Exhibit (10)(3)
MANAGEMENT CONTINUITY AGREEMENT
This Management Continuity Agreement ("Agreement") is made and entered
into as of this 24th day of November, 1998, by and between Illini Corporation,
an Illinois corporation with an office at 0000 Xxxx Xxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxx 00000 (the "Company"), and Xxxxxxx X. Xxxxxxxx whose address is 0000
Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000 (the "Officer").
W I T N E S S E T H
WHEREAS, the Officer is employed by the Company and the Company's
subsidiary, Illini Bank, an Illinois banking corporation (the "Bank"), as an
officer of the Company and the Bank, respectively, with the title and salary
current at the date of this Agreement as set forth in this Agreement; and
WHEREAS, the Company wishes to attract and retain highly qualified
executives and to achieve this goal it is in the best interests of the Company
and the Bank to secure the continued services of the Officer regardless of a
change in control of the Company; and
WHEREAS, the Company is willing, in order to provide the Officer a
measure of security with respect to his employment with the Company and the Bank
in the event of a change in control of the Company so that the Officer will be
in a position to act with respect to a possible change in control of the Company
in the best interests of the Company and its shareholders, without concern as to
the Officer's own financial security, and in order to induce the Officer to
remain in employment with the Company and the Bank, to agree that employment of
the Officer shall be terminable only for cause for a limited period after a
change in control of the Company.
NOW, THEREFORE, the Company and the Officer agree as follows:
SECTION 1
EMPLOYMENT
1.1 TERM. The Company shall continue to employ the Officer as its Vice
President of Operations and Administration, and shall cause the Bank to continue
to employ the Officer as its Vice President of Operations and the Officer shall
remain in employment with the Company and the Bank until December 31, 2000 (the
"Term") unless terminated prior to the expiration of the Term pursuant to
Section 2.
1.2 COMPENSATION. As compensation for services provided to the Company
and the Bank by the Officer pursuant to this Agreement, the Company shall cause
the Bank to pay the Officer an annual base salary of $68,000, which salary may
be increased from time to time by the Company or the Bank. The Officer shall
also be eligible to actively participate in any other compensation and benefit
plans generally available to executive employees of the Company or the Bank of
like grade and salary including, but not limited to, retirement plans, group
life, disability, accidental death and dismemberment, travel and accident, and
health and dental insurance plans, incentive compensation plans, stock
compensation plans, deferred compensation plans, supplemental retirement plans
and excess benefit plans. Such other compensation and benefit plans are
hereinafter referred to collectively as the "Compensation and Benefit Plans".
1.3 DUTIES. The Officer shall perform such duties and functions as are
assigned to him by the bylaws of the Company and the Bank, as amended or
restated, the Boards of Directors of the Company and the Bank, or by a duly
authorized committee of the Boards of Directors of the Company and the Bank. In
the event of an actual or potential Change in Control (as defined in Section
2.9), the Officer shall perform his duties and functions in a manner that is
consistent with the best interest of the Company and its shareholders, without
regard to the effect that the potential or actual Change in Control may have on
the Officer personally.
1.4 DUTY OF LOYALTY. The Officer shall work full-time for the Company
and the Bank only, provided that:
(a) he may also engage in charitable, civic and other
similar activities;
(b) with the consent of the Board of Directors of the
Company, he may serve as a director of a business
organization not competing with the Company; and
(c) he may make such investments and reinvestment in
business activities as shall not require a
substantial portion of his time.
1.5 DUTY NOT TO DISCLOSE CONFIDENTIAL INFORMATION. The Officer
acknowledges that his relationship with the Company and the Bank is one of high
trust and confidence, and that he has access to Confidential Information (as
hereinafter defined) of the Company and the Bank. The Officer shall not,
directly or indirectly, communicate, deliver, exhibit or provide any
Confidential Information to any person, firm, partnership,
corporation, organization or entity, except as required in the normal course of
the Officer's duties. The duties contained in this paragraph shall be binding
upon the Officer during the time that he is employed by the Company and
following the termination of such employment. Such duties will not apply to any
such Confidential Information which is or becomes in the public domain through
no action on the part of the Officer, is generally disclosed to third parties by
the Company without restriction on such third parties, or is approved for
release by written authorization of the Board of Directors of the Company. The
term "Confidential Information" shall mean any and all confidential,
proprietary, or secret information relating to the Company's or the Bank's
business, services, customers, business operations, or activities and any and
all trade secrets, products, methods of conducting business, information,
skills, knowledge, ideas, know-how or devices used in, developed by, or
pertaining to the Company's or the Bank's business and not generally known, in
whole or in part, in any trade or industry in which the Company or the Bank is
engaged.
SECTION 2
TERMINATION
2.1 TERMINATION OF AGREEMENT. Unless sooner terminated in accordance
with the terms of this Section 2, this Agreement shall terminate at the
expiration of the Term, and all obligations hereunder shall terminate except as
specifically set forth in Section 2.5. The Officer may, with the consent of the
Company, continue in the employ of the Company and the Bank after the expiration
of the Term on such terms and conditions as may be agreed upon by the Company
and the Officer.
