CONSULTING AGREEMENT
EXHIBIT
10.21
Agreement
made this 1st day of February, 2007, by and between MERCHANTS AND MANUFACTURERS
BANCORPORATION, INC., a Wisconsin corporation ("Merchants"), which maintains
its
principal office at 0000 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxxxx, Xxxxxxxxx, and
XXXXXX X. XXXXXXXXX, an individual ("Consultant").
RECITALS
WHEREAS,
Merchants is a multi-bank holding company with several wholly-owned subsidiaries
desiring to provide management continuity and stability within its organization;
and
WHEREAS,
Consultant is experienced in the business of banking and would be of substantial
value to Merchants and several of its subsidiary banks; and
WHEREAS,
Merchants and Consultant have voluntarily terminated the Executive Employment
Agreement dated September 8, 2000, by and between Merchants and Consultant
(the "Employment Agreement"), effective January 31, 2007; and
WHEREAS,
Merchants does desire to engage an independent consultant with the experience
and expertise of Consultant to assist in various activities as set forth
hereunder; and
WHEREAS,
Consultant is willing to assist Merchants on a nonexclusive basis on certain
specific terms and conditions,
NOW
THEREFORE, as an inducement to Consultant to consult with and advise Merchants
in those matters which are within the area of his expertise; and for good and
other valuable consideration; and on the terms, provisions, and conditions
hereof, the parties agree as follows:
SECTION
ONE
INCORPORATION
BY REFERENCE
The
foregoing recitals are incorporated herein by this reference; and this agreement
shall be construed by reference thereto.
SECTION
TWO
NATURE
AND TERM OF SERVICE
Merchants
agrees to engage the services of Consultant and Consultant agrees to perform
services as Consultant for a term which shall continue from the date hereof
for
a period of seven (7) years unless terminated pursuant to Section Six below
(the
"Consulting Term").
Consultant
shall make reasonable efforts to be available to work at reasonable periods
of
time, upon reasonable notice, for the purposes of performing the services
required by Merchants, the nature of which are described more fully in this
agreement; upon the specific condition however, that such services shall be
within the expertise of Consultant as known to Merchants, and as reasonably
agreed upon by Merchants and Consultant.
SECTION
THREE
DUTIES
AND RESPONSIBILITIES
During
the term of this agreement the Consultant shall devote his nonexclusive services
to the discharge of any duties and responsibilities delegated to him by the
Chairman of Merchants, for the purposes contemplated by this agreement and
specifically within the expertise of Consultant. Said duties shall
include:
Consultant
will work closely with the Chairman of Merchants and with other Officers
specified by him in an effort to efficiently and expertly accomplish any task
that is delegated to him, but that Consultant will use his own knowledge and
skills in the discharge of the duties that are delegated to him, all within
reasonable commercial standards and in compliance with all pertinent federal
and
state banking laws and regulations.
Nothing
in this agreement shall be construed to give either party the power to direct
or
control the daily activities of the other party, to constitute the parties
as
employer/employee, principal and agent, partners, joint venturers or otherwise
as participants in a joint undertaking or allow either party to create or assume
any obligation on behalf of the other party for any purpose
whatsoever.
SECTION
FOUR
COMPENSATION
In
consideration of all services rendered during the term of this agreement,
including any necessary travel time, Consultant shall be compensated at a rate
of $65,000 per year adjusted annually for inflation in accordance with the
Consumer Price Index, Midwest Region All Items, 1982-84, which compensation
shall be due and payable in equal installments at the end of each
month. In addition, Consultant shall be reimbursed for reasonable
out-of-pocket expenses regarding business development.
Merchants
will not deduct federal, state, and social security taxes, or xxxxxxx'x
compensation, or unemployment insurance premiums, from such compensation, the
payment of which shall be the sole and exclusive responsibility of Consultant
as
an independent contractor. Consultant shall also be responsible for
any and all pertinent benefit items including, but not limited to, retirement
plan contributions, and medical and dental insurance premiums.
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SECTION
FIVE
RELATIONSHIP
OF PARTIES
The
parties to this agreement stipulate that Consultant is an individual, and that
the relationship created by this agreement is that of a principal-independent
contractor, that Consultant is not an employee of Merchants or any of its
subsidiaries and that Consultant is not entitled to benefits normally provided
by Merchants to an employee. It is further agreed and understood that
by reason of the independent contractor status of Consultant, Merchants will
not
withhold from compensation paid to Consultant any sums for federal and state
withholding taxes and/or FICA taxes, and/or unemployment or workmen's
compensation insurance.
Consultant
may operate his business for the benefit of others during those periods when
Consultant is not performing work under this contract for
Merchants.
Consultant
will be responsible for, and shall hold Merchants harmless by reason of any
negligence, or intentional acts or omissions that may cause damage to any person
or party as a result of his performance of this agreement.
SECTION
SIX
TERMINATION
Merchants
may terminate this agreement immediately upon written notice to the Consultant
(a) for "Cause" (as defined below) or (b) if Consultant materially
breaches this agreement or his obligations under Section 7(ii) of the
Employment Agreement and such breach continues for a period of 15 days
after written notice from Merchants. Further, this agreement will
terminate upon the death or disability of Consultant.
