EXHIBIT 10.10
RESIGNATIONS, WAIVER AND CONSULTING AGREEMENT
This Resignations, Waiver and Consulting Agreement (this "Agreement")
is made by and between Kankakee Bancorp, Inc., a Delaware corporation (the
"Company"), and Xxxxx X. Xxxxxxx ("Xx. Xxxxxxx").
RECITALS
WHEREAS, Xx. Xxxxxxx has resigned from his positions as President and
CEO of the Company and KFS Bank, F.S.B. (the "Bank");
WHEREAS, the Company desires to have the benefit of Xx. Xxxxxxx'x
experience and expertise during a period of transition and Xx. Xxxxxxx has
agreed to provide consulting services to the Company for a limited period of
time;
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements hereinafter contained, it is covenanted and agreed by and between
the parties as follows:
AGREEMENTS
1. Resignations. Xx. Xxxxxxx resigned, effective January 14,
2003, from his positions as President and CEO of the Company and the Bank. The
Company and the Bank have accepted his resignations. Xx. Xxxxxxx'x resignations
were pursuant to Section 3(g) of that certain Employment Agreement by and
between the Company and Xx. Xxxxxxx dated April 1, 2001 (the "Employment
Agreement"). Xx. Xxxxxxx agrees to resign from the Board of Directors of the
Company and the Bank effective upon election of his successor to the Board of
Directors of the Company and the Bank. The Company and the Bank have also
accepted these resignations from the Boards of Directors. Consistent with his
obligations to the Company under the Employment Agreement, Xx. Xxxxxxx
acknowledges that the terms of Section 4 (Confidentiality and Loyalty) and
Section 5 (Non-Competition Covenant), in particular, survive his resignations
under Section 3(g) of the Employment Agreement. In addition, Xx. Xxxxxxx
acknowledges that his resignation terminates that certain Change of Control
Agreement by and between the Company and Xx. Xxxxxxx dated October 15, 2001.
2. Waiver of All Claims. Xx. Xxxxxxx agrees that his resignation
precludes him from asserting any claims of unlawful discrimination, and Xx.
Xxxxxxx, on his own behalf and that of his heirs, executors, attorneys,
administrators, successors, and assigns, fully releases and discharges the
Company, its predecessors, successors, subsidiaries, affiliates, and assigns,
and its and their directors, officers, trustees, general and limited partners,
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 Company, 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 Company's policies and procedures, whether formal or informal, United States
or State of
Illinois Constitutions; Title VII of 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, as amended; the Americans With Disabilities Act, as amended;
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 Xx. Xxxxxxx'x employment with
the Company or other association with the Company, including, but not limited
to, Xx. Xxxxxxx'x resignation from employment with the Company, any right of
payment for disability or any other statutory or contractual right of payment of
any nature 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.
3. Representations. Xx. Xxxxxxx acknowledges that he has been
advised to and 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 2. Xx. Xxxxxxx acknowledges that he has been offered
at least twenty-one (21) days to consider this Agreement. After having been so
advised, and without coercion of any kind, Xx. Xxxxxxx freely, knowingly and
voluntarily enters into this Agreement. Xx. Xxxxxxx further acknowledges that he
may revoke this Agreement within seven (7) days after execution and further
understands that this Agreement shall not become effective or enforceable until
seven (7) days after execution (the "Effective Date"). Any revocation must be in
writing and directed to Kankakee Bancorp, Inc., 000 X. Xxxxxxxx Xxx., Xxxxxxxx,
XX 00000, Attention: Chairman of the Board. If sent by mail, any revocation must
be postmarked within the 7-day period and sent by certified mail, return receipt
requested.
4. Consulting Agreement.
(a) Consulting Services. During the months of May, June
and July, 2003, Xx. Xxxxxxx shall provide such oral consulting services to the
Company with respect to information he has concerning the Company and shall
assist with those matters related to the retention and transition of a new Chief
Executive Officer of the Company.
(b) Independent Contractor. Xx. Xxxxxxx and Company agree
that Xx. Xxxxxxx shall act as an independent contractor in the performance of
his duties under this Section 4. Accordingly, Xx. Xxxxxxx shall be responsible
for payment of all taxes, including federal, state and local taxes arising out
of Xx. Xxxxxxx'x activities in accordance with this Section 4, including by way
of illustration, but not limitation, federal and state personal income tax and
social security tax, all as may be required by applicable law or regulation. Xx.
Xxxxxxx shall have the full authority to select the means, manner and method of
performing the services to be performed under this Section 4. Xx. Xxxxxxx shall
not be considered by reason of the provisions of this Section 4 or otherwise as
being an employee of the Company.
