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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
AGREEMENT effective as of July 14, 1997, by and between F & M
Bancorporation, Inc., (hereafter referred to as "F & M"), and Xxxx X. Xxxxxxx,
of Pulaski, Wisconsin (hereinafter referred to as "Employee"), witnesseth:
WHEREAS, F & M is planning for the retirement of its CEO and Chairman
of the Board, Xxxx X. Xxxxxxx, and as a part of that planning is seeking an
individual to serve as its President and COO and as an prospective successor to
Xxxx X. Xxxxxxx, and
WHEREAS, F & M seeks to employ Employee as its President and COO and
Employee desires to accept such employment and the parties desire by this
Agreement to provide for Employee's employment by F & M.
NOW, THEREFORE, in consideration of the promises and covenants
contained herein, the parties mutually agree as follows:
1. Employment. F & M hereby employs Employee and Employee
hereby accepts such employment, upon the terms and conditions hereinafter set
forth, provided, however, that during the balance of 1997, F & M may contract
with Employee's employer, F & M Bank-Northeast, for his services.
2. Duties and Responsibilities. During the term of this
Agreement, Employee shall act as President and Chief Operating Officer of F & M
and shall continue to engage in those activities and perform those services as
may be assigned to him by the Board of Directors, including, but not be limited
to the following: the day to day operations of F & M and its subsidiaries and
for the general supervision of the various departments and vice-presidents of F
& M. In addition, Employee hereby agrees to perform such other duties for F &
M and F & M's subsidiaries and divisions as may be assigned to him by the Board
of Directors of F & M. With regard to all duties and responsibilities provided
for in this paragraph, Employee shall devote his full time and best efforts to
this employment and to the success of F & M.
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3. Scope of Authority. The Employee agrees to act in
accordance with the scope of authority previously delegated to him and as may
be delegated to him from time to time by F & M and pursuant to this
Agreement in accordance with the policies, procedures and authorizations given
by F & M. The Employee will observe and abide by any limitation placed upon
such authority from time to time by F & M. No latitude, indulgence, or
forbearance granted by F & M to the Employee shall be deemed a relinquishment
of its right to direct his activities or a waiver of their rights to require
performance and fulfillment of the duties and responsibilities of his
employment and this Agreement.
4. Term. Employment hereunder shall be effective as of
July 14, 1997, and shall continue for a term of two (2) years, unless sooner
terminated as hereinafter set forth (the "Term"). Employee acknowledges that
no representation or promise has been made to Employee about continued
employment beyond the term hereof.
5. Compensation. F & M shall pay to the Employee a base
annual salary of One Hundred Sixty Thousand and 00/100 Dollars ($160,000.00).
This salary shall be prorated for any partial years based on actual time worked
in such partial year. This salary may be adjusted at such intervals and in an
amount to be determined by F & M, consistent with adjustments received by other
employees of F & M and duties of Employee's position, based on, among other
things, the performance of the Employee, the performance of F & M and its
subsidiaries, competitive practices and economic conditions. Employee's base
annual salary will be increased to not less than Two Hundred Thousand and
00/100 Dollars ($200,000.00) upon Employee's designation as the Chief Executive
Officer of F & M. Employee will also be eligible to participate in bonus, stock
option or incentive plans of F & M for his position.
6. Benefits. F & M will offer Employee the employee benefits,
including major medical and hospitalization insurance, disability benefits,
life insurance, vacation, severance pay and retirement benefits at levels
substantially equal to the levels currently provided by F & M to its executive
officers.
7. Expenses. The Employee may incur reasonable expenses for
promoting the F & M's business, including expenses for entertainment, travel,
and similar items. F & M will reimburse the Employee in accordance with F &
M's policies and procedures for all such expenses upon the Employee's periodic
presentation of an itemized account of such expenditures.
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8. Extent of Services. The Employee shall devote his entire
time, attention and energies to the business of F & M and shall not during the
term of this Agreement be engaged in any other business activity, without the
written consent of F & M, whether or not such business activity is pursued for
gain, profit or other pecuniary advantage. This shall not be construed as
preventing the Employee from investing his assets in such a manner as will not
require any services on the part of the Employee in the operation of the
affairs of the companies if such investments are made.
9. Years of Service. F & M agrees to count all prior years of
service of Employee to F & M Bank-Northeast and its predecessors as years of
service for eligibility purposes under the terms of such plan to the full
extent permitted by law and the terms of the plan. For purposes of vacation
eligibility, Employee shall be deemed to have eleven (11) years of service with
F & M.
10. Termination. Employee's employment hereunder during the Term
may be terminated, subject to payment of the compensation and other benefits
described below, upon the occurrence of any of the events described below. In
case of such termination, the date on which Employee ceases to be employed
under this Agreement, after giving effect to any prior notice requirement set
forth below, is referred to as the "Termination Date."
(a) Death; Disability. Employee's employment hereunder
shall terminate upon his death or disability or retirement.
As used in this Agreement, "Disability" shall mean Employee's
inability, as a result of physical or mental incapacity, to substantially
perform his duties with F & M for a period of one hundred eighty (180)
consecutive days. Any question as to the existence of Employee's Disability
upon which Employee and F & M cannot agree shall be determined by a qualified
independent physical mutually agreeable to Employee and F & M 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 Outagamie County, Wisconsin, upon
the request of either party. The costs of any such medical examination shall
be shared equally by Bank and Employee.
