EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT
10.9
THIS
AGREEMENT is made as of the 2nd day of January, 1996, between M & M
SERVICES, INC. (the "Employer"), a Wisconsin corporation, its successors and
assigns, and XXXXX X. XXXXXXX (the "Executive").
RECITALS
WHEREAS,
Executive is a valued, long-term employee, whose experience in the industry
and
continued employment in the position of President and Chief Executive Officer
will benefit the Employer in the future; and
WHEREAS,
Employer desires to provide for management continuity and stability and for
the
continued services of Executive.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set
forth below:
1. Employment. Employer
shall continue to employ Executive, and Executive shall continue to serve,
on
the terms and conditions set forth herein for the period provided in
Section 2.
2. Term
of Employment. The period of Executive'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 thirty-six (36) calendar months
thereafter. Commencing on the first anniversary date of this
Agreement, and continuing at each anniversary date thereafter, the Agreement
shall renew for an additional 12 months such that the remaining term shall
be thirty-six (36) months unless written notice is provided by either party
at least sixty (60) days prior to any such anniversary date, that the
Agreement shall terminate at the end of twenty-four (24) months following
such anniversary date. Prior to the renewal or non-renewal of the
Agreement, the Board of Directors or the Executive Personnel/Compensation
Committee will conduct a performance evaluation of the Executive for the purpose
of determining whether to extend the Agreement, and the results thereof shall
be
included in the minutes of the Board or Executive Personnel/Compensation
Committee meeting. The term of employment under this Agreement, as in
effect from time to time, shall be referred to as the "Employment
Term."
3. Position
and Duties. Subject to Section 5(iv)(b), Executive
shall serve Employer or any of Employer's affiliates as an Executive
Officer. As such, he is presently serving in the capacity of
President and Chief Executive Officer of Employer ("Corporate
Position"). Executive shall provide such management services as are
customarily performed by persons serving in similar capacities at other bank
holding companies or their affiliates, and perform such other duties as may
be
appropriate to his position and as may be from time to time determined by
Employer's Board of Directors to be necessary to its operations and in
accordance with its bylaws. During the Employment Term the Board of
Directors may modify Executive's duties and responsibilities
consistent with continued executive status; provided, however, there shall
be no
material change in Executive's status nor any material increase or decrease
in
duties and responsibilities except as agreed to in writing by
Executive. It is agreed that Employer shall have the right to
transfer Executive to any home office or branch office of Employer or any of
Employer's affiliates, provided that such home office or branch office is or
was
operated by Employer or any of Employer's affiliates prior to a change in
control as defined herein. During the Employment Term, Executive
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, Executive shall
receive the compensation and other benefits set forth below:
(i) Base
Salary. During the Employment Term, Executive shall receive
an annual base salary ("Base Salary") in such amount as may from time to time
be
approved by the Board or the Executive Personnel/Compensation
Committee. The Base Salary in effect as of the Commencement Date
shall be $88,900.00. Such amount shall be subject to review and to
annual adjustment by the Board or the Executive Personnel/Compensation Committee
in accordance with Employer's normal personnel practices and, once established
at a specified annual rate (including the initial rate), Executive's Base Salary
shall not thereafter be reduced without his consent except pursuant to
subsection 5(v)(c) of this Agreement. No increase in Base Salary
or other compensation shall limit or reduce any other obligation of
Employer. Executive's Base Salary and other compensation shall be
paid in accordance with Employer's regular payroll practices. Review
and adjustment of Executive's Base Salary shall be done on a basis comparable
to, and applied uniformly with, that utilized for other executives of Employer
and/or its affiliates.
(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 in effect from time
to
time on the same basis as other executive officers of Employer.
(iii) Other
Benefits. During the Employment Term, Employer shall provide
to Executive, in addition to Base Salary, such other benefits of employment
(or,
with Executive's consent, equivalent benefits) as are made generally available
to executive officers serving in comparable positions at Employer or its
affiliates. Such benefits shall include participation in any group
health, life, disability, or similar insurance program and in any pension,
profit-sharing, deferred compensation, 401(k) or other similar retirement
program provided. Executive shall also have the right to participate,
on the same basis as other executives of Employer, in any stock purchase, stock
option or stock appreciation rights plans, or other stock-based program made
available 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 other executives of
Employer.
