1
EXHIBIT 10.6(a)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of this
21st day of December 1993, by and between Mutual Savings Bank, a Wisconsin
chartered savings bank (hereinafter referred to as "Employer"), which may become
a subsidiary of Mutual Bancshares Corporation (the "Company") if a Plan of
Reorganization and Stock Issuance, adopted by the Employer's Board of Directors
on December 21, 1993, is approved by Employer's members and applicable
regulatory authorities and Xxxxxxx X. Xxxxxxx, Xx. (hereinafter referred to as
"Executive").
WHEREAS, Executive, has been employed by and has served as Chairman of the
Board of Employer for many years and has extensive knowledge of and experience
in the banking industry; and
WHEREAS, the Executive possesses an intimate knowledge of the business and
affairs of the Bank, including its policies, markets and financial and human
resources; and
WHEREAS, the Board of Directors of Employer believes that it is in the best
interests of the Employer and that the Employer would substantially benefit from
the continued employment of Executive as an executive member of its management
team in the position of Chairman of the Board and Employer desires to retain
Executive in such position, and Executive desires to retain such position; and
WHEREAS, Executive and Employer have agreed that it is in their mutual best
interest to enter INTO THIS Agreement pursuant to the terms and conditions
described herein.
NOW, THEREFORE, for good and valuable consideration which is hereby
acknowledged by Executive and Employer, including, without limitation, the
promises and covenants described herein, the parties hereto hereby agree as
follows:
ARTICLE I
EMPLOYMENT
1.1 Term of Employment.
Employer shall employ Executive for an initial period of three (3) years
commencing on January 1, 1994 (the "Effective Date"); provided, however, on each
annual anniversary of the Effective Date, the term of employment hereunder may
be extended by adding one additional year to the remaining term of this
Agreement so that said term is annually restored to a full three-year term upon
agreement of Executive and by affirmative action taken by Employer's Board of
Directors not less than sixty (60) days prior to such annual anniversary of the
Effective Date. Executive's
2
employment under this Agreement may otherwise be terminated only as contemplated
by Sections 2.1, 2.2, 2.3, 2.4, 2.5 and 2.6 of this Agreement.
1.2 Duties of Executive.
Executive is hereby employed full-time to hold the office of Chairman of
the Board and to perform such executive duties as are normally performed by
persons serving in similar capacities at similar institutions together with such
other duties and responsibilities as may be appropriate to Executive's position
and as may be from time to time determined by Employer's Board of Directors to
be necessary to its operations and in accordance with its bylaws. Employer
agrees that it will not reduce Executive's current job title, status and
responsibilities without Executive's consent. Executive hereby accepts such
employment and undertakes to use his best efforts to discharge his duties and
responsibilities. Unless Executive's employment is earlier terminated pursuant
to the terms of this Agreement, during the term of this Agreement, Executive
shall devote substantially his full business time to the discharge of his duties
and responsibilities under this Agreement, except for vacations in accordance
with this Agreement and with Employer's vacation policy applicable to executive
personnel. This provision shall not prevent Executive from devoting a reasonable
amount of time during normal business hours to serving as a director, trustee or
member of any charitable, community, trade or financial industry board,
committee or organization.
1.3 Base and Incentive Compensation.
During the term of this Agreement, Executive shall be entitled to an annual
base salary equal to not less than $175,000 per year. Executive's annual salary
will be reviewed annually by the Board of Directors of Employer on the basis of
his performance to such date and the progress of Employer and shall be increased
as of such date if so determined by the Board in its absolute discretion. The
Board of Directors may also increase Executive's compensation at any other time,
in its absolute discretion. Executive shall also be entitled to receive
incentive compensation which compensation shall be calculated in accordance with
the provisions of Employer's Management Incentive Compensation Plan, or other
similar plans as in effect from time to time. Executive's base salary shall be
payable periodically according to the normal practice of Employer and his
incentive compensation shall be payable as earned in accordance with the
provisions of Employer's Management Incentive Compensation Plan, or other
similar plans.
