Exhibit
10.2


 


AGREEMENT
AND GENERAL RELEASE


 


This Agreement and
General Release (this “Agreement”) is made and entered into by and
between Daniel P. Grotto (the “Employee”), West Suburban Bancorp, Inc.
(the “Company”) and West Suburban Bank (the “Bank”).  This Agreement shall be effective on the date
following the revocation period set forth in Section 10 below, which
period shall commence on the date this Agreement is signed by Employee, which
shall be evidenced by the date appearing after Employee’s signature on the last
page of this Agreement.


 


AGREEMENTS


 


NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth, the
parties hereto agree as follows:


 


Section 1.                                          Recognition
Payment.


 


(a)                                  Recognition
Payment.  In
consideration for the promises made in this Agreement, the Bank agrees to pay
Employee a recognition payment in the gross amount of One Hundred Thousand
Dollars ($100,000.00), payable in one lump sum on the first payroll date as is
administratively practicable following the Effective Date (as defined in Section 10
below). The amount paid hereunder shall be subject to all applicable reporting
and withholding as required by law and to any other applicable payroll
deductions.


 


(b)                                  Acknowledgement
of Non-Entitlement.  Employee
expressly agrees, understands and acknowledges that the payment provided
Employee under subsection (a) above constitutes amounts in excess of that
to which a separated employee of the Bank would be entitled to receive without
entering into this Agreement, and that the above recognition payment is being
provided by the Bank to Employee as consideration for Employee’s entering into
this Agreement, including the release of claims and waiver of rights provided
for in Section 2.


 


Section 2.                                          Termination of
Employment Agreement and Acknowledgments Related Thereto.  The Company and Employee hereby
terminate the Restated Employment Agreement by and between Employee and the
Company dated December 31, 2008 (the “Employment Agreement”).  Employee and the Company hereby acknowledge
and agree that the following payments and benefits, subject to all applicable
reporting and withholding as required by law and to any other applicable
payroll deductions, shall be made in connection with the termination of the
Employment Agreement and in full satisfaction of the Company’s and the Bank’s
obligations under the Employment Agreement:


 


(a)                                  Payment to Employee of $535,837.95 payable upon the
execution of this Agreement.


 


(b)                                  Contribution to the West Suburban Bancorp, Inc.
Directors and Senior Management Deferred Compensation Plan of $50,000.00, to be
contributed on January 31, 2010.


 


(c)                                  Payment of Employee’s monthly
group health and dental insurance COBRA premiums less Employee’s portion of the
monthly premiums for eighteen (18) months (this requires Employee to make the
COBRA elections and pay the Employee portions).


 

















 


(d)                                  Payment of the premiums for Employee’s
Long-term Care Insurance through December 31, 2011.


 


(e)                                  The Amended and Restated
Life Insurance Agreement between Employee and the Company effective March 8,
2004 shall remain in effect through December 31, 2011.


 


(f)                                    The amount necessary to
satisfy Employee’s safe harbor contribution of 3% based on Employee’s
compensation earned through December 4, 2009 under the West Suburban Bank
401(k) Profit Sharing Plan for the 2009 plan year, which amount will be
paid to the 401(k) plan at the time the safe harbor contribution is made
for all employees.


 


Section 3.                                          Employee Release of Claims and Waiver of Rights.  Employee,
on Employee’s own behalf and that of Employee’s heirs, attorneys,
administrators, assigns and any other person or entity that has or may claim to
have any right, title or interest in any Employee Released Claims (as such term
is defined below) (collectively, the “Employee Releasors”) knowingly and
voluntarily waives, and fully releases the Company, the Bank, and its and their
past and current predecessors, successors, parents, subsidiaries, attorneys, and
employee retirement and welfare benefit plans, and assigns, and its and their
current, and future directors, officers, trustees, employees, and attorneys,
whether in their individual or official capacities, and the past and current trustees
or administrators of any retirement or other benefit plan applicable to the
employees, in their official and individual capacities (collectively, the “Released
Parties”) from any and all claims or causes of action arising out of or in
connection with Employee’s employment.  Employee
Released Claims include, but are not limited to:


 


·                  any and all claims, actions,
causes of action, charges, liabilities, demands, controversies of any kind and
description, and all other liabilities of whatever nature, and whether at
common law, statute, law or equity or otherwise, which the Releasors now have,
whether known or unknown, fixed or contingent, claimed or unclaimed, suspected
or unsuspected, filed or not filed, whether past or currently existing, whether
arising out of agreement or imposed by law or otherwise, and whether damage has
yet resulted from law or otherwise;


 


·                  any and  all claims, demands, actions, or
liabilities based upon, related to or arising under the Released Parties’
policies and procedures, whether formal or informal, or asserting the Released
Parties has violated the Bank’s or the Company’s policies, handbooks, or
manuals;


 


·                  any and  all claims, demands, actions, or
liabilities based upon, related to or arising under any statutory or
contractual right of payment or any claim for relief on the basis of any
alleged tort or breach of contract under the common law of the State of
Illinois or any other state including, but not limited to, defamation,
intentional or negligent infliction of emotional distress, breach of the
covenant of good faith and fair dealing, promissory estoppel, and/or
negligence;


 


·                  any and  all claims, demands, actions, or
liabilities asserting the Released Parties are in any way obligated or
responsible for any reason to pay Employee damages,


 


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expenses, litigation costs (including attorneys’
fees), back pay, front pay, compensatory damages, punitive damages, and/or
interest; and


 


·                  all claims,
demands, actions, or liabilities based in whole or in part on claims of
discrimination, harassment, or retaliation on the basis of age, national
origin, ancestry, race, religion, sex, sexual harassment, sexual orientation,
disability or medical condition, or any alleged exercise of a legally protected
right.


