EXHIBIT 10.1
C. XXXXXXX XXXXXXXXX
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and entered into as
of the 7th day of November, 2004, by and between MAIN STREET TRUST, INC., a
Delaware Corporation ("MSTI") and C. XXXXXXX XXXXXXXXX ("EMPLOYEE") and shall
be effective immediately upon the consummation of the merger of MSTI,
Citizens First Financial Corp. and Citizens Acquisition LLC (the "EFFECTIVE
DATE").
RECITALS
A. MSTI desires to employ Employee as an Executive Vice President of
MSTI.
B. Employee desires to be employed as an Executive Vice President of
MSTI.
C. MSTI and Employee have made commitments to each other on a
variety of important issues concerning Employee's employment, including the
performance that will be expected of Employee, the compensation that Employee
will be paid, how long and under what circumstances Employee will remain
employed, and the financial details relating to any decision that either
Employee or MSTI might ever make to terminate Employee's employment.
D. MSTI and Employee believe that the commitments they have made to
each other should be memorialized in writing, and that is the purpose of this
Agreement.
THEREFORE, MSTI and Employee agree as follows:
AGREEMENTS
SECTION 1. TERM. The term of this Agreement and Employee's
employment hereunder will be two (2) years commencing as of the Effective
Date unless earlier terminated as provided in this Agreement.
SECTION 2. EMPLOYMENT.
(a) POSITIONS. Subject to the terms of this Agreement, MSTI
hereby employs Employee, and Employee agrees to serve as an Executive Vice
President of MSTI or in such other capacities with MSTI or its subsidiaries
as the Board of Directors deems appropriate in its sole discretion, under the
terms and conditions set forth herein as of the Effective Date.
(b) DUTIES. Employee's duties, authority and responsibilities
as an Executive Vice President of MSTI include all duties, authority and
responsibilities customarily held by such officer of comparable companies,
subject always to the charter and bylaw provisions and the policies of MSTI
and the directions of the President and Chief Executive Officer of MSTI.
Notwithstanding any other provision of this Agreement, MSTI shall not be
under any obligation to provide Employee with any work, and MSTI may at any
time suspend Employee and/or exclude him from any and all premises of MSTI
and its affiliates, provided that Employee shall continue to be treated as an
employee of MSTI, and his Base Salary (as defined below) and other benefits
shall continue to be paid or provided by MSTI in accordance with the terms of
this
Agreement. If requested by MSTI in connection with the placement of Employee
on leave or suspension of Employee from MSTI's premises pursuant to the
preceding sentence, Employee agrees to resign from the position he holds as
an Executive Vice President of MSTI.
(c) CARE AND LOYALTY. Employee will devote Employee's best
efforts and full business time, energy, skills and attention to the business
and affairs of MSTI and its subsidiaries, and will faithfully and loyally
discharge Employee's duties to MSTI and its subsidiaries.
(d) TRANSFERS. The Board may, in its sole discretion, cause
Employee's employment to be transferred from MSTI to any wholly owned
subsidiary, in which case all references in this Agreement to "MSTI" will be
deemed to refer to such subsidiary, provided that Employee shall not be
required to relocate to an MSTI office outside of Bloomington, Illinois.
SECTION 3. COMPENSATION. MSTI will compensate Employee for Employee's
services as follows during the term of this Agreement and Employee's employment
hereunder:
(a) BASE COMPENSATION. Employee's annual base salary will be
$150,000 ("Base Salary").
(b) REIMBURSEMENT OF EXPENSES. MSTI will reimburse Employee
for all travel, entertainment and other out-of-pocket expenses that Employee
reasonably and necessarily incurs in the performance of Employee's duties.
Employee will document these expenses to the extent necessary to comply with
all applicable laws and internal policies.
(c) OTHER BENEFITS. Employee will be entitled to participate
in all plans and benefits that are now or later made available by MSTI to all
its employees. Employee shall be entitled to at least four (4) weeks of
vacation time under MSTI's vacation policy.
(d) WITHHOLDING. Employee acknowledges that MSTI may
withhold any applicable federal, state or local withholding or other taxes
from payments that become due or allowances that are provided to Employee.
SECTION 4. TERMINATION.
(a) TERMINATION WITHOUT CAUSE. Either MSTI or Employee may
terminate this Agreement and Employee's employment hereunder for any reason
by delivering written notice of termination to the other party no less than
ninety (90) days before the effective date of termination, which date will be
specified in the notice of termination. If Employee voluntarily terminates
Employee's employment under this Agreement, then MSTI shall only be required
to pay Employee such Base Salary as shall have accrued through the effective
date of such termination and MSTI shall have no further obligations to
Employee.