-2-
3
1.4 Expense Reimbursement.
Executive shall be entitled to reimbursement of business expenses
reasonably incurred in connection with his employment, and expenses incurred by
his spouse when accompanying Executive on business trips upon presentation of
adequate documentation and to the extent then permitted by Employer's general
practices and policies for reimbursement of such expenses.
1.5 Benefits.
In accordance with Employer's policies, as in effect from time to time:
(a) Executive shall be entitled, at the expense of Employer, to: (i) a
membership or appropriate affiliation with a service club and reimbursement for
membership dues, special assessments, minimum monthly assessments and other
business related expenses in a social or Country Club and (ii) the full-time use
of an Employer-owned or leased automobile, equipped with a cellular telephone,
and reasonable associated expenses. Executive shall, in accordance with
applicable law and regulation, have access to mortgage and consumer financing
from Employer. Executive shall also be provided with such educational assistance
as is reasonably related to the performance of his duties hereunder.
(b) Executive shall be entitled to an annual vacation, sick leave and other
time off.
(c) Employer shall maintain for Executive term life insurance coverage.
Such life insurance shall be maintained for the benefit of the Executive, who
shall be entitled to designate all beneficiaries of such life insurance.
(d) Employer shall maintain medical, dental and optical insurance covering
Executive. Employer shall also pay for the cost of an annual physical
examination of the Executive.
(e) Executive shall be entitled to participate in all of Employer's
deferred compensation plans, retirement plans, pension plans, profit sharing
plans, excess benefit plans, 401(k) plans or other similar plans as in effect
from time to time in accordance with and to the extent qualified under the
provisions of such plans. Executive's participation in and entitlement to
benefits under any such plans on or prior to the date of this Agreement shall be
continued in accordance with the provisions of such plans. Executive shall
participate in Employer's Employee Stock Option Plan, Stock Recognition Plan,
Executive Stock Option Plan, Supplemental Employee Retirement Plan, Excess
Benefit Plan or any
-3-
4
other similar plan adopted by Employer from time to time.
(f) Executive shall be entitled to participate, at Employer's expense, in
any short-term and long-term disability plans.
(g) In addition to the foregoing benefits, Executive shall also be entitled
to participate, as determined by Employer's Board of Directors, in such other
employee benefit plans or programs as are offered to or provided for other
executives of Employer from time to time.
1.6 Directors and Officers Insurance.
Employer shall use its best efforts to provide Executive during the initial
or any extended term of this Agreement with insurance coverage against business
liability to the extent that such coverage is reasonably available for officers
and directors of financial institutions of comparable size.
1.7 Indemnity by Employer.
For valuable consideration, and as a material inducement to Executive to
enter into this Agreement, Employer shall take whatever actions are necessary to
provide indemnification of Executive by Employer for business liability,
including without limitation, liability as a director and officer to all
interested parties, to the fullest extent it can be made available under
applicable law.
