Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT, CONSULTING AND NON-COMPETITION AGREEMENT
This Employment Agreement ("Agreement") is made and entered into this
22nd day of March, 2006, by and between WEST POINTE BANK AND TRUST COMPANY
("Company") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ("Employee") (together, the "Parties") and
amends and restates the agreement entered into between the Company and the
Employee on January 12, 2000;
WHEREAS, the Company is engaged in, among other things, the financial,
lending and banking business; and
WHEREAS, the Company is headquartered in, its principal place of
business is located in, and this Agreement is being signed in, Belleville,
Illinois; and
WHEREAS, the Employee desires to continue to be employed by the Company
as Chairman; and
WHEREAS, the parties acknowledge that the Employee, by virtue of his
long service with the Company and key position with the Company, has established
business relationships with the Company's clients which are unique and
substantial; and
WHEREAS, the Company compensates its employees to, among other things,
develop and preserve goodwill with its customers on the Company's behalf and
business information for the Company's ownership and use; and
WHEREAS, in light of the Employee's key position with the Company, if
the Employee were to leave the Company, the Company, in all fairness, would need
certain protections in order to prevent competitors of the Company from gaining
an unfair competitive advantage over the Company, diverting goodwill from the
Company, or misusing or misappropriating the Confidential Information.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the Parties agree as follows:
1. Employment. The Company agrees to continue the Employee's employment
with the Company, and the Employee agrees to continue his employment by the
Company, on the terms and conditions set forth below.
2. Term of Employment. The Employee's employment may be terminated, at any
time, without cause, by either party, on thirty (30) days written notice to the
other party.
3. Compensation. The Company agrees to pay to the Employee an Annual Base
Salary mutually agreed upon by the Parties, payable in equal semi-monthly or
other
convenient installments, and, in addition, the Company agrees to reimburse
the Employee and pay such other benefits and compensation, if any, as may be
mutually agreed upon between the Parties.
As used in this Agreement, "Annual Base Salary" shall mean the annual
payments by the Company to the Employee of regular, base salary for services
rendered, excluding all bonuses, overtime, special payments, contributions by
the Company to any employee benefit plan, but including any amounts the Employee
has elected to defer under a cash or deferred arrangement maintained by the
Company pursuant to Section 401(k) of the Internal Revenue Code of 1986, as
amended.
4. Duties. The Employee agrees to devote his best efforts to the
performance of his duties under this Agreement. The Employee shall not engage in
any business, calling or enterprise which is or may be contrary to the welfare,
interest or benefit of the business of the Company.
5. Consultation and Restrictions.
(a) The Employee acknowledges that:
(i) the Company has spent substantial money, time and effort over
the years in developing and solidifying its relationships with its
customers throughout the world and in developing its Confidential
Information; and
(ii) the Company is agreeing to provide the Employee with the
benefits described under this Agreement based upon the Employee's
assurances and promises contained herein not to divert the Company's
clients' goodwill, or to put himself in a position during or following
his employment with the Company in which the confidentiality of the
Company's Confidential Information might somehow be compromised.
(b) Accordingly, the Employee agrees that, during the term of his
employment with the Company and for ten (10) years thereafter, the
Employee will not, directly or indirectly, on the Employee's own behalf or
on behalf of any other person, firm, corporation or entity (whether as
owner, partner, consultant, employee, or otherwise):
(i) provide any executive- or managerial-level services in the
financial or banking industry in competition with the Company, for any
Competitor;
(ii) hold any executive- or managerial-level position with any
Competitor;
2
(iii) engage in any research, development and marketing activities
or efforts for a Competitor, whether as an employee, consultant,
independent contractor or otherwise, to assist the Competitor in
competing in the financial and banking industry in Belleville, Illinois
or within a ▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇;
(iv) cause or attempt to cause any client of the Company to divert,
terminate, limit, modify or fail to enter into an existing or potential
relationship with the Company; and
(v) solicit, entice, employ or seek to employ, in the financial and
banking industry, any executive- or managerial-level employee of, or
any consultant or advisor to, the Company.
(c) Definitions.
