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EXHIBIT 10(c)
Employment Agreements between:
a) Registrant and Xxxxxxx Xxxxx, Xxxxx Xxxxxxxxxxx, Xxxx Xxxxxxxx
b) Grafton State Bank and Xxxxxx Xxxxxxx
c) M&M Services, Inc. and Xxxxxx Xxxxxxx and Xxxxxxx Xxxxxxx
d) Achieve Mortgage Corporation and Xxxxxx Xxxxx.
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EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 2 day of Jan, 1996, between MERCHANTS
AND MANUFACTURES BANCORPORATION, INC. (the "Employer"), a Wisconsin corporation,
its successors and assigns, and XXXXXXX X. XXXXX (the "Executive").
RECITALS
WHEREAS, Executive is a valued, long-term employee, whose experience
in the industry and continued employment in the position of Chairman of the
Board directors and Chief Executive Officer will benefit the Employer in the
future; and
WHEREAS, Employer desires to provide for management continuity and
stability and for the continued services of Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below:
1. EMPLOYMENT. Employer shall continue to employ Executive, and
Executive shall continue to serve, on the terms and conditions set forth herein
for the period provided in Section 2.
2. TERM OF EMPLOYMENT. The period of Executive's employment under this
Agreement shall be deemed to have commenced as of the date first above written
and shall continue for a period of sixty (60) calendar months thereafter.
Commencing on the first anniversary date of this Agreement, and continuing at
each anniversary date thereafter, the Agreement shall renew for an additional 12
months such that the remaining term shall be sixty (60) months unless written
notice is provided by either party at least sixty (60) days prior to any such
anniversary date, that the Agreement shall terminate at the end of forty-eight
(48) months following such anniversary date. Prior to the renewal or non-renewal
of the Agreement, the Board of Directors or the Executive Personnel/Compensation
Committee will conduct a performance evaluation of the Executive for the purpose
of determining whether to extend the Agreement, and the results thereof shall be
included in the minutes of the Board or Executive Personnel/Compensation
Committee meeting. The term of employment under this Agreement, as in effect
from time to time, shall be referred to as the "Employment Term."
3. POSITION AND DUTIES. Subject to Section 5(iv)(b), Executive shall
serve Employer or any of Employer's affiliates as an Executive Officer. As such,
he is presently serving in the capacity of Chairman of the Board of Directors
and Chief Executive Officer of Employer
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("Corporate Position"). Executive shall provide such management services as are
customarily performed by persons serving in similar capacities at other bank
holding companies or their affiliates, and perform such other duties as may be
appropriate to his position and as may be from time to time determined by
Employer's Board of Directors to be necessary to its operations and in
accordance with its bylaws. During the Employment Term the Board of Directors
may modify Executive's duties and responsibilities consistent with continued
executive status; provided, however, there shall be no material change in
Executive's status nor any material increase or decrease in duties and
responsibilities except as agreed to in writing by Executive. It is agreed that
Employer shall have the right to transfer Executive to any home office or branch
office of Employer or any Employer's affiliates, provided that such home office
or branch office is or was operated by Employer or any of Employer's affiliates
prior to a change in control as defined herein. During the Employment Term,
Executive shall devote substantially all his working time and efforts to the
business and affairs of the Employer and shall not engage in any activity which
is competitive with or adverse to the business of the Employer or any of its
affiliates whether done as a partner, director, officer, employee, shareholder
of or consultant or advisor to any other business.
4. COMPENSATION. As compensation for services provided pursuant to
this Agreement, Executive shall receive the compensation and other benefits set
forth below:
(i) BASE SALARY. During the Employment Term, Executive shall
receive an annual base salary ("Base Salary") in such amount as may
from time to time be approved by the Board or the Executive
Personnel/Compensation Committee. The Base Salary in effect as of the
Commencement Date shall be $ 192,000. Such amount shall be subject to
review and to annual adjustment by the Board or the Executive
Personnel/Compensation Committee in accordance with Employer's normal
personnel practices and, once established at a specified annual rate
(including the initial rate), Executive's Base Salary shall not
thereafter be reduced without his consent except pursuant to
subsection 5(v)(c) of this Agreement. No increase in Base Salary or
other compensation shall limit or reduce any other obligation of
Employer. Executive's Base Salary and other compensation shall be paid
in accordance with Employer's regular payroll practices. Review and
adjustment of Executive's Base Salary shall be done on a basis
comparable to, and applied uniformly with, that utilized for other
executives of Employer and/or its affiliates.
(ii) BONUS PAYMENTS. In addition to Base Salary, Executive shall
be entitled, during the Employment Term, to participate in and receive
payments from all bonus and other incentive compensation plans as in
effect from time to time on the same basis as other executive officers
of Employer.
(iii) OTHER BENEFITS. During the Employment Term, Employer shall
provide to Executive, in addition to Base Salary, such other benefits
of employment (or, with Executive's consent, equivalent benefits) as
are made generally available to executive officers serving in
comparable positions at Employer or its affiliates. Such benefits
shall include participation in any group health, life, disability, or
similar insurance program and in any pension, profit-sharing, deferred
compensation, 401(k) or other similar retirement
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program provided. Executive shall also have the right to participate,
on the same basis as other executives of Employer, in any stock
purchase, stock option or stock appreciation rights plans, or other
stock-based program made available to such executive officers.
Executive shall be entitled to vacation, sick time, personal days
and other perquisites in the same manner and to the same extent as
provided other executives of 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 section 4(iii)
(except to the extent Executive had previously earned or otherwise
accumulated vested rights therein) following a valid and lawful
termination or discontinuance of such plan, program or perquisite.
5. TERMINATION. This Agreement may be terminated, subject to payment
of the compensation and other benefits described below, upon occurrence of any
of the events described herein. The date on which Executive ceases to be
employed under this Agreement after giving effect to the period of time
specified in any notice requirement, is referred to as the "Termination Date."
(i) DEATH; DISABILITY; RETIREMENT. This Agreement shall terminate
upon the death, disability or retirement of Executive. As used in this
Agreement, "disability" means Executive's inability, as the result of
physical or mental incapacity, to substantially perform his duties for
a period of 180 consecutive days. If the Executive and Employer cannot
agree as to the existence of a disability, the determination shall be
made by a qualified independent physician acceptable to both parties
or, alternatively, by a physician designated by the president of the
medical society for the county in which Executive resides. The costs
of any such medical examination shall be borne by 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 the 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 from: (a) any disability plans or disability
insurance programs provided by Employer, and (b) any governmental
social security or workers compensation program.
As used in this Agreement, the term "retirement" shall mean
Executive's retirement in accordance with and pursuant to any
generally applicable retirement plan of Employer or in accordance with
any retirement arrangement established for Executive with his consent.
If termination occurs as a result of death, disability or
retirement, 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 and the plans and programs provided therein,
through the Termination Date and, in
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addition, shall receive or continue to receive for the remaining
portion of the Employment Term all other benefits available to him
under any applicable group health, life, disability or similar
insurance program as in effect on the date of death, disability or
retirement.
If, following termination by reason of disability and prior to the
expiration of the then remaining balance of the Employment Term,
Executive becomes able to resume his duties, he shall be reinstated to
his Corporate Position or, if such Position has been filled, to a
position as nearly comparable as possible From the date of
reinstatement and for the balance of the Employment Term, Executive
shall be obligated to perform all duties and responsibilities, and
entitled to receive all compensation and other benefits, as provided
in this Agreement.
(ii) CAUSE. Employer may terminate Executive's employment under
this Agreement for cause at any time, and thereafter Employer shall
have no further obligation under this Agreement. 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) A failure by Executive to substantially perform his
duties (other than failure resulting from incapacity) after a written
demand by the Board, which demand identifies, with reasonable
specificity, the manner in which the Board believes Executive has not
substantially performed, and Executive's failure to cure within a
reasonable period of time after his receipt of the notice;
(b) A criminal conviction of or plea of nolo contendere by
Executive for any act involving dishonesty, breach of trust or a
violation of the banking or savings and loan laws of the State of
Wisconsin or the United States;
(c) A criminal conviction of or plea of nolo contendere by
Executive the commission of any felony;
(d) A breach of fiduciary duty by Executive involving
personal profit;
(e) A willful violation of any law, rule or order by
Executive (other than traffic violations or similar offenses); or
(f) Incompetence, personal dishonesty or material breach of
any provision of this Agreement or any willful misconduct by
Executive.
For purposes of this subsection 5(ii), 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 Employer.
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(iii) VOLUNTARY TERMINATION BY EXECUTIVE. Executive may voluntarily
terminate employment at any time by giving at least ninety (90) days' prior
written notice to Employer. In such event, Employer shall have no further
obligation hereunder, except that 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 his
employment through the Termination Date.
(iv) TERMINATION BY EXECUTIVE AFTER CHANGE IN CONTROL.
