EXHIBIT 10.2
XXXXXX X. XXXXXX
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and entered into
as of the 7th day of November, 2004, by and between MAIN STREET TRUST, INC., a
Delaware Corporation ("MSTI") and XXXXXX X. XXXXXX ("EMPLOYEE") and shall be
effective immediately upon the consummation of the merger of MSTI, Citizens
First Financial Corp. and Citizens Acquisition LLC (the "EFFECTIVE DATE").
RECITALS
A. MSTI desires to employ Employee as a Senior Vice President of MSTI.
B. Employee desires to be employed as a Senior Vice President of MSTI.
C. MSTI and Employee have made commitments to each other on a variety of
important issues concerning Employee's employment, including the performance
that will be expected of Employee, the compensation that Employee will be paid,
how long and under what circumstances Employee will remain employed, and the
financial details relating to any decision that either Employee or MSTI might
ever make to terminate Employee's employment.
D. MSTI and Employee believe that the commitments they have made to each
other should be memorialized in writing, and that is the purpose of this
Agreement.
THEREFORE, MSTI and Employee agree as follows:
AGREEMENTS
SECTION 1. TERM. The term of this Agreement and Employee's employment
hereunder will commence as of the Effective Date and terminate as of December
31, 2005, unless earlier terminated as provided in this Agreement.
SECTION 2. EMPLOYMENT.
(a) POSITIONS. Subject to the terms of this Agreement, MSTI hereby
employs Employee, and Employee agrees to serve as a Senior Vice President
of MSTI or in such other capacities with MSTI or its subsidiaries as the
Board of Directors deems appropriate in its sole discretion, under the
terms and conditions set forth herein as of the Effective Date.
(b) DUTIES. Employee's duties, authority and responsibilities as a
Senior Vice President of MSTI include all duties, authority and
responsibilities customarily held by such officer of comparable companies,
subject always to the charter and bylaw provisions and the policies of MSTI
and the directions of the President and Chief Executive Officer of MSTI.
Notwithstanding any other provision of this Agreement, MSTI shall not be
under any obligation to provide Employee with any work, and MSTI may at any
time suspend Employee and/or exclude him from any and all premises of MSTI
and its affiliates, provided that Employee shall continue to be treated as
an employee of MSTI, and his Base Salary (as defined below) and any
other benefits shall continue to be paid or provided by MSTI in accordance
with the terms of this Agreement. If requested by MSTI in connection with
the placement of Employee on leave or suspension of Employee from MSTI's
premises pursuant to the preceding sentence, Employee agrees to resign from
the position he holds as a Senior Vice President of MSTI.
(c) CARE AND LOYALTY. Employee will devote Employee's best efforts and
full business time, energy, skills and attention to the business and
affairs of MSTI and its subsidiaries, and will faithfully and loyally
discharge Employee's duties to MSTI and its subsidiaries.
(d) TRANSFERS. The Board may, in its sole discretion, cause Employee's
employment to be transferred from MSTI to any wholly owned subsidiary, in
which case all references in this Agreement to "MSTI" will be deemed to
refer to such subsidiary, provided that Employee shall not be required to
relocate to an MSTI office outside of Bloomington, Illinois.
SECTION 3. COMPENSATION. MSTI will compensate Employee for Employee's
services as follows during the term of this Agreement and Employee's employment
hereunder:
(a) BASE COMPENSATION. Employee's annual base salary will be $100,000
("BASE SALARY").
(b) REIMBURSEMENT OF EXPENSES. MSTI will reimburse Employee for all
travel, entertainment and other out-of-pocket expenses that Employee
reasonably and necessarily incurs in the performance of Employee's duties.
Employee will document these expenses to the extent necessary to comply
with all applicable laws and internal policies.
(c) OTHER BENEFITS. Employee will be entitled to participate in all
plans and benefits that are now or later made available by MSTI to all its
employees. Employee shall be entitled to at least four (4) weeks of
vacation time under MSTI's vacation policy.
(d) WITHHOLDING. Employee acknowledges that MSTI may withhold any
applicable federal, state or local withholding or other taxes from payments
that become due or allowances that are provided to Employee.
SECTION 4. TERMINATION.
