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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is effective as of the 8th day of June, 1999
between Anchor BanCorp Wisconsin Inc. (the "Company"), a Wisconsin-chartered
corporation, AnchorBank, S.S.B. (the "Bank"), a Wisconsin-chartered savings
association and wholly-owned subsidiary of the Company, their respective
successors and assigns, and Xxxxx X. Xxxxxxxxxx (the "Executive").
RECITALS
WHEREAS, the Company and FCB Financial Corp ("FCB Financial") entered
into an Agreement and Plan of Merger, dated January 5, 1999 (the "Merger
Agreement"), providing for the combination of the Company and FCB Financial and
a concurrent combination of the Bank and Fox Cities Bank ("FCB Bank") in a
strategic merger, wherein the Company and the Bank survive the merger
(collectively, the "Merger");
WHEREAS, prior to the Merger, FCB Financial and FCB Bank employed the
Executive as President and Chief Executive Officer;
WHEREAS, Executive previously entered into an Employment Agreement,
dated May 1, 1998, by and among Executive, FCB Financial and FCB Bank (the
"Prior Agreement);
WHEREAS, consummation of the Merger contemplated by the Merger
Agreement is conditioned upon the Company, the Bank and the Executive entering
into an Employment Agreement conforming to the terms hereof and the termination
of the Prior Agreement;
WHEREAS, Executive's skills and extensive experience and knowledge in
the financial institutions industry will substantially benefit the Company and
the Bank;
WHEREAS, the Company and the Bank desire to retain the services of
Executive in connection with the business activities of the Company and the Bank
following the Merger.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, it is agreed as
follows:
1. Employment and Termination of Prior Agreement.
(i) The Bank and Company shall employ Executive and Executive
shall serve the Bank and Company on the terms, conditions and for the period set
forth in Section 2 of this Agreement.
(ii) Executive hereby acknowledges (a) receipt of the amounts
due Executive under the Prior Agreement in connection with the Merger, which
amount has been calculated in
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accordance with Section 2.6 of the Prior Agreement, and (b) termination of the
Prior Agreement in its entirety. Company and Bank acknowledge termination of the
Prior Agreement in its entirety.
(iii) Pursuant to the terms of the Prior Agreement, the
amounts due Executive thereunder as well as under any other agreement or plan
were to be limited such that no portion of said payments would be deemed an
"excess parachute payment" as defined in Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code"). The parties hereto are in agreement that
the present value of any payment (including payments made under the Prior
Agreement, after giving effect to the limitation referred to in the preceding
sentence) to or for the benefit of Executive in the nature of compensation,
receipt of which is contingent on the occurrence of the Merger, and to which
Section 280G of the Code applies (in the aggregate "Total Payments"), is equal
to an amount that is one dollar less than the maximum amount that may be paid
without the loss of deduction under Section 280G(a) of the Code. Present value
of the Total Payments for purposes of this Agreement has been calculated in
accordance with Section 280G(d)(4) of the Code. Notwithstanding the foregoing,
if it is ultimately determined by a court or pursuant to a final determination
by the Internal Revenue Service that any portion of the Total Payments is
subject to the tax ("Excise Tax") imposed by Section 4999 of the Code (or any
successor thereto), then Company and Bank shall pay to Executive an additional
amount (the "Gross-Up Payment") such that the net amount retained by Executive
after deduction of (1) any Excise Tax and any interest charges or penalties in
respect to the imposition of such Excise Tax (but not any federal, state or
local income tax) on the Total Payments, and (2) any federal, state and local
income tax and Excise Tax upon the payment provided for by this Section 1(iii)
shall be equal to the Total Payments. For purposes of determining the amount of
the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at
the highest marginal rate of federal income taxation in the calendar year in
which the Gross-Up Payment is to be made and state and local income taxes at the
highest marginal rate of taxation in the state and locality of Executive's
domicile for income tax purposes on the date the Gross-Up Payment is made, net
of the maximum reduction of federal income taxes that could be obtained from
deduction of such state and local taxes.
