Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT made as of December 12, 2005, between
MID-WISCONSIN FINANCIAL SERVICES, INC., its successors and assigns (the
"Company") and XXXXX WARSAW (the "Executive") is hereby amended as of July 25,
2007, by adding paragraph 17 solely to comply with the requirements of Section
409A of the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder (the "Code").
RECITALS
The Company and the Executive acknowledge the following:
A. The Executive has valuable expertise and experience in the Company's
business which will enable him to provide valuable business and management
services to the Company.
B. The Company desires to employ the executive and the executive desires
to accept such employment on the terms and conditions set forth in this
Agreement.
C. The Executive's employment is expressly conditioned upon entering
into this Agreement and the Company will not employ the Executive absent his
execution of this Agreement.
AGREEMENTS
In consideration of the mutual covenants and agreements set forth in this
Agreement, the parties agree as follows:
1. EMPLOYMENT. The Company employs the Executive and the Executive
accepts employment with the Company on the terms and conditions set forth in
this Agreement.
2. TERM. The term of the Executive's employment shall commence on the
date of this Agreement and continue until December 12, 2008, unless sooner
terminated in accordance with the terms hereof (the "Employment Period").
3. DUTIES. The Executive shall serve as President and Chief Executive
Officer of the Company and will, under the direction of the Board of Directors
of the Company, faithfully and to the best of his ability perform the duties
assigned to him from time to time by the Board of Directors. The Executive
agrees to devote his entire business time, effort, skill and attention to the
discharge of such duties while employed by the Company. During the Employment
Period, Executive shall be appointed to the Board of Directors of the Mid-
Wisconsin Bank (the "Bank") and shall also be nominated for election to the
Board of Directors of the Company at the Company's annual meeting of
shareholders. Executive shall not receive a separate fee for sitting on the
Board of Directors of the Company or the Bank. Executive may also be appointed
to assume the duties of President of the Bank.
4. COMPENSATION. The Executive shall receive a base salary of $230,000
per year ("Base Salary") for all duties performed on behalf of the Company, the
Bank and their affiliates, which will be payable in regular installments in
accordance with the Company's regular payroll practices and which will be
subject to ordinary tax withholding and all required deductions. Except as
otherwise provided, the Company's obligation to pay Base Salary shall terminate
upon termination of this Agreement.
5. BENEFITS.
(a) INSURANCE. The Executive shall be eligible to participate in
any group health, life, dental, or other group insurance plan offered by the
Company to its executive employees, subject to the terms, provisions and
limitations of such plans or programs, during the Employment Period. The
Executive shall pay any required employee contribution for such plans.
(b) REIMBURSEMENT FOR REASONABLE BUSINESS EXPENSES. The Company
shall reimburse the Executive for reasonable expenses incurred by him in
connection with the performance of his duties pursuant to this Agreement, which
are consistent with the Company's policies in effect from time to time,
including, but not limited to, travel expenses, expenses in connection with
seminars, professional conventions or similar professional functions and other
reasonable business expenses. The Executive agrees to provide the Company with
receipts and/or documentation sufficient to permit the Company to take its full
business expense deduction.
(c) AUTOMOBILE. The Company agrees to reimburse the Executive for
an amount to be agreed upon by the Executive and the Company for the lease of a
vehicle by the Executive. In the alternative, the Company and the Executive
may agree that the Company will purchase a mutually agreeable vehicle for the
exclusive use of the Executive. Additionally, the Company will pay for the gas
used for business purposes. All maintenance and insurance expense for the
automobile is the responsibility of the Company. The vehicle will be used in
accordance with all Company policies and procedures.
(d) RELOCATION. The Company will pay reasonable and necessary
relocation expenses which will include visits to the Wausau area to look at new
real estate, transportation costs for Executive and his family, costs of moving
household furniture and furnishings, and the reasonable costs for interim
housing for up to six months while Executive looks for permanent housing in the
Wausau area. The Executive will obtain quotes from two moving companies
acceptable to him and the Company, and will engage the company which provides
the lower cost proposal.