(a) For purpose of this Agreement, a "change in control" shall
be deemed to have occurred if any "individual, entity or group" (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 voting power of the securities of Employer or any of
Employer's affiliates or becomes the owner of all or substantially all
of the assets of Employer or any of Employer's affiliates or if the
shareholders of Employer or any affiliate of Employer approve a
reorganization, merger or consolidation of Employer or any affiliates
of Employer. "Change in control" shall not refer to or include any
transaction involving only entities affiliated directly or indirectly
with Employer.
(b) Executive may, at any time within twelve (12) months
following a "change in control," terminate his employment under this
Agreement by giving at least ninety (90) days' prior written notice to
Employer.
(v) TERMINATION BY EXECUTIVE "FOR CAUSE." Executive may terminate
his employment under this Agreement by giving at least ninety (90) days' prior
written notice to Employer at any time after the occurrence of any of the
following without Executive's express written consent:
(a) Executive is assigned to positions, duties or
responsibilities that are substantially less significant than the
positions, duties and responsibilities provided herein;
(b) Executive is removed from or Employer fails to reelect
Executive to his Corporate Position, except in connection with
termination of executive's employment for cause, disability or
retirement, or in connection with suspension or terminating by or
pursuant to regulatory action;
(c) Executive's Base Salary is reduced other than as the result
of a program applied on a proportionately equivalent basis to all
executives of Employer and its affiliates; or any other failure by
Employer to comply with Section 4(i);
(d) Executive is transferred without his consent to a location
other than a home office or branch office of Employer or any of
Employer's affiliates which
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office is or was operated by Employer or any of Employer's affiliates
prior to a change in control as defined herein.
(vi) SUSPENSION OR TERMINATION REQUIRED BY THE FDIC.
(a) If Executive is suspended and/or temporarily prohibited
from participating in the conduct of Employer's or any of Employer's
affiliates' affairs by a notice served under Section 8(e)(3), or
Section 8(g)(1) of Federal Deposit Insurance Act (12 U.S.C.
S1818(e)(3) and (g)(1) ), respectively,) 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: (1) pay Executive all of the
compensation withheld while its obligations under this Agreement were
suspended; and (2) reinstate any of its obligations which were
suspended.
(b) If Executive is removed and/or permanently prohibited from
participating in the conduct of Employer's or any of Employer's
affiliates' 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.
S1818(e)(4) and (g)(1)), respectively, the obligations of Employer
under the Agreement shall terminate as of the effective date of the
order, but earned or otherwise vested rights of Executive to
compensation and to any benefits under Section 4 shall not be
affected.
(c) If Employer or any of Employer's affiliates is in default
(as defined in Section 3(x)(1) of the Federal Deposit Insurance Act),
all obligations under the Agreement shall terminate as of the date of
default, but this Subsection 5(vi)(c) shall not affect any vested
rights of Executive, including the right to receive the compensation
and benefits set forth in Section 5(vii) or 5(viii) of this Agreement.
(d) All obligations under the Agreement may be terminated
except to the extent determined that continuation of the contract is
necessary to operation of Employer or any of its affiliates at the
time the Federal Deposit Insurance Corporation ("FDIC") enters into an
agreement to provide assistance to or on behalf of Employer or any of
Employer's affiliates under the authority contained in Section 13(c)
of the Federal Deposit Insurance Act; or when Employer or any of its
affiliates is determined by any appropriate bank regulatory agency to
be in an unsafe or unsound condition. Any rights of the parties that
have been already earned or otherwise vested, however, shall not be
affected by such action, including the right of the Executive to
receive the compensation and benefits set forth in Section 5(vii) or
5(viii) of this Agreement.
(vii) BENEFITS UPON OTHER TERMINATION BY EMPLOYER OR UPON TERMINATION
BY EXECUTIVE FOLLOWING A "CHANGE IN CONTROL." If this Agreement is terminated by
Employer other than for death, disability or retirement under Section 5(i) and
other than for "cause" under Section 5(ii) or other than by regulatory action
under Section 5(vi), or if Executive terminates this Agreement following a
"change in control" pursuant to Section
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5(iv)(b), then following the Termination Date Executive shall be entitled to
the benefits described in Section 5(viii).
(viii) BENEFITS UPON TERMINATION BY EXECUTIVE "FOR CAUSE" If this
Agreement is terminated by Executive pursuant to Section 5(v), then, following
the Termination Date:
(a) In lieu of any further salary payments, Executive shal1
receive severance payment equal to the sum of the Base Salary in
effect on the Termination Date plus cash bonus for the year prior to
termination times the number of years of the remaining Employment
term, payable in the amount and at the times provided in Sections 4(i)
and (ii). If termination follows a "change in control" under Section
5(iv)(b), Executive may elect to receive the payments specified in the
immediately preceding sentence in a lump sum without any discount,
provided that the amount of such severance payment may not exceed the
limitations established in Section 6.
(b) In addition to the retirement benefits to which Executive
is entitled under tax qualified retirement plans maintained by
Employer (hereinafter collectively referred to as "Plan"), Executive
shall receive as additional severance benefits a retirement benefit
under this Agreement, which (except as provided below) shall be
determined in accordance with, and paid under this Agreement in the
form and at the times provided in, the Plan. Such benefits shall be
determined as though Executive were fully vested under the Plan and
had accumulated (after termination of this Agreement) the additional
years of service and benefit credits under the Plan that he would have
received had he continued employment with Employer for the balance of
the Employment Term at the highest annual rate of Base Salary in
effect during the twelve (12) months immediately preceding the
Termination Date. Such Base Salary, plus the average of Executive's
cash bonuses, if any, for the past four years, shall be deemed to the
present the compensation received by Executive during each such
additional year for purposes of determining additional retirement
benefits under this Subsection 5(viii).
(c) In addition to other amounts payable to Executive under
this Section 5(viii), Executive shall be entitled to receive all 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, together with the
continuation, without cost to Executive, of other benefits under
Section 4(iii) for the remaining unexpired Employment Term, all
subject to the limitations set forth in Section 6 below.
(ix) SUSPENSION BY EMPLOYER. Employer in its sole discretion shall
have the right to temporarily suspend Executive from participating in the
conduct of the Employer's or Employer's affiliates' affairs. If Executive is
suspended or temporarily prohibited from participating in the conduct of
Employer's or Employer's affiliates' business, Employer shall pay Executive all
compensation and provide all benefits pursuant to Section 4 of this Agreement
during the period of such suspension.
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6. LIMITATIONS ON CHANGE IN CONTROL COMPENSATION. In the event
severance benefits under Subsection 5(vii) or 5(viii), 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 Employer or any corporation ("Affiliate") affiliated with
Employer within the meaning of Section 1504 of the Internal Revenue Code of
1986. as amended (the "Code") ), constitute, in the opinion of tax counsel
selected by Employer's independent auditors and acceptable to Executive,
"parachute payments" within the meaning of Section 28OG(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 Employer (or an
Affiliate) and includible 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 occurred ("Base Amount"), such Severance Benefits shall be reduced to
an amount the present value of which (when combined with the present value of
any other payments otherwise received or to be received by Executive from
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 (i) Executive
shall have effectively waived his receipt or enjoyment of any such payment or
benefit which triggered, the applicability of this Section 6, or (ii) in the
opinion of tax counsel, the Severance Benefits (in their 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 28OG(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
Employer. The Base Amount shall include every type and form of compensation
includible in Executive's gross income in respect of his employment by Employer
(or an Affiliate), except to the extent otherwise provided in temporary or final
regulations promulgated under Section 28OG(b) of the Code. For purposes of this
Section 6, 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 Employer's independent auditors in
accordance with the principles of Section 28OG of the Code.
Executive shall have the right to request that Employer obtain a
ruling from the Internal Revenue Service ("Service") as to whether any or all
payments or benefits determined by such tax counsel are, in the view of the
Service, "parachute payments" under Section 280G. If a ruling is sought pursuant
to Executive's request, no Severance Benefits payable under this Agreement in
excess of the Section 28OG limitation shall be made to Executive until after
fifteen (15) days from the date of such ruling; however, Severance Benefits
shall continue to be paid during this time up to the amount of that limitation.
For purposes of this Section 6, Executive and Employer agree to be bound by the
Service's ruling as to whether payments constitute "parachute payments" under
Section 280G. If the Service declines, for any reason, to provide the ruling
requested, the tax counsel's opinion provided with respect to what payments or
benefits constitute "parachute payments" shall control, and the period during
which the Severance Benefits may be deferred shall be extended to a date fifteen
(15) days from the date of the Service's notice indicating that no ruling will
be forthcoming.
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
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that final regulations under Section 28OG of the Code may affect the amounts
that may be paid under this Agreement and agree 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
substantially all of the business and/or assets of 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. If such succession is the result of a "change in
control" as defined herein, such assumption shall specifically
preserve to Executive, for 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) provided under this Agreement upon a
"change in control".
As used in this Agreement, Employer shall mean Merchants and
Manufacturers Bancorporation, Inc. and any successor to its
business and/or assets which becomes bound by the terms and
provisions of this Agreement by operation of this Agreement or by
law. Failure of Employer to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle Executive to compensation from 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
5(v). 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) Any rights and obligations of Employer under this
Agreement may be assigned or transferred by Employer to any of its
affiliates prior to a change in control as defined in this
Agreement.
