Exhibit 10.25
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 30th day of December, 2002,
by and between Lodestar Investment Counsel, LLC, a Delaware limited liability
company (hereinafter referred to as "Employer"), and William A. Goldstein
(hereinafter called "Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Executive currently serves as President, Secretary and Treasurer
of Lodestar Investment Counsel, Inc., an Illinois corporation ("Lodestar");
WHEREAS, The PrivateBank and Trust Company, an Illinois banking association
("PrivateBank"), and PrivateBancorp, Inc., a Delaware corporation ("PVTB"), have
entered into an Amended and Restated Unit Purchase Agreement by and among
PrivateBank, PVTB, Employer, Lodestar and certain other parties named therein
made effective as of September 4, 2002 (the "Purchase Agreement") for the
purpose of PrivateBank's acquisition of 80% of the membership interests of
Employer (the "Acquisition");
WHEREAS, in connection with the Acquisition, Employer and Executive have
agreed that Executive will be employed by Employer as of the effective date of
the Acquisition;
WHEREAS, Employer desires to employ Executive, and Executive desires to
serve, as the Chief Executive Officer of Employer; and
WHEREAS, Employer and Executive desire to supersede all prior agreements
between Executive and Lodestar and enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual promises herein contained
and subject to the conditions precedent set forth herein, the parties agree as
follows:
1. Employment and Term.
(a) Contingent upon Closing of Purchase Agreement. Executive's
employment with Employer, and the terms of this Agreement, are contingent
upon the consummation of the transactions contemplated in the Purchase
Agreement. In the event the Purchase Agreement is terminated prior to the
consummation of the transactions contemplated thereby, this Agreement shall
be null and void.
(b) Employment. Employer shall employ Executive as the Chief Executive
Officer of Employer, and Executive shall so serve, for the term set forth
in Paragraph 1(c).
(c) Term. The initial term of Executive's employment under this
Agreement shall commence on the effective date of the Acquisition (the
"Effective Date") and end on the fifth anniversary date of such Effective
Date (the "Initial Term"), subject to earlier termination as provided in
Paragraph 7.
2. Duties and Responsibilities.
(a) The duties and responsibilities of Executive are and shall
continue to be of an executive nature as shall be required by Employer in
the conduct of its business. Executive's powers and authority shall be as
prescribed by the Limited Liability Company Agreement of Employer dated as
of December 30, 2002 (the "LLC Agreement") and shall include all those
delegated to him by Lodestar prior to the Effective Date, together with the
performance of such other duties and responsibilities as from time to time
may be assigned to him by the Board of Managers of Employer (the "Board")
consistent with the position of Chief Executive Officer. Executive shall
report to the Board and Ralph B. Mandell, Chairman and Chief Executive
Officer of PVTB and PrivateBank, or his successor, or on any Change in
Control, to a person of similar seniority. Executive recognizes, that
during the period of his employment hereunder, he owes an undivided duty of
loyalty to Employer, and agrees to devote his full business time and
attention to the performance of said duties and responsibilities and to use
his best efforts to promote and develop the business of Employer.
Recognizing and acknowledging that it is essential for the protection and
enhancement of the name and business of Employer and the goodwill
pertaining thereto, Executive shall perform his duties under this Agreement
professionally, in accordance with the applicable laws, rules and
regulations and such standards, policies and procedures established by
Employer and the industry from time to time. Executive will not perform any
duties for any other business without the prior written consent of
Employer, and may engage in charitable, civic or community activities,
provided that such duties or activities do not materially interfere with
the proper performance of his duties under this Agreement. During the
period of employment, Executive agrees to serve as a member of the Board,
as well as to serve as a member of any committee of any said Board, to
which he may be elected or appointed.
(b) Notwithstanding that this Agreement provides for the employment of
Executive as Employer's Chief Executive Officer, nothing herein contained
shall assure Executive, nor in any manner be construed to constitute an
agreement by Employer to continue the employment of Executive after the
expiration of the Initial Term in such capacity or in any other capacity.
3. Base Salary. For services performed by Executive for Employer pursuant
to this Agreement during the period of Executive's employment with Employer,
Employer shall pay Executive a base salary at the rate of one hundred thousand
dollars ($100,000.00) per year, payable in substantially equal installments in
accordance with PrivateBank's regular payroll practices. Any compensation which
may be paid to Executive under any additional compensation or incentive plan of
Employer or PVTB or which may be otherwise authorized from time to time by the
Board (or an appropriate committee thereof) shall be in addition to the base
salary to which Executive shall be entitled under this Agreement. Executive's
base salary shall be subject to review from time to time, and Employer may (but
is not required to) increase the base salary as the Board, in its discretion,
may determine.
