Exhibit 10.4


 


[FIRST BUSEY CORPORATION LETTERHEAD]


 


                      ,
2009


 


[Name of Executive]


[Street Address]


[City, State  Zip]


 


Dear [Insert Name]:


 


First Busey Corporation
(the “Company”) anticipates
entering into a Letter Agreement and Securities Purchase Agreement
(collectively, the “Participation Agreement”)
with the United States Department of Treasury (“Treasury”) that provides for the Company’s participation in
the Treasury’s TARP Capital Purchase Program (the “CPP”). 
If the Company does not participate or ceases at any time to participate
in the CPP, this letter shall be of no further force and effect.


 


For the Company to
participate in the CPP, and as a condition to the closing of the investment
contemplated by the Participation Agreement, the Company is required to
establish specified standards for incentive compensation to its senior
executive officers and to make changes to its compensation arrangements.  To comply with these requirements, and in
consideration of the benefits that you will receive as a result of the
Company’s participation in the CPP, you agree as follows:


 


(1)                                 No Severance Payments.  The Company is prohibiting any payment that
is prohibited by law as a result of the Company’s participation in the
CPP.  Such prohibited payments include,
but are not limited to, severance, golden parachute or other payments related
to the executive’s departure from the Company.


 


(2)                                 Recovery of Bonus and Incentive Compensation.  Any bonus and incentive compensation paid to
you during a CPP Covered Period is subject to recovery or “clawback” by the
Company if the payments were based on materially inaccurate financial
statements or any other materially inaccurate performance metric criteria.


 


(3)                                Compensation Program Amendments.  Each of the Company’s compensation, bonus,
incentive and other benefit plans, arrangements and agreements (including
golden parachute, severance and employment agreements) (collectively, the “Benefit Plans”) with respect to you is
hereby amended to the extent necessary to give effect to provisions (1) and
(2).


 


In addition, the Company is required to review the
Benefit Plans to ensure that they do not encourage senior executive officers to
take unnecessary and excessive risks that threaten the value of the
Company.  To the extent any such review
requires revisions to any of the Benefit Plan with respect to you, you and the
Company agree to negotiate such changes promptly and in good faith.


 


(4)                                 Definitions and Interpretation.  This letter shall be interpreted as follows:


 


·                  “senior
executive officer” means the Company’s “senior executive officers” as defined
in subsection 111(b)(3) of EESA.


 


·                  “golden
parachute payment” is used with same meaning as in Section 111(b)(2)(C) of
EESA.


 

















 


·                  “EESA”
means the Emergency Economic Stabilization Act of 2008, as implemented by
guidance or regulation issued by the Department of Treasury and as published in
the Federal Register on October 20, 2008.


 


·                  The
term “Company” includes any entities treated as a single employer with the
Company under 31 C.F.R. § 30.1(b) (as in effect on the Closing Date).  You are also delivering a waiver pursuant to
the Participation Agreement, and, as between the Company and you, the term
“employer” in that waiver will be deemed to mean the Company as used in this
letter.


 


·                  The
term “CPP Covered Period” shall be limited by, and interpreted in a manner
consistent with, 31 C.F.R. § 30.11 (as in effect on the Closing Date).


 


·                  Provisions
(1) and (2) of this letter are intended to, and will be interpreted,
administered and construed to, comply with Section 111 of EESA (and, to
the maximum extent consistent with the preceding, to permit operation of the
Benefit Plans in accordance with their terms before giving effect to this
letter).


 


(5)                                 Miscellaneous.  To the extent not subject to federal law,
this letter will be governed by and construed in accordance with the laws of
the State of Illinois.  This letter may
be executed in two or more counterparts, each of which will be deemed to be an
original.  A signature transmitted by
facsimile will be deemed an original signature.


 


In exchange for your
agreement to the foregoing provisions, if provision (1) above is
applicable to you and, as a result of the application of provision (1), you are
prohibited from receiving the full severance payment to which you are otherwise
entitled pursuant to your employment agreement, the Company hereby agrees that
it shall forfeit its right to enforce any non-competition provisions contained
in your employment agreement.  Notwithstanding
the foregoing, any non-solicitation provisions contained in your employment
agreement shall continue to be fully enforceable by the Company to the same
extent provided in the employment agreement.


 


The Board appreciates the
concessions you are making and looks forward to your continued leadership
during these financially turbulent times.


 


	
   

  	
  Yours sincerely,

  
	
   

  	
   

  
	
   

  	
  FIRST
  BUSEY CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


Intending to be legally
bound, I agree with an


accept the foregoing
terms on the date set


forth below


 


 


	
   

  	
   

  
	
  [Insert
  Executive’s Name]

  	
   

  



 


Date: 
                              ,
2009


 


cc:  [Insert Name], via Hand Delivery