(d) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by Executive and his heirs,
beneficiaries and personal representatives and Employer and any
success or organization or assignee of Employer.
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(ii) NON-COMPETITION/CONFIDENTIALITY PROVISIONS. Executive
acknowledges that the development of personal contacts and
relationships is an essential element of Employer's and Employer's
affiliates' business, that Employer has invested considerable time and
money in his development of such contacts and relationships, that
Employer and its affiliates could suffer irreparable harm if he were
to leave Employers' employment and solicit the business of customers
of Employer or Employer's affiliates and that it is reasonable to
protect 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), Executive shall not accept employment with any
Significant Competitor of Employer or of any of Employer's affiliates
for a period of twelve (12) months following such termination. In the
event Executive is terminated by Employer, under Section 5(vii) other
than following a change in control, Executive shall not accept
employment with any Significant Competitor of Employer or of any of
Employer's affiliates for the lesser of (a) the remaining term of the
agreement, or (b) a period of twelve (12) months following such
termination. For purposes of this Agreement, the term "Significant
Competitor" means any financial institution including, 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 with or during the period of
this covenant not to compete, has a home, branch or other office
within a three (3) mile radius of any office operated or maintained by
Employer or any of Employer's affiliates prior to a change in control
as defined in this Agreement.
Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of Employer and its affiliates
and are reasonably limited as to (a) the scope of activities affected,
(b) their duration and geographic scope, and (c) their effect on
Executive and the public. In the event Executive violates the
non-competition provisions set forth herein, 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 Employer
brings legal action for injunctive or other relief, 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 relief is granted,
but reduced by any period between commencement of the period and the
date of the first violation.
Executive acknowledges that as a result of his employment with
Employer or its affiliates Executive has access to confidential
information concerning Employer's business, customers and services.
Executive agrees that during the Employment Term and for a period of
one(l) year following termination of employment, he will not, directly
or indirectly, use, disclose or divulge to any person, agency, firm,
corporation or other entity any confidential or proprietary
information, including, without limitation, customer lists, reports,
files, records or information of any kind pertaining to the business
of Employer or any of its affiliates which Executive acquires or has
access to during the Employment Term. Executive agrees that if he
violates the covenants under this section, Employer shall be entitled
to an accounting and repayments of all profits, compensation,
commissions and
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other remuneration or benefits which the Executive has realized or may
realize as the result of or in connection with any such violation.
Executive further agrees that money damages may be difficult to
ascertain in case of a breach of this covenant, and Executive
therefore agrees that Employer or its affiliates shall be entitled to
injunctive relief in addition to any other remedy to which Employer or
its affiliates may be entitled.
(iii) NOTICE. All notices and other communications provided for in
this Agreement shall be in writing and shall be deemed duly given when
delivered or mailed by United States registered mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Employer:
Merchants and Manufacturers Bancorporation, Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Board of Directors
If to the Executive:
Xxxxxxx X. Xxxxx
00000 Xxxx Xxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
or to such other address as either party may have furnished to the
other in writing in accordance herewith.
(iv) EXPENSES. If legal proceedings are necessary to enforce or
interpret this Agreement, or to recover damages for breach, the
prevailing party shall be entitled to recover reasonable attorneys'
fees, costs and disbursements of such proceedings, in addition to any
other relief to which such prevailing party may be entitled.
Notwithstanding the foregoing, in the event of legal proceedings to
enforce or interpret this Agreement following a change in control,
Executive shall be entitled to recover from Employer: (a) reasonable
attorneys, fees, costs and disbursements if Executive is the
prevailing party; or (b) reasonable attorneys' fees, costs and
disbursements of up to $7,500 incurred in such proceedings regardless
of whether Executive is the prevailing party. Recovery of attorneys'
fees and costs following a "change in control" shall be in addition to
any other relief to which Executive is 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 as to the amount or requirement of any such
withholding.
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(vi) MISCELLANEOUS. No provision of this Agreement may be
amended, waived or discharged unless such Amendment, waiver or
discharge is agreed to in writing and duly executed by Executive and
Employer or its successor in interest. This Agreement constitutes the
entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements and undertaking,
whether written or oral, between the parties with respect thereto; no
agreements or representation, oral or otherwise, express or implied,
have been made by either party with respect to the subject matter
hereof. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of
Wisconsin.
(vii) 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.
(viii) COUNTERPARTS. This Agreement may be executed in several
counterparts, all of which together will constitute one and the same
instrument.
(ix) HEADINGS. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of
any provision of this Agreement.
(x) EFFECTIVE DATE. The effective date of this Agreement shall
be the date indicated in the first paragraph 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
Xxxxxxx X. Xxxxx
---------------------------------------(SEAL)
Xxxxxxx X. Xxxxx
MERCHANTS AND MANUFACTURERS
BANCORPORATION, INC.
By: Xxxxxxx X. Xxxxx
------------------------------------------
Title: Chairman/CEO
---------------------------------------
10(c)a-12
14
FIRST AMENDMENT TO
EXECUTIVE EMPLOYMENT AGREEMENT
This first amendment to the Executive Employment Agreement dated as of June 25,
1997, between MERCHANTS AND MANUFACTURERS BANCORPORATION, INC., a
Wisconsin Corporation ("Employer") and XXXXXXX X. XXXXX ("Executive"),
RECITALS
A. The parties entered into an Executive Employment Agreement dated January 2,
1996 (the "Agreement");
B. The parties desire to amend the Agreement in accordance with the terms of
this First Amendment.
AGREEMENTS
In consideration of the promises and mutual covenants contained herein and in
the Agreement, the parties agree as follows:
1. The following recital is added after the second recital of the
Agreement:
WHEREAS, Executive desires to assume certain duties as Chief
Financial Officer of General Automotive Manufacturing Company,
Inc., and wishes to delegate certain functions heretofore
personally performed by Executive for Employer to other
executive officers of Employer, while retaining full and
complete overall responsibility as Chief Executive Officer of
Employer.
2. The last sentence of Section 3 of the Agreement is hereby deleted and
the following sentence is inserted in lieu thereof:
During the Employment Term, Executive may devote a portion of
his working time to meet his responsibilities as the Chief
Financial Officer of General Automotive Manufacturing Company,
Inc., provided that he shall devote sufficient time and effort,
as determined from time to time by the Board of Directors of
Employer, to the business and affairs of Employer to fully carry
out his duties and responsibilities as Chief Executive Officer
of Employer. Executive shall continue to have undiminished
overall management responsibility for the affairs of Employer,
notwithstanding the fact that he may, from time to time,
delegate additional duties to other executive officers of
Employer.
10(c)a-13
15
3. The second sentence of subsection 4(i) is hereby deleted and the
following sentence is inserted in lieu thereof:
The Base Salary in effect as of the commencement date of this
First Amendment shall be $120,000.
4. Subsection 4(ii) shall be deleted in its entirety, and the following
sentence shall be inserted in lieu thereof:
BONUS PAYMENTS: Executive shall not be entitled during the
Employment Term to receive payments from any bonus plan.
5. All other provisions of the Agreement shall remain in full force and
effect.
6. The effective date of this First Amendment to the Agreement shall be
the date indicated in the first paragraph of this First Amendment,
notwithstanding the actual date of execution by any party.
IN WITNESS WHEREOF, the undersigned have duly executed this First Amendment as
of the date first above written.
EXECUTIVE
Xxxxxxx X. Xxxxx
---------------------------------------------
Xxxxxxx X. Xxxxx
MERCHANTS AND MANUFACTURERS
BANCORPORATION, INC.
By: Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
----------------------------------------
Title: President
---------------------------------------
ATTEST:/s/ Xxxx Xxxxxxxx
---------------------------
Name: Xxxx Xxxxxxxx
-------------------------------
Title: Executive Vice President
----------------------------
10(c)a-14
16
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 2nd day of January 1996,
between MERCHANTS AND MANUFACTURERS BANCORPORATION, INC. (the "Employer"), a
Wisconsin corporation, its successors and assigns, and XXXXX X. XXXXXXXXXXX,
(the "Executive").
RECITALS
WHEREAS, Executive is a valued, long-term employee, whose experience
in the industry and continued employment in the position of Vice President and
Chief Financial Officer will benefit the Employer in the future; and
WHEREAS, Employer desires to provide for management continuity and
stability and for the continued services of Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below:
1. EMPLOYMENT. Employer shall continue to employ Executive, and
Executive shall continue to serve, on the terms and conditions set forth herein
for the period provided in Section 2.
2. TERM OF EMPLOYMENT. The period of Executive's employment under this
Agreement shall be deemed to have commenced as of the date first above written
and shall continue for a period of thirty-six (36) calendar months thereafter.
