EXHIBIT 10.5
REVISED FORM OF EMPLOYMENT AGREEMENT
This Agreement is made by and between First Clover Leaf Bank, a federal
savings bank (the "Bank"), with its principal office in Edwardsville, Illinois,
and Xxxxxxx XxXxxxxx ("Executive") and is effective as of the effective date
(the "Effective Date") of the "Merger," as that term is defined in that certain
Agreement and Plan of Reorganization dated as of February 3, 2006 by and between
First Federal Financial Services, MHC, First Federal Financial Services, Inc.,
First Clover Leaf Financial Corp., Clover Leaf Bank ("CLB") and Clover Leaf
Financial Corp. ("CLFC")(the "Merger Agreement"). References herein to the
"Company" mean First Clover Leaf Financial Corp., a Maryland corporation that
owns 100% of the common stock of the Bank on the Effective Date. The Company is
a signatory to this Agreement for the sole purpose of guaranteeing the Bank's
performance hereunder.
WHEREAS, Executive has served as an officer of CLB, which was merged
with and into the Bank as of the Effective Date pursuant to the Merger
Agreement; and
WHEREAS, the Bank wishes to assure itself of the services of Executive
as an officer of the Bank following the Merger for the period provided in this
Agreement; and
WHEREAS, Executive agrees that this Agreement supersedes, replaces and
terminates her Change in Control Agreement dated as of December 31, 2003 with
CLB and CLFC.
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.
Executive agrees to serve as the Chief Financial Officer of the Company
and the Bank. In that position, Executive shall be responsible for [to come].
Executive also agrees to serve, if appointed or elected, as an officer and
director of any subsidiary or affiliate of the Bank.
2. TERM AND DUTIES.
(a) The term of this Agreement and the period of Executive's
employment hereunder will begin as of the Effective Date and continue for a
period of twelve (12) full calendar months thereafter. Commencing on the first
anniversary date of this Agreement (the "Anniversary Date"), and continuing at
each Anniversary Date thereafter, the Agreement shall renew for an additional
year such that the remaining term shall be twelve (12) full calendar months;
provided, however, that the Board shall at least sixty (60) days before such
Anniversary Date conduct a comprehensive performance evaluation and review of
the Executive for purposes of determining whether to extend this Agreement. The
Board shall give the Executive notice of its decision whether or not to renew
this Agreement at least thirty (30) days and not more than sixty (60) days prior
to the Anniversary Date and, if written notice of non-renewal is provided to the
Executive within said time frame, the term of this Agreement shall not be
extended.
(b) During the period of her employment hereunder, except for
periods of absence occasioned by illness, reasonable vacation periods, and
reasonable leaves of absence approved
by the Chief Executive Officer, Executive shall devote substantially all her
business time, attention, skill, and efforts to the faithful performance of her
duties hereunder including activities and services related to the organization,
operation and management of the Bank; provided, however, that, with the approval
of theBoard, Executive may serve, or continue to serve, on the boards of
directors of, and hold any other offices or positions in, business, social,
religious, charitable or similar organizations which, in the 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.
3. COMPENSATION, BENEFITS 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
$_______ per year ("Base Salary"). Such Base Salary shall be payable biweekly,
or with such other frequency as officers and employees are generally paid.
During the period of this Agreement, Executive's Base Salary shall be reviewed
at least annually. Such review shall be conducted by the Chief Executive
Officer, and the Bank may increase, but not decrease (except a decrease that is
generally applicable to all employees) Executive's Base Salary (with any
increase in Base Salary to become "Base Salary" for purposes of this Agreement).
In addition to the Base Salary, 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. Base Salary shall include any amounts of
compensation deferred by Executive under qualified and nonqualified plans
maintained by the Bank.