(a) TERMINATION WITHOUT CAUSE. Either MSTI or Employee may terminate
this Agreement and Employee's employment hereunder for any reason by
delivering written notice of termination to the other party no less than
ninety (90) days before the effective date of termination, which date will
be specified in the notice of termination. If Employee voluntarily
terminates Employee's employment under this Agreement, then MSTI shall only
be required to pay Employee such Base Salary as shall have accrued through
the effective date of such termination and MSTI shall have no further
obligations to Employee.
(b) TERMINATION FOR CAUSE. MSTI may terminate this Agreement and
Employee's employment hereunder for Cause by delivering written notice of
termination to Employee no less than thirty (30) days before the effective
date of termination. "Cause" for termination will exist if: (i) Employee
engages in one or more unsafe and unsound banking practices or material
violations of a law or regulation applicable to MSTI or its subsidiaries,
any
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repeated violations of a policy of MSTI after being warned in writing
by the Board and/or a senior officer not to violate such policy, any single
violation of a policy of MSTI if such violation materially and adversely
affects the business or affairs of MSTI, or a direction or order of the
Board and/or one of Employee's senior officers; (ii) Employee engages in a
breach of fiduciary duty or act of dishonesty involving the affairs of
MSTI; (iii) Employee is removed or suspended from banking pursuant to
Section 8(e) of the Federal Deposit Insurance Act or any other applicable
State or Federal law; or (iv) Employee commits a material breach of
Employee's obligations under this Agreement. If Employee's employment is
terminated pursuant to this Section 4(b), then MSTI shall only be required
to pay Employee such Base Salary as shall have accrued through the
effective date of such termination and MSTI shall have no further
obligations to Employee.
(c) TERMINATION UPON DISABILITY. MSTI will not terminate this
Agreement and Employee's employment hereunder if Employee becomes disabled
within the meaning of MSTI's then current employee disability program or,
at MSTI's election, as determined by a physician selected by MSTI, unless
as a result of such disability, Employee is unable to perform Employee's
duties with the requisite level of skill and competence for a period of six
(6) consecutive months. Thereafter, MSTI may terminate this Agreement for
Cause in accordance with Subsection 4(b)(v).
(d) TERMINATION UPON DEATH. This Agreement will terminate if Employee
dies during the term of this Agreement, effective on the date of Employee's
death. Any payments that are owing to Employee under this Agreement or
otherwise at the time of Employee's death will be made to whomever Employee
may designate in writing as Employee's beneficiary, or absent such a
designation, to the executor or administrator of Employee's estate.
(e) SEVERANCE BENEFITS. MSTI will pay severance benefits to Employee
as follows:
(i) If this Agreement and Employee's employment hereunder are
terminated by MSTI without Cause pursuant to Section 4(a), MSTI will
pay Employee an amount equal to Employee's then applicable annual Base
Salary through the remaining term of this Agreement as provided in
Section 1 (the "SEVERANCE PAYMENT"). If the effective date of
termination occurs before the last day of the term of this Agreement
as provided in Section 1, the Severance Payment will also include the
value of the contributions that would have been made to Employee or
for Employee's benefit under all applicable retirement and other
employee benefit plans had Employee remained in MSTI's employ through
the last day of the term. MSTI will also continue to provide Employee
and Employee's dependents, at the expense of MSTI, with continuing
coverage under existing health programs for the remaining term of this
Agreement (or such shorter period during which Employee is eligible
for and elects coverage under COBRA, as defined below), provided that,
to the extent Employee paid a portion of the premium for such benefit
while employed Employee shall continue to pay such portion during the
period of continuation hereunder and provided further, that if such
benefit is subject to the health care continuation rules of the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") then
any period of continuation hereunder shall be credited against the
continuation rights under COBRA and Employee will be required to
complete all COBRA election and other forms.
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(ii) All payments that become due to Employee under this Section
4(e) will be made in equal monthly installments commencing on the
first day of the month immediately succeeding Employee's termination
of employment and continuing through the remaining term of this
Agreement, unless MSTI elects to make those payments in one (1) lump
sum. MSTI will be obligated to make all payments that become due to
Employee under this Section 4(e) whether or not Employee obtains other
employment following termination or takes steps to mitigate any
damages that Employee claims to have sustained as a result of
termination. The payments and other benefits provided for in this
Section 4(e) are intended to supplement any compensation or other
benefits that have accrued or vested with respect to Employee or for
Employee's account as of the effective date of termination.