(i) "Confidential Information" shall mean:
(A) lists or other identification of clients or prospective
clients of the Company (and key individuals employed or engaged by
such entities);
(B) all compilations of information, correspondence, files,
formulae, lists, methods, models, notes or other writings, plans,
records, regulatory compliance procedures, reports, specialized or
technical data, source code, object code, documentation, and
software used in connection with the development, marketing,
business and dealings relating to the Company's services and
products;
(C) financial, lending and marketing data relating to the Company
or to the industry or other areas pertaining to the Company's
activities and contemplated activities;
(D) equipment, materials, procedures, processes, and techniques
used in, or related to, the development, marketing, use and quality
control of the Company's products and services;
(E) the Company's relations with its clients, prospective
clients, suppliers and prospective suppliers and the nature and type
of products or services rendered to such clients (or proposed to be
rendered to prospective clients);
(F) the Company's relations with its employees (including,
without limitation, salaries, job classifications and skill levels);
and
3
(G) any other information designated by the Company as
confidential, secret and/or proprietary (including, without
limitation, information provided by clients or suppliers of the
Company).
Notwithstanding the foregoing, the term "Confidential Information"
shall not consist of any data or other information which has been
made publicly available or otherwise placed in the public domain
other than by the Employee in violation of this Agreement.
(ii) "Competitor" shall mean any person, firm, banking institution,
corporation, partnership or other entity which (a) in its prior fiscal
year had annual gross revenues from financial and banking related
services of more than $10,000,000 or is reasonably expected to have
such sales or revenues in either the current fiscal year or the next
following fiscal year and (b) operates in Belleville, Illinois or
within a ▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
(d) The Employee agrees that for a period of ten (10) years following
his termination of employment he will make himself available to render
consulting services to the Company on strategic matters as requested by
the Company. Provided, however, that the performance of such services
shall not require the Employee's physical presence at the Company but
shall be sufficient if provided by telephone, by letter or e-mail
advice or by meetings with Company officials and others at such place
or places as may be mutually convenient and acceptable to the Company
and the Employee.
6. Consideration for Consultation and Restrictions. In consideration for
the Employee's agreement to render consulting services and to the other
restrictions under this Agreement, the Company shall pay to the Employee each
year for a period of ten (10) years the greater of (i) an amount equal to 50% of
the Employee's Annual Base Salary for the calendar year ending prior to the
Employee's date of termination of employment, or (ii) an amount equal to 50% of
the Employee's Annual Base Salary as of the Employee's date of termination of
employment, payable in equal monthly installments, commencing with the first day
of the first month following his termination of employment.
In the event of a breach or threatened breach of any of the Employee's
duties and obligations under the terms and provisions of Sections 4 or 5, the
Company shall be entitled to cease any and all future payments under this
Section 6.
4
In consideration of the Employee's past service to the Company, a death
benefit shall be payable to the Employee's current spouse in the event she
survives the Employee as follows:
(a) In the event of the death of the Employee either while employed by
the Company or after the termination of his employment with the Company,
the Company shall pay to the Employee's current wife the same amount that
would otherwise have been paid to the Employee in accordance with the
provisions of this Section 6 had the Employee lived and terminated
employment. Such amounts shall be payable in equal monthly installments,
commencing with the first day of the first month following the Employee's
death and shall continue until the earlier of (i) such wife's death, or
(ii) the tenth anniversary of the commencement of payments under this
Section 6, whichever is earlier.
(b) Upon the death of the Employee's current wife, the Company shall not
be obligated to make any further payments under this Section 6. Neither the
Employee's nor his wife's personal representative, heirs or any other
beneficiary shall have any claim to any Death Benefit payments under this
Section 6.
7. Acknowledgment Regarding Restrictions. The Employee recognizes and
agrees that the restraints contained in Section 5 (both separately and in total)
are reasonable and should be fully enforceable in view of the high-level
positions the Employee has had with the Company, the nature of both the
Company's business and competition in the financial and banking industry, the
Company's legitimate interest in protecting its Confidential Information and its
client's goodwill and relationships. The Employee specifically hereby
acknowledges and confirms that he is willing and intends to, and will, abide
fully by the terms of Section 5. The Employee further agrees that the Company
would not have adequate protection if the Employee were permitted to work for
its Competitors in violation of the terms of this Agreement since the Company
would be unable to verify whether:
(a) its Confidential Information is being disclosed and/or misused, and
(b) the Employee was involved in diverting or helping to divert the
Company's clients and/or its clients' goodwill.