(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 insurance plans, medical coverage or any other
employee benefit plan or arrangement made available by the Bank or the Company
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 participate in any
incentive compensation and bonus plans offered by the Bank or the Company in
which Executive is eligible to participate. Nothing paid to 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, the Bank shall pay or
reimburse Executive for all reasonable travel and other reasonable expenses
incurred by Executive performing her obligations under this Agreement and may
provide such additional compensation in such form and such amounts as the Chief
Executive Officer may from time to time determine. The Bank shall reimburse
Executive for her ordinary and necessary business expenses including, without
limitation, fees for memberships in such clubs and organizations as Executive
and the Chief Executive Officer shall mutually agree are necessary and
appropriate for business purposes, and travel and entertainment expenses,
incurred in connection with the performance of her duties under this Agreement.
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4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein
defined) during Executive's term of employment under this Agreement, the
provisions of this Section 4 shall apply. As used in this Agreement, an "Event
of Termination" shall mean and include any of the following:
(i) the termination by the Bank of Executive's full-time
employment hereunder for any reason other than
termination governed by Section 5 (Termination for
Cause) or termination governed by Section 6
(termination due to Disability or death); or
(ii) Executive's resignation from the Bank's employ for
any of the following reasons:
(A) the failure to appoint or reappoint
Executive to the position set forth under
Section 1;
(B) a material change in Executive's functions,
duties, or responsibilities with the Bank,
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;
(C) a relocation of Executive's principal place
of employment by more than thirty (30) miles
from its location at the Effective Date of
this Agreement;
(D) a material reduction in the benefits and
perquisites to Executive from those being
provided as of the later of the Effective
Date or any subsequent Anniversary Date of
this Agreement, other than an employee-wide
reduction in pay or benefits;
(E) a liquidation or dissolution of the Company
or the Bank; or
(F) a material breach of this Agreement by the
Bank.
Upon the occurrence of any event described in clauses
(A), (B), (C), (D), (E) or (F), above, Executive
shall have the right to elect to terminate her
employment under this Agreement by resignation upon
not less than thirty (30) days prior written Notice
of Termination, as defined in Section 9(b), given
within ninety (90) days after the event giving rise
to said right to elect. 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 her
rights under this Agreement and this Section solely
by virtue of the fact that Executive has submitted
her resignation, provided Executive has remained in
the employment of the
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Bank and is engaged in good faith discussions to
resolve any occurrence of an event described in
clauses (A), (B), (C), (D) or (F) above.
(iii) (A) Executive's involuntary termination by the Bank
or the Company (or any successor thereto) on the
effective date of, or at any time following, a Change
in Control, or (B) Executive's resignation from the
employment with the Bank or the Company (or any
successor thereto) following a Change in Control as a
result of any event described in Section 4(a)(ii)(A),
(B), (C), (D), or (F) above. For these purposes, a
"Change in Control" shall mean a change in control of
a nature that: (i) would be required to be reported
in response to Item 5.01 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 0000 (xxx "Xxxxxxxx Xxx"); or (ii) 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 the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company
representing 25% or more of the combined voting power
of Company's outstanding securities except for any
securities purchased by the Bank's employee stock
ownership plan or trust; or (b) individuals who
constitute the Board of Directors of the Company on
the date hereof (the "Incumbent Board") cease for any
reason to constitute at least a majority thereof,
provided that any person becoming a director
subsequent to the date hereof whose election was
approved by a vote of at least a majority of the
directors of the Board, shall be, for purposes of
this clause (b), considered as though he were a
member of the Incumbent Board; or (c) a plan of
reorganization, merger, consolidation, sale of all or
substantially all the assets of the Bank or the
Company or similar transaction in which the Bank or
Company is not the surviving institution occurs.
