JACKSONVILLE SAVINGS BANK AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.1
JACKSONVILLE
SAVINGS BANK
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
This
Amended and Restated Agreement is made effective as of the 17th day of March
2009, by and between Jacksonville Savings Bank (the “Bank”), an Illinois
chartered savings institution, with its principal administrative office at 0000
Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000-0000 and Xxxxxx X. Xxxxxxxx
(“Executive”). Any reference to “Company” herein shall mean
Jacksonville Bancorp, Inc. or any successor thereto.
WHEREAS,
Executive has been employed by the Bank since 1976 and is presently serving as
its Chairman of the Board pursuant to an employment agreement between the Bank
and the Executive entered into as of January 1, 2004 (the “Employment
Agreement”); and
WHEREAS,
the Bank desires to amend and restate the Employment Agreement in order to make
changes to comply with Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”) and the final regulations issued thereunder in April 2007;
and
WHEREAS,
the Bank wishes to retain the services of Executive as an employee of the Bank
for the period provided in this Agreement; and
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, and upon
the other terms and conditions hereinafter provided, the parties hereby agree as
follows:
1. POSITION
AND RESPONSIBILITIES
During
the period of his employment hereunder, Executive agrees to serve as Chairman of
the Board of the Bank. During said period, Executive also agrees to
serve, if elected, as an officer and director of any subsidiary or affiliate of
the Bank. Failure to reappoint Executive as Chairman of the Board
without the consent of Executive during the term of this Agreement shall
constitute a breach of this Agreement.
2. TERMS
AND DUTIES
(a) The
period of Executive’s employment under this Agreement shall begin as of the date
first above written and shall continue for a period of thirty-six (36) full
calendar months thereafter, provided that all changes intended to comply with
Section 409A of the Code shall be retroactively effective to January 1, 2005;
and provided further that no retroactive change shall affect the compensation or
benefits previously provided to the Executive. Commencing on the
first anniversary date of this Agreement, and continuing at each anniversary
date thereafter, the Agreement shall renew for an additional year such that the
remaining term shall be three (3) years unless written notice of non-renewal is
provided to Executive at least ten (10) days and not more than thirty (30) days
prior to any such anniversary date, that the term of the
Agreement shall cease at the end of twenty-four (24) months following
such anniversary date. Prior to each notice period for non renewal,
the disinterested members of the Board of Directors of the Bank (“Board”) will
conduct a comprehensive performance evaluation and review of Executive for
purposes of determining whether to extend the Agreement, and the results thereof
shall be included in the minutes of the Board’s meeting.
(b) During
the period of his employment hereunder, except for periods of absence occasioned
by illness, reasonable vacation periods, and reasonable leaves of absence,
Executive shall devote substantially all his business time, attention, skill,
and efforts to the faithful performance of his duties hereunder including
activities and services related to the organization, operation and management of
the Bank; provided, however, that, with the approval of the Board, as evidenced
by a resolution of such Board, from time to time, Executive may serve, or
continue to serve, on the boards of directors of, and hold any other offices or
positions in, companies or organizations, which, in such Board’s judgment, will
not present any conflict of interest with the Bank, or materially affect the
performance of Executive’s duties pursuant to this Agreement. Nothing
in this Section shall be construed as preventing Executive from serving from
time to time on boards, committees, or holding positions of non-profit or
governmental organizations, including religious and civic groups, without the
need for Board approval.
3. COMPENSATION
AND REIMBURSEMENT
(a) The
compensation specified under this Agreement shall constitute the salary and
benefits paid for the duties described in Section 2(b). The Bank
shall pay Executive as compensation a salary of not less than $42,000 per year
(“Base Salary”). Such Base Salary shall be payable
biweekly. During the period of this Agreement, Executive’s Base
Salary shall be reviewed at least annually; the first such review will be made
no later than January 31 of each year during the term of this Agreement and
shall be effective from the first day of said month through the end of the
calendar year. Such review shall be conducted by a Committee
designated by the Board, and the Board may increase, but not decrease,
Executive’s Base Salary (any increase in Base Salary shall become the “Base
Salary” for purposes of this Agreement). In addition to the Base
Salary provided in this Section 3(a), the Bank shall provide Executive at no
cost to Executive with all such other benefits as are provided uniformly to
permanent full time employees of the Bank.