(b) TERMINATION FOR CAUSE. MSTI may terminate this Agreement
and Employee's employment hereunder for Cause by delivering written notice of
termination to Employee no less than thirty (30) days before the effective
date of termination. "Cause" for termination will exist if: (i) Employee
engages in one or more unsafe and unsound banking practices or material
violations of a law or regulation applicable to MSTI or its subsidiaries, any
repeated violations of a policy of MSTI after being warned in writing by the
Board and/or a senior
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officer not to violate such policy, any single violation of a policy of MSTI
if such violation materially and adversely affects the business or affairs of
MSTI, or a direction or order of the Board and/or one of Employee's senior
officers; (ii) Employee engages in a breach of fiduciary duty or act of
dishonesty involving the affairs of MSTI; (iii) Employee is removed or
suspended from banking pursuant to Section 8(e) of the Federal Deposit
Insurance Act or any other applicable State or Federal law; or (iv) Employee
commits a material breach of Employee's obligations under this Agreement. If
Employee's employment is terminated pursuant to this Section 4(b), then MSTI
shall only be required to pay Employee such Base Salary as shall have accrued
through the effective date of such termination and MSTI shall have no further
obligations to Employee.
(c) TERMINATION UPON DISABILITY. MSTI will not terminate
this Agreement and Employee's employment hereunder if Employee becomes
disabled within the meaning of MSTI's then current employee disability
program or, at MSTI's election, as determined by a physician selected by
MSTI, unless as a result of such disability, Employee is unable to perform
Employee's duties with the requisite level of skill and competence for a
period of six (6) consecutive months. Thereafter, MSTI may terminate this
Agreement for Cause in accordance with Subsection 4(b)(v).
(d) TERMINATION UPON DEATH. This Agreement will terminate if
Employee dies during the term of this Agreement, effective on the date of
Employee's death. Any payments that are owing to Employee under this
Agreement or otherwise at the time of Employee's death will be made to
whomever Employee may designate in writing as Employee's beneficiary, or
absent such a designation, to the executor or administrator of Employee's
estate.
(e) SEVERANCE BENEFITS. MSTI will pay severance benefits to
Employee as follows:
(i) If this Agreement and Employee's employment
hereunder are terminated by MSTI without Cause pursuant to Section 4(a), MSTI
will pay Employee an amount equal to Employee's then applicable annual Base
Salary through the remaining term of this Agreement as provided in Section 1
(the "Severance Payment"). If the effective date of termination occurs
before the last day of the term of this Agreement as provided in Section 1,
the Severance Payment will also include the value of the contributions that
would have been made to Employee or for Employee's benefit under all
applicable retirement and other employee benefit plans had Employee remained
in MSTI's employ through the last day of the term. MSTI will also continue
to provide Employee and Employee's dependents, at the expense of MSTI, with
continuing coverage under existing health programs for the remaining term of
this Agreement (or such shorter period during which Employee is eligible for
and elects coverage under COBRA, as defined below), provided that, to the
extent Employee paid a portion of the premium for such benefit while employed
Employee shall continue to pay such portion during the period of continuation
hereunder and provided further, that if such benefit is subject to the health
care continuation rules of the Consolidated Omnibus Budget Reconciliation Act
of 1985 ("COBRA") then any period of continuation hereunder shall be credited
against the continuation rights under COBRA and Employee will be required to
complete all COBRA election and other forms.
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(ii) All payments that become due to Employee under
this Section 4(e) will be made in equal monthly installments commencing on
the first day of the month immediately succeeding Employee's termination of
employment and continuing through the remaining term of this Agreement,
unless MSTI elects to make those payments in one (1) lump sum. MSTI will be
obligated to make all payments that become due to Employee under this Section
4(e) whether or not Employee obtains other employment following termination
or takes steps to mitigate any damages that Employee claims to have sustained
as a result of termination. The payments and other benefits provided for in
this Section 4(e) are intended to supplement any compensation or other
benefits that have accrued or vested with respect to Employee or for
Employee's account as of the effective date of termination.
(iii) MSTI may elect to defer any payments that may
become due to Employee under this Section 4(e) if, at the time the payments
become due, MSTI is not in compliance with any regulatory-mandated minimum
capital requirements or if making the payments would cause MSTI's capital to
fall below such minimum capital requirements. In this event, MSTI will
resume making the payments as soon as it can do so without violating such
minimum capital requirements.
