Exhibit 10.6
XXXXX X. XXXXXXX
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), is made and entered into
as of the 24th day of December, 1998 (the "Effective Date"), by and between WEST
SUBURBAN BANCORP, INC., an Illinois corporation (the "Employer"), and XXXXX X.
XXXXXXX, an Illinois resident (the "Executive").
RECITALS
A. The Executive is currently serving as a Vice President of Loans of
West Suburban Bank (the "Bank").
B. The Employer owns all of the issued and outstanding capital stock of
the Bank.
C. The Employer desires to continue to employ the Executive as an
officer of the Bank for a specified term and the Executive is willing to
continue such employment upon the terms and conditions hereinafter set forth.
D. The Employer and the Company recognize that circumstances may arise
in which a change of control of the Employer or the Bank 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, and the Employer, the
Bank and the Executive wish to provide reasonable security to the Executive
against changes in the employment relationship in the event of any such change
of control.
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements hereinafter contained, it is covenanted and agreed by and between
the parties hereto as follows:
AGREEMENTS
1. POSITION AND DUTIES. The Employer hereby employs Executive as a Vice
President of Loans for the Bank, or in such other officer capacity as shall be
mutually agreed between the Employer 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 the Employer. The Executive's duties and authority shall consist of and
include all duties and authority customarily performed and held by persons
holding equivalent positions with business organizations similar in nature and
size to the Employer, as such duties and authority are reasonably defined,
modified and delegated from time to time by either or both of the Boards of
Directors of the Employer or the Company (the "Board"). The Executive shall have
the powers necessary to perform the duties assigned to him and shall be provided
such supporting services, staff and other assistance, office space and
1
accouterments as shall be reasonably necessary and appropriate in the light of
such assigned duties.
2. COMPENSATION. As compensation for the services to be provided by the
Executive hereunder, the Executive shall receive the following compensation,
expense reimbursement and other benefits:
(a) BASE COMPENSATION. The Executive shall receive an aggregate
annual minimum base salary at the rate of one hundred and ten thousand dollars
($110,000) payable in installments in accordance with the regular payroll
schedule of the Employer. Such base salary shall be subject to review annually
commencing in 1999 and shall be maintained or increased during the term hereof
in accordance with the Employer's established management compensation policies
and plans.
(b) CLUB MEMBERSHIP. The Executive shall be reimbursed for the
membership cost, dues and other customary charges at the Xxxxx Creek Country
Club. The reimbursement for the membership cost, and any tax on such amount,
will be limited to a maximum payment amount to the Executive of twenty thousand
dollars ($20,000).
(c) REIMBURSEMENT OF EXPENSES. The Executive shall be reimbursed,
upon submission of appropriate vouchers and supporting documentation, for all
pre-approved travel, entertainment and other out-of-pocket expenses reasonably
and necessarily incurred by the Executive in the performance of his duties
hereunder and shall be entitled to attend pre-approved seminars, conferences and
meetings relating to the business of the Employer consistent with the Employer's
established policies in that regard.
(d) OTHER BENEFITS. The Executive shall be entitled to all
benefits specifically established for him and, when and to the extent he is
eligible therefor, to participate in all plans and benefits generally accorded
to officers of the Employer, including, but not limited to, pension,
profit-sharing, employee stock ownership plan, supplemental retirement,
incentive compensation, bonus, disability income, split-dollar life insurance,
group life, medical and hospitalization insurance, and similar or comparable
plans, and also to perquisites extended to similarly situated officers,
PROVIDED, HOWEVER, that such plans, benefits and perquisites shall be no less
than those made available to all other employees of the Employer.
(e) WITHHOLDING. The Employer shall be entitled to withhold from
amounts payable to the Executive hereunder, any federal, state or local
withholding or other taxes or charges which it is from time to time required to
withhold. The Employer 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.
3. 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 Employer and its subsidiaries and
2
affiliates. Accordingly, during and subsequent to 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 the Employer,
required by a law or any competent administrative agency or judicial authority,
or otherwise as reasonably necessary or appropriate in connection with
performance by the Executive of his duties hereunder. All records, files,
documents and other materials or copies thereof relating to the Employer's
business which the Executive shall prepare or use, shall be and remain the sole
property of the Employer, shall not be removed from the Employer's premises
without its written consent, and shall be promptly returned to the Employer upon
termination of the Executive's employment hereunder. The Executive agrees to
abide by the Employer's reasonable policies, as in effect from time to time,
respecting avoidance of interests conflicting with those of the Employer. In the
event of any violation or threatened violation of these restrictions, the
Employer, in addition to and not in limitation of being relieved of all further
obligations under this Agreement and of any other rights, remedies or damages
available to the Employer 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.