 


Released
Claims include all claims, rights and causes of action Employee has or may have
under all contract, common law, federal, state or local statute, ordinance,
regulation, rules or
orders, including, but not limited to, any claim, right or causes of action
based on the United States or State of Illinois Constitutions; Title VII of the
Civil Rights Act of 1964, as amended; the Age Discrimination in Employment Act,
as amended by the Older Workers Benefit Protection Act; the Civil Rights Act of
1991; 42 U.S.C. §1981; the Illinois Human Rights Act, as amended; the Illinois
Personnel Record Review Act, as amended; the Employee Retirement Income
Security Act of 1974, as amended; the Americans With Disabilities Act;
Executive Order 11246; and the Family and Medical Leave Act.


 


Section 4.                                          Employee Excluded
Claims.  Excluded
from the Employee release of claims and waiver of rights set forth in Section 3
above are any claims or rights which cannot be waived by law, including (1) any
claims related to the payment of accrued and unused vacation pay, which
Employee represents and agrees totals 10.5 vacation days, (2) any claims
for benefits under the tax-qualified retirement plans in which Employee participated,
all of which shall be paid according to the terms of the applicable plan or (3) any
claim challenging the enforceability of this Agreement; (4) Employee’s right
to file a charge with an administrative agency or participate in any agency
investigation, provided, however, that Employee
is waiving the right to recover any money in connection with a charge or
investigation concerning the claims that are lawfully released in Section 3,
and the right to recover any money in connection with a charge filed by any
other individual or by the Equal Employment Opportunity Commission or any other
federal or state agency.


 


Section 5.                                          Covenant Not to
Sue.  A “covenant
not to sue” is a legal term and is not the same thing as a release of claims or
waiver of rights as set forth in Section 3.  A covenant not to sue means that Employee
agrees not to file a lawsuit.  Employee
agrees not to sue or to file any actions against the Company, the Bank or any
of the Released Parties with respect to any claims that Employee may have up to
and including the date of Employee’s signing of this Agreement, including any
claims under the Employment Agreement. 
Employee represents and warrants that Employee has not filed any claim,
demand, action or charge to date against any Released Party.  Even though Employee has signed this
Agreement and this Covenant Not to Sue, Employee may bring a claim against the Company
or the Bank to enforce this Agreement or to challenge the validity of this
Agreement under the Age Discrimination in Employment Act.


 


Section 6.                                          Company Release
of Claims and Waiver of Rights.  The Company, on its own behalf and that of its affiliates and
subsidiaries and any other person or entity that has or may claim to have any
right, title or interest in any Company Released Claims (as defined below)
knowingly and voluntarily waives and fully releases the Employee from any and
all


 


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claims or causes of action
arising out of or in connection with Employee’s employment.  Company Released Claims include, but are not
limited to:


 


·                  any and all claims,
actions, causes of action, charges, liabilities, demands, controversies of any
kind and description, and all other liabilities of whatever nature, and whether
at common law, statute, law or equity or otherwise, which the Company Releasors
now have, whether known or unknown, fixed or contingent, claimed or unclaimed,
suspected or unsuspected, filed or not filed, whether past or currently
existing, whether arising out of agreement or imposed by law or otherwise, and
whether damage has yet resulted from law or otherwise;


 


·                  any and  all claims, demands, actions, or
liabilities based upon, related to or arising under any statutory or
contractual right of payment or any claim for relief on the basis of any
alleged tort or breach of contract under the common law of the State of
Illinois or any other state including, but not limited to, defamation,
intentional or negligent infliction of emotional distress, breach of the
covenant of good faith and fair dealing, promissory estoppel, and/or
negligence;


 


Section 7.                                          Company
Excluded Claims.  Excluded from the Company release of claims and waiver of rights set
forth in Section 6 above are any claims or rights (a) that arise
under this Agreement, (b) related to any material act or omission of
Employee done in contravention of a direction given by the Bank or the Company,
and (c) any acts of criminal wrongdoing or fraud by Employee in connection
with his employment at, or relationship with the Company or the Bank.


 


Section 8.                                          Unemployment.  Employee
agrees that, if Employee applies for unemployment compensation under the
Illinois unemployment insurance law or any other state or federal unemployment
compensation law at any time prior to December 31, 2011 with respect to
Employee’s employment with the Bank or if the Bank may be deemed to be the last
Chargeable Employer, as defined under the Illinois Unemployment Insurance Act,
as amended (or such similar term under any other state or federal unemployment
compensation law), then in such event Employee shall (i) immediately repay
all payments made to Employee under Section 2 and Section 3; and (ii) forfeit entitlement to any payments or benefits yet
outstanding under Section 2
and Section 3.


