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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is effective as of July 24, 1997, (the
"Commencement Date") between West Allis Savings Bank (the "Bank"), a
state-chartered savings bank having its principal offices at 0000 Xxxx
Xxxxxxxxxx Xxxxxx, Xxxx Xxxxx, XX 00000, its successors and assigns, and
XXXXXXXXX XXXXX (the "Executive").
RECITALS
WHEREAS, Executive is a key employee, whose extensive background,
knowledge and experience in the financial services industry will substantially
benefit the Bank and whose employment as an executive member of its management
team in the position of Senior Vice President, Sales & Marketing ("Corporate
Position") will 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 and Executive; and
WHEREAS, the Bank's Board of Directors has approved and authorized its
entry into this Agreement with Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below:
1. Employment. Bank shall employ Executive, and Executive shall
serve Bank, on the terms and conditions set forth in this Agreement, 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 the Commencement Date and expire on the third
anniversary of the last day of the month preceding the Commencement Date (which
for purposes of this Agreement, shall be designated as January 1, 1998), unless
sooner terminated as provided herein; provided that, on each annual anniversary
of the last day of said month, the term of employment may be extended by action
of the Bank's Board of Directors 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 its Anniversary 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. Position and Duties. Subject to Section 5(iv)(B), Executive
shall serve the Bank in her Corporate Position as its Senior Vice President,
Sales & Marketing, 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 President and Board of Directors to be necessary to its
operations and in accordance with its 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 a base salary ("Base Salary") in such amount as may from time
to time be approved by the Board. The Base Salary shall at no time be
less than $72,450 per annum unless Executive and Bank mutually agree to
some lesser amount. No increase in Base Salary or other compensation
granted by the Board shall in any way limit or reduce any other
obligation of the Bank under this Agreement and, once established at a
specified annual rate, Executive's Base Salary under this Agreement
shall not thereafter be reduced except as part of a general pro-rata
reduction in compensation applicable to all Bank 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 Bank's regular
payroll practices, as then in effect.
(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 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
(except to the extent Executive had earned or otherwise accumulated
vested rights therein prior to such discontinuance).
For purposes of this Agreement, the term "Executive Officers"
shall mean all officers of the Bank having written Employment
Agreements.
(iii) Other Benefits. During the Employment Term, the Bank
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") deferred compensation, 401(k) or other or similar
retirement program. In addition, Executive shall participate in any
stock purchase, stock option or stock appreciation rights, plans, or
any other stock based program of any type, made available by the Bank
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 under Bank policies as in effect from time to time for its
other Executive Officers.
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
paragraph 4(iii) (except to the extent Executive had previously earned
or accumulated vested rights therein) following termination or
discontinuance of such plan, program or perquisite by the Board.
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. 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 set forth below, 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" shall mean Executive's inability,
as the result of physical or mental incapacity, to substantially
perform her duties with the Bank for a period of 180 consecutive days.
Any question as to the existence of Executive's disability upon which
Executive and the Bank cannot agree shall be determined by a qualified
independent physician mutually agreeable to Executive and the Bank 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 her principal residence. The
costs of any such medical examination shall be borne by the Bank. If
Executive is terminated due to disability, she shall be paid 100% of
her 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
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received by Executive during such payment period from (i) any
disability plans provided by the Bank, and/or (ii) 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 Bank
retirement plan generally applicable to its Executive Officers or in
accordance with any retirement arrangement established for Executive
with her 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 she was entitled under Section 4 through the
Termination Date and, in addition, shall receive all other benefits
available to her under the Bank's benefit plans as in effect on the
date of death, disability or retirement.
(ii) Cause. The Bank may terminate Executive's employment
under this Agreement for cause at any time, and thereafter the Bank's
obligations under this Agreement shall cease and terminate.
Notwithstanding anything to the contrary contained in this Agreement,
Executive shall receive all compensation and other benefits in which
she was vested or to which she 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 willful failure by Executive to substantially
perform her duties 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 her duties;
(B) Any willful act of misconduct by Executive which is
materially injurious to the Bank monetarily or
otherwise;
(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 or
final cease and desist order; or
(G) Incompetence, personal dishonesty or material breach
of any provision of this Agreement which would have a
material adverse impact on the Bank.
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 the Bank.
(iii) Voluntary Termination by Executive. Executive may
voluntarily terminate her employment under this Agreement at any time
by giving at least ninety (90) days prior written notice to the Bank.
In such event, Executive shall receive all compensation and other
benefits in which she was vested or to which she was otherwise entitled
under Section 4 through the date specified in such notice (the
"Termination Date"), in addition to all other benefits available to her
under Bank benefit plans in effect on the Termination Date.