(b) The
Bank will provide Executive with employee benefit plans, arrangements and
perquisites substantially equivalent to those in which Executive was
participating or otherwise deriving benefit from immediately prior to the
beginning of the term of this Agreement, and the Bank will not, without
Executive’s prior written consent, make any changes in such plans, arrangements
or perquisites which would adversely affect Executive’s rights or benefits
thereunder. Without limiting the generality of the foregoing
provisions of this Subsection (b), Executive will be entitled to participate in
or receive benefits under any employee benefit plans, including but not limited
to, retirement plans, supplemental retirement plans, pension plans, profit
sharing plans, health and accident plans, medical coverage or any other employee
benefit plan or arrangement made available by the Bank in the future to its
senior executives and key management employees, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and arrangements. Executive will be entitled to incentive
compensation and bonuses as provided in any plan of the Bank in which Executive
is eligible to participate. Nothing paid to the Executive
under any such plan or arrangement will be deemed to be in lieu of other
compensation to which Executive is entitled under this Agreement.
(c) In
addition to the Base Salary provided for by paragraph (a) of this Section 3, the
Bank shall pay or reimburse Executive for all reasonable travel and other
reasonable expenses incurred by Executive performing his obligations under this
Agreement and may provide such additional compensation in such form and such
amounts as the Board may from time to time determine, and all such
reimbursements (and compensation) pursuant to this Section 3(c) shall be paid
promptly by the Bank and in any event no later than March 15 of the calendar
year immediately following the year in which the expense was incurred (or the
compensation was earned).
(d) Compensation
and reimbursement to be paid pursuant to paragraphs (a), (b) and (c) of this
Section 3 shall be paid by the Bank and the Company, respectively on a pro rata
basis based upon the amount of service Executive devotes to the Bank and
Company, respectively.
(e) In
addition to the foregoing, Executive shall be entitled to receive fees for
serving as a director of the Bank in the same amount and on the same terms as
fees are paid to other directors of the Bank, and such payments shall be made no
later than March 15 of the calendar year immediately following the year in which
the fees were earned.
4. PAYMENTS
TO EXECUTIVE UPON AN EVENT OF TERMINATION
The
provisions of this Section shall in all respects be subject to the terms and
conditions stated in Sections 8 and 15.
(a) The
provisions of this Section shall apply upon the occurrence of an Event of
Termination (as herein defined) during Executive’s term of employment under this
Agreement. As used in this Agreement, an “Event of Termination” shall
mean and include any one or more of the following: (i) the termination by the
Bank or the Company of Executive’s full time employment hereunder for any reason
other than, (A) Disability or Retirement as defined in Section 6 below, (B) a
Change in Control, as defined in Section 5(a) hereof, or (C) Termination for
Cause as defined in Section 7 hereof; or (ii) Executive’s resignation from the
Bank’s employ, upon any (A) failure to elect or reelect or to appoint or
reappoint Executive as Chairman of the Board, (B) material change in Executive’s
function, duties, or responsibilities, which change would cause Executive’s
position to become one of lesser responsibility, importance, or scope from the
position and attributes thereof described in Section 1, above, (C) a relocation
of Executive’s principal place of employment by more than 30 miles from its
location at the effective date of this Agreement, or a material reduction in the
benefits and perquisites to Executive from those being provided as of the
effective date of this Agreement, (D) liquidation or dissolution of the Bank or
Company other than liquidations or dissolutions that are caused by
reorganizations that do not affect the status of Executive, or (E) any other
breach of this Agreement by the Bank. Upon the occurrence of any
event described in clauses (ii)(A), (B), (C), (D) or (E), above, Executive shall
have the right to elect to terminate his employment under this Agreement by
resignation upon sixty (60) days prior written notice given within a reasonable
period of time not to exceed ninety (90) days after the initial event giving
rise to said right to elect; provided, however that the Bank has thirty (30)
days to remedy any condition under clause (ii) (A) through (E) above, but the
Bank may waive such cure period and make an immediate payment
hereunder. Notwithstanding the preceding sentence, in the event of a
continuing breach of this Agreement by the Bank, Executive, after giving due
notice within the prescribed time frame of an initial event specified above,
shall not waive any of his rights solely under this Agreement and this Section 4
by virtue of the fact that Executive has submitted his resignation but has
remained in the employment of the Bank and is engaged in good faith discussions
to resolve any occurrence of an event described in clauses (A), (B), (C), (D)
and (E) above.
