EXHIBIT 10.8
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement (this "Agreement"), is made and entered into
as of the _______ day of _________, 2000, (the "Effective Date") by and
between FIRST NATIONAL BANCORP, Inc., an Illinois corporation (the
"Company"), and ______________ (the "Director").
RECITALS
A. The Director is currently serving on the Board of Directors of
the Company and of its subsidiary, FIRST NATIONAL BANK OF JOLIET, a National
banking association (the "Bank"), and has served in such capacity for the
past several years.
B. The Company desires to continue the services of the Director and
the Director is willing to continue such services.
C. In addition, the Company recognizes that circumstances may arise
in which a change of control of the Company through acquisition or otherwise
may occur thereby causing termination of services without regard to the
competence or past contributions of the Director, which uncertainty may
result in the loss of valuable services of the Director, and the Company and
the Director wish to provide reasonable security to the Director against
changes in the relationship in the event of any such change of control.
NOW, THEREFORE, in consideration of the promises and of the
covenants and agreements hereinafter contained, it is covenanted and agreed
by and between the parties hereto as follows:
AGREEMENTS
1. TERM AND TERMINATION.
(a) BASIC TERM. The term of this Agreement shall be for
one (1) year commencing as of the Effective Date, and shall automatically
extend for one (1) additional year commencing on each anniversary of the
Effective Date. This Agreement may be terminated by either party effective as
of the last day of the then current one (1) year period by written notice to
that effect delivered to the other not less than sixty (60) days prior to the
anniversary of such Effective Date.
(b) TERMINATION UPON CHANGE OF CONTROL.
(i) In the event of a Change of Control (as defined below) of
the Company and the termination of the Director's services
within three (3) years after such Change of Control, the
Director shall be entitled to a lump
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sum payment equal to three (3) times his annual fees then
payable for service as a director of the Company and as a
director of the Bank.
(ii) For purposes of this paragraph, 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 thirty-three
percent (33%) or more of the combined voting power of the
then outstanding voting securities: or
B. The individuals who, as of the date hereof, are members of
the Board cease for any reason to constitute a majority of
the Board, unless the election, or nomination for election
by the stockholders, of any new director was approved by a
vote of a majority of the Board, and such new director
shall, for purposes of this Agreement, be considered as a
member of the Board: or
C. The consumation of: (1) a merger or consolidation 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 voting securities
outstanding immediately before such merger or
consolidation: or (2) a complete liquidation or
dissolution or an agreement or the sale or other
disposition of all or substantially all of the assets of
the entity.
D. Notwithstanding the foregoing, a Change of Control shall
not be deemed to occur solely because thirty-three percent
(33%) or more of the combined voting power of the 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.
(c) REGULATORY SUSPENSION AND TERMINATION.
(i) If the Director is suspended from office and/or temporarily
prohibited from participating in the conduct of the Company's
affairs by a notice served under Section 8(e)(3) (12 U.S.C.
1818(e)(3)) or 8(g) (12 U.S.C. 1818(g)) of the Federal
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Deposit Insurance Act, as amended, the Company's obligations
under this agreement shall be suspended as of the date of
service, unless stayed by appropriate proceedings. If the
charges in the notice are dismissed, the Company may in its
discretion (A) pay the Director all or part of the compensation
withheld while their Agreement obligations were suspended and
(B) reinstate (in whole or in part) any of the obligations which
were suspended.
(ii) If the Director is removed and/or permanently prohibited
from participating in the conduct of the Company's affairs by an
order issued under section 8(e) (12 U.S.C. 1818(e)) or 8(g) (12
U.S.C. 1818(g)) of the Federal Deposit Insurance Act, as
amended, all obligations of the Company under this Agreement
shall terminate as of the effective date of the order, but
vested rights of the contracting parties shall not be affected.
(iii) If the Company is in default as defined in Section 3(x)
(12 U.S.C. 1813(x)(1)) of the Federal Deposit Insurance Act, as
amended, all obligations of the Company under this agreement
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 Company under this agreement shall
be terminated, except to the extent determined that continuation
of this Agreement 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 Company under the
authority contained in Section 13(c) (12 U.S.C. 1823(c)) of the
Federal Deposit Insurance Act, as amended, or when the Company
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.
iv) Any payments made to the Director pursuant to this
Agreement, or otherwise, are subject to and conditioned upon
their compliance with Section 18(k) (12 U.S.C. 1828(k)) of the
Federal Deposit Insurance Act, as amended, and any regulations
promulgated thereunder.
2. WITHHOLDING. The Company shall be entitled to withhold from
amounts payable to the Director hereunder, any federal, state or local
withholding or other taxes or charges which it is from time to time required
to withhold. The Company 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.
3. INTEREST IN ASSETS. Neither the Director nor his estate shall
acquire hereunder any rights in funds or assets of the Company, otherwise
than by and through the actual payment of amounts payable hereunder; nor
shall the Director or his estate have any power to transfer assign,
anticipate, hypothecate or otherwise encumber in advance any of said
payments; not shall any of such payments be subject to seizure for the
payment of
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any debt, judgement, alimony, separate maintenance or be transferable by
operation of law in the event of bankruptcy, insolvency or otherwise of the
Director.
4. GENERAL PROVISIONS.
(a) SUCCESSORS; ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Director, the Company and his and its respective
personal representatives, successors and assigns, and any successor or assign
of the Company shall be deemed the "Company" hereunder. The Company shall
require any successor to all or substantially all of the business and/or
assets of the Company, whether directly or indirectly, by purchase, merger,
consolidation, acquisition of stock, or otherwise, by an agreement in form
and substance satisfactory to the Director, expressly to assume and agree to
perform this agreement in the satisfactory to the Director, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent as the Company 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. Except as
otherwise explicitly provided herein, the Agreement may not be amended or
modified except by written agreement signed by the Director and the Company.
(c) ENFORCEMENT AND GOVERNING LAW. The provisions of this Agreement
shall be regarded as divisible and separate; if any of the 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 law regarding
conflicts of law.
(d) ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three arbitrators sitting in a location selected
by the Director within fifty (50) miles from the location of the Employer, in
accordance with the rules of the American Arbitration Association then in
effect. Judgement may be entered on the arbitrator's award in any court
having jurisdiction.
(e) LEGAL FEES. All reasonable legal fees paid or incurred by the
prevailing party pursuant to any dispute or question of interpretation
relating to this Agreement shall be paid or reimbursed by the losing party if
the prevailing party is successful on the merits pursuant to a legal
judgement, arbitration or settlement.
(f) 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
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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.
(g) 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 Company, addressed to the principal headquarters of
the Company, attention: Chairman; or, if to the Director, to the address set
forth below the Director'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 BANCORP, INC. DIRECTOR
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Xxxxx X. Xxxxxxx, Chairman Director name & signature
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Xxxxxx X. X'Xxxxxxx, Secretary
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