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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is effective as of October 1, 1998 between St.
Xxxxxxx Capital Corporation (the "Company"), a Wisconsin-chartered corporation,
St. Xxxxxxx Bank, F.S.B. (the "Bank"), a federally-chartered savings and loan
and wholly-owned subsidiary of the Company, their respective successors and
assigns, and Xxxxx X. Xxxxx (the "Executive").
RECITALS
WHEREAS, Executive is a key employee, whose extensive background,
knowledge and experience in the banking industry has substantially benefited the
Bank and Company and whose continued employment as an executive member of the
management team in the position of Executive Vice President for the Bank, will
continue to benefit the Bank in the future; and
WHEREAS, the parties are mutually desirous of entering into this
Agreement setting forth the terms and conditions for the employment relationship
between the Bank, Company (sometimes collectively referred to herein as the
"Employers"), and Executive; and
WHEREAS, the respective Boards of Directors of the Employers have
approved and authorized their entry into this Agreement with Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below:
1. Employment. The Bank and Company shall continue to employ Executive,
and Executive shall continue to serve the Bank and Company, on the terms,
conditions and for the period set forth in Section 2 of this Agreement.
2. Term of Employment. The period of Executive's employment under this
Agreement shall begin as of October 1, 1998 (the Commencement Date) and expire
on the third anniversary of the date immediately preceding the Commencement
Date, unless sooner terminated as provided herein; provided that, on each date
immediately preceding the anniversary of the Commencement Date, the term of
employment may be extended by action of the Bank's and Company's Boards of
Directors, following an explicit review by said Boards of the Executive's
performance under this Agreement (with appropriate documentation thereof and
after taking into account all relevant factors including Executive's performance
hereunder), to add one additional year to the remaining term of employment
annually restoring such term to a full three-years. The Board of Directors or
Executive shall each provide the other with at least ninety (90) days, advance
written notice of any decision on their respective parts not to extend the
Agreement on any date immediately preceding an anniversary of the Commencement
Date. The term of employment as in effect from time to time hereunder shall be
referred to as the "Employment Term".
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3. Positions and Duties. Executive shall serve the Bank and Company,
respectively, in his Corporate Position, reporting directly to their Chief
Executive Officer and serving as a member of the Bank's and Company's Management
Committees and being generally responsible to assist in the formulation of their
business and personnel policies, rendering executive, policy-making and other
management services of the type customarily performed by persons serving in
similar capacities at other 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 the Bank's and Company's Boards of Directors to
be necessary to their operations and in accordance with their bylaws.
4. Compensation. As compensation for services provided pursuant to this
Agreement, Executive shall receive from the Bank the compensation and benefits
set forth below:
(i) Base Salary. During the Employment Term, Executive shall receive
from Employers a base salary ("Base Salary") in such amount as may from
time to time be approved by their Boards of Directors. The Base Salary
shall at no time be less than $117,500.00 per annum, payable by the Bank
and Company in such proportion as shall be determined by their Boards of
Directors. The Base Salary may be increased from time to time as
determined by the Employers' Boards of Directors, provided that no such
increase in Base Salary or other compensation shall in any way limit or
reduce any other obligation of the Employers under this Agreement. Once
established at a specified annual rate, Executive's Base Salary shall not
thereafter be reduced except as part of a general pro-rata reduction in
compensation applicable to all Executive officers; provided, however,
that no such reduction shall be permitted following a "change in control"
as defined herein. Executive's Base Salary and other compensation shall
be paid in accordance with the Employers' regular payroll practices as
from time to time in effect. For purposes of this Agreement, the term
"Executive Officers" shall mean all officers of the Bank and/or Company
having a written Employment Agreement.