4. Annual Bonuses. For each calendar year during Executive's employment,
Executive shall be eligible to participate in Employer's employee bonus pool
(the "Bonus Pool") which shall include not less than thirty-five percent (35%)
of the quarterly Revenues of Employer. "Revenues" shall be determined in
accordance with generally accepted accounting
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principles; provided that for any partial calendar year, "Revenues" shall only
include Revenues of Employer received after the Effective Date. The Bonus Pool
shall be allocated such that Executive shall receive at least thirty-five
percent (35%) of the revenues attributable to Executive's designated accounts
(as determined in accordance with Employer's policies which shall not be altered
except with the unanimous approval of the Board and each executive of Employer
affected thereby).
5. Equity Incentive Compensation. During the term of employment hereunder,
Executive shall be eligible to participate in any equity-based incentive
compensation plan or program adopted by PVTB, including any plan providing for
the granting of options to purchase stock.
6. Other Benefits. In addition to the compensation described in Paragraphs
3, 4 and 5, above, Executive shall also be entitled to the following:
(a) Participation in Benefit Plans. Executive shall be entitled to
participate in all of the various retirement, welfare, fringe benefit, and
expense reimbursement plans, programs and arrangements of PVTB, PrivateBank
or Employer to the extent Executive is eligible for participation under the
terms of such plans, programs and arrangements, including, but not limited
to non-qualified retirement programs and deferred compensation plans;
provided that such benefits shall be consistent with the benefits provided
to similarly situated officers of PVTB and PrivateBank; provided, however,
that any benefits Executive receives from Employer shall offset any
comparable benefits provided by PVTB and PrivateBank to their employees
generally for which Executive is eligible for participation in accordance
herewith.
(b) Vacation. Executive shall be entitled to eight (8) weeks of
vacation per calendar year (prorated for any partial calendar year during
the Initial Term) or, if greater, such number of days of vacation with pay
during each calendar year during the period of employment in accordance
with Employer's applicable personnel policy as in effect from time to time.
(c) Expense Reimbursement. Employer shall reimburse Executive's
reasonable expenses incurred in performing services hereunder, which are
incurred and accounted for in accordance with Employer's policies and
procedures applicable thereto, which policies and procedures shall be
similar to those applicable to officers of PVTB and PrivateBank.
(d) Other Benefits. During the term of employment hereunder, Executive
shall be entitled to receive such other benefits and perquisites consistent
with past practices for such Executive at Lodestar as disclosed by Lodestar
to PVTB prior to the date hereof.
7. Termination. Unless earlier terminated in accordance with the following
provisions of this Paragraph 7, Employer shall continue to employ Executive and
Executive shall remain employed by Employer during the Initial Term as set forth
in Paragraph 1(c). Paragraph 8 hereof sets forth certain obligations of Employer
in the event that Executive's employment hereunder is terminated. Certain
capitalized terms used in this Paragraph 7 and in Paragraph 8 hereof are defined
in Paragraph 7(d), below.
(a) Death; Disability; Retirement. Except to the extent otherwise
provided in Paragraph 8 with respect to certain post-Date of Termination
(as hereinafter defined) payment
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obligations of Employer, Executive's employment with Employer shall
terminate immediately as of the Date of Termination in the event of
Executive's death, in the event that Executive becomes Disabled (as
hereinafter defined), or in the event that Executive retires upon or after
attaining age 65, prior to the fifth anniversary of the Effective Date for
personal or spousal health reasons or after such fifth anniversary for any
reason ("Retirement"). The Board shall promptly give Executive written
notice of any such determination of Executive's Disability and of any
decision of the Board to terminate Executive's employment by reason
thereof. In the event of Disability, until the Date of Termination, the
base salary payable to Executive under Paragraph 3 hereof shall be reduced
dollar-for-dollar by the amount of disability benefits, if any, paid to
Executive in accordance with any disability policy or program provided by
Employer.
(b) Discharge for Cause. In accordance with the procedures hereinafter
set forth, the Board may discharge Executive from his employment hereunder
for Cause (as hereinafter defined). Except to the extent otherwise provided
in Paragraph 8 with respect to certain post-Date of Termination obligations
of Employer, Executive's employment with Employer shall terminate
immediately as of the Date of Termination in the event Executive is
discharged for Cause. Any discharge of Executive for Cause shall be
communicated by a Notice of Termination to Executive given in accordance
with Paragraph 14 of this Agreement.
(c) Termination for Other Reasons. Employer may discharge Executive
without Cause by giving written notice to Executive in accordance with
Paragraph 14. Executive may resign from his employment with or without Good
Reason, by giving written notice to Employer in accordance with Paragraph
14 at least thirty (30) days prior to the Date of Termination; provided,
however, that no resignation shall be treated as a resignation for Good
Reason unless the written notice thereof is given within sixty (60) days
after the occurrence which constitutes "Good Reason", except for Good
Reason determined pursuant to clause (G) or (H) of Paragraph 7(d)(vi).
Except to the extent otherwise provided in Paragraph 8 with respect to
certain post-Date of Termination obligations of Employer, Executive's
employment with Employer shall terminate immediately as of the Date of
Termination in the event Executive is discharged without Cause or resigns.