(b) Termination of Employee for Cause. Bank may
terminate Employee's employment under this Agreement for Cause (as hereinafter
defined) at any time and thereafter Bank's obligations pursuant to Sections 5
and 6 of this Agreement shall cease and terminate.
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Notwithstanding anything to the contrary contained in this Agreement, if
Employee's employment is terminated for Cause, Employee shall receive all
compensation and other benefits to which he was entitled under Sections 5 and 6
only through the Termination Date, and, shall receive all accrued benefits
available to him under F & M's or Bank's benefit plans as in effect on and
effective through the Termination Date in accordance with their terms.
As used herein, "Cause" shall mean (i) any willful act by
Employee which is fraudulent or illegal and which is materially injurious to
F & M or any of F & M's subsidiaries, monetarily or otherwise, (ii) the
continued failure by Employee to substantially perform either his duties with
F & M as may be assigned to him from time to time, or his obligation under this
Agreement (other than any such failure resulting from Employee's incapacity due
to Disability), or to follow the policies and procedures of F & M, (iii) the
dishonesty, fraud, or other conduct which constitutes a crime under laws,
statutes, regulations, rulings, administrative code, policy or procedure of the
State of Wisconsin or any local subdivision thereof or the United States of
America or of any administrative agency of the State of Wisconsin or any
subdivision thereof or of the United States of America, or (iv) "Misconduct" as
set forth in Wis. Stats. Section 108.04(5), the Wisconsin Unemployment
Compensation Law and the decisions thereunder.
Termination may be without notice for violations of paragraphs 10(b)
(i), (iii) or (iv). In the event of a proposed termination for the reasons set
forth in the subpart (ii) of paragraph 10(b), the Employee shall be entitled to
written notice and thirty (30) days opportunity to explain and cure such breach
or failure to the satisfaction of F & M. If Employee has explained and/or
cured such breach or failure within such thirty (30) day period, the notice of
termination shall be rescinded and Employee shall remain employed hereunder,
subject to such further terms or conditions as the parties may establish by
mutual agreement.
(c) Voluntary Termination by Employee. Employee may
voluntarily terminate his employment under this Agreement at any time by giving
at least thirty (30) days prior written notice to F & M. In such event,
Employee shall receive all compensation and other benefits to which he was
entitled under Sections 5 and 6 in the amount and at the times provided in
Section 5 through the date of voluntary termination set forth in the Employee's
notice and, in addition, shall receive all other benefits available to him
under F & M's benefit plans as in effect on the Termination Date in accordance
with their terms through such voluntary termination date.
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(d) Termination by F & M Other than due to Death,
Disability, or Cause. F & M may terminate this Agreement without cause,
provided F & M agrees to pay the Employee the compensation and benefits (at the
intervals paid to all other employees) as set forth below. In effect, F & M
may elect not to use the services of Employee during the term of this
Agreement, provided F & M pays the compensation and provides the benefits
hereunder. Employee acknowledges F & M's right to terminate without cause and
agrees that if such termination occurs that Employee's sole and exclusive claim
against F & M or its subsidiaries or their respective officers, directors,
employees or agents shall be for the payment of the unpaid compensation and
benefits under this Agreement as follows:
(i) In lieu of any further salary payments,
severance pay or other cash compensation to Employee, Employee be paid for the
then remaining unexpired portion of the Term or the payments established by the
Restated F & M Bancorporation, Inc., Executive Severance Plan (the "Severance
Plan"), whichever is greater, in the amount and at the times provided in
Section 5.
(ii) Employee shall be entitled to receive all
benefits otherwise payable to Employee under paragraph 6 for the unexpired
portion of the Term or one (1) year, whichever is greater, provided, however,
that Employee shall not be entitled to any vacation pay, holiday pay, severance
pay or other cash compensation beyond the amounts specified under subparagraph
(i) above.
(iii) The payments under subparagraphs (i) and
(ii) shall be in lieu of any other payments, claims or damages or other
obligations by F & M or Bank to Employee.
11. Waiver of Breach. The waiver by F & M of a breach of any
provision of this Agreement by the Employee shall not operate or be construed
as a waiver of any subsequent breach of the same or any other provision of this
Agreement by the Employee.
12. Assignment. The rights and obligations of F & M under this
Agreement may be assigned to any other subsidiary of F & M by a separate
instrument evidencing such assignment, provided, however, that no such
assignment may be made without Employee's prior written consent if the
assignment is to be made to a subsidiary which has its main office located
outside a thirty (30) mile radius of Kaukauna, Wisconsin. However, assignment
by F & M shall not
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relieve it of the responsibility to perform the duties of this Agreement.
Employee may not assign this Agreement.
13. Relocation to Kaukauna, Wisconsin. Employee shall relocate
to the Kaukauna, Wisconsin area within twelve (12) months of the date of this
Agreement.
14. Paragraph Headings. Paragraph headings are inserted
primarily for convenience, and if they conflict with the text in the
construction of this Agreement, the text shall control.
15. Applicable Law. This Agreement shall be governed by the laws
of the State of Wisconsin.
16. Entire Agreement. This Agreement contains the entire
agreement between the parties. No representations, promises, understandings or
agreements exist except as expressly set forth herein. This Agreement
supersedes all prior representations, promises, understandings or agreements.
This Agreement may only be amended by a written amendment signed by both
parties.
17. Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
beneficiaries, successors and assigns, specifically including any successor to
the F & M, whether arising by merger, consolidation or otherwise.
F & M BANCORPORATION, INC.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, Chairman
EMPLOYEE:
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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