2. Term of Employment. The period of Executive's employment under this
Agreement shall begin as of June 8, 1999 (the Commencement Date) and expire on
the first anniversary of the Commencement Date, unless sooner terminated as
provided herein; provided that, on a date no less than 180 days preceding the
first anniversary and, assuming renewal of this Agreement as provided herein, on
each subsequent anniversary, of the Commencement Date, the term of employment
may be extended by action of the Bank's and Company's Boards of Directors,
following an explicit review by the Boards of 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. The Boards of Directors of
the Company and the Bank shall provide Executive with at least one hundred
eighty (180) days' advance written notice of any decision on their part not to
extend the Agreement prior to the expiration of the initial term or any renewal
term hereof; in the absence of such written notice the term of this Agreement
shall automatically be so extended. The term of employment as in effect from
time to time hereunder shall be referred to as the "Employment Term". In the
event the Company and Bank give notice
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to Executive that at the end of the initial term of this Agreement it shall not
be renewed, Executive shall nonetheless continue as an employee of the Company
and the Bank hereunder (including for purposes of all employee benefit and other
plans), and shall continue to render the services required of him hereunder, for
the remainder of such initial term; provided that the Company and Bank will make
reasonable accommodation to the Executive for the time required for his efforts
to secure other employment during such period. In the event that Company and
Bank give notice to Executive that any subsequent renewal term of this Agreement
shall not be renewed, Executive may terminate his employment under this
Agreement at any time following the receipt of such notice; provided, however,
that in such event Executive shall, as a severance benefit, continue to receive
his compensation and benefits as provided in Section 4 through the expiration of
the Employment Term and for purposes of all employee benefit and other plans
shall continue to be deemed an employee of Company and Bank through the
expiration of such Employment Term.
3. Positions and Duties. Executive shall serve as Senior Vice President
of the Bank and Company (or in such other position and with such other title as
the Board of Directors of the Bank and the Company may determine, provided that
the level of authority and responsibilities attendant to Executive's position
are not materially reduced) and as a member of the management team. As such,
Executive shall report directly to the 1st Vice President-Commercial Lending of
the Bank and be generally responsible for 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 and Company's Boards of Directors to be necessary to their
operations and in accordance with their bylaws. Company and Bank agree that
during the Employment Term they will not reduce materially Executive's level of
authority, status or responsibilities without Executive's prior written consent.
Furthermore, Executive shall not be required, without his prior written consent,
to be based anywhere other than within the Oshkosh-Neenah/Menasha-Appleton
metropolitan areas, except for reasonable business travel in connection with the
business of Company and Bank.
4. Compensation. As compensation for services provided pursuant to this
Agreement, Executive shall receive from the Bank and the Company (collectively,
"Employers") the compensation and benefits set forth below:
(i) Base Salary. During the Employment Term, Executive shall
receive from Employers a base salary ("Base Salary") in such amount as may from
time to time be approved by their Boards of Directors. The Base Salary shall at
no time be less than $155,000 per annum. The Base Salary may be increased from
time to time as determined by the Employers' Boards of Directors, provided that
no such increase in Base Salary or other compensation shall in any way limit or
reduce any other obligation of the Employers under this Agreement. Once
established at a specified annual rate, Executive's Base Salary shall not
thereafter be reduced except as part of a general pro-rata reduction in
compensation applicable to all Executive Officers. Executive's Base Salary and
other compensation shall be paid in accordance with the Employers' regular
payroll practices as from time to time in effect. For purposes of this
Agreement, the term "Executive Officers" shall mean all officers of the Bank
and/or Company having a written Employment Agreement.
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(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 (as currently in effect, as
modified from time to time, or as subsequently adopted); provided, however, that
nothing contained herein shall grant Executive the right to continue in any
bonus or other incentive compensation plan following its discontinuance by the
Board or Boards (except to the extent Executive had earned or otherwise
accumulated vested rights therein prior to such 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 Employers to their Executive Officers. The Employers
shall not make any changes in such plans, benefits or privileges which would
adversely affect Executive's rights or benefits thereunder, unless such change
occurs pursuant to a program applicable to all Executive Officers of the
Employers and does not result in a proportionately greater adverse change in the
rights and benefits of Executive as compared with other Executive Officers. Any
stock options granted to Executive pursuant to any of the foregoing plans shall
provide that they vest in full no later than one day prior to the end of the
Employment Term hereunder; provided that such vesting will not be accelerated if
the Executive's employment is terminated for "cause" as provided in Section 5
hereof.