4. TERM AND TERMINATION.
(a) BASIC TERM. The term of this Agreement shall begin on the
Effective Date and end on December 31, 2001, and shall be extended for one (1)
additional year on each December 31 ("Anniversary Date") unless terminated by
either party effective as of the last day of the then current term by written
notice to that effect delivered to the other party not less than sixty (60) days
prior to an Anniversary Date.
(b) AGREEMENT NON-EXTENSION OR EMPLOYMENT TERMINATION BY
EMPLOYER.
(i) In the event of the termination of the Executive's
employment under this Agreement by the Employer prior to the last day of
the then current term for any reason other than a termination in
accordance with the provisions of paragraph (d) of this Section 4, or
the non-extension of this Agreement by the Employer in accordance with
the provisions of paragraph (a) of this Section 4, the Employer shall
continue to pay the Executive the base salary then payable to the
Executive and shall continue to provide coverage for the Executive under
all plans and benefits otherwise provided to officers of the Employer,
unless unable to continue such coverage by law, for the remainder of the
term of this Agreement, provided, however, that in the circumstance
where this Agreement is not extended, the Executive must remain employed
with the Employer to receive such payments and benefits; further
provided, that the continued payment of these amounts by the Employer
shall not offset or diminish any compensation or benefits accrued as of
the date of termination or non-extension.
(ii) In the event this Agreement is not extended in
accordance with the provisions of paragraph (a) of this Section 4, the
Executive may elect to terminate his
3
employment, and upon such election, the Employer shall pay the Executive
a lump sum amount equal to six (6) times the monthly base salary then
payable to the Executive, which payment shall be his sole benefit under
this Section 4. The election by the Executive must be delivered in
writing to the Employer within sixty (60) days of the later of his
receipt of notice of the non-extension of this Agreement or the next
following Anniversary Date. Payment to the Executive will be made within
thirty (30) days of such termination.
(iii) If the Employer is not in compliance with its
minimum capital requirements or if the payments required under
subparagraph (i) or (ii) above would cause the Employer's capital to be
reduced below its minimum capital requirements, such payments shall be
deferred until such time as the Employer is in capital compliance.
(c) CONSTRUCTIVE TERMINATION. If at any time during the term of
this Agreement, except in connection with a termination pursuant to paragraph
(d) of this Section 4, the Executive is Constructively Discharged (as
hereinafter defined) then the Executive shall have the right, by written notice
to the Employer within sixty (60) days of such Constructive Discharge, to
terminate his services hereunder, effective as of thirty (30) days after such
notice, and the Executive shall have no rights or obligations under this
Agreement other than as provided in Sections 3 and 8 hereof. The Executive shall
in such event be entitled to a lump sum payment of compensation and benefits and
continuation of the health, life and disability insurance as if such termination
of his employment was pursuant to subparagraph (b)(i) of this Section 4.
For purposes of this Agreement, the Executive shall be "Constructively
Discharged" upon the occurrence of any one of the following events:
(i) The Executive is not re-elected or is removed from the
positions with the Employer or any affiliate set forth in Section 1
hereof, other than as a result of the Executive's election or
appointment to positions of equal or superior scope and responsibility;
or
(ii) The Executive shall fail to be vested by the Employer
with the powers and authority of his appointed office; or
(iii) The Employer changes the primary employment location
of the Executive to a place that is more than thirty (30) miles from the
primary employment location as of the Effective Date of this Agreement;
or
(iv) The Employer otherwise commits a material breach of
its obligations under this Agreement.
(d) TERMINATION FOR CAUSE. This Agreement and the Executive's
employment hereunder may be terminated for cause as hereinafter defined. "Cause"
shall mean: (i) the Executive's death or his permanent disability, as defined
under the Employer sponsored
4
disability income insurance program, or in the event there is no such program,
the Executive's inability, as a result of physical or mental incapacity,
substantially to perform his duties hereunder for a period of twelve (12)
consecutive months; (ii) a material violation by the Executive of any applicable
material law or regulation respecting the business of the Employer; (iii) the
Executive being found guilty of a felony or an act of dishonesty in connection
with the performance of his duties as an officer of the Employer, or which
disqualifies the Executive from serving as an officer or director of the
Employer; or (iv) the willful or negligent failure of the Executive to perform
his duties hereunder in any material respect. This Agreement may be terminated
immediately for any cause except under (iv) above. The Executive shall be
entitled to at least thirty (30) days' prior written notice of the Employer's
intention to terminate his employment under (iv) above, specifying the grounds
for such termination, a reasonable opportunity to cure any conduct or act, if
curable, alleged as grounds for such termination, and a reasonable opportunity
to present to the Board his position regarding any dispute relating to the
existence of such cause.