Commencing on the first anniversary date of this Agreement, and continuing at
each anniversary date thereafter, the Agreement shall renew for an additional 12
months such that the remaining term shall be thirty-six (36) months unless
written notice is provided by either party at least sixty (60) days prior to any
such anniversary date, that the Agreement shall terminate at the end of
twenty-four (24) months following such anniversary date. Prior to the renewal or
non-renewal of the Agreement, the Board of Directors or the Executive
Personnel/Compensation Committee will conduct a performance evaluation of the
Executive for the purpose of determining whether to extend the Agreement, and
the results thereof shall be included in the minutes of the Board or Executive
Personnel/Compensation Committee meeting. The term of employment under this
Agreement, as in effect from time to time, shall be referred to as the
"Employment Term."
3. POSITION AND DUTIES. Subject to Section 5(iv)(b), Executive shall
serve Employer or any of Employer's affiliates as an Executive Officer. As such,
he is presently serving in the capacity of Vice President and Chief Financial
Officer of Employer ("Corporate Position").
10(c)b-1
17
Executive shall provide such management services as are customarily performed by
persons serving in similar capacities at other bank holding companies or their
affiliates, and perform such other duties as may be appropriate to his position
and as may be from time to time determined by Employer's Board of Directors to
be necessary to its operations and in accordance with its bylaws. During the
Employment Term the Board of Directors may modify Executive's duties and
responsibilities consistent with continued executive status; provided, however,
there shall be no material change in Executive's status nor any material
increase or decrease in duties and responsibilities except as agreed to in
writing by Executive. It is agreed that Employer shall have the right to
transfer Executive to any home office or branch office of Employer or any of
Employer's affiliates, provided that such home office or branch office is or was
operated by Employer or any of Employer's affiliates prior to a change in
control as defined herein. During the Employment Term, Executive shall devote
substantially all his working time and efforts to the business and affairs of
the Employer and shall not engage in any activity which is competitive with or
adverse to the business of the Employer or any of its affiliates whether done
as a partner, director, officer, employee, shareholder of or consultant or
advisor to any other business.
4. COMPENSATION. As compensation for services provided pursuant to
this Agreement, Executive shall receive the compensation and other benefits set
forth below:
(i) BASE SALARY. During the Employment Term, Executive shall
receive an annual base salary ("Base Salary") in such amount as may
from time to time be approved by the Board or the Executive
Personnel/Compensation Committee. The Base Salary in effect as of the
Commencement Date shall be $75,000. Such amount shall be subject to
review and to annual adjustment by the Board or the Executive
Personnel/Compensation Committee in accordance with Employer's normal
personnel practices and, once established at a specified annual rate
(including the initial rate), Executive's Base Salary shall not
thereafter be reduced without his consent except pursuant to
subsection 5(v)(c) of this Agreement. No increase in Base Salary or
other compensation shall limit or reduce any other obligation of
Employer. Executive's Base Salary and other compensation shall be paid
in accordance with Employer's regular payroll practices. Review and
adjustment of Executive's Base Salary shall be done on a basis
comparable to, and applied uniformly with, that utilized for other
executives of Employer and/or its affiliates.
(ii) BONUS PAYMENTS. In addition to Base Salary, Executive shall
be entitled, during the Employment Term, to participate in and receive
payments from all bonus and other incentive compensation plans as in
effect from time to time on the same basis as other executive officers
of Employer.
(iii) OTHER BENEFITS. During the Employment Term, Employer shall
provide to Executive, in addition to Base Salary, such other benefits
of employment (or, with Executive's consent, equivalent benefits) as
are made generally available to executive officers serving in
comparable positions at Employer or its affiliates. Such benefits
shall include participation in any group health, life, disability, or
similar insurance program and in any pension, profit-sharing, deferred
compensation, 401(k) or other similar retirement program provided.
Executive shall also have the right to participate, on the same basis
as
10(c)b-2
18
other executives of Employer, in any stock purchase, stock option or
stock appreciation rights plans, or other stock-based program made
available to such executive officers.
Executive shall be entitled to vacation, sick time, personal days
and other perquisites in the same manner and to the same extent as
provided other executives of 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 section 4(iii)
(except to the extent Executive had previously earned or otherwise
accumulated vested rights therein) following a valid and lawful
termination or discontinuance of such plan, program or perquisite.
5. TERMINATION. This Agreement may be terminated, subject to payment
of the compensation and other benefits described below, upon occurrence of any
of the events described herein. The date on which Executive ceases to be
employed under this Agreement, after giving effect to the period of time
specified in any notice requirement, is referred to as the "Termination Date."
(i) DEATH; DISABILITY; RETIREMENT. This Agreement shall
terminate upon the death, disability or retirement of Executive. As
used in this Agreement, "disability" means Executive's inability, as
the result of physical or mental incapacity, to substantially perform
his duties for a period of 180 consecutive days. If the Executive and
Employer cannot agree as to the existence of a disability, the
determination shall be made by a qualified independent physician
acceptable to both parties or, alternatively, by a physician
designated by the president of the medical society for the county in
which Executive resides. The costs of any such medical examination
shall be borne by 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 the
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 from: (a) any disability plans
or disability insurance programs provided by Employer, and (b) any
governmental social security or workers compensation program.
As used in this Agreement, the term "retirement" shall mean
Executive's retirement in accordance with and pursuant to any
generally applicable retirement plan of Employer or in accordance with
any retirement arrangement established for Executive with his consent.
If termination occurs as a result of death, disability or
retirement, 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 and the plans and programs provided therein,
through the Termination Date and, in addition, shall receive or
continue to receive for the remaining portion of the Employment
10(c)b-3
19
Term all other benefits available to him under any applicable group
health, life, disability or similar insurance program as in effect on
the date of death, disability or retirement.
If, following termination by reason of disability and prior to the
expiration of the then remaining balance of the Employment Term,
Executive becomes able to resume his duties, he shall be reinstated to
his Corporate Position or, if such position has been filled, to a
position as nearly comparable as possible. From the date of
reinstatement and for the balance of the Employment Term, Executive
shall be obligated to perform all duties and responsibilities, and
entitled to receive all compensation and other benefits, as provided
in this Agreement.
(ii) CAUSE. Employer may terminate Executive's employment under
this Agreement for cause at any time, and thereafter Employer shall
have no further obligation under this Agreement. 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) A failure by Executive to substantially perform his
duties (other than failure resulting from incapacity) after a
written demand by the Board, which demand identifies, with
reasonable specificity, the manner in which the Board believes
Executive has not substantially performed, and Executive's failure
to cure within a reasonable period of time after his receipt of the
notice;
(b) A criminal conviction of or plea of nolo contendere by
Executive for any act involving dishonesty, breach of trust or a
violation of the banking or savings and loan laws of the State of
Wisconsin or the United States;
(c) A criminal conviction of or plea of nolo contendere by
Executive for the commission of any felony;
(d) A breach of fiduciary duty by Executive involving
personal profit;
(e) A willful violation of any law, rule or order by
Executive (other than traffic violations or similar offenses); or
(f) Incompetence, personal dishonesty or material breach of
any provision of this Agreement or any willful misconduct by
Executive.
For purposes of this subsection 5(ii), 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 Employer.
10(c)b-4
20
(iii) VOLUNTARY TERMINATION BY EXECUTIVE. Executive may
voluntarily terminate employment at any time by giving at least ninety
(90) days' prior written notice to Employer. In such event, Employer
shall have no further obligation hereunder, except that 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 his employment
through the Termination Date.
(iv) TERMINATION BY EXECUTIVE AFTER CHANGE IN CONTROL.
(a) For purposes of this Agreement, a "change in control"
shall be deemed to have occurred if any "individual, entity or
group" (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 l3d-3 under the Exchange Act), directly or indirectly, of
securities representing 25% or more of the voting power of the
securities of Employer or any of Employer's affiliates or becomes
the owner of all or substantially all of the assets of Employer or
any of Employer's affiliates or if the shareholders of Employer or
any affiliate of Employer approve a reorganization, merger or
consolidation of Employer or any affiliates of Employer. "Change
in control" shall not refer to or include any transaction involving
only entities affiliated directly or indirectly with Employer.
(b) Executive may, at any time within twelve (12) months
following a "change in control," terminate his employment under
this Agreement by giving at least ninety (90) days' prior written
notice to Employer.
(v) TERMINATION BY EXECUTIVE "FOR CAUSE." Executive may
terminate his employment under this Agreement by giving at least
ninety (90) days' prior written notice to Employer at any time after
the occurrence of any of the following without Executive's express
written consent:
(a) Executive is assigned to positions, duties or
responsibilities that are substantially less significant than the
positions, duties and responsibilities provided herein;
(b) Executive is removed from or Employer fails to reelect
Executive to his Corporate Position, except in connection with
termination of Executive's employment for cause, disability or
retirement, or in connection with suspension or termination by or
pursuant to regulatory action;
(c) Executive's Base Salary is reduced other than as the
result of a program applied on a proportionately equivalent basis
to all executives of Employer and its affiliates; or any other
failure by Employer to comply with Section 4(i);
(d) Executive is transferred without his consent to a
location other than a home office or branch office of Employer or
any of Employer's affiliates which
10(c)b-5
21
office is or was operated by Employer or any of Employer's
affiliates prior to a change in control as defined herein.
