EMPLOYMENT AGREEMENT
EXHIBIT
10.15
THIS
AGREEMENT is made as of the 9th day of February 2004, between
Merchants & Manufacturers Bancorporation, Inc. (the
"Employer"), a Wisconsin corporation, its successors and assigns, and Xxxxxxx
X.
Xxxxxxxxx (the "Employee").
RECITALS
WHEREAS,
Employer is in the business of providing banking and other related services,
to
individuals and businesses, including to customers of Employer's affiliated
businesses; and
WHEREAS,
Employer and Employee desire to set forth terms and conditions of Employee's
terms of employment.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set
forth below:
1. Employment. Employer
shall employ Employee and Employee shall serve, on the terms and conditions
set
forth herein, for the period provided in Section 2.
2. Term
of Employment. The period of Employee's employment under
this Agreement shall be deemed to have commenced as of the date first above
written and shall continue for a period of sixty (60) calendar months
thereafter, unless earlier terminated as provided in this Agreement (the
"Employment Term"). The Employment Term may thereafter be extended
upon such terms and conditions as the parties may mutually
determine.
3. Positions
and Duties. Employee shall serve Employer in such capacity
as the president of Employer may from time to time determine. The
parties anticipate that during the term of this Agreement Employee will be
involved directly in providing services consistent with the type of services
normally provided by a Chief Credit Officer, and as such services may
evolve. Employee shall report to the President of Employer shall
provide such services as may be appropriate to his position and as may be from
time to time determined by such persons. The Board of Directors or
Board as referred to in this Agreement means the Board of Directors of
Merchants. During the Employment Term, Employee shall devote
substantially all his working time and efforts to the business and affairs
of
the Employer and shall not engage in any activity which is competitive with
or
adverse to the business of the Employer or any of its affiliates whether done
as
a partner, director, officer, employee, shareholder of or consultant or advisor
to any other business.
4. Compensation. As
compensation for services provided pursuant to this Agreement, Employee shall
receive the compensation and other benefits set forth below:
(i) Base
Salary. During the Employment Term, Employee shall receive
an annual base salary ("Base Salary") in such amounts as may from time to time
be approved by the Board of Directors. The minimum initial Base
Salary shall be $160,000. Such amount shall be subject to review and
to annual adjustment by the Board of Directors in accordance with Employer's
normal personnel practices. Employee's Base Salary and other
compensation shall be paid in accordance with Employer's regular payroll
practices. Reduction in salary shall only occur pursuant to a
directive issued by the Board of Directors requiring a general reduction of
salaries for executive officers.
(ii) Bonus
Payments. In addition to Base Salary, Employee shall be
entitled, during the Employment Term, to such bonuses and other incentive
compensation as may be determined from time to time by the Board of
Directors.
(iii) Other
Benefits. During the Employment Term, Employer shall provide
to Employee, in addition to Base Salary, such other fringe benefits as are
made
generally available to employees serving in comparable positions at
Employer. Such benefits include participation in group health, life,
disability, or similar insurance program and in pension, profit sharing,
deferred compensation, 401(k) or other similar retirement program
provided. Granting of stock options shall be subject to approval of
the Executive Stock Option Committee of Employer.
Employee
shall be entitled to vacation, sick time, personal days and other perquisites
in
the same manner and to the same extent as provided other employees serving
in
comparable positions at Employer. Executive shall be entitled to an
auto allowance of $650.00 per month.
Nothing
contained herein shall be construed as granting Employee the right to continue
in any benefit plan or program, or to receive any other perquisite of
employment, provided under this section 4(iii) (except to the extent
Employee had previously earned or otherwise accumulated vested rights therein)
following a valid and lawful termination, discontinuance or modification of
such
plan, program or perquisite.
5. Termination. This
Agreement may be terminated, subject to payment of the compensation and other
benefits described below, upon occurrence of any of the events described
herein. The date on which Employee ceases to be employed under this
Agreement, after giving effect to the period of time specified in any notice
requirement, is referred to as the "Termination Date."
