Exhibit 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated this 18th day of April 2001, between First
BancTrust Corporation, a Delaware chartered corporation (the "Corporation"),
First Bank & Trust, S. B., an Illinois chartered savings bank (the "Bank"),
and Xxxxx X. Xxxxxx (the "Executive").
WITNESSETH
WHEREAS, the Executive is presently an officer of the Bank (the
"Employer"); and
WHEREAS, the Employer desires to be ensured of the Executive's continued
active participation in the business of the Employer; and
WHEREAS, in order to induce the Executive to serve in the employ of the
Employer and in consideration of the Executive's agreeing to serve in the
employ of the Employer, the parties desire to specify the terms under which
Executive shall be employed and the severance benefits which shall be due the
Executive by the Employer in the event that his employment with the Employer
is terminated under specified circumstances;
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein contained, and upon the other terms and conditions
hereinafter provided, the parties hereby agree as follows:
1. DEFINITIONS. The following words and terms shall have the
meanings set forth below for the purposes of this Agreement:
(a) AVERAGE ANNUAL COMPENSATION. The Executive's "Average Annual
Compensation" for purposes of this Agreement shall be deemed to mean the
average level of compensation paid to the Executive by the Employer or any
subsidiary thereof during the most recent five taxable years preceding the
Date of Termination and which was either (i) included in the Executive's gross
income for tax purposes, including but not limited to Base Salary, bonuses and
amounts taxable to the Executive under any qualified or non-qualified employee
benefit plans of the Employer, or (ii) deferred at the election of the
Executive.
(b) BASE SALARY. "Base Salary" shall have the meaning set forth in
Section 3(a) hereof.
(c) CAUSE. Termination of the Executive's employment for "Cause" shall
mean termination because of personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or final cease-
and-desist order or material breach of any provision of this Agreement.
(d) CHANGE IN CONTROL OF THE CORPORATION. "Change in Control of the
Corporation" shall mean a change in control of a nature that would be required
to be reported in response to Item 1(a) of Form 8-K or Item 6(e) of Schedule
14A of Regulation 14A pursuant to the Securities Exchange Act of 1934, as
amended ("Exchange Act"), or any successor thereto, whether or not any class
of securities of the Corporation is registered under the Exchange Act;
provided that, without limitation, such a change in control shall be deemed to
have occurred if (i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Corporation representing 20% or more of the combined voting power of the
Corporation's then outstanding securities; or (ii) during any period of three
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Corporation cease for any reason to constitute
at least a majority thereof unless the election, or the nomination for
election by stockholders, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were directors at
the beginning of the period.
(e) CODE. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) DATE OF TERMINATION. "Date of Termination" shall mean (i) if the
Executive's employment is terminated for Cause or for Disability, the date
specified in the Notice of Termination, and (ii) if the Executive's employment
is terminated for any other reason, the date on which a Notice of Termination
is given or as specified in such Notice.
(g) DISABILITY. Termination by the Employer of the Executive's
employment based on "Disability" shall mean termination because of any
physical or mental impairment which qualifies the Executive for disability
benefits under the applicable long-term disability plan maintained by the
Employer or any subsidiary or, if no such plan applies, which would qualify
the Executive for disability benefits under the Federal Social Security
System.
(h) GOOD REASON. Termination by the Executive of the Executive's
employment for "Good Reason" shall mean termination by the Executive within
twenty-four (24) months following a Change in Control of the Corporation based
on:
(i) Without the Executive's express written consent, the failure
to elect or to re-elect or to appoint or to re-appoint the
Executive to the offices of President and Chief Executive
Officer of the Employer or a material adverse change made by
the Employer in the Executive's functions, duties or
responsibilities as President and Chief Executive Officer of
the Employer;
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(ii) Without the Executive's express written consent, a material
reduction by either of the Employer in the Executive's Base
Salary as the same may be increased from time to time or,
except to the extent permitted by Section 3(b) hereof, a
material reduction in the package of fringe benefits
provided to the Executive, taken as a whole;
(iii)Without the Executive's express written consent, the
Employer requires the Executive to work in an office which
is more than 30 miles from where the Employer's principal
executive office is located, except for required travel on
business of the Employer to an extent substantially
consistent with the Executive's present business travel
obligations;
(iv) Any purported termination of the Executive's employment for
Cause, Disability or Retirement which is not effected
pursuant to a Notice of Termination satisfying the
requirements of paragraph (j) below; or
(v) The failure by the Employer to obtain the assumption of and
agreement to perform this Agreement by any successor as
contemplated in Section 9 hereof.
