Exhibit 10.11
Xxxxx X. Xxxxxxxxx
Employment Agreement
This Employment Agreement (this "Agreement"), is made and entered into as
of July 8, 2003 (the "Effective Date") by and between Kankakee Bancorp, Inc., a
Delaware corporation (the "Employer"), and Xxxxx X. Xxxxxxxxx (the "Executive").
Recitals
A. The Employer wishes to engage the Executive as the Senior Vice
President and Chief Financial Officer of the Employer and the Senior Vice
President and Chief Financial Officer of KFS Bank, a wholly-owned subsidiary of
the Employer (the "Bank").
B. The Employer and the Executive have made commitments to each other on
a variety of important issues concerning Executive's employment, including the
performance that will be expected of Executive, the compensation the Executive
will be paid, how long and under what circumstances Executive will remain
employed and the financial details relating to any decision that either the
Employer or the Executive might ever make to terminate this Agreement.
C. The Employer recognizes that circumstances may arise in which a
change of control of the Employer 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 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
Section 1. Term With Automatic Renewal Provisions. The term of this
Agreement and the Executive's employment hereunder shall commence as of the
Effective Date and shall be for a continuous and self-renewing two (2) year
"evergreen" term (calculated on a day to day basis), unless sooner terminated at
any time by either party, with or without Cause, such termination to be
effective as of thirty (30) days after written notice to that effect is
delivered to the other party.
Section 2. Position and Duties. The Employer hereby employs the Executive
as the Senior Vice President and Chief Financial Officer of the Employer or in
such other senior executive capacity or capacities as shall be mutually agreed
between the Employer and the Executive. As Senior Vice President and Chief
Financial Officer of Employer, Executive shall also serve as Senior Vice
President and Chief Financial Officer of its subsidiary, the Bank. 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 Bank, and the other direct and
indirect subsidiaries of the Employer (together with
the Bank, the "Subsidiaries" or "Subsidiary"). 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
the President and Chief Executive Officer of the Employer to whom the Executive
shall report during the term of this Agreement (the "Board"). The Executive
shall have the powers necessary to perform the duties assigned to him and shall
be provided such supporting services, staff, secretarial and other assistance,
office space and accoutrements as shall be reasonably necessary and appropriate
in the light of such assigned duties.
Section 3. 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 of one hundred and seventy-five thousand dollars
($175,000) payable in installments in accordance with the regular payroll
schedule of the Bank ("Base Salary"). Such Base Salary shall be subject to
review annually commencing in 2004 and shall be maintained or increased during
the term of this Agreement in accordance with the Employer's established
management compensation policies and plans.
(b) Performance Bonus. The Executive shall be eligible to receive
an annual performance bonus, payable within sixty (60) days after the end of the
fiscal year of the Employer, in an amount not to exceed fifty percent (50%) of
the Executive's Base Salary for the applicable year. The amount, if any, shall
be determined by the Board, or the appropriate committee thereof, and shall
generally be based on a combination of organization-wide and individual
performance criteria.
(c) Stock Option Grant. At the Effective Date, the Board, or the
appropriate committee thereof, shall grant the Executive an option to purchase
seven thousand five hundred (7,500) shares of common stock of the Employer (the
"Stock Option") pursuant to the terms of the Kankakee Bancorp, Inc. 2003 Stock
Incentive Plan (the "Stock Incentive Plan"). The Stock Option shall (i) have an
exercise price per share equal to the Fair Market Value (as defined in the Stock
Incentive Plan) of the shares on the date of grant; (ii) have a term of ten (10)
years; (iii) be an "Incentive Stock Option" (as defined in the Stock Incentive
Plan), and (iv) vest twenty percent (20%) on each anniversary of the date of
grant (fully vested on the fifth anniversary of the Effective Date).
(d) Relocation Expenses. The Employer agrees to reimburse the
Executive for moving expenses of up to five thousand dollars ($5,000) related to
the Executive's relocation from Colorado to the greater Chicago, Illinois, area.
(e) Reimbursement of Expenses. The Executive shall be reimbursed,
upon submission of appropriate vouchers and supporting 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
and shall be entitled to attend seminars, conferences and
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meetings relating to the business of the Employer consistent with the Employer's
or the Bank's established policies in that regard.
(f) 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 senior
executives of the Employer and the Bank, including, but not limited to, pension,
profit-sharing, supplemental retirement, incentive compensation, bonus,
disability income, group life medical and hospitalization insurance, and similar
or comparable plans, and also to perquisites extended to similarly situated
senior executives, provided, however, that such plans, benefits and perquisites
shall be no less than those made available to all other employees of the
Employer and the Bank.
(g) Withholding. The Employer shall be entitled to withhold from
amounts payable to the Executive hereunder, any federal, state or local
withholding or other taxes 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.