(iv) Termination by Executive After Change in Control. For
purposes of this Agreement, a "change in control" shall mean a change
in control with respect to the Bank or its parent holding company of a
nature 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, such 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 or holding company's then outstanding
securities; or (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute 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. The Executive may terminate
her employment under this
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Agreement by giving at least ninety (90) days prior written notice to
the Bank at any time (i) within twelve (12) months of the effective
date of a "change in control", or (ii) after the occurrence, at any
time subsequent to a "change in control," of any of the following
events, without Executive's express written consent:
(A) Executive is assigned to any positions, duties or
responsibilities that are less significant than her
positions, duties and responsibilities immediately
prior to any change in control;
(B) Executive is removed from, or the Board fails to
re-elect Executive to, her Corporate Position, except
(i) in connection with termination of Executive's
employment for cause, disability or retirement, or
(ii) in connection with any change in control after
which the Bank is not the continuing or surviving
corporation (unless the successor organization has
executed an agreement as required by Section 7(i)(A)
and the removal or failure to re-elect is limited to
her Corporate Position with the Bank);
(C) Executive's Base Salary is reduced or the Executive
experiences in any year a reduction of the ratio of
her bonus payment to her Base Salary which is greater
than the average reduction in the ratio of bonus
payments to base salaries in such year experienced by
all other Executive Officers of the Bank (including
the executive officers of any successor to or
acquiror of the Bank) or any other failure by the
Bank to comply with Section 4;
(D) Executive is transferred to a location not within a
25 mile radius of the City of Milwaukee; or
(E) The Bank fails to obtain an agreement from any
successor organization as required by Section
7(i)(A).
(v) Suspension or Termination Required by the
Commissioner or the FDIC.
(A) If Executive is suspended and/or temporarily
prohibited from participating in the conduct of the
Bank's affairs by a notice served under section
8(e)(3), or section 8(g)(1), of the Federal Deposit
Insurance Act [12 X.X.X.xx.
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1818(e)(3) and (g)(1)], the Bank'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, Bank may, in its discretion, (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 the Bank's
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. ss. 1818(e)(4) or (g)(1)], the obligations
of the Bank under the Agreement shall terminate as of
the effective date of the order, provided that any
vested rights of the Executive to compensation and/or
benefits under the Bank's Pension Plan 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.
(D) All obligations under the Agreement shall be
terminated, except to the extent determined that
continuation of the contract is necessary for the
continued operation of the Bank, (i) by the
Commissioner, at the time the FDIC or Resolution
Trust Corporation ("RTC") enters into an agreement to
provide assistance to or on behalf of the Bank under
the authority contained in section 13(c) of the
Federal Deposit Insurance Act; or (ii) by the
Commissioner at the time that office approves a
supervisory merger to resolve problems related to
operation of the Bank or when the Bank is determined
by the Commissioner 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, and the Executive shall receive the
compensation and benefits set forth in section 5(vi)
of this Agreement.
(vi) Termination by Bank Other Than Due to Death,
Disability, Retirement, or For Cause. If this Agreement is terminated
by the Bank for any reason other than death,
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disability, retirement or for cause as set forth in Section 5(i) or
(ii), then following the Termination Date:
(A) In lieu of any further salary payments to Executive
for a period subsequent to the Termination Date,
Executive shall receive Severance Pay in the amount
of one (1) year's Base Salary (based on her highest
Base Salary within the three (3) years preceding her
Date of Termination) payable in accordance with the
Bank's normal payroll practice and beginning with the
first normal pay date following her Date of
Termination.
(B) In addition to such Base Salary payments, Executive
shall receive all other compensation and benefits in
which she was vested or to which she was otherwise
entitled under Section 4 and the plans and programs
provided therein by reason of employment through the
Termination Date.
(C) In the event of termination of Executive under this
subsection 5(vi) following a "change in control" and
within the greater of twelve (12) months or the
Employment Term remaining under the Agreement as of
the effective date of such "change in control",
Executive shall have the option of having this
subsection 5(vi) or subsection 5(vii) applicable to
such termination.
(vii) Benefits Upon Termination by Executive After a "Change
in Control". If this Agreement is terminated by Executive pursuant to
Section 5 (iv) after a "change in control", then, following the
Termination Date:
(A) In lieu of any further salary payments to Executive
for a period subsequent to the Termination Date,
Executive shall receive severance pay in the form of
payments continuing for the then remaining unexpired
portion of the Employment Term in the amount and at
the times provided in Section 4(i) and (ii).
Executive may elect to receive such payments
("Severance Payments") in one lump sum, calculated on
the basis of her average annual compensation for the
past three years multiplied by the time remaining to
the end of the term of this Agreement, subject to
limitations set forth in Section 6 below; provided
that the amount of such Severance Payment shall not
in any event be less than three (3) year's
compensation for Executive based on Executive's
annual compensation as of the
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Termination Date.
(B) In addition to the retirement benefits to which
Executive is entitled under all tax qualified
retirement plans maintained by the Bank (hereinafter
collectively referred to as "Plan"), as amended from
time to time, Executive shall receive as additional
severance benefits a retirement benefit paid under
this Agreement, which benefit (except as provided
below) shall be determined in accordance with, and
paid under this Agreement 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 Plan that she would have received
had she continued in the employment of the Bank for
the balance of the Employment Term at the highest
annual rate of Base Salary in effect during the
twelve (12) months immediately preceding the
Termination Date. Such Base Salary shall be deemed to
represent the compensation received by Executive
during each such additional year for purposes of
determining her additional retirement benefits under
this Subsection 5(vi).