2.2 TERMINATION BY THE OFFICER. The Officer may voluntarily terminate
this Agreement by providing thirty days notice to the Company, in which event
the Company shall have no further obligation to the Officer hereunder from the
date of such termination and the Officer shall have no further obligation to the
Company hereunder except the duty to not disclose Confidential Information in
accordance with Section 1.5. In the event the Officer's employment with the
Company and the Bank is terminated due to the Officer's death, the Company shall
have no further obligation to the Officer, his heirs or legatees hereunder from
the date of such termination, except to pay any benefits due under the
Compensation and Benefit Plans. In the event the Officer's employment with the
Company and the Bank is terminated due to the Officer's Permanent Disability,
the Company shall have no further obligation to the Officer, hereunder from the
date of such termination, except, to pay any benefits due under the Compensation
and Benefit Plans.
For purposes of this Agreement, the term "Permanent Disability" means a
physical or mental condition of the Officer which:
(a) has continued uninterrupted for six months;
(b) is expected to continue indefinitely; and
(c) is determined by the Company to render the Officer
incapable of adequately performing his duties under
Section 1.3 of this Agreement.
2.3 TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may terminate
this Agreement without cause prior to the Firm Term (as hereinafter defined), by
providing thirty days notice to the Officer. In such event, the Officer shall
have no further obligation to the Company hereunder, except the duty to not
disclose Confidential Information in accordance with Section 1.5, and the
Company shall have no further obligation to the Officer hereunder from the date
of such termination except (i) to pay to the Officer the salary payments
described in Section 1.2, in the amount in effect on the date of termination,
for a period of six months from the date of termination, (ii) to pay to the
Officer any other benefits due under the Compensation and Benefit Plans for a
period of six months from the date of termination and (iii) to pay to the
Officer reasonable expenses of out placement within the financial institutions
industry during the six month period following the date of termination;
provided, however, out placement expenses shall be paid only upon actually
incurring such expenses and Officer's furnishing of evidence thereof to the
Company and shall not include moving or relocation expenses; and provided,
however, that any benefit to be provided by a Compensation and Benefit Plan may
be provided by the Company through cash of equivalent value or through a
nonqualified arrangement or arrangements if, in the judgment of the Company,
permitting the Officer to participate in such plan after the date of termination
would adversely affect the tax status of such plan.
2.4 TERMINATION BY THE COMPANY WITH CAUSE. Prior to or during the Firm
Term, the Company
may terminate this Agreement for Cause. For purposes of this Agreement, Cause
shall mean;
(a) the Officer's willful and material breach of the
provisions of this Agreement after the Board of
Directors delivers a written demand to cure such
breach, which specifically identifies the manner in
which the Board of Directors believes that the
Officer has not substantially performed his duties,
or
(b) the Officer willfully engages in illegal conduct or
gross misconduct which materially and demonstrably
injures the Company or the Bank.
For purposes of determining whether "Cause" exists, no act or failure to act, on
the Officer's part shall be considered "willful," unless it is done, or omitted
to be done, by the Officer in bad faith or without reasonable belief by the
Officer that his action or omission was in the best interests of the Company.
In the event of the Officer's termination for Cause, the Company will
have no further obligation to the Officer under the Agreement from the date of
such termination.
2.5 TERMINATION FOLLOWING CHANGE IN CONTROL. In the event there is a
Change in Control of the Company, as defined in Section 2.6, during the Term,
and:
(a) within the period commencing three months prior to
the date of a Change in Control and ending six months
following the date of the Change in Control (the
"Firm Term"), the Officer's employment hereunder is
terminated by the Company other than for Cause, as
defined in Section 2.4; or
(b) within the Firm Term, the Officer resigns from his
employment hereunder upon thirty days written notice
given to the Company within thirty days following a
material change in the Officer's title, authorities
or duties, in effect immediately prior to the Change
in Control, a reduction in the compensation or a
reduction in benefits provided pursuant to this
Agreement or the Compensation and Benefit Plans below
the amount of compensation and benefits in effect
immediately prior to the Change in Control, or a
change of the Officer's principal place of employment
without his consent to a city more than 25 miles from
Springfield, Illinois,
then the Officer shall have no further obligation to the Company hereunder,
except the duty not to disclose Confidential Information in accordance with
Section 1.5, and the Company shall have no further obligation to the Officer
hereunder from the date of termination except (i) to pay to the Officer the
salary payments described in Section 1.2, in the amount in effect on the date of
termination, for a period of twelve months from the date of
termination, (ii) to pay to the Officer any other benefits due under the
Compensation and Benefit Plans for a period of twelve months from the date of
termination and (iii) to pay to the Officer reasonable expenses of out placement
within the financial institutions industry during the twelve month period
following the date of termination; provided, however, out placement expenses
shall be paid only upon actually incurring such expenses and Officer's
furnishing of evidence thereof to the Company and shall not include moving or
relocation expenses and provided, however, that any benefit to be provided by a
Compensation and Benefit Plan may be provided by the Company through cash of
equivalent value or through a nonqualified arrangement or arrangements if, in
the judgment of the Company, permitting the Officer to participate in such plan
after the date of termination would adversely affect the tax status of such
plan.
