Exhibit 10.b
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), is made and entered into
as of the 21st day of January 1997, by and between PINNACLE BANK, an Illinois
bank with its main office located in Cicero, Illinois ("Pinnacle"), PINNACLE
BANC GROUP, INC., an Illinois bank holding company with its main office
located in Oakbrook, Illinois (the "Banc"), and Xxxxxxx X. Xxxxxxx (the
"Executive").
RECITALS
A. The Executive is currently serving as the President of
Pinnacle, a wholly owned subsidiary of the Banc. For a number of years he
has borne significant management responsibilities for Pinnacle and for the
Banc.
B. The Banc desires that Pinnacle continue to employ the Executive
as an Officer of Pinnacle and the Executive is willing to continue such
employment upon the terms and conditions set forth in this Agreement.
C. Pinnacle recognizes that circumstances may arise in which a
change of control in Pinnacle or all of its subsidiaries through acquisition
or otherwise may occur thereby causing uncertainty of employment without
regard to the competence or past contributions of the Executive which
uncertainty may result in the loss of valuable services of the Executive for
the benefit of Pinnacle. Pinnacle and the Executive wish to provide
reasonable security to the Executive against changes in the employment
relationship if there is any such change in control.
D. The Banc joins in this Agreement to assure the Executive that
the Banc will honor the obligations of Pinnacle set forth in paragraph 5e
hereof if Pinnacle fails to do so.
AGREEMENTS
In consideration of the premises and of the covenants and agreements
hereinafter contained, it is covenanted and agreed by and between the parties
hereto as follows:
1. POSITION AND DUTIES. Pinnacle hereby employs the Executive as the
President of Pinnacle or in such other senior
executive capacity as shall be mutually agreed between Pinnacle and the
Executive. During the period of the Executive's employment hereunder, the
Executive shall devote his best efforts and full business time, energy,
skills and attention to the business and affairs of Pinnacle and the Banc.
The Executive shall have the powers necessary to perform his duties and shall
be provided such supporting services, staff, secretarial and other assistance
as shall be reasonably necessary and appropriate in the light of such duties.
2. COMPENSATION. As compensation for the services to be provided by the
Executive hereunder, the Executive shall receive the following compensation and
be eligible for other benefits:
a. BASE COMPENSATION. The Executive shall receive an annual salary
as determined from time to time by the Board of Directors of Pinnacle. Said
salary shall be subject to review annually commencing in 1998.
b. INCENTIVE COMPENSATION. In addition to the salary provided for
in Section 2(a) hereof, Pinnacle may pay incentive compensation to the Executive
in recognition for services rendered by the Executive which Pinnacle deems, in
its discretion, to be extraordinary (such payments, collectively "Incentive
Compensation.")
c. OTHER BENEFITS. The Executive shall be entitled, to the extent
he is eligible therefore, to participate in all plans and benefits generally
accorded to employees of Pinnacle.
d. WITHHOLDING. Pinnacle shall be entitled to withhold from amounts
payable to the Executive hereunder, any federal, state or local withholding or
other taxes or charges which from time to time it is required to withhold.
Pinnacle shall be entitled to rely upon the opinion of its legal counsel with
regard to any question concerning the amount or requirement of any such
withholding.
e. VACATIONS. The Executive shall be entitled to such vacation time
annually as is regularly made available to other officers of Pinnacle pursuant
to the regular vacation policy of Pinnacle, which vacation shall be taken at
such time or times as are mutually agreed to by Pinnacle and the Executive.
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3. REIMBURSEMENT OF EXPENSES. The Executive shall be reimbursed, upon
submission of appropriate vouchers and support documentation, for all travel,
entertainment and other out-of-pocket expenses reasonably and necessarily
incurred by the Executive in the performance of his duties hereunder which are
consistent with Pinnacle's policies and practices.
4. CONFIDENTIALITY AND LOYALTY. The Executive acknowledges that
heretofore or hereafter during the course of his employment he has produced and
may hereafter produce and have access to material, records, data, trade secrets
and information not generally available to the public (collectively,
"Confidential Information") regarding the Banc, Pinnacle and its subsidiaries
and affiliates. Accordingly, during and subsequent to the termination of this
Agreement, the Executive shall hold in confidence and not directly or indirectly
disclose, use, copy, or make lists of any such Confidential Information, except
to the extent that such information is or thereafter becomes lawfully available
from public sources, or such disclosure is authorized in writing by Pinnacle,
required by law or any regulatory agency or judicial authority, or otherwise as
reasonably necessary or appropriate in connection with the performance by the
Executive of his duties hereunder. All records, files, documents and other
materials or copies thereof relating to Pinnacle, shall not be removed from
Pinnacle's premises without its written consent, and shall be promptly returned
to Pinnacle upon termination of the Executive's employment hereunder. The
Executive agrees to abide by Pinnacle's policies, as in effect from time to
time, respecting avoidance of interests conflicting with those of Pinnacle.