(b) Upon
the occurrence of an Event of Termination, on the Date of Termination, as
defined in Section 8, the Bank shall pay Executive, or, in the event of his
subsequent death, his beneficiary or beneficiaries, or his estate, as the case
may be, as severance pay or liquidated damages, or both, a sum equal
to the greater of the payments due for the remaining term of the Agreement or
three (3) times the average of the three preceding years’ Base Salary, including
bonuses and any other cash compensation paid to Executive during such years, and
the amount of any benefits received pursuant to any employee benefit plans on
behalf of Executive, maintained by the Bank during such years. All
payments shall be made to the Executive in a single cash lump-sum distribution,
and shall commence within thirty (30) days following the Executive’s Date of
Termination, provided however, if Executive is a “Specified Employee,” as
defined in Treasury Regulation 1.409A-1(i), then, solely to the extent required
to avoid penalties under Code Section 409A, such payment shall be delayed until
the first day of the seventh full month following the Executive’s Date of
Termination.
(c) Notwithstanding
the provisions of Sections 4(a) and (b), and in the event that there has not
been a Change in Control as defined in Section 5(a), upon the voluntary
termination by the Executive upon giving sixty (60) days notice to the Bank
(which shall not be deemed to constitute an “Event of Termination” as defined
herein), the Bank, at the discretion of the Board of Directors, may pay
Executive, or in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, a severance payment in an
amount to be determined by the Board of Directors at the time of such voluntary
termination by the Executive. Such severance payment shall not exceed
three (3) times the average of the three preceding years’ Base Salary, including
bonuses and any other cash compensation paid to the Executive during such years,
and the amount of any benefits received pursuant to any employee benefit plans,
on behalf of the Executive, maintained by the Bank during such years. All
payments shall be made to the Executive in a single cash lump sum
distribution within thirty (30) days following the Executive’s
Date of Termination, provided however, if Executive is a “Specified Employee,”
as defined in Treasury Regulation 1.409A-1(i), then, solely to the extent
required to avoid penalties under Code Section 409A, such payment shall be
delayed until the first day of the seventh full month following the Executive’s
Date of Termination.
(d) Upon
the occurrence of an Event of Termination, the Bank will cause to be continued
life insurance and non-taxable medical and dental coverage substantially
identical to the coverage maintained by the Bank for Executive prior to his
termination, provided that such benefits shall not be provided in the event they
should constitute an unsafe or unsound banking practice relating to executive
compensation and employment contracts pursuant to applicable regulations, as is
now or hereafter in effect. Such coverage shall cease upon the
expiration of the remaining term of this Agreement.
(e) The
Executive’s termination of employment in accordance with Section 4 shall be
construed to require a “Separation from Service” as defined in Code Section 409A
and the Treasury Regulations promulgated thereunder, such that the Bank and
Executive reasonably anticipate that the level of bona fide services the
Executive would perform after termination would permanently decrease to a level
that is less than 50% of the average level of bona fide services performed
(whether as an employee or an independent contractor) over the immediately
preceding 36-month period.