(ii) Bonus and Incentive Plans. Executive shall be entitled, during
the Employment Term, to participate in and receive payments from all
bonus and other incentive compensation plans (as currently in effect, as
modified from time to time, or as subsequently adopted); provided,
however, that nothing contained herein shall grant Executive the right to
continue in any bonus or other incentive compensation plan following its
discontinuance by the Board or Boards (except to the extent Executive had
earned or otherwise accumulated vested rights therein prior to such
discontinuance). In addition, Executive shall participate in all stock
purchase, stock option, stock appreciation right, stock grant, or other
stock based incentive programs of any type made available by Employers to
their Executive Officers. The Employers shall not make any changes in
such plans, benefits or privileges which would adversely affect
Executive's rights or benefits thereunder, unless such change occurs
pursuant to a program applicable to all Executive Officers of the
Employers and does not result in a proportionately greater adverse change
in the rights and benefits of Executive as compared with other Executive
Officers.
(iii) Other Benefits. During the Employment Term, Employers shall
provide to Executive all other benefits of employment (or, with
Executive's consent, equivalent benefits) generally made available to
other Executive officers. Such benefits shall include participation by
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Executive in any group health, life, disability, or similar insurance
program and in any pension, profit-sharing, Employee Stock Ownership Plan
("ESOP"), 401(k) or other similar retirement program. Employers shall
continue in effect any individual insurance plans or deferred
compensation agreements in effect as of the Commencement Date and
Executive shall be entitled to use of an automobile provided by Employers
under the terms of such corporate automobile policy as they shall
maintain in effect and as it may be amended from time to time.
Executive shall receive vacation, sick time, personal days and other
perquisites in the same manner and to the same extent as provided under
the Employers' policies as in effect from time to time for other
Executive Officers. Employers shall also reimburse Executive or otherwise
provide for or pay all reasonable expenses incurred by Executive in
furtherance of or in connection with the business of Employers, including
but not by way of limitation, travel expenses and all reasonable
entertainment expenses (whether incurred at Executive's residence, while
traveling or otherwise) subject to such reasonable documentation and
other limitations as may be imposed by the Boards of Directors of the
Employers.
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 subsection 4 (iii) following
termination or discontinuance of such plan, program or perquisite by the
Board (except to the extent Executive had previously earned or
accumulated vested rights therein).
5. Termination Other Than Following a Change-In-Control. 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. In case
of such termination, the date on which Executive ceases to be employed under
this Agreement, after giving effect to any prior notice requirement, is referred
to as the "Termination Date".
(i) Death, Retirement. This Agreement shall terminate at the death or
retirement of Executive. As used herein, the term "retirement" shall mean
Executive's retirement in accordance with and pursuant to any retirement
plan of the Employers generally applicable to Executive Officers or in
accordance with any retirement arrangement established for Executive with
his consent.
If termination occurs for such reason, 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/she was entitled under Section 4 through the Termination Date
and, in addition, shall receive all other benefits available to him/her
under the Bank's benefit plans and programs to which he/she was entitled
by reason of employment through the Termination Date.
(ii) Disability. This Agreement shall terminate upon the disability
of Executive. As used in this Agreement, "disability" shall mean
Executive's inability, as the result of physical or
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mental incapacity, to substantially perform his/her employment duties for
a period of 90 consecutive days. Any question as to the existence of
Executive's disability upon which Executive and Employers cannot agree
shall be determined by a qualified independent physician mutually
agreeable to Executive and Employers or, if the parties are unable to
agree upon a physician within ten (10) days after notice from either to
the other suggesting a physician, by a physician designated by the then
president of the medical society for the county in which Executive
maintains his principal residence. The costs of any such medical
examination shall be borne by the Employers. 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 any
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 during the payment period from
(i) any disability plans provided by the Employers, and/or (ii) any
governmental social security or workers compensation program.
If termination occurs for such reason, no additional compensation
shall be payable to Executive 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 through the Termination Date and, in addition,
shall receive all other benefits under the Employers' benefit plans and
programs to which he was entitled by reason of employment through the
Termination Date.
