JACKSONVILLE SAVINGS BANK
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Agreement (the "Agreement") is made effective as
of the 2nd day of September 2008, by and between Jacksonville Savings Bank (the
"Bank"), an Illinois chartered savings institution, with its principal
administrative office at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxx
00000-0000 and Xxxxxxx X. Xxxx ("Executive"). Any reference to "Company" herein
shall mean Jacksonville Bancorp, Inc. or any successor thereto.
WHEREAS, the Executive is currently employed as Chief Executive Officer and
President of the Bank pursuant to an employment agreement between the Bank and
the Executive entered into as of January 1, 2004 (the "Employment Agreement");
and
WHEREAS, the Bank desires to amend and restate the Employment Agreement in
order to make changes to comply with Section 409A of the Internal Revenue Code
of 1986, as amended (the "Code") and the final regulations issued thereunder in
April 2007; and
WHEREAS, the Bank desires to ensure that the Bank is assured of the
continued availability of the Executive's services as provided in this
Agreement; and
WHEREAS, the Executive is willing to serve the Bank on the terms and
conditions hereinafter set forth and has agreed to such changes; and
WHEREAS, the Board of Directors of the Bank and the Executive believe it is
in the best interests of the Bank to enter into an amended and restated
employment agreement in order to reinforce and reward the Executive for his
service and dedication to the continued success of the Bank and incorporate the
changes required by Section 409A of the Code.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. POSITION AND RESPONSIBILITIES
During the period of his employment hereunder, Executive agrees to serve as
President and Chief Executive Officer of the Bank. During said period, Executive
also agrees to serve, if elected, as an officer and director of any subsidiary
or affiliate of the Bank. Failure to reelect Executive as President and Chief
Executive Officer without the consent of the Executive during the term of this
Agreement shall constitute a breach of this Agreement.
2. TERMS AND DUTIES
(a) The period of Executive's employment under this Agreement shall begin
as of the date first above written and shall continue for a period of thirty-six
(36) full calendar months thereafter, provided that all changes intended to
comply with Section 409A of the Code shall be retroactively effective to January
1, 2005; and provided further that no retroactive change shall affect the
compensation or benefits previously provided to the Executive. Commencing on the
first anniversary date of this Agreement, and continuing at each anniversary
date thereafter, the Agreement shall renew for an additional year such that the
remaining term shall be three (3) years unless written notice of non-renewal is
provided to Executive at least ten (10) days and not more than thirty (30) days
prior to any such anniversary date, that the term of the Agreement shall cease
at the end of twenty-four (24) months following such anniversary date. Prior to
each notice period for non-renewal, the disinterested members of the Board of
Directors of the Bank ("Board") will conduct a comprehensive performance
evaluation and review of the Executive for purposes of determining whether to
extend the Agreement, and the results thereof shall be included in the minutes
of the Board's meeting.
(b) During the period of his employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive shall devote substantially all his business time,
attention, skill, and efforts to the faithful performance of his duties
hereunder including activities and services related to the organization,
operation and management of the Bank; provided, however, that, with the approval
of the Board, as evidenced by a resolution of such Board, from time to time,
Executive may serve, or continue to serve, on the boards of directors of, and
hold any other offices or positions in, companies or organizations, which, in
such Board's judgment, will not present any conflict of interest with the Bank,
or materially affect the performance of Executive's duties pursuant to this
Agreement. Nothing in this Section shall be construed as preventing the
Executive from serving from time to time on boards, committees, or holding
positions of non-profit or governmental organizations, including religious and
civic groups, without the need for Board approval.
3. COMPENSATION AND REIMBURSEMENT
(a) The compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in Section 2(b). The Bank
shall pay Executive as compensation a salary of not less than $156,000 per year
("Base Salary"). Such Base Salary shall be payable biweekly. During the period
of this Agreement, Executive's Base Salary shall be reviewed at least annually;
such review will be made no later than January 31 of each year during the term
of this Agreement and shall be effective from the first day of said month
through the end of the calendar year. Such review shall be conducted by a
Committee designated by the Board, and the Board may increase, but not decrease,
Executive's Base Salary (any increase in Base Salary shall become the "Base
Salary" for purposes of this Agreement). In addition to the Base Salary provided
in this Section 3(a), the Bank shall provide Executive at no cost to Executive
with all such other benefits as are provided uniformly to permanent full-time
employees of the Bank.
