein (a "Prior Agreement").
D. The Employer recognizes that circumstances may arise in which a
future change of control of the Employer through acquisition or otherwise may
occur thereby causing uncertainty of employment without regard to the competence
or past contributions of the Executive, which uncertainty may result in the loss
of valuable services of the Executive and the Employer and the Employer wishes
to provide reasonable security to the Executive against changes in the
employment relationship in the event of any such change of control.
NOW, THEREFORE, in consideration of the premises and of the covenants
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Employer and the Executive
agree as follows:
AGREEMENT
Section 1. Term. The term of this Agreement and the Executive's
employment hereunder shall be for a term of one year commencing on the Effective
Date (the "Term"), and may, in the discretion of the Employer's board of
directors, be extended for one (1) or more additional years by resolution of the
board of directors prior to the first anniversary of the Effective Date and each
anniversary thereafter.
Section 2. Position and Duties. The Employer hereby employs the Executive
as set forth above or in such other senior executive capacity or capacities as
shall be mutually agreed between the Employer and the Executive. During the
period of the Executive's employment hereunder, the Executive shall devote his
best efforts and full business time, energy, skills and
attention to the business and affairs of the Employer, the Bank, and the other
direct and indirect subsidiaries of the Employer (together with the Bank, the
"Subsidiaries" or a "Subsidiary"). The Executive's duties and authority shall
consist of and include all duties and authority customarily performed and held
by persons holding equivalent positions with business organizations similar in
nature and size to the Employer, as such duties and authority are reasonably
defined, modified and delegated from time to time by the Board of Directors of
the Employer to which the Executive shall report during the term of this
Agreement (the "Board"). The Executive shall have the powers necessary to
perform the duties assigned to him and shall be provided such supporting
services, staff, secretarial and other assistance, office space and
accoutrements as shall be reasonably necessary and appropriate in the light of
such assigned duties. At least annually, Employer shall evaluate Executive's
performance in accordance with and as described in the Employer's standard
employment policies.
Section 3. Compensation. As compensation for the services to be provided
by the Executive hereunder, the Executive shall receive the following
compensation, expense reimbursement and other benefits:
(a) Base Compensation. The Executive shall receive an aggregate
annual minimum Base Salary of $160,000 payable in installments in accordance
with the regular payroll schedule of the Bank ("Base Salary"). Such Base Salary
shall be subject to review annually commencing in 2007 and shall be maintained
or increased during the term of this Agreement in accordance with the Employer's
established management compensation policies and plans.
(b) Performance Bonus. The Executive shall be eligible to receive
an annual performance bonus, payable within sixty (60) days after the end of the
fiscal year of the Employer, in an amount not to exceed twenty-five percent
(25%) of the Executive's Base Salary for the applicable year. The amount, if
any, shall be determined by the Board, or the appropriate committee thereof, and
shall generally be based on a combination of organization-wide and individual
performance criteria.
(c) Reimbursement of Expenses. The Executive shall be reimbursed,
upon submission of appropriate vouchers and supporting documentation, for all
travel, entertainment and other out-of-pocket expenses reasonably and
necessarily incurred by the Executive in the performance of his duties hereunder
and shall be entitled to attend seminars, conferences and meetings relating to
the business of the Employer consistent with the Employer's or the Bank's
established policies in that regard.
(d) Other Benefits. The Executive shall be entitled to all
benefits specifically established for him and, when and to the extent he is
eligible therefor, to participate in all plans and benefits generally accorded
to senior executives of the Employer and the Bank, including, but not limited
to, pension, profit-sharing, supplemental retirement, incentive compensation,
bonus, disability income, group life medical and hospitalization insurance,
director and officer liability insurance and similar or comparable plans, and
also to perquisites extended to similarly situated senior executives, provided,
however, that such plans, benefits and perquisites shall be no less than those
made available to all other employees of the Employer and the Bank.
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(e) Vacations. The Executive shall be entitled to annual paid time
off ("PTO") which shall accrue each calendar year and which shall be taken at a
time or times mutually agreeable to the Employer and the Executive; provided,
however, that the Executive shall be entitled to at least twenty five (25) PTO
days annually.
(f) Withholding. The Employer shall be entitled to withhold from
amounts payable to the Executive hereunder, any federal, state or local
withholding or other taxes which it is from time to time required to withhold.
The Employer shall be entitled to rely upon the opinion of its legal counsel
with regard to any question concerning the amount or requirement of any such
withholding.