(d) Definitions. For purposes of this Agreement, the following
capitalized terms shall have the meanings set forth below:
(i) "Accrued Obligations" shall mean, as of the Date of
Termination, the sum of (A) Executive's base salary under Paragraph 3
through the Date of Termination to the extent not theretofore paid,
(B) the amount of any deferred compensation and other cash
compensation accrued by Executive as of the Date of Termination to the
extent not theretofore paid, including any amounts attributable to
Executive's participation in the Bonus Pool for revenues received by
Employer through the Date of Termination relating to Executive's
designated accounts, determined in accordance with Paragraph 4, (C)
any vacation pay, expense reimbursements and other cash entitlements
accrued by Executive as of the Date of Termination to the extent not
theretofore paid, (D) any grants and awards vested or accrued under
any equity-based incentive compensation plan or program, and (E) all
other benefits which have accrued as of the Date of Termination. For
the purpose of this Paragraph 7(d)(i), except as provided in the
applicable plan, program or policy, amounts shall be deemed to accrue
ratably over
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the period during which they are earned, but no discretionary
compensation, other than participation in the Bonus Pool, shall be
deemed earned or accrued until it is specifically approved by the
Board in accordance with the applicable plan, program or policy.
(ii) "Cause" shall mean: (A) theft or embezzlement by Executive
from Employer or any of its subsidiaries or affiliates, (B)
Executive's conviction of a felony, (C) Executive's drug use or
intoxication on the job, (D) a material breach of this Agreement by
Executive that is not cured within thirty (30) days of his or her
receipt of written notice thereof from Employer, or (E) Executive's
statutory disqualification from acting as an investment adviser or an
investment adviser representative under federal or state law.
(iii) "Change in Control" of any Person shall mean any of the
following: (A) any sale, transfer or issuance or series of sales,
transfers and/or issuances of the equity interests in such Person
which results in any other Person or Persons owning a majority of the
equity interests in such Person, or (B) any recapitalization,
reorganization, reclassification, merger, consolidation or exchange to
which such Person is a party and as a result of which any other Person
or Persons owns a majority of the equity interests in such Person.
(iv) "Date of Termination" shall mean (A) in the event of a
discharge of Executive for or without Cause, the date Executive
receives a Notice of Termination, or any later date specified in such
Notice of Termination, as the case may be, (B) in the event of a
resignation by Executive, the date specified in the written notice to
Employer, which date shall be no less than thirty (30) days from the
date of such written notice, (C) in the event of Executive's death,
the date of Executive's death, (D) in the event of termination of
Executive's employment by reason of Disability pursuant to Paragraph
7(a), the date Executive receives written notice of such termination,
and (E) in the event of Executive's Retirement pursuant to Paragraph
7(a), the date specified in the written notice to Employer, which date
shall be no less than thirty (30) days from the date of such written
notice.
(v) "Disabled" and "Disability" shall mean that Executive will be
deemed to be disabled upon the earlier of (A) the end of a six (6)
consecutive month period, or of an aggregate period of nine (9) months
out of any consecutive twelve (12) months, during which, by reason of
physical or mental injury or disease, Executive has been unable to
perform substantially all of his usual and customary duties under this
Agreement or (B) the date that a reputable physician selected by the
Board, and as to whom Executive has no reasonable objection,
determines in writing that Executive will, by reason of physical or
mental injury or disease, be unable to perform substantially all of
Executive's usual and customary duties under this Agreement for a
period of at least six (6) consecutive months. If any question arises
as to whether Executive is disabled, upon reasonable request therefor
by the Board, Executive shall submit to reasonable medical examination
for the purpose of determining the existence, nature and extent of any
such disability.
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(vi) "Good Reason" shall mean, without Executive's express
written consent, the occurrence of any of the following circumstances;
provided, that (other than with respect to clause (G) or (H) below)
Executive gives Employer written notice of such circumstances and
Employer has not cured such circumstances within thirty (30) days of
its receipt of notice thereof: (A) material and adverse diminution in
Executive's position, duties, responsibilities or authority (except
during periods when Executive is unable to perform all or
substantially all of Executive's duties and/or responsibilities due to
Disability); (B) a material breach of any term of this Agreement by
Employer; (C) any reduction in Executive's base salary; (D) Executive
is required by Employer to relocate his permanent residence; (E) any
amendment to Sections 5.01, 5.02 or 5.03 of the LLC Agreement that is
made in contravention of the approvals required for such amendment to
be effectuated pursuant to Section 13.05 of the LLC Agreement; (F) the
failure of PVTB to nominate Executive for a second three-year term (or
the then-current length of the term applicable to members of PVTB's
board of directors) as a director of PVTB following his initial
three-year term on the board of directors of PVTB; (G) Executive
terminates his employment within the ninety (90) day period
immediately following the twelve (12)-month anniversary of a Change in
Control of PVTB or any subsidiary of PVTB if such subsidiary is then a
Member (as defined in the LLC Agreement) of Employer; (H) Executive
terminates his employment within the ninety (90) day period
immediately following the twelve (12)-month anniversary of a Change in
Control of Employer; or (I) any reduction in the Bonus Pool which
causes Executive's allocation pursuant to Paragraph 4 hereof to be
less than thirty-five percent (35%) of the revenues attributable to
Executive's designated accounts.