(C) In addition to other amounts payable to Executive
under this Section 5, Executive shall be entitled to
receive all other benefits in which she was vested or
to which she 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 of other benefits under Section
4(iii), excepting those Section 4(ii) provisions
relating to stock options or similar stock programs
in which Executive had no interest as of the date of
termination of her employment, for the remaining
unexpired portion of the Employment Term subject to
the limitations set forth in Section 6 below.
6. Limitations on Termination Compensation. In the event that the
severance benefits payable to Executive under Subsection 5(vii) ("Severance
Benefits"), or any other payments or benefits received or to be received by
Executive from the Bank (whether payable pursuant to the terms of this
Agreement, any other plan, agreement or arrangement with the Bank or any
corporation ("Affiliate") affiliated with the Bank within the meaning of
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Section 1504 of the Internal Revenue Code of 1954, as amended (the "Code")), in
the opinion of tax counsel selected by the Bank'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 compensation
payable to Executive by the Bank (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 Bank
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 Executive from the
Bank (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 her receipt or enjoyment of any such payment or
benefit which triggered the applicability of this Section 6, or (ii) 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 Bank. The Base Amount shall include every type and form of compensation
includable in Executive's gross income in respect of her employment by the Bank
(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, 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 Bank's independent auditors in
accordance with the principles of Sections 280G (b)(3) and (4) of the Code.
Executive shall have the right to request that the Bank 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
Executive's request, no Severance Benefits payable under this Agreement shall be
made to Executive until after fifteen (15) days from the date of such ruling.
For purposes of this Section 6, Executive and the Bank 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
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be extended to a date fifteen (15) days from the date of the Service's notice
indicating that no ruling would be forthcoming.
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 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) The Bank 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 Bank ("successor
organization") to expressly assume and agree to
perform this Agreement in the same manner and to the
same extent that the Bank would have been required to
perform if no such succession had taken place or to
re-execute this Agreement as provided pursuant to
section 5(iv). 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 twelve (12) 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) provided under this
Agreement upon a "change in control".
As used in this Agreement "Bank" shall mean
the Bank as hereinbefore defined and any successor to
its business and/or assets as aforesaid 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
Bank to obtain such agreement prior to the
effectiveness of any such succession shall be a
breach of this Agreement and shall entitle Executive
as her exclusive remedy to compensation from the Bank
in the same amount and on the same terms as she would
be entitled to under this Agreement if she terminated
her employment under
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Section 5(iv). 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 Executive and her
heirs, beneficiaries and personal representatives and
the Bank and any successor organization.
(ii) Non-competition Provision. Executive acknowledges that
the development of personal contacts and relationships is an essential
element of the savings and loan business, that Bank has invested
considerable time and money in her development of such contacts and
relationships, that Bank could suffer irreparable harm if she were to
leave employment and solicit the business of Bank customers, and that
it is reasonable to protect Bank 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
the Bank) 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
with Bank, or during the period of this covenant not to compete, has a
home, branch or other office in any county in which Bank has an office
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 $1,000,000 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 Bank and are reasonably
limited as to (i) the scope of activities
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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, Bank 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 Bank brings legal
action for injunctive or other relief, Bank 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. In addition to such other relief as may be awarded, if Bank
is the prevailing party it shall be entitled to reimbursement for all
reasonable costs, including attorneys' fees, incurred in enforcing its
rights hereunder.
(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
Bank States registered mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Bank:
West Allis Savings Bank
0000 Xxxx Xxxxxxxxxx Xxxxxx
P. O. Xxx 00000
Xxxx Xxxxx, XX 00000
or if to Executive, at the address set forth below:
Xx. Xxxxxxxxx X. Xxxxx
00000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, 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, 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.
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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 5(iv), Executive shall be entitled to recover from
the Bank (A) reasonable attorney's fees and necessary costs and
disbursements incurred in such litigation if Executive is the
prevailing party, or (B) reasonable attorneys fees and necessary costs
and disbursements of up to $7,500 incurred in such litigation if
Executive is not 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. The Bank shall be entitled to withhold
from amounts to be paid to Executive under this Agreement any federal,
state, or local withholding or other taxes of charges which it is from
time to time required to withhold. The Bank 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) Miscellaneous. No provision of this Agreement may be
amended, waived or discharged unless such amendment, waiver of
discharge is agreed to in writing and signed by Executive and such Bank
officer 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 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,
express or implied, with respect to the subject matter hereof have been
made by either party which are not expressly set forth in this
Agreement. 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, each of which together will constitute one and the same
instrument.
(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.
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(x) 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.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first above written.
Executive:
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Xxxxxxxxx X. Xxxxx
00000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
WEST ALLIS SAVINGS BANK
(CORPORATE SEAL)
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Xxxxx X. Xxxxxxxxx
President/CEO
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Xxxxx X. Xxxxxxx
Director/Corporate Secretary
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