5. TERMS AND CONDITIONS.
a. BASIC TERM. This Agreement shall take effect on the date hereof
(the "Effective Date"), and the Executive's employment hereunder shall continue
until terminated upon thirty (30) days prior written notice by either Pinnacle
or the Executive for any reason deemed appropriate by Pinnacle or the Executive
provided however the Executive's employment cannot be terminated by Pinnacle
pursuant to the provisions of this subparagraph upon or after there occurs a
Change of Control as defined by subparagraph E below. Upon termination of
employment pursuant to the provisions of this Agreement, the Executive shall
receive all compensation described in paragraph 2 hereof vested through the
effective date of
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termination of employment and the compensation described in subparagraph e
below if applicable.
b. TERMINATION FOR CAUSE. This Agreement may be terminated by
Pinnacle for cause as defined below. "Cause" shall mean: (i) the Executive's
death or his Disability (as defined below); (ii) a material violation by the
Executive of any applicable law or regulation respecting the business of
Pinnacle; (iii) the Executive being found guilty of a felony, an act of
dishonesty in connection with the performance of his duties as an officer of
Pinnacle or an act which disqualifies the Executive from serving as an officer
of Pinnacle; or (iv) the willful or negligent failure of the Executive to
perform his duties hereunder in any material respect. The Executive shall be
entitled to at least thirty (30) days' prior written notice of Pinnacle's
intention to terminate his employment for cause (except the Executive's death)
specifying the grounds for such termination, the action necessary to cure any
conduct or act of Executive, if curable in the sole judgment of Pinnacle, and
the availability of the opportunity to present to the Board of Directors of
Pinnacle (the "Board") his position regarding any dispute relating to the
existence of such cause.
c. TERMINATION UPON DEATH. If payments are due and owing under this
Agreement at the death of the Executive, payment shall be made to such
beneficiary as the Executive may designate in writing, or failing such
designation, to the executor of his estate, in full settlement and satisfaction
of all claims and demands on behalf of the Executive under this Agreement. Such
payments shall be in addition to any other death benefits provided by Pinnacle
for the benefit of the Executive.
d. TERMINATION UPON DISABILITY. Pinnacle may terminate the
Executive's employment after having been advised by a physician selected by
Pinnacle of the Executive's Disability. For purposes of this Agreement,
"Disability" means a physical or mental infirmity which impairs the Executive's
ability to substantially perform his duties under this Agreement and which
continues for a period of at least 90 consecutive days. The Executive shall be
entitled to the compensation and benefits provided for under this Agreement for
the period in which the Executive is unable to work due to a physical or mental
infirmity and until Pinnacle terminates
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the Executive's employment after having established his Disability.
e. TERMINATION UPON CHANGE OF CONTROL.
i) If the Executive's employment hereunder is terminated by the
Executive or by Pinnacle within one year of a Change in Control (as
defined below), the Executive shall be entitled to immediate receipt from
Pinnacle of a lump sum payment equal to one dollar ($1.00) less than the
sum of: (A) three (3) times the base compensation then payable to the
Executive pursuant to Section 2(a) hereof, plus (B) three (3) times the
average incentive compensation paid to the Executive during the three (3)
previous fiscal years of Pinnacle pursuant to Section 2(b) hereof, plus
(C) three (3) times the value of the contributions that have been made or
credited by Pinnacle for the benefit of the Executive under all employee
retirement plans maintained by Pinnacle for the completed fiscal year of
Pinnacle immediately preceding the termination. In addition, Pinnacle
shall continue to provide coverage for the Executive under the health
program maintained by Pinnacle for a period of twelve (12) months
following termination of the Executive's Employment.