8. Company's Right to Injunctive Relief. In the event of a breach or
threatened breach of any of the Employee's duties and obligations under the
terms and provisions of Section 5, the Company shall be entitled, in addition to
any other legal or equitable remedies it may have in connection therewith
(including any rights to damages that it may suffer), to temporary, preliminary
and permanent injunctive relief restraining such breach or threatened breach.
The Employee hereby expressly acknowledges that the harm which might result to
the Company's business as a result of noncompliance by the Employee with any of
the provisions of Section 5 would be largely irreparable. The Employee
specifically agrees that if there is a question as to the enforceability of any
of the provisions of Section 5, the Employee will not engage in any conduct
inconsistent
5
with or contrary to such Section until after the question has been resolved by a
final judgment of a court of competent jurisdiction. The Employee undertakes and
agrees that if the Employee breaches or threatens to breach the Agreement, the
Employee shall be liable for any attorneys' fees and costs incurred by the
Company in enforcing its rights under this Agreement.
9. Employee Agreement to Disclose this Agreement. The Employee agrees to
disclose, during the ten (10) year period following his termination of
employment with the Company, the terms of this Agreement to any potential future
employer.
10. Notice. Any notice to be given by either party to this Agreement shall
be in writing and shall be deemed to have been given:
(a) when delivered personally or by courier,
(b) on the third business day following the mailing thereof by
registered or certified mail, postage pre-paid, or
(c) on the first business day following the mailing thereof by
overnight delivery service,
addressed to the Company at its principal business office, and to the
Employee at his address as shown on the records of the Company.
11. Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect any other provision, and this
Agreement shall be construed in all respects as if such invalid or unenforceable
provision were omitted.
12. Assignment. Neither this Agreement, nor any rights or obligations
hereunder, may be assigned by the Employee, nor, without the prior written
consent of the Employee, by the Company, except that this Agreement and such
rights and obligations shall be binding upon and inure to the benefit of any
successor to the Company, whether by merger, consolidation or otherwise.
13. Waivers. No waiver or modification of this Agreement or of any
covenant, condition or limitation contained herein shall be valid, unless in
writing, and duly executed by the party to be charged with the waiver, and no
evidence of any waiver or modification shall be offered or received in evidence
in any proceeding, arbitration or litigation between the Parties arising out of
or affecting this Agreement, or the rights or obligations of the Parties, unless
such waiver or modification is in writing, duly executed as provided in this
Section, and the Parties further agree that the provisions of this Section may
not be waived, except as is set forth in this Section. The failure of either
party to exercise or otherwise act with respect to any of its or his rights in
the event of a breach of any of the terms or conditions of this Agreement by the
other party, shall not be construed as a waiver of such breach, nor thereafter
prevent such party from enforcing strict compliance with any and all of the
terms and conditions of this Agreement.
6
14. Miscellaneous. This Agreement embodies the entire agreement and
understanding between the Parties with respect to the subject matter of this
Agreement. This Agreement has been executed and delivered in the State of
Illinois and shall be construed in accordance with, and governed by, the laws of
such state without regard to the principles of conflicts of law which might
otherwise apply. This Agreement shall be binding upon and inure to the benefit
of the Company and its successors and assigns, and the Employee and his heirs,
executors, administrators and legal representatives, subject to the provisions
of Section 12.
IN WITNESS WHEREOF, the Parties have executed this Agreement, as of the
day and year first above written.
WEST POINTE BANK AND TRUST COMPANY
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
March 22, 2006
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Director
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
March 22, ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Director, Chairman of the
Board of Directors
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
March 22, 2006
▇▇▇▇▇ ▇. ▇▇▇▇▇
Director
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
March 22, 2006
▇▇▇▇ ▇. ▇▇▇▇▇▇
Director
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
------------------------------------
March 22, 2006
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Director
7
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
March 22, ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Director, President
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
------------------------------------
March 22, 2006
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
Director
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
March 22, ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇, Director
ATTEST:
/s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------
Secretary
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
March 22, ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
8