(b) The Bank will provide Executive with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving benefit from immediately prior
to the beginning of the term of this Agreement, and the Bank will not, without
Executive's prior written consent, make any changes in such plans, arrangements
or perquisites which would adversely affect Executive's rights or benefits
thereunder. Without limiting the generality of the foregoing provisions of this
Subsection (b), Executive will be entitled to participate in or receive benefits
under any employee benefit plans, including but not limited to, retirement
plans, supplemental retirement plans, pension plans, profit-sharing plans,
health-and-accident plans, medical coverage or any other employee benefit plan
or arrangement made available by the Bank in the future to its senior executives
and key management employees, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and arrangements.
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Executive will be entitled to incentive compensation and bonuses as provided in
any plan of the Bank in which Executive is eligible to participate. Nothing paid
to the Executive under any such plan or arrangement will be deemed to be in lieu
of other compensation to which the Executive is entitled under this Agreement.
(c) In addition to the Base Salary provided for by paragraph (a) of this
Section 3, the Bank shall pay or reimburse Executive for all reasonable travel
and other reasonable expenses incurred by Executive performing his obligations
under this Agreement and may provide such additional compensation in such form
and such amounts as the Board may from time to time determine, and all such
reimbursements (and compensation) pursuant to this Section 3(c) shall be paid
promptly by the Bank and in any event no later than March 15 of the calendar
year immediately following the year in which the expense was incurred (or the
compensation was earned).
(d) Compensation and reimbursement to be paid pursuant to paragraphs (a),
(b) and (c) of this Section 3 shall be paid by the Bank and the Company,
respectively on a pro rata basis, based upon the amount of service the Executive
devotes to the Bank and Company, respectively.
(e) In addition to the foregoing, Executive shall be entitled to receive
fees for serving as a director of the Bank in the same amount and on the same
terms as fees are paid to other directors of the Bank, and no later than March
15 of the calendar year immediately following the year in which the fees were
earned.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
The provisions of this Section shall in all respects be subject to the
terms and conditions stated in Sections 8 and 15.
(a) The provisions of this Section shall apply upon the occurrence of an
Event of Termination (as herein defined) during the Executive's term of
employment under this Agreement. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by the Bank or the Company of Executive's full-time employment
hereunder for any reason other than, (A) Disability or Retirement as defined in
Section 6 below, (B) a Change in Control, as defined in Section 5(a) hereof, or
(C) Termination for Cause as defined in Section 7 hereof; or (ii) Executive's
resignation from the Bank's employ, upon any (A) failure to elect or reelect or
to appoint or reappoint Executive as President and Chief Executive Officer, (B)
material change in Executive's function, duties, or responsibilities, which
change would cause Executive's position to become one of lesser responsibility,
importance, or scope from the position and attributes thereof described in
Section 1, above, (C) a relocation of Executive's principal place of employment
by more than 30 miles from its location at the effective date of this Agreement,
or a material reduction in the benefits and perquisites to the Executive from
those being provided as of the effective date of this Agreement, (D) liquidation
or dissolution of the Bank or Company other than liquidations or dissolutions
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that are caused by reorganizations that do not affect the status of Executive,
or (E) any other breach of this Agreement by the Bank. Upon the occurrence of
any event described in clauses (ii)(A), (B), (C), (D) or (E), above, Executive
shall have the right to elect to terminate his employment under this Agreement
by resignation upon sixty (60) days prior written notice given within a
reasonable period of time not to ninety (90) days after the initial event giving
rise to said right to elect; provided, however, that the Bank has thirty (30)
days to remedy any condition under clauses (ii)(A) through (E) above, but the
Bank may waive such cure period and make an immediate payment hereunder.