(vi) SUSPENSION OR TERMINATION REQUIRED BY THE FDIC.
(a) If Executive is suspended and/or temporarily prohibited
from participating in the conduct of Employer's or any of
Employer's affiliates' 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. S1818(e)(3) and (g)(1)), respectively), 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: (1)
pay Executive all of the compensation withheld while its
obligations under this Agreement were suspended; and (2) reinstate
any of its obligations which were suspended.
(b) If Executive is removed and/or permanently prohibited
from participating in the conduct of Employer's or any of
Employer's affiliates' 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. S1818(e)(4) and (g)(1)), respectively, the obligations of
Employer under the Agreement shall terminate as of the effective
date of the order, but earned or otherwise vested rights of
Executive to compensation and to any benefits under Section 4 shall
not be affected.
(c) If Employer or any of Employer's affiliates is in
default (as defined in Section 3(x)(1) of the Federal Deposit
Insurance Act), all obligations under the Agreement shall terminate
as of the date of default, but this Subsection 5(vi)(c) shall not
affect any vested rights of Executive, including the right to
receive the compensation and benefits set forth in Section 5(vii)
or 5(viii) of this Agreement.
(d) All obligations under the Agreement may be terminated
except to the extent determined that continuation of the contract
is necessary to operation of Employer or any of its affiliates at
the time the Federal Deposit Insurance Corporation ("FDIC") enters
into an agreement to provide assistance to or on behalf of Employer
or any of Employer's affiliates under the authority contained in
Section 13(c) of the Federal Deposit Insurance Act; or when
Employer or any of its affiliates is determined by any appropriate
bank regulatory agency to be in an unsafe or unsound condition. Any
rights of the parties that have been already earned or otherwise
vested, however, shall not be affected by such action, including
the right of the Executive to receive the compensation and benefits
set forth in Section 5(vii) or 5(viii) of this Agreement.
(vii) BENEFITS UPON OTHER TERMINATION BY EMPLOYER OR UPON
TERMINATION BY EXECUTIVE FOLLOWING A "CHANGE IN CONTROL." If this
Agreement is terminated by Employer other than for death, disability
or retirement under Section 5(i) and other than for "cause" under
Section 5(ii) or other than by regulatory action under Section 5(vi),
or if Executive terminates this Agreement following a "change in
control" pursuant to Section
10(c)b-6
22
5(iv)(b), then following the Termination Date Executive shall be
entitled to the benefits described in Section 5(viii).
(viii) BENEFITS UPON TERMINATION BY EXECUTIVE "FOR CAUSE." IF THIS
Agreement is terminated by Executive pursuant to Section 5(v), then,
following the Termination Date:
(a) In lieu of any further salary payments, Executive shall
receive severance payments equal to the sum of the Base Salary in
effect on the Termination Date plus cash bonus for the year prior
to termination times the number of years of the remaining
Employment Term, payable in the amount and at the times provided in
Sections 4(i) and (ii). If termination follows a "change in
control" under Section 5(iv)(b), Executive may elect to receive the
payments specified in the immediately preceding sentence in a lump
sum without any discount, provided that the amount of such
severance payments may not exceed the limitations established in
Section 6.
(b) In addition to the retirement benefits to which
Executive is entitled under tax qualified retirement plans
maintained by Employer (hereinafter collectively referred to as
"Plan"), Executive shall receive as additional severance benefits a
retirement benefit under this Agreement, which (except as provided
below) shall be determined in accordance with, and paid under this
Agreement in the form and at the times provided in, the Plan. Such
benefits shall be determined as though Executive were fully vested
under the Plan and had accumulated (after termination of this
Agreement) the additional years of service and benefit credits
under the Plan that he would have received had he continued
employment with Employer for the balance of the Employment Term at
the highest annual rate of Base Salary in effect during the twelve
(12) months immediately preceding the Termination Date. Such Base
Salary, plus the average of Executive's cash bonuses, if any, for
the past four years, shall be deemed to represent the compensation
received by Executive during each such additional year for purposes
of determining additional retirement benefits under this Subsection
5(viii).
(c) In addition to other amounts payable to Executive under
this Section 5(viii), Executive shall be entitled to receive all
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,
together with the continuation, without cost to Executive, of other
benefits under Section 4(iii) for the remaining unexpired
Employment Term, all subject to the limitations set forth in
Section 6 below.
(ix) SUSPENSION BY EMPLOYER. Employer in its sole discretion
shall have the right to temporarily suspend Executive from
participating in the conduct of the Employer's or Employer's
affiliates' affairs. If Executive is suspended or temporarily
prohibited from participating in the conduct of Employer's or
Employer's affiliates' business, Employer shall pay Executive all
compensation and provide all benefits pursuant to Section 4 of this
Agreement during the period of such suspension.
10(c)b-7
23
6. LIMITATIONS ON CHANGE IN CONTROL COMPENSATION. In the event
severance benefits under Subsection 5(vii) or 5(viii), 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 Employer or any corporation ("Affiliate") affiliated with
Employer within the meaning of Section 1504 of the Internal Revenue Code of
1986. as amended (the "Code") ), constitute, in the opinion of tax counsel
selected by Employer's independent auditors and acceptable to Executive,
"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 Employer (or an
Affiliate) and includible 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 occurred ("Base Amount"), such Severance Benefits shall be reduced to
an amount the present value of which (when combined with the present value of
any other payments otherwise received or to be received by Executive from
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 (i) Executive
shall have effectively waived his receipt or enjoyment of any such payment or
benefit which triggered the applicability of this Section 6, or (ii) in the
opinion of tax counsel, the Severance Benefits (in their 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
Employer. The Base Amount shall include every type and form of compensation
includible in Executive's gross income in respect of his employment by 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, 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 Employer's independent auditors in
accordance with the principles of Section 280G of the Code.
Executive shall have the right to request that Employer obtain a
ruling from the Internal Revenue Service ("Service") as to whether any or all
payments or benefits determined by such tax counsel are, in the view of the
Service, "parachute payments" under Section 280G. If a ruling is sought pursuant
to Executive's request, no Severance Benefits payable under this Agreement in
excess of the Section 280G limitation shall be made to Executive until after
fifteen (15) days from the date of such ruling; however, Severance Benefits
shall continue to be paid during this time up to the amount of that limitation.
For purposes of this Section 6, Executive and Employer agree to be bound by the
Service's ruling as to whether payments constitute "parachute payments" under
Section 280G. If the Service declines, for any reason, to provide the ruling
requested, the tax counsel's opinion provided with respect to what payments or
benefits constitute "parachute payments" shall control, and the period during
which the Severance Benefits may be deferred shall be extended to a date fifteen
(15) days from the date of the Service's notice indicating that no ruling will
be forthcoming.
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
10(c)b-8
24
that final regulations under Section 280G of the Code may affect the amounts
that may be paid under this Agreement and agree 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
substantially all of the business and/or assets of 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. If such succession is the result of a
"change in control" as defined herein, such assumption shall
specifically preserve to Executive, for 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) provided under this
Agreement upon a "change in control".
As used in this Agreement, Employer shall mean Merchants
and Manufacturers Bancorporation, Inc. and any successor to its
business and/or assets which becomes bound by the terms and
provisions of this Agreement by operation of this Agreement or by
law. Failure of Employer to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle Executive to compensation from
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 5(v). 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) Any rights and obligations of Employer under this
Agreement may be assigned or transferred by Employer to any of its
affiliates prior to a change in control as defined in this
Agreement.
(d) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by Executive and his heirs,
beneficiaries and personal representatives and Employer and any
successor organization or assignee of Employer.
10(c)b-9
25
(ii) NON-COMPETITION/CONFIDENTIALITY PROVISIONS. Executive
acknowledges that the development of personal contacts and
relationships is an essential element of Employer's and Employer's
affiliates' business, that Employer has invested considerable time and
money in his development of such contacts and relationships, that
Employer and its affiliates could suffer irreparable harm if he were to
leave Employer's employment and solicit the business of customers of
Employer or Employer's affiliates and that it is reasonable to protect
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), Executive shall not accept employment with any
Significant Competitor of Employer or of any of Employer's affiliates
for a period of twelve (12) months following such termination. In the
event Executive is terminated by Employer, under Section 5(vii) other
than following a change in control, Executive shall not accept
employment with any Significant Competitor of Employer or of any of
Employer's affiliates for the lesser of (a) the remaining term of the
agreement, or (b) a period of twelve (12) months following such
termination. For purposes of this Agreement, the term "Significant
Competitor" means any financial institution including, 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 with or during the period of this
covenant not to compete, has a home, branch or other office within a
three (3) mile radius of any office operated or maintained by Employer
or any of Employer's affiliates prior to a change in control as defined
in this Agreement.
Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of Employer and its affiliates
and are reasonably limited as to (a) the scope of activities affected,
(b) their duration and geographic scope, and (c) their effect on
Executive and the public. In the event Executive violates the
non-competition provisions set forth herein, 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 Employer
brings legal action for injunctive or other relief, 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 relief is granted, but reduced
by any period between commencement of the period and the date of the
first violation.