(iii) Cause. Employers may terminate Executive's employment under
this Agreement for cause at any time, and thereafter their obligations
under this Agreement shall cease and terminate. 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:
(A) The intentional failure by Executive to substantially perform
assigned duties (appropriate to his position and level of
compensation) with the Bank (other than any such failure
resulting from the Executive's incapacity due to physical or
mental illness) after a written demand for substantial
performance is delivered to Executive by the Board, which
demand specifically identifies the manner in which the Board
believes Executive has not substantially performed his duties,
advises Executive of what steps must be taken to achieve
substantial performance, and allows Executive Sixty (60) days
in which to demonstrate such performance;
(B) Any willful act of misconduct by Executive;
(C) A criminal conviction of Executive for any act involving
dishonesty, breach of trust or a violation of the banking or
savings and loan laws of the United States;
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(D) A criminal conviction of Executive for the commission of any
felony;
(E) A breach of fiduciary duty involving personal profit;
(F) A willful violation of any law, rule or regulation (other than
a traffic violation or similar offenses) or final cease and
desist order; or
(G) Personal dishonesty or material breach of any provision of this
Agreement.
For purposes of this Subsection (5) (iii), 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 the Employers.
(iv) Voluntary Termination by Executive. Executive may voluntarily
terminate his employment under this Agreement at any time by giving at
least thirty (30) days prior written notice to Employers. In such event,
Executive shall receive all compensation and other benefits in which he
was vested or to which he was otherwise entitled under Section 4 through
the date specified in such notice (the "Termination Date"), in addition
to all other benefits available to him under benefit plans and programs
to which he was entitled by reason of employment through the Termination
Date.
(v) Suspension or Termination Required by the OTS
(A) If Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Employers' affairs by a
notice served under section 8(e)(3), or section 8(g)(1), of
the Federal Deposit Insurance Act [12 U.S.C. Section
1818(e)(3) and (g)(1)], the Employers' 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 Employers shall (i)
pay Executive all of the compensation withheld while their
obligations under this Agreement were suspended, and (ii)
reinstate such obligations as were suspended.
(B) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Employers' affairs by an
order issued under section 8(e)(4) or section 8(g)(1) of the
Federal Deposit Insurance Act [12 U.S.C. Section 1818(e)(4) or
(g)(1)], the obligations of the Employers under the Agreement
shall terminate as of the effective date of the order, but
vested rights of the contracting parties shall not be
affected.
(C) If the Bank is in default as defined in section 3(x)(1) of the
Federal Deposit Insurance Act [12 U.S.C. 1813 (x)(1)], all
obligations under the Agreement shall terminate as of the date
of default, but this paragraph shall not affect any vested
rights of the Executive.
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(D) All obligations under the Agreement shall be terminated,
except to the extent determined that continuation of the
contract is necessary for the Employers' continued operations
(i) by the Director of the OTS, or his or her designee at the
time the FDIC or Resolution Trust Corporation ("RTC") enters
into an agreement to provide assistance to or on behalf of the
Employers under the authority contained in section 13 (c) of
the Federal Deposit Insurance Act; or (ii) by the Director of
the OTS, or his or her designee, at the time it approves a
supervisory merger to resolve problems related to operation of
the Employers or when the Employers are determined by the
Director of the OTS to be in an unsafe or unsound condition.
Any rights of the parties that have already vested, however,
shall not be affected by such action.
(E) In the event that 12 C.F.R. Section 563.39, or any successor
regulation, is repealed, this section 5 (v) shall cease to be
effective on the effective date of such repeal. In the event
that 12 C.F.R. Section 563.39, or any successor regulation, is
amended or modified, this Agreement shall be revised to
reflect the amended or modified provisions if: (1) the amended
or modified provision is required to be included in this
Agreement; or (2) if not so required, the Executive requests
that the Agreement be so revised.