ii) For purposes of this paragraph, the term "Change in Control"
shall mean the following:
(A) The consummation of the acquisition or acquisitions by
any person or affiliated group (as such term is defined
in Section 13 of the Securities Exchange Act of 1934, as
amended (the "1934 Act") other than Xxxx X. Xxxxxxx, his
spouse, his descendants, or their spouses directly or
indirectly, so that the person or group holds beneficial
ownership (within the meaning of Rule 13d-3 promulgated
under the 0000 Xxx) of fifty-one (51%) percent or more
of the combined voting power of the then outstanding
voting securities of Pinnacle or Pinnacle Bank, an
Illinois state bank and wholly owned subsidiary of
Pinnacle (Pinnacle Bank); or
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(B) Approval by Pinnacle's stockholders of: (1) a merger,
consolidation or other transaction involving Pinnacle or
Pinnacle Bank if the persons who are stockholders on the
date the merger or consolidation is approved do not, on
the first date following such merger or consolidation
and as a result thereof, own, directly or indirectly,
more than sixty-seven percent (67%) of the combined
voting power of the then outstanding voting securities
of the entity resulting from such merger, consolidation
or other transaction and in substantially the same
proportion as their ownership of the combined voting
power of Pinnacle's voting securities outstanding on the
date such merger, consolidation or other transaction is
approved; or (2) a complete liquidation or dissolution
or an agreement for the sale or other disposition of all
or substantially all of the assets of Pinnacle or
Pinnacle Bank; or
(C) A sale by Pinnacle of all of the stock of all banking
subsidiaries of Pinnacle and their affiliates.
iii) Notwithstanding the foregoing, a Change in Control shall
not be deemed to occur solely because fifty-one percent (51%) or more of
the combined voting power of the then outstanding securities of Pinnacle
is acquired by: (A) a trustee or other fiduciary holding securities under
one or more employee benefit plans maintained for employees of Pinnacle;
or (B) any Affiliate of Pinnacle (as defined below).
iv) To the extent Pinnacle fails to pay the Executive the
payments due him as a result of a Change of Control, Banc will make said
payments to the Executive.
f. NOT AN EXCESS PARACHUTE PAYMENT. It is the intention of Pinnacle
and the Executive that no portion of any
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payment under this Agreement, or payments to or for the benefit of the
Executive under any other agreement or plan, be deemed to be an "Excess
Parachute Payment" as defined in Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), or its successors. It is agreed that the
present value of and payments to or for the benefit of the Executive in the
nature of compensation, receipt of which is contingent on a Change of Control
of Pinnacle (as "Change of Control" is defined in this Agreement), and to
which Section 280G of the Code applies (in the aggregate "Total Payments")
shall not exceed an amount equal to one dollar less than the maximum amount
which Pinnacle may pay without loss of deduction under Section 280G(a) of the
Code. Present value for purposes of this Agreement shall be calculated in
accordance with Section 280G(d)(4) of the Code. Within sixty (60) days
following the earlier of (A) the delivery by the Executive of notice of
termination or (B) the delivery of notice to the Executive from Pinnacle of
its belief that there is a payment or benefit due the Executive which will
result in an excess parachute payment as defined in Section 280G of the Code,
the Executive and Pinnacle, at Pinnacle's expense, shall obtain the opinion
of such legal counsel and certified public accountants as are selected by
Pinnacle (notwithstanding the fact that such persons have acted or may also
be acting as the legal counsel or certified public accountants for Pinnacle),
which opinions need not be unqualified, which sets forth (A) the amount of
the Base Period Income (as defined in Section 280G of the Code) of the
Executive, (B) the present value of Total Payments and (C) the amount and
present value of any Excess Parachute Payments. If such opinions conclude
that there would be an Excess Parachute Payment, the payment hereunder or any
other payment determined to be includable in Total Payments shall be
modified, reduced or eliminated as specified by the Executive in writing
delivered to Pinnacle within thirty (30) days of his receipt of such opinions
or, if the Executive fails to so notify Pinnacle, then as Pinnacle shall
reasonably determine, so that under the basis of calculation set forth in
such opinions there will be no Excess Parachute Payment. The provisions of
this subparagraph, including the calculations, notices and opinions provided
for herein shall be based upon the conclusive presumption that (A) the
compensation and benefits provided for in Section 2 hereof and (B) any other
compensation earned by the Executive pursuant to Pinnacle's compensation
programs which would have been paid in any event, are reasonable compensation
for services rendered, even though the timing of such payment is triggered by
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the Change of Control; provided, however, that if any such counsel or
accountants so request in connection with the opinions required by this
subparagraph, the Executive and Pinnacle shall obtain, at Pinnacle's expense,
and the counsel or accountants may rely on in providing its opinion, the
advice of a firm of recognized executive compensation consultants as to the
reasonableness of any item of compensation to be received by the Executive.