(g) Stock Awards. Effective as of the date approved by the
Committee for the Employer's Stock Option Plan, Employer shall grant to the
Executive an option to purchase five thousand (5,000) shares of Employer's
common stock (the "Option"). One fifth (1/5) of the Option shall vest upon the
first anniversary of the Effective Date and one fifth (1/5) shall vest on each
anniversary thereafter, until fully vested on the fifth (5th) anniversary. The
Option award shall provide that it shall fully vest upon a subsequent Change in
Control (as defined in the Employer's stock option plan), death, disability,
termination of the Executive without Cause or by the Executive due to a
Constructive Discharge (with the terms Cause and Constructive Discharge as
defined herein). The Option will expire, to the extent not exercised, as of the
seventh (7th) anniversary of the Effective Date. The exercise price of the
Option shall be based on the fair market value of the Employer's common stock on
the date of grant.
Section 4. Confidentiality and Loyalty. The Executive acknowledges that
during the course of his employment he may produce and have access to material,
records, data, trade secrets and information not generally available to the
public regarding the Employer and its Subsidiaries (collectively, "Confidential
Information"). Accordingly, during the Term and during the Restricted Period
(defined below), the Executive shall hold in confidence and not directly or
indirectly disclose, use, copy or make lists of any such Confidential
Information, except to the extent that such information is or thereafter becomes
lawfully available from public sources, or such disclosure is authorized in
writing by the Employer, required by a law or any competent administrative
agency or judicial authority, or otherwise as reasonably necessary or
appropriate in connection with the performance by the Executive of his duties
hereunder. All records, files, documents and other materials or copies thereof
relating to the business of the Employer and its Subsidiaries which the
Executive shall prepare or use, shall be and remain the sole property of the
Employer, shall not be removed from the premises of the Employer or its
Subsidiaries, as the case may be, without the written consent of the Employer's
Chairman of the Board, except as reasonably necessary or appropriate in
connection with the performance by the Executive of his duties hereunder, and
shall be promptly returned to the Employer upon termination of the Executive's
employment hereunder. The Executive agrees to abide by the reasonable policies
of the Employer, as in effect from time to time, respecting avoidance of
interests conflicting with those of the Employer and its Subsidiaries.
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Section 5. Termination.
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(a) Termination Without Cause. Either the Employer or the
Executive may terminate this Agreement and the Executive's employment hereunder
for any reason by delivering written notice of termination to the other party no
less than thirty (30) days before the effective date of termination, which date
will be specified in the notice of termination.
(b) Voluntary Termination by the Executive. If the Executive
voluntarily terminates his employment under this Agreement other than pursuant
to Section 5(d) (Constructive Discharge) or Section 5(h) (Termination Upon
Change of Control), then the Employer shall only be required to pay the
Executive such Base Salary as shall have accrued through the effective date of
such termination, the amount of any expense reimbursements for expenses incurred
prior to the effective date of such termination, provided that the Executive
shall have submitted all reimbursement requests within ten (10) business days of
the effective date of such termination, and any other amounts to which the
Executive is entitled under applicable law. None of the Employer or any of its
Subsidiaries shall have any further obligations to the Executive.
(c) Termination by Employer Without Cause.
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(i) In the event of the termination of this Agreement by the
Employer prior to the last day of the Term for any reason other than a
termination in accordance with the provisions of Section 5(e) (Termination for
Cause), then notwithstanding any mitigation of damages by the Executive, the
Employer shall pay the Executive a sum equal to the Executive's Annual
Compensation. In addition, the Employer shall reimburse the Executive for
continued coverage (COBRA continuation coverage) for the Executive and the
Executive's dependents (if applicable) under the health insurance programs
maintained by the Employer during the period of the Executive's COBRA
eligibility; provided, however, that the continued payment of these amounts by
the Employer shall not offset or diminish any compensation or benefits accrued
as of the date of termination. The term "Annual Compensation" shall mean the
Executive's then current Base Salary and the Executive's performance bonus for
the most recently completed annual performance period (including prior payments
made under the incentive plans of Employer).