(vi) Other Termination. If this Agreement is terminated (1) by the
Employers other than for cause, death, disability or retirement (and
other than following a change in control as defined in Section 6), or (2)
by Executive due to a failure by Employers to comply with any material
provision of this Agreement, which failure has not been cured within
thirty (30) days after notice of such non-compliance has been given by
Executive to Employers; then following the Termination Date:
(A) In lieu of any further salary payments to Executive subsequent
to the Termination Date, Executive shall receive Severance Pay
for a twelve (12) month period in accordance with the
Employers' normal payroll practices, beginning with the first
pay date following the Termination Date. The monthly rate of
Severance Pay shall be the monthly Base Salary received by
Executive (based on his highest rate of Base Salary within the
3 years preceding his Termination Date) plus one-twelfth of
the total bonus and incentive compensation paid to or vested
in Executive on the basis of his most recently completed
calendar year of employment.
(B) Employers shall maintain and provide for the period during
which Severance Payments are to be made and ending at the
earlier of (i) the expiration of such period, or (ii) the date
of the Executive's full-time employment by another employer
(provided that the Executive is entitled under the terms of
such employment to benefits substantially similar to those
described in this subparagraph (B)), at no cost to the
Executive, the Executive's continued participation in all
group insurance, life insurance, health and accident,
disability and other employee benefit plans, programs and
arrangements in which Executive was entitled to participate
immediately prior to the Termination Date (other than
retirement plans, deferred compensation, or stock compensation
plans of the Employers), provided that in the event
Executive's participation in any plan,
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program or arrangement as provided in this subparagraph (B) is
barred, or during such period any such plan, program or
arrangement is discontinued or the benefits thereunder are
materially reduced, the Employers shall arrange to provide the
Executive with benefits substantially similar to those which
the Executive was entitled to receive under such plans,
programs and arrangements immediately prior to the Termination
Date.
(C) In addition to such Severance Pay and continued benefits,
Executive shall receive all other compensation and 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.
6. Termination by Executive After Change in Control.
(i) Definition "Change in Control". For purposes of this Agreement, a
"change in control" shall mean any change in control with respect to the
Bank or Company that would be required to be reported in response to Item
6 (e) of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended ("Exchange Act") or any successor
thereto; provided that, without limitation, a change in control shall be
deemed to have occurred if (i) any "person" (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
combined voting power of the Bank's or Company's then outstanding
securities; or (ii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of the Bank or Company cease for any reason to constitute at
least a majority thereof unless the election, or the nomination for
election by stockholders, of each new director was approved by a vote of
at least two-thirds of the directors then still in office who were
directors at the beginning of the period.
(ii) Good Reason for Executive Termination. The Executive may
terminate his employment under this Agreement for "good reason" by giving
at least thirty (30) days prior written notice to the Bank at any time
within twenty-four (24) months of the effective date of a change in
control. Occurrence of any of the following events shall constitute good
reason:
(A) Without the Executive's express written consent, assignment by
the Employers of any duties which are materially inconsistent
with Executive's positions, duties, responsibilities and
status with the Employers immediately prior to a change in
control, or a material change in the Executive's reporting
responsibilities, titles or offices as in effect immediately
prior to such change in control, or any removal of the
Executive from or any failure to reelect the Executive to all
or any portion of his Corporate Position, except in connection
with a termination of Executive's employment for cause,
disability, retirement or death (or by the Executive other
than for good reason as defined in this section 6 (B)).