(iii) Other Benefits. During the Employment Term, Employers
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. Employers 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 Employers under the terms of such corporate automobile policy as
they shall maintain in effect and as it may be amended from time to time;
provided, however, that if the Employers' corporate automobile policy is amended
in a manner adverse to Executive, or this Agreement is terminated, in either
case on or prior to the first anniversary of the Commencement Date, Executive
shall be entitled to purchase his current automobile (1998 Buick LaSabre) or a
comparable vehicle from the Employers for the lesser of $3,000 or the net book
value of such vehicle.
Executive shall receive at least four weeks of paid vacation
per annum, sick time, personal days and other perquisites in the same manner and
to the same extent as provided under the Employers' policies as in effect from
time to time for other Executive Officers. In addition, Employers shall provide
Executive with a membership in the Oshkosh Country Club or its equivalent.
Employers 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 Employers, 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 Boards of Directors
of the Employers.
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
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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. In addition to a termination of employment by Executive
as contemplated in Section 2, this Agreement may be terminated prior to the
expiration of the Employment Term, subject to payment of the compensation and
other benefits described below, upon occurrence of any of the events described
herein. In case of such termination pursuant to this Section 5, 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 Employers 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 Employers cannot agree shall be determined by a qualified independent
physician mutually agreeable to Executive and Employers 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 Employers. If Executive is terminated due to disability, he shall be paid
100% of his Base Salary at the rate in effect at the time notice of termination
is given for one year and thereafter an annual amount equal to 75% of such Base
Salary for any remaining portion of the Employment Term, such amounts to be paid
in substantially equal monthly installments and offset by any monthly payments
actually received by Executive during the payment period from (i) any disability
plans provided by the Employers, and/or (ii) any governmental social security or
workers compensation program.
If termination occurs for such reason, no additional
compensation shall be payable to Executive except as specifically provided
herein. Notwithstanding anything to the contrary contained herein, Executive
shall receive all compensation and other benefits to which he was entitled under
Section 4 through the Termination Date and, in addition, shall receive all
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other benefits under the Employers' benefit plans and programs to which he was
entitled by reason of employment through the Termination Date.
(iii) Cause. Employers 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: (i) the
intentional failure by Executive to substantially perform his duties (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 Employers, which demand specifically identifies the manner in
which they believe Executive has not substantially performed his duties, (ii)
any willful act of misconduct by Executive, (iii) 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, (iv) a criminal
conviction of Executive for the commission of any felony, (v) a breach of
fiduciary duty involving personal profit, (vi) a willful violation of any law,
rule or regulation (other than a traffic violation or similar offenses) or final
cease and desist order; or (vii) personal dishonesty or material breach by
Executive of any provision of this Agreement.
For purposes of this Subsection 5(iii), no act, or failure to
act, on Executive's part shall be deemed "willful" unless done, or omitted to be
done, by Executive not in good faith and without reasonable belief that the
action or omission was in the best interest of the Employers.
(iv) Voluntary Termination by Executive. In addition to the
right to terminate employment following a nonrenewal of this Agreement as
provided in Section 2, Executive may voluntarily terminate his employment under
this Agreement at any time by giving at least thirty (30) days prior written
notice to Employers. In the event of a termination pursuant to this Section
5(iv), 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
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 Employers'
affairs by a notice served under Section 8(e)(3), or
Section 8(g)(1), of the Federal Deposit Insurance Act
[12 U.S.C.ss.1818(e)(3) and (g)(1)], the Employers'
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 Employers 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.
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(B) If Executive is removed and/or permanently prohibited
from participating in the conduct of the Employers'
affairs by an order issued under Section 8(e)(4) or
Section 8(g)(1) of the Federal Deposit Insurance Act
[12 U.S.C. ss. 1818(e)(4) or (g)(1)], the obligations
of the Employers 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
continuation of the contract is necessary for the
Employers' continued operations (i) by the Director of
the Office of Thrift Supervision ("OTS"), or his or her
designee at the time the Federal Deposit Insurance
Corporation ("FDIC") or Resolution Trust Corporation
("RTC") enters into an agreement to provide assistance
to or on behalf of the Employers under the authority
contained in Section 13(c) of the Federal Deposit
Insurance Act; or (ii) by the Director of the OTS, or
his or her designee, at the time it approves a
supervisory merger to resolve problems related to
operation of the Employers or when the Employers are
determined by the Director of the OTS to be in an
unsafe or unsound condition. Any rights of the parties
that have already vested, however, shall not be
affected by such action.