Executive acknowledges that as a result of his employment with
Employer or its affiliates Executive has access to confidential
information concerning Employer's business, customers and services.
Executive agrees that during the Employment Term and for a period of
one(l) year following termination of employment, he will not, directly
or indirectly, use, disclose or divulge to any person, agency, firm,
corporation or other entity any confidential or proprietary
information, including, without limitation, customer lists, reports,
files, records or information of any kind pertaining to the business of
Employer or any of its affiliates which Executive acquires or has
access to during the Employment Term. Executive agrees that if he
violates the covenants under this section, Employer shall be entitled
to an accounting and repayments of all profits, compensation,
commissions and
10(c)b-10
26
other remuneration or benefits which the Executive has realized or may
realize as the result of or in connection with any such violation.
Executive further agrees that money damages may be difficult to
ascertain in case of a breach of this covenant, and Executive therefore
agrees that Employer or its affiliates shall be entitled to injunctive
relief in addition to any other remedy to which Employer or its
affiliates may be entitled.
(iii) NOTICE. All notices and other communications provided for
in this Agreement shall be in writing and shall be deemed duly given
when delivered or mailed by United States registered mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Employer:
Merchants and Manufacturers Bancorporation, Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Board of Directors
If to the Executive:
Xxxxx X. Xxxxxxxxxxx
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
or to such other address as either party may have furnished to the
other in writing in accordance herewith.
(iv) EXPENSES. If legal proceedings are necessary to enforce or
interpret this Agreement, or to recover damages for breach, the
prevailing party shall be entitled to recover reasonable attorneys'
fees, costs and disbursements of such proceedings, in addition to any
other relief to which such prevailing party may be entitled.
Notwithstanding the foregoing, in the event of legal proceedings to
enforce or interpret this Agreement following a change in control,
Executive shall be entitled to recover from Employer: (a) reasonable
attorneys, fees, costs and disbursements if Executive is the prevailing
party; or (b) reasonable attorneys' fees, costs and disbursements of up
to $7,500 incurred in such proceedings regardless of whether Executive
is the prevailing party. Recovery of attorneys' fees and costs
following a "change in control" shall be in addition to any other
relief to which Executive is 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 as to the amount or requirement of any such
withholding.
10(c)b-11
27
(vi) MISCELLANEOUS. No provision of this Agreement may be
amended, waived or discharged unless such Amendment, waiver or
discharge is agreed to in writing and duly executed by Executive and
Employer or its successor in interest. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior agreements and undertakings, whether
written or oral, between the parties with respect thereto; no
agreements or representations, oral or otherwise, express or implied,
have been made by either party with respect to the subject matter
hereof. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of Wisconsin.
(vii) 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.
(viii) COUNTERPARTS. This Agreement may be executed in several
counterparts, all of which together will constitute one and the same
instrument.
(ix) HEADINGS. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of
any provision of this Agreement.
(x) EFFECTIVE DATE. The effective date of this Agreement shall
be the date indicated in the first paragraph 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
Xxxxx X. Xxxxxxxxxxx (SEAL)
---------------------------------
Xxxxx X. Xxxxxxxxxxx
MERCHANTS AND MANUFACTURERS
BANCORPORATION, INC.
By: Xxxxxxx X. Xxxxx
------------------------------
Title: Chairman CEO
---------------------------
10(c)b-12
28
EXHIBIT 10(c)c
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 2 day of January, 1996, between
MERCHANTS AND MANUFACTURERS BANCORPORATION, INC. (the "Employer"), a Wisconsin
corporation, its successors and assigns, and XXXX XXXXXXXX (the "Executive").
RECITALS
WHEREAS, Executive is a valued, long-term employee, whose experience in
the industry and continued employment in the position of Executive Vice
President and Chief Operating Officer will benefit the Employer in the future;
and
WHEREAS, Employer desires to provide for management continuity and
stability and for the continued services of Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below:
1. EMPLOYMENT. Employer shall continue to employ Executive, and
Executive shall continue to serve, on the terms and conditions set forth herein
for the period provided in Section 2.
2. TERM OF EMPLOYMENT. The period of Executive's employment under
this Agreement shall be deemed to have commenced as of the date first above
written and shall continue for a period of thirty-six (36) calendar months
thereafter. Commencing on the first anniversary date of this Agreement, and
continuing at each anniversary date thereafter, the Agreement shall renew for an
additional 12 months such that the remaining term shall be thirty-six (36)
months unless written notice is provided by either party at least sixty (60)
days prior to any such anniversary date, that the Agreement shall terminate at
the end of twenty-four (24) months following such anniversary date. Prior to the
renewal or non-renewal of the Agreement, the Board of Directors or the Executive
Personnel/Compensation Committee will conduct a performance evaluation of the
Executive for the purpose of determining whether to extend the Agreement, and
the results thereof shall be included in the minutes of the Board or Executive
Personnel/Compensation Committee meeting. The term of employment under this
Agreement, as in effect from time to time, shall be referred to as the
"Employment Term."
3. POSITION AND DUTIES. Subject to Section 5(iv)(b), Executive shall
serve Employer or any of Employer's affiliates as an Executive Officer. As such,
he is presently serving in the capacity of Executive Vice President and Chief
Operating Officer of Employer ("Corporate
10(c)c-l
29
Position"). Executive shall provide such management services as are customarily
performed by persons serving in similar capacities at other bank holding
companies or their affiliates, and perform such other duties as may be
appropriate to his position and as may be from time to time determined by
Employer's Board of Directors to be necessary to its operations and in
accordance with its bylaws. During the Employment Term the Board of Directors
may modify Executive's duties and responsibilities consistent with continued
executive status; provided, however, there shall be no material change in
Executive's status nor any material increase or decrease in duties and
responsibilities except as agreed to in writing by Executive. It is agreed that
Employer shall have the right to transfer Executive to any home office or branch
office of Employer or any of Employer's affiliates, provided that such home
office or branch office is or was operated by Employer or any of Employer's
affiliates prior to a change in control as defined herein. During the Employment
Term, Executive shall devote substantially all his working time and efforts to
the business and affairs of the Employer and shall not engage in any activity
which is competitive with or adverse to the business of the Employer or any of
its affiliates whether done as a partner, director, officer, employee,
shareholder of or consultant or advisor to any other business.
4. COMPENSATION. As compensation for services provided pursuant to
this Agreement, Executive shall receive the compensation and other benefits set
forth below:
(i) BASE SALARY. During the Employment Term, Executive shall
receive an annual base salary ("Base Salary") in such amount as may
from time to time be approved by the Board or the Executive
Personnel/Compensation Committee. The Base Salary in effect as of the
Commencement Date shall be $79,404. Such amount shall be subject to
review and to annual adjustment by the Board or the Executive
Personnel/Compensation Committee in accordance with Employer's normal
personnel practices and, once established at a specified annual rate
(including the initial rate), Executive's Base Salary shall not
thereafter be reduced without his consent except pursuant to subsection
5(v)(c) of this Agreement. No increase in Base Salary or other
compensation shall limit or reduce any other obligation of Employer.
Executive's Base Salary and other compensation shall be paid in
accordance with Employer's regular payroll practices. Review and
adjustment of Executive's Base Salary shall be done on a basis
comparable to, and applied uniformly with, that utilized for other
executives of Employer and/or its affiliates.
(ii) BONUS PAYMENTS. In addition to Base Salary, Executive shall
be entitled, during the Employment Term, to participate in and receive
payments from all bonus and other incentive compensation plans as in
effect from time to time on the same basis as other executive officers
of Employer.
(iii) OTHER BENEFITS. During the Employment Term, Employer shall
provide to Executive, in addition to Base Salary, such other benefits
of employment (or, with Executive's consent, equivalent benefits) as
are made generally available to executive officers serving in
comparable positions at Employer or its affiliates. Such benefits shall
include participation in any group health, life, disability, or similar
insurance program and in any pension, profit-sharing, deferred
compensation, 401(k) or other similar retirement program provided.
Executive shall also have the right to participate, on the same basis
as
10(c)c-2
30
other executives of Employer, in any stock purchase, stock option or
stock appreciation rights plans, or other stock-based program made
available to such executive officers.
Executive shall be entitled to vacation, sick time, personal days
and other perquisites in the same manner and to the same extent as
provided other executives of 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 section 4(iii)
(except to the extent Executive had previously earned or otherwise
accumulated vested rights therein) following a valid and lawful
termination or discontinuance of such plan, program or perquisite.
5. TERMINATION. This Agreement may be terminated, subject to payment
of the compensation and other benefits described below, upon occurrence of any
of the events described herein. The date on which Executive ceases to be
employed under this Agreement, after giving effect to the period of time
specified in any notice requirement, is referred to as the "Termination Date."