Notwithstanding the preceding sentence, in the event of a continuing breach of
this Agreement by the Bank, the Executive, after giving due notice within the
prescribed time frame of an initial event specified above, shall not waive any
of his rights solely under this Agreement and this Section 4 by virtue of the
fact that Executive has submitted his resignation but has remained in the
employment of the Bank and is engaged in good faith discussions to resolve any
occurrence of an event described in clauses (A), (B), (C), (D) and (E) above.
(b) Upon the occurrence of an Event of Termination, on the Date of
Termination, as defined in Section 8, the Bank shall pay Executive, or, in the
event of his subsequent death, his beneficiary or beneficiaries, or his estate,
as the case may be, as severance pay or liquidated damages, or both, a sum equal
to the greater of the payments due for the remaining term of the Agreement or
three (3) times the average of the three preceding years' Base Salary, including
bonuses and any other cash compensation paid to the Executive during such years,
and the amount of any benefits received pursuant to any employee benefit plans
on behalf of the Executive, maintained by the Bank during such years. All
payments shall be made to the Executive in a single cash lump-sum distribution,
and shall commence within thirty (30) days following the Executive's Date of
Termination, provided however, if Executive is a "Specified Employee," as
defined in Treasury Regulation 1.409A-1(i), then, solely to the extent required
to avoid penalties under Code Section 409A, such payment shall be delayed until
the first day of the seventh full month following the Executive's Date of
Termination.
(c) Notwithstanding the provisions of Sections 4(a) and (b), and in the
event that there has not been a Change in Control as defined in Section 5(a),
upon the voluntary termination by the Executive upon giving sixty (60) days
notice to the Bank (which shall not be deemed to constitute an "Event of
Termination" as defined herein), the Bank, at the discretion of the Board of
Directors, may pay Executive, or in the event of his subsequent death, his
beneficiary or beneficiaries, or his estate, as the case may be, a severance
payment in an amount to be determined by the Board of Directors at the time of
such voluntary termination by the Executive. Such severance payment shall not
exceed three (3) times the average of the three preceding years' Base Salary,
including bonuses and any other cash compensation paid to the Executive during
such years, and the amount of any benefits received pursuant to any employee
benefit plans, on behalf of the Executive, maintained by the Bank during such
years. All payments shall be made to the Executive in a single cash lump sum
distribution within thirty (30) days following the Executive's Date of
Termination, provided however, if Executive is a "Specified Employee," as
defined in Treasury Regulation 1.409A-1(i), then, solely to the extent required
to avoid penalties under Code Section 409A, such payment shall be delayed until
the first day of the seventh full month following the Executive's Date of
Termination.
(d) Upon the occurrence of an Event of Termination, the Bank will cause to
be continued life insurance and non-taxable medical and dental coverage
substantially identical to the coverage maintained by the Bank for Executive
prior to his termination, provided that such benefits shall not be provided in
the event they should constitute an unsafe or unsound banking practice relating
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to executive compensation and employment contracts pursuant to applicable
regulations, as is now or hereafter in effect. Such coverage shall cease upon
the expiration of the remaining term of this Agreement.
(e) The Executive's termination of employment in accordance with Section 4
shall be construed to require a "Separation from Service" as defined in Code
Section 409A and the Treasury Regulations promulgated thereunder, such that the
Bank and Executive reasonably anticipate that the level of bona fide services
the Executive would perform after termination would permanently decrease to a
level that is less than 50% of the average level of bona fide services performed
(whether as an employee or an independent contractor) over the immediately
preceding 36-month period.