Section 4. Confidentiality and Loyalty. The Executive acknowledges that
during the course of his employment he may produce and have access to material,
records, data, trade secrets and information not generally available to the
public regarding the Employer and its Subsidiaries (collectively, "Confidential
Information"). 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 the performance by the Executive of his duties hereunder. All records,
files, documents and other materials or copies thereof relating to the business
of the Employer and its Subsidiaries which the Executive shall prepare or use,
shall be and remain the sole property of the Employer, shall not be removed from
the premises of the Employer or its Subsidiaries, as the case may be, without
the written consent of the Employer's Chairman of the Board, except as
reasonably necessary or appropriate in connection with the performance by the
Executive of his duties hereunder, and shall be promptly returned to the
Employer upon termination of the Executive's employment hereunder. The Executive
agrees to abide by the reasonable policies of the Employer, as in effect from
time to time, respecting avoidance of interests conflicting with those of the
Employer and its Subsidiaries.
Section 5. Termination.
(a) Termination Without Cause. Either the Employer or the Executive
may terminate this Agreement and the Executive's employment hereunder for any
reason by delivering written notice of termination to the other party no less
than thirty (30) days before the effective date of termination, which date will
be specified in the notice of termination.
(b) Voluntary Termination by Executive. If the Executive
voluntarily terminates his employment under this Agreement other than pursuant
to Section 5(d)
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(Constructive Discharge) or Section 5(h) (Termination Upon Change of Control),
then the Employer shall only be required to pay the Executive such Base Salary
as shall have accrued through the effective date of such termination plus the
amount of any expense reimbursements for expenses incurred prior to the
effective date of such termination, provided that Executive shall have submitted
all reimbursement requests within ten (10) business days of the effective date
of such termination. After payment of the foregoing, neither the Employer nor
any of its Subsidiaries shall have any further obligations to the Executive.
(c) Premature Termination.
(i) In the event of the termination of 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 Section 5(e)
(Termination for Cause), then notwithstanding any mitigation of damages by the
Executive, the Employer shall pay the Executive a sum equal to two (2) times the
amount of the Executive's then-current annual Base Salary. In addition, the
Employer shall reimburse the Executive for continued coverage (COBRA
continuation coverage) for the Executive and the Executive's dependents (if
applicable) under the health insurance programs maintained by the Employer
during the period of the Executive's COBRA eligibility; provided, however, 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.
(ii) Payment to the Executive will be made on a monthly basis
over the twenty-four (24) month period immediately following the Executive's
termination of employment. At the election of the Employer, payments may be made
in a lump sum. Payment of the amounts due under Section 5(c)(i) shall not be
reduced in the event the Executive obtains other employment following the
termination of employment by the Employer.
(iii) If the Employer is not in compliance with its minimum
capital requirements or if the payments required under subsection (i) 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.
(d) Constructive Discharge. If at any time during the term of this
Agreement, except in instances where Employer has valid grounds to terminate
Executive's employment pursuant to Section 5(e) (Termination for Cause), the
Executive is Constructively Discharged (as hereinafter defined), then the
Executive shall have the right, by written notice given to the Employer not
later than ninety (90) days after such Constructive Discharge, to terminate his
services hereunder, effective as of thirty (30) days after the date of such
notice, and the Executive shall have no rights or obligations under this
Agreement other than as provided in this Section 5(d), Section 4
(Confidentiality and Loyalty) and Section 6 (Non-Competition Covenant). In such
event, the Executive shall be entitled to a lump sum payment in an amount equal
to the aggregate cash payments due to the Executive under Section 5(c)(i) and
reimbursement of COBRA premiums as if such termination of his employment were
pursuant to Section 5(c) (Premature Termination).
For purposes of this Agreement, the Executive shall be "Constructively
Discharged" upon the occurrence of any one of the following events:
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(i) The Executive is removed from the positions with the
Employer set forth in Section 2 (Position and Duties);
(ii) There is a substantial diminution in the Executive's
responsibilities as the Company's Chief Financial Officer to which the Executive
has not consented, provided that such diminution shall constitute a Constructive
Discharge only if the Executive submits a written statement to the Chairman of
the Board in which the Executive specifies the reasons that constitute such
diminution and the written statement is provided to the Chairman of the Board
within thirty (30) days of the action or actions alleged to constitute
substantial diminution; or
(iii) The Employer changes the primary employment location of
the Executive without the Executive's consent to a place that is more than fifty
(50) miles from the main office of the Employer; or
(iv) The Employer otherwise commits a material breach of its
obligations under this Agreement.