(i) Death;
Disability. This agreement shall terminate upon the death or
disability of Employee. As used in this Agreement, "disability" means
Employee's inability, as the result of physical or mental incapacity, to
substantially perform his duties for a period of 180 consecutive
days. If the Employer and Employee cannot agree as to the existence
of a disability, the determination shall be made by a qualified independent
physician acceptable to both parties, or alternatively, by a physician
designated by the president of the medical society for the county in which
Employee resides. The costs of any such medical examination shall be
borne by Employer.
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If
termination occurs as a result of death or disability, no additional
compensation shall be payable to Employee under this Agreement except as
specifically provided herein. Notwithstanding anything to the
contrary contained herein, Employee shall receive all compensation and other
benefits to which he was entitled under Section 4, and the plans and
programs provided therein, by reason of employment through the Termination
Date.
(ii) Cause. Employer
may terminate Employee's employment under this Agreement for Cause at any time,
and thereafter Employer shall have no further obligation under this
Agreement. Notwithstanding anything to the contrary contained herein,
Employee shall receive all compensation and other benefits in which he was
vested or to which he was otherwise entitled under Section 4 and the plans
and programs provided therein, by reason of employment through the Termination
Date.
For
purposes of this Agreement, "Cause" shall mean:
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(a)
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A
failure by Employee to substantially perform his duties to the
satisfaction of the Board of Directors (other than failure resulting
from
incapacity) after a written demand by the Board, which demand identifies,
with reasonable specificity, the manner in which the Board believes
Employee has not substantially performed, and Employee's failure
to cure
within a thirty (30) day period of time after his receipt of this
notice;
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(b)
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A
criminal conviction of or plea of nolo contendere by Employee for
any act involving dishonesty, breach of trust or a violation of the
laws
of the State of Wisconsin or the United
States;
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(c)
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A
criminal conviction of or plea of nolo contendere by Employee for
the commission of any felony;
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(d)
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A
material breach of fiduciary duty by Employee involving substantial
personal profit;
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(e)
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A
willful violation of any law, rule or order by Employee (other than
traffic violations or similar offenses);
or
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(f)
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Incompetence,
personal dishonesty or material breach of any provision of this Agreement
or any willful misconduct by
Employee.
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(iii) Voluntary
Termination by Employee. Employee may voluntarily terminate
employment at any time by giving at least thirty (30) days prior written notice
to Employer. In such event, Employee shall have no further obligation
hereunder, except that Employee shall receive all compensation and other
benefits in which he was vested or to which he was otherwise entitled under
Section 4 and the plans and programs provided therein, by reason of his
employment through the Termination Date.
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(iv) Termination
of Employee Without Cause. Employer may terminate Employee's
employment without Cause at any time by giving written notice to Employee.
In such event Employer shall have no further obligation hereunder, except
that
Employee shall receive all compensation and other benefits in which he
was
vested or to which he was otherwise entitled under Section 4 and the plans
and programs provided therein, by reason of his employment through the
Termination Date, and Employee shall receive as severance his Base Salary
in
effect on the Termination Date continued until the date that the Employment
Term
would have ended had it not been terminated pursuant to this Section 5(iv),
however such severance shall not be for less than a twelve (12) month
period. Such severance shall be payable in the same manner that the
Base Salary would have been paid. For purposes of this paragraph, a
substantial reduction of Employee's duties by Employer shall be defined
to be a
termination of Employee's employment without cause.
(v) Suspension
or Termination required by Regulatory Agencies.
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(a)
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If
Employee is suspended and/or temporarily prohibited from participating
in
the conduct of Employer's or any of Employer's affiliates' affairs
by a
regulatory agency and Employee's employment is not terminated, Employer's
obligations under the Agreement shall be suspended as of the date
of
service of the notice unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the
Employer shall: (1) pay Employee all of the compensation withheld
while
its obligations under this Agreement were suspended; and (2) reinstate
any
of its obligations which were
suspended.
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(b)
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If
Employee is removed and/or permanently prohibited from participating
in
the conduct of Employer's or any of Employer's affiliates affairs
by an
order issued by a regulatory agency, the obligation of Employer under
the
Agreement shall terminate as of the effective date of the order,
and
Employer shall have further obligation hereunder, except that Employee
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 provide therein, by reason of his employment through
the
Termination Date.