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(B) Without the Executive's express written consent, a reduction
by the Employers in the Executive's Base Salary as in effect
on the date of the change in control or as the same may have
been increased from time to time thereafter;
(C) The principal executive offices of either of the Employers are
relocated outside of the Milwaukee, Wisconsin metropolitan
area or, without the Executive's express written consent, the
Employers require the Executive to be based anywhere other
than an area in which the Employers principal executives
offices are located, except for required travel on business of
the Employers to an extent substantially consistent with the
Executive's present business travel obligations;
(D) Without Executive's express written consent, the Employers
fail or refuse to continue Executive's participation in
incentive compensation and stock incentive programs comparable
to either (1) those in effect prior to the change in control
or (2) those subsequently in effect for the senior executives
of any acquiring company effecting the change in control;
(E) Without Executive's express written consent, Employers fail to
provide the Executive with the same fringe benefits that were
provided to Executive immediately prior to a change in
control, or with a package of fringe benefits (including paid
vacations) that, though one or more of such benefits may vary
from those in effect immediately prior to such change in
control, is substantially comparable in all material respects
to such fringe benefits taken as a whole;
(F) Any purported termination of the Executive's employment for
cause, disability or retirement which is not effected in
accordance with the notice requirements applicable under this
Agreement; or
(G) The failure by either of the Employers to obtain the
assumption of, or an agreement to perform this Agreement by
any successor as contemplated in Section 7 (i) hereof;
(iii) Benefits Upon Termination by Executive After a "Change in
Control". If this Agreement is terminated by Executive for good reason
following a change in control, then following the Termination Date:
(A) In lieu of any further salary payments to Executive subsequent
to the Termination Date, Executive shall receive Severance Pay
for the longer of (i) the remaining unexpired term of the
agreement as in effect immediately prior to the Termination
Date, or (ii) a thirty-six (36) month period. Payments shall
be made in accordance with the Employers' normal payroll
practices, beginning with the first pay date following the
Termination Date. The monthly rate of Severance Pay shall be
the average monthly Base Salary received by Executive (based
on his highest rate of Base Salary within the 3 years
preceding his Termination Date) plus one-twelfth of the total
bonus and incentive compensation paid to or vested in
Executive on the basis of his most recently completed calendar
year of employment.
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(B) Employers shall maintain and provide for the period during
which Severance Payments are to be made and ending at the
earlier of (i) the expiration of such period, or (ii) the date
of the Executive's full-time employment by another employer
(provided that the Executive is entitled under the terms of
such other employment to benefits substantially similar to
those described in this subparagraph (B)), at no cost to the
Executive, the Executive's continued participation in all
group insurance, life insurance, health and accident,
disability and other employee benefit plans, programs and
arrangements in which the Executive was entitled to
participate immediately prior to the Termination Date (other
than retirement and deferred compensation plans and individual
insurance policies covered under subsection 6 (C) or stock
compensation plans of the Employers), provided that in the
event Executive's participation in any plan, program or
arrangement as provided in this subparagraph (B) is barred, or
during such period any such plan, program or arrangement is
discontinued or the benefits thereunder are materially
reduced, the Employers shall arrange to provide Executive with
benefits substantially similar to those Executive was entitled
to receive under such plans, programs and arrangements
immediately prior to the Termination Date.
(C) Executive shall also receive all other compensation and
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.
In addition to benefits to which Executive is entitled under
retirement and deferred compensation plans and individual
insurance policies maintained by Employers (hereinafter
collectively referred to as "Plan"), Executive shall receive
as additional severance benefits a benefit paid under this
Agreement, which benefit shall be determined in accordance
with and paid under this Agreement, but in the form and at the
times provided in the Plan. Such benefits shall be determined
as if Executive were fully vested under the Plan and had
accumulated (after any termination under this Agreement) the
additional years of credit service under the applicable Plan
that he would have received had he continued in the employment
of the Bank for the period during which Severance Payments are
to be made and at the annual compensation level represented by
such payments. Such Severance Payment level shall be deemed to
represent the compensation received by Executive during each
such additional year for purposes of determining his
additional benefits under this Subsection 6 (C).
(iv) Limitation of Benefits under Certain Circumstances. If the
severance benefits payable to Executive under this Section 6 ("Severance
Benefits"), or any other payments or benefits received or to be received
by Executive from Employers (whether payable pursuant to the terms of
this Agreement, any other plan, agreement or arrangement with the
Employers or any corporation affiliated with the Employers ("Affiliate")
within the meaning of Section 1504 of the Internal Revenue Code of 1954,
as amended (the "Code")), in the opinion of tax counsel selected by the
Employer's independent auditors and acceptable to 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 times the average of the annual
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compensation payable to Executive by the Employers (or an Affiliate) and
includable 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 or control of the Employers occurred ("Base Amount"), such
Severance Benefits shall be reduced, in a manner determined by Executive,
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 Executive from the Employers (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) Executive shall have
effectively waived his receipt or enjoyment of any such payment or
benefit which triggered the applicability of this Section 6 (iv), or (B)
in the opinion of such 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 Employers. The Base
Amount shall include every type and form of compensation includable in
Executive's gross income in respect of his employment by the Employers
(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 6 (iv), 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 Employers, independent auditors in accordance with the principles
of Sections 280G (b)(3) and (4) of the Code.