(f) PAYMENT EQUALIZATION. If MSTI is paying, or in the case
of a lump sum, has paid, Employee a Severance Payment under Section 4(e),
then Employee agrees to not seek or apply for unemployment compensation under
the Illinois Unemployment Act 820 ILCS 405/100 et seq. or any other state or
federal unemployment compensation law at any time prior to a date following
the final payment made hereunder or with respect to the period during which
such payments were or were to be made until the final payment is made.
(g) RELEASE. As a condition to MSTI's obligation to pay any
Severance Payment under Section 4(e), Employee agrees that Employee will
execute a general release of MSTI and its affiliates, substantially in the
form attached hereto as EXHIBIT A.
SECTION 5. CONFIDENTIALITY. Employee acknowledges that the nature
of Employee's employment will require that Employee produce and have access
to records, data, trade secrets and information that are not available to the
public regarding MSTI and its subsidiaries and affiliates ("CONFIDENTIAL
INFORMATION"). Employee will hold in confidence and not directly or
indirectly disclose any Confidential Information to third parties unless
disclosure becomes reasonably necessary in connection with Employee's
performance of Employee's duties hereunder, or the Confidential Information
lawfully becomes available to the public from other sources, or Employee is
authorized in writing by MSTI to disclose it, or Employee is required to make
disclosure by a law or pursuant to the authority of any administrative agency
or judicial body. All Confidential Information and all other records, files,
documents and other materials or copies thereof relating to the business of
MSTI or any of its subsidiaries or affiliates that Employee prepares or uses
will always be the sole property of MSTI. Employee will promptly return all
originals and copies of such Confidential Information and other records,
files, documents and other materials to MSTI if Employee's employment with
MSTI is terminated for any reason.
SECTION 6. NON-COMPETITION COVENANT.
(a) RESTRICTIVE COVENANT. MSTI and Employee have jointly
reviewed the customer lists and operations of MSTI and agree that MSTI's
primary service area for its
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lending, deposit and wealth management activities encompasses the fifty (50)
mile radii from each of MSTI's main office in Champaign, Illinois and the
branch offices of MSTI and its subsidiary banks. Employee agrees that, for a
period of one (1) year after the termination of this Agreement, Employee will
not, without MSTI's prior written consent, directly or indirectly Compete
with MSTI. For the purposes of Section 6(a):
(i) "COMPETE" means directly or indirectly owning,
managing, operating or controlling a Competitor, or directly or indirectly
serving as an employee, officer or director of or a consultant to a
Competitor, or soliciting or inducing any employee or agent of MSTI to
terminate employment with MSTI or any of its subsidiaries and become employed
by a Competitor, or by soliciting or inducing any customer, wherever located,
of MSTI or its subsidiary banks with whom Employee had contact during
Employee's employment to modify or terminate its relationship with the
Company or its subsidiary banks.
(ii) "COMPETITOR" means any person, firm, partnership,
corporation, trust or other entity that owns, controls or is a bank, savings
and loan association, credit union or similar financial institution or
financial planning, brokerage or investment firm (collectively, a "FINANCIAL
INSTITUTION") that is physically located and conducts lending, deposit and
wealth management activities within the fifty (50) mile radii from each of
MSTI's main office in Champaign, Illinois and of its subsidiary banks.
(b) SUCCESSORS. In the event that a successor to MSTI
succeeds to or assumes MSTI's rights and obligations under this Agreement,
Section 6(a) will apply only to the primary service areas of MSTI as they
existed immediately before the succession or assumption occurred and will not
apply to any of the successor's other offices.
(c) INVESTMENT EXCEPTION. Section 6(a) will not prohibit
Employee from directly or indirectly owning or acquiring any capital stock or
similar securities that are listed on a securities exchange or quoted on the
NASDAQ and do not represent more than five percent (5%) of the outstanding
capital stock of any Financial Institution.
(d) INJUNCTIVE RELIEF. Employee agrees that a violation of
this Section 6 would result in direct, immediate and irreparable harm to
MSTI, and in such event, agrees that MSTI, in addition to its other right and
remedies, would be entitled to injunctive relief enforcing the terms and
provisions of this Section 6.
SECTION 7. GENERAL PROVISIONS.