(e) VACATION. The Executive shall be entitled to four weeks of
paid vacation annually, which must be used during the applicable year and not
rolled over to subsequent years. The Executive and the Company shall mutually
determine the time and intervals of such vacation.
(f) STOCK PURCHASE. Executive shall be entitled to purchase from
the Company up to 20,000 shares of the Company common stock at a purchase price
equal to the fair market value of shares on the date of purchase, based on the
purchase price currently offered by the Company for the repurchase of its
shares which equals $36.00 per share. Executive shall be entitled to exercise
this purchase right until February 15, 2006. Any shares which remain
unpurchased after this date shall no longer be eligible for purchase.
Executive acknowledges and agrees that such shares will be unregistered and
will not be eligible for transfer, except as provided by applicable securities
laws.
(g) OPTIONS. The Company will grant to the Executive options to
purchase 7,500 shares of common stock (the "Options") of the Company pursuant
to the Mid-Wisconsin Financial Services, Inc. 1999 Stock Option Plan. The
Options shall vest at a rate equal to 20% of the outstanding Options annually,
beginning on the first anniversary of the date of this Agreement. The Options
shall have an exercise price of $36.00 per share.
(h) BONUSES. The Executive will participate in a cash bonus plan
which will provide for a target bonus equal to 30% of his Base Salary and a
maximum bonus equal to 50% of his Base Salary. The criteria for receiving the
bonus will be agreed to annually by the Executive and the Board of Directors of
the Company. The criteria shall be based 80% on Company and Bank-wide criteria
and 20% shall be based on achieving individual goals set by the Board of
Directors and the Executive.
(i) OTHER BENEFITS. Executive shall also be eligible to receive
fringe benefits and to participate in any other retirement or welfare benefit
plan or program generally offered by the Company to its executive employees,
subject to the terms, provisions and limitations of such plans or programs
during the Employment Period.
6. TERMINATION OF EMPLOYMENT.
(a) TERMINATION OF THE EMPLOYMENT. The employment of the Executive
shall be terminated before the originally anticipated end of the Employment
Period (i) upon the Executive's death or Disability; (ii) upon the delivery to
the Company of the Executive's written notice of resignation or (iii) upon the
delivery to the Executive of the Company's written notice of termination with
or without Cause or specified reason.
(b) DEFINITIONS.
(i) For purposes of this Agreement, "Disability" shall mean
[a] a physical or mental condition which qualifies as a total and permanent
disability under the terms of any plan or policy maintained by the Company and
for which the Executive is eligible to receive benefits under such plan or
disability policy, or [b] if the Executive does not participate in a disability
plan, or is not covered by a disability policy, of the Company, "Disability"
means the permanent and total inability of a participant by reason of mental or
physical infirmity, or both, to perform the work customarily assigned to him or
her, if a medical doctor selected or approved by the Board of Directors, and
knowledgeable in the field of such infirmity, advises the Company either that
it is not possible to determine when such Disability will terminate or that it
appears probable that such Disability will continue for a period of at least
one year.
(ii) For purposes of this Agreement, "Cause" shall mean any
one or more of the following on the part of the Executive: [a] the commission
of an act which results in a payment of a claim filed by the Company or the Bank
under a blanket banker fidelity bond policy as from time to time and at any
time maintained; [b] an intentional and willful failure to substantially
perform his duties; [c] willful misconduct in the course of the Executive's
employment which is demonstrably and materially injurious to the Company or the
Bank; [d] breach of a fiduciary duty involving personal profit or acts or
omissions of personal dishonesty, including, but not limited to, commission of
any crime of theft, embezzlement, misapplication of funds, unauthorized
issuance of obligations, or false entries; [e] any intentional, reckless, or
negligent act or omission to act which results in the violation by the
Executive of any policy established by the Company or the Bank which is
designed to insure compliance with applicable banking, securities, employment
discrimination laws, except any act done by the Executive in good faith, as
determined in the reasonable discretion of the Board of Directors, or which
results in a violation of such policies or law which is, in the reasonable sole
discretion of such Board of Directors, immaterial; [f] material breach of the
terms of this Agreement by the Executive, which remains uncured after 15 days'
notice from the Company; or [g] failure of the Company to meet the objectives
set forth on Exhibit A for any one-year period.