ARTICLE II
TERMINATION OF EMPLOYMENT
2.1 Termination at Expiration of the Term of this Agreement.
(a) At the termination of employment by reason of the expiration of the
original or any extended term of this Agreement pursuant to an election by
Executive under Section 1.1, Executive shall be entitled to receive (i)
Executive's theretofore unpaid base salary and incentive compensation for the
period of employment, and (ii) compensation for accrued but unused vacation
time. Executive and his spouse and dependents will be entitled to further
medical coverage, at his and/or their expense, to the extent required by the
Consolidated Omnibus Reconciliation Act of 1985 ("COBRA"). If, however,
termination occurs by reason of the expiration of the original or any extended
term of this Agreement pursuant to an election by Executive under Section 1.1,
and if Executive is age 65 or older at that time, Executive shall be deemed to
have retired and he and his spouse shall be entitled to
-4-
5
medical coverage benefits as if he had retired at age 65 under
Section 2.2
(b) At the termination of employment by reason of the expiration of the
original or any extended term of this Agreement pursuant to an election by
Employer under Section 1.1, Executive shall be entitled to receive (i) an amount
equal to one hundred percent (100%) of his annual base salary at the date of
termination, (ii) Executive's theretofore unpaid base salary and incentive
compensation for the period of employment, and (iii) compensation for accrued
but unused vacation time. Executive shall be owed and Employer shall be
obligated to pay to Executive the aggregate amount provided in clauses (i), (ii)
and (iii) above (other than incentive compensation which shall be payable when
earned as provided in Section 1.3 hereof), within fifteen (15) days after the
termination of Executive pursuant to this Section 2.1(b), and until such amounts
are paid in full to Executive, interest shall accrue on said amount as of the
date first due at the rate of eighteen percent (18%) per annum, compounded
daily. Furthermore, at Employer's cost, Employer shall continue to provide
Executive with the following benefits, consistent with the terms and conditions
set forth in Section 1.5 hereof: (i) life insurance and medical, dental and
optical insurance, to the extent the same can be provided under the arrangements
in effect at the time of termination, and (ii) any other benefits to which
Executive is entitled by law or the specific terms of Employer's policies in
effect at the time of his termination of employment. Benefits will be continued
pursuant to this Section 2.1(b) for a period of twelve (12) months from the date
of termination of employment, unless Executive becomes employed by another
company and becomes eligible for employment benefits substantially similar to
those which would otherwise be provided under this Section. Notwithstanding the
foregoing, Executive and his spouse and dependent children will be entitled, at
the expense of Employer, to further medical coverage to the extent required by
COBRA which shall, in this case, be deemed to commence upon expiration of the
twelve (12) month period set forth in the preceding sentence. If Executive is
age 65 or older at the time of termination under this subparagraph (b), then
Executive and his spouse shall be entitled to medical coverage benefits as if he
had retired at age 65 under Section 2.2. Notwithstanding anything contained
herein to the contrary, if Executive becomes unable to perform each of the
material duties of his employment under this Agreement prior to his termination
of employment pursuant to this paragraph (b), and Executive thereafter, as a
result of the same condition, becomes Totally and Permanently Disabled as
defined in Section 2.3, Executive will be entitled to the Full Disability
Benefits (as defined in Section 2.3) provided for in Section 2.3 upon his
termination of employment.
-5-
6
2.2 Termination for Death or Retirement.
If Executive's employment is terminated by reason of Executive's retirement
or death then Executive, or Executive's personal representative, as the case may
be, shall be entitled to receive (a) Executive's theretofore unpaid base salary
and incentive compensation for the period of employment, prorated to the end of
the calendar month in which such termination occurs, and (b) compensation for
accrued but unused vacation time. Employer shall pay the amounts due under this
Section 2.2 to Executive or Executive's personal representative within thirty
(30) days of Executive's retirement or death, as the case may be. Executive's
spouse and dependent children shall continue to be entitled, at the expense of
Employer in the case of death and at the expense of Executive in the case of
retirement, to further medical coverage to the extent required by COBRA. The
term "retirement" for purposes of this Agreement shall mean the point at which
Executive gives notice to Employer that he is retiring. If Executive is age 65
or older at the time of his retirement, the Employer shall, at its cost, provide
Executive and his spouse with Medicare supplemental and Medicare Part B
insurance coverage for the remainder of Executive's life.
2.3 Termination for Disability.
If Executive becomes Totally and Permanently Disabled during the term of
this Agreement, Executive's employment may be terminated by the Employer at any
time during the continuance of such disability. The Executive is Totally and
Permanently Disabled if he is unable to perform each of the material duties of
his employment under this Agreement, by reason of any disability, illness,
accident or condition, for a period of more than six consecutive months during
any twelve-month period, which is expected to continue for more than one year as
certified by a medical doctor of Executive's own choosing and concurred in by a
doctor of Employer's choosing.