(e) TERMINATION UPON DEATH. In the event payments are due and
owing under this Agreement at the death of the Executive, payment shall be made
to such beneficiary as 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. Such payments shall be in
full settlement and satisfaction of all payments provided for in this Agreement.
(f) PAYMENT UPON TERMINATION FOR DISABILITY. The Employer may
terminate this Agreement and the Executive's employment after the Executive is
determined to be permanently disabled under the Employer sponsored disability
income insurance program or by a physician engaged by the Employer. In the event
of a dispute regarding the Executive's disability, each party shall choose a
physician who together will choose a third physician to make a final
determination. The Executive shall be entitled to the compensation and benefits
provided for under this Agreement for any period during the term of this
Agreement and prior to the establishment of the Executive's disability during
which the Executive is unable to work due to a physical or mental infirmity. In
the event of the termination of this Agreement and the Executive's employment
due to the permanent disability of the Executive, the Employer shall continue to
pay the Executive each month the lesser of sixty percent (60%) of the monthly
base salary then payable to the Executive or five thousand dollars ($5,000),
reduced by any amounts received under the Employer sponsored disability income
insurance program, and shall continue to provide coverage for the Executive
under the health and life insurance programs maintained by the Employer until
the earlier of the date the Executive returns to full-time employment, either
with the Employer or another employer, or Executive's death. Notwithstanding
anything contained in this Agreement to the contrary, until the date specified
in a notice of termination relating to the Executive's disability, the Executive
shall be entitled to return to his positions with the Employer as set forth in
this Agreement in which event no disability of the Executive will be deemed to
have occurred.
5
(g) TERMINATION UPON CHANGE OF CONTROL.
(i) In the event of a Change in Control (as defined below)
and the termination of the Executive's employment or this Agreement
under either A or B below, the Executive shall be entitled to a lump sum
payment equal to three (3) times the sum of his annual base salary then
payable and the average of his most recent three (3) years' annual bonus
amounts, if any, subject to the limitations set forth below. The
Employer shall also continue to provide coverage for the Executive under
the health, life and disability insurance programs for three (3) years
following such termination. Payments under this paragraph shall be
subject to the limits of subparagraph (g)(ii) below. The following shall
constitute termination under this paragraph:
A. The Executive terminates his employment by a
written notice to that effect delivered to the Board
within twenty-four (24) months after the Change in
Control.
B. This Agreement is terminated by the Employer,
the Company or the successor of either in contemplation of
or after the Change in Control.
(ii) It is the intention of the Employer and the Executive
that no portion of any 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, 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 the
Employer 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 one hundred
and twenty (120) days following the earlier of (A) the giving of the
notice of termination or (B) the giving of notice by the Employer to the
Executive 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 the Employer, at the
Employer's expense, shall obtain the opinion of such legal counsel and
certified public accountants as the Executive may choose
(notwithstanding the fact that such persons have acted or may also be
acting as the legal counsel or certified public accountants for the
Employer), which opinions need not be unqualified, which sets forth (A)
the amount of the Base Period Income of the Executive, (B) the present
value of Total Payments and (C) the amount and present value of any
excess parachute payments. In the event that such opinions determine
that there would be an excess parachute payment, the payment hereunder
or any other payment determined by such counsel to be includable in
Total Payments shall be modified, reduced or eliminated as specified by
the Executive in writing delivered to the Employer within ninety (90)
days of his receipt of such opinions
6
or, if the Executive fails to so notify the Employer, then as the
Employer shall reasonably determine, so that under the bases 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 the Employer'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 the Change of Control; provided, however, that in the event such
legal counsel so requests in connection with the opinion required by
this subparagraph, the Executive and the Employer shall obtain, at the
Employer's expense, and the legal counsel may rely on in providing the
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. In the event that the provisions of Sections
280G and 4999 of the Code are repealed without succession, this
subparagraph shall be of no further force or effect.