(ii) Payment to the Executive will be made on a monthly basis
over the the twelve (12) month period immediately following the Executive's
termination of employment if the Executive is to be paid Executive's Annual
Compensation. Payment of the amounts due under Section 5(c)(i) shall not be
reduced in the event the Executive obtains other employment following the
termination of employment by the Employer
(iii) If the Employer is not in compliance with its minimum
capital requirements or if the payments required under subsection (i) above
would cause the Employer's capital to be reduced below its minimum capital
requirements, such payments shall be deferred until such time as the Employer is
in capital compliance.
(iv) In addition to the amounts payable to Executive under
this Section 5(c), Employer shall pay the Executive such Base Salary as shall
have accrued through the
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effective date of such termination, the amount of any expense reimbursements for
expenses incurred prior to the effective date of such termination, provided that
the Executive shall have submitted all reimbursement requests within ten (10)
business days of the effective date of such termination, and any other amounts
to which the Executive is entitled under applicable law. Apart from the
obligations of this Section 5(c), none of the Employer or any of its
Subsidiaries shall have any further obligations to the Executive.
(d) Constructive Discharge. If at any time during the Term of this
Agreement, except in instances where Employer has valid grounds to terminate the
Executive's employment pursuant to Section 5(e) (Termination for Cause), the
Executive is Constructively Discharged (as hereinafter defined), then the
Executive shall have the right, by written notice given to the Employer not
later than ninety (90) days after such Constructive Discharge, to terminate his
services hereunder, effective as of thirty (30) days after the date of such
notice, and the Executive shall have no rights or obligations under this
Agreement other than as provided in this Section 5(d), Section 4
(Confidentiality and Loyalty) and Section 6 (Non-Competition Covenant). In such
event, the Executive shall be entitled to the payments and benefits provided to
the Executive as if such termination of his employment were pursuant to Section
5(c) (Termination by Employer without Cause).
For purposes of this Agreement, the Executive shall be "Constructively
Discharged" upon the occurrence, without the Executive's express written
consent, of any of the following events, provided that the Executive gives at
least thirty (30) days prior written notice of Executive's termination:
(i) a reduction in the Executive's then current Base Salary;
(ii) any change in the Executive's duties and
responsibilities that is inconsistent in any adverse respect with the
Executive's position(s), duties or responsibilities, or an adverse change in the
Executive's place in the organization chart or in the seniority of the
individual (or Board, where applicable) to whom the Executive shall report;
(iii) a material and adverse change in the Executive's titles
or offices (including, if applicable, membership on a board of directors);
(iv) a material reduction in the Executive's annual target
bonus opportunity (if any) (for this purpose, a reduction for any year of over
twenty percent (20%) of the Executive's annual target bonus opportunity (if any)
measured by the preceding year shall be considered "material");
(v) requiring the Executive to be based more than fifty (50)
miles from the location of the Executive's place of employment as of the
Effective Date, except for normal business travel in connection with the
Executive's duties; or
(vi) a material breach of this Agreement by the Employer.
An isolated, insubstantial and inadvertent action taken in good faith and
that is remedied within ten (10) days after receipt of notice thereof given by
the Executive shall not constitute a
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Constructive Discharge. The Executive's right to terminate employment due to a
Constructive Discharge shall not be affected by incapacities due to mental or
physical illness and the Executive's continued employment or lack of notice
hereunder shall not constitute consent to, or a waiver of rights with respect
to, any event or condition constituting a Constructive Discharge.
(e) Termination for Cause. This Agreement may be terminated for
Cause as hereinafter defined. "Cause" shall mean:
(i) the Executive's death;
(ii) the Executive's Permanent Disability, which shall mean
the Executive's inability, as a result of physical or mental incapacity,
substantially to perform his duties hereunder for a period of six (6)
consecutive months, with the determination of the Executive's Permanent
Disability to be determined by a physician chosen by two other physicians, each
of which is selected by the Employer and the Executive, respectively;
(iii) the willful and continued failure by the Executive to
perform substantially the Executive's duties (other than any such failure
resulting from the Executive's incapacity due to physical or mental illness or
any such failure subsequent to the delivery to the Executive of a notice of
intent to terminate the Executive's employment without Cause or subsequent to
the Executive's delivery of a notice of the Executive's intent to terminate
employment for Constructive Discharge), and such willful and continued failure
continues after a demand for substantial performance is delivered to the
Executive that specifically identifies the manner in which the Executive has not
substantially performed the Executive's duties;
(iv) the Executive is removed or suspended from banking
pursuant to Section 8(e) of the Federal Deposit Insurance Act, as amended
("FDIA"), or any other applicable state or federal law; or
(v) the willful engaging by the Executive in illegal conduct
or gross misconduct which is materially and demonstrably injurious to the
business or reputation of the Employer.