Upon termination as described in this Section 2.3, Executive shall be
entitled to receive (a) an amount equal to one hundred percent (100%) of
Executive's annual base salary at the date of termination, (b) Executive's
theretofore unpaid base salary and incentive compensation for the period of
employment, prorated to the end of the calendar month in which such termination
occurs, and (c) compensation for accrued but unused vacation time. In addition,
at Employer's cost, employer shall continue to provide Executive with the
following benefits, consistent with the terms and conditions set forth in
Section 1.5 hereof: (i) life insurance and medical, dental and optical
insurance, to the extent the same can be provided under the arrangements in
effect at the time of
-6-
7
termination, and (ii) any other benefits to which the Executive is entitled by
law or the specific terms of Employer's policies in effect at the time of his
termination of employment. Benefits will be continued pursuant to this Section
2.3 for a period of twelve (12) months from the date of termination of
employment, unless Executive becomes employed by another company and becomes
eligible for employment benefits substantially similar to those which would
otherwise be provided under this Section. Notwithstanding the foregoing,
Executive and his spouse and dependent children shall continue to be entitled,
at the expense of Employer, to further medical coverage to the extent required
by COBRA which shall, in this case, be deemed to be for a period of twenty-nine
(29) months commencing upon the expiration of the twelve month period set forth
in the preceding sentence. If Executive is age 65 or older at the time of total
and permanent disability hereunder, the Executive and his spouse shall also be
entitled to medical coverage benefits as if he had retired at age 65 under
Section 2.2. In addition to the foregoing, Employer and Executive intend that
Executive will receive benefits upon his termination of employment pursuant to
this Section 2.3 (or upon his termination of employment pursuant to an election
by Employer under Section 1.1, if Executive becomes unable to perform each of
the material duties of his employment under this Agreement prior to such
termination of employment, and Executive thereafter, as a result of the same
condition, becomes Totally and Permanently Disabled) comparable in amount and
duration to those Executive would receive under Employer's current short-term
and long-term disability plans if the maximum benefit limitation and eligibility
periods did not apply (such benefits referred to hereafter as "Full Disability
Benefits"). Employer shall use its best efforts to obtain and maintain insurance
coverage to provide for the Full Disability Benefits, which insurance coverage
may include insured benefits under the Employer's short-term and long-term
disability plans for executives (all such insurance referred to hereafter as
"Disability Insurance"). To the extent that the payments to Executive under the
Disability Insurance are less than the payments due under the Full Disability
Benefits, Employer shall be obligated to provide the amount of such deficiency
out of its general funds. Such deficiency shall be paid by Employer to Executive
in the form of a monthly supplement to any Disability Insurance payments.
2.4 Voluntary Termination by Executive or Termination by Employer for Cause.
Employer may terminate Executive's employment hereunder for cause (as such
term is defined below). If Executive's employment is voluntarily terminated by
Executive or is terminated by Employer for cause, Executive shall be entitled to
receive (a) Executive's theretofore unpaid base salary and incentive
compensation for the
-7-
8
period of employment, prorated to the date of termination, and (b) compensation
for accrued but unused vacation time, but shall not be entitled to any
compensation or employment benefits pursuant to this Agreement for any period
after the date of termination, or the continuation of any benefits except as may
be required by law, including, at his own expense, COBRA.
Termination by Employer for cause shall mean termination because of the
Executive's Personal Dishonesty (as hereinafter defined), Incompetence (as
hereinafter defined), Willful Misconduct (as hereinafter defined), 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; provided, however, in the event
Employer determines that Executive has intentionally failed to perform his
stated duties or materially breached this Agreement, Employer may not terminate
Executive for cause unless Employer has notified Executive of such failure or
breach, Executive has been given a reasonable period of time to cure such
failure or breach, and in the opinion of Employer, Executive has not cured such
failure or breach. For the purpose of this Agreement: (i) "Incompetence" means
Executive's demonstrated lack of ability to perform the duties assigned to him
which lack of ability directly causes (or the Board of Directors determines is
reasonably likely to cause) material injury to Employer; (ii) "Personal
Dishonesty" means conduct on the part of Executive which evinces a want of
integrity or an intentional breach of trust and which directly causes (or the
Board of Directors determines is reasonably likely to cause) material injury to
Employer; and (iii) "Willful Misconduct" means conduct on the part of Executive
which evinces a deliberate disregard of the interest of Employer and which
causes (or the Board of Directors determines is reasonably likely to cause)
direct material injury to Employer.
2.5 Termination by Employer Without Cause or Termination by Executive for
Cause.