(iii) For purposes of this Agreement, "Change of Control"
shall mean:
[a] the acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 30% or more of either [i] the then outstanding shares of
common stock of the Company (the "Outstanding Common Stock") or [ii] the
combined voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the "Outstanding
Voting Securities"); provided, however, that the following acquisitions shall
not constitute a Change of Control: [i] any acquisition directly from the
Company, [ii] any acquisition by the Company, [iii] any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company or [iv] any acquisition by any
corporation pursuant to a transaction which complies with clauses [i], [ii] and
[iii] of subsection [c] of this definition; or
[b] individuals who, as of the date hereof,
constitute the Board of Directors of the Company (the "Incumbent Board") cease
for any reason to constitute at least a majority of the Board of Directors of
the Company; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board of Directors of
the Company; or
[c] approval by the stockholders of the Company of a
reorganization, merger or consolidation (a "Business Combination"), in each
case, unless, following such Business Combination, [i] all or substantially all
of the individuals and entities who were the beneficial owners, respectively,
of the Outstanding Common Stock and Outstanding Voting Securities immediately
prior to such Business Combination beneficially own, directly or indirectly,
more than 60% of, respectively, the then outstanding shares of common stock and
the combined voting power of the then outstanding voting securities entitled to
vote generally in the election of directors, as the case may be, of the
corporation resulting from such Business Combination (including, without
limitation, a corporation which as a result of such transaction owns the
Company through one or more Subsidiaries) in substantially the same proportions
as their ownership, immediately prior to such Business Combination of the
Outstanding Common Stock and Outstanding Voting Securities, as the case may be;
[ii] no Person (excluding any employee benefit plan (or related trust) of the
Company or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 30% or more of, respectively, the
then outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding
voting securities of such corporation except to the extent that such ownership
existed prior to the Business Combination; and [iii] at least a majority of the
members of the board of directors of the corporation resulting from such
Business Combination were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board of Directors
of the Company, providing for such Business Combination; or
[d] approval by the stockholders of the Company of
(i) a complete liquidation or dissolution of the Company or (ii) the sale or
other disposition of all or substantially all of the assets of the Company,
other than to a corporation, with respect to which following such sale or other
disposition, [i] more than 60% of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or indirectly,
by all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Common Stock and
Outstanding Voting Securities immediately prior to such sale or other
disposition in substantially the same proportion as their ownership,
immediately prior to such sale or other disposition, of the Outstanding Common
Stock and Outstanding Voting Securities, as the case may be; [ii] less than 30%
of, respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by any Person
(excluding any employee benefit plan (or related trust) of the Company or such
corporation), except to the extent that such Person owned 30% or more of the
Outstanding Common Stock or Outstanding Voting Securities prior to the sale or
disposition; and [iii] at least a majority of the members of the board of
directors of such corporation were members of the Incumbent Board at the time
of the execution of the initial agreement, or of the action of the Board of
Directors of the Company, providing for such sale or other disposition of
assets of the Company or were elected, appointed or nominated by the Board of
Directors of the Company.
(c) TERMINATION BY THE COMPANY FOR CAUSE, DEATH OR DISABILITY, OR
RESIGNATION BY THE EXECUTIVE. In the event of termination of the Executive's
employment by the Company for Cause, death or Disability, or the resignation by
the Executive, payments of the Executive's Base Salary shall be prorated to the
date of termination. The Company shall have no further obligation to the
Executive, except to the extent such obligations may be imposed by applicable
law or under the terms of a Company plan or program in which Executive is a
participant.