For
purposes of this agreement, "Cause" shall mean:
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(a)
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A
failure by Consultant to substantially perform his duties (other
than
failure resulting from incapacity) after a written demand by Merchants,
which demand identifies, with reasonable specificity, the manner
in which
the Board of Directors of Merchants (the "Board") believes Consultant
has
not substantially performed, and Consultant's failure to cure within
fifteen (15) days after his receipt of this
notice;
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(b)
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A
criminal conviction of or plea of nolo contendere by Consultant
for any act involving dishonesty, breach of trust or a violation
of the
banking laws of the State of Wisconsin or the United States which,
in the
reasonable judgment of the Board, is substantially related to the
Consultant's position with Merchants or substantially impairs the
Consultant's ability to perform his duties with
Merchants;
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(c)
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A
criminal conviction of or plea of nolo contendere by Consultant
for the commission of any felony which, in the reasonable judgment
of the
Board, is substantially related to the Consultant's services to Merchants
or substantially impairs the Consultant's ability to perform his
services
for Merchants;
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(d)
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A
breach of fiduciary duty by Consultant involving personal
profit;
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(e)
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A
willful violation of any law, rule or order by Consultant (other
than
traffic violations or similar offenses) which, in the reasonable
judgment
of the Board, is substantially related to the Consultant's services
to
Merchants or substantially impairs the Consultant's ability to perform
his
services for Merchants; or
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(f)
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the
Consultant's engagement in gross misconduct or a material breach
of any
provision of this agreement which results in a demonstrably material
injury to Merchants, monetary or otherwise, provided such misconduct
or
breach was not in good faith and he had no reasonable belief such
act or
omission was in the best interests of Merchants and its
shareholders.
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For
purposes of this Section Six, no act, or failure to act, on Consultant's part
shall be deemed "willful" unless done, or omitted to be done, by Consultant
not
in good faith and without reasonable belief that the action or omission was
in
the best interest of Merchants.
SECTION
SEVEN
CONFIDENTIALITY
Consultant
acknowledges that any information Consultant has obtained or will obtain in
the
future regarding the operation of Merchants or its affiliates, its products,
services, policies or any other aspect of its business is confidential; and
shall not be reveled or disclosed to any person, company, or other entity
without the express written permission of Merchants and shall not be used by
Consultant except in the performance of his duties on behalf of Merchants.
Consultant acknowledges that he is aware of, and will adhere to, the
restrictions of the privacy provisions of the Xxxxx-Xxxxx-Xxxxxx Act, and as
amended from time-to-time. This provision shall be in full force and
effect from the effective date of this agreement, and shall survive the
termination of this agreement unless extended due to the provisions of any
pertinent law or statute.
The
parties agree that nothing in this agreement shall be construed to limit or
negate the common or statutory law of torts or trade secrets where it provides
either party with broader protection than that provided herein.
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SECTION
EIGHT
CHANGES
AND ALTERATIONS
No
change, alteration, amendment, modification, or addition to this agreement
shall
be effective unless in writing and properly executed by the parties
hereto.
SECTION
NINE
ASSIGNMENT
This
agreement may not be assigned or otherwise transferred by either party
hereto.
SECTION
TEN
OTHER
AGREEMENTS
This
agreement supersedes all previous agreements and understandings with respect
to
the matters covered hereby. Agreements dated prior to the execution
of this agreement between Consultant and Merchants are hereby amended to conform
to this agreement. Consultant and Merchants agree that the Employment Agreement
has been voluntarily terminated by Consultant and no further amounts or
obligations are owing to or from Consultant or Merchants
thereunder. Notwithstanding the foregoing, the provisions of
Section 7(ii) of the Employment Agreement shall continue and apply in
accordance with their terms.
SECTION
ELEVEN
APPLICABLE
LAW
This
agreement and any disputes relating thereto shall be construed under and
pursuant to the laws of the State of Wisconsin.
SECTION
TWELVE
CONTRACT
TERMS EXCLUSIVE
This
agreement constitutes the entire agreement between the parties hereto and the
parties acknowledge and agree that neither of them has made any representations
with respect to the subject matter of this agreement, or any representations
inducing the execution and delivery hereof; except as specifically set forth
herein; and each of the parties hereto acknowledge that he or it has relied
on
its own judgment in entering the same.
SECTION
THIRTEEN
FACSIMILE
SIGNATURE; COUNTERPARTS
This
agreement may be executed by facsimile signature and in counterparts, each
of
which shall be deemed an original but both of which taken together shall
constitute one and the same instrument.
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SECTION
FOURTEEN
WAIVER
The
failure of any party to assist, in any one or more instances, upon the
performance of any of the terms of this agreement shall not be construed as
a
waiver or a relinquishment of any right granted hereunder for the future
performance of any such term, covenant or condition.
IN
WITNESS WHEREOF, the parties hereto have executed this agreement on the date
first written above.
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CONSULTANT
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/s/
Xxxxxx X.
Xxxxxxxxx
Xxxxxx X.
Xxxxxxxxx
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MERCHANTS
AND MANUFACTURERS
BANCORPORATION,
INC.
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/s/
Xxxxxxx X.
Xxxxx
Xxxxxxx X.
Xxxxxx, Chairman of
the
Board
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