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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 section 4(iii) (except to the extent
Executive had previously earned or otherwise accumulated vested rights therein)
following a valid and lawful termination or discontinuance 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 Executive 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; Retirement. This Agreement shall terminate upon
the death, disability or retirement of Executive. As used in this
Agreement, "disability" means Executive's inability, as the result of physical
or mental incapacity, to substantially perform his duties for a period of
180 consecutive days. If the Executive and Employer 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 Executive resides. The costs of any such medical examination
shall be borne by 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 the 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
from: (a) any disability plans or disability insurance programs
provided by Employer, and (b) 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 generally applicable retirement plan of
Employer or in accordance with any retirement arrangement established for
Executive with his consent.
If
termination occurs as a result of death, disability or retirement, 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 and the plans and
programs provided therein, through the Termination Date and, in addition, shall
receive or continue to receive for the remaining portion of the Employment
Term
all other benefits available to him under any applicable group health, life,
disability or similar insurance program as in effect on the date of death,
disability or retirement.
If,
following termination by reason of disability and prior to the expiration of
the
then remaining balance of the Employment Term, Executive becomes able to resume
his duties, he shall be reinstated to his Corporate Position or, if such
position has been filled, to a position as nearly comparable as possible From
the date of reinstatement and for the balance of the Employment Term, Executive
shall be obligated to perform all duties and responsibilities,
and entitled to receive all compensation and other benefits, as provided in
this
Agreement.
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(ii) Cause. Employer
may terminate Executive'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,
Executive shall receive all compensation and other benefits in which he was
vested or to which he was otherwise entitled under Section 4 and the plans
and programs provided therein, by reason of employment through the Termination
Date.
For
purposes of this Agreement, "Cause" shall mean:
(a) A
failure by Executive to substantially perform his duties (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
Executive has not substantially performed, and Executive's failure to cure
within a reasonable period of time after his receipt of the notice;
(b) A
criminal conviction of or plea of nolocontendere by Executive
for any act involving dishonesty, breach of trust or a violation of the banking
or savings and loan laws of the State of Wisconsin or the United
States;
(c) A
criminal conviction of or plea of nolocontendere by Executive
for the commission of any felony;
(d) A
breach of fiduciary duty by Executive involving personal profit;
(e) A
willful violation of any law, rule or order by Executive (other than traffic
violations or similar offenses); or
(f) Incompetence,
personal dishonesty or material breach of any provision of this Agreement or
any
willful misconduct by Executive.
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 Employer.
(iii) Voluntary
Termination by Executive. Executive may voluntarily
terminate employment at any time by giving at least ninety (90) days' prior
written notice to Employer. In such event, Employer shall have no
further obligation hereunder, except that 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 his employment through the Termination Date.
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(iv) Termination
by Executive After Change in Control.
(a) For
purposes of this Agreement, a "change in control" shall be deemed to have
occurred if any "individual, entity or group" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
deemed in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities representing 25% or more of the voting power of the securities of
Employer or any of Employer's affiliates or becomes the owner of all or
substantially all of the assets of Employer or any of Employer's affiliates
or
if the shareholders of Employer or any affiliate of Employer approve a
reorganization, merger or consolidation of Employer or any affiliates of
Employer. "Change in control" shall not refer to or include any
transaction involving only entities affiliated directly or indirectly with
Employer.
(b) Executive
may, at any time within twelve (12) months following a "change in control,"
terminate his employment under this Agreement by giving at least ninety
(90) days' prior written notice to Employer.
(v) Termination
by Executive "For Cause." Executive may terminate his
employment under this Agreement by giving at least ninety (90) days' prior
written notice to Employer at any time after the occurrence of any of the
following without Executive's express written consent:
(a) Executive
is assigned to positions, duties or responsibilities that are substantially
less
significant than the positions, duties and responsibilities provided
herein;
(b) Executive
is removed from or Employer fails to reelect Executive to his Corporate
Position, except in connection with termination of Executive's employment for
cause, disability or retirement, or in connection with suspension or termination
by or pursuant to regulatory action;
(c) Executive's
Base Salary is reduced other than as the result of a program applied on a
proportionately equivalent basis to all executives of Employer and its
affiliates; or any other failure by Employer to comply with
Section 4(i);
(d) Executive
is transferred without his consent to a location other than a home office or
branch office of Employer or any of Employer's affiliates which office is or
was
operated by Employer or any of Employer's affiliates prior to a change in
control as defined herein.
(vi) Suspension
or Termination Required by the FDIC.
