Exhibit 10.1
Resignation
and
Separation Agreement
This RESIGNATION AND SEPARATION AGREEMENT ("Agreement") is made and
entered into as of this sixth day of June 2003, by and between Bank Mutual
Corporation, and its Affiliates (including without limitation, Bank Mutual
Bancorp, MHC) and direct and indirect Subsidiaries (collectively "Bank Mutual"),
and Xxxxxxx X. Xxxxxxxx (hereinafter referred to as "Xxxxxxxx").
WHEREAS, Xxxxxxxx is an employee, officer and director of Bank Mutual
and has served Bank Mutual or its predecessors in various capacities for
approximately twenty three (23) years;
WHEREAS, Xxxxxxxx and Bank Mutual are currently parties to an
Employment Agreement dated January 2, 1990, as amended on September 20, 1995,
("Employment Agreement") and a Non-Competition Agreement dated November 1, 2000,
("Noncompetition Agreement");
WHEREAS, Xxxxxxxx has decided that he wishes to retire from the banking
business and resign all of his positions with Bank Mutual;
WHEREAS, it is the desire of the parties to document Xxxxxxxx'x
resignation and separation from Bank Mutual and to recognize his many
contributions and years of service to Bank Mutual;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Bank Mutual and Xxxxxxxx, the
parties hereby agree as follows:
1. Resignation. Xxxxxxxx hereby resigns as an officer, Director
(including as a member of any committee of Directors) and employee of
Bank Mutual effective July 31, 2003 (the "Effective Date"). His
resignation is entirely of his choosing and voluntary under section
2.4 of the Employment Agreement and the parties agree that it is
irrevocable. Bank Mutual accepts his resignation to be effective as of
the Effective Date. This resignation shall not constitute a retirement
under Bank Mutual's employee benefit or welfare plans.
2. Employment. Until the Effective Date, Xxxxxxxx will continue to
be employed and to be paid and receive benefits under the Employment
Agreement and will continue to serve as a director of Bank Mutual. Upon
the Effective Date he will cease to be an officer, director or employee
of Bank Mutual.
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3. Health Insurance and Benefit Plans. Bank Mutual shall pay its
normal portion of the premiums for Xxxxxxxx'x health, dental and vision
care insurance and shall deduct his share of such premiums from the
salary payments made to him through the Effective Date. Thereafter,
Xxxxxxxx shall be eligible for COBRA continuation of health, dental and
vision coverage at his sole expense. Except as otherwise expressly
provided for hereunder, Xxxxxxxx'x participation in and rights under
any and all employee benefit plans offered by Bank Mutual shall be
governed by and construed in accordance with applicable laws and the
governing documents thereof.
4. Automobile. On the Effective Date, Bank Mutual will transfer
title to the Chevrolet Suburban which Xxxxxxxx has been driving,
outright to him, free and clear of liens, if any. For accounting
purposes only, the automobile has an agreed value of Eight Thousand
Dollars ($8,000).
5. Director Retirement Plan. On the first of the month following the
Effective Date, Bank Mutual shall commence the payment of Xxxxxxxx'x
vested interest in the Bank Mutual Directors Retirement Plan, which is
One Thousand Dollars ($1,000) a month for fifteen (15) years, for a
total of One Hundred Eighty Thousand Dollars ($180,000.00). All such
payments are subject to the terms of the Directors Retirement Plan,
including but not limited to, the limitation on benefits which applies
in the event of Xxxxxxxx'x death.
6. Unused Vacation. Within a reasonable period of time after the
Effective Date, Bank Mutual shall pay Xxxxxxxx for any unused vacation
time or floating holidays.
7. Stock Options. Bank Mutual agrees that the vesting of 16,000
stock options scheduled to occur in the year 2004 shall accelerate and
vest as of the Effective Date. Xxxxxxxx acknowledges that all of his
vested stock options, issued pursuant to the Bank Mutual Stock Option
Plan, must be exercised by July 31, 2004 or they will be extinguished.