(e) Termination for Cause. This Agreement may be terminated for
Cause as hereinafter defined. "Cause" shall mean: (i) the Executive's death;
(ii) the Executive's Permanent Disability, which shall mean the Executive's
inability, as a result of physical or mental incapacity, substantially to
perform his duties hereunder for a period of six (6) consecutive months; (iii) a
material violation by the Executive of any applicable material law or regulation
respecting the business of the Employer; (iv) 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 any one of its
Subsidiaries; (v) the willful or negligent failure of the Executive to perform
his duties hereunder in any material respect; (vi) the Executive engages in one
or more violations of Employer's policies or procedures or directives of the
Board and that have a material financial adverse effect on the Employer or any
one of its Subsidiaries; or (vii) the Executive is removed or suspended from
banking pursuant to Section 8(e) of the Federal Deposit Insurance Act, as
amended (the "FDIA"), or any other applicable state or federal law. The
Executive shall be entitled to at least thirty (30) days' prior written notice
of the Employer's intention to terminate his employment for any cause (except
the Executive's death) specifying the grounds for such termination and shall be
provided a reasonable opportunity to present to the Board his position regarding
any dispute relating to the existence of such cause. In the event of a dispute
regarding the Executive's Permanent Disability, each of the Executive and the
Employer shall choose a physician who together will choose a third physician to
make a final determination thereof. Upon a termination of the Executive's
employment with the Employer for Cause, the Executive shall be entitled to
receive from the Employer only such payments as are due and owing to the
Executive as of the effective date of such termination. If the Executive's
employment is terminated for Cause pursuant to this Section, then the Employer
shall only be required to pay the Executive such Base Salary as shall have
accrued through the effective date of such termination and neither the Employer
nor any of its Subsidiaries shall have any further obligations to the Executive.
(f) Payments 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 the
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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.
(g) Payments Prior to Permanent Disability. 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 Permanent Disability during which the Executive is unable to
work due to a physical or mental infirmity. Notwithstanding anything contained
in this Agreement to the contrary, until the date specified in a notice of
termination relating to the Executive's Permanent Disability, the Executive
shall be entitled to return to his positions with the Employer as set forth in
this Agreement in which event no Permanent Disability of the Executive will be
deemed to have occurred.
(h) Termination Upon Change of Control.
(i) In the event of a Change of Control (as defined below)
of the Employer and the termination of the Executive's employment under either A
or B below, subject to Section 5(h)(iii) below, the Executive shall be entitled
to receive in lieu of any other payments provided for in this Agreement a lump
sum payment equal to three (3) times the amount of the Executive's then current
Base Salary. In addition, the Employer shall reimburse the Executive for
continued coverage (COBRA continuation coverage) for the Executive and the
Executive's dependents (if applicable) under the health insurance programs
maintained by the Employer during the period of the Executive's COBRA
eligibility; provided, however, 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. Either of the following shall constitute
termination of the Executive's employment within the meaning of this Section
5(h):
A. The Executive voluntarily terminates his employment
within the one (1) year period immediately following the Change of Control.
B. The Executive's employment is terminated by the
Employer or its successor within the one (1) year period immediately following
the Change of Control.
(ii) For purposes of this Section, the term "Change of
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
B. Consummation of: (1) a merger or consolidation to
which the Employer is a party 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 sixty-seven percent (67%) 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 Employer's voting securities
outstanding
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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.
Notwithstanding the foregoing, a Change of Control shall not be deemed to occur
solely because fifty percent (50%) or more of the combined voting power of the
Employer's then outstanding securities is acquired by: (1) a trustee or other
fiduciary holding securities under one or more employee benefit plans maintained
for employees of the entity; 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 immediately prior to such
acquisition.
(iii) 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 the Change of Control
of the Employer, and to which Section 280G of the Code applies (in the aggregate
"Total Payments") shall not exceed an amount equal to one dollar ($1.00) 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
ninety (90) 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 (I) the amount of the
Base Period Income of the Executive, (II) the present value of Total Payments
and (III) 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 sixty
(60) days of the Executive's receipt of such opinions 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 (y) the compensation and benefits provided for in
Section 3 hereof and (z) 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
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Sections 280G and 4999 of the Code are repealed without succession, this
subparagraph shall be of no further force or effect.
(i) 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. (S) 1818(e)(3)) or
8(g) (12 U.S.C. (S) 1818(g)) of the FDIA, 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 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 the Employer's affairs by an
order issued under Section 8(e) (12 U.S.C. (S) 1818(e)) or 8(g) (12 U.S.C. (S)
1818(g)) of the FDIA, 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. (S) 1813(x)(1)) of the FDIA, 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. (S) 1823(c)) of the FDIA, 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.
Section 6. Non-Competition Covenant.