(vii) "Notice of Termination" shall mean a written notice which
(A) indicates the specific termination provision in this Agreement
relied upon, (B) sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated and (C) if the
Date of Termination is to be other than the date of receipt of such
notice, specifies the termination date.
(viii) All capitalized terms used in this Paragraph 7(d) but not
otherwise defined herein shall have the definitions ascribed to them
in LLC Agreement.
8. Obligations of Employer Upon Termination. The following provisions
describe the obligations of Employer to Executive under this Agreement upon
termination of employment. Employer and Executive agree that any and all
membership interests in Employer owned by Executive as of the Date of
Termination shall be treated as set forth in the LLC Agreement. Upon a
termination of Executive's employment for any reason other than (a) by Employer
for Cause or (b) by Executive without Good Reason, (x) Executive will be
eligible to receive health insurance benefits under the applicable plans at
premium rates on the same "cost-sharing" basis as was in effect immediately
prior to such termination until Executive is Medicare eligible, and (y) Employer
will provide office space and office services to Executive for a reasonable
period of time, not to exceed twelve (12) months, provided that Executive does
not compete with Employer (as described in Paragraph 12) during such period.
However, except as explicitly provided in this Agreement, nothing in this
Agreement shall limit or otherwise adversely affect any rights which Executive
may have under applicable law, under any other
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agreement with Employer or any of its affiliates or subsidiaries, or under any
compensation or benefit plan, program, policy or practice of Employer or any of
its affiliates or subsidiaries.
(a) Death, Disability, Retirement, Discharge for Cause, or Resignation
Without Good Reason. In the event Executive's employment with Employer
terminates pursuant to Paragraph 7(a) by reason of the death, Disability or
Retirement of Executive, or pursuant to Paragraph 7(b) by reason of the
discharge of Executive by Employer for Cause, or pursuant to Paragraph 7(c)
by reason of the resignation of Executive other than for Good Reason,
Employer shall pay to Executive, or his heirs or estate, in the event of
Executive's death, all Accrued Obligations in a lump sum in cash within
thirty (30) days after the Date of Termination; provided, however, that any
portion of the Accrued Obligations which consists of bonus, deferred
compensation, incentive compensation, insurance benefits or other employee
benefits shall be determined and paid in accordance with the terms of the
relevant plan or policy as applicable to Executive.
(b) Discharge Without Cause or Resignation for Good Reason. In the
event that Executive's employment with Employer terminates pursuant to
Paragraph 7(c) by reason of the discharge of Executive by Employer other
than for Cause or other than due to Executive's death, Disability, or
Retirement, or by reason of the resignation of Executive for Good Reason:
(i) Employer shall pay all Accrued Obligations to Executive in a
lump sum in cash within thirty (30) days after the Date of
Termination; provided, however, that any portion of the Accrued
Obligations which consists of bonus, deferred compensation, incentive
compensation, insurance benefits or other employee benefits shall be
determined and paid in accordance with the terms of the relevant plan
or policy as applicable to Executive;
(ii) Employer shall continue to pay for a period of eighteen (18)
months (the "Severance Period") the (A) Executive's then-current
annual base salary, and (B) bonus amount received by Executive, if
any, for the year immediately preceding the year in which such
termination of employment occurs, payable in substantially equal
monthly installments in accordance with Employer's regular payroll
practices; and
(iii) Employer shall continue, for the Severance Period,
Executive's right to maintain COBRA continuation coverage under the
applicable plans at premium rates on the same "cost-sharing" basis as
the applicable premiums paid for such coverage by active executives.
(c) Effect on Other Amounts. The payments provided for in this
Paragraph 8 shall be in addition to all other sums then payable and owing
to Executive, shall be subject to applicable federal and state income and
other withholding taxes and shall be in full settlement and satisfaction of
all of Executive's claims and demands. Upon termination of Executive's
employment with Employer, Employer shall have no obligations under this
Agreement, other than its obligations under this Paragraph 8, and Executive
shall have no obligations under this Agreement, other than Executive's
obligations under Paragraphs 11 and 12 hereof (to the extent applicable).
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(d) Conditions. Any payments or benefits made or provided pursuant to
this Paragraph 8 are subject to Executive's:
(i) compliance with the provisions of Paragraphs 11 and 12 hereof
(to the extent applicable);
(ii) delivery to Employer of an executed Release and Severance
Agreement, which shall be substantially in the form attached hereto as
Attachment A, with such changes therein or additions thereto as needed
under then applicable law to give effect to its intent and purpose;
and
(iii) delivery to Employer of a resignation from all offices and
fiduciary positions (including membership on the Board and membership
on PVTB's board of directors) with Employer, its affiliates and
employee benefit plans.
