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EXHIBIT 10.11
ST. XXXXXXX BANK, F.S.B.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is effective as of January 1, 2000 between
St. Xxxxxxx Bank, F.S.B. (the "Bank"), a federally-chartered savings and loan,
its successors and assigns, and Xxxxxx X. Xxxx (the "Executive").
RECITALS
WHEREAS, Executive is a key employee, whose extensive background,
knowledge and experience in the savings and loan industry has substantially
benefited the Bank and whose continued employment as an executive member of its
management team in the positions of President and Chief Executive Officer
("Corporate Position") 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 (sometimes referred to herein as the "Employer"), and
Executive; and
WHEREAS, the Board of Directors of the Employer has approved and
authorized the Bank's entry into this Agreement with Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below:
1. Employment. The Bank shall continue to employ Executive, and
Executive shall continue to serve the Bank, 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, 1999 (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 Board of Directors, following
an explicit review by said Board 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
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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".
3. Positions and Duties. Executive shall serve the Bank in his
Corporate Position as President and Chief Executive Officer. As such, Executive
shall report directly to the Board of Directors, be elected to the Board of
Directors upon expiration of each term thereon while this Agreement remains in
effect, serve as a member of the Bank's Management Committee and be generally
responsible for selection and supervision of the Bank's management personnel and
for the formulation of its 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 Board 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 Employer a base salary ("Base Salary") in such amount as
may from time to time be approved by its Board of Directors. The Base
Salary shall at no time be less than $400,000 per annum, payable by the
Bank; provided, however, that the Bank may receive reimbursement of
some or all of such amount from St. Xxxxxxx Capital Corporation (the
"Company") as may be jointly determined by their respective Boards of
Directors to appropriately reflect the allocation of Executives time
and efforts between the Bank and Company. The Base Salary may be
increased from time to time as determined by the Bank's Board 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 Bank's 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 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 Bank 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). In addition,
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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 the Bank to their Executive
Officers. The Employer 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 Bank 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, 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 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 or similar retirement program. The Bank shall continue
any individual insurance plans or deferred compensation agreements in
effect on the Commencement Date and Executive shall be entitled to use
of an automobile under the terms of such Employer automobile policy as
is maintained in effect (or 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 Bank's policies as in effect from time to time for other
Executive Officers. The Bank 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 the
Bank, including but not by way of limitation, travel expenses,
reasonable entertainment expenses (whether incurred at Executive's
residence, while traveling or otherwise) and tax preparation and
financial consulting fees pursuant to established reimbursement
guidelines, subject to such reasonable documentation and other
limitations as may be imposed by the Boards of Directors of the Bank.
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 Employer
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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 was entitled under Section 4 through the Termination Date and,
in addition, shall receive all other benefits available to him under
the Bank's benefit plans and programs to which he 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 mental
incapacity, to substantially perform his employment duties for a period
of 90 consecutive days. Any question as to the existence of Executive's
disability upon which Executive and Employer cannot agree shall be
determined by a qualified independent physician mutually agreeable to
Executive and Employer 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 Employer. If Executive is terminated due to disability, he
shall be paid 100% of his Base Salary at the rate in effect at the time
notice of termination is given for one year and thereafter an annual
amount equal to 75% of such Base Salary for 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 Bank's benefit plans and
programs to which he was entitled by reason of employment through the
Termination Date.
(iii) Cause. Employer 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:
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(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;
(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 Employer.
(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 the Bank. 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 Bank's 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. ss. 1818(e)(3)
and (g)(1)], the Bank's obligations under the Agreement
shall
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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 (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 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 Employer 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. ss. 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 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 Employer or
when the Employer is 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. ss. 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. ss. 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
Employer 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 Employer 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 Employer; then following the Termination Date:
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(A) In lieu of any further salary payments to Executive
subsequent to the Termination Date, Executive shall receive
Severance Pay for a twenty-four (24) month period in
accordance with the Bank's 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) Employer 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 Employer), 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 Employer 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
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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 Employer of any duties which are materially
inconsistent with Executive's positions, duties,
responsibilities and status with the Employer 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 re-elect
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)).