(i) IRS. IRS shall mean the Internal Revenue Service.
(j) NOTICE OF TERMINATION. Any purported termination of the
Executive's employment by the Employer for any reason, including without
limitation for Cause, Disability or Retirement, or by the Executive for any
reason, including without limitation for Good Reason, shall be communicated by
written "Notice of Termination" to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a dated notice which (i)
indicates the specific termination provision in this Agreement relied upon,
(ii) sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision
so indicated, (iii) specifies a Date of Termination, which shall be not less
than thirty (30) nor more than ninety (90) days after such Notice of
Termination is given, except in the case of the Employer's termination of
Executive's employment for Cause, which shall be effective immediately; and
(iv) is given in the manner specified in Section 10 hereof.
(k) RETIREMENT. "Retirement" shall mean voluntary termination by the
Executive in accordance with the Employer's retirement policies, including
early retirement, generally applicable to the Employer's salaried employees.
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2. TERM OF EMPLOYMENT.
(a) The Employer hereby employs the Executive as President and Chief
Executive Officer, and the Executive hereby accepts said employment and agrees
to render such services to the Employer on the terms and conditions set forth
in this Agreement. The term of this Agreement shall be a period of two years
commencing as of the date hereof (the "Commencement Date"), subject to earlier
termination as provided herein. Beginning on the day which is one year
subsequent to the Commencement Date, and on each annual anniversary
thereafter, the term of this Agreement shall be extended for a period of one
year in addition to the then-remaining term, provided that the Employer has
not given notice to the Executive in writing at least 60 days prior to such
day that the term of the Agreement shall not be extended further. Reference
herein to the term of this Agreement shall refer to both such initial term and
such extended terms. The Board of Directors of the Employer shall review on a
periodic basis (and no less frequently than annually) whether to permit
further extensions of the term of this Agreement. As part of such review, the
Board of Directors shall consider all relevant factors, including the
Executive's performance hereunder, and shall either expressly approve further
extensions of the time of this Agreement or decide to provide notice to the
contrary. Effective upon the Commencement Date, any and all prior agreements
with the Employer shall terminate, with no obligations to the Executive
thereunder on the part of the Employer.
(b) During the term of this Agreement, the Executive shall perform
such executive services for the Employer as may be consistent with his titles
and from time to time assigned to him by the Employer's Board of Directors.
3. COMPENSATION AND BENEFITS.
(a) The Employer shall compensate and pay the Executive for his
services during the term of this Agreement at a minimum base salary of
$107,500 per year ("Base Salary"), which may be increased from time to time
in such amounts as may be determined by the Board of Directors of the Employer
and may not be decreased without the Executive's express written consent. In
addition to his Base Salary, the Executive shall be entitled to receive during
the term of this Agreement such bonus payments as may be determined by the
Board of Directors of the Employer.
(b) During the term of this Agreement, the Executive shall be entitled
to participate in and receive the benefits of any pension or other retirement
benefit plan, profit sharing, management recognition, stock option, employee
stock ownership, or other plans, benefits and privileges given to employees
and executives of the Employer, to the extent commensurate with his then
duties and responsibilities, as fixed by the Board of Directors of the
Employer. The Employer shall not make any changes in such plans, benefits or
privileges which would adversely affect the Executive's rights or benefits
thereunder, unless such change occurs pursuant to a program applicable to all
executive officers of the Employer and does not result in a proportionately
greater adverse change in the rights of or benefits to the Executive as
compared
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with any other executive officer of the Employer. Nothing paid to the
Executive under any plan or arrangement presently in effect or made available
in the future shall be deemed to be in lieu of the salary payable to the
Executive pursuant to Section 3(a) hereof.
(c) During the term of this Agreement, the Executive shall be entitled
to paid annual vacation in accordance with the policies as established from
time to time by the Board of Directors of the Employer. The Executive shall
not be entitled to receive any additional compensation from the Employer for
failure to take a vacation, nor shall the Executive be able to accumulate
unused vacation time from one year to the next, except to the extent
authorized by the Board of Directors of the Employer.