(vi) For purposes of determining whether "Cause" exists, no
act or failure to act on the Executive's part shall be considered "willful"
unless done, or omitted to be done, by the Executive in bad faith and without
reasonable belief that the action or omission was in, or not opposed to, the
best interests of the Employer. Any act, or failure to act, based upon authority
given pursuant to a resolution duly adopted by the Board, based upon the advice
of counsel for the Employer or upon the instructions to the Executive by a more
senior officer shall be conclusively presumed to be done, or omitted to be done,
by the Executive in good faith and in the best interests of the Employer. The
Employer must notify the Executive of any event constituting Cause within ninety
(90) days following its knowledge of its existence or such event shall not
constitute Cause under this Agreement.
(vii) Upon a termination of the Executive's employment with
the Employer for Cause, the Executive shall be entitled to receive from the
Employer only such Base Salary as shall have accrued through the effective date
of such termination, the amount of any
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expense reimbursements for expenses incurred prior to the effective date of such
termination, provided that the Executive shall have submitted all reimbursement
requests within ten (10) business days of the effective date of such
termination, and any other amounts to which the Executive is entitled under
applicable law. None of the Employer or any of its Subsidiaries shall have any
further obligations to the Executive.
(f) Payments Upon Death. In the event payments are due and owing
under this Agreement at the death of the Executive, payment shall be made to
such beneficiary as the Executive may designate in writing, or failing such
designation, to the executor of his estate, in full settlement and satisfaction
of all claims and demands on behalf of the Executive.
(g) Payments Prior to Permanent Disability. The Executive shall be
entitled to the compensation and benefits provided for under this Agreement for
any period during the term of this Agreement and prior to the establishment of
the Executive's Disability during which the Executive is unable to work due to a
physical or mental infirmity. Notwithstanding anything contained in this
Agreement to the contrary, until the date specified in a notice of termination
relating to the Executive's Disability, the Executive shall be entitled to
return to his positions with the Employer as set forth in this Agreement in
which event no Disability of the Executive will be deemed to have occurred.
(h) Termination Upon Change of Control.
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(i) In the event of a Change of Control (as defined below)
of the Employer and the termination of the Executive's employment under either A
or B below, subject to Section 5(h)(iii) below, the Executive shall be entitled
to receive in lieu of any other payments provided for in this Agreement a lump
sum payment equal to the amount determined pursuant to Section 5(c) (Termination
by Employer without Cause), and the continuation of benefits as provided in
Section 5(c). Either of the following shall constitute termination of the
Executive's employment within the meaning of this Section 5(h):
(A) The Executive voluntarily terminates his
employment within the twelve (12) month period immediately following the Change
of Control due to Constructive Discharge.
(B) This Agreement and the Executive's employment is
terminated by the Employer or its successor within the twelve (12) month period
immediately following the Change of Control, for reasons other than Cause.
(ii) For purposes of this Section, the term "Change of
Control" shall mean the following:
(A) The consummation of the acquisition by 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")) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the 0000 Xxx) of fifty percent (50%) or
more of the combined voting power of the then outstanding voting securities of
the Employer; or
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(B) Consummation of: (1) a merger or consolidation to
which the Employer is a party if the stockholders immediately before such merger
or consolidation do not, as a result of such merger or consolidation, own,
directly or indirectly, more than sixty- seven percent (67%) 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 Employer's voting securities
outstanding 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 the Employer or the Bank.
Notwithstanding the foregoing, a Change of Control shall not be deemed to occur
solely because fifty percent (50%) or more of the combined voting power of the
Employer's then outstanding securities is acquired by: (1) a trustee or other
fiduciary holding securities under one or more employee benefit plans maintained
for employees of the entity; or (2) 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.