(a) SUCCESSORS; ASSIGNMENT. This Agreement will be binding
upon and inure to the benefit of Employee, MSTI and their respective personal
representatives, successors and assigns. For the purposes of this Agreement,
any successor or assign of MSTI shall be deemed to be "MSTI." MSTI will
require any successor or assign of MSTI or any direct or indirect purchaser
or acquiror of all or substantially all of the business, assets or
liabilities of MSTI, whether by transfer, purchase, merger, consolidation,
stock acquisition or otherwise, to assume and agree in writing to perform
this Agreement and MSTI's obligations hereunder in the same manner and to the
same extent as MSTI would have been required to perform them if no such
transaction had occurred.
(b) ENTIRE AGREEMENT; SURVIVAL. This Agreement constitutes
the entire agreement between Employee and MSTI concerning the subject matter
hereof, and supersedes
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all prior negotiations, undertakings, agreements and arrangements with
respect thereto, whether written or oral (including but not limited to any
employment agreements with Citizens First Financial Corp. or any of its
subsidiaries). The provisions of this Agreement will be regarded as
divisible and separate; if any provision is ever declared invalid or
unenforceable, the validity and enforceability of the remaining provisions
will not be affected. In the event any provision of this Agreement
(including, but not limited to, any provision of the covenant not to compete
set forth in Section 6) is held to be overbroad as written, such provision
shall be deemed to be amended to narrow the application of such provision to
the extent necessary to make such provision enforceable according to
applicable law. This Agreement may not be amended or modified except by a
writing signed by Employee and MSTI. The parties acknowledge and agree that
the obligations under Section 5 (Confidentiality) and Section 6
(Non-Competition Covenant) shall survive the termination of this Agreement.
(c) GOVERNING LAW AND ENFORCEMENT. This Agreement will be
construed and the legal relations of the parties hereto shall be determined
in accordance with the laws of the State of Illinois without reference to the
law regarding conflicts of law.
(d) ARBITRATION. Any dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by arbitration
conducted at a location selected by MSTI within fifty (50) miles from
Champaign, Illinois, in accordance with the rules of the American Arbitration
Association.
(e) LEGAL FEES. All reasonable legal fees paid or incurred
in connection with any dispute or question of interpretation relating to this
Agreement shall be paid to the party who is successful on the merits by the
other party.
(f) WAIVER. No waiver by either party at any time of any
breach by the other party of, or compliance with, any condition or provision
of this Agreement to be performed by the other party, shall be deemed a
waiver of any similar or dissimilar provisions or conditions at the same time
or any prior or subsequent time.
(g) NOTICES. Notices pursuant to this Agreement shall be in
writing and shall be deemed given when received; and, if mailed, shall be
mailed by United States registered or certified mail, return receipt
requested, postage prepaid; and if to MSTI, addressed to the principal
headquarters of MSTI, attention: President and Chief Executive Officer; or,
if to Employee, to the address set forth below Employee's signature on this
Agreement, or to such other address as the party to be notified shall have
given to the other.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
MAIN STREET TRUST, INC.
By: /s/ Van X. Xxxxxxx /s/ C. Xxxxxxx Xxxxxxxxx
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Name Van X. Xxxxxxx C. XXXXXXX XXXXXXXXX
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Title President
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0 Xxxxxx Xxxxx
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Xxxxxxxxxxx, XX 00000
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Address
EXHIBIT A
AGREEMENT AND RELEASE
This Agreement and Release (this "AGREEMENT") is made and entered into
as of this _______ day of ___________, ______, by and between
_______________________ (hereinafter referred to as "EMPLOYEE") and Main
Street Trust, Inc., (hereinafter referred to as the "EMPLOYER"). In
consideration of the mutual covenants hereinafter set forth, the parties
hereto agree as follows:
SECTION 1. SEPARATION. The parties agree that Employee's employment
with the Employer shall end effective _________________________.
SECTION 2. PAYMENT AND BENEFITS. In consideration of the promises
made in this Agreement, the Employer has agreed to pay Employee the
compensation and benefits as provided in the
Employment Agreement entered
into between Employee and the Employer on ______________________. Employee
expressly agrees, understands and acknowledges that the pay provided
Employee's under this Section 2 constitutes an amount in excess of that which
a separated employee of the Employer would be entitled without entering into
this Agreement. Employee acknowledges that the above pay is being provided
by the Employer as consideration for Employee entering into this Agreement,
including the release of claims and waiver of rights provided in Section 3.