(a) In the event Employer reduces Executive's base compensation,
responsibilities or duties without Executive's consent or otherwise breaches
this Agreement, Executive may elect to terminate this Agreement for cause. In
the event Employer terminates Executive other than under Section 2.2
(death/retirement), Section 2.3 (disability) or Section 2.4 (voluntary
termination by Executive or termination by Employer for cause) or Executive
elects to terminate his employment hereunder for cause, then in either such
event Executive shall receive (i) one hundred percent (100%) of his annual base
salary at the time of termination until the date twelve (12) months after the
expiration
-8-
9
of the then current term of employment under Section 1.1 (provided that such
compensation shall not exceed an amount equal to 36 months of such base salary),
(ii) Executive's theretofore unpaid base salary and incentive compensation,
prorated to the end of the calendar month in which such termination occurs, and
(iii) compensation for accrued but unused vacation time. Executive shall be
owed, and Employer shall be obligated to pay to Executive, the entire amount
provided in clauses (i), (ii) and (iii) above (other than incentive compensation
which shall be payable within the period of time provided in Section 1.3) within
fifteen (15) days after the termination of Executive pursuant to this Section
2.5, and until such amount is paid in full to Executive, interest shall accrue
on said amount as of the date first due at the rate of eighteen percent (18%)
per annum, compounded daily.
(b) Furthermore, if Employer terminates Executive pursuant to this Section
2.5, at Employer's cost, Employer shall continue to provide Executive with the
following benefits, consistent with the terms and conditions set forth in
Section 1.5 hereof: (i) life insurance and medical, dental and optical
insurance, to the extent the same can be provided under the arrangements in
effect at the time of termination, and (ii) any other benefits to which
Executive is entitled by law or the specific terms of Employer's policies in
effect at the time of his termination of employment. Benefits will be continued
pursuant to this Section 2.5 for a period of twelve (12) months from the end of
the then current term of employment under Section 1.1 (provided that such
benefits shall not be continued for more than 36 months after the date of
termination), unless Executive becomes employed by another company and is
eligible for employment benefits substantially similar to those which would
otherwise be provided under this Section. Notwithstanding the foregoing,
Executive and his spouse and dependent children will be entitled, at the expense
of Employer, to further medical coverage to the extent required by COBRA which
shall, in this case be deemed to commence upon expiration of the twelve (12)
month period set forth in the preceding sentence. If Executive is age 65 or
older at the time of termination under this Section 2.5, the Executive and his
spouse shall also be entitled to medical coverage benefits as if he had retired
at age 65 under Section 2.2.
(c) If Employer terminates Executive pursuant to this Section 2.5, the
Executive shall also be entitled to receive an additional benefit. Such benefit
shall be a single sum cash payment in an amount equal to the product of the
Employer's annual aggregate contribution, for the benefit of the Executive in
the year preceding termination, to all qualified retirement plans in which the
Executive participated multiplied by the number of years in the initial term of
employment under Section 1.1. Such benefit shall be in addition to any benefit
payable from any qualified or non-
-9-
10
qualified plans or programs maintained by the Employer at the time of
termination.
2.6 Termination by Executive Due to Change in Control.
(a) Following a Change in Control (as hereinafter defined), Executive may,
by giving notice to Employer, immediately terminate his employment under this
Agreement upon the occurrence of any of the following:
(i) any reduction in Executive's base or incentive compensation, or
employee benefits described in Section 1.4, 1.5, 1.6 and 1.7 and provided to
Executive immediately preceding a Change in Control (other than changes in
benefits required by law and applicable to all employees generally), or any
assignment to any position, responsibilities or duties that are less significant
than his position, duties and responsibilities as of the time immediately
preceding a Change in Control;
(ii) a transfer of Executive by Employer requiring Executive to
have his principal location of work more than fifty (50) miles from Employer's
present principal office; or
(iii) a requirement by Employer that Executive travel materially
more than that amount of time which has historically been required by Employer
such that Executive is required to be away from his place of residence for more
than three weekends in a calendar year or for four or more weeknights per week
during any three weeks in a calendar year.