Notwithstanding the due date of any post-employment payments, any amounts due
under this Paragraph 8 shall not be due until after the expiration of any
revocation period applicable to the Release and Severance Agreement.
9. Dispute Resolution. In the event any dispute arises and the parties
after good faith efforts are unable to agree as to the calculation of the
amounts payable under this Agreement, it shall be settled in accordance with the
majority opinion of a committee consisting of an accountant chosen by Employer,
an accountant chosen by Executive and an independent accountant acceptable to
both Executive and Employer, as the case may be. The committee's determination
shall be binding and conclusive on the parties hereto. Employer shall pay all
fees and expenses of the dispute resolution.
10. Enforcement. In the event Employer shall fail to pay any amounts due to
Executive under this Agreement as they come due, Employer agrees to pay interest
on such amounts at a rate equal to the prime rate (as from time to time
published in The Wall Street Journal (Midwest Edition) plus four percent (4%)
per annum.
11. Confidential Information. Executive shall not at any time during or
following his employment hereunder, directly or indirectly, disclose or use on
his behalf or another's behalf, publish or communicate, except in the course of
his employment and in the pursuit of the business of Employer or any of its
subsidiaries or affiliates, any proprietary information or data of Employer or
any of its subsidiaries or affiliates, which is not generally known to the
public or which could not be recreated through public means and which Employer
may reasonably regard as confidential and proprietary. Executive recognizes and
acknowledges that all knowledge and information which he has or may acquire in
the course of his employment, such as, but not limited to the business,
developments, procedures, techniques, activities or services of Employer or the
business affairs and activities of any customer, prospective customer,
individual firm or entity doing business with Employer are its sole valuable
property, and shall be held by Executive in confidence and in trust for their
sole benefit. All records of every nature and description which come into
Executive's possession, whether prepared by him, or otherwise, shall remain the
sole property of Employer, and upon termination of his employment for any
reason, said records shall be left with Employer as part of its property.
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12. Non-Solicitation; Non-Competition. (a) Executive acknowledges that
Employer and any of its affiliates and subsidiaries by nature of their
respective businesses have a legitimate and protectable interest in their
clients, customers and employees with whom they have established significant
relationships as a result of a substantial investment of time and money, and but
for his employment hereunder, he would not have had contact with such clients,
customers and employees. Executive agrees that (x) during Executive's employment
with Employer and for a period equal to the Severance Period, if any, (if the
termination of employment was by Employer without Cause or by Executive for Good
Reason) or (y) during Executive's employment with Employer and, if Executive's
employment terminates prior to the fifth anniversary of the Effective Date, for
the remainder of the period from the Date of Termination through and including
the fifth anniversary of the Effective Date (if such termination was by Employer
for Cause or by Executive without Good Reason or due to Executive's Disability)
(the "Non-Compete Period"), he will not (except in his capacity as an executive
of Employer) directly or indirectly, for his own account, or as an agent,
executive, director, owner, partner, or consultant of any corporation, firm,
partnership, joint venture, syndicate, sole proprietorship or other entity which
has a place of business (whether as a principal, division, subsidiary,
affiliate, related entity, or otherwise) located within the Market Area (as
hereinafter defined):
(i) solicit or induce, or attempt to solicit or induce any client
or customer of Employer (and with respect to Employer's subsidiaries
or affiliates, any client or customer of such subsidiaries and
affiliates with whom Executive had contact, or who was identified to
Executive, during his employment with Employer) not to do business
with Employer or any of its subsidiaries or affiliates;
(ii) solicit or induce, or attempt to solicit or induce, any
executive, employee, member of the Board, independent contractor, or
agent of Employer (and with respect to Employer's subsidiaries or
affiliates, any executive, employee, member of the board of directors
or managers, as applicable, independent contractor, or agent of such
subsidiaries and affiliates with whom Executive had contact, or who
was identified to Executive, during his employment with Employer) to
terminate his or her relationship with Employer or any of its
subsidiaries or affiliates; or
(iii) carry on or be engaged in any business which is similar to
or in competition with Employer as it exists on the Date of
Termination.
For purposes of this Agreement, "Market Area" shall be an area encompassed
within a twenty-five (25) mile radius surrounding any place of business of
Employer (existing or specifically planned as of the Date of Termination of
employment).
The foregoing provisions shall not be deemed to prohibit (i) Executive's
ownership, not to exceed five percent (5%) of the outstanding shares, of capital
stock of any corporation whose securities are publicly traded on a national or
regional securities exchange or in the over-the-counter market or (ii) Executive
serving as a director of other corporations and entities to the extent these
directorships do not inhibit the performance of his duties hereunder or conflict
with the business of Employer.