(i) DEATH; DISABILITY; RETIREMENT. This Agreement shall
terminate upon the death, disability or retirement of Executive. As
used in this Agreement, "disability" means Executive's inability, as
the result of physical or mental incapacity, to substantially perform
his duties for a period of 180 consecutive days. If the Executive and
Employer cannot agree as to the existence of a disability, the
determination shall be made by a qualified independent physician
acceptable to both parties or, alternatively, by a physician designated
by the president of the medical society for the county in which
Executive resides. The costs of any such medical examination shall be
borne by 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 the 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 from: (a) any disability plans or disability
insurance programs provided by Employer, and (b) any governmental
social security or workers compensation program.
As used in this Agreement, the term "retirement" shall mean
Executive's retirement in accordance with and pursuant to any generally
applicable retirement plan of Employer or in accordance with any
retirement arrangement established for Executive with his consent.
If termination occurs as a result of death, disability or
retirement, 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 and the plans and programs provided therein,
through the Termination Date and, in addition, shall receive or
continue to receive for the remaining portion of the Employment
10(c)c-3
31
Term all other benefits available to him under any applicable group
health, life, disability or similar insurance program as in effect on
the date of death, disability or retirement.
If, following termination by reason of disability and prior to the
expiration of the then remaining balance of the Employment Term,
Executive becomes able to resume his duties, he shall be reinstated to
his Corporate Position or, if such position has been filled, to a
position as nearly comparable as possible From the date of
reinstatement and for the balance of the Employment Term, Executive
shall be obligated to perform all duties and responsibilities, and
entitled to receive all compensation and other benefits, as provided in
this Agreement.
(ii) CAUSE. Employer may terminate Executive's employment under
this Agreement for cause at any time, and thereafter Employer shall
have no further obligation under this Agreement. 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) A failure by Executive to substantially perform his
duties (other than failure resulting from incapacity) after a
written demand by the Board, which demand identifies, with
reasonable specificity, the manner in which the Board believes
Executive has not substantially performed, and Executive's failure
to cure within a reasonable period of time after his receipt of
the notice;
(b) A criminal conviction of or plea of nolo contendere by
Executive for any act involving dishonesty, breach of trust or a
violation of the banking or savings and loan laws of the State of
Wisconsin or the United States;
(c) A criminal conviction of or plea of nolo contendere by
Executive for the commission of any felony;
(d) A breach of fiduciary duty by Executive involving
personal profit;
(e) A willful violation of any law, rule or order by
Executive (other than traffic violations or similar offenses); or
(f) Incompetence, personal dishonesty or material breach of
any provision of this Agreement or any willful misconduct by
Executive.
For purposes of this subsection 5(ii), 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
Employer.
10(c)c-4
32
(iii) VOLUNTARY TERMINATION BY EXECUTIVE. Executive may
voluntarily terminate employment at any time by giving at least ninety
(90) days' prior written notice to Employer. In such event, Employer
shall have no further obligation hereunder, except that 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 his employment through the
Termination Date.
(iv) TERMINATION BY EXECUTIVE AFTER CHANGE IN CONTROL.
(a) For purposes of this Agreement, a "change in control"
shall be deemed to have occurred if any "individual, entity or
group" (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 l3d-3 under the Exchange Act), directly or indirectly, of
securities representing 25% or more of the voting power of the
securities of Employer or any of Employer's affiliates or becomes
the owner of all or substantially all of the assets of Employer or
any of Employer's affiliates or if the shareholders of Employer or
any affiliate of Employer approve a reorganization, merger or
consolidation of Employer or any affiliates of Employer. "Change
in control" shall not refer to or include any transaction
involving only entities affiliated directly or indirectly with
Employer.
(b) Executive may, at any time within twelve (12) months
following a "change in control," terminate his employment under
this Agreement by giving at least ninety (90) days' prior written
notice to Employer.
(v) TERMINATION BY EXECUTIVE "FOR CAUSE." Executive may
terminate his employment under this Agreement by giving at least ninety
(90) days' prior written notice to Employer at any time after the
occurrence of any of the following without Executive's express written
consent:
(a) Executive is assigned to positions, duties or
responsibilities that are substantially less significant than the
positions, duties and responsibilities provided herein;
(b) Executive is removed from or Employer fails to reelect
Executive to his Corporate Position, except in connection with
termination of Executive's employment for cause, disability or
retirement, or in connection with suspension or termination by or
pursuant to regulatory action;
(c) Executive's Base Salary is reduced other than as the
result of a program applied on a proportionately equivalent basis
to all executives of Employer and its affiliates; or any other
failure by Employer to comply with Section 4(i);
(d) Executive is transferred without his consent to a
location other than a home office or branch office of Employer or
any of Employer's affiliates which
10(c)c-5
33
office is or was operated by Employer or any of Employer's
affiliates prior to a change in control as defined herein.
(vi) SUSPENSION OR TERMINATION REQUIRED BY THE FDIC.
(a) If Executive is suspended and/or temporarily prohibited
from participating in the conduct of Employer's or any of
Employer's affiliates' 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. S1818(e)(3) and (g)(1) ), respectively), 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:
(1) pay Executive all of the compensation withheld while its
obligations under this Agreement were suspended; and (2) reinstate
any of its obligations which were suspended.
(b) If Executive is removed and/or permanently prohibited
from participating in the conduct of Employer's or any of
Employer's affiliates' 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. S1818(e)(4) and (g)(1) ), respectively, the obligations
of Employer under the Agreement shall terminate as of the
effective date of the order, but earned or otherwise vested rights
of Executive to compensation and to any benefits under Section 4
shall not be affected.
(c) If Employer or any of Employer's affiliates is in
default (as defined in Section 3(x)(1) of the Federal Deposit
Insurance Act), all obligations under the Agreement shall
terminate as of the date of default, but this Subsection 5(vi)(c)
shall not affect any vested rights of Executive, including the
right to receive the compensation and benefits set forth in
Section 5(vii) or 5(viii) of this Agreement.
(d) All obligations under the Agreement may be terminated
except to the extent determined that continuation of the contract
is necessary to operation of Employer or any of its affiliates at
the time the Federal Deposit Insurance Corporation ("FDIC") enters
into an agreement to provide assistance to or on behalf of
Employer or any of Employer's affiliates under the authority
contained in Section 13(c) of the Federal Deposit Insurance Act;
or when Employer or any of its affiliates is determined by any
appropriate bank regulatory agency to be in an unsafe or unsound
condition. Any rights of the parties that have been already earned
or otherwise vested, however, shall not be affected by such
action, including the right of the Executive to receive the
compensation and benefits set forth in Section 5(vii) or 5(viii)
of this Agreement.
(vii) BENEFITS UPON OTHER TERMINATION BY EMPLOYER OR UPON
TERMINATION BY EXECUTIVE FOLLOWING A "CHANGE IN CONTROL." If this
Agreement is terminated by Employer other than for death, disability or
retirement under Section 5(i) and other than for "cause" under Section
5(ii) or other than by regulatory action under Section 5(vi), or if
Executive terminates this Agreement following a "change in control"
pursuant to Section
10(c)c-6
34
5(iv)(b), then following the Termination Date Executive shall be
entitled to the benefits described in Section 5(viii).
(viii) BENEFITS UPON TERMINATION BY EXECUTIVE "FOR CAUSE." If
this Agreement is terminated by Executive pursuant to Section 5(v),
then, following the Termination Date;
(a) In lieu of any further salary payments, Executive shall
receive severance payments equal to the sum of the Base Salary in
effect on the Termination Date plus cash bonus for the year prior
to termination times the number of years of the remaining
Employment Term, payable in the amount and at the times provided
in Sections 4(i) and (ii). If termination follows a "change in
control" under Section 5(iv)(b), Executive may elect to receive
the payments specified in the immediately preceding sentence in a
lump sum without any discount, provided that the amount of such
severance payments may not exceed the limitations established in
Section 6.
(b) In addition to the retirement benefits to which
Executive is entitled under tax qualified retirement plans
maintained by Employer (hereinafter collectively referred to as
"Plan"), Executive shall receive as additional severance benefits
a retirement benefit under this Agreement, which (except as
provided below) shall be determined in accordance with, and paid
under this Agreement in the form and at the times provided in, the
Plan. Such benefits shall be determined as though Executive were
fully vested under the Plan and had accumulated (after termination
of this Agreement) the additional years of service and benefit
credits under the Plan that he would have received had he
continued employment with Employer for the balance of the
Employment Term at the highest annual rate of Base Salary in
effect during the twelve (12) months immediately preceding the
Termination Date. Such Base Salary, plus the average of
Executive's cash bonuses, if any, for the past four years, shall
be deemed to represent the compensation received by Executive
during each such additional year for purposes of determining
additional retirement benefits under this Subsection 5(viii).
(c) In addition to other amounts payable to Executive under
this Section 5(viii), Executive shall be entitled to receive all
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,
together with the continuation, without cost to Executive, of
other benefits under Section 4(iii) for the remaining unexpired
Employment Term, all subject to the limitations set forth in
Section 6 below.
(ix) SUSPENSION BY EMPLOYER. Employer in its sole discretion
shall have the right to temporarily suspend Executive from
participating in the conduct of the Employer's or Employer's
affiliates' affairs. If Executive is suspended or temporarily
prohibited from participating in the conduct of Employer's or
Employer's affiliates' business, Employer shall pay Executive all
compensation and provide all benefits pursuant to Section 4 of this
Agreement during the period of such suspension.