(a) Restrictive Covenant. The Employer and the Executive have
jointly reviewed the customer lists and operations of the Employer and its
Subsidiaries and have agreed that the primary service area of the Employer's and
its Subsidiaries' lending and deposit taking functions in which the Employer and
its Subsidiaries have and will actively participate extends separately to each
area which encompasses the counties in which the Employer and its Subsidiaries
have an office or branch and the area within twenty-five (25) miles of the
border of each such county (the "Restrictive Area"). Therefore, as an essential
ingredient of and in consideration of this Agreement and the payment of the
amounts described in Section 3, the Executive hereby agrees 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 (the
"Restrictive Period"):
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(i) The Executive will not, directly or indirectly, engage
or invest in, own, manage, operate, finance, control, or participate in the
ownership, management, operation or control of, be employed by, associated with,
or in any manner connected with, lend the Executive's name or any similar name
to, lend the Executive's credit to, or render services or advice to, any person,
firm, partnership, corporation or trust which owns or operates, a bank, savings
and loan association, credit union or similar financial institution (a
"Financial Institution") within the Restrictive Area; provided however, that the
ownership by the Executive of shares of the capital stock which are listed on a
securities exchange or quoted on the National Association of Securities Dealers
Automated Quotation System which do not represent more than five percent (5%) of
the outstanding capital stock of any Financial Institution, shall not violate
any terms of this Agreement.
(ii) The Executive will not, directly or indirectly, either
for himself, or any other Financial Institution: (A) induce or attempt to induce
any employee of the Employer or its Subsidiaries to leave the employ of the
Employer or its Subsidiaries; (B) in any way interfere with the relationship
between Employer or its Subsidiaries and any employee of Employer or its
Subsidiaries; (C) employ, or otherwise engage as an employee, independent
contractor or otherwise, any employee of Employer or its Subsidiaries; or (D)
induce or attempt to induce any customer, supplier, licensee, or business
relation of Employer or its Subsidiaries to cease doing business with the
Employer or its Subsidiaries or in any way interfere with the relationship
between any customer, supplier, licensee or business relation of Employer or its
Subsidiaries.
(iii) The Executive will not, directly or indirectly, either
for himself, or any other Financial Institution, solicit the business of any
person or entity known to the Executive to be a customer of the Employer or its
Subsidiaries, whether or not such Executive had personal contact with such
person or entity, with respect to products or activities which compete in whole
or in part with the products or activities of the Employer or its Subsidiaries.
(iv) The Executive will not, directly or indirectly, serve as
the agent, broker or representative of, or otherwise assist, any person or
entity in obtaining services or products from any Financial Institution within
the Restrictive Area.
(v) The Executive expressly agrees that the covenants
contained in this Section 6(a) are reasonable with respect to their duration,
geographical area, and scope.
(b) Violation of Restrictive Covenant. If the Executive violates
the restrictions contained in Section 6(a) 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 Period. Accordingly, the Restrictive Period shall be deemed
to have the duration specified in Section 6(a) 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 restrictions
contained in Section 6(a) by the Executive. In the event that a successor
assumes and agrees to perform this Agreement, the restrictions contained in
Section 6(a) shall continue to apply only to the primary service area of the
Employer as it existed immediately before such assumption and shall not apply to
any of the successor's other offices.
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(c) 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 the Employer, that any violation of these restrictions
would cause substantial injury to the Employer and such interests, that the
Employer 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 the Employer to enter into this Agreement. In the event of any
violation or threatened violation of these restrictions, the Employer, in
addition to and not in limitation 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.
Section 7. Intercorporate Transfers. If the Executive shall be
voluntarily transferred to a Subsidiary 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, provided however, that this Section 7 shall not
modify Employer's obligations under Section 2, 3 and 5 hereof.
Section 8. 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.
Section 9. Indemnification. The Employer shall provide the Executive
(including his heirs, personal representatives, executors and administrators)
for the term of this Agreement with coverage under a standard directors' and
officers' liability insurance policy at its expense.
Section 10. General Provisions.
(a) Successors; Assignment. This Agreement shall be binding upon
and inure to the benefit of the Executive, his heirs, legatees and personal
representatives, the Employer and its 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.
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(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 the Employer.
(c) Survival. The provisions of Sections 4 and 6 and the payment
obligations of Section 5 shall survive the expiration or termination of this
Agreement, in each case for the period set forth in such section.
(d) 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.
(e) Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three arbitrators sitting in a location selected by
the Executive within twenty-five (25) miles from the location of the main office
of the Employer, in accordance with the employment rules of the American
Arbitration Association then in effect. 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.
(f) 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.
(g) 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.
(h) 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 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
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KANKAKEE BANCORP, INC. XXXXX X. XXXXXXXXX
By: /s/ Xxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxxxx
------------------------------- -------------------------------
Its: Executive Vice President Address:
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