(iii) For purposes of this paragraph, the term "Change in
Control" shall mean the following:
A. The consummation of the acquisition by any
person (as such term is defined in Section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended (the
"1934 Act")) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the 0000 Xxx) of fifty
percent (50%) or more of the combined voting power of the
then outstanding voting securities of the Employer or the
Bank; or
B. The individuals who, as of the date hereof, are
members of the Board of the Employer or the Bank cease for
any reason to constitute a majority of the Board, unless
the election, or nomination for election by the
stockholders, of any new director was approved by a vote
of a majority of the Board, and such new director shall,
for purposes of this Agreement, be considered as a member
of the Board; or
C. Approval by stockholders of the Employer or the
Bank of: (1) a merger or consolidation if the stockholders
immediately before such merger or consolidation do not, as
a result of such merger or consolidation, own, directly or
indirectly, more than fifty percent (50%) of the combined
voting power of the then outstanding voting securities of
the entity resulting from such merger or consolidation in
substantially the same proportion as their ownership of
the combined voting power of the voting securities of the
Employer or the Bank outstanding immediately before such
merger or consolidation; 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
the Employer or the Bank.
7
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because fifty percent (50%) or more of the combined voting power
of the then outstanding securities of the Employer or the Bank is acquired by:
(1) a trustee or other fiduciary holding securities under one or more employee
benefit plans maintained for employees of the Employer or the Bank; or (2) any
corporation which, immediately prior to such acquisition, is owned directly or
indirectly by the stockholders in the same proportion as their ownership of
stock of the Employer or the Bank immediately prior to such acquisition.
(h) REGULATORY SUSPENSION AND TERMINATION.
(i) If the Executive is suspended from office and/or
temporarily prohibited from participating in the conduct of the
Employer'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, the Employer's obligations
under this contract shall be suspended as of the date of service,
unless stayed by appropriate proceedings. If the charges in the
notice are dismissed, the Employer shall (A) pay the Executive all of
the compensation withheld while the contract obligations were
suspended and (B) reinstate any of the obligations which were
suspended.
(ii) If the Executive is removed and/or permanently
prohibited from participating in the conduct of the Employer'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 the Employer under this
contract shall terminate as of the effective date of the order, but
vested rights of the contracting parties shall not be affected.
(iii) If the Employer 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 the Employer under this
contract 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 the Employer under this
contract shall be terminated, except to the extent determined that
continuation of the contract is necessary for the continued 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 the Employer 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 the Employer 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.
(v) Any payments made to the Executive pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their
compliance with Section 18(k) (12 U.S.C. Section 1828(k)) of the
Federal Deposit Insurance Act as amended, and any regulations
promulgated thereunder.
8
5. NON-COMPETITION COVENANT. The Employer and the Executive have jointly
reviewed the operations of the Employer and the Bank and have agreed that an
essential ingredient of and part of the consideration for this Agreement and the
payment of the amounts described in Section 2, is the agreement of the Executive
that, except with the express prior written consent of the Employer, for a
period of one (1) year after the termination of the Executive's employment with
the Employer, or six (6) months in the event of a termination by the Executive
under subparagraph (b)(ii) of Section 4, (the "Restrictive Period"), he will not
directly or indirectly compete with the business of the Employer: (i) by
directly or indirectly soliciting any person, corporation, partnership or other
entity or organization which at the time of such termination is a customer of
the Employer or the Bank to become a customer of; or (ii) by soliciting or
inducing, or attempting to solicit or induce, any employee or agent of the
Employer or the Bank to terminate employment with the Employer or the Bank 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") (the
"Restrictive Covenant"). If the Executive violates the Restrictive Covenant and
the Employer brings legal action for injunctive or other relief, the Employer
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 5 computed from the date the relief is granted but
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. In the event that a successor assumes and agrees to perform this
Agreement, this Restrictive Covenant shall continue to apply only to customers
and employees of the Employer and the Bank as they existed immediately before
such assumption and shall not apply to any of the successor's customers and
employees.
6. INTERCORPORATE TRANSFERS. If the Executive shall be transferred to an
affiliate of the Employer, 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 the Employer as of the date of such
transfer. For purposes hereof, an affiliate of the Employer shall mean any
corporation directly or indirectly controlling, controlled by, or under common
control with the Employer.