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Notwithstanding anything in the foregoing to the contrary, in the event
Employer terminates Executive's employment without Cause or Executive terminates
his employment for Good Reason, Executive may elect to waive any and all rights
he has to any severance payments or benefits hereunder or otherwise, and the
foregoing provisions of this Paragraph 12(a) shall be of no further force and
effect.
(b) In addition to the foregoing, Executive agrees that during
Executive's employment with Employer and after the termination of his
employment with Employer for any reason he will not solicit any business,
which is similar to or in competition with the business conducted by
Employer as of the Date of Termination, from any client referred to
Lodestar or Employer directly by PVTB or its affiliates or from any client
that is under the primary coverage of another principal or investment
professional of Employer. Further, Executive agrees that he shall not
accept any business, which is similar to or in competition with the
business conducted by Employer as of the Date of Termination, from any such
client (even if not initially solicited by Executive) for a period of two
(2) years from the date his employment with Employer is terminated for any
reason. The list of clients included within the scope of this provision
will be agreed upon by PVTB, Employer, Executive and the other executive
officers of Employer from time to time.
13. Remedies. Executive acknowledges that the restraints and
agreements herein provided are fair and reasonable, that enforcement of the
provisions of Paragraphs 11 and 12 will not cause him undue hardship and
that said provisions are reasonably necessary and commensurate with the
need to protect Employer and its legitimate and proprietary business
interests and property from irreparable harm. Executive acknowledges and
agrees that (a) a breach of any of the covenants and provisions contained
in Paragraphs 11 or 12 above, will result in irreparable harm to the
business of Employer, (b) a remedy at law in the form of monetary damages
for any breach by him of any of the covenants and provisions contained in
Paragraphs 11 and 12 is inadequate, (c) in addition to any remedy at law or
equity for such breach, Employer shall be entitled to institute and
maintain appropriate proceedings in equity, including a suit for injunction
to enforce the specific performance by Executive of the obligations
hereunder and to enjoin Executive from engaging in any activity in
violation hereof and (d) the covenants on his part contained in Paragraphs
11 and 12, shall be construed as agreements independent of any other
provisions in this Agreement, and the existence of any claim, setoff or
cause of action by Executive against Employer, whether predicated on this
Agreement or otherwise, shall not constitute a defense or bar to the
specific enforcement by Employer of said covenants. In the event of a
breach or a violation by Executive of any of the covenants and provisions
of this Agreement, the running of the Non-Compete Period (but not of
Executive's obligation thereunder), shall be tolled during the period of
the continuance of any actual breach or violation.
14. Notices. Any notice or other communication required or permitted
to be given hereunder shall be determined to have been duly given to any
party (a) upon delivery to the address of such party specified below if
delivered personally or by courier; (b) upon dispatch if transmitted by
telecopy or other means of facsimile, provided a copy thereof is also sent
by regular mail or courier; or (c) within forty-eight (48) hours after
deposit thereof in the U.S. mail, postage prepaid, for delivery as
certified mail, return receipt requested, addressed, in any case, to the
party at the following address(es) or telecopy numbers:
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(a) If to Executive, at the address set forth on the signature page
hereof.
(b) If to Employer:
Lodestar Investment Counsel, LLC
208 South LaSalle Street
Suite 1710
Chicago, Illinois 60604
Attn: William A. Goldstein
Telecopy No.: (312) 630-9669
With a copy to:
Vedder, Price, Kaufman & Kammholz
222 North LaSalle Street
Chicago, Illinois 60601
Attn: Jennifer R. Evans
Telecopy No.: 312-609-5005
or to such other address(es) or telecopy number(s) as any party may designate by
Written Notice in the aforesaid manner.
15. Indemnification.
(a) In the event that legal action is instituted against Executive, by
anyone other than Employer, during or after the Initial Term based on the
performance or nonperformance by Executive of his duties hereunder,
Employer will assume the defense of such action by its attorneys or
attorneys selected by Executive reasonably satisfactory to Employer and
advance the costs and expenses thereof (including reasonable attorneys'
fees) without prejudice to or waiver by Employer of its rights and remedies
against Executive. In the event that there is a final judgment entered
against Executive in any such litigation, and Employer's Board determines
that Executive should, in accordance with its certificate of formation,
operating agreement, or insurance, reimburse such entities, Executive shall
be liable to Employer for all such costs and expenses paid or incurred by
them in the defense of any such litigation (the "Reimbursement Amount").
The Reimbursement Amount shall be paid by Executive within thirty (30) days
after rendition of the final judgment. Employer shall be entitled to set
off the reimbursement amount against all sums which may be owed or payable
by Employer to Executive hereunder or otherwise. The parties shall
cooperate in the defense of any asserted claim, demand or liability against
Executive or Employer or its subsidiaries or affiliates. The term "final
judgment" as used herein shall be defined to mean the decision of a court
of competent jurisdiction, and in the event of an appeal, then the decision
of the appellate court, after petition for rehearing has been denied, or
the time for filing the same (or the filing of further appeal) has expired.