(iii) It is the intention of the Employer and the Executive
that no portion of any payment under this Agreement, or payments to or for the
benefit of the Executive 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 and payments to or for the benefit of the Executive in the
nature of compensation, receipt of which is contingent on the Change of Control
of the Employer, 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 the Employer may pay without loss of deduction
under Section 280G(a) of the Code. Present value for purposes of this Agreement
shall be calculated in accordance with Section 280G(d)(4) of the Code. Within
ninety (90) days following the earlier of (A) the giving of the notice of
termination or (B) the giving of notice by the Employer to the Executive of its
belief that there is a payment or benefit due the Executive which will result in
an excess parachute payment as defined in Section 280G of the Code, the
Executive and the Employer, at the Employer's expense, shall obtain the opinion
of such legal counsel and certified public accountants as the Executive may
choose (notwithstanding the fact that such persons have acted or may also be
acting as the legal counsel or certified public accountants for the Employer),
which opinions need not be unqualified, which sets forth (I) the amount of the
Base Period Income of the Executive, (II) the present value of Total Payments
and (III) the amount and present value of any excess parachute payments. In the
event that such opinions determine that there would be an excess parachute
payment, the payment hereunder or any other payment determined by such counsel
to be includable in Total Payments shall be modified, reduced or eliminated as
specified by the Executive in writing delivered to the Employer within sixty
(60) days of the Executive's receipt of such opinions or, if the Executive fails
to so notify the Employer, then as the Employer shall reasonably determine, so
that under the bases of calculation set forth in such opinions there will be no
excess parachute payment. The provisions of this subparagraph, including the
calculations, notices and opinions provided for herein shall be based upon the
conclusive presumption that (y) the compensation and benefits provided for in
Section 3 hereof and (z) any other compensation earned by the Executive pursuant
to the
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Employer's compensation programs which would have been paid in any event, are
reasonable compensation for services rendered, even though the timing of such
payment is triggered by the Change of Control; provided, however, that in the
event such legal counsel so requests in connection with the opinion required by
this subparagraph, the Executive and the Employer shall obtain, at the
Employer's expense, and the legal counsel may rely on in providing the opinion,
the advice of a firm of recognized executive compensation consultants as to the
reasonableness of any item of compensation to be received by the Executive. In
the event that the provisions of Sections 280G and 4999 of the Code are repealed
without succession, this subparagraph shall be of no further force or effect.
(i) Regulatory Suspension and Termination.
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(i) If the Executive is suspended from office and/or
temporarily prohibited from participating in the conduct of the Employer's
affairs by a notice served under Section 8(e)(3) (12 U.S.C. ss. 1818(e)(3)) or
8(g) (12 U.S.C. ss. 1818(g)) of the FDIA, the Employer's obligations under this
contract shall be suspended as of the date of service, unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, the
Employer may in its discretion (A) pay the Executive all or part of the
compensation withheld while their contract obligations were suspended and (B)
reinstate (in whole or in part) any of the obligations which were suspended.
(ii) If the Executive is removed and/or permanently
prohibited from participating in the conduct of the Employer's affairs by an
order issued under Section 8(e) (12 U.S.C. ss. 1818(e)) or 8(g) (12 U.S.C. ss.
1818(g)) of the FDIA, all obligations of the Employer under this contract shall
terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
(iii) If the Employer is in default as defined in Section 3(x)
(12 U.S.C. ss. 1813(x)(1)) of the FDIA, all obligations of the Employer under
this contract shall terminate as of the date of default, but this paragraph
shall not affect any vested rights of the contracting parties.
(iv) All obligations of the Employer under this contract
shall be terminated, except to the extent determined that continuation of the
contract is necessary for the continued operation of the institution by the
Federal Deposit Insurance Corporation (the "FDIC"), at the time the FDIC enters
into an agreement to provide assistance to or on behalf of the Employer under
the authority contained in Section 13(c) (12 U.S.C. ss. 1823(c)) of the FDIA, or
when the Employer is determined by the FDIC to be in an unsafe or unsound
condition. Any rights of the parties that have already vested, however, shall
not be affected by such action.
Section 6. Non-Competition Covenant.