(b) Upon the occurrence of an Event of Termination under Sections
4(a) (i) or (ii), on the Date of Termination, as defined in Section 9(b), the
Bank shall be obligated to pay Executive, or, in the event of her subsequent
death, her beneficiary or beneficiaries, or her estate, as the case may be, as
severance pay or liquidated damages, or both, an amount equal to the sum of: (i)
her earned but unpaid salary as of the date of her termination of employment
with the Bank; (ii) the benefits, if any, to which she is entitled as a former
employee under the employee benefit plans and programs and compensation plans
and programs maintained for the benefit of the Bank or Company's officers and
employees; (iii) the remaining payments that Executive would have earned, in
accordance with Sections 3(a) and 3(b), if she had continued her employment with
the Bank for twelve (12) full months following such Event of Termination, and
had earned the maximum bonus or incentive award in each calendar year that ends
during such term; and (iv) the annual contributions or payments that would have
been made on Executive's behalf to any employee benefit plans of the Bank as if
Executive had continued her employment with the Bank for twelve (12) full months
following such Event of Termination, based on contributions or payments made (on
an annualized basis) at the Date of Termination. Any payments hereunder shall be
made in a lump sum within thirty (30) days after the Date of Termination, or in
the event that Section 409A of the Internal Revenue Code of 1986, as amended
("Code") applies, no later
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than the first day of the seventh month following the Date of Termination. Such
payments shall not be reduced in the event Executive obtains other employment
following termination of employment.
(c) Upon the occurrence of an Event of Termination under Section
4(a)(iii), on the Date of Termination, as defined in Section 9(b), the Bank
shall be obligated to pay Executive, or, in the event of her subsequent death,
her beneficiary or beneficiaries, or her estate, as the case may be, as
severance pay or liquidated damages, or both, an amount equal to the sum of: (i)
her earned but unpaid salary as of the date of her termination of employment
with the Bank; (ii) the benefits, if any, to which she is entitled as a former
employee under the employee benefit plans and programs and compensation plans
and programs maintained for the benefit of the Bank or Company's officers and
employees; (iii) the remaining payments that Executive would have earned, in
accordance with Sections 3(a) and 3(b), if she had continued her employment with
the Bank for an eighteen (18) month period following such Event of Termination,
and had earned the maximum bonus or incentive award in each calendar year that
ends during such term; and (iv) the annual contributions or payments that would
have been made on Executive's behalf to any employee benefit plans of the Bank
or the Company as if Executive had continued her employment with the Bank for an
eighteen (18) month period following such Event of Termination, based on
contributions or payments made (on an annualized basis) at the Date of
Termination. Any payments hereunder shall be made in a lump sum within thirty
(30) days after the Date of Termination, or in the event that Section 409A of
Code applies, no later than the first day of the seventh month following the
Date of Termination. Such payments shall not be reduced in the event Executive
obtains other employment following termination of employment.
(d) To the extent required under applicable law, upon the
occurrence of an Event of Termination, the Bank will cause to be continued life,
medical and disability coverage substantially identical to the coverage
maintained by the Bank for Executive and her family prior to Executive's
termination.
(e) Notwithstanding anything in this Agreement to the contrary, in
no event shall the aggregate payments or benefits to be made or afforded to
Executive under this Section constitute an "excess parachute payment" under
Section 280G of the Code or any successor thereto, and in order to avoid such a
result, Executive's benefits hereunder shall be reduced, if necessary, 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
Section 280G. The allocation of the reduction required hereby shall be
determined by Executive.
5. TERMINATION FOR JUST CAUSE.
(a) The term "Termination for Just Cause" shall mean termination
because of the Executive's personal dishonesty, incompetence, willful
misconduct, 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.
(b) Notwithstanding Section 5(a), neither the Company nor the Bank
may terminate Executive for Just Cause unless and until there shall have been
delivered to her a Notice of
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Termination, finding that in the good faith opinion of the Chief Executive
Officer, Executive was guilty of conduct justifying Termination for Just Cause
and specifying the particulars thereof in detail. Executive shall not have the
right to receive compensation or other benefits for any period after Termination
for Just Cause. During the period beginning on the date of the Notice of
Termination for Just Cause through the Date of Termination, any unvested stock
options and related limited rights granted to Executive under any stock option
plan shall not be exercisable nor shall any unvested awards granted to Executive
under any stock benefit plan of the Bank, the Company or any subsidiary or
affiliate thereof, vest. At the Date of Termination, any such unvested stock
options and related limited rights and any such unvested awards shall become
null and void and shall not be exercisable by or delivered to Executive at any
time subsequent to such Termination for Just Cause. In the Event of Executive's
Termination for Just Cause, the Executive shall resign immediately as a director
of the Company and the Bank and as a director and/or officer of any subsidiary
or affiliate of the Company and/or the Bank.