(B) Without the Executive's express written consent, a reduction
by the Employer 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 Employer
are relocated outside of the Milwaukee, Wisconsin
metropolitan area or, without the Executive's express
written consent, the Employer requires the Executive to be
based anywhere other than an area in which the Bank's
principal executives offices are located, except for
required travel on business of the Employer to an extent
substantially consistent with the Executive's present
business travel obligations;
(D) Without Executive's express written consent, the Employer
fails or refuses 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, Employer fails
to provide
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the same fringe benefits provided to Executive immediately
prior to a change in control, or with a package of fringe
benefits (including paid vacations) that, though individual
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 termination of Executive's employment by the Employer,
including any purported termination for cause, disability or
retirement not effected in accordance with the notice
requirements of this Agreement; or
(G) Failure by either of the Employer 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 further salary payments subsequent to the
Termination Date, 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)
thirty-six (36) months. Payments shall be made in accordance
with Employer's normal payroll practices, beginning with the
first pay date following the Termination Date. Monthly
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 or to which
Executive becomes entitled (based on the average of such
bonus and incentive compensation for the 3 calendar years
preceding his Termination Date).
(B) The Bank 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
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barred, or during such period any such plan, program or
arrangement is discontinued or the benefits thereunder are
materially reduced, the Employer 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 the Bank
(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 Employer (whether payable pursuant to
the terms of this Agreement, any other plan, agreement or arrangement
with the Employer or any corporation affiliated with the Employer
("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 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 Employer (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 Employer (or
an Affiliate) that are deemed "parachute payments") is equal to 2.99
times the Base Amount, notwithstanding any other provision to the
contrary in this
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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 Employer. 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 Bank's independent auditors in accordance with the principles of
Sections 280G (b)(3) and (4) of the Code, with the value of any amount
by which the Severance Benefits payable under this Agreement are
reduced pursuant to this Section 6 and/or the value of any other
benefit not provided plus any other amount not paid by the Bank, the
Company, or any plan maintained by either (regardless of its source)
being referred to collectively herein as the Unpaid Severance.
In the event that Bank 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 in the opinion of counsel may be made
without a substantial risk that such payments and benefits will be
treated as non-deductible to the Employer and subject to the excise tax
imposed under Section 4999 of the Code and (B) Employer may request,
and Executive shall have the right to demand the Employer 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
Employer, 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. Employer 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 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
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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.
(C) Successors; Binding Agreement.
(A) Employer 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 Employer ("successor organization") to expressly assume
and agree to perform this Agreement in the same manner and
to the same extent that Employer would have been required to
perform if no such succession had taken place 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 "Employer" shall mean the
Bank as hereinbefore defined (and any successor to its
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
Employer 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 Employer in the same
amount and on the same terms as he would be entitled to
under this Agreement if he terminated his employment under
Section 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
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representatives, and (2) the Employer and any successor
organization.
(ii) Noncompetition Provision. Executive acknowledges that the
development of personal contacts and relationships is an essential
element of the savings and loan business, that the Bank has invested
considerable time and money in his development of such contacts and
relationships, that the Bank could suffer irreparable harm if he were
to leave employment and solicit the business of the Bank's 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 the Bank) not to continue automatic annual renewals,
Executive shall not accept employment with any Significant Competitor
of the 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 Bank 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 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 the Bank brings legal action for injunctive
or other relief, the 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.
(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:
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If to the Bank:
St. Xxxxxxx Bank, F.S.B.
00000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
If to the Executive:
Xx. Xxxxxx X. Xxxx
0000 Xxxxx Xxxx
Xxxxxxxx, 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. 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 or 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) Notice of Termination. Any purported termination by the Bank
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
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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 Bank 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 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, the Employers, or any of their affiliates; provided,
however, that nothing contained herein shall supercede or extinguish
any additional written agreement of employment between the Executive
and the Company. 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) (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 this 19th day of January, 2000.
Executive:
/s/ Xxxxxx X. Xxxx
--------------------------------------------
Xxxxxx X. Xxxx
ST. XXXXXXX BANK, F.S.B.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Its: Senior Vice President - Human Resources
-----------------------------------------
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