EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of November, 2003 between THE
REEDSBURG BANK (the "Employer"), a Wisconsin corporation, its successors and
assigns, and XXXXXXX XXXX (the "Executive").
RECITALS
WHEREAS, Executive is a valued, long-term employee of Employer or its
subsidiaries, whose experience in the industry and continued employment will
benefit the Employer in the future; and
WHEREAS, Employer desires to provide for management continuity and
stability and for the continued services of Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below:
1. Employment. Employer, or one of its subsidiaries, shall
continue to employ Executive and the Executive shall continue to serve, on the
terms and conditions set forth herein for the period provided in Section 2.
2. Term of Employment. The period of Executive's employment under
this Agreement shall be deemed to have commenced as of the date first above
written and shall continue for a period of thirty-six (36) calendar months
thereafter. The term of employment under this Agreement, as in effect from time
to time, shall be referred to as the "Employment Term". Commencing, on the first
anniversary date of this Agreement, and continuing at each anniversary date
thereafter, the Agreement shall renew for an additional twelve (12) months such
that the remaining term shall be thirty-six (36) months unless written notice is
provided by either party at least sixty (60) days prior to any such anniversary
date, that the Agreement shall terminate at the end of twenty-four (24) months
following such anniversary date. Prior to the renewal or non-renewal of the
Agreement, the Board of Directors or the Executive Personnel/Compensation
Committee will conduct a performance evaluation of the Executive for the purpose
of determining whether to extend the Agreement, and the results thereof shall be
included in the minutes of the Board or Executive Personnel/Compensation
Committee meeting. The term of employment under this Agreement, as in effect
from time to time, shall be referred to as the "Employment Term."
3. Positions and Duties. Executive shall serve Employer as
President And Chief Executive Officer and in such capacity as the Board of
Directors of Bank may, from time to time, determine. Executive shall provide
such management services as are customarily performed by persons serving in
similar capacities at other bank holding companies or their affiliates, and
perform such other duties as may be appropriate to his position and as may be
from time to time determined by Employer's or Bank's Board of Directors to be
necessary to its respective operations and in accordance with its respective
by-laws. During the Employment Term, Executive shall devote substantially all
his working time and efforts to the business and affairs of the Employer and
shall not engage in any activity which is competitive with or adverse to the
business of the Employer or any of its affiliates whether done as a partner,
director, officer, employee, shareholder of or consultant or advisor to any
other business.
4. Compensation. As compensation for services provided pursuant
to this Agreement, Executive shall receive the compensation and other benefits
set forth below:
(i) Base Salary. During the Employment Term, Executive
shall receive an annual base salary ("Base Salary") in such amounts as
may from time to time be approved by the Board of Employer or the
Executive Personnel/Compensation Committee of Merchants. The Base
Salary in effect s of the Commencement Date shall be $114,000.00. Such
amount shall be subject to review and to annual adjustment by the Board
of Employer or the Executive Personnel/Compensation Committee in
accordance with Employer's or Merchants' normal personnel practices. No
increase in Base Salary or other compensation shall limit or reduce any
other obligation of Employer. Executive's Base Salary and other
compensation shall be paid in accordance with Employer's regular
payroll practices. Review and adjustment of Executive's Base Salary
shall be done on a basis comparable to, and applied uniformly with that
utilized for other executives of Employer and/or its affiliates.
(ii) Bonus Payments. In addition to Base Salary, Executive
shall be entitled, during the Employment Term, to participate in and
receive payments from all bonus and other incentive compensation plans
as in effect from time to time on the same basis as other executive
officers of Employer.
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(iii) Other Benefits. During the Employment Term, Employer
shall provide to Executive, in addition to Base Salary, such other
benefits of employment (or, with Executive's consent, equivalent
benefits) as are made generally available to executive officers serving
in comparable positions at Employer or its affiliates. Such benefits
include participation in any group health, life, disability, or similar
insurance program and in any pension, profit sharing, deferred
compensation, 401(k) or other similar retirement program provided.
Executive shall also have the right to participate, on the same basis
as other executives of Employer or its affiliates, in any stock
purchase, stock option or stock appreciation rights plans, or other
stock-based program made available to such executive officers.
Executive shall be entitled to vacation, sick time, personal
days and other perquisites in the same manner and to the same extent as
provided other executives of Employer.