(a) If
Executive is suspended and/or temporarily prohibited from participating in
the
conduct of Employer's or any of Employer's affiliates' 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. S1818(e)(3) and (g)(1) ),
respectively), 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 Executive 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) If
Executive 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 under Section 8(e)(4) or Section 8(g)(1) of the Federal Deposit
Insurance Act (12 U.S.C. S1818(e)(4) and (g)(1) ), respectively, the
obligations of Employer under the Agreement shall terminate as of the effective
date of the order, but earned or otherwise vested rights of Executive to
compensation and to any benefits under Section 4 shall not be
affected.
(c) If
Employer or any of Employer's affiliates is in default (as defined in
Section 3(x)(1) of the Federal Deposit Insurance Act), all obligations
under the Agreement shall terminate as of the date of default, but this
Subsection 5(vi)(c) shall not affect any vested rights of Executive,
including the right to receive the compensation and benefits set forth in
Section 5(vii) or 5(viii) of this Agreement.
(d) 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, including the right of the Executive to receive the compensation
and benefits set forth in Section 5(vii) or 5(viii) of this
Agreement.
(vii) Benefits
Upon Other Termination by Employer or Upon Termination by Executive Following
a
"Change in Control." If this Agreement is terminated by
Employer other than for death, disability or retirement under Section 5(i)
and other than for "cause" under Section 5(ii) or other than by regulatory
action under Section 5(vi), or if Executive terminates this Agreement
following a "change in control" pursuant to Section 5(iv)(b), then
following the Termination Date Executive shall be entitled to the benefits
described in Section 5(viii).
(viii) Benefits
Upon Termination by Executive "For Cause." If this Agreement
is terminated by Executive pursuant to Section 5(v), then, following the
Termination Date:
(a) In
lieu of any further salary payments, Executive shall receive severance payments
equal to the sum of the Base Salary in effect on the Termination Date plus
cash
bonus for the year prior to termination times the number
of
years of the remaining Employment Term, payable in the amount and at the times
provided in Sections 4(i) and (ii). If termination follows a
"change in control" under Section 5(iv)(b), Executive may elect to receive
the payments specified in the immediately preceding sentence in a lump sum
without any discount, provided that the amount of such severance payments may
not exceed the limitations established in Section 6.
6
(b) In
addition to the retirement benefits to which Executive is entitled under tax
qualified retirement plans maintained by Employer (hereinafter collectively
referred to as "Plan"), Executive shall receive as additional severance benefits
a retirement benefit under this Agreement, which (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 though Executive were fully vested under the Plan and had
accumulated (after termination of this Agreement) the additional years of
service and benefit credits under the Plan that he would have received had
he
continued employment with Employer 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, plus
the average of Executive's cash bonuses, if any, for the past four years, shall
be deemed to represent the compensation received by Executive during each such
additional year for purposes of determining additional retirement benefits
under
this Subsection 5(viii).
(c) In
addition to other amounts payable to Executive under this Section 5(viii),
Executive shall be entitled to receive all 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,
together with the continuation, without cost to Executive, of other benefits
under Section 4(iii) for the remaining unexpired Employment Term, all
subject to the limitations set forth in Section 6 below.
(ix) Suspension
by Employer. Employer in its sole discretion shall have the
right to temporarily suspend Executive from participating in the conduct of
the
Employer's or Employer's affiliates' affairs. If Executive is
suspended or temporarily prohibited from participating in the conduct of
Employer's or Employer's affiliates' business, Employer shall pay Executive
all
compensation and provide all benefits pursuant to Section 4 of this
Agreement during the period of such suspension.
6. Limitations
on Change in Control Compensation. In the event severance
benefits under Subsection 5(vii) or 5(viii), 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 Employer or any corporation ("Affiliate") affiliated with
Employer within the meaning of Section 1504 of the Internal Revenue Code of
1986. As amended (the "Code") ), constitute, in the opinion of tax
counsel selected by Employer's independent auditors and acceptable to Executive,
"parachute payments" within the meaning of Section 28OG(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 Employer
(or an Affiliate) and includible 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 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 otherwise received or to be received by Executive
from 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 Agreement. The Severance Benefits shall not
be reduced if (i) Executive shall have effectively waived his receipt or
enjoyment of any such payment or benefit which triggered the applicability
of
this Section 6, or (ii) in the opinion of tax counsel, the Severance
Benefits (in their 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 28OG(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 Employer. The Base Amount
shall include every type and form of compensation includible in Executive's
gross income in respect of his employment by Employer (or an Affiliate), except
to the extent otherwise provided in temporary or final regulations promulgated
under Section 28OG(b) of the Code. For purposes of this
Section 6, a "change in ownership or control" shall have the meaning set
forth in Section 28OG(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 Employer's independent auditors
in accordance with the principles of Section 280G of the Code.