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(a) Restrictive Covenant. The Employer and the Executive have
jointly reviewed the customer lists and operations of the Employer and its
Subsidiaries and have agreed that the primary service area of the Employer's and
its Subsidiaries' loan and deposit origination functions in which the Employer
and its Subsidiaries have and will actively participate extends to an area
within thirty-five (35) miles of any office or branch of the Employer and its
Subsidiaries
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for which the Executive had provided more than de minimis services within the
twenty-four (24) month period immediately preceding the date of termination (the
"Restrictive Area"). Therefore, as an essential ingredient of and in
consideration of this Agreement and the payment of the amounts described in
Section 3, the Executive hereby agrees that, except with the express prior
written consent of the Employer, for a period of twelve (12) months after the
termination of the Executive's employment with the Employer, whether such
termination of employment occurs during the term of this Agreement or following
the term or termination of this Agreement (the "Restrictive Period"):
(i) The Executive will not, directly or indirectly, engage
or invest in, own, manage, operate, finance, control, or participate in the
ownership, management, operation or control of, be employed by, associated with,
or in any manner connected with, lend the Executive's name or any similar name
to, lend the Executive's credit to, or render services or advice to, any person,
firm, partnership, corporation or trust which owns or operates, a bank, savings
and loan association, credit union or similar financial institution (a
"Financial Institution") within the Restrictive Area; provided however, that the
ownership by the Executive of shares of the capital stock which are listed on a
securities exchange or quoted on the National Association of Securities Dealers
Automated Quotation System which do not represent more than five percent (5%) of
the outstanding capital stock of any Financial Institution, shall not violate
any terms of this Agreement.
(ii) The Executive will not, directly or indirectly, either
for himself, or any other Financial Institution: (A) induce or attempt to induce
any employee of the Employer or its Subsidiaries to leave the employ of the
Employer or its Subsidiaries; (B) in any way interfere with the relationship
between Employer or its Subsidiaries and any employee of Employer or its
Subsidiaries; (C) employ, or otherwise engage as an employee, independent
contractor or otherwise, any employee of Employer or its Subsidiaries; or (D)
induce or attempt to induce any customer, supplier, licensee, or business
relation of Employer or its Subsidiaries to cease doing business with the
Employer or its Subsidiaries or in any way interfere with the relationship
between any customer, supplier, licensee or business relation of Employer or its
Subsidiaries.
(iii) The Executive will not, directly or indirectly, either
for himself, or any other Financial Institution, solicit the business of any
person or entity known to the Executive to be a customer of the Employer or its
Subsidiaries, whether or not such Executive had personal contact with such
person or entity, with respect to products or activities which compete in whole
or in part with the products or activities of the Employer or its Subsidiaries.
(iv) The Executive will not, directly or indirectly, serve as
the agent, broker or representative of, or otherwise assist, any person or
entity in obtaining services or products from any Financial Institution within
the Restrictive Area.
(v) The Executive expressly agrees that the covenants
contained in this Section 6(a) are reasonable with respect to their duration,
geographical area, and scope.
(b) Violation of Restrictive Covenant. If the Executive violates
the restrictions contained in Section 6(a) and the Employer brings legal action
for injunctive or other
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relief, the Employer shall not, as a result of the time involved in obtaining
such relief, be deprived of the benefit of the full period of the Restrictive
Period. Accordingly, the Restrictive Period shall be deemed to have the duration
specified in Section 6(a) computed from the date the relief is granted but
reduced by the time between the period when the Restrictive Period began to run
and the date of the first violation of the restrictions contained in Section
6(a) by the Executive. In the event that a successor assumes and agrees to
perform this Agreement, the restrictions contained in Section 6(a) shall
continue to apply only to the primary service area of the Employer as it existed
immediately before such assumption and shall not apply to any of the successor's
other offices.
(c) Remedies for Breach of Restrictive Covenant. The Executive
acknowledges that the restrictions contained in Section 4 and Section 6(a) of
this Agreement are reasonable and necessary for the protection of the legitimate
business interests of the Employer, that any violation of these restrictions
would cause substantial injury to the Employer and such interests, that the
Employer would not have entered into this Agreement with the Executive without
receiving the additional consideration offered by the Executive in binding
himself to these restrictions and that such restrictions were a material
inducement to the Employer to enter into this Agreement. In the event of any
violation or threatened violation of these restrictions, the Employer, in
addition to and not in limitation of, any other rights, remedies or damages
available to the Employer under this Agreement or otherwise at law or in equity,
shall be entitled to preliminary and permanent injunctive relief to prevent or
restrain any such violation by the Executive and any and all persons directly or
indirectly acting for or with him, as the case may be. In the event of a
violation of the restrictions in Section 4 and Section 6(a) of this Agreement,
the Employer shall have the right to cease making any payments, or providing
benefits, otherwise required hereunder.
Section 7. Intercorporate Transfers. If the Executive shall be
voluntarily transferred to a Subsidiary of the Employer, such transfer shall not
be deemed to terminate or modify this Agreement and the employing corporation to
which the Executive shall have been transferred shall, for all purposes of this
Agreement, be construed as standing in the same place and stead as the Employer
as of the date of such transfer, provided however, that this Section 7 shall not
modify Employer's obligations under Section 2, Section 3 and Section 5 hereof.