Nothing contained herein shall be construed as granting
Executive the right to continue in any benefit plan or program, or to
receive any other perquisite of employment, provided under this section
4(iii) (except to the extent Executive had previously earned or
otherwise accumulated vested rights therein) following a valid and
lawful termination or discontinuance of such plan, program or
perquisite.
5. Termination. This Agreement may be terminated, subject to
payment of the compensation and other benefits described below, upon occurrence
of any of the events described herein. The date on which Executive ceases to be
employed under this Agreement, after giving effect to the period of time
specified in any notice requirement, is referred to as the "Termination Date."
(i) Death; Disability; Retirement. This agreement shall
terminate upon the death, disability or retirement of Executive. As
used in this Agreement, "disability" means Executive's inability, as
the result of physical or mental incapacity, to substantially perform
his duties for a period of 180 consecutive days. If the Executive and
Employer cannot agree as to the existence of a disability, the
determination shall be made by a qualified independent physician
acceptable to both parties, or alternatively, by a physician designated
by the president of the medical society for the county in which
Executive resides. The costs of any such medical examination shall be
borne by Employer. If Executive is terminated due to disability, he
shall be paid 100% of his Base Salary at the rate in effect at the time
notice of termination is given for one year, and thereafter an annual
amount equal to 75% of such Base Salary for the remaining portion of
the Employment Term, such amounts to be paid in substantially equal
monthly installments and offset by any monthly payments actually
received by Executive from: (a) any disability plans or disability
insurance programs provided by Employer, and (b) any governmental
social security or workers compensation program.
As used in this Agreement, the term "retirement" shall mean
Executive's retirement in accordance with and pursuant to any generally
applicable retirement plan of Employer or in accordance with any
retirement arrangement established for Executive with his consent.
If termination occurs as a result of death, disability or
retirement, no additional compensation shall be payable to Executive
under this Agreement except as specifically provided herein.
Notwithstanding anything to the contrary contained herein, Executive
shall receive all compensation and other benefits to which he was
entitled under Section 4 and the plans and programs provided therein,
through the Termination Date and, in addition, shall receive or
continue to receive for the remaining portion of the Employment Term
all other benefits available to him under any applicable group health,
life, disability or similar insurance program as in effect on the date
of death, disability or retirement.
If, following termination by reason of disability and prior to
the expiration of the then remaining balance of the Employment Term,
Executive becomes able to resume his duties, he shall be reinstated to
his position, or if such position has been filled, to a position as
nearly comparable as possible. From the date of reinstatement and for
the balance of the Employment Term, Executive shall be obligated to
perform all duties and responsibilities, and entitled to receive all
compensation and other benefits, as provided in this Agreement.
(ii) Cause. Employer may terminate Executive's employment
under this Agreement for cause at any time, and thereafter Employer
shall have no further obligation under this Agreement. Notwithstanding
anything to the contrary contained herein, Executive shall receive all
compensation and other benefits in which he was vested or to which he
was otherwise entitled under Section 4 and the plans and programs
provided therein, by reason of employment through the Termination Date.
For purposes of this Agreement, "Cause" shall mean:
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(a) A failure by Executive to substantially perform his
duties (other than failure resulting from incapacity)
after a written demand by the Board, which demand
identifies, with reasonable specificity, the manner
in which the Board believes Executive has not
substantially performed, and Executive's failure to
cure within a reasonable period of time after his
receipt of this notice;
(b) A criminal conviction of or plea of nolo contendere
by Executive for any act involving dishonesty, breach
of trust or a violation of the banking laws of the
State of Wisconsin or the United States;
(c) A criminal conviction of or plea of nolo contendere
by Executive for the commission of any felony;
(d) A breach of fiduciary duty by Executive involving
personal profit;
(e) A willful violation of any law, rule or order by
Executive (other than traffic violations or similar
offenses); or
(f) Incompetence, personal dishonesty or material breach
of any provision of this Agreement or any willful
misconduct by Executive.
For purposes of this subsection 5(ii), no act, or failure to
act, on Executive's part shall be deemed "willful" unless done, or
omitted to be done, by Executive not in good faith and without
reasonable belief that the action or omission was in the best interest
of Employer.