Xxxxxxxx further acknowledges that unvested stock options for 32,000
shares and Management Recognition Plan awards of 26,800 shares shall be
forfeited by him as of the Effective Date.
8. Acknowledgment of Full Compensation. Xxxxxxxx acknowledges that
Bank Mutual has no prior obligation to pay Xxxxxxxx any form of
severance pay and that no amounts are due and owing from Bank Mutual to
Xxxxxxxx, other than those due under the Employment Agreement through
the Effective Date or those agreed to pursuant to this Agreement.
9. Transactions in Bank Mutual Stock. Xxxxxxxx agrees to continue to
comply with Bank Mutual's xxxxxxx xxxxxxx policies through the
Effective Date, and will continue to comply thereafter with all
securities laws and regulations which are, from time to time,
applicable to him. Xxxxxxxx further agrees to be subject, for a period
not to exceed ninety (90) days from the Effective Date, to the same
extent as Bank Mutual's Executive Officers, to any trading restrictions
such
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Executive Officers agree to with Xxxx Xxxx & Co., in connection with
Bank Mutual's planned conversion to full public company status and
related stock offering and in connection therewith to execute such
documents, in the same form as other Executive Officers, as may
reasonably be requested by Xxxx Xxxx. In view of the pending
transactions involving Bank Mutual stock, Xxxxxxxx further agrees that
subsequent to the Effective Date through July 31, 2004, he will
coordinate any sales of his Bank Mutual stock with Bank Mutual and Xxxx
Xxxx & Co. in order to provide for an orderly market for shares.
10. Noncompetition Agreement. Xxxxxxxx acknowledges that the
Noncompetition Agreement remains in force, in accordance with its
terms, and will continue to be so for a period of one year following
the Effective Date.
11. Announcement. Bank Mutual and Xxxxxxxx agree that the initial
public announcement of Xxxxxxxx'x resignation will be made in the form
of the press release attached to this Agreement as Exhibit 1.
12. Records. Xxxxxxxx will return all information and related
reports, files, memoranda, records, credit cards, cell phones, card key
passes, door and file keys, computer access codes, and any other
physical and personal property that Xxxxxxxx received, prepared, or
helped prepare in connection with his employment with Bank Mutual.
13. Release. For valuable consideration from Bank Mutual as stated
above, Xxxxxxxx, for himself and his heirs, personal representatives,
successors and assigns, hereby releases all claims of whatever nature
(except, only, for claims, if any, of indemnification to which he may
be entitled as a former employee, officer or Director) that he may have
against Bank Mutual, its affiliates, subsidiaries, predecessors,
successors, and assigns and its present, former or later insurers
(except, he does not release claims, if any, he may have to coverage
and indemnification under Bank Mutual's Directors and Officers
liability insurance), agents, representatives, officers,
administrators, directors, principals and employees (collectively
"Releases"), which arise out of or are in any manner based upon or
related to the employment relationship between Xxxxxxxx and Bank
Mutual, and his separation from Bank Mutual, and from all other claims
or liabilities of any nature whatsoever which have arisen from any
occurrence, transaction, omission or communication which transpired or
occurred at any time before or on the date of this Agreement; provided,
however, that this Agreement will not prevent any party from asserting
a claim against the other party in the event the other party breaches
this Agreement.
Without limitation to the foregoing, Xxxxxxxx specifically releases,
waives and forever discharges the above-listed entities and persons
from and against all liabilities, claims, actions, demands, damages and
costs of every nature, whether known or unknown, asserted or
unasserted, which arise under the Wisconsin Fair Employment Act;
Wisconsin wage and hour laws; Title VII of the Civil Rights Act of
1964, as amended; the Age Discrimination in Employment Act (29 U.S.C.
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(S) 621 et seq.); the Americans with Disabilities Act; the Fair Labor
Standards Act; the Pregnancy Discrimination Act; the Equal Pay Act;
ERISA; state or federal parental, family and medical leave acts; or
arising under any other local, state or federal statute, ordinance,
regulation or order, or which involve a claim or action for wrongful
discharge, breach of contract (express or implied) and/or any other
tort or common law cause of action. This waiver and release does not
affect those rights or claims that arise after the execution of this
Agreement.