2.6 CHANGE IN CONTROL DEFINED. A Change in Control of the Company shall
have occurred:
(a) on the fifth day preceding the scheduled expiration
date of a tender offer by, or exchange offer by any
corporation, person, other entity or group (other
than the Company or any of its wholly owned
subsidiaries), to acquire Voting Stock of the Company
if:
(i) after giving effect to such offer such
corporation, person, other entity or group
would own 50% or more of the Voting Stock of
the Company;
(ii) there shall have been filed documents with
the Securities and Exchange Commission in
connection therewith (or, if no such filing
is required, public evidence that the offer
has already commenced); and
(iii) such corporation, person, other entity or
group has secured all required regulatory
approvals to own or control 50% or more of
the Voting Stock of the Company;
(b) if the shareholders of the Company approve a
definitive agreement to merge or consolidate the
Company with or into another corporation in a
transaction in which neither the Company nor any of
its wholly owned subsidiaries will be the surviving
corporation, or to sell or otherwise dispose of all
or substantially all of the Company's assets to any
corporation, person, other entity or group (other
that the Company or any of its wholly owned
subsidiaries), and such definitive agreement is
consummated;
(c) if any corporation, person, other entity or group
(other than the Company or any of its wholly owned
subsidiaries) becomes the Beneficial Owner (as that
term is defined in the Securities and Exchange
Commission's Rule 13d-3 under the Securities Exchange
Act of 1934) of stock representing 50% or more of the
Voting Stock of the Company; or
(d) if during any period of two consecutive years
Continuing Directors cease to comprise a majority of
the Company's Board of Directors.
The term "Continuing Director" means:
(a) any member of the Board of Directors of the Company
at the beginning of any period of two consecutive
years; and
(b) any person who subsequently becomes a member of the
Board of Directors of the Company; if
(i) such person's nomination for election or
election to the Board of Directors of the
Company is recommended or approved by
resolution of a majority of the Continuing
Directors; or
(ii) such person is included as a nominee in a
proxy statement of the Company distributed
when a majority of the Board of Directors of
the Company consists of Continuing
Directors.
"Voting Stock" shall mean those shares of the Company entitled
to vote generally in the election of directors.
2.7 TERMINATION OF RELATED OFFICERS. The parties agree that in the
event Officer's employment by the Company is terminated for any reason, Officer
will immediately resign from all other positions or offices held with the
Company, including any directorships with the Company or the Bank.
2.8 OFFICER'S COSTS OF ENFORCEMENT. The Company shall pay all expenses
of the Officer, including but not limited to attorney's fees, incurred in
enforcing payments by the Company pursuant to this Agreement.
Section 3
MISCELLANEOUS
3.1 ASSIGNMENT OF OFFICER'S RIGHTS The Officer may not assign, pledge
or otherwise transfer any of the benefits of this Agreement either before or
after termination of employment, and any purported assignment, pledge or
transfer of any payment to be made by the Company hereunder shall be void and of
no effect. No payment to be made to the Officer hereunder shall be subject to
the claims of creditors of the Officer.
3.2 AGREEMENTS BINDING ON SUCCESSORS. This Agreement shall be binding
and inure to the benefit of the parties hereto and their respective successors,
assigns, personal representatives, heirs, legatees and beneficiaries.
3.3 NOTICES. Any notice required or desired to be given under this
Agreement shall be deemed given
if in writing and sent by first class mail to the Officer or the Company at his
or its address as set forth above, or to such other address of which either the
Officer or the Company shall notify the other in writing.
3.4 WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either the Officer or the Company.
3.5 ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties and supersedes the Personal Service Contract between the Officer,
the Company and the Bank, which was effective October 30, 1996. It may be
modified or amended only by an agreement in writing signed by the party against
whom enforcement of any change or amendment is sought.
3.6 SEVERABILITY OF PROVISIONS. If for any reason any paragraph, term
or provision of this Agreement is held to be invalid or unenforceable, all other
valid provisions herein shall remain in full force and effect and all
paragraphs, terms and provisions of this Agreement shall be deemed to be
severable in nature.
3.7 GOVERNING LAW. This Agreement is made in, and shall be governed by,
the laws of the State of Illinois.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first set forth above.
/s/ Xxxxxxx X. Xxxxxxxx
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Officer
ILLINI CORPORATION
By: /s/ Xxxxxx X. Black
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Its: CHAIRMAN