7
Executive
shall have the right to request that Employer 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 in
excess of the Section 280G limitation shall be made to Executive until
after fifteen (15) days from the date of such ruling; however, Severance
Benefits shall continue to be paid during this time up to the amount of that
limitation. For purposes of this Section 6, Executive and
Employer 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 be extended to a date fifteen (15) days from
the
date of the Service's notice indicating that no ruling will 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 agree 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) Employer
will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to substantially all of the business and/or assets
of 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. If such succession is the result of a "change in control" as
defined herein, such assumption shall specifically preserve to Executive, for
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, Employer shall mean M & M Services, Inc. and
any successor to its business and/or assets which becomes bound by the terms
and
provisions of this Agreement by operation of this Agreement or by
law. Failure of Employer to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle Executive to compensation from 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 5(v). For purposes of implementing
the foregoing, the date on which any such succession becomes effective shall
be
deemed the Termination Date.
8
(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) Any
rights and obligations of Employer under this Agreement may be assigned or
transferred by Employer to any of its affiliates prior to a change in control
as
defined in this Agreement.
(d) This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by Executive and his heirs, beneficiaries and personal representatives and
Employer and any successor organization or assignee of Employer.
(ii) Non-competition/Confidentiality
Provisions. 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 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), Executive shall not
accept employment with any Significant Competitor of Employer or of any of
Employer's affiliates for a period of twelve (12) months following such
termination. In the event Executive is terminated by Employer, under
Section 5(vii) other than following a change in control, Executive shall
not accept employment with any Significant Competitor of Employer or of any
of
Employer's affiliates for the lesser of (a) the remaining term of the agreement,
or (b) a period of twelve (12) months following such
termination. For purposes of this Agreement, the term "Significant
Competitor" means any financial institution including, 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 or during the period of this covenant not to compete, has a
home, branch or other office within a three (3) mile radius of any office
operated or maintained by Employer or any of Employer's affiliates prior to
a
change in control as defined in this Agreement.
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 and for a period of one(1) year following termination of employment, he
will not, directly or indirectly, 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,
records or information of any kind pertaining to the business of Employer or
any
of its affiliates which Executive acquires or has access to during the
Employment Term. 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.
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(iii) 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 as
follows:
If
to the
Employer:
M
&
M
Services, Inc.
0000
Xxxxxxxxxx Xxxxx
Xxxxxxxxx,
XX 00000
Attention: Board
of Directors
If
to the
Executive:
Xxxxx
X.
Xxxxxxx
0000
Xxxxxxxxx Xxxxxx
Xxxxx
Xxxxxxx, XX 00000
or
to
such other address as either party may have furnished to the other in writing
in
accordance herewith.
(iv) 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. Notwithstanding the foregoing, in the event of legal
proceedings to enforce or interpret this Agreement following a change in
control, Executive shall be entitled to recover from Employer: (a)
reasonable attorneys, fees, costs and disbursements if Executive is the
prevailing party; or (b) reasonable attorneys' fees, costs and disbursements
of
up to $7,500 incurred in such proceedings regardless of whether Executive is
the
prevailing party. Recovery of attorneys' fees and costs following a
"change in control" shall be in addition to any other relief to which Executive
is entitled.
(v) Withholding. Employer
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. Employer shall be
entitled to rely on an opinion of counsel as to the amount or requirement of
any
such withholding.
(vi) Miscellaneous. No
provision of this Agreement may be amended, waived or discharged unless such
Amendment, waiver or discharge is agreed to in writing and duly executed by
Executive and Employer or its successor in interest. This Agreement
constitutes the entire agreement between the parties with respect to 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, express 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.
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(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, all 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.
(x) 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.
EXECUTIVE
/s/
Xxxxx X.
Xxxxxxx
(SEAL)
Xxxxx
X. Xxxxxxx
M &
M SERVICES, INC.
By:
/s/ Xxxxxxx X.
Xxxxx
Title:
Chairman/CEO
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