7. INTEREST IN ASSETS. Neither the Executive nor his estate shall
acquire hereunder any rights in funds or assets of the Employer, otherwise than
by and through the actual payment of amounts payable hereunder; nor shall the
Executive or his estate have any power to 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,
alimony, separate maintenance or be transferable by operation of law in the
event of bankruptcy, insolvency or otherwise of the Executive.
8. INDEMNIFICATION.
(a) INSURANCE. The Employer shall provide the Executive
(including his heirs, personal representatives, executors and administrators)
for the term of this Agreement
9
with coverage under a standard directors' and officers' liability insurance
policy at its expense.
(b) INDEMNIFICATION UNDER STATE LAW. In addition to the insurance
coverage provided for in paragraph (a) of this Section 8, the Employer shall
hold harmless and indemnify the Executive (and his heirs, executors and
administrators) to the fullest extent permitted under applicable 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 an officer of the Employer (whether or not he
continues to be an 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.
(c) ADVANCEMENT OF EXPENSES. In the event the Executive becomes a
party, or is threatened to be made a party, to any action, suit or proceeding
for which the Employer has agreed to provide insurance coverage or
indemnification under this Section 8, the Employer shall, to the full extent
permitted under applicable law, advance all expenses (including reasonable
attorneys' fees), judgments, fines and amounts paid in settlement (collectively
"Expenses") incurred by the Executive in connection with the investigation,
defense, settlement, or appeal of any threatened, pending or completed action,
suit or proceeding, subject to receipt by the Employer of a written undertaking
from the Executive: (i) to reimburse the Employer for all Expenses actually paid
by the Employer to or on behalf of the Executive in the event it shall be
ultimately determined that the Executive is not entitled to indemnification by
the Employer for such Expenses; and (ii) to assign to the Employer all rights of
the Executive to indemnification, under any policy of directors' and officers'
liability insurance or otherwise, to the extent of the amount of Expenses
actually paid by the Employer to or on behalf of the Executive.
9. GENERAL PROVISIONS.
(a) SUCCESSORS; ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the Executive, the Employer and his and its
respective personal representatives, successors and assigns, and any successor
or assign of the Employer shall be deemed the "Employer" hereunder. The Employer
shall require any successor to all or substantially all of the business and/or
assets of the Employer, 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 the Employer
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, including but not limited to, the
change of control agreement between the Executive and the Employer dated April
13, 1998. Except as otherwise explicitly provided
10
herein, this Agreement may not be amended or modified except by written
agreement signed by the Executive and the Employer.
(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 a 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) ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement or the Executive's employment by the Employer
shall be settled exclusively by arbitration, conducted by a single arbitrator
sitting in a location selected by the Executive within fifty (50) miles of the
main office of the Employer, in accordance with the rules of the American
Arbitration Association (the "AAA") then in effect. The arbitrator shall be
selected by the parties from a list of arbitrators provided by the AAA, provided
that no arbitrator shall be related to or affiliated with either of the parties.
No later than ten (10) days after the list of proposed arbitrators is received
by the parties, the parties, or their respective representatives, shall meet at
a mutually convenient location or telephonically. At that meeting, the party who
sought arbitration shall eliminate one (1) proposed arbitrator and then the
other party shall eliminate one (1) proposed arbitrator. The parties shall
continue to eliminate names from the list of proposed arbitrators in this manner
until a single proposed arbitrator remains. This remaining arbitrator shall
arbitrate the dispute. Each party shall submit, in writing, the specific
requested action or decision it wishes to take, or make, with respect to the
matter in dispute, and the arbitrator shall be obligated to choose one (1)
party's specific requested action or decision, without being permitted to
effectuate any compromise position. Judgment may be entered on the arbitrator's
award in any court having jurisdiction; provided, however, that the Executive
shall be entitled to seek specific performance of his right to be paid through
the date of termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
(e) LEGAL FEES. All reasonable legal fees paid or incurred by the
Executive pursuant to any dispute or question of interpretation relating to this
Agreement shall be paid or reimbursed by the Employer if the Executive is
successful on the merits pursuant to a legal judgment, arbitration or
settlement.
(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 the Employer, addressed to the principal headquarters of the
Employer, attention: Chairman; or, if to the Executive, to the
11
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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
WEST SUBURBAN BANCORP, INC. XXXXX X. XXXXXXX
By: /s/ XXXXX X. XXXX /s/ XXXXX X. XXXXXXX
-------------------------------------------- --------------------------------
Title: President and Chief Financial Officer 000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000-000
12