(b) The rights to indemnification under this Paragraph 15 shall be in
addition to any rights which Executive may now or hereafter have under the
certificate of formation or operating agreement of Employer or any of its
affiliates or subsidiaries, under any insurance
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contract maintained by Employer or any of its affiliates or subsidiaries, or any
agreement between Executive and Employer or any of its affiliates or
subsidiaries.
16. Full Settlement; No Mitigation. Employer's obligation to make the
payments and provide the benefits provided for in this Agreement and otherwise
to perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action which Employer
may have against Executive or others. In no event shall Executive be obligated
to seek other employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this Agreement, and
such amounts shall not be reduced whether or not Executive obtains other
employment.
17. Payment in the Event of Death. In the event payment is due and owing by
Employer to Executive under this Agreement upon the death of Executive, payment
shall be made to such beneficiary as Executive may designate in writing, or
failing such designation, then the executor of his estate, in full settlement
and satisfaction of all claims and demands on behalf of Executive, shall be
entitled to receive all amounts owing to Executive at the time of death under
this Agreement. Such payments shall be in addition to any other death benefits
of Employer and in full settlement and satisfaction of all severance benefit
payments provided for in this Agreement.
18. Entire Understanding. This Agreement constitutes the entire
understanding between the parties relating to Executive's employment hereunder
and supersedes and cancels all prior written and oral understandings and
agreements with respect to such matters, except for the terms and provisions of
any employee benefit or other compensation plans (or any agreements or awards
thereunder), referred to in this Agreement, or as otherwise expressly
contemplated by this Agreement.
19. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the heirs and representatives of Executive and the successors and
assigns of Employer. Employer shall require any successor (whether direct or
indirect, by purchase, merger, reorganization, consolidation, acquisition of
property or membership interest, liquidation, or otherwise) to all or a
substantial portion of its assets, by agreement in form and substance reasonably
satisfactory to Executive, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that Employer would be
required to perform this Agreement if no such succession had taken place.
Regardless of whether such an agreement is executed, this Agreement shall be
binding upon any successor of Employer in accordance with the operation of law,
and such successor shall be deemed the "Employer" for purposes of this
Agreement.
20. Tax Withholding. Employer shall provide for the withholding of any
taxes required to be withheld by federal, state, or local law with respect to
any payment in cash, shares of stock and/or other property made by or on behalf
of Employer to or for the benefit of Executive under this Agreement or
otherwise. Employer may, at its option: (a) withhold such taxes from any cash
payments owing from Employer to Executive, (b) require Executive to pay to
Employer in cash such amount as may be required to satisfy such withholding
obligations and/or (c) make other satisfactory arrangements with Executive to
satisfy such withholding obligations.
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21. No Assignment. Except as otherwise expressly provided herein, this
Agreement is not assignable by any party and no payment to be made hereunder
shall be subject to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or other charge.
22. Execution in Counterparts. This Agreement may be executed by the
parties hereto in two (2) or more counterparts, each of which shall be deemed to
be an original, but all such counterparts shall constitute one and the same
instrument, and all signatures need not appear on any one counterpart.
23. Jurisdiction and Governing Law. Except as provided in Paragraph 9,
jurisdiction over disputes with regard to this Agreement shall be exclusively in
the courts of the State of Illinois, and this Agreement shall be construed and
interpreted in accordance with and governed by the laws of the State of
Illinois, without regard to the choice of laws provisions of such laws.
24. Severability. If any provision of this Agreement shall be adjudged by
any court of competent jurisdiction to be invalid or unenforceable for any
reason, such judgment shall not affect, impair or invalidate the remainder of
this Agreement. Furthermore, if the scope of any restriction or requirement
contained in this Agreement is too broad to permit enforcement of such
restriction or requirement to its full extent, then such restriction or
requirement shall be enforced to the maximum extent permitted by law, and
Executive consents and agrees that any court of competent jurisdiction may so
modify such scope in any proceeding brought to enforce such restriction or
requirement.
25. Survival. Provisions of this Agreement shall survive the Initial Term
and the termination of Executive's employment with Employer to the extent
provided herein.
26. Waiver. The waiver of any party hereto of a breach of any provision of
this Agreement by any other party shall not operate or be construed as a waiver
of any subsequent breach.
27. Amendment. No change, alteration or modification hereof may be made
except in a writing, signed by each of the parties hereto.