In the event that Employers and/or the Executive do not agree with
the opinion of such counsel, (A) Employers shall pay to the Executive the
maximum amount of payments and benefits pursuant to Section 6, as
selected by the Executive, which such opinion indicates that there is a
high probability do not result in any of such payments and benefits being
non-deductible to the Employers and subject to the imposition of the
excise tax imposed under Section 4999 of the Code and (B) Employers may
request, and Executive shall have the right to demand the Employers
request, a ruling from the IRS as to whether the disputed payments and
benefits pursuant to Section 6 hereof have such consequences. Any such
request for a ruling from the IRS shall be promptly prepared and filed by
the Employers, but in no event later than thirty (30) days from the date
of the opinion of counsel referred to above, and shall be subject to
Executive's approval prior to filing, which shall not be unreasonably
withheld. Employers and Executive agree to be bound by any ruling
received from the IRS and to make appropriate payments to each other to
reflect any such rulings, together with interest at the applicable
federal rate provided for in Section 7872(f)(2) of the Code. Nothing
contained herein shall result in a reduction of any payments or benefits
to which the Executive may be entitled upon termination of employment
under any circumstances other than as specified herein or a reduction in
payments and benefits other than those provided in this Section 6.
In the event that Section 280G, or any successor statute is repealed,
this Section 6 shall cease to be effective on the effective date of such
repeal. The parties to this Agreement
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recognize that final regulations under Section 280G of the Code may
affect the amounts that may be paid under this Agreement and agreed 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.
7. General Provisions.
(i) Successors; Binding Agreement.
(A) Employers will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the
Employers ("successor organization") to expressly assume and
agree to perform this Agreement in the same manner and to the
same extent that Employers would have been required to perform
if no such succession had taken place or to re-execute this
Agreement as provided pursuant to section 6(ii)(G). If such
succession is the result of a "change in control" as defined
herein, such assumption shall specifically preserve to
Executive, for the greater of twenty-four (24) months or 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) as provided under this Agreement upon a "change in
control".
As used in this Agreement "Employers" shall mean the Employers
as hereinbefore defined (and any successor to their business
and/or assets) which executes and delivers the agreement
provided for in this Section 7 or which otherwise becomes
bound by the terms and provisions of this Agreement by
operation of this Agreement or law. Failure of the Employers
to obtain such agreement prior to the effectiveness of any
such succession shall be a breach of this Agreement and shall
entitle Executive, if he elects to terminate this Agreement,
to compensation from the Employers 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 6. For purposes
of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Termination
Date.
(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) This Agreement shall be binding upon and inure to the benefit
of and be enforceable by (1) Executive and his heirs,
beneficiaries and personal representatives, and (2) the
Employers and any successor organization.
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(ii) Noncompetition Provision. Executive acknowledges that the
development of personal contacts and relationships is an essential
element of the savings and loan business, that Employers has invested
considerable time and money in his/her development of such contacts and
relationships, that Employers could suffer irreparable harm if he/she
were to leave employment and solicit the business of the Employers
customers, and that it is reasonable to protect the Employers 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 voluntary termination of
employment by Executive pursuant to Section 5 (iii), or upon expiration
of this Agreement as a result of Executive's election (but not as the
result of an election by Employers) not to continue automatic annual
renewals, Executive shall not accept employment with any Significant
Competitor of Bank for a period of twelve (12) 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, or during the period of this covenant not to
compete, has a home, branch or other office in Milwaukee County or which
has, during the twelve (12) months preceding Executive's termination,
originated, or which during the period of this covenant not to compete
originates, more than $50,000,000 in commercial or mortgage loans secured
by real property in any such county.