Section 8. Interest in Assets. Neither the Executive nor his estate shall
acquire hereunder any rights in funds or assets of the Employer, otherwise than
by and through the actual payment of amounts payable hereunder; nor shall the
Executive or his estate have any power to transfer, assign, anticipate,
hypothecate or otherwise encumber in advance any of said payments; nor shall any
of such payments be subject to seizure for the payment of any debt, judgment,
alimony, separate maintenance or be transferable by operation of law in the
event of bankruptcy, insolvency or otherwise of the Executive.
Section 9. Indemnification. The Employer shall provide the Executive
(including his heirs, personal representatives, executors and administrators)
for the term of this Agreement with coverage under a standard directors' and
officers' liability insurance policy at its expense.
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Section 10. General Provisions.
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(a) Successors; Assignment. This Agreement shall be binding upon
and inure to the benefit of the Executive, his heirs, legatees and personal
representatives, the Employer and its successors and assigns, and any successor
or assign of the Employer shall be deemed the "Employer" hereunder. The Employer
shall require any successor to all or substantially all of the business and/or
assets of the Employer, whether directly or indirectly, by purchase, merger,
consolidation, acquisition of stock, or otherwise, by an agreement in form and
substance satisfactory to the Executive, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent as the Employer
would be required to perform if no such succession had taken place.
(b) Entire Agreement; Modifications. This Agreement constitutes
the entire agreement between the parties respecting the subject matter hereof,
and supersedes all prior negotiations, undertakings, agreements and arrangements
with respect thereto, whether written or oral, and without limiting the
foregoing (specifically including, but not limited to, any Prior Agreement), the
Executive hereby agrees and acknowledges that this Agreement supersedes, and he
shall have no rights to payments or otherwise under, any Prior Agreement. Except
as otherwise explicitly provided herein, this Agreement may not be amended or
modified except by written agreement signed by the Executive and the Employer;
provided, however, that the Employer may unilaterally modify the Agreement to
comply with applicable law, including, but not limited to, Code Section 409A,
while maintaining the spirit and intent of the Agreement.
(c) Survival. The provisions of Section 4 and Section 6 shall
survive the expiration or termination of this Agreement, in each case for the
period set forth in such section.
(d) Enforcement and Governing Law. The provisions of this
Agreement shall be regarded as divisible and separate; if any of said provisions
should be declared invalid or unenforceable by a court of competent
jurisdiction, the validity and enforceability of the remaining provisions shall
not be affected thereby. This Agreement shall 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 conflict of law provisions of
any jurisdiction.
(e) Arbitration. Any dispute or controversy arising under or in
connection with this Agreement (with the exception of the remedies set forth in
Section 6(c)) shall be settled exclusively by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by the Executive
within twenty-five (25) miles from the location of the main office of the
Employer, in accordance with the employment rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's award in
any court having jurisdiction; provided, however, that the Executive shall be
entitled to seek specific performance of his right to be paid through the date
of termination during the pendency of any dispute or controversy arising under
or in connection with this Agreement.
(f) Legal Fees. All reasonable legal fees paid or incurred by
either party pursuant to any dispute or question of interpretation relating to
this Agreement shall be paid or
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reimbursed by the opposing party if the party is successful on the merits
pursuant to a legal judgment, arbitration or settlement.
(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 Employer, addressed to the principal headquarters of the
Employer, attention: Chairman of the Board; or, if to the Executive, to the
address set forth below the Executive's signature on this Agreement, or to such
other address as the party to be notified shall have given to the other.
(i) Internal Revenue Code Section 409A. Notwithstanding anything
contained herein to the contrary, if at the time of a termination of employment,
(i) Employee is a "specified employee" as defined in Code Section 409A, and the
regulations and guidance thereunder in effect at the time of such termination
("409A"), and, (ii) any of the payments or benefits provided hereunder may
constitute "deferred compensation" under 409A, then, and only to the extent
required by such provisions, the date of payment of such payments or benefits
otherwise provided shall be delayed for a period of up to six (6) months
following the date of termination. [Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CENTRUE FINANCIAL CORPORATION XXXXXX X. XXXXXXXX
By: /s/ XXXXXX X. XXXXXX /s/ XXXXXX X. XXXXXXXX
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Its: President & CEO
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Address:
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