 


Section 9.                                          Cooperation.  For a period of five (5) years
following the Effective Date, Employee agrees to cooperate at the request of
the Company or the Bank in the defense or prosecution of any lawsuits or claims
or regulatory exams or investigations in which any of the Released Parties may
be or become involved which relate to matters occurring while employed by the
Company or the Bank and concerning which Employee may have relevant
information.  “Cooperate” does not mean
that Employee must provide information that is favorable to the Company, the
Bank or any of the Released Parties; it means only that Employee will provide
information within Employee’s knowledge and possession relevant to the issues
at hand upon request of the Company or the Bank, including but not limited to
making himself available to the Company or the Bank upon reasonable notice for
interviews and factual investigations; volunteering to the Company or the Bank pertinent
information; and turning over all relevant documents which are or may come into
Employee’s possession and at times and places


 


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reasonably convenient to Employee.  The Company agrees to reimburse Employee for
any reasonable out-of-pocket expenses incurred by Employee at the request of
the Company in complying with Employee’s obligations under this Section 9,
subject to appropriate documentation.


 


Section 10.                                   Representations
by Employee.  Employee
warrants that Employee is legally competent to execute this Agreement and that
Employee has not relied on any statements or explanations made by the Bank, its
employees or its attorney.  Moreover,
Employee hereby acknowledges that:


 


(a)                                  Employee has been afforded
the opportunity to be advised by legal counsel regarding the terms of this
Agreement, including the release of all claims and waiver of rights set forth
in Section 3;


 


(b)                                  Employee acknowledges that
Employee has been offered at least twenty-one (21) days to consider this
Agreement.  After having been so advised,
and without coercion of any kind, Employee freely, knowingly, and voluntarily
enters into this Agreement; and


 


(c)                                  Employee further
acknowledges that Employee may revoke this Agreement within seven (7) days
after execution and further understands that this Agreement shall not become
effective or enforceable until seven (7) days after execution (the “Effective
Date”).


 


This Agreement shall
be null, void and of no effect if so revoked.  Any revocation must be in writing and directed
to:


 


West Suburban Bank 


Attention:  Duane
G. Debs


2800 South Finley Road


Downers Grove, Illinois  60515


 


If sent by mail, any revocation must be postmarked within the 7-day
period and sent by certified mail, return receipt requested.


 


Section 11.                                   No Admissions.  This Agreement and the payments and benefits provided hereunder are not
admissions that the Company, the Bank or any of its or their officers,
directors or employees has taken any improper or unlawful action against or
that impact Employee.  The Company and
the Bank expressly deny that any such acts or omissions occurred.  Employee further agrees that this Agreement
shall not be admissible in any proceeding as evidence of improper or unlawful
acts or omissions by the Bank or the Company or any of its or their officers,
directors, employees or agents.


 


Section 12.                                   Non-Waiver.  The Company or the Bank’s waiver of a breach of this Agreement by
Employee shall not be construed or operate as a waiver of any subsequent breach
by Employee of the same or of any other provision of this Agreement.


 


Section 13.                                   Entire Agreement.  This Agreement sets forth the entire agreement of the parties with
respect to Employee’s employment with the Company and the Bank and shall be
final and binding as to all claims that have been or could have been advanced
on behalf of


 


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Employee pursuant to any claim
arising out of or in any way related to Employee’s employment with the Company
and the Bank and the termination of that employment.  Notwithstanding Section 9(f) of the
Employment Agreement, the parties hereto agree that Section 4
(Confidentiality and Loyalty) to the extent of the continuing obligations set
forth in such Section 4, Section 7 (Interest in Assets), Section 8
(Indemnification), Section 9(d) (Arbitration) and Section 9(i) (Internal
Revenue Code Section 409A) of the Employment Agreement shall survive the
termination of the Employment Agreement and this Agreement shall constitute an
amendment and modification of the Employment Agreement pursuant to Section 9(b) of
the Employment Agreement.


 


Section 14.                                   Counterparts.  This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
Agreement.  Facsimile transmission of any
executed original document shall be deemed to be the same as the delivery of
the executed original.


 


Section 15.                                   Employee
Declaration.  Employee declares the terms
of this Agreement and General Release have been completely read, are fully
understood and are voluntarily accepted after complete consideration of all
facts and legal claims.


 


IN WITNESS WHEREOF, the undersigned have set their hands the day and year set
forth below their respective signatures.


 


	
  West Suburban Bancorp, Inc.

  	
   

  	
  Daniel P. Grotto

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Duane G. Debs

  	
   

  	
  /s/ Daniel P. Grotto

  
	
  Title:

  	
  President and CFO

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  December 4, 2009

  	
   

  	
  Date:

  	
  December 4, 2009

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  West Suburban Bank

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Duane G. Debs

  	
   

  	
   

  
	
  Title:

  	
  Senior Vice President, Comptroller

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  December 4, 2009

  	
   

  	
   

  



 


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