(iii) MSTI may elect to defer any payments that may become due to
Employee under this Section 4(e) if, at the time the payments become
due, MSTI is not in compliance with any regulatory-mandated minimum
capital requirements or if making the payments would cause MSTI's
capital to fall below such minimum capital requirements. In this
event, MSTI will resume making the payments as soon as it can do so
without violating such minimum capital requirements.
(f) PAYMENT EQUALIZATION. If MSTI is paying, or in the case of a lump
sum, has paid, Employee a Severance Payment under Section 4(e), then
Employee agrees to not seek or apply for unemployment compensation under
the Illinois Unemployment Act 820 ILCS 405/100 ET SEQ. or any other state
or federal unemployment compensation law at any time prior to a date
following the final payment made hereunder or with respect to the period
during which such payments were or were to be made until the final payment
is made.
(g) RELEASE. As a condition to MSTI's obligation to pay any Severance
Payment under Section 4(e), Employee agrees that Employee will execute a
general release of MSTI and its affiliates, substantially in the form
attached hereto as EXHIBIT A.
SECTION 5. CONFIDENTIALITY. Employee acknowledges that the nature of
Employee's employment will require that Employee produce and have access to
records, data, trade secrets and information that are not available to the
public regarding MSTI and its subsidiaries and affiliates ("CONFIDENTIAL
INFORMATION"). Employee will hold in confidence and not directly or indirectly
disclose any Confidential Information to third parties unless disclosure becomes
reasonably necessary in connection with Employee's performance of Employee's
duties hereunder, or the Confidential Information lawfully becomes available to
the public from other sources, or Employee is authorized in writing by MSTI to
disclose it, or Employee is required to make disclosure by a law or pursuant to
the authority of any administrative agency or judicial body. All Confidential
Information and all other records, files, documents and other materials or
copies thereof relating to the business of MSTI or any of its subsidiaries or
affiliates that Employee prepares or uses will always be the sole property of
MSTI. Employee will promptly return all originals and copies of such
Confidential Information and other records, files, documents and other materials
to MSTI if Employee's employment with MSTI is terminated for any reason.
SECTION 6. NON-COMPETITION COVENANT.
(a) RESTRICTIVE COVENANT. MSTI and Employee have jointly reviewed the
customer lists and operations of MSTI and agree that MSTI's primary service
area for its
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lending, deposit and wealth management activities encompasses the fifty
(50) mile radii from each of MSTI's main office in Champaign, Illinois and
the branch offices of MSTI and its subsidiary banks. Employee agrees that,
for a period of one (1) year after the termination of this Agreement,
Employee will not, without MSTI's prior written consent, directly or
indirectly Compete with MSTI. For the purposes of Section 6(a):
(i) "COMPETE" means directly or indirectly owning, managing,
operating or controlling a Competitor, or directly or indirectly
serving as an employee, officer or director of or a consultant to a
Competitor, or soliciting or inducing any employee or agent of MSTI to
terminate employment with MSTI or any of its subsidiaries and become
employed by a Competitor, or by soliciting or inducing any customer,
wherever located, of MSTI or its subsidiary banks with whom Employee
had contact during Employee's employment to modify or terminate its
relationship with the Company or its subsidiary banks.
(ii) "COMPETITOR" means any person, firm, partnership,
corporation, trust or other entity that owns, controls or is a bank,
savings and loan association, credit union or similar financial
institution or financial planning, brokerage or investment firm
(collectively, a "FINANCIAL INSTITUTION") that is physically located
and conducts lending, deposit and wealth management activities within
the fifty (50) mile radii from each of MSTI's main office in
Champaign, Illinois and of its subsidiary banks.
(b) SUCCESSORS. In the event that a successor to MSTI succeeds to or
assumes MSTI's rights and obligations under this Agreement, Section 6(a)
will apply only to the primary service areas of MSTI as they existed
immediately before the succession or assumption occurred and will not apply
to any of the successor's other offices.