(E) In the event that 12 C.F.R. ss. 563.39, or any
successor regulation, is repealed, this Section 5(v)
shall cease to be effective on the effective date of
such repeal. In the event that 12 C.F.R. ss. 563.39, or
any successor regulation, is amended or modified, this
Agreement shall be revised to reflect the amended or
modified provisions if: (1) the amended or modified
provision is required to be included in this Agreement;
or (2) if not so required, the Executive requests that
the Agreement be so revised.
(vi) Other Termination. If this Agreement is terminated by the
Employers (1) other than for cause, death, disability or retirement, or (2) by
Executive due to a failure by Employers 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 Employers, then
following the Termination Date the Executive shall receive (a) his Base Salary
through the end of the Employment Term, (b) his theretofore unpaid Base Salary
for the period of employment up to the Termination Date, (c) medical, dental and
life insurance through the end of the Employment Term and the other employee
benefits contemplated by Section 4 through the end of the Employment Term, and
(d) any other benefits to which Executive is entitled by law or the specific
terms of the Bank's policies in effect at the time of termination of employment.
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6. General Provisions.
(i) Successors; Binding Agreement.
(A) Employers 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 Employers ("successor
organization") to expressly assume and agree to
perform this Agreement in the same manner and to the
same extent that Employers would have been required
to perform if no such succession had taken place.
As used in this Agreement "Employers" shall mean the
Employers as hereinbefore defined (and any successor
to their business and/or assets) which executes and
delivers the agreement provided for in this Section 6
or which otherwise becomes bound by the terms and
provisions of this Agreement by operation of this
Agreement or law. Failure of the Employers 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 Employers 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(vi). 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 Employers 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 FCB Financial and FCB Bank have invested and
Employers will during the Employment Term invest considerable time and money in
his development of such contacts and relationships, that Employers could suffer
irreparable harm if he were to leave employment and solicit the business of the
Employers customers, and that it is reasonable to protect the Employers against
competitive activities by Executive. Executive covenants and agrees, in mutual
promises contained herein, that in the event of any termination or cessation of
his employment hereunder (regardless of the reason for such termination or
cessation), Executive shall not accept employment with or render services (in
any capacity, whether as employee, officer, director, partner, trustee
consultant or otherwise) to any Significant Competitor of Bank for a period of
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one (1) year 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 the Wisconsin counties of Winnebago and
Outagamie 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; provided, however, that Executive shall not
be deemed to have breached this covenant not to compete (a) solely by reason of
his rendering services otherwise prohibited by this Section 6(ii) for a
financial institution which has its home office located outside of the Wisconsin
counties of Winnebago and Outagamie if he renders such services from a
full-service banking office of such financial institution which is located
outside these same Wisconsin counties or (b) if his sole relationship with any
other such entity consists of his holding, directly or indirectly, an equity
interest in such entity not greater than five percent (5%) of such entity's
outstanding equity interests.
Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of the Employers 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
Employers 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 Employers bring legal
action for injunctive or other relief, the Employers 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, posted prepaid, addressed as follows:
If to the Bank Anchor BanCorp Wisconsin Inc./
AnchorBank, S.S.B.
00 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
If to the Executive Xxxxx X. Xxxxxxxxxx
0000 Xxxxxxxxx Xx.
Xxxxxxx, XX 00000
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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), 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.
(v) Withholding. Employers 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. Employers 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
Employers under Section 5(i) (in the case of retirement), (ii), (iii) or (vi),
or by Executive under Sections 2, 5(i) (in the case of retirement) (iii), (iv)
or (vi) 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 or
termination by Executive pursuant to Section 2; and (iv) is given in the manner
specified in Section 6(iii) of this Agreement.
(vii) Miscellaneous. No provision of this Agreement may be
amended, waived or discharged unless such amendment, waiver or discharge is
agreed to in writing and signed by Executive and such officers of the Employers
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. 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.
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(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.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first above written.
Executive:
/s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxxxx
ANCHOR BANCORP WISCONSIN INC.
(CORPORATE SEAL)
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Its: President
ANCHORBANK, S.S.B.
(CORPORATE SEAL)
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Its: President
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