(c) Consulting Compensation. Company agrees to pay to Xx.
Xxxxxxx, and Xx. Xxxxxxx agrees to accept, a consulting fee of ten thousand
dollars ($10,000) per month for each of May, June and July 2003, payable in
monthly installments in arrears on the last business day of each month ("Fee").
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(d) Termination by Xx. Xxxxxxx. If Xx. Xxxxxxx
voluntarily terminates his engagement under this Section 4 or dies during the
period of his services hereunder, then Company shall only be required to pay Xx.
Xxxxxxx his Fee as shall have accrued through the effective date of such
termination and the Company shall have no further obligations to Xx. Xxxxxxx.
(e) Termination for Good Cause. Prior to the expiration
of the three month period during which Xx. Xxxxxxx shall provide services
pursuant to this Section 4, the Company may terminate Xx. Xxxxxxx'x engagement
hereunder for "Good Cause," which for the purposes of this Section 4 shall
exclusively mean:
(i) the continued failure of Xx. Xxxxxxx to
perform material duties assigned to Xx.
Xxxxxxx as set forth in subsection 4(a)
hereof, but only after a written notice is
delivered by Company to Xx. Xxxxxxx which
notice specifically identifies the manner in
which Company believes Xx. Xxxxxxx has not
performed his duties and Xx. Xxxxxxx'x
subsequent failure to cure the identified
problem within a reasonable time;
(ii) Xx. Xxxxxxx'x death; or
(iii) Xx. Xxxxxxx'x willful and intentional
commission of a felony, fraud or dishonesty
against the Company.
5. Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement, and the performance of the
obligations imposed by this Agreement shall be governed by the internal laws of
the State of Illinois applicable to contracts made and wholly to be performed in
such state without regard to conflicts of laws.
6. Assignment, Successors and No Third Party Rights. No party may
assign any of its rights under this Agreement to any other person without the
prior written consent of the other party. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors,
heirs and permitted assigns. Except as expressly provided herein, nothing in
this Agreement shall be construed to give any person other than the parties to
this Agreement any legal or equitable right, remedy or claim under or with
respect to this Agreement or any provision of this Agreement.
7. Waiver. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure nor any delay
by any party in exercising any right, power or privilege under this Agreement or
the documents referred to in this Agreement will operate as a waiver of such
right, power or privilege, and no single or partial exercise of any such right,
power or privilege will preclude any other or further exercise of such right,
power or privilege or the exercise of any other right, power or privilege.
8. Modification. This Agreement may only be amended by a written
agreement executed by both parties.
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9. Notices. All notices and other communications under this
Agreement must be in writing and will be deemed to have been duly given if
delivered by hand or by nationally recognized overnight delivery service
(receipt requested) or mailed by certified mail (return receipt requested) with
first class postage prepaid:
(a) if to Company, to:
Kankakee Bancorp, Inc.
000 X. Xxxxxxxx Xxx.
Xxxxxxxx, Xxxxxxxx 00000
Attention: Chairman of the Board
with a copy to:
Xxxx X. Xxxxxxxxx, Esq.
Barack, Xxxxxxxxxx
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
(b) if to Xx. Xxxxxxx, to:
Xx. Xxxxx Xxxxxxx
0000 Xxxxx Xx.
Xxxxxxxxxxx, Xxxxxxxx 00000
or to such other person or place as either party shall furnish to the other in
writing. Except as otherwise provided herein, all such notices and other
communications shall be effective: (x) if delivered by hand, when delivered; (y)
if mailed in the manner provided in this Section, five (5) business days after
deposit with the United States Postal Service; or (z) if delivered by overnight
express delivery service, on the next business day after deposit with such
service.
10. Entire Agreement. This Agreement and any documents executed by
the parties pursuant to this Agreement and referred to herein constitute a
complete and exclusive statement of the entire understanding and agreement of
the parties hereto with respect to their subject matter and supersede all other
prior agreements and understandings, written or oral, relating to such subject
matter between the parties.
11. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Agreement. Without
limiting the generality of the foregoing, if the scope of any provision
contained in this Agreement is too broad to permit enforcement to its full
extent, but may be made enforceable by limitations thereon, such provision shall
be enforced to the maximum extent permitted by law, and Xx. Xxxxxxx hereby
agrees that such scope may be judicially modified accordingly.
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12. Counterparts. This Agreement and any amendments hereto may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the undersigned have set their hands the day and
year set forth below their respective signatures.
KANKAKEE BANCORP, INC. XXXXX X. XXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxx
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Title: Chairman of the Board
Date: 5/6/03 Date: 5/1/2003
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