5. CHANGE IN CONTROL
(a) No
benefit shall be payable under this Section 5 unless there shall have been a
Change in Control of the Bank or Company, as set forth below. For
purposes of this Agreement, a “Change in Control” of the Bank or Company shall
mean an event of a nature that (i) would be required to be reported in response
to Item 1(a) of the current report on Form 8-K, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the
“Exchange Act”), or (ii) results in a Change in Control of the Bank or the
Company within the meaning of the Home Owners’ Loan Act, as amended and
applicable rules and regulations promulgated thereunder as in effect at the time
of the Change in Control; or (iii) without limitation such a Change in Control
shall be deemed to have occurred at such time as (a) any “person” (as the term
is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes a
“beneficial owner” (as defined in Rule 13d-3 of the Exchange Act) directly or
indirectly, of securities of the Company representing 25% or more of the
Company’s outstanding securities except for any securities purchased by the
Bank’s employee stock ownership plan or trust; (b) individuals who constitute
the Board on the date hereof (the “Incumbent Board”) cease for any reason to
constitute at least a majority thereof; (c) a plan of reorganization, merger,
consolidation, sale of all or substantially all the assets of the Bank or
Company or similar transaction in which the Bank or the Company is not the
surviving institution occurs; (d) a proxy statement soliciting proxies from
stockholders of the Company, by someone other than the then current Board of
Directors of the Company, seeking stockholder approval of a plan of
reorganization, merger or consolidation of the Company or similar transaction
with one or more corporations as a result of which the outstanding shares of the
common stock of the Company are exchanged for or converted into cash or property
or securities not issued by the Company; or (e) a tender offer is made for 25%
or more of the voting securities of the Company and the shareholders owning
beneficially or of record 25% or more of the outstanding securities of the
Company have tendered or offered to sell their shares pursuant to such tender
offer and such tendered shares have been accepted by the tender
offeror. Notwithstanding
the foregoing, a “Change in Control” of the Bank or the Company shall not be
deemed to have occurred in connection with the conversion of Jacksonville
Bancorp, MHC to stock form. For these
purposes, “Incumbent Board” means, in the case of the Company or the Bank, the
Board of Directors of the Company or the Bank, respectively, on the date hereof,
provided that any person becoming a director subsequent to the date hereof whose
election was approved by a vote of at least three-quarters of the directors
comprising the Incumbent Board, or whose nomination for election by members or
stockholders was approved by the same nominating committee serving under an
Incumbent Board, shall be considered as though he were a member of the Incumbent
Board.
(b) If
any of the events described in Section 5(a) hereof constituting a Change in
Control have occurred, Executive shall be entitled to the benefits provided in
paragraphs (c), (d), (e), (f), (g) and (h) of this Section 5 upon his subsequent
termination of employment at any time during the term of this Agreement,
regardless of whether such termination results from (i) his resignation or (ii)
his dismissal upon the Change in Control.
(c) Upon
the occurrence of a Change in Control followed by the Executive’s termination of
employment, the Bank shall pay Executive, or in the event of his subsequent
death, his beneficiary or beneficiaries, or his estate, as the case may be, as
severance pay or liquidated damages, or both, a sum equal to the greater of the
payments due for the remaining term of the Agreement or 2.99 times the average
of the five preceding years’ Base Salary, including bonuses and any other cash
compensation paid to the Executive during such years, and the amount of any
contributions made to any employee benefit plans, on behalf of the Executive,
maintained by the Bank during such years. Such payment shall be made
by the Bank on the Date of Termination. All payments shall be made to
the Executive in a single cash lump-sum distribution within
thirty (30) days following the Executive’s Date of Termination,
provided however, if Executive is a “Specified Employee,” as defined in Treasury
Regulation 1.409A-1(i), then, solely to the extent required to avoid penalties
under Code Section 409A, such payment shall be delayed until the first day of
the seventh full month following the Executive’s Date of
Termination.
(d) For
the purposes of this Section 5, “termination of employment” shall be construed
to require a “Separation from Service” as defined in Code Section 409A and the
Treasury Regulations promulgated thereunder, such that the Bank and Executive
reasonably anticipate that the level of bona fide services the Executive would
perform after termination would permanently decrease to a level that is less
than 50% of the average level of bona fide services performed (whether as an
employee or an independent contractor) over the immediately preceding 36-month
period.