SECTION 3. RELEASE OF CLAIMS AND WAIVER OF RIGHTS. Employee, on
Employee's own behalf and that of Employee's heirs, executors, attorneys,
administrators, successors and assigns, fully releases and discharges the
Employer, its predecessors, successors, subsidiaries, affiliates and assigns,
and its and their directors, officers, trustees, employees, and agents
whether in their individual or official capacities and the current and former
trustees or administrators of any retirement or other benefit plan applicable
to the employees or former employees of the Employer, in their official and
individual capacities from any and all liability, claims and demands,
including but not limited to, claims, demands or actions arising under the
Employer's policies and procedures, whether formal or informal, United States
or State of
Illinois Constitutions; the Civil Rights Act of 1964, as amended;
the Civil Rights Act of 1991; the
Illinois Human Rights Act; the Employee
Retirement Income Security Act of 1974, as amended; the Age Discrimination in
Employment Act; Executive Order 11246; and any other federal, state or local
statute, ordinance or regulation with respect to employment, and in addition
thereto, from any other claims, demands or actions with respect to Employee's
employment with the Employer or other association with the Employer through
the date of this Agreement, including, but not limited to, the termination of
Employee's employment with the Employer, any right of payment for disability
or any other statutory or contractual right of payment or any claim for
relief on the basis of any alleged tort or breach of contract under the
common law of the State of
Illinois or any other state, including, but not
limited to, defamation, intentional or negligent infliction of emotional
distress, breach of the covenant of good faith and fair dealing, promissory
estoppel, and negligence. Employee represents that Employee has not assigned
or filed any claim, demand, action or charge against the Employer.
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SECTION 4. MUTUAL NON-DISPARAGEMENT. The Employer and Employee
agree that, at all times following the signing of this Agreement, they shall
not engage in any vilification of the other, and shall refrain from making
any false, negative, critical or disparaging statements, implied or
expressed, concerning the other, including, but not limited to, management
style, methods of doing business, the quality of products and services, role
in the community, or treatment of employees. Employee acknowledges that the
only persons whose statements may be attributed to the Employer for purposes
of this Agreement not to make disparaging statements shall be each member of
the Board of Directors of the Employer and each of Employee's senior
officers. The parties further agree to do nothing that would damage the
other's business reputation or good will.
SECTION 5. REPRESENTATIONS BY EMPLOYEE. Employee warrants that
Employee is legally competent to execute this Agreement and that Employee has
not relied on any statements or explanations made by the Employer or its
attorney. Moreover, Employee hereby acknowledges that Employee has been
afforded the opportunity to be advised by legal counsel regarding the terms
of this Agreement, including the release of all claims and waiver of rights
set forth in Section 3. Employee acknowledges that Employee has been offered
at least twenty-one (21) days to consider this Agreement. After being so
advised, and without coercion of any kind, Employee freely, knowingly, and
voluntarily enters into this Agreement. Employee further acknowledges that
Employee may revoke this Agreement within seven (7) days after Employee has
signed this Agreement and further understands that this Agreement shall not
become effective or enforceable until seven (7) days after Employee has
signed this Agreement as evidenced by the date set forth below Employee's
signature (the "EFFECTIVE DATE"). Any revocation must be in writing and
directed to the Employer, _____________________________, __________,
Illinois
___________, Attention: ___________________. If sent by mail, any
revocation must be postmarked within the seven (7)-day period and sent by
certified mail, return receipt requested.] In addition, Employee represents
that Employee has returned all property of the Employer that is in Employee's
possession, custody or control, including all documents, records and tangible
property that are not publicly available and reflect, refer or relate to the
Employer or the Employer's business affairs, operations or customers, and all
copies of the foregoing.
SECTION 6. NO ADMISSIONS. The Employer denies that it or any of its
employees or agents have taken any improper action against Employee, and
Employee agrees that this Agreement shall not be admissible in any proceeding
as evidence of improper action by the Employer or any of their employees or
agents.
SECTION 7. CONFIDENTIALITY. Employee and the Employer agree to keep
the existence and the terms of this Agreement confidential, except for
Employee's immediate family members or their legal or tax advisors in
connection with services related hereto and except as may be required by law
or in connection with the preparation of tax returns.
SECTION 8. NON-WAIVER. The Employer's waiver of a breach of this
Agreement by Employee shall not be construed or operate as a waiver of any
subsequent breach by Employee of the same or of any other provision of this
Agreement.
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IN WITNESS WHEREOF, the undersigned have set their hands the day and
year set forth below their respective signatures.
Main Street Trust, Inc.
By:
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Title: [Employee Name]
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Date: Date:
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