(d) In the event the Executive's employment is terminated due to
Disability or Retirement, the Employer shall provide continued life, medical,
dental and disability coverage substantially identical to the coverage
maintained by the Employer for the Executive immediately prior to his
termination. Such coverage shall cease upon the expiration of the remaining
term of this Agreement.
4. EXPENSES. The Employer shall reimburse the Executive or otherwise
provide for or pay for all reasonable expenses incurred by the Executive in
furtherance of or in connection with the business of the Employer, including,
but not by way of limitation, automobile expenses and other traveling
expenses, and all reasonable entertainment expenses (whether incurred at the
Executive's residence, while traveling or otherwise), subject to such
reasonable documentation and other limitations as may be established by the
Board of Directors of the Employer. If such expenses are paid in the first
instance by the Executive, the Employer shall reimburse the Executive
therefor.
5. TERMINATION.
(a) The Employer shall have the right, at any time upon prior Notice
of Termination, to terminate the Executive's employment hereunder for any
reason, including without limitation termination for Cause, Disability or
Retirement, and the Executive shall have the right, upon prior Notice of
Termination, to terminate his employment hereunder for any reason.
(b) In the event that (i) the Executive's employment is terminated by
the Employer for Cause or (ii) the Executive terminates his employment
hereunder other than for Disability, Retirement, death or Good Reason, the
Executive shall have no right pursuant to this Agreement to compensation or
other benefits for any period after the applicable Date of Termination.
(c) In the event that the Executive's employment is terminated as a
result of Disability, Retirement or the Executive's death during the term of
this Agreement, the Executive shall have no right pursuant to this Agreement
to compensation or other benefits for any period after the applicable Date of
Termination, except as provided for in Section 3(d) hereof.
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(d) In the event that (i) the Executive's employment is terminated by
the Employer for other than Cause, Disability, Retirement or the Executive's
death or (ii) such employment is terminated by the Executive (a) due to a
material breach of this Agreement by the Employer, which breach has not been
cured within fifteen (15) days after a written notice of non-compliance has
been given by the Executive to the Employer, or (b) for Good Reason, then the
Employer shall, subject to the provisions of Section 6 hereof, if applicable
(A) pay to the Executive, in either twenty-four (24) equal
monthly installments beginning with the first business day of the month
following the Date of Termination or in a lump sum within five business
days of the Date of Termination (at the Executive's election), a cash
severance amount equal to two (2) times that portion of the Executive's
Average Annual Compensation paid by the Employer, and
(B) maintain and provide for a period ending at the earlier of
(i) the expiration of the remaining term of employment pursuant hereto
prior to the Notice of Termination or (ii) the date of the Executive's
full-time employment by another employer (provided that the Executive is
entitled under the terms of such employment to benefits substantially
similar to those described in this subparagraph (B)), at no cost to the
Executive, the Executive's continued participation in all group
insurance, life insurance, health and accident insurance, disability
insurance and other employee benefit plans, programs and arrangements
offered by the Employer in which the Executive was entitled to
participate immediately prior to the Date of Termination (excluding (x)
stock option and restricted stock plans of the Employer, (y) bonuses and
other items of cash compensation included in Average Annual Compensation
and (z) other benefits, or portions thereof, included in Average Annual
Compensation), provided that in the event that the Executive's
participation in any plan, program or arrangement as provided in this
subparagraph (B) is barred, or during such period any such plan, program
or arrangement is discontinued or the benefits thereunder are materially
reduced, the Employer shall arrange to provide the Executive with
benefits substantially similar to those which the Executive was entitled
to receive under such plans, programs and arrangements immediately prior
to the Date of Termination.
6. LIMITATION OF BENEFITS UNDER CERTAIN CIRCUMSTANCES. If the
payments and benefits pursuant to Section 5 hereof, either alone or together
with other payments and benefits which the Executive has the right to receive
from the Employer, would constitute a "parachute payment" under Section 280G
of the Code, the payments and benefits payable by the Employer pursuant to
Section 5 hereof shall be reduced, in the manner determined by the Executive,
by the amount, if any, which is the minimum necessary to result in no portion
of the payments and benefits payable by the Employer under Section 5 being
non-deductible to the Employer pursuant to Section 280G of the Code and
subject to the excise tax imposed under Section 4999 of the Code. The parties
hereto agree that the present value of the payments and benefits payable
pursuant to this Agreement to the Executive upon termination shall be limited
to three times the Executive's Average Annual Compensation. The determination
of any reduction in the payments and benefits to be made pursuant to Section 5
shall be based upon the opinion of independent counsel selected
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by the Employer's independent public accountants and paid by the Employer.