If Executive terminates this Agreement pursuant to this Section 2.6,
Executive shall have the right to receive payments and benefits under Section
2.5 as if a termination by Employer without cause had occurred. In addition,
Executive shall be entitled to the continued full-time use of an Employer-owned
or leased automobile, membership in a service club and reimbursement for
membership dues, special assessments, minimum monthly assessments and other
business related expenses in a social or Country Club for a period of twelve
(12) months from the end of the then current term of employment under Section
1.1, subject to the same limitations expressed with reference to other benefits
under Section 2.5.
(b) For purposes of this Agreement, a "Change in Control" shall be deemed to
have occurred if (i) any "person" (as such term is used in Section 13(d) and
14(d)(2) of the Securities Exchange Act of 1934) becomes the beneficial owner,
directly or indirectly, of securities of the Bank or the Company in a
transaction or transactions subject to the notice provisions of the Change in
Bank Control Act of 1978, as amended from time to time, or approval
-10-
11
under the Bank Holding Company Act of 1956, as amended from time to time; (ii)
someone other than the Company becomes owner of more than 25% of the voting
securities of the Bank; (iii) during any period of two (2) consecutive years,
the individuals, who at the beginning of any such period constituted the
directors of the Bank or the Company, cease for any reason to constitute at
least a majority thereof; or (iv) the occurrence of any of the following events:
(A) There is a Successor (as hereinafter defined) of or to
Employer or the Company; or
(B) The filing by the Employer or the Company of a report or
proxy statement with the Federal Deposit Insurance Corporation
("FDIC") or the Securities and Exchange Commission disclosing in
response to Item 1 of Form 8-K or Item 5 of Part II of Form 10-Q, each
promulgated pursuant to the Securities Exchange Act of 1934, as
amended ("Exchange Act"), or Item 6(e) of Schedule 14A promulgated
thereunder, or successor Items, that a Change in Control of the
Employer or the Company has or may have occurred pursuant to any
contract or transaction.
2.7 Successors and Binding Agreements.
(a) This Agreement shall be binding upon and inure to the benefit of
Employer and any Successor of or to Employer, but shall not otherwise be
assignable or delegatable by Employer. "Successor" shall mean any successor in
interest, including, without limitation, any entity, individual or group of
persons acquiring directly or indirectly all or substantially all of the
business or assets of Employer whether by sale, merger, consolidation,
reorganization or otherwise.
(b) This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees and legatee.
(c) Employer shall require any Successor to agree (by agreement in form and
substance satisfactory to Executive) within thirty (30) days after becoming a
Successor to perform this Agreement to the same extent as the original parties
would be required if no succession had occurred.
(d) This Agreement is personal in nature and neither of the parties shall,
without the consent of the other, assign, transfer or delegate this Agreement or
any rights or obligations hereunder
-11-
12
except as expressly provided in this Section 2.7.
2.8 Limitations on Termination Compensation.
(a) In the event that the severance benefits payable to the Executive under
Sections 2.5, or 2.6 ("Severance Benefits"), or any other payments or benefits
received or to be received by the Executive from the Employer (whether payable
pursuant to the terms of this Agreement, any other plan, agreement or
arrangement with the Employer) or any corporation ("Affiliate") affiliated with
the Employer within the meaning of Section 1504 of the Internal Revenue Code of
1986, as amended (the "Code"), in the opinion of tax counsel selected by the
Employer's independent auditors and acceptable to the Executive, constitute
"parachute payments" within the meaning of Section 280G(b)(2) of the Code, and
the present value of such "parachute payments" equals or exceeds three (3) times
the average of the annual compensation payable to the Executive by the Employer
(or an Affiliate) and includible in the Executive's gross income for federal
income tax purposes for the five (5) calendar years preceding the year in which
a change in ownership or control of the Employer occurred ("Base Amount"), such
Severance Benefits shall be reduced to an amount the present value of which
(when combined with the present value of any other payments or benefits
otherwise received or to be received by the Executive from the Employer (or an
Affiliate) that are deemed "parachute payments") is equal to 2.99 times the Base
Amount, notwithstanding any other provision to the contrary in this Agreement.