(e) Upon the occurrence of a Change in Control followed by the Executive’s termination of employment, the Bank will cause to be continued life insurance and nontaxable medical and dental coverage substantially identical to the coverage maintained by the Bank for Executive prior to his severance. Such coverage and payments shall cease upon the expiration of thirty six (36) months.
(f) Upon
the occurrence of a Change in Control, Executive will be entitled to any
benefits granted to him pursuant to any Stock Option Plan of the Bank or Holding
Company.
(g) Upon
the occurrence of a Change in Control the Executive will be entitled to any
benefits awarded to him under the Bank’s Recognition and Retention Plan or any
restricted stock plan in effect.
(h) Notwithstanding
the preceding paragraphs of this Section 5, if the aggregate payments or
benefits to be made or afforded to Executive under said paragraphs would be
deemed to include an “excess parachute payment” under Section 280G of the Code
or any successor thereto, the Executive’s benefits will be reduced to an amount,
the value of which is one dollar ($1.00) less than an amount equal to three (3)
times Executive's "base amount", as determined in accordance with said Section
280G. In the event a reduction is necessary, then the cash severance
payable by the Bank pursuant to Section 5 hereof shall be reduced by the minimum
amount necessary to result in no portion of the payments and benefits payable by
the Bank under Section 5 being non-deductible to the Bank pursuant to Section
280G of the Code and subject to excise tax imposed under Section 4999 of the
Code.
(i) Notwithstanding
the foregoing, there will be no reduction in the compensation otherwise payable
to Executive during any period during which Executive is incapable of performing
his duties hereunder by reason of temporary disability.
(j) Any
payments made to Executive pursuant to this Agreement or otherwise, are subject
to and conditioned upon their compliance with 12 U.S.C. § 1818(k) and any
applicable regulations promulgated thereunder.
6. TERMINATION
UPON RETIREMENT, DISABILITY, OR DEATH
(a)
Termination by the Bank of the Executive based on “Retirement” shall mean
termination in accordance with the Bank’s retirement policy or in accordance
with any retirement arrangement established with the Executive’s consent with
respect to him. Upon termination of employment upon Retirement, Executive shall
be entitled to all benefits under any retirement plan of the Bank and other
plans to which the Executive is a party.
(b)
Termination by the Bank of the Executive’s employment based on “Disability”
shall mean termination because (i) Executive is unable to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death, or last
for a continuous period of not less than 12 months; (ii) Executive is, by reason
of any medically determinable physical or mental impairment that can be expected
to result in death, or last for a continuous period of not less than 12 months,
receiving income replacement benefits for a period of not less than three months
under an accident and health plan covering employees of the Bank; or (iii)
Executive is determined to be totally disabled by the Social Security
Administration. In the event Executive is determined to be
Disabled, the Bank may terminate this Agreement, provided that the Bank shall
continue to be obligated to pay Executive his Base Salary, including bonuses and
any other cash compensation paid to Executive during such period for the
remaining term of this Agreement, or one (1) year, whichever is the longer
period of time, in accordance with the regular payroll practices of the Bank,
and provided further that any amounts actually paid to Executive pursuant to any
disability insurance or other similar such program which the Bank has provided
or may provide on behalf of its employees or pursuant to any xxxxxxx’x or social
security disability program shall reduce the compensation to be paid to
Executive pursuant to this paragraph.
(c) In
the event of Executive’s death during the term of this Agreement, his estate,
legal representatives or named beneficiaries (as directed by Executive in
writing) shall be paid Executive’s Base Salary at the rate in effect at the time
of Executive’s death for a period of one (1) year from the date of Executive’s
death, and the Bank will continue to provide continued non-taxable medical,
dental, family and other benefits normally provided for Executive’s family for
one (1) year after Executive’s death.