(iii) Voluntary Termination by Executive. Executive may
voluntarily terminate employment at any time by giving at least ninety (90) days
prior written notice to Employer . In such event, Employer shall have no further
obligation hereunder, except that Executive shall receive all compensation and
other benefits in which he was vested or to which he was otherwise entitled
under Section 4 and the plans and programs provided therein, by reason of his
employment through the Termination Date.
(iv) Termination by Executive After Change in Control.
(a) For purposes of this Agreement, a "change in control"
shall be deemed to have occurred if any "individual,
entity or group" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes
the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of
securities representing 25% or more of the voting
power of the securities of Employer or Employer's
parent company or becomes the owner of all or
substantially all of the assets of Employer or of
Employer's parent company or if the shareholders of
Employer or of Employer's parent company approve a
reorganization, merger or consolidation of Employer
of Employer's parent company. For purposes of this
section, "Parent Company" shall mean any entity which
owns or controls 25% or more of the voting power or
assets of Employer. "Change in control" shall not
refer to or include any transaction involving only
entities affiliated directly or indirectly with
Employer or any transaction between Employer and
Merchants and Manufacturers Bancorporation, Inc. or
any of its direct or indirect subsidiaries.
(b) Executive may, at any time within twelve (12) months
following a "change in control," terminate his
employment under this Agreement by giving at least
ninety (90) days prior written notice to Employer,
and be entitled to the benefits described in Section
5(vi) below upon the occurrence of any of the
following events:
1) Executive is assigned to positions,
duties or responsibilities that are substantially
less significant than the positions, duties and
responsibilities provided herein;
2) Executive is removed from or
Employer fails to re-elect Executive to his position,
except in connection with termination of Executive's
employment for cause, disability or retirement, or in
connection with suspension or termination by or
pursuant to regulatory action;
3) Executive's Base Salary is reduced other
than as the result of a program applied on a
proportionately equivalent basis to all executives of
Employer and its affiliates.
(v) Suspension or Termination required by Regulatory
Agencies.
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(a) If Executive is suspended and/or temporarily
prohibited from participating in the conduct of
Employer's or any of Employer's affiliates' affairs
by a regulatory agency, Employer's obligations under
the Agreement shall be suspended as of the date of
service of the notice unless stayed by appropriate
proceedings. If the charges in the notice are
dismissed, the Employer shall: (1) pay Executive all
of the compensation withheld while its obligations
under this Agreement were suspended; and (2)
reinstate any of its obligations which were
suspended.
(b) If Executive is removed and/or permanently prohibited
from participating in the conduct of Employer's or
any of Employer's affiliates affairs by an order
issued by a regulatory agency, the obligation of
Employer under the Agreement shall terminate as of
the effective date of the order, but earned or
otherwise vested rights of Executive to compensation
and to any benefits under Section 4 shall not be
affected.
(c) All obligations under the Agreement may be
terminated, except to the extent determined that
continuation of the contract is necessary to
operation of Employer or any of its affiliates, at
the time the Federal Deposit Insurance Corporation
("FDIC") enters into an agreement to provide
assistance to or on behalf of Employer or any of
Employer's affiliates under the authority contained
in Section 13(c) of the Federal Deposit Insurance
Act, or when Employer or any of its affiliates is
determined by any appropriate bank regulatory agency
to be in an unsafe or unsound condition. Any rights
of the parties that have been already earned or
otherwise vested, however, shall not be affected by
such action.
(vi) Benefits Upon Other Termination by Employer or Upon
Termination by Executive Following a "Change in Control." If this
Agreement is terminated by Employer other than for death, disability or
retirement under Section 5(i) and other than for "cause" under Section
5(ii) or other than by regulatory action under Section (v), or if
Executive terminates this Agreement following a "change in control"
pursuant to Section 5(iv)(b), then following the Termination Date,
Executive shall be entitled to the following benefits:
(a) In lieu of any further salary payments, Executive
shall receive severance payments equal to the sum of
the Base Salary in effect on the Termination Date
plus cash bonus for the year prior to termination
times the number of years of the remaining Employment
Term, payable in the amount and at the times provided
in Sections 4(i) and (ii). If termination follows a
"change in control" under Section 5(iv)(b), Executive
may elect to receive the payments specified in the
immediately preceding sentence in a lump sum without
any discount, provided that the amount of such
severance payments may not exceed the limitations
established in Section 6.