6. TERMINATION FOR DISABILITY OR DEATH.
(a) The Bank or Executive may terminate Executive's employment
after having established Executive's Disability. For purposes of this Agreement,
"Disability" means a physical or mental infirmity that impairs Executive's
ability to substantially perform her duties under this Agreement and that
results in Executive's becoming eligible for long-term disability benefits under
a long-term disability plan of the Company or the Bank (or, if the Company or
the Bank has no such plan in effect, that impairs Executive's ability to
substantially perform her duties under this Agreement for a period of one
hundred eighty (180) consecutive days). The Chief Executive Officer shall
determine in good faith, based upon competent medical advice and other factors
that she reasonably believes to be relevant, whether or not Executive is and
continues to be disabled for purposes of this Agreement. As a condition to any
benefits, the Chief Executive Officer may require Executive to submit to such
physical or mental evaluations and tests as she deems reasonably appropriate, at
the Bank's expense. In the event of such Disability, Executive's obligation to
perform services under this Agreement will terminate. In the event of such
termination, Executive shall receive benefits under any disability program
sponsored by the Company or the Bank, provided such benefit is not less than the
benefit provided in the following sentence of this Section 6(a). In the event
the Company or the Bank does not sponsor any disability programs, the Executive
shall continue to receive her Base Salary at the rate in effect on the Date of
Termination for the remainder of the then-current term.
(b) In the event of Executive's death during the term of this
Agreement, her estate, legal representatives or named beneficiary or
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 the
remainder of the then-current term.
7. TERMINATION UPON RETIREMENT
Termination of Executive's employment based on "Retirement" shall mean
termination of Executive's employment on or after age 65 or in accordance with
any retirement policy established by the Bank or the Company with Executive's
consent with respect to her. Upon termination of Executive based on Retirement,
no amounts or benefits shall be due Executive under this Agreement, and
Executive shall be entitled to all benefits under any retirement plan of
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the Bank and other plans to which Executive is a party.
8. RESIGNATION FROM BOARDS OF DIRECTORS
In the event of termination of Executive's employment for any reason
other than upon a Change in Control, to the extent that Executive serves as a
director of the Company and the Bank, and/or as a director and/or officer of any
subsidiary or affiliate of the Company and/or the Bank, Executive shall
immediately resign as a director.
9. NOTICE.
(a) Any notice required hereunder shall be in writing and
hand-delivered to the other party. Any 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 (A) if Executive's employment
is terminated for Disability, thirty (30) days after a Notice of Termination is
given (provided that she shall not have returned to the performance of her
duties on a full-time basis during such thirty (30) day period), and (B) if her
employment is terminated for any other reason, the date specified in the Notice
of Termination.
(c) If the party receiving a Notice of Termination desires to
dispute or contest the basis or reasons for termination, the party receiving the
Notice of Termination must notify the other party within thirty (30) days after
receiving the Notice of Termination that such a dispute exists, and shall pursue
the resolution of such dispute in good faith and with reasonable diligence.
During the pendency of any such dispute, neither the Company nor the Bank shall
be obligated to pay Executive compensation or other payments beyond the Date of
Termination.
10. 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.
11. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior agreement between the Bank or any predecessor of
the Bank and Executive, including, without limitation, that certain Change in
Control Agreement dated as of December 31, 2003 with CLB and CLFC. No provision
of this Agreement shall be interpreted to mean that
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Executive is subject to receiving fewer benefits than those available to her
without reference to this Agreement.
12. NO ATTACHMENT; BINDING ON SUCCESSORS.
(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 effect 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.
13. 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.