5. CHANGE IN CONTROL
(a) No benefit shall be payable under this Section 5 unless there shall
have been a Change in Control of the Bank or Company, as set forth below. For
purposes of this Agreement, a "Change in Control" of the Bank or Company shall
mean an event of a nature that (i) would be required to be reported in response
to Item 5.01 of the current report on Form 8-K, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), or (ii) results in a Change in Control of the Bank or the
Company within the meaning of the Home Owners' Loan Act, as amended and
applicable rules and regulations promulgated thereunder as in effect at the time
of the Change in Control; or (iii) without limitation such a Change in Control
shall be deemed to have occurred at such time as (a) any "person" (as the term
is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes a
"beneficial owner" (as defined in Rule 13d-3 of the Exchange Act) directly or
indirectly, of securities of the Company representing 25% or more of the
Company's outstanding securities except for any securities purchased by the
Bank's employee stock ownership plan or trust; (b) individuals who constitute
the Board on the date hereof (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof; (c) a plan of reorganization, merger,
consolidation, sale of all or substantially all the assets of the Bank or
Company or similar transaction in which the Bank or the Company is not the
surviving institution occurs; (d) a proxy statement soliciting proxies from
stockholders of the Company, by someone other than the then current Board of
Directors of the Company, seeking stockholder approval of a plan of
reorganization, merger or consolidation of the Company or similar transaction
with one or more corporations as a result of which the outstanding shares of the
common stock of the Company are exchanged for or converted into cash or property
or securities not issued by the Company; or (e) a tender offer is made for 25%
or more of the voting securities of the Company and the shareholders owning
beneficially or of record 25% or more of the outstanding securities of the
Company have tendered or offered to sell their shares pursuant to such tender
offer and such tendered shares have been accepted by the tender offeror.
Notwithstanding the foregoing, a "Change in Control" of the Bank or the
Company shall not be deemed to have occurred in connection with the conversion
of Jacksonville Bancorp, MHC to stock form.
For these purposes, "Incumbent Board" means, in the case of the Company or
the Bank, the Board of Directors of the Company or the Bank, respectively, on
the date hereof, provided that any person becoming a director subsequent to the
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date hereof whose election was approved by a vote of at least three-quarters of
the directors comprising the Incumbent Board, or whose nomination for election
by members or stockholders was approved by the same nominating committee serving
under an Incumbent Board, shall be considered as though he were a member of the
Incumbent Board.
(b) If any of the events described in Section 5(a) hereof constituting a
Change in Control have occurred, Executive shall be entitled to the benefits
provided in paragraphs (c), (d), (e), (f), (g) and (h) of this Section 5 upon
his subsequent termination of employment at any time during the term of this
Agreement, regardless of whether such termination results from (i) his
resignation or (ii) his dismissal upon the Change in Control.
(c) Upon the occurrence of a Change in Control followed by the Executive's
termination of employment, the Bank shall pay Executive, or in the event of his
subsequent death, his beneficiary or beneficiaries, or his estate, as the case
may be, as severance pay or liquidated damages, or both, a sum equal to the
greater of the payments due for the remaining term of the Agreement or 2.99
times the average of the five preceding years' Base Salary, including bonuses
and any other cash compensation paid to the Executive during such years, and the
amount of any contributions made to any employee benefit plans, on behalf of the
Executive, maintained by the Bank during such years. Such payment shall be made
by the Bank on the Date of Termination. All payments shall be made to the
Executive in a single cash lump-sum distribution within thirty (30) days
following the Executive's Date of Termination, provided however, if Executive is
a "Specified Employee," as defined in Treasury Regulation 1.409A-1(i), then,
solely to the extent required to avoid penalties under Code Section 409A, such
payment shall be delayed until the first day of the seventh full month following
the Executive's Date of Termination.
(d) For the purposes of this Section 5, "termination of employment" shall
be construed to require a "Separation from Service" as defined in Code Section
409A and the Treasury Regulations promulgated thereunder, such that the Bank and
Executive reasonably anticipate that the level of bona fide services the
Executive would perform after termination would permanently decrease to a level
that is less than 50% of the average level of bona fide services performed
(whether as an employee or an independent contractor) over the immediately
preceding 36-month period.
(e) Upon the occurrence of a Change in Control followed by the Executive's
termination of employment, the Bank will cause to be continued life insurance
and nontaxable medical and dental coverage substantially identical to the
coverage maintained by the Bank for Executive prior to his severance. Such
coverage and payments shall cease upon the expiration of thirty-six (36) months.
(f) Upon the occurrence of a Change in Control, Executive will be entitled
to any benefits granted to him pursuant to any Stock Option Plan of the Bank or
Company.
(g) Upon the occurrence of a Change in Control the Executive will be
entitled to any benefits awarded to him under the Bank's Recognition and
Retention Plan or any restricted stock plan in effect.
