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EXHIBIT 10.22
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is effective as of October 1, 1996 between Bank
Wisconsin (the "Bank"), a Wisconsin-chartered corporation, its successors and
assigns, and Xxxxx X. Xxxxxxx (the "Executive").
RECITALS
WHEREAS, Executive is a key employee, whose extensive background, knowledge
and experience in the savings and loan industry have substantially benefitted
the Bank and whose continued employment as its President and Chief Executive
Officer and as a member of its Board of Directors ("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 (hereinafter sometimes referred to as the "Employer") and Executive;
and
WHEREAS, the Board of Directors of the Bank has approved and authorized
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, 1996 (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 immediately
preceding an anniversary of the Commencement Date. The term of employment as
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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 its President and Chief Executive Officer. As such, Executive shall
report directly to the Board of Directors, be nominated as a management
candidate for election to the Board of Directors upon expiration of each term
thereon while this Agreement remains in effect, and work in connection with the
formulation of 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 its operations and in accordance with its bylaws.
4. Compensation. As compensation for services provided pursuant to this
Agreement, Executive shall receive from the Employer 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 the Board of Directors. The Base
Salary shall at no time be less than $115,000 per annum, payable by
the Bank. The Base Salary may be increased from time to time as
determined by the Employer'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 Employer 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 or by
agreement of the Executive in connection with a retirement program
established by the Employer on his behalf; 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 Employer's regular payroll practices as
from time to time in effect.
(ii) Bonus and Incentive Plans. Executive shall be entitled,
during the Employment Term, to participate in and receive payments
from all bonus and other incentive compensation plans of the Bank (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 (except to the extent
Executive had earned or otherwise accumulated vested rights therein
prior to such
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discontinuance). In addition, 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 or
Bank to their Executive Officers. 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 of their Executive Officers of the Employer 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, Employer 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 by Executive 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. Employer shall continue in effect any
individual insurance plans or deferred compensation agreements in effect as
of the Commencement Date and Executive shall be entitled to use of an
automobile provided by Employer under the terms of such corporate
automobile policy as they shall maintain in effect and 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
Employer's policies as in effect from time to time for other Executive
Officers. Employer 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 Employer, including but not by way of
limitation, travel expenses and all reasonable entertainment expenses
(whether incurred at Executive's residence, while traveling or otherwise)
subject to such reasonable documentation and other limitations as may be
imposed by the Board of Directors of the Employer.
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
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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 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 Employer, 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
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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 Employer'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:
(A) The intentional failure by Executive to substantially perform
assigned duties (appropriate to his position and level of
compensation) with the Employer (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.
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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 Employer. 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 Employer'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. Section 1818(e)(3) and
(g)(1)], the 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 (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 Employer'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. Section 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. 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
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continuation of the contract is necessary for the Employer's
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 Employer 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. Section 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. Section 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:
(A) In lieu of any further salary payments to Executive subsequent to
the Termination Date, Executive shall receive Severance Pay for a
twelve (12) month period in accordance with the Employer'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
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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 St. Xxxxxxx Capital Corporation (the "Corporation") 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 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
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Directors of the Bank or Corporation 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 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 Employer 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 refuse to continue Executive's participation in incentive
compensation and stock incentive programs comparable to either
(1) those
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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 fail to
provide the Executive with the same fringe benefits that were
provided to Executive immediately prior to a change in control,
or with a package of fringe benefits (including paid vacations)
that, though one or more of such 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 purported termination of the Executive's employment for
cause, disability or retirement which is not effected in
accordance with the notice requirements applicable under this
Agreement; or
(G) The failure by 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 any further salary payments to Executive subsequent to
the Termination Date, Executive 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) a
thirty-six (36) month period. Payments shall be made in
accordance with the Employer's normal payroll practices,
beginning with the first pay date following the Termination Date.
The monthly rate of 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 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-
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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 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 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 Corporation and 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).
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(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 Employer'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 Employer 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 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 Employer (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 Employer's independent auditors in accordance
with the principles of Sections 280G (b)(3) and (4) of the Code.
In the event that Employer and/or the Executive do not agree with the
opinion of such counsel, (A) Employer shall pay to the Executive the maximum
amount of payments and benefits pursuant to Section 6, as selected by the
Executive, which such opinion indicates that there is a high probability do not
result in any of such payments and benefits being non-deductible to the Employer
and
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subject to the imposition of 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's 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 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 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
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this Agreement upon a "change in control".
As used in this Agreement "Employer" shall mean the Employer
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 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 Employer has invested considerable
time and money in his development of such contacts and relationships, that
Employer could suffer irreparable harm if he were to leave employment and
solicit the business of the Employer's customers, and that it is reasonable
to protect the 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), or upon expiration of this Agreement as a result of Executive's
election (but not as the result of an election by Employer) not to continue
automatic annual renewals, Executive shall not accept employment with any
Significant Competitor of Bank for a period of twelve (12)
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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,
Ozaukee, Washington or Waukesha Counties 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 $5,000,000
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 Employer 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 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 the Employer brings legal action for injunctive or other
relief, the 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 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:
If to the Bank:
Bank Wisconsin
c/o St. Xxxxxxx Capital Corporation
0000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Secretary
If to the Executive:
Xx. Xxxxx X. Xxxxxxx
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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. 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 if any question as to the amount or requirement of any such
withholding shall arise.
(vi) Notice of Termination. Any purported termination by the
Employer 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 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
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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 Employer 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
superceding and extinguishing any rights of Executive under any other
employment previously in effect between himself, the Employer, or any
affiliate of the Employer. 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) 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
the date first above written.
Executive:
-------------------------------------
Xxxxx X. Xxxxxxx
ST. XXXXXXX CAPITAL CORPORATION
By:
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Its:
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