(d) TERMINATION WITHOUT CAUSE. If the Executive's employment is
terminated by the Company for any reason other than for Cause, Disability or
death, or if this Agreement is terminated by the Company for what the Company
believes is Cause and it is ultimately determined by a court of competent
jurisdiction that the Executive was terminated without Cause, the Executive
shall receive as severance for such termination an amount equal to one year's
then Base Salary; provided, however, that if such termination occurs within one
year after the occurrence of, or in contemplation of, a Change in Control, then
Executive shall be entitled to receive $650,000 (without gross up for taxes or
any other amounts). Such payments shall be made in accordance with normal
payroll practices of the Company from the date of termination to the first
anniversary of the date of termination; provided, however, that if such payment
is equal to $650,000 as provided in the prior sentence, such amount shall be
paid from the termination date to the third anniversary of the termination
date. During the 18-month period following a termination under this
paragraph 6(d), the Company shall also reimburse the Executive for amounts
paid, if any, to continue medical, dental and health coverage pursuant to the
provisions of the Consolidated Omnibus Budget Reconciliation Act. The Company
shall have no further obligation to the Executive except to the extent such
obligations may be imposed by applicable law or under the terms of a Company
plan or program in which Executive is a participant.
7. NON-COMPETITION/NON-SOLICITATION/CONFIDENTIAL INFORMATION. Executive
acknowledges that the development of personal contacts and relationships is an
essential element of the Company's and the Bank's business, that the Company
and the Bank have invested considerable time and money in development of such
contacts and relationships, that the Company and the Bank could suffer
irreparable harm if he were to leave the Company's employment and solicit the
business of customers of the Company or the Bank and that it is reasonable to
protect the Company and the Bank against competitive activities by Executive.
Executive covenants and agrees, in recognition of the foregoing and in
consideration of the mutual promises contained herein, that in the event of a
termination of his employment with the Company, Executive shall not accept
employment with any Significant Competitor of the Company for a period of
eighteen (18) months following such termination. For purposes of this
Agreement, the term "Significant Competitor" means any financial institution
including, but not limited to, any trust company, bank, savings and loan
association, credit union, or mortgage company which, at the time of
termination of Executive's employment with the Company or during the period of
this covenant not to compete, has a home, branch or other office within a
25-mile radius of any office operated or maintained by the Company or the Bank
(the "Territory").
Executive agrees that during the term of his employment with the
Company, and for a term of eighteen (18) months thereafter, he will not,
directly or indirectly, within the Territory, 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 the Company or the Bank, of which
Executive has knowledge or based on his capacity of employment for the Company
or the Bank should reasonably have had knowledge, for the purpose of soliciting
business or inducing such customer to acquire any product or service that is
provided by the Company or the Bank from any entity other than the Company or
the Bank.
Executive agrees that during the term of his employment with the
Company, and for a period of eighteen (18) months thereafter, he will not,
directly or indirectly, encourage, induce, or entice any employee of the
Company or the Bank to leave the employment of the Company or the Bank.
Executive agrees that the non-competition and non solicitation
provisions set forth herein are necessary for the protection of the Company 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
and non-solicitation provisions set forth herein, the Company 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 Company brings legal action for
injunctive or other relief, the Company 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 the
Company or its affiliates, Executive has access to confidential information
concerning the Company's business, customers and services. Executive agrees
that during the Employment Period and for a period of 18 months 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 in the Territory 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 the Company or any of its affiliates
(collectively "Confidential Information") which Executive acquires or has
access to during the Employment Period. Notwithstanding the foregoing,
Confidential Information shall not include (i) information which becomes
generally available to the public through no fault of the Executive or
(ii) information that no longer provides benefit to the Company or its
affiliates. Executive agrees that he will not at any time either during or
subsequent to his employment with the Company remove Confidential Information,
in any form whatsoever, from the premises or data base of the Company 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 the Company for any
reason, Executive shall immediately return all Confidential Information of the
Company, including any original, computerized or duplicated records to the
Company.