14. REQUIRED PROVISIONS.
(a) The Bank may terminate Executive's employment at any time, but
any termination by the Bank other than Termination for Just Cause as defined in
Section 5 hereof shall not prejudice Executive's right to compensation or other
benefits under this Agreement. Executive shall have no right to receive
compensation or other benefits for any period after Termination for Cause.
(b) If Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank's affairs by a notice
served under Section 8(e)(3) [12 USC ss.1818(e)(3)] or 8(g)(1) [12 USC
ss.1818(g)(1)] of the Federal Deposit Insurance Act (the "FDI Act"), the Bank's
obligations under this Agreement shall be suspended as of the date of service,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Bank may in its discretion (i) pay Executive all or part of the
compensation withheld while its contract obligations were suspended and (ii)
reinstate (in whole or in part) any of its obligations which were suspended.
(c) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) [12 USC ss.1818(e)(4)] or 8(g)(1) [12 USC ss.1818(g)(1)] of the
FDI Act, all obligations of the Bank under this Agreement
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shall terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
(d) If the Bank is in default as defined in Section 3(x)(1) [12
USC ss.1813(x)(1)] of the FDI Act, all obligations of the Bank under this
Agreement shall terminate as of the date of default, but this paragraph shall
not affect any vested rights of the contracting parties.
(e) All obligations under this Agreement shall be terminated,
except to the extent determined that continuation of this Agreement is necessary
for the continued operation of the Bank, (i) by the Director of the OTS or his
or her designee, at the time the FDIC enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in Section
13(c) [12 USC ss.1823(c)] of the FDI Act; or (ii) by the Director or his or her
designee at the time the Director or his or her designee approves a supervisory
merger to resolve problems related to operation of the Bank or when the Bank is
determined by the Director 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.
(f) Notwithstanding anything herein contained to the contrary, any
payments to Executive by the Company, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with Section
18(k) of the FDI Act, 12 U.S.C. Section 1828(k), and the regulations promulgated
thereunder in 12 C.F.R. Part 359.
15. NON-COMPETITION AND POST-TERMINATION OBLIGATIONS.
(a) All payments and benefits to Executive under this Agreement
shall be subject to Executive's compliance with paragraph (b), (c) and (d) of
this Section 15.
(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; provided, however, that Executive shall
not be required to provide information or assistance with respect to any
litigation between the Executive and the Bank or any of its subsidiaries or
affiliates.
(c) Executive recognizes and acknowledges that the knowledge of
the business activities and plans for business activities of the Bank, the
Company and affiliates thereof, as it may exist from time to time, is a
valuable, special and unique asset of the business of the Bank, the Company and
affiliates thereof. 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, Company or affiliates thereof to any person,
firm, corporation, or other entity for any reason or purpose whatsoever (except
for such disclosure as may be required to be provided to the Office of Thrift
Supervision ("OTS"), the Federal Deposit Insurance Corporation ("FDIC"), or
other regulatory agency with jurisdiction over the Company, the Bank or
Executive). 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 which is
otherwise publicly available or which Executive is otherwise legally required to
disclose. In the event of a breach or threatened breach by
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Executive of the provisions of this Section 15, the Bank will be entitled to an
injunction restraining Executive from disclosing, in whole or in part, his
knowledge of the past, present, planned or considered business activities of the
Bank or the Company or any of their affiliates, or from rendering any services
to any person, firm, corporation or 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 and the Company from pursuing
any other remedies available to them for such breach or threatened breach,
including the recovery of damages from Executive.
(d) Upon any termination of Executive's employment hereunder for
any reason other than (i) pursuant to Section 4(a)(iii); (ii) pursuant to
Section 6(a); or (iii) any termination of Executive's employment hereunder as a
result of the expiration of the Executive's employment term following a notice
of non-renewal pursuant to Section 2(a), Executive agrees not to compete with
the Bank and the Company and any of their subsidiaries for a period of one (1)
year following such termination in any city, town or county in which the Bank
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. The parties hereto,
recognizing that irreparable injury will result to the Bank, its business and
property in the event of Executive's breach of this Section 15(d) agree that in
the event of any such breach by Executive, the Bank 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.