The Severance Benefits shall not be reduced if (A) the Executive shall have
effectively waived his receipt or enjoyment of any such payment or benefit which
triggered the applicability of this Section 2.8, or (B) in the opinion of tax
counsel, the Severance Benefits (in its full amount or as partially reduced, as
the case may be) plus all other payments or benefits which constitute "parachute
payments" within the meaning of Section 280G(b)(2) of the Code are reasonable
compensation for services actually rendered, within the meaning of Section
280G(b)(4) of the Code, and such payments are deductible by the Employer. The
Base Amount shall include every type and form of compensation includible in the
Executive's gross income in respect of his employment by the Employer (or an
Affiliate), except to the extent otherwise provided in temporary or final
regulations promulgated under Section 280G(b) of the Code. For purposes of this
Section 2.8, a "change in ownership or control" shall have the meaning set forth
in Section 280G(b) of the Code and any temporary or final regulations
promulgated thereunder. The present value of any non-cash benefit or any
deferred cash payment shall be determined by the Employer's independent auditors
in accordance with the principles of Sections 280G(b)(3) and (4) of the Code.
-12-
13
(b) The Executive shall have the right to request that the Employer obtain
a ruling from the Internal Revenue Service ("Service") as to whether any or all
payments or benefits determined by such tax counsel are, in the view of the
Service, "parachute payments" under Section 280G. If a ruling is sought pursuant
to the Executive's request, no Severance Benefits payable under this Agreement
shall be made to the Executive until after fifteen (15) days from the date of
such ruling. For purposes of this Section 2.8(b), the Executive and the Employer
agree to be bound by the Service's ruling as to whether payments constitute
"parachute payments" under Section 280G. If the Service declines, for any
reason, to provide the ruling requested, the tax counsel's opinion provided in
Subsection 2.8(a) with respect to what payments or benefits constitute
"parachute payments" shall control, and the period during which the Severance
Benefits may be deferred shall be extended to a date fifteen (15) days from the
date of the Service's notice indicating that no ruling would be forthcoming.
(c) In the event that Section 280G, or any successor statute, is repealed,
this Section 2.8 shall cease to be effective on the effective date of such
repeal. The parties to this Agreement recognize that final regulations under
Section 280G of the Code may affect the amounts that may be paid under this
Agreement and agree that, upon issuance of such final regulations, this
Agreement may be modified as in good faith deemed necessary in light of the
provisions of such regulations to achieve the purposes of this Agreement, and
that consent to such modifications shall not be unreasonably withheld.
(d) Any payments made to the Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with section
18(k) of the Federal Deposit Insurance Act (12 USC ss. 1828(k)) and any
regulations promulgated thereunder.
ARTICLE III
LEGAL FEES AND EXPENSES
It is the intent of Employer that Executive not be required to incur the
expenses associated with the enforcement of his rights under this Agreement by
litigation, arbitration or other legal action because the cost and expense
thereof would substantially detract from the benefits intended to be extended to
Executive hereunder. Accordingly, if it should appear to Executive that Employer
has failed to comply with any of its obligations under this Agreement or in the
event that Employer or any other person takes any action to declare this
Agreement void or unenforceable, or institutes any litigation, arbitration or
other legal action designed to deny, or to recover from Executive, the benefits
-13-
14
intended to be provided to Executive hereunder, Employer irrevocably authorizes
Executive from time to time to retain counsel of his choice, at the expense of
Employer as hereafter provided, to represent Executive in connection with the
initiation or defense of any litigation, arbitration or other legal action,
whether by or against Employer or any director, officer, shareholder or other
person affiliated with Employer, in any jurisdiction. Notwithstanding any
existing or prior attorney-client relationship between Employer and such
counsel, Employer irrevocably consents to Executive's entering into an
attorney-client relationship with such counsel, and in that connection Employer
and Executive agree that a confidential relationship shall exist between
Executive and such counsel. Employer shall pay and be solely responsible for
reasonable and necessary attorneys' and related fees and expenses incurred by
Executive as a result of Employer's failure to perform this Agreement or any
provision thereof or as a result of Employer or any person contesting the
validity or enforceability of this Agreement or any provision thereof as
aforesaid, but only if Executive obtains a final legal judgment or settlement in
his favor. All fees and expenses due hereunder shall be paid upon presentation
by Executive to Employer of a statement or statements prepared by such counsel
and containing such information and detail as may be requested by Employer.