If the provisions of Section 280G and 4999 of the Code are repealed without
succession, this subparagraph shall be of no further force or effect.
g. REGULATORY SUSPENSION AND TERMINATION.
i) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of Pinnacle's affairs by a notice
served under Section 8(e)(3)(12 U.S.C. Section 1818(e)(3)) or 8(g)(12 U.S.C.
Section 1818(g)) of the Federal Deposit Insurance Act, as amended, Pinnacle's
obligations under this Agreement shall be suspended as of the date of service,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, Pinnacle may in its discretion (A) pay the Executive all or part of
the compensation withheld while their contract obligations were suspended and
(B) reinstate (in whole or in part) any of the obligations which were suspended.
ii) If the Executive is removed and/or permanently prohibited
from participating in the conduct of Pinnacle's affairs by an order issued under
Section 8(e)(12 U.S.C. Section 1818(e)) or 8(g)(12 U.S.C. Section 1818(g)) of
the Federal Deposit Insurance Act, as amended, all obligations of Pinnacle under
this Agreement shall terminate as of the effective date of the order.
iii) If Pinnacle is in default as defined in Section 3(x)(12
U.S.C. Section 1813(x)(1)) of the Federal Deposit Insurance Act, as amended, all
obligations of Pinnacle under this Agreement shall terminate as of the date of
default, but this paragraph shall not affect any vested rights of the
contracting parties.
iv) All obligations of Pinnacle under this Agreement shall be
terminated, except to the extent determined that continuation of the Agreement
is necessary for the continued
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operation of the institution by the Federal Deposit Insurance Corporation
(the "FDIC"), at the time the FDIC enters into an agreement to provide
assistance to or on behalf of Pinnacle under the authority contained in
Section 13(c)(12 U.S.C. Section 1823(c)) of the Federal Deposit Insurance
Act, as amended, or when Pinnacle is determined by the FDIC to be in an
unsafe or unsound condition. Any rights of the parties that have already
vested, however, shall not be affected by such action.
6. NON-COMPETITION COVENANT.
a. RESTRICTIVE COVENANT. Pinnacle and the Executive have jointly
reviewed the lists of depositors and borrowers, and the operations of
Pinnacle's subsidiaries and have agreed that the primary service area of
Pinnacle's subsidiaries' lending and deposit taking functions extends to an
area encompassing a ten mile radius from the main office of Pinnacle Bank and
or any branch office of Pinnacle Bank and its subsidiaries. Therefore, as an
essential ingredient of and in consideration of this Agreement and the
payment of the amounts described in Sections 2 and 5 hereof, the Executive
hereby agrees that, except with the express prior written consent of
Pinnacle, for a period of one (1) year after the termination of the
Executive's employment with Pinnacle (the "Restrictive Period"), he will not
directly or indirectly compete with the business of Pinnacle, including, but
not by way of limitation, by directly or indirectly owning, managing,
operating, controlling, financing, or by directly or indirectly serving as an
employee, officer or director of or consultant to, or by soliciting or
inducing, or attempting to solicit or induce, any employee or agent of
Pinnacle to terminate employment with Pinnacle and become employed by any
person, firm, partnership, corporation, trust or other entity which owns or
operates, a bank, savings and loan association, credit union or similar
financial institution (a "Financial Institution") within a ten mile radius of
the main office of Pinnacle Bank or any branch office of Pinnacle Bank and
any of its subsidiaries existing at the time of termination (the "Restrictive
Covenant"). If the Executive violates the Restrictive Covenant and Pinnacle
brings legal action for injunctive or other relief, Pinnacle shall not, as a
result of the time involved in obtaining such relief, be deprived of the
benefit of the full period of the Restrictive Covenant. Accordingly, the
Restrictive Covenant shall be deemed to have the duration specified in this
Section 6(a) computed from the date the relief is granted but
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reduced by the time between the period when the Restrictive Period began to
run and the date of the first violation of the Restrictive Covenant by the
Executive. The foregoing Restrictive Covenant shall not prohibit the
Executive from owning directly or indirectly capital stock or similar
securities which are listed on a securities exchange or quoted on a national
securities exchange which do not represent more than five percent (5%) of the
outstanding capital stock of any Financial Institution.