28. Construction. The language used in this Agreement will be deemed to be
the language chosen by Employer and Executive to express their mutual intent and
no rule of strict construction shall be applied against any person. Wherever
from the context it appears appropriate, each term stated in either the singular
of plural shall include the singular and the plural, and the pronouns stated in
either the masculine, the feminine or the neuter gender shall include the
masculine, feminine or neuter. The headings of the Paragraphs of this Agreement
are for reference purposes only and do not define or limit, and shall not be
used to interpret or construe the contents of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
ATTEST: LODESTAR INVESTMENT COUNSEL, LLC
/s/ Robert Dearborn By: /s/ William A. Goldstein
- ---------------------------------- -----------------------------------
Title: Manager
EXECUTIVE
Address: 208 S. LaSalle Street /s/ William A. Goldstein
Suite 1710 -------------------------------------
Chicago, Illinois 60604 William A. Goldstein
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Exhibit A to Employment Agreement
RELEASE AND SEVERANCE AGREEMENT
THIS RELEASE AND SEVERANCE AGREEMENT is made and entered into this ____ day
of _________, _____ by and between Lodestar Investment Counsel, LLC ("EMPLOYER")
and William A. Goldstein (hereinafter "EXECUTIVE").
EXECUTIVE'S employment with EMPLOYER terminated on __________, ______; and
EXECUTIVE has voluntarily agreed to the terms of this Release and Severance
Agreement in exchange for severance benefits under the Employment Agreement
("Employment Agreement") to which EXECUTIVE otherwise would not be entitled.
NOW THEREFORE, in consideration for severance benefits provided under the
Employment Agreement, EXECUTIVE on behalf of himself and his spouse, heirs,
executors, administrators, children, and assigns does hereby fully release and
discharge EMPLOYER, its officers, directors, Executives, agents, subsidiaries
and divisions, benefit plans and their administrators, fiduciaries and insurers,
successors, and assigns from any and all claims or demands for wages, back pay,
front pay, attorneys' fees and other sums of money, insurance, benefits,
contracts, controversies, agreements, promises, damages, costs, actions or
causes of action and liabilities of any kind or character whatsoever, whether
known or unknown, from the beginning of time to the date of these presents,
relating to his employment or termination of employment from EMPLOYER, including
but not limited to any claims, actions or causes of action arising under the
statutory, common law or other rules, orders or regulations of the United States
or any State or political subdivision thereof including the Age Discrimination
in Employment Act and the Older Workers Benefit Protection Act.
In consideration for the promises, covenants and payments described herein,
EMPLOYER fully releases EXECUTIVE and his agents, representatives, attorneys,
assigns, heirs, executors, and administrators from any and all liability,
claims, demands, actions, causes of action, suits, grievances, debts, sums of
money, agreements, promises, damages, back and front pay, costs, expenses,
attorneys' fees, and remedies of any type, which EMPLOYER may have and which are
known by EMPLOYER as of the date hereof (and except as otherwise set forth
herein), regarding any act that occurred up to and including the date on which
EXECUTIVE signs this Release and Severance Agreement, including, without
limitation, any claims arising or that arose or may have arisen out of or in
connection with EXECUTIVE'S employment or his separation of employment from
EMPLOYER.
EXECUTIVE acknowledges that EXECUTIVE'S obligations pursuant to Paragraphs
11 and 12, of the Employment Agreement relating to the use or disclosure of
confidential information, non-competition, and non-solicitation of customers and
employees shall continue to apply to EXECUTIVE and that any claims, actions,
causes of action, suits, damages, and remedies of any type of EMPLOYER resulting
from EXECUTIVE'S breach of such Paragraphs are not released by the immediately
preceding paragraph of this Release and Severance Agreement.
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This Release and Settlement Agreement supersedes any and all other
agreements between EXECUTIVE and EMPLOYER except agreements relating to
proprietary or confidential information belonging to EMPLOYER, and any other
agreements, promises or representations relating to severance pay or other terms
and conditions of employment are null and void.
This release does not affect EXECUTIVE'S right to any benefits to which
EXECUTIVE may be entitled under any Executive benefit plan, program or
arrangement sponsored or provided by EMPLOYER, including but not limited to the
Employment Agreement and the plans, programs and arrangements referred to
therein.
EXECUTIVE and EMPLOYER acknowledge that it is their mutual intent that the
Age Discrimination in Employment Act waiver contained herein fully comply with
the Older Workers Benefit Protection Act. Accordingly, EXECUTIVE acknowledges
and agrees that:
(a) The severance benefits exceed the nature and scope of that to
which he would otherwise have been legally entitled to receive.
(b) Execution of this Agreement and the Age Discrimination in
Employment Act waiver herein is his knowing and voluntary act;
(c) He has been advised by EMPLOYER to consult with his personal
attorney regarding the terms of this Agreement, including the
aforementioned waiver;
(d) He has had at least twenty-one (21) calendar days within which to
consider this Agreement;
(e) He has the right to revoke this Agreement in full within seven (7)
calendar days of execution and that none of the terms and provisions of
this Agreement shall become effective or be enforceable until such
revocation period has expired;
(f) He has read and fully understands the terms of this Agreement; and
(g) Nothing contained in this Agreement purports to release any of
EXECUTIVE'S rights or claims under the Age Discrimination in Employment Act
that may arise after the date of execution.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
indicated above.
LODESTAR INVESTMENT COUNSEL, LLC EXECUTIVE
By:
------------------------------ --------------------------------
Its: William A. Goldstein
-----------------------------
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