Executive agrees that the non-competition provisions set forth herein
are necessary for the protection of the Employers and are reasonably
limited as to (i) the scope of activities affected, (ii) their duration
and geographic scope, and (iii) their effect on Executive and the public.
In the event Executive violates the non-competition provisions set forth
herein, the Employers 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 the Employers bring legal action for injunctive or other
relief, the Employers 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 such relief is
granted, but reduced by any period between commencement of the period and
the date of the first violation.
(iii) Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by
United States registered mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Bank or Company:
St. Xxxxxxx Capital Corporation
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Secretary
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If to the Executive:
Xxxxx X. Xxxxx
00000 Xxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
or to such other address as either party may have furnished to the other
in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
(iv) Expenses. If any legal proceeding is necessary to enforce or
interpret the terms of this Agreement (or to recover damages for breach
of it) in the absence of a change in control, the prevailing party shall
be entitled to recover from the other party reasonable attorneys' fees
and necessary costs and disbursements incurred in such litigation, in
addition to any other relief to which such prevailing party may be
entitled.
Notwithstanding the foregoing, in the event of a legal proceeding to
enforce or interpret the terms of this Agreement following a change in
control or a re-execution of this Agreement pursuant to section 6 (ii)
(G), the only recoverable costs shall be those which Executive shall be
entitled to recover from the Bank (i.e. reasonable attorneys' fees and
necessary costs and disbursements incurred in such litigation), which
fees shall be recoverable only if the Executive is the prevailing party.
Recovery of attorneys' fees and costs as provided herein following a
change in control or re-execution shall be in addition to any other
relief to which Executive may be entitled.
(v) Withholding. Employers 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. Employers shall be entitled to rely on an opinion
of counsel if any question as to the amount or requirement of any such
withholding shall arise.
(vi) Notice of Termination. Any purported termination by the
Employers under Sections 5 (i), (ii), (iii) or (iv), or by Executive
under Sections 5 (vi) or 6 (ii) shall be communicated by written "Notice
of Termination" to the other party. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets
forth in reasonable detail the facts and circumstances claimed to provide
a basis for termination under the provision so indicated, (iii) specifies
a Date of Termination, which shall be not less than thirty (30) nor more
than ninety (90) days after such Notice of Termination is given, except
in the case of termination of Executive's employment for Cause; and (iv)
is given in the manner specified in Section 7 (iii) of this Agreement.
(vii) Miscellaneous. No provision of this Agreement may be amended,
waived or discharged unless such amendment, waiver or discharge is agreed
to in writing and signed by Executive and such officers of the Employers
as may be specifically designated by the Board. No waiver by either party
hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be
performed by such other
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party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements
or representations, oral or otherwise, expressed or implied, with respect
to the subject matter hereof have been made by either party which are not
expressly set forth in this Agreement and it is agreed that execution of
this Agreement shall result in its superseding and extinguishing any
rights of Executive under any other employment agreement previously in
effect between himself/ herself, the Employers, or any of their
affiliates. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of Wisconsin.
(viii) Mitigation; Exclusivity of Benefits. The Executive shall not
be required to mitigate the amount of any benefits hereunder by seeking
other employment or otherwise, nor shall the amount of any such benefits
be reduced by any compensation earned by the Executive as a result of
employment by another employer after the Termination Date or otherwise.
(ix) 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.
(x) Counterparts. This Agreement may be executed in several
counterparts, each of which together will constitute one and the same
instrument.
(xi) Headings. Headings contained in this Agreement are for reference
only and shall not affect the meaning or interpretation of any provision
of this Agreement.
(xii) Effective Date. The effective date of this Agreement shall be
the date indicated in the first section of this Agreement,
notwithstanding the actual date of execution by any party.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the date first above written.
Executive:
--------------------------------------
Xxxxx X. Xxxxx
ST. XXXXXXX CAPITAL CORPORATION
By:
-----------------------------------
Its:
-----------------------------------
ST. XXXXXXX BANK, F.S.B.
By:
-----------------------------------
Its:
-----------------------------------
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