7. TERMINATION FOR CAUSE
The term
“Termination for Cause” shall mean termination because of the Executive’s
personal dishonesty, incompetence, willful misconduct, any breach of fiduciary
duty involving personal profit, intentional failure to perform stated duties,
willful violation of any law, rule, or regulation (other than traffic violations
or similar offenses) or final cease and desist order, or material breach of any
provision of this Agreement. In determining incompetence, the acts or
omissions shall be measured against standards generally prevailing in the
savings institutions industry. For purposes of this paragraph, no act
or failure to act on the part of Executive shall be considered “willful” unless
done, or omitted to be done, by the Executive not in good faith and without
reasonable belief that the Executive’s action or omission was in the best
interest of the Bank. Notwithstanding the foregoing, Executive shall
not be deemed to have been Terminated for Cause unless and until there shall
have been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than three fourths of the members of the Board at a
meeting of the Board called and held for that purpose (after reasonable notice
to Executive and an opportunity for him, together with counsel, to be heard
before the Board), finding that in the good faith opinion of the Board,
Executive was guilty of conduct justifying Termination for Cause and specifying
the particulars thereof in detail. The Executive shall not have the
right to receive compensation or other benefits for any period after Termination
for Cause. Any stock options granted to Executive under any stock
option plan of the Bank, the Company or any subsidiary or affiliate thereof,
shall not be exercisable upon Executive’s receipt of Notice of Termination for
Cause pursuant to Section 8 hereof, and shall be null and void subsequent to
Executive=s Termination for Cause, unless such Termination for Cause is found to
be wrongful or such dispute is otherwise decided in Executive=s favor, as set
forth in Section 8(c) hereof.
8. NOTICE
(a) Any
purported termination by the Bank or by Executive shall be communicated by
Notice of Termination to the other party hereto. For purposes of this
Agreement, a “Notice of Termination” shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive’s employment under the provision so
indicated.
(b) “Date
of Termination” shall mean the date specified in the Notice of Termination
(which, in the case of a Termination for Cause, shall not be less than thirty
(30) days from the date such Notice of Termination is given).
(c) If,
within thirty (30) days after any Notice of Termination is given, the party
receiving such Notice of Termination notifies the other party that a dispute
exists concerning the termination, except upon the occurrence of a Change in
Control and voluntary termination by the Executive, in which case the Date of
Termination shall be the date specified in the Notice, the Date of Termination
shall be the date on which the dispute is finally determined, either by mutual
written agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal having expired and no appeal having been perfected) and provided further
that the Date of Termination shall be extended by a notice of dispute only if
such notice is given in good faith and the party giving such notice pursues the
resolution of such dispute with reasonable diligence. Notwithstanding
the pendency of any such dispute, the Bank will continue to pay Executive his
full compensation in effect when the notice giving rise to the dispute was given
(including, but not limited to, Base Salary) and continue Executive as a
participant in all compensation, benefit and insurance plans in which he was
participating when the notice of dispute was given, until the dispute is finally
resolved in accordance with this Agreement, provided such dispute is resolved
within nine (9) months after the Date of Termination specified in the Notice or
Termination; notwithstanding the foregoing no compensation or benefits shall be
paid to Executive in the event the Executive is Terminated for
Cause. In the event that such Termination for Cause is found to have
been wrongful or such dispute is otherwise decided in Executive’s favor, the
Executive shall be entitled to receive all compensation and benefits which
accrued for up to a period of nine (9) months after the Termination for Cause,
and such amount shall be paid promptly by the Bank and in any event no later
than March 15 of the year immediately following the year in which the matter was
resolved. If such dispute is not resolved within such nine-month
period, the Bank shall not be obligated, upon final resolution of such dispute,
to pay Executive compensation and other payments accruing more than nine months
from the Date of the Termination specified in the Notice of
Termination. Amounts paid under this Section are in addition to all
other amounts due under this Agreement and shall not be offset against or reduce
any other amounts due under this Agreement.