(h) Notwithstanding the preceding paragraphs of this Section 5, if the
aggregate payments or benefits to be made or afforded to Executive under said
paragraphs would be deemed to include an "excess parachute payment" under
Section 280G of the Code or any successor thereto, the Executive's benefits will
be reduced to an amount, the value of which is one dollar ($1.00) less than an
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amount equal to three (3) times Executive's "base amount", as determined in
accordance with said Section 280G. In the event a reduction is necessary, then
the cash severance payable by the Bank pursuant to Section 5 hereof shall be
reduced by the minimum amount necessary to result in no portion of the payments
and benefits payable by the Bank under Section 5 being non-deductible to the
Bank pursuant to Section 280G of the Code and subject to excise tax imposed
under Section 4999 of the Code.
(i) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to Executive during any period during which
Executive is incapable of performing his duties hereunder by reason of temporary
disability.
(j) Any payments made to Executive pursuant to this Agreement or otherwise,
are subject to and conditioned upon their compliance with 12 U.S.C. ss. 1828(k)
and any applicable regulations promulgated thereunder.
6. TERMINATION UPON RETIREMENT, DISABILITY, OR DEATH
(a) Termination by the Bank of the Executive based on "Retirement" shall
mean termination in accordance with the Bank's retirement policy or in
accordance with any retirement arrangement established with the Executive's
consent with respect to him. Upon termination of employment upon Retirement,
Executive shall be entitled to all benefits under any retirement plan of the
Bank and other plans to which the Executive is a party.
(b) Termination by the Bank of the Executive's employment based on
"Disability" shall mean termination because (i) Executive is unable to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death, or last
for a continuous period of not less than 12 months; (ii) Executive is, by reason
of any medically determinable physical or mental impairment that can be expected
to result in death, or last for a continuous period of not less than 12 months,
receiving income replacement benefits for a period of not less than three months
under an accident and health plan covering employees of the Bank; or (iii)
Executive is determined to be totally disabled by the Social Security
Administration. In the event Executive is determined to be Disabled, the Bank
may terminate this Agreement, provided that the Bank shall continue to be
obligated to pay Executive his Base Salary, including bonuses and any other cash
compensation paid to Executive during such period for the remaining term of this
Agreement, or one (1) year, whichever is the longer period of time, in
accordance with the regular payroll practices of the Bank, and provided further
that any amounts actually paid to Executive pursuant to any disability insurance
or other similar such program which the Bank has provided or may provide on
behalf of its employees or pursuant to any xxxxxxx'x or social security
disability program shall reduce the compensation to be paid to Executive
pursuant to this paragraph.
(c) In the event of Executive's death during the term of this Agreement,
his estate, legal representatives or named beneficiaries (as directed by
Executive in writing) shall be paid Executive's Base Salary at the rate in
effect at the time of Executive's death for a period of one (1) year from the
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date of Executive's death, and the Bank will continue to provide continued
non-taxable medical, dental, family and other benefits normally provided for
Executive's family for one (1) year after Executive's death.
7. TERMINATION FOR CAUSE
The term "Termination for Cause" shall mean termination because of the
Executive's personal dishonesty, incompetence, willful misconduct, any 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. In determining incompetence, the acts
or omissions shall be measured against standards generally prevailing in the
savings institutions industry. For purposes of this paragraph, no act or failure
to act on the part of Executive shall be considered "willful" unless done, or
omitted to be done, by the Executive not in good faith and without reasonable
belief that the Executive's action or omission was in the best interest of the
Bank. Notwithstanding the foregoing, Executive shall not be deemed to have been
Terminated for Cause unless and until there shall have been delivered to him a
copy of a resolution duly adopted by the affirmative vote of not less than
three-fourths of the members of the Board at a meeting of the Board called and
held for that purpose (after reasonable notice to Executive and an opportunity
for him, together with counsel, to be heard before the Board), finding that in
the good faith opinion of the Board, Executive was guilty of conduct justifying
Termination for Cause and specifying the particulars thereof in detail. The
Executive shall not have the right to receive compensation or other benefits for
any period after Termination for Cause. Any stock options granted to Executive
under any stock option plan of the Bank, the Company or any subsidiary or
affiliate thereof, shall not be exercisable upon Executive's receipt of Notice
of Termination for Cause pursuant to Section 8 hereof, and shall be null and
void subsequent to Executive's Termination for Cause, unless such Termination
for Cause is found to be wrongful or such dispute is otherwise decided in
Executive's favor, as set forth in Section 8(c) hereof.