Executive represents and admits that Executive's experience and capabilities are
such that Executive can obtain employment in a business engaged in other lines
and/or of a different nature than the Bank, and that the enforcement of a remedy
by way of injunction will not prevent Executive from earning a livelihood.
Nothing herein will be construed as prohibiting the Bank and the Company from
pursuing any other remedies available to them for such breach or threatened
breach, including the recovery of damages from Executive. Executive further
agrees that Executive will not, in any manner whatsoever, during his employment
with the Company and the Bank and for a period of one (1) year following the
termination of Executive's employment, either as an individual or as a partner,
stockholder, director, officer, principal, employee, agent, consultant, or in
any other relationship or capacity, with any person, firm, corporation or other
business entity, either directly or indirectly, solicit or induce or aid in the
solicitation or inducement of any employees of the Company or the Bank to leave
their employment with the Company or the Bank. Executive further agrees that the
Executive will not, in any manner whatsoever, during Executive's employment with
the Company of the Bank and for a period of one (1) year following the
termination of Executive's employment with the Company or the Bank, either as an
individual or as a partner, stockholder, director, officer, principal, employee,
agent, consultant or in any other relationship or capacity with any person,
firm, corporation or other business entity, either directly or indirectly,
solicit the business of any customers or clients of the Company or the Bank at
the time of the termination of Executive's employment with the Company or the
Bank.
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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 binding arbitration, conducted before
a single arbitrator selected by the Bank and Executive sitting in a location
selected by the Bank and Executive within twenty-five (25) miles of
Edwardsville, Illinois 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.
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 Executive's favor.
21. INDEMNIFICATION.
(a) The Bank shall provide Executive (including her heirs,
executors and administrators) with coverage under a standard directors' and
officers' liability insurance policy at its expense, and shall indemnify
Executive (and her heirs, executors and administrators) to the fullest extent
permitted under applicable law against all expenses and liabilities reasonably
incurred by her in connection with or arising out of any action, suit or
proceeding in which she may be involved by reason of her having been a director
or officer of the Bank (whether or not she 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); provided, however, the Bank shall not be required to
indemnify or reimburse Executive for legal expenses or liabilities incurred in
connection with an action, suit or proceeding arising from any illegal or
fraudulent act committed by Executive. Any such indemnification shall be made
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consistent with OTS Regulations and Section 18(K) of the Federal Deposit
Insurance Act, 12 U.S.C. ss.1828(K), and the regulations issued thereunder in 12
C.F.R. Part 359.
(b) Notwithstanding the foregoing, no indemnification shall be
made unless the Bank gives the OTS at least 60 days' notice of its intention to
make such indemnification. Such notice shall state the facts on which the action
arose, the terms of any settlement, and any disposition of the action by a
court. Such notice, a copy thereof, and a certified copy of the resolution
containing the required determination by the Board shall be sent to the Regional
Director of the OTS, who shall promptly acknowledge receipt thereof. The notice
period shall run from the date of such receipt. No such indemnification shall be
made if the OTS advises the Bank in writing within such notice period, of its
objection thereto.
[Signatures on next page]
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IN WITNESS WHEREOF, the Company and the Bank have caused this Agreement
to be executed by their duly authorized representatives, and Executive has
signed this Agreement, effective as of the Effective Date. The Company has
become a party to this Agreement for the sole purpose of binding itself to the
duties and obligations set forth in Sections 10 and 21 hereof.
ATTEST: FIRST CLOVER LEAF BANK
By:
----------------------------- --------------------------------
Corporate Secretary President and
Chief Executive Officer
ATTEST: FIRST CLOVER LEAF FINANCIAL CORP.
By:
----------------------------- --------------------------------
Corporate Secretary President and
Chief Executive Officer
WITNESS: EXECUTIVE:
----------------------------- -----------------------------------
Corporate Secretary Xxxxxxx XxXxxxxx
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