ARTICLE IV
GENERAL PROVISIONS
4.1 Entire Agreement.
This Agreement supersedes any other agreements, oral or written, between
the parties with respect to the employment of Executive by Employer and contains
all of the agreements and understandings between the parties with respect to
such employment, provided however, that this Agreement shall not supersede or
affect the terms of any employee benefit arrangement in existence on the date of
this Agreement and in which the Executive is participating on that date,
including, but not limited to all pension, retirement, deferred compensation,
401(k), excess benefit or other similar plans. Any waiver or modification of any
term of this Agreement shall be effective only if it is signed in writing by
both parties.
4.2 Withholding of Taxes.
Employer may withhold from any amounts payable under this Agreement all
federal, state, city or other taxes as shall be required pursuant to any law or
government regulation or ruling.
-14-
15
4.3 Notices.
Any notice to be given hereunder by either party to the other may be made
by personal delivery in writing or by mail, registered or certified, postage
prepaid with return receipt requested. Mailed notices shall be addressed to the
parties at the addresses appearing below, but each party may change his or its
address by written notice in accordance with this paragraph. Notices delivered
personally shall be deemed communicated as of actual receipt; mailed notices
shall be deemed communicated five (5) days after the date of mailing.
If to Employer, addressed to:
Mutual Savings Bank
0000 Xxxx Xxxxx Xxxx Xxxx
X.X. Xxx 00000
Xxxxxxxxx, XX 00000-0000
Attention: Senior Vice President
Finance/Treasurer
If to Executive, addressed to:
Xxxxxxx X. Xxxxxxx, Xx.
-----------------------
-----------------------
4.4 Governing Law.
This Agreement shall be construed in accordance with and governed by the
laws of the State of Wisconsin and, to the extent applicable, of the United
States.
4.5 Incapacity.
If Employer shall reasonably and in good faith find that any person to whom
any payment is payable under this Agreement is unable to care for his or her
affairs because of illness or accident, or is a minor, any payment due (unless a
prior claim therefor shall have been made by a duly appointed guardian,
committee, or other legal representative) may be paid to the spouse, a child, a
parent, or a brother or sister, or to any person reasonably and in good faith
deemed by Employer to have incurred expense for such person otherwise entitled
to payment in such manner and proportions as Employer may determine in its sole
discretion. Any such payment shall be a complete discharge of the liabilities of
Employer to make such payment to Executive.
-15-
16
4.6 Waivers.
The waiver by any party of any breach, default, misrepresentation or
breach of warranty or covenant in this Agreement, whether intentional or not,
shall be in writing and shall not be deemed to extend to any prior or subsequent
breach, default, misrepresentation or breach of warranty or covenant herein and
shall not affect in any way any rights arising by virtue of any such prior or
subsequent occurrence.
4.7 Severability.
In case any one or more of the provisions contained in this Agreement
should be invalid, illegal, or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained in this
Agreement shall not in any way be affected or impaired thereby.
4.8 Remedies Cumulative.
Remedies under this Agreement of any party hereto are in addition to any
remedy or remedies to which such party is entitled or may become entitled at law
or in equity.
4.9 Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same agreement.
4.10 Headings.
The headings in this Agreement are for convenience of reference only, and
under no circumstances should they be construed as being a substantive part of
this Agreement nor shall they limit or otherwise affect the meaning thereof.
4.11 Additional Documents
Each of the parties hereto, without further consideration, agrees to
execute and deliver such additional documents and to take such other actions
reasonably necessary to more effectively consummate the purposes of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of
the day and year first above written.
-16-
17
MUTUAL SAVINGS BANK
/s/ Xxxxxxx X. Xxxxxxx, Xx.
----------------------------------------------
By: Xxxxxxx X. Xxxxxxx, Xx.
President and CEO
Attest: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx,
Xx. Vice President - Finance, Treasurer
XXXXXXX X. XXXXXXX, XX.
/s/ Xxxxxxx X. Xxxxxxx, Xx.
----------------------------------------------
-17-