14. No Reapplication. Xxxxxxxx agrees not to reapply for employment
with Bank Mutual.
15. Non-Disparagement. Bank Mutual agrees not make disparaging
remarks or statements about Xxxxxxxx and Xxxxxxxx agrees not to make
disparaging remarks or statements about Bank Mutual, its services or
practices.
16. Binding Agreement. This Agreement shall be binding upon Xxxxxxxx
and upon his heirs, administrators, representatives, executors,
successors and assigns and shall inure to the benefit of the Releases
and to their heirs, administrators, representatives, executors,
successors and assigns.
17. Severability. It is understood and agreed that the provisions of
this Agreement shall be deemed severable, and the invalidity or
unenforceability of any one or more of the provisions herein shall not
affect the validity and enforceability of the other provisions herein.
18. Complete and Exclusive Agreement. The parties understand and
agree that this Agreement is final and binding and, together with the
Noncompetition Agreement, constitutes the complete and exclusive
statement of the terms and conditions of settlement, that no
representations or commitments were made by the parties to induce this
Agreement other than as expressly set forth herein and that this
Agreement is fully understood by the parties. This Agreement may not be
modified or supplemented except by a subsequent written agreement
signed by the party against whom enforcement is sought.
19. Consideration Period. Xxxxxxxx represents that he has had the
opportunity and time to consult with legal counsel concerning the
provisions of this Agreement and that he has been given up to
twenty-one (21) days to consider this Agreement. Xxxxxxxx understands
and agrees to sign attached Exhibit 2 in final form within three (3)
calendars days of the expiration of his seven-day revocation period and
to return the executed Exhibit 2 to Bank Mutual promptly thereafter if
he chooses not to revoke this Agreement.
20. Confidentiality. Xxxxxxxx agrees that he will not divulge
proprietary or confidential information relating to Bank Mutual.
21. Acknowledgement. The undersigned parties acknowledge and agree
that they have carefully read the foregoing document, that a copy of
the document was
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available to them prior to execution, that they understand its contents
including its release of claims, that they have been given the
opportunity to ask any questions concerning the Agreement and its
contents, and have signed this Agreement as their free and voluntary
act.
22. Applicable Law. Wisconsin law will apply in connection with any
dispute or proceeding concerning this release.
IN WITNESS WHEREOF, the parties herein executed this Resignation and
Separation Agreement as of the date first stated above.
Bank Mutual Corporation, for itself and on
behalf of its Affiliates and Subsidiaries
Date: June 6, 2003 By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
--------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.,
Chairman and Chief Executive Officer
CAUTION: THIS IS A RELEASE. BANK MUTUAL HEREBY
ADVISES XXXXXXXX TO CONSULT WITH AN ATTORNEY AND READ IT
BEFORE SIGNING. THIS AGREEMENT MAY BE REVOKED
IN WRITING BY XXXXXXXX WITHIN SEVEN (7) CALENDAR DAYS
OF HIS EXECUTION OF THE DOCUMENT, AND THIS AGREEMENT
WILL NOT BE EFFECTIVE OR BINDING ON EITHER PARTY UNTIL
THE EXPIRATION OF THIS SEVEN-DAY PERIOD
Dated: June 6, 2003 /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxx
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EXHIBIT 1
FORM OF PRESS RELEASE
Contact: Bank Mutual Corporation
NASDAQ: BKMU
Xxxxxxx X. Xxxxxxx Xx.
Chairman and Chief Executive Officer
000-000-0000
XXXXXXXX TO RETIRE FROM BANK MUTUAL
Thanked by Xxxxxxx Xxxxxxx, Jr. CEO, for his Service to the Company
Milwaukee, Wisconsin
June 6, 2003
Xxxxxxx X. Xxxxxxx, Xx., Chairman and Chief Executive Officer of Bank
Mutual Corporation, and Xxxxxxx X. Xxxxxxxx, President and Chief Operating
Officer of Bank Mutual Corporation, today jointly announced that Xx. Xxxxxxxx
would be retiring from Bank Mutual Corporation, effective July 31, 2003.