9. POST TERMINATION OBLIGATIONS
(a) All
payments and benefits to Executive under this Agreement shall be subject to
Executive’s compliance with paragraph (b) of this Section 9 during the term of
this Agreement and for one (1) full year after the expiration or termination
hereof.
(b) Executive
shall, upon reasonable notice, furnish such information and assistance to the
Bank as may reasonably be required by the Bank in connection with any litigation
in which it or any of its subsidiaries or affiliates is, or may become, a
party.
10. NON
COMPETITION
(a) Upon
any termination of Executive’s employment hereunder pursuant to Section 4(c)
hereof, Executive agrees not to compete with the Bank and/or the Company for a
period of one (1) year following such termination in any city, town or county in
which the Bank and/or the Company has an office or has filed an application for
regulatory approval to establish an office, determined as of the
effective date of such termination, except as agreed to pursuant to a resolution
duly adopted by the Board. Executive agrees that during such period
and within said cities, towns and counties, Executive shall not work for or
advise, consult or otherwise serve with, directly or indirectly, any entity
whose business materially competes with the depository, lending or other
business activities of the Bank and/or the Company. The parties
hereto, recognizing that irreparable injury will result to the Bank and/or the
Company, its business and property in the event of Executive’s breach of this
Subsection 10(a) agree that in the event of any such breach by Executive, the
Bank and/or the Company will be entitled, in addition to any other remedies and
damages available, to an injunction to restrain the violation hereof by
Executive, Executive’s partners, agents, servants, employers, employees and all
persons acting for or with Executive. Nothing herein will be
construed as prohibiting the Bank and/or the Company from pursuing any other
remedies available to the Bank and/or the Company for such breach or threatened
breach, including the recovery of damages from Executive.
(b) Executive
recognizes and acknowledges that the knowledge of the business activities and
plans for business activities of the Bank and affiliates thereof, as it may
exist from time to time, is a valuable, special and unique asset of the business
of the Bank. Executive will not, during or after the term of his
employment, disclose any knowledge of the past, present, planned or considered
business activities of the Bank or affiliates thereof to any person, firm,
corporation, or other entity for any reason or purpose
whatsoever. Notwithstanding the foregoing, Executive may disclose any
knowledge of banking, financial and/or economic principles, concepts or ideas
which are not solely and exclusively derived from the business plans and
activities of the Bank, and Executive may disclose any information regarding the
Bank or the Company which is otherwise publicly available. In the
event of a breach or threatened breach by the Executive of the Provisions of
this Section 10, the Bank will be entitled to an injunction restraining
Executive from disclosing, in whole or in part, the knowledge of the past,
present, planned or considered business activities of the Bank or affiliates
thereof, or from rendering any services to any person, firm, corporation, other
entity to whom such knowledge, in whole or in part, has been disclosed or is
threatened to be disclosed. Nothing herein will be construed as
prohibiting the Bank from pursuing any other remedies available to the Bank for
such breach or threatened breach, including the recovery of damages from
Executive.
11. SOURCE
OF PAYMENTS
All
payments provided in this Agreement shall be timely paid in cash or check from
the general funds of the Bank. The Company, however, guarantees
payment and provision of all amounts and benefits due hereunder to Executive
and, if such amounts and benefits due from the Bank are not timely paid or
provided by the Bank, such amounts and benefits shall be paid or provided by the
Company.
12. EFFECT
ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS
This
Agreement contains the entire understanding between the parties hereto and
supersedes any prior employment agreement between the Bank or any predecessor of
the Bank and Executive, except that this Agreement shall not affect or operate
to reduce any benefit or compensation inuring to the Executive of a kind
elsewhere provided. No provision of this Agreement shall be
interpreted to mean that Executive is subject to receiving fewer benefits than
those available to him without reference to this Agreement.
13. NO ATTACHMENT
(a) Except
as required by law, no right to receive payments under this Agreement shall be
subject to anticipation, commutation, alienation, sale, assignment, encumbrance,
charge, pledge, or hypothecation, or to execution, attachment, levy, or similar
process or assignment by operation of law, and any attempt, voluntary or
involuntary, to affect any such action shall be null, void, and of no
effect.