(b) In addition to other amounts payable to Executive
under this Section 5(vi), Executive shall be entitled
to receive all other benefits in which he was vested
or to which he was otherwise entitled under Section 4
and the plans and programs provided therein by reason
of employment through the Termination Date, together
with the continuation, without cost to Executive, of
other benefits under Section 4(iii) for the remaining
unexpired Employment Term, all subject to the
limitations set forth in Section 6 below.
(vii) Suspension by Employer. Employer in its sole
discretion shall have the right to temporarily suspend Executive from
participating in the conduct of the Employer's or Employer's
affiliates' affairs. If Executive is suspended or temporarily
prohibited from participating in the conduct of Employer's or
Employer's affiliates' business, Employer shall pay Executive all
compensation and provide all benefits pursuant to Section 4 of this
Agreement during the period of such suspension.
6. Limitations on Change in Control Compensation. In the event
severance benefits under Subsection 5(vi), or any other payments or benefits
received or to be received by Executive from Employer (whether payable pursuant
to the terms of this Agreement, any other plan, agreement or arrangement with
Employer or any corporation ("Affiliate") affiliated with employer within the
meaning of Section 1504 of the Internal Revenue Code of 1986 as amended (the
"Code")), constitute, in the opinion of tax counsel selected by Employer's
independent auditors and acceptable to Executive, "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 times the average of the annual
compensation payable to Executive by Employer (or an Affiliate) and includible
in Executive's gross income for federal income tax purposes for the five (5)
calendar years preceding the year in which a change in ownership 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
otherwise received or to be received by Executive from 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 (i) Executive shall have
effectively waived his receipt or enjoyment of any such payment or benefit which
triggered the
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applicability of this Section 6, or (ii) in the opinion of tax counsel, the
severance benefits (in their 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 280OG(b)(2) of the Code are reasonable
compensation for services actually rendered, within the meaning of Section
28OG(b)(4) of the Code and such payments are deductible by Employer. The Base
Amount shall include every type and form of compensation includible in
Executive's gross income in respect of his employment by Employer (or an
Affiliate), except to the extent otherwise provided in temporary or final
regulations promulgated under Section 28OG(b) of the Code. For purposes of this
Section 6, a "change in ownership or control" shall have the meaning set forth
in Section 28OG(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 Employer's independent auditors in
accordance with the principles of Section 28OG of the Code.
Executive shall have the right to request that 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 280G. If a ruling is sought pursuant to Executive's
request, no severance benefits payable under this Agreement in excess of the
Section 28OG limitation shall be made to Executive until after fifteen (15) days
from the date of such ruling; however, severance benefits shall continue to be
paid during this time up to the amount of that limitation. For purposes of this
Section 6, Executive and 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 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 will be forthcoming.
7. Waiver of Change in Control Salary Continuation Benefits. In
connection with this Agreement, Executive agrees that, for purposes of the
Reedsburg Bank Executive Employee Salary Continuation Agreement by and between
Executive and the Bank dated March 24, 2000 (the "SCA"), the acquisition of the
Bank by Merchants and Manufacturers Bancorporation, in accordance with the
Merger Agreement dated April 24, 2003, as amended (the "Acquisition"), shall not
constitute a Change of Control. Therefore, the Executive acknowledges that he is
not entitled to the benefits under Section 3.5(c) of the SCA as a result of the
Acquisition. Executive and Employer agree that, except as provided in this
paragraph 7, the benefits under Section 3.5(c) of the SCA remain available to
Executive upon a Change in Control (as such term is defined in the SCA) or upon
a change in control as defined in subsection 5(iv)(a) of this Agreement (in
either instance, a "Second Change in Control"). Employer acknowledges that this
Agreement does not supersede the SCA. Except as provided in this paragraph,
Employer agrees that in no event shall Executive lose any of the benefits to
which he is entitled under the SCA without the consent of the Executive.
8. Termination of Severance Payment Agreement and Non-Competition
Agreement. In consideration of entering into this Employment Agreement, Employer
and Executive agree that the Severance Payment Agreement dated March 24, 2000 by
and between Employer and Executive and the Non-Competition Agreement dated March
24, 2000 by and between Employer and Executive are each terminated in their
entirety and all rights and obligations of the parties to such agreements are
rendered null and void commencing on the date of this Employment Agreement.
9. General Provisions.
(i) Successors; Binding Agreement.
