RESIGNATION AGREEMENT
This Resignation Agreement ("Agreement") is by and among Xxxxxx X.
Xxxxxxx ("you" or the "Executive"), First Federal Savings Bank LaCrosse-Madison
("we," "us" or the "Bank") and First Federal Capital Corp. (the "Company").
BACKGROUND
Your active employment with us ended effective as of February 4, 2003
(the "Resignation Date"). We will provide you with certain payments and other
benefits for a period of time after your Resignation Date in accordance with the
terms of this Agreement (which is intended to reflect and replace the Employment
Agreement as it was in effect between yourself and the Bank up until your
Resignation Date).
TERMS OF AGREEMENT
The Executive, the Bank and the Company agree to the following terms:
1. SEVERANCE AND OTHER PAYMENTS AND BENEFITS. You will receive
certain severance payments and other benefits provided pursuant to Section 5(vi)
of your Employment Agreement with the Bank and as described in the attached
"Benefits Summary" (which is incorporated herein and made a part hereof by
reference). The Benefits Summary sets forth all amounts, payments and benefits
of any type whatsoever to be received by you from us and contains important
information about the terms and conditions for these benefits. Please read the
Benefits Summary closely.
2. LAW WHICH APPLIES TO THIS AGREEMENT. This Agreement will be
interpreted and enforced based on the laws of the State of Wisconsin.
3. RELEASE OF CLAIMS.
a) Your Release. In exchange for the payments and other benefits
specified in this Agreement, you -- for yourself, your spouse, your heirs and
all other representatives -- agree to give up (waive) all claims of any nature
whatsoever, contractual or otherwise, which you may have relating to your
employment, or the termination of your employment, with us. This waiver of
claims applies to all claims against the Bank and the Company or any company
owned by or otherwise related to the Bank or the Company (including all
predecessors, successors and assigns), as well as to anyone associated with or
representing us in the past or present, such as officers, directors, employees
and agents.
The claims you are waiving include but are not limited to claims
under Federal, state or local law for discrimination, breach of contract, lost
wages, compensatory damages, punitive damages, attorneys' fees and all other
claims of any type or nature, whether known or unknown, matured or unmatured,
direct or indirect. You also agree not to start any lawsuits or other actions,
and not to make any other claims in state or Federal court, or with any state,
Federal or local governmental, administrative or advisory agency for any purpose
related in any way to your employment with us or the termination of your
employment.
You acknowledge that we have agreed to provide the payments
and benefits described in this Agreement subject to your execution of this
Agreement and that you give up any claims you may have against us. BY SIGNING
THIS AGREEMENT, YOU ARE GIVING UP ALL CLAIMS WHICH YOU MAY HAVE AGAINST THE
BANK, THE COMPANY AND ANY RELATED PERSON OR ENTITY, EXCEPT FOR YOUR RIGHT TO
ENFORCE RECEIPT OF THE BENEFITS AND PAYMENTS DESCRIBED HEREIN.
b) Our Release. The Bank and Company -- for themselves, their
affiliates, successors and assigns -- agree to give up (waive) all claims of any
nature whatsoever which they may have relating to your employment or the
termination of your employment with us; provided, however, that this release
shall not extend to any claim based upon any fraudulent or dishonest act
committed by you against us. This waiver of claims applies to claims by the Bank
or Company against your spouse, heirs and other representatives, as well as
against yourself.
4. OFFICER INDEMNIFICATION AND RESIGNATION. Notwithstanding your
release of claims outlined above, this release does not apply to your right as a
former officer and director to indemnification from us or our insurer for claims
brought by third parties based on any acts or omissions by you within the scope
and during the term of your employment, subject to the limits and conditions
imposed by applicable laws and regulations, and by our by-laws and other
policies relating to indemnification of officers and directors generally. You
agree that execution of the Agreement also evidences your resignation from your
positions as an officer and director of First Reinsurance, Inc. and as a
director of F.F. Mortgage Reinsurance, Inc., each effective as of the date of
termination of your employment with us.