(c) INVESTMENT EXCEPTION. Section 6(a) will not prohibit Employee from
directly or indirectly owning or acquiring any capital stock or similar
securities that are listed on a securities exchange or quoted on the NASDAQ
and do not represent more than five percent (5%) of the outstanding capital
stock of any Financial Institution.
(d) INJUNCTIVE RELIEF. Employee agrees that a violation of this
Section 6 would result in direct, immediate and irreparable harm to MSTI,
and in such event, agrees that MSTI, in addition to its other right and
remedies, would be entitled to injunctive relief enforcing the terms and
provisions of this Section 6.
SECTION 7. GENERAL PROVISIONS.
(a) SUCCESSORS; ASSIGNMENT. This Agreement will be binding upon and
inure to the benefit of Employee, MSTI and their respective personal
representatives, successors and assigns. For the purposes of this
Agreement, any successor or assign of MSTI shall be deemed to be "MSTI."
MSTI will require any successor or assign of MSTI or any direct or indirect
purchaser or acquiror of all or substantially all of the business, assets
or liabilities of MSTI, whether by transfer, purchase, merger,
consolidation, stock acquisition or otherwise, to assume and agree in
writing to perform this Agreement and MSTI's obligations hereunder in the
same manner and to the same extent as MSTI would have been required to
perform them if no such transaction had occurred.
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(b) ENTIRE AGREEMENT; SURVIVAL. This Agreement constitutes the entire
agreement between Employee and MSTI concerning the subject matter hereof,
and supersedes all prior negotiations, undertakings, agreements and
arrangements with respect thereto, whether written or oral (including but
not limited to any employment agreements with [CITIZENS FIRST] or any of
its subsidiaries). The provisions of this Agreement will be regarded as
divisible and separate; if any provision is ever declared invalid or
unenforceable, the validity and enforceability of the remaining provisions
will not be affected. In the event any provision of this Agreement
(including, but not limited to, any provision of the covenant not to
compete set forth in Section 6) is held to be overbroad as written, such
provision shall be deemed to be amended to narrow the application of such
provision to the extent necessary to make such provision enforceable
according to applicable law. This Agreement may not be amended or modified
except by a writing signed by Employee and MSTI. The parties acknowledge
and agree that the obligations under Section 5 (Confidentiality) and
Section 6 (Non-Competition Covenant) shall survive the termination of this
Agreement.
(c) GOVERNING LAW AND ENFORCEMENT. This Agreement will 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 at a location selected by MSTI within fifty (50) miles from
Champaign, Illinois, in accordance with the rules of the American
Arbitration Association.
(e) LEGAL FEES. All reasonable legal fees paid or incurred in
connection with any dispute or question of interpretation relating to this
Agreement shall be paid to the party who is successful on the merits by the
other party.
(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 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 MSTI, addressed to the principal headquarters of
MSTI, attention: President and Chief Executive Officer; or, if to Employee,
to the address set forth below Employee's signature on this Agreement, or
to such other address as the party to be notified shall have given to the
other.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
MAIN STREET TRUST, INC.
By: /s/ Van X. Xxxxxxx /s/ Xxxxxx X. Xxxxxx
-------------------------------- --------------------------------
Name Van X. Xxxxxxx Xxxxxx X. Xxxxxx
--------------------------
Title President 000 Xxxxxxx Xxxxx
------------------------- --------------------------------
Xxxxxxxxxxx, XX 00000
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Address
Signature page to DS Employment Agreement
EXHIBIT A
AGREEMENT AND RELEASE
This Agreement and Release (this "AGREEMENT") is made and entered into
as of this _______ day of ___________, ______, by and between
_______________________ (hereinafter referred to as "EMPLOYEE") and Main Street
Trust, Inc., (hereinafter referred to as the "EMPLOYER"). In consideration of
the mutual covenants hereinafter set forth, the parties hereto agree as follows:
SECTION 1. SEPARATION. The parties agree that Employee's employment with
the Employer shall end effective ____________________.