(a) Employer will require any successor (whether direct
or indirect, by purchase, merger, consolidation or
otherwise) to substantially all of the business
and/or assets of Employer ("Successor Organization")
to expressly assume and agree to perform this
Agreement in the same manner and to the same extent
that Employer would have been required to perform if
no such succession had taken place. If such
succession is the result of a "change in control" as
defined herein, such assumption shall specifically
preserve to Executive, for the then remaining term of
this Agreement, the same rights and remedies
(recognizing them as being available and applicable
as the result of the "change in control" effectuating
said succession) provided under this Agreement upon a
"change in control."
As used in this Agreement, Employer shall mean The
Reedsburg Bank and any successor to its business
and/or assets, which becomes bound by the terms and
provisions of this Agreement by operation of this
Agreement or by law. Failure of Employer to obtain
such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and
shall entitle Executive to compensation from Employer
in the same amount and on the same terms as he would
be entitled to under this Agreement if he terminated
his employment under Section 5(iv). For purposes of
implementing the foregoing, the date on which any
such succession becomes effective shall be deemed the
Termination Date.
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(b) No right or interest to or in any payments or
benefits under this Agreement shall be assignable or
transferable in any respect by the Executive, nor
shall any such payment, right or interest be subject
to seizure, attachment or creditor's process for
payment of any debts, judgments, or obligations of
Executive.
(c) Any rights and obligations of Employer under this
Agreement may be assigned or transferred by Employer
to any of its affiliates prior to a change in control
as defined in this Agreement.
(d) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by Executive and his
heirs, beneficiaries and personal representatives and
Employer and any successor organization or assignee
of Employer.
(ii) Non-competition/Non-solicitation/Confidentiality
Provisions. Executive acknowledges that the development of personal
contacts and relationships is an essential element of Employer's and
Employer's affiliates' business, that Employer has invested
considerable time and money in his development of such contacts and
relationships, that Employer and its affiliates could suffer
irreparable harm if he were to leave Employer's employment and solicit
the business of customers of Employer or Employer's affiliates and that
it is reasonable to protect Employer against competitive activities by
Executive. Executive covenants and agrees, in recognition of the
foregoing and in consideration of the mutual promises contained herein,
that in the event of a termination of his employment with Employer or
any of its affiliates, Executive shall not accept employment with any
Significant Competitor of Employer or of any of Employer's affiliates
for a period of eighteen (18) months following such termination. For
purposes of this Agreement, the term "Significant Competitor" means any
financial institution including, but not limited to, any commercial
bank, savings bank, savings and loan association, credit union, or
mortgage banking corporation which, at the time of termination of
Executive's employment with Employer or during the period of this
covenant not to compete, has a home, branch or other office within a
fifty (50) mile radius of any office operated or maintained by
Employer.
Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of Employer and its affiliates
and are reasonably limited as to (a) the scope of activities affected,
(b) their duration and geographic scope, and (c) their effect on
Executive and the public. In the event Executive violates the
non-competition provisions set forth herein, Employer shall be
entitled, in addition to its other legal remedies, to enjoin the
employment of Executive with any Significant Competitor for the period
set forth herein. If Executive violates this covenant and Employer
brings legal action for injunctive or other relief, Employer shall not,
as a result of the time involved in obtaining such relief, be deprived
of the benefit of the full period of the restrictive covenant.
Accordingly, the covenant shall be deemed to have the duration
specified herein, computed from the date relief is granted, but reduced
by any period between commencement of the period and the date of the
first violation.
Executive acknowledges that as a result of his employment with
Employer or its affiliates Executive has access to confidential
information concerning Employer's business, customers and services.
Executive agrees that during the Employment Term or subsequent thereto,
he will not, directly or indirectly, whether in original, duplicated,
computerized or other form, use, disclose or divulge to any person,
agency, firm, corporation or other entity any confidential or
proprietary information, including, without limitation, customer lists,
reports, files, manuals, training materials, records or information of
any kind, or any other secret or confidential information pertaining to
the products, services, customers or prospective customers, sales,
technology and business affairs or methods of Employer or any of its
affiliates (collectively "Confidential Information") which Executive
acquires or has access to during the Employment Term. Notwithstanding
the foregoing, Confidential Information shall not include information
or data which is otherwise available in the public domain. Executive
agrees that he will not at any time either during or subsequent to his
employment with Employer disclose or transmit, either directly or
indirectly, any Confidential Information of Employer or its affiliates
to any person, firm, corporation, association, or other entity, and
will not remove this information, in any form whatsoever, from the
premises or data base of Employer or its affiliates, except as required
in the ordinary course of business as is necessary to perform
Executive's duties or as required by applicable law. In the event of
Executive's termination from employment from Employer for any reason,
Executive shall immediately return all Confidential Information of
Employer, including any original, computerized or duplicated records to
Employer.