5. WAIVER OF AGE DISCRIMINATION CLAIMS; REVIEW AND CANCELLATION. In
exchange for the amounts to be paid to you by us under this Agreement, you
specifically waive any claims which you have or may have against the Bank, the
Company or any related person or entity under the Age Discrimination in
Employment Act of 1967, the Older Workers Benefit Protection Act or any other
similar law. You will have up to 21 days from the receipt of this Agreement to
review and decide whether to accept it. You will also have a period of 7 days
after signing this Agreement (the "Cancellation Period") in which to cancel it
and this Agreement will not become effective until this time period has passed.
You acknowledge that the payments and benefits provided to you include an
additional $2,500 included in the amounts described in the Benefits Summary.
This additional amount is not otherwise owed to you by the Bank or Company and
will be paid specifically as consideration for your waiver of age discrimination
claims.
6. AVAILABILITY OF OUTPLACEMENT SERVICES. The Bank and Company agree
that you may, subject to prior consultation with the Bank and receipt of Bank
approval (which approval shall not be unreasonably withheld) retain an executive
outplacement service (the "Service") for the purpose of assisting you in meeting
your "duty to mitigate" under Section 7 below. The Bank agrees that it will
assist you in deferring the cost of retaining outplacement services by making
payment directly to the Service of up to the first Thirty Thousand Dollars
($30,000.00) of expense incurred.
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7. ACKNOWLEDGMENT OF DUTY TO MITIGATE. You agree that you have an
ongoing obligation to seek an executive level position with an annual salary
exclusive of bonuses of not less than $175,000; provided, however, that you are
not required to accept a position outside of a 25 mile radius of LaCrosse,
Wisconsin. It is agreed that the Bank and Company will waive your duty to
mitigate if you pursue additional college or university level education for the
purpose of enhancing or altering your career opportunities; provided, however,
that in such event the Bank may offset any amounts paid to the Service against
the final two (2) payments under Section 1 of the Benefits Summary, but only to
the extent you have not received mitigation income and benefits sufficient to
offset the amount of the Bank's payments to the Service for your benefit. The
Bank and Company will also waive your duty of mitigation in the event of
disability. [For purposes of this Agreement, the term "disability" shall mean
your inability, as a result of physical or mental incapacity, to substantially
perform for a period of 180 consecutive days the duties required of an executive
level position. Any questions as to the existence of your disability upon which
you and the Bank cannot agree shall be determined by a qualified independent
physician mutually agreeable to you 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 you maintain your principal
residence, upon the request of either party. The costs of any such medical
examination shall be borne by the Bank.] If you do obtain employment, you agree
to advise Xx. Xxx Xxxxxx at the Bank, with the compensation and benefits
received from such employment then being treated as an offset to amounts
otherwise remaining to be paid hereunder.
8. NONDISCLOSURE OF AGREEMENT TERMS; NO DEROGATORY COMMENTS;
DISCONTINUANCE OF USE OF IMAGE. You agree not to disclose any of the terms of
this Agreement to any other person or entity except for your legal, tax and
other advisors consulted in connection with review of this Agreement, and your
family members; and you will assure that all advisors and family members do not
disclose the terms of this Agreement to any other person or entity. The Bank and
Company will not disclose the terms hereof, except to the extent required by
disclosure requirements imposed by the Securities Exchange Act of 1934. You and
the Bank and Company each also agree not to make any derogatory comments about
the other (or, with respect to the Bank and the Company about our respective
employees or agents). Executive agrees not to object to post-Resignation use of
his name and image for promotional purposes, provided that the Bank and Company
discontinue such use no later than August 31, 2003.