SECTION 2. PAYMENT AND BENEFITS. In consideration of the promises made in
this Agreement, the Employer has agreed to pay Employee the compensation and
benefits as provided in the Employment Agreement entered into between Employee
and the Employer on ______________________. Employee expressly agrees,
understands and acknowledges that the pay provided Employee's under this Section
2 constitutes an amount in excess of that which a separated employee of the
Employer would be entitled without entering into this Agreement. Employee
acknowledges that the above pay is being provided by the Employer as
consideration for Employee entering into this Agreement, including the release
of claims and waiver of rights provided in Section 3.
SECTION 3. RELEASE OF CLAIMS AND WAIVER OF RIGHTS. Employee, on Employee's
own behalf and that of Employee's heirs, executors, attorneys, administrators,
successors and assigns, fully releases and discharges the Employer, its
predecessors, successors, subsidiaries, affiliates and assigns, and its and
their directors, officers, trustees, 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 Employer, 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 Employer's policies and
procedures, whether formal or informal, United States or State of Illinois
Constitutions; 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; 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 Employee's employment with the Employer or
other association with the Employer through the date of this Agreement,
including, but not limited to, the termination of Employee's employment with the
Employer, any right of payment for disability or any other statutory or
contractual right of payment 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. Employee represents that Employee
has not assigned or filed any claim, demand, action or charge against the
Employer.
SECTION 4. MUTUAL NON-DISPARAGEMENT. The Employer and Employee agree that,
at all times following the signing of this Agreement, they shall not engage in
any vilification of the other, and shall refrain from making any false,
negative, critical or disparaging statements,
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implied or expressed, concerning the other, including, but not limited to,
management style, methods of doing business, the quality of products and
services, role in the community, or treatment of employees. Employee
acknowledges that the only persons whose statements may be attributed to the
Employer for purposes of this Agreement not to make disparaging statements shall
be each member of the Board of Directors of the Employer and each of Employee's
senior officers. The parties further agree to do nothing that would damage the
other's business reputation or good will.
SECTION 5. REPRESENTATIONS BY EMPLOYEE. Employee warrants that Employee is
legally competent to execute this Agreement and that Employee has not relied on
any statements or explanations made by the Employer or its attorney. Moreover,
Employee hereby acknowledges that Employee has been 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 3. Employee
acknowledges that Employee has been offered at least twenty-one (21) days to
consider this Agreement. After being so advised, and without coercion of any
kind, Employee freely, knowingly, and voluntarily enters into this Agreement.
Employee further acknowledges that Employee may revoke this Agreement within
seven (7) days after Employee has signed this Agreement and further understands
that this Agreement shall not become effective or enforceable until seven (7)
days after Employee has signed this Agreement as evidenced by the date set forth
below Employee's signature (the "Effective Date"). Any revocation must be in
writing and directed to the Employer, _____________________________, __________,
Illinois ___________, Attention: ___________________. If sent by mail, any
revocation must be postmarked within the seven (7)-day period and sent by
certified mail, return receipt requested.] In addition, Employee represents that
Employee has returned all property of the Employer that is in Employee's
possession, custody or control, including all documents, records and tangible
property that are not publicly available and reflect, refer or relate to the
Employer or the Employer's business affairs, operations or customers, and all
copies of the foregoing.
SECTION 6. NO ADMISSIONS. The Employer denies that it or any of its
employees or agents have taken any improper action against Employee, and
Employee agrees that this Agreement shall not be admissible in any proceeding as
evidence of improper action by the Employer or any of their employees or agents.
SECTION 7. CONFIDENTIALITY. Employee and the Employer agree to keep the
existence and the terms of this Agreement confidential, except for Employee's
immediate family members or their legal or tax advisors in connection with
services related hereto and except as may be required by law or in connection
with the preparation of tax returns.
SECTION 8. NON-WAIVER. The Employer's waiver of a breach of this Agreement
by Employee shall not be construed or operate as a waiver of any subsequent
breach by Employee of the same or of any other provision of this Agreement.
IN WITNESS WHEREOF, the undersigned have set their hands the day and year
set forth below their respective signatures.
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Xxxx Xxxxxx Trust, Inc.
By:
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Title: [Employee Name]
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Date: Date:
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