"While we will certainly miss him and the insights and leadership he
has brought to Bank Mutual, we wish Xxxx Xxxxxxxx well," said Xx. Xxxxxxx, Jr.
"Mike's service in the union and integration of Mutual Savings Bank and First
Northern Savings Bank, and the other steps leading to our current full
conversion transaction have been invaluable. Xxxx Xxxxxxxx has been, and
continues to be, supportive of and loyal to Bank Mutual. We thank him for the
strength of First Northern which he brought to Bank Mutual and for his service
since the combination."
"While departure is always difficult, I am leaving Bank Mutual with
nothing but pride in, and great satisfaction with, my years with Bank Mutual
Corporation," said Xx. Xxxxxxxx. "I have great respect for Bank Mutual
Corporation, its leadership and my associates. I am pleased that I have been
able to accomplish the goals to date which we have set, and leave the
organization when it is positioned for good things in the future."
Xx. Xxxxxxxx continued, "Since the merger of Mutual Savings Bank and
First Northern Savings Bank into Bank Mutual and my related move to Milwaukee, I
have had the opportunity to reflect on what is best at this time for me and my
family. Upon that reflection, I decided that this would be an appropriate time
to move on. I believe it is also a good time in the history of Bank Mutual
Corporation for me to take this step, since it will permit the organization to
consider in an orderly way its future management structure. I leave Bank Mutual
with nothing but the highest regard for the people and its
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future. I intend to remain a shareholder of and to use Bank Mutual as my bank of
choice."
Xx. Xxxxxxxx will remain a director and an executive officer of Bank
Mutual Corporation until his departure. At that time, Xxxxxxx X. Xxxxxxx, Xx.
will assume the additional position of President. The corporation did not
announce any immediate plans to replace Xx. Xxxxxxxx on the board of directors.
Bank Mutual Corporation also stated that it did not expect Xx. Xxxxxxxx'x
departure to affect its current plans, strategies or day to day operations.
Bank Mutual Corporation common stock is traded on The NASDAQ Stock
Market(R) under the symbol "BKMU". The Company, the MHC and the Bank are
headquartered in the Milwaukee suburb of Xxxxx Deer, Wisconsin. The Company is
the fifth largest banking institution headquartered in Wisconsin, with year end
assets of $2.8 billion. Its subsidiary bank, Bank Mutual, operates 69 offices in
the state of Wisconsin and one office in Minnesota.
Cautionary Statements
The discussions in this press release which are not historical
statements contain forward-looking statements that involve risk and
uncertainties. Statements which are not historical statements include those in
the future tense or which use terms such as "believe," "expect," and
"anticipate." Actual future results could differ in important and material ways
from those discussed. Many factors could cause or contribute to such
differences. The Company's periodic filings with the Securities and Exchange
Commission discuss a number of other factors which may affect its future
operations. These factors include changing interest rates, changes in demand for
loans or other services, competition from other institutions, the results of our
lending activities and loan loss experience and the related integration of our
operations, general economic and political developments, and other factors
discussed in those filings.
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EXHIBIT 2
SEVEN DAY RIGHT TO REVOCATION
ACKNOWLEDGMENT FORM
I, Xxxxxxx X. Xxxxxxxx, hereby acknowledge that Bank Mutual Corporation
has tendered a Resignation and Separation Agreement which I voluntarily agreed
to accept on ______________, 2003, a date at least seven calendar days prior to
today's date.
I certify that seven calendar days have elapsed since my voluntary
acceptance of the above-referenced offer (i.e., seven calendar days have elapsed
since the above date), and that I have voluntarily chosen not to revoke my
acceptance of the above-referenced Resignation and Separation Agreement.
Signed this ___ day of _____________, 2003 at ___________, ___________.
____________________________
Xxxxxxx X. Xxxxxxxx