9. CONFIDENTIAL INFORMATION. You acknowledge that during the course of
your employment with us, you have produced and have had access to materials,
records, data, trade secrets and information not generally available to the
public regarding us and related entities (collectively the "Confidential
Information"). You agree to keep all Confidential Information in confidence, and
that you will not directly or indirectly disclose, use, copy, make lists or
otherwise utilize any such Confidential Information, except as specifically
authorized by us or required by any court or administrative agency. Confidential
Information does not include any information which is already known generally to
the public. This prohibition is not intended to extend to or prohibit your use
of general skills and know-how acquired during your employment with us and we
specifically consent to your use and publication of management style, technique
and motivation information, materials, etc. which do not contain information
specific to the business of the Bank or Company in connection with any such
publication (including no
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objection by the Bank to your use of the name "Carpe Occasio" and which use or
publication on your part will not prevent continued usage by the Bank). All
records, files, documents and other materials which you have prepared, used or
come into contact with shall remain our property, and to the extent you have
made copies of such materials (or otherwise retained such materials where they
are not necessary to Bank or Company operations) you will not use such
information in any manner detrimental to the Bank or Company.
10. REVIEW BY AN ATTORNEY. You are encouraged to have this Agreement
reviewed, at your expense, by an attorney of your choice. By signing this
Agreement, you acknowledge that you have had enough time to have an attorney
review this Agreement.
11. PRIOR AGREEMENTS NOT ENFORCEABLE. This Agreement contains the
entire agreement of the parties regarding this matter. Any prior
representations, promises or agreements (whether oral or written) which are not
in this Agreement or the attached Benefits Summary are hereby superseded and not
enforceable. The terms of this Agreement may not be altered, amended or waived
except by another written agreement signed by all parties.
12. EXPENSES OF ENFORCEMENT. If any legal proceeding is necessary to
enforce or interpret 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.
13. UNDERSTANDING OF TERMS. You and we each acknowledge that we have
read this Agreement completely, and fully understand the terms, nature and
effect of this Agreement, and that we each execute it voluntarily and in good
faith.
14. SUCCESSORS; BINDING AGREEMENT. This Agreement will be binding on
the parties hereto and on their respective successors, heirs, and assigns,
including with respect to the Bank or Company 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 or Company. Any
successor to the Bank or Company shall be bound to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the Bank
or the Company would be required to perform it if no such succession had taken
place.
15. COUNTERPARTS. Duplicate copies of this Agreement may be signed,
and each copy will be considered an original document, but when taken together,
all copies will constitute one Agreement.
Date Signed: February 21, 2003
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EXECUTIVE: FIRST FEDERAL SAVINGS BANK,
LaCROSSE-MADISON
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxx
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FIRST FEDERAL CAPITAL CORP.
By: /s/ Xxxx X. Xxxxx
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BENEFITS SUMMARY
The following is a summary of benefits ("Summary") to be provided to
Xxxxxx X. Xxxxxxx ("Executive") by First Federal Savings Bank LaCrosse-Madison,
F.S.B. (the "Bank") and First Federal Capital Corp. (the "Company") under and
pursuant to your Resignation Agreement bearing even date herewith:
1. Severance Payments.
Severance payments for a period of thirty-six (36) months
(beginning as of February 5, 2003 and ending February 4, 2006 -- the "Severance
Pay Period") based on a Base Salary of $236,500.00, and a cash bonus payment of
$114,069.00 for the calendar year ended December 31, 2002, payable at the rate
of $29,214.08 per month during the Severance Pay Period in accordance with the
Bank and Company's normal payroll practices. The first such payment will be made
on the first normal payroll date following your Resignation Date; provided that
the Bank will suspend payments after the February 28, 2003 pay date if (i) the
Resignation Agreement has not been executed by said date, or (ii) at anytime the
executed Resignation Agreement is cancelled prior to expiration of the
Cancellation Period. All payments made after your Resignation Date will count as
payments made for purposes of the Severance Pay Period. The Bank's payment
obligation shall terminate in the event of your death; provided, however, in the
event of Disability the Bank and Company shall continue payments for the balance
of the Severance Pay Period (offset by any disability payments actually received
by you from disability plans or insurance maintained or provided by the Bank and
by disability payments from any Social Security or other governmental plan or
program) at a monthly rate of $19,708 (i.e. Base Salary without consideration of
bonus). All severance payments provided pursuant to this Section shall be offset
by any compensation received by Executive from employment during the Severance
Pay Period.