b. REMEDIES FOR BREACH OF RESTRICTIVE COVENANT. The Executive
acknowledges that the restrictions contained in Sections 4 and 6(a) of this
Agreement are reasonable and necessary for the protection of the legitimate
business interests of Pinnacle, that any violation of these restrictions would
cause substantial injury to Pinnacle and such interests, that Pinnacle would not
have entered into this Agreement with the Executive without receiving the
additional consideration offered by the Executive in binding himself to these
restrictions and that such restrictions were a material inducement to Pinnacle
to enter into this Agreement. If there is any violation or threatened violation
of these restrictions, Pinnacle, in addition to and not in limitation of, any
other rights, remedies or damages available to Pinnacle under this Agreement or
otherwise at law or in equity, shall be entitled to preliminary and permanent
injunctive relief to prevent or restrain any such violation by the Executive and
any and all persons directly or indirectly acting for or with him, as the case
may be.
7. INTERCORPORATE TRANSFERS. If the Executive shall be voluntarily
transferred to a subsidiary or an Affiliate of Pinnacle, such transfer shall not
be deemed to terminate or modify this Agreement and the employing corporation to
which the Executive shall have been transferred shall, for all purposes of this
Agreement, be construed as standing in the same place and stead as Pinnacle as
of the date of such transfer. For purposes of this Agreement, an Affiliate of
Pinnacle shall mean any corporation, partnership or entity directly or
indirectly controlling, controlled by or under common control with Pinnacle.
8. INTEREST IN ASSETS. Neither the Executive nor his estate shall
acquire hereunder any rights in funds or assets of Pinnacle, otherwise than by
and through the actual payment of amounts payable hereunder; nor shall the
Executive or his estate have any power to
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transfer, assign, anticipate, hypothecate or otherwise encumber in advance
any of said payments; nor shall any of such payments be subject to seizure
for the payment of any debt, judgment, or be transferable by operation of law
in the event of bankruptcy, insolvency or otherwise of the Executive.
9. GENERAL PROVISIONS.
a. SUCCESSORS; ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Executive, Pinnacle and his and its respective
personal representatives, successors and assigns, and any successor or assign of
Pinnacle shall be deemed the "Pinnacle" hereunder. Pinnacle shall require any
successor to all or substantially all of the business and/or assets of Pinnacle,
whether directly or indirectly, by purchase, merger, consolidation, acquisition
of stock, or otherwise, by an agreement in form and substance satisfactory to
the Executive, expressly to assume and agree to perform this Agreement in the
same manner and to the same extent as Pinnacle would be required to perform if
no such succession had taken place.
b. ENTIRE AGREEMENT; MODIFICATIONS. This Agreement constitutes the
entire agreement between the parties respecting the subject matter hereof, and
supersedes all prior negotiations, undertakings, agreements and arrangements
with respect thereto, whether written or oral. Except as otherwise explicitly
provided herein, this Agreement may not be amended or modified except by written
agreement signed by the Executive and Pinnacle.
c. ENFORCEMENT AND GOVERNING LAW. The provisions of this Agreement
shall be regarded as divisible and separate; if any of said provisions should be
declared invalid or unenforceable by the court of competent jurisdiction, the
validity and enforceability of the remaining provisions shall not be affected
thereby. This Agreement shall be construed and the legal relations of the
parties hereto shall be determined in accordance with the laws of the state of
Illinois without reference to the law regarding conflicts of law.
d. 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,
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shall be deemed a waiver of any similar or dissimilar provisions or
conditions at the same time or any prior or subsequent time.
e. 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 Pinnacle, addressed to the principal headquarters of
Pinnacle, attention: Chairman of the Board; or, if to the Executive, to the
address set forth below the Executive's signature on this Agreement, or to such
other address as the party to be notified shall have given to the other.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ATTEST: PINNACLE BANC GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxx
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Name: /s/ Xxxxxxx X. Xxxxx Name: Xxxx X. Xxxxxxx
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Title: Secretary Title: Chairman
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PINNACLE BANK
By: /s/ Xxxx X. Xxxxxxx, Xx.
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Name: Xxxx X. Xxxxxxx, Xx.
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Title: Chairman
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/s/ Xxxxxxx X. Xxxxxxx
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(Signature of Executive)
0000 Xxxx Xxxxxx
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Xxxxx Xxxxxx, Xxxxxxxx 00000
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(Address of Executive)