(b) This
Agreement shall be binding upon, and inure to the benefit of, Executive and the
Bank and their respective successors and assigns.
14. MODIFICATION
AND WAIVER
(a) This
Agreement may not be modified or amended except by an instrument in writing
signed by the parties hereto.
(b) No
term or condition of this Agreement shall be deemed to have been waived, nor
shall there be any estoppel against the enforcement of any provision of this
Agreement, except by written instrument of the party charged with such waiver or
estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a
waiver of such term or condition for the future as to any act other than that
specifically waived.
15. REQUIRED
PROVISIONS
Notwithstanding
anything herein contained to the contrary, any payments to the Executive by the
Company are subject to and conditioned upon their compliance with Section 18(k)
of the Federal Deposit Insurance Act, 12 U.S.C. § 1828(k), and the regulations
promulgated thereunder in 12 C.F.R. Part 359.
16. SEVERABILITY
If, for
any reason, any provision of this Agreement, or any part of any provision, is
held invalid, such invalidity shall not affect any other provision of this
Agreement or any part of such provision not held so invalid, and each such other
provision and part thereof shall to the full extent consistent with law continue
in full force and effect.
17. HEADINGS
FOR REFERENCE ONLY
The
headings of sections and paragraphs herein are included solely for convenience
of reference and shall not control the meaning or interpretation of any of the
provisions of this Agreement.
18. GOVERNING
LAW
This
Agreement shall be governed by the laws of the State of Illinois, but only to
the extent not superseded by federal law.
19. ARBITRATION
Any
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration in accordance with the 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 Executive shall be entitled to seek specific performance of his
right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection with this
Agreement.
20. PAYMENT
OF LEGAL FEES
All
reasonable legal fees paid or incurred by Executive pursuant to any dispute or
question of interpretation relating to this Agreement shall be paid or
reimbursed by the Bank, provided that the dispute or interpretation has been
settled by Executive and the Bank or resolved in the Executive’s favor, and such
payment or reimbursement shall occur no later than two and one-half
months after the dispute is settled or resolved in the Executive’s
favor.
21. INDEMNIFICATION
The Bank
shall provide Executive (including his heirs, executors and administrators) with
coverage under a standard
directors’
and officers’ liability insurance policy at its expense, or in lieu
thereof, shall indemnify Executive (and his heirs, executors and administrators)
to the fullest extent permitted under federal 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 a director or officer of the Bank (whether or not he continues to be a
director or 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 (such
settlements must be approved by the Board of Directors of the
Bank). If such action, suit or proceeding is brought against
Executive in his capacity as an officer or director of the Bank, however, such
indemnification shall not extend to matters as to which Executive is finally
adjudged to be liable for willful misconduct in the performance of his
duties. No Indemnification shall be paid that would violate 12 U.S.C.
§ 1828(K) or any regulations promulgated thereunder.
22. SUCCESSOR TO THE BANK
The Bank
shall require any successor or assignee, whether direct or indirect, by
purchase, merger, consolidation or otherwise, to all or substantially all the
business or assets of the Bank or the Company, expressly and unconditionally to
assume and agree to perform the Bank’s obligations under this Agreement, in the
same manner and to the same extent that the Bank would be required to perform if
no such succession or assignment had taken place.
SIGNATURES
IN
WITNESS WHEREOF, the Bank has caused this Agreement to be executed by its duly
authorized officer, and Executive has signed this Agreement, on the date set
forth below.
|
JACKSONVILLE
SAVINGS BANK
|
||||
| JACKSONVILLE SAVINGS BANK | ||||
|
03/17/09
|
By:
|
/s/ Xxxxxxx X. Xxxx
|
||
|
Date
|
President
|
|||
| EXECUTIVE | ||||
|
03/17/09
|
By:
|
/s/ Xxxxxx X. Xxxxxxxx
|
||
|
Date
|
Xxxxxx
X. Xxxxxxxx
|
|||