2. Waiver of Age Claims Payment.
You will receive an additional payment of $2,500, included in
the first severance payment made to you by the Bank following expiration of the
Cancellation Period. This is an additional payment not otherwise owed to you by
the Bank or Company and which is paid specifically as consideration for your
waiver of age discrimination claims pursuant to Section 5 of the Resignation
Agreement.
3. Group Insurance Coverages.
The Bank and Company will maintain for Executive, on the same
basis (including any required employee premium contribution) as made available
to active employees of the Bank, continued coverage under the Bank's group
insurance programs (i.e. health, dental, group life, dependent life, personal
accident insurance and group long-term disability insurance) for the thirty-six
(36) month period for which resignation payments are made; provided, that
coverage under the Bank's group programs will end at such earlier time as
Executive may obtain employment which provides him with coverage under
comparable programs of another employer. If Executive fails to obtain employment
providing comparable coverages prior to expiration of such thirty-six (36) month
period, Executive may continue coverage under the
Bank or Company's group health and dental insurance programs for up to an
additional eighteen (18) months at his expense as calculated by the Bank or
Company.
In addition to group life insurance coverage, the Bank or
Company has paid the 2003 premium on a $150,000 face value insurance policy on
Executive's life and will also pay the premiums as they come due for such policy
in 2004 and 2005, after which the Bank will transfer the policy to Executive.
The Bank or Company has also paid the 2003 premium on an
executive disability policy and will also pay the premiums as they come due for
such policy in 2004 and 2005, after which the policy shall become Executive'
responsibility to continue if he so chooses (any amounts received by Executive
under said disability policy will be credited for disability obligation offset
purposes against the Bank's obligations under Section 1 above).
4. Qualified Retirement Plans.
Executive is fully vested in benefits accrued through the
Resignation Date under the qualified retirement plans maintained by the Bank and
by First Federal Capital Corp. (i.e. the First Federal Savings Bank Savings
Investment Plan or "401(k) Plan", the First Federal Capital Corp. Employee Stock
Ownership Plan or "ESOP", and the First Federal Savings Bank La Crosse-Madison
Pension Plan or "Pension Plan"). Executive shall be entitled to receive his
vested benefits under each of said plans in accordance with the respective terms
of such plans. Your accrued benefits and balances under each of the qualified
plans are as follows:
(i) Pension Plan -- An accrued monthly benefit of $3,626.00
per month, with payments to commence at your age 65 (October 1, 2021)
as a life annuity with 120 monthly payments certain (computed through
February 4, 2003).
(ii) 401(k) Plan-- An account balance of $206,917 as of
December 31, 2002.
(iii) ESOP -- An account balance of $360,228.00 as of December
31, 2002.
The monthly benefit under the Pension Plan is fixed, while the other
account balances will increase or decrease based on investment
performance since December 31, 2002.
In addition, Executive shall be credited with service and
accrual under each of the qualified plans equivalent to that which he would have
received during the thirty-six (36) month period following his Resignation Date
if he had continued as an employee of the Bank (and based on the amount of
compensation received by Executive during the Severance Pay Period, but not in
excess of the level of compensation permitted to be considered for qualified
plan purposes). Such equivalent treatment shall entitle Executive to an amount
equivalent to a matching contribution of 3% of compensation under the 401(k)
Plan, to the equivalent of a contribution to the ESOP of 1.5% of compensation,
and to the equivalent of additional accrued Pension Plan credit (actuarially
adjusted) for the 36-month Severance Pay Period. The equivalent amounts that
Executive would have earned or had credited to his account under each of the
qualified plans would have been as follows:
(i) Pension Plan -- An additional monthly benefit having a
current equivalent value for lump-sum distribution purposes of
$28,021.00.
(ii) 401(k) Plan-- Additional account contributions of
$18,000.00.
(iii) ESOP-- Additional account contributions of $9,000.00.
Such amounts shall be paid by the Bank to Executive as a lump
sum within sixty (60) days of expiration of the Cancellation Period.