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(c)
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All
obligations under the Agreement may be terminated, except to the
extent
determined that continuation of the contract is necessary to operation
of
Employer or any of its affiliates, at the time the Federal Deposit
Insurance Corporation ("FDIC") enters into an agreement to provide
assistance to or on behalf of Employer or any of Employer's affiliates
under the authority contained in Section 13(c) of the Federal Deposit
Insurance Act, or when Employer or any of its affiliates is determined
by
any appropriate bank regulatory agency to be in an unsafe or unsound
condition. Any rights of the parties that have been already
earned or otherwise vested, however, shall not be affected by such
action.
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6.
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Noncompetition.
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(i) Noncompetition
and Nonsolicitation.
Executive
acknowledges that the development of personal contacts and relationships is
an
essential element of Employer's and Employer's affiliates' business, that
Employer has invested considerable time and money in his development of such
contacts and relationships, that Employer and its affiliates could suffer
irreparable harm if he were to leave Employer's employment and solicit the
business of customers of Employer or Employer's affiliates and that it is
reasonable to protect Employer against competitive activities by
Executive.
Executive
agrees that the non-competition provisions set forth herein are necessary for
the protection of Employer and its affiliates and are reasonably limited as
to
(a) the scope of activities affected, (b) their duration and geographic scope,
and (c) their effect on Executive and the public. In the event
Executive violates the non-competition provisions set forth herein, Employer
shall be entitled, in addition to its other legal remedies, to enjoin the
employment of Executive with any Significant Competitor for the period set
forth
herein. If Executive violates this covenant and Employer brings legal
action for injunctive or other relief, Employer shall not, as a result of the
time involved in obtaining such relief, be deprived of the benefit of the full
period of the restrictive covenant. Accordingly, the covenant shall
be deemed to have the duration specified herein, computed from the date relief
is granted, but reduced by any period between commencement of the period and
the
date of the first violation.
Executive
acknowledges that as a result of his employment with Employer or its affiliates
Executive has access to confidential information concerning Employer's business,
customers and services. Executive agrees that during the Employment
Term or subsequent thereto, he will not, directly or indirectly, whether in
original, duplicated, computerized or other form, use, disclose or divulge
to
any person, agency, firm, corporation or other entity any confidential or
proprietary information, including, without limitation, customer lists, reports,
files, manuals, training materials, records or information of any kind, or
any
other secret or confidential information pertaining to the products, services,
customers or prospective customers, sales, technology and business affairs
or
methods of Employer or any of its affiliates (collectively "Confidential
Information") which Executive acquires or has access to during the Employment
Term. Notwithstanding the foregoing, Confidential Information shall
not include information or data which is otherwise available in the public
domain.
Executive
agrees that he will not at any time either during or subsequent to his
employment with Employer disclose or transmit, either directly or indirectly,
any Confidential Information of Employer or its affiliates to any person, firm,
corporation, association, or other entity, and will not remove this information,
in any form whatsoever, from the premises or data base of Employer or its
affiliates, except as required in the ordinary course of business as is
necessary to perform Executive's duties or as required by applicable
law. In the event of Executive's termination from employment from
Employer for any reason, Executive shall immediately return all Confidential
Information of Employer, including any original, computerized or duplicated
records to Employer.
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Executive
agrees that during the term of his employment with Employer, and for a term
of
twelve (12) months thereafter, he will not, directly or indirectly, on
behalf of himself or on behalf of any other individual or entity, as an agent
or
otherwise contact, influence or encourage any of the customers of Employer,
of
which Executive has knowledge or based on his capacity of employment for
Employer or its subsidiaries should reasonable have had knowledge, for the
purpose of soliciting business or inducing such customer to acquire any product
or service that is provided or under development by Employer or its affiliates
from any entity other than Employer.
Executive
agrees that during the term of his employment with Employer, and for a period
of
twelve (12) months thereafter, he will not, directly or indirectly,
encourage, induce, or entice any employee of Employer or its affiliates to
leave
the employment of Employer or its affiliates.