Executive agrees that during the term of his employment with
Employer, and for a term of eighteen (18) months thereafter, he will
not, directly or indirectly, on behalf of himself or on behalf of any
other individual or entity, as an agent or otherwise contact, influence
or encourage any of the customers of Employer, of which Executive has
knowledge or based on his capacity of employment for Employer or its
subsidiaries should reasonable have had knowledge, for the purpose of
soliciting business or inducing such customer to acquire any product or
service that is provided or under development by Employer or its
affiliates from any entity other than Employer.
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Executive agrees that during the term of his employment with
Employer, and for a period of eighteen (18) months thereafter, he will
not, directly or indirectly, encourage, induce, or entice any employee
of Employer or its affiliates to leave the employment of Employer or
its affiliates.
Executive agrees that if he violates the covenants under this section,
Employer shall be entitled to an accounting and repayments of all profits,
compensation, commissions and other remuneration or benefits which the Executive
has realized or may realize as the result of or in connection with any such
violation. Executive further agrees that money damages may be difficult to
ascertain in case of a breach of this covenant, and Executive therefore agrees
that Employer or its affiliates shall be entitled to injunctive relief in
addition to any other remedy to which Employer or its affiliates may be
entitled.
(iii) Notice. All notices and other communications provided
for in this Agreement shall be in writing and shall be deemed duly
given when delivered or mailed by United States registered mail, return
receipt requested, postage prepaid, addressed in the case of Employer
to its principal office and in the case of Executive, to his address
appearing on the records of Employer or to such other address as either
party may have furnished to the other in writing in accordance
herewith.
(iv) Expenses. If legal proceedings are necessary to
enforce or interpret this Agreement, or to recover damages for breach,
the prevailing party shall be entitled to recover reasonable attorneys'
fees, costs and disbursements of such proceedings, in addition to any
other relief to which such prevailing party may be entitled.
Notwithstanding, the foregoing, in the event of legal proceedings to
enforce or interpret this Agreement following a "change in control,"
Executive shall be entitled to recover from Employer: (a) reasonable
attorneys fees, costs, and disbursements if Executive is the prevailing
party; or (b) reasonable attorneys' fees, costs and disbursements of up
to $7,500 incurred in such proceedings regardless of whether Executive
is the prevailing party. Recovery of attorneys' fees and costs
following a "change in control" shall be in addition to any other
relief to which Executive is entitled.
(v) Withholding. Employer shall be entitled to withhold
from amounts to be paid to Executive under this Agreement any federal,
state, or local withholding or other taxes or charges which it is from
time to time required to withhold. Employer shall be entitled to rely
on an opinion of counsel as to the amount or requirement of any such
withholding.
(vi) Miscellaneous. No provision of this Agreement may be
amended, waived or discharged unless such amendment, waiver or
discharge is agreed to in writing and duly executed by Executive and
Employer or its successor in interest. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior agreements and undertakings, whether
written or oral, between the parties with respect thereto; no
agreements or representations, oral or otherwise, expressed or implied,
have been made by either party with respect to the subject matter
hereof. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of Wisconsin.
(vii) Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
(viii) Counterparts. This Agreement may be executed in
several counterparts, all of which together will constitute one and the
same instrument.
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(ix) Headings. Headings contained in this Agreement are
for reference only and shall not affect the meaning or interpretation
of any provision of this Agreement.
(x) Effective Date. The effective date of this Agreement
shall be the date indicated in the first paragraph of this Agreement
notwithstanding the actual date of execution by any party.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first above written.
EXECUTIVE
/s/ Xxxxxxx Xxxx
-----------------------------------------
XXXXXXX XXXX
THE REEDSBURG BANK
/s/ Xxxxx Xxxxxxxxxx
-----------------------------------------
By: Xxxxx Xxxxxxxxxx
Title: Chairman of the Board of Directors