8. NOTICE
(a) Any purported termination by the Bank or by Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(b) "Date of Termination" shall mean the date specified in the Notice of
Termination (which, in the case of a Termination for Cause, shall not be less
than thirty (30) days from the date such Notice of Termination is given).
(c) If, within thirty (30) days after any Notice of Termination is given,
the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, except upon the occurrence of a
Change in Control and voluntary termination by the Executive, in which case the
Date of Termination shall be the date specified in the Notice, the Date of
Termination shall be the date on which the dispute is finally determined, either
by mutual written agreement of the parties, by a binding arbitration award, or
by a final judgment, order or decree of a court of competent jurisdiction (the
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time for appeal having expired and no appeal having been perfected) and provided
further that the Date of Termination shall be extended by a notice of dispute
only if such notice is given in good faith and the party giving such notice
pursues the resolution of such dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Bank will continue to pay
Executive his full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, Base Salary) and continue
Executive as a participant in all compensation, benefit and insurance plans in
which he was participating when the notice of dispute was given, until the
dispute is finally resolved in accordance with this Agreement, provided such
dispute is resolved within nine (9) months after the Date of Termination
specified in the Notice or Termination; notwithstanding the foregoing no
compensation or benefits shall be paid to Executive in the event the Executive
is Terminated for Cause. In the event that such Termination for Cause is found
to have been wrongful or such dispute is otherwise decided in Executive's favor,
the Executive shall be entitled to receive all compensation and benefits which
accrued for up to a period of nine (9) months after the Termination for Cause,
and such amount shall be paid promptly by the Bank and in any event no later
than March 15 of the year immediately following the year in which the matter was
resolved. If such dispute is not resolved within such nine-month period, the
Bank shall not be obligated, upon final resolution of such dispute, to pay
Executive compensation and other payments accruing more than nine months from
the Date of the Termination specified in the Notice of Termination. Amounts paid
under this Section are in addition to all other amounts due under this Agreement
and shall not be offset against or reduce any other amounts due under this
Agreement.
9. POST-TERMINATION OBLIGATIONS
(a) All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with paragraph (b) of this Section 9 during
the term of this Agreement and for one (1) full year after the expiration or
termination hereof.
(b) Executive shall, upon reasonable notice, furnish such information and
assistance to the Bank as may reasonably be required by the Bank in connection
with any litigation in which it or any of its subsidiaries or affiliates is, or
may become, a party.
10. NON-COMPETITION
(a) Upon any termination of Executive's employment hereunder pursuant to
Section 4(c) hereof, Executive agrees not to compete with the Bank and/or the
Company for a period of one (1) year following such termination in any city,
town or county in which the Bank and/or the Company has an office or has filed
an application for regulatory approval to establish an office, determined as of
the effective date of such termination, except as agreed to pursuant to a
resolution duly adopted by the Board. Executive agrees that during such period
and within said cities, towns and counties, Executive shall not work for or
advise, consult or otherwise serve with, directly or indirectly, any entity
whose business materially competes with the depository, lending or other
business activities of the Bank and/or the Company. The parties hereto,
recognizing that irreparable injury will result to the Bank and/or the Company,
its business and property in the event of Executive's breach of this Subsection
10(a) agree that in the event of any such breach by Executive, the Bank and/or
the Company will be entitled, in addition to any other remedies and damages
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available, to an injunction to restrain the violation hereof by Executive,
Executive's partners, agents, servants, employers, employees and all persons
acting for or with Executive. Nothing herein will be construed as prohibiting
the Bank and/or the Company from pursuing any other remedies available to the
Bank and/or the Company for such breach or threatened breach, including the
recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Bank and affiliates
thereof, as it may exist from time to time, is a valuable, special and unique
asset of the business of the Bank. Executive will not, during or after the term
of his employment, disclose any knowledge of the past, present, planned or
considered business activities of the Bank or affiliates thereof to any person,
firm, corporation, or other entity for any reason or purpose whatsoever.