Executive
agrees that if he violates the covenants under this section, Employer shall
be
entitled to an accounting and repayments of all profits, compensation,
commissions and other remuneration or benefits which the Executive has realized
or may realize as the result of or in connection with any such
violation. Executive further agrees that money damages may be
difficult to ascertain in case of a breach of this covenant, and Executive
therefore agrees that Employer or its affiliates shall be entitled to injunctive
relief in addition to any other remedy to which Employer or its affiliates
may
be entitled.
(ii) Prohibitions
not Unreasonable. Employee recognize that the restrictions
set forth in this section are reasonably necessary for the protection of
Employer and they will not prevent Employee from engaging in his chosen
profession. Employee further recognizes that irreparable injury may
result to Employer, its business and its property and its affiliates in the
event of a breach by Employee of the restrictions imposed by this paragraph,
and
that Employee's acceptance of such restriction was a material factor in
Employer's decision to provide the above. Employee further agree that
it may be extremely difficult to measure in money the damages which would be
suffered by Employer in the event Employee fails to perform his obligations
under this paragraph and Employer is likely to suffer irreparable injury as
a
result of any such breach.
(iii) Remedies. Employee
agrees that if he violates any other provisions of this paragraph, Employer
shall be entitled, in addition to such other remedies and damages as may be
available at law or equity, to an injunction prohibiting Employee from engaging
in any such prohibited acts as well as payment for the costs, expenses and
reasonable attorneys' fees incurred by Employer in the successful enforcement
of
any of its rights under this paragraph. If Employer violates this
covenant and Employer brings legal action for injunctive or other relief,
Employer shall not, as a result of the time involved in obtaining such relief,
be deprived of the benefit of the full period of the restrictive
covenant. Accordingly, the covenant shall be deemed to have the
duration specified herein, computed from the date relief is granted, but reduced
by any period between commencement of the period and the date of the first
violation.
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7. General
Provisions.
(i) Successors;
Binding Agreement. This Agreement and the rights, interests
and benefits of Employee shall not be assigned, transferred or pledged in any
way. The rights, interests and benefits to Employer under this
Agreement shall be assignable and inure to the benefit of any successor to
the
Employer and it related business or to any affiliate of Employer.
(ii) Notice. All
notices and other communications provided for in this Agreement shall be in
writing and shall be deemed duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed in the
case of Employer to its principal office and in the case of Employee, to his
address appearing on the records of Employer or to such other address as either
party may have furnished to the other in writing in accordance
herewith.
(iii) Expenses. If
legal proceedings are necessary to enforce or interpret this Agreement, or
to
recover damages for breach, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements of such proceedings, in
addition to any other relief to which such prevailing party may be
entitled.
(iv) Withholding. Employer
shall be entitled to withhold from amounts to be paid to Employee under this
Agreement any federal, state, or local withholding or other taxes or charges
which it is from time to time required to withhold. Employer shall be
entitled to rely on an opinion of counsel as to the amount or requirement of
any
such withholding.
(v) Miscellaneous. No
provision of this Agreement maybe amended, waived or discharged unless such
amendment, waiver or discharge is agreed to in writing and duly executed by
Employer and Employee or its successor in interest. This Agreement
constitutes the entire agreement between the p arties with respect t o the
subject matter hereof and supersedes all prior agreements and undertakings,
whether written or oral, between the parties with respect thereto; no agreements
or representations, oral or otherwise, expressed or implied, have been made
by
either party with respect to the subject matter hereof. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Wisconsin.
(vi) 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.
(vii) Counterparts. This
Agreement may be executed in several counterparts, all of which together will
constitute one and the same instrument.
(viii) 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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(ix) Effective
Date. The effective date of this Agreement shall be the date
indicated in the first paragraph of this Agreement notwithstanding the actual
date of execution by any party.
IN
WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the date first above written.
EMPLOYEE
/s/
Xxxxxxx X.
Xxxxxxxxx
Xxxxxxx
X. Xxxxxxxxx
Merchants
& Manufacturers Bancorporation, Inc.
/s/
Xxxxxx
Xxxxxxx
By: Xxxxxx
Xxxxxxx, President
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