Executive agrees that if he violates the covenants under this
section, the Company 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 the Company or its affiliates shall be entitled to
injunctive relief in addition to any other remedy to which the Company or its
affiliates may be entitled.
8. COMMON LAW OF TORTS AND TRADE SECRETS. The parties agree that nothing
in this Agreement shall be construed to limit or negate the statutory or common
law of torts or trade secrets where it provides the Company with broader
protection than that provided herein.
9. SPECIFIC PERFORMANCE. The Executive acknowledges and agrees that
irreparable injury to the Company may result in the event the Executive engages
in any act in violation of the provisions of section 7 and that the remedy at
law for the breach of any such covenant will be inadequate, the Executive
agrees that the Company shall be entitled, in addition to such other remedies
and damages as may be available to it by law or under this Agreement, to
injunctive relief to enforce the provisions of section 7 without the necessity
of providing a bond.
10. WAIVER. The failure of either party to insist, in any one or more
instances, upon performance of the terms or conditions of this Agreement shall
not be construed as a waiver or a relinquishment of any right granted hereunder
or of the future performance of any such term, covenant or condition.
11. NOTICES. Any notice to be given hereunder shall be deemed sufficient
if addressed in writing and delivered by registered or certified mail or
delivered personally, in the case of the Company, to its principal business
office and, in the case of the Executive, to his address appearing on the
records of the Company, or to such other address as he may designate in writing
to the Company.
12. .SEVERABILITY. In the event that any provision shall be held to be
invalid or unenforceable for any reason whatsoever, it is agreed such
invalidity or unenforceability shall not affect any other provision of this
Agreement and the remaining covenants, restrictions and provisions hereof shall
remain in full force and effect and any court of competent jurisdiction may so
modify the objectionable provision as to make it valid, reasonable and
enforceable.
13. COMPLETE AGREEMENT. Except as otherwise expressly set forth herein,
this document and other agreements of even dates herewith, embody the complete
agreement and understanding among the parties hereto with respect to the
subject matter hereof and supersedes and preempts any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
14. AMENDMENT. This Agreement may only be amended by an agreement in
writing signed by all of the parties hereto.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin, without reference to
principles of conflicts of laws.
16. BENEFIT. This Agreement shall be binding upon and inure to the
benefit of and shall be enforceable by and against the Company, its successors
and assigns and the Executive, his heirs, beneficiaries and legal
representatives.
17. CODE SECTION 409A COMPLIANCE. Notwithstanding any other provision of
this Agreement no severance benefit shall be paid pursuant to paragraph 6(d) if
such payment would violate the requirements of Code Section 409A and cause the
Executive to be subject to the interest and additional tax imposed pursuant to
Code Section 409A(a)(1)(B), and any such payment otherwise provided for in such
paragraph 6(d) shall be modified so that the timing will then comply with the
requirements of Code Section 409A so as to preclude the application of Code
Section 409A(a)(1)(B). The modifications required by this paragraph include,
but are not limited to, the following:
(a) TERMINATION OF EMPLOYMENT. No severance payment shall be
made prior to the date on which the Executive has incurred a termination of
employment from the Company and each other member of the controlled group to
which the Company belongs, as determined pursuant to Code 409A (the "Controlled
Group").
(b) SPECIFIED EMPLOYEE. If the Executive is a "Specified
Employee" on the date of his termination of employment as determined pursuant
to Code Section 409A, no payment which constitutes deferred compensation under
Code Section 409A shall be made until the first payroll date which is not less
than six months subsequent to the date of the Executive's termination of
employment from the Company and each other member of the Controlled Group. For
purposes of this paragraph 17(b), the Specified Employee identification date
shall be December 31, and the Specified Employee effective date shall be April
1.
IN WITNESS WHEREOF, the parties have executed or caused this Employment
Agreement, as amended July 26, 2007.
MID-WISCONSIN FINANCIAL SERVICES, INC.
By: XXXXXXX X. XXXXXXX
Its: SECRETARY
EXECUTIVE:
XXXXX X. WARSAW
Name: Xxxxx X. Warsaw