5. Stock Options.
You will have until August 4, 2003 to exercise your 51,400
outstanding and vested stock options. No further vesting of options or of
restricted stock awards will occur subsequent to the Resignation Date.
6. Incentive Programs.
There will be no accruals nor participation by Executive under
any Bank or Company incentive or Supplemental Nonqualified Retirement Program
(the "SERP") following the Resignation Date, except to the extent the Severance
Payments provided pursuant to Section 1 above reflect the bonus amount received
by Executive for the calendar year ended December 31, 2002.
Executive has an accrued and vested SERP benefit which
consists of amounts calculated with respect to each of the 401(k) Plan, ESOP,
and Pension Plan. The Bank has calculated the present value of each of those
respective elements of the SERP benefit as of your Resignation Date (including
an actuarially adjusted payment for the Pension Plan portion) as follows:
(i) Pension Plan -- An additional monthly benefit amount of
$1,327 per month (having a current equivalent lump-sum distribution
value of $74,057.00).
(ii) 401(k) Plan-- Additional account contributions of
$10,901.00.
(iii) ESOP-- Additional account contributions of $9,672.00.
The Pension Plan lump sum amount is fixed, while the other
account balances will increase or decrease based on investment
performance since December 31, 2002.
The actual present value amounts will be paid to Executive in
the form of a lump sum payment within sixty (60) days of expiration of
the Cancellation Period.
7. Outplacement Costs. Subject to approval of Executive's selection of a
Service pursuant to Section 6 of the Resignation Agreement, the Bank and Company
shall pay directly to such Service the first Thirty Thousand Dollars
($30,000.00) of costs related to Executive's effort to obtain employment. If
Executive returns to school to enhance his career opportunities during the
Severance Pay Period, the Bank will offset costs paid to the Service against the
final two (2)
monthly severance payments due under Section 1 hereof, but only to the extent
Executive has not received mitigation income and benefits sufficient to offset
the amount of the Bank's payments to the Service for Executive's benefit.
8. PTO Benefit.
The amount of PTO benefit attributable to employment prior to
(accrued vacation, sick-pay, etc.) will be included in the first payment to
Executive following expiration of the Cancellation Period. There will be no PTO
accruals during or attributable to the Severance Pay Period.
9. Company Car.
The Bank agrees to transfer title to the vehicle it currently
makes available for Executive's use to Executive without charge, valuing the
same at $21,000.
10. La Crosse Country Club. Executive will be forgiven his obligation for
repayment to the Bank or Company of the amount advanced by the Bank on his
behalf for the acquisition of Capital Membership Certificates and Initiation
Fees for his membership at the La Crosse Country Club, as well as for club dues
paid through December 31, 2003.
11. Taxes.
Generally, the Bank will deduct from any payments made to you
under this Agreement any Federal, state or local withholding (including FICA),
income or other taxes which it believes are required to be deducted from time to
time under applicable law. All amounts payable to you are stated in this
Agreement before any such deductions have been made. You will be responsible for
talking to your own advisors to determine the effect of payments on your tax
liability, social security payments and other rights and obligations.
12. Changes to Plans or Policies.
The terms, conditions and provisions of the Bank's insurance
plans and policies may be changed from time to time, up to and including
termination of any plan or policy. The Bank may make these changes without
notifying you and without your approval; provided the group coverages provided
shall not be less than the group coverages generally provided to the Bank's
executive employees. The Bank will provide you information about your benefits
that is provided to other employees for utilization of such benefits. Any change
in the Bank's plans or policies may change the type or cost of medical insurance
or other benefits which you receive.
13. Xxxxxxx Graduate School of Banking.
Executive will be forgiven any obligation for repayment of
tuition expenses incurred by the Bank on his behalf for his enrollment at the
Xxxxxxx Graduate School of Banking.
The undersigned hereby acknowledges receipt and acceptance of this
Benefits Summary as of this 21st day of February, 2003, as a part of the
Severance Agreement bearing even date herewith.
Executive
/s/ Xxxxxx X. Xxxxxxx
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