Such counsel shall be reasonably acceptable to the Employer and the Executive;
shall promptly prepare the foregoing opinion, but in no event later than
thirty (30) days from the Date of Termination; and may use such actuaries as
such counsel deems necessary or advisable for the purpose. Nothing contained
herein shall result in a reduction of any payments or benefits to which the
Executive may be entitled upon termination of employment under any
circumstances other than as specified in this Section 6, or a reduction in the
payments and benefits specified in Section 5 below zero.
7. MITIGATION; EXCLUSIVITY OF BENEFITS.
(a) The Executive shall not be required to mitigate the amount of any
benefits hereunder by seeking other employment or otherwise, nor shall the
amount of any such benefits be reduced by any compensation earned by the
Executive as a result of employment by another employer after the Date of
Termination or otherwise.
(b) The specific arrangements referred to herein are not intended to
exclude any other benefits which may be available to the Executive upon a
termination of employment with the Employer pursuant to employee benefit plans
of the Employer or otherwise.
8. WITHHOLDING. All payments required to be made by the Employer
hereunder to the Executive shall be subject to the withholding of such
amounts, if any, relating to tax and other payroll deductions as the Employer
may reasonably determine should be withheld pursuant to any applicable law or
regulation.
9. ASSIGNABILITY. The Employer may assign this Agreement and its
rights and obligations hereunder in whole, but not in part, to any
corporation, bank or other entity with or into which the Employer may
hereafter merge or consolidate or to which the Employer may transfer all or
substantially all of its assets, if in any such case said corporation, bank or
other entity shall by operation of law or expressly in writing assume all
obligations of the Employer hereunder as fully as if it had been originally
made a party hereto, but may not otherwise assign this Agreement or its rights
and obligations hereunder. The Executive may not assign or transfer this
Agreement or any rights or obligations hereunder.
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10. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Employer: Board of Directors
First Bank & Trust, S. B.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
To the Executive: Xxxxx X. Xxxxxx
00000 X Xxxxxx Xx
Xxxxxxxx, XX 00000
11. AMENDMENT; WAIVER. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge
is agreed to in writing and signed by the Executive and such officer or
officers as may be specifically designated by the Board of Directors of the
Employer to sign on their behalf. No waiver by any party hereto at any time
of any breach by any other party hereto of, or compliance with, any condition
or provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same
or at any prior or subsequent time.
12. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United
States where applicable and otherwise by the substantive laws of the State of
Illinois.
13. NATURE OF OBLIGATIONS. Nothing contained herein shall create or
require the Employer to create a trust of any kind to fund any benefits which
may be payable hereunder, and to the extent that the Executive acquires a
right to receive benefits from the Employer hereunder, such right shall be no
greater than the right of any unsecured general creditor of the Employer.
14. HEADINGS. The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. VALIDITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
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17. REGULATORY PROHIBITION. Notwithstanding any other provision of
this Agreement to the contrary, any payments made to the Executive pursuant to
this Agreement, or otherwise, are subject to and conditioned upon their
compliance with Section 18(k) of the Federal Deposit Insurance Act (12 U.S.C.
Section 1828(k)) and the regulations promulgated thereunder, including 12
C.F.R. Part 359.
18. PAYMENT OF COSTS AND LEGAL FEES AND REINSTATEMENT OF BENEFITS. In
the event any dispute or controversy arising under or in connection with the
Executive's termination is resolved in favor of the Executive, whether by
judgment, arbitration or settlement, the Executive shall be entitled to the
payment of (a) all legal fees incurred by the Executive in resolving such
dispute or controversy, and (2) any back-pay, including Base Salary, bonuses
and any other cash compensation, fringe benefits and any compensation and
benefits due to the Executive under this Agreement.
19. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the Employer and the Executive with respect to the matters agreed to
herein. All prior agreements between the Employer and the Executive with
respect to the matters agreed to herein are hereby superseded and shall have
no force or effect.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
Attest: First BancTrust Corporation
__________________________ By: __________________________________
Attest: FIRST BANK & TRUST, S. B.
__________________________ By: __________________________________
EXECUTIVE
__________________________________
Xxxxx X. Xxxxxx
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