Notwithstanding the foregoing, Executive may disclose any knowledge of banking,
financial and/or economic principles, concepts or ideas which are not solely and
exclusively derived from the business plans and activities of the Bank, and
Executive may disclose any information regarding the Bank or the Company which
is otherwise publicly available. In the event of a breach or threatened breach
by the Executive of the provisions of this Section 10, the Bank will be entitled
to an injunction restraining Executive from disclosing, in whole or in part, the
knowledge of the past, present, planned or considered business activities of the
Bank or affiliates thereof, or from rendering any services to any person, firm,
corporation, other entity to whom such knowledge, in whole or in part, has been
disclosed or is threatened to be disclosed. Nothing herein will be construed as
prohibiting the Bank from pursuing any other remedies available to the Bank for
such breach or threatened breach, including the recovery of damages from
Executive.
11. SOURCE OF PAYMENTS
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank. The Company, however, guarantees
payment and provision of all amounts and benefits due hereunder to Executive
and, if such amounts and benefits due from the Bank are not timely paid or
provided by the Bank, such amounts and benefits shall be paid or provided by the
Company.
12. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between the Bank or any
predecessor of the Bank and Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to the Executive
of a kind elsewhere provided. No provision of this Agreement shall be
interpreted to mean that Executive is subject to receiving fewer benefits than
those available to him without reference to this Agreement.
13. NO ATTACHMENT
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
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(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and the Bank and their respective successors and assigns.
14. MODIFICATION AND WAIVER
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
15. REQUIRED PROVISIONS
(a) Notwithstanding anything herein contained to the contrary, any payments
to the Executive by the Company are subject to and conditioned upon their
compliance with Section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C.
ss. 1828(k), and the regulations promulgated thereunder in 12 C.F.R. Part 359.
16. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
17. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
18. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Illinois, but
only to the extent not superseded by federal law.
19. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration in accordance with the
rules of the American Arbitration Association then in effect. Judgment may be
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entered on the arbitrator's award in any court having jurisdiction; provided,
however, that Executive shall be entitled to seek specific performance of his
right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
20. PAYMENT OF LEGAL FEES
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Bank, provided that the dispute or interpretation has been
settled by Executive and the Bank or resolved in the Executive's favor, and such
payment or reimbursement shall occur no later than two and one-half months after
the dispute is settled or resolved in the Executive's favor.
21. INDEMNIFICATION
The Bank shall provide Executive (including his heirs, executors and
administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense, or in lieu thereof, shall indemnify
Executive (and his heirs, executors and administrators) to the fullest extent
permitted under federal law against all expenses and liabilities reasonably
incurred by him in connection with or arising out of any action, suit or
proceeding in which he may be involved by reason of his having been a director
or officer of the Bank (whether or not he continues to be a director or officer
at the time of incurring such expenses or liabilities), such expenses and
liabilities to include, but not be limited to, judgments, court costs and
attorneys' fees and the cost of reasonable settlements (such settlements must be
approved by the Board of Directors of the Bank). If such action, suit or
proceeding is brought against Executive in his capacity as an officer or
director of the Bank, however, such indemnification shall not extend to matters
as to which Executive is finally adjudged to be liable for willful misconduct in
the performance of his duties. No Indemnification shall be paid that would
violate 12 U.S.C. ss. 1828(k) or any regulations promulgated thereunder.
22. SUCCESSOR TO THE BANK
The Bank shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank or the Company, expressly
and unconditionally to assume and agree to perform the Bank's obligations under
this Agreement, in the same manner and to the same extent that the Bank would be
required to perform if no such succession or assignment had taken place.
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SIGNATURES
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed and
their seals to be affixed hereunto by its duly authorized officer, and Executive
has signed this Agreement, on the day and date first above written.
JACKSONVILLE SAVINGS BANK
September 2, 2008 By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------- ----------------------------
Date Chairman of the Board
EXECUTIVE
September 2, 2008 By: /s/ Xxxxxxx X. Xxxx
-------------------------------- ----------------------------
Date Xxxxxxx X. Xxxx