10(c)c-7
35
6. LIMITATIONS ON CHANGE IN CONTROL COMPENSATION. In the event
severance benefits under Subsection 5(vii) or 5(viii), 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 Employer or any corporation ("Affiliate") affiliated with
Employer within the meaning of Section 1504 of the Internal Revenue Code of
1986, as amended (the "Code") ), constitute, in the opinion of tax counsel
selected by Employer's independent auditors and acceptable to Executive,
"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 Employer (or an
Affiliate) and includible 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 occurred ("Base Amount"), such Severance Benefits shall be reduced to
an amount the present value of which (when combined with the present value of
any other payments otherwise received or to be received by Executive from
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 (i) Executive
shall have effectively waived his receipt or enjoyment of any such payment or
benefit which triggered the applicability of this Section 6, or (ii) in the
opinion of tax counsel, the Severance Benefits (in their 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
Employer. The Base Amount shall include every type and form of compensation
includible in Executive's gross income in respect of his employment by 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, 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 Employer's independent auditors in
accordance with the principles of Section 280G of the Code.
Executive shall have the right to request that Employer obtain a ruling
from the Internal Revenue Service ("Service") as to whether any or all payments
or benefits determined by such tax counsel are, in the view of the Service,
"parachute payments" under Section 280G. If a ruling is sought pursuant to
Executive's request, no Severance Benefits payable under this Agreement in
excess of the Section 280G limitation shall be made to Executive until after
fifteen (15) days from the date of such ruling; however, Severance Benefits
shall continue to be paid during this time up to the amount of that
limitation. For purposes of this Section 6, Executive and Employer agree to be
bound by the Service's ruling as to whether payments constitute "parachute
payments" under Section 280G. If the Service declines, for any reason, to
provide the ruling requested, the tax counsel's opinion provided with respect to
what payments or benefits constitute "parachute payments" shall control, and
the period during which the Severance Benefits may be deferred shall be extended
to a date fifteen (15) days from the date of the Service's notice indicating
that no ruling will be forthcoming.
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
10(c)c-8
36
that final regulations under Section 280G of the Code may affect the amounts
that may be paid under this Agreement and agree 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
substantially all of the business and/or assets of 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. If such succession is the result of a
"change in control" as defined herein, such assumption shall
specifically preserve to Executive, for 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) provided under this
Agreement upon a "change in control".
As used in this Agreement, Employer shall mean Merchants
and Manufacturers Bancorporation, Inc. and any successor to its
business and/or assets which becomes bound by the terms and
provisions of this Agreement by operation of this Agreement or by
law. Failure of Employer to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle Executive to compensation from
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 5(v). 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) Any rights and obligations of Employer under this
Agreement may be assigned or transferred by Employer to any of its
affiliates prior to a change in control as defined in this
Agreement,
(d) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by Executive and his heirs,
beneficiaries and personal representatives and Employer and any
successor organization or assignee of Employer.
10(c)c-9
37
(ii) NON-COMPETITION/CONFIDENTIALITY PROVISIONS. Executive
acknowledges that the development of personal contacts and
relationships is an essential element of Employer's and Employer's
affiliates' business, that Employer has invested considerable time and
money in his development of such contacts and relationships, that
Employer and its affiliates could suffer irreparable harm if he were to
leave Employer's employment and solicit the business of customers of
Employer or Employer's affiliates and that it is reasonable to protect
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), Executive shall not accept employment with any
Significant Competitor of Employer or of any of Employer's affiliates
for a period of twelve (12) months following such termination. In the
event Executive is terminated by Employer, under Section 5(vii) other
than following a change in control, Executive shall not accept
employment with any Significant Competitor of Employer or of any of
Employer's affiliates for the lesser of (a) the remaining term of the
agreement, or (b) a period of twelve (12) months following such
termination. For purposes of this Agreement, the term "Significant
Competitor" means any financial institution including, 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 with or during the period of this
covenant not to compete, has a home, branch or other office within a
three (3) mile radius of any office operated or maintained by Employer
or any of Employer's affiliates prior to a change in control as defined
in this Agreement.
Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of Employer and its affiliates
and are reasonably limited as to (a) the scope of activities affected,
(b) their duration and geographic scope, and (c) their effect on
Executive and the public. In the event Executive violates the
non-competition provisions set forth herein, 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 Employer
brings legal action for injunctive or other relief, 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 relief is granted, but reduced
by any period between commencement of the period and the date of the
first violation.
Executive acknowledges that as a result of his employment with
Employer or its affiliates Executive has access to confidential
information concerning Employer's business, customers and services.
Executive agrees that during the Employment Term and for a period of
one(l) year following termination of employment, he will not, directly
or indirectly, use, disclose or divulge to any person, agency, firm,
corporation or other entity any confidential or proprietary
information, including, without limitation, customer lists, reports,
files, records or information of any kind pertaining to the business of
Employer or any of its affiliates which Executive acquires or has
access to during the Employment Term. Executive agrees that if he
violates the covenants under this section, Employer shall be entitled
to an accounting and repayments of all profits, compensation,
commissions and
10(c)c-10
38
other remuneration or benefits which the Executive has realized or may
realize as the result of or in connection with any such violation.
Executive further agrees that money damages may be difficult to
ascertain in case of a breach of this covenant, and Executive therefore
agrees that Employer or its affiliates shall be entitled to injunctive
relief in addition to any other remedy to which Employer or its
affiliates may be entitled.
(iii) NOTICE. All notices and other communications provided for
in this Agreement shall be in writing and shall be deemed duly given
when delivered or mailed by United States registered mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Employer:
Merchants and Manufacturers Bancorporation, Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Board of Directors
If to the Executive:
Xxxx Xxxxxxxx
00000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxxxxxx. XX 00000
or to such other address as either party may have furnished to the
other in writing in accordance herewith.
(iv) EXPENSES. If legal proceedings are necessary to enforce or
interpret this Agreement, or to recover damages for breach, the
prevailing party shall be entitled to recover reasonable attorneys'
fees, costs and disbursements of such proceedings, in addition to any
other relief to which such prevailing party may be entitled.
Notwithstanding the foregoing, in the event of legal proceedings to
enforce or interpret this Agreement following a change in control,
Executive shall be entitled to recover from Employer: (a) reasonable
attorneys, fees, costs and disbursements if Executive is the prevailing
party; or (b) reasonable attorneys' fees, costs and disbursements of up
to $7,500 incurred in such proceedings regardless of whether Executive
is the prevailing party. Recovery of attorneys' fees and costs
following a "change in control" shall be in addition to any other
relief to which Executive is 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 as to the amount or requirement of any such
withholding.
10(c)c-11
39
(vi) MISCELLANEOUS. No provision of this Agreement may be
amended, waived or discharged unless such Amendment, waiver or
discharge is agreed to in writing and duly executed by Executive and
Employer or its successor in interest. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior agreements and undertakings, whether
written or oral, between the parties with respect thereto; no
agreements or representations, oral or otherwise, express or implied,
have been made by either party with respect to the subject matter
hereof. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of Wisconsin.
(vii) 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.
(viii) COUNTERPARTS. This Agreement may be executed in several
counterparts, all of which together will constitute one and the same
instrument.
(ix) HEADINGS. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of
any provision of this Agreement.
(x) EFFECTIVE DATE. The effective date of this Agreement shall
be the date indicated in the first paragraph 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
Xxxx Xxxxxxxx (SEAL)
-------------------------------------
Xxxx Xxxxxxxx
MERCHANTS AND MANUFACTURERS
BANCORPORATION, INC.
By: Xxxxxxx X. Xxxxx
----------------------------------------
Title: Chairman CEO
-------------------------------------
10(c)c-12
40
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 2nd day of April, 1993, between
Lincoln Savings Bank, S.A. (the "Bank"), a Wisconsin-chartered savings
association, its successors and assigns, and Xxxxxx X. Xxxxxxx (the
"Executive").
RECITALS
WHEREAS, Executive is a valued, long-term, employee, whose experience
in the industry and continued employment in the position of President and CEO,
will benefit the Bank in the future; and
WHEREAS, effective as of the date of this Agreement, the Bank will
convert from a Wisconsin-chartered mutual savings and loan association to a
Wisconsin-chartered stock savings institution and concurrently issue all of its
capital stock to be outstanding to Merchants and Manufacturers' Bancorporation
("MMB"), a Wisconsin corporation registered under the Bank Holding Company Act
of 1956, as amended, with the Bank thereby becoming a wholly-owned subsidiary
of MMB (the above-described transactions being collectively referred to as the
"Conversion");
WHEREAS, the parties desire to enter into this Agreement to provide
terms and conditions for continued employment relationship between Executive and
Bank following the Conversion;
WHEREAS, the Bank's Board of Directors (hereinafter the "Board") has
approved and authorized the Bank to enter 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, on the terms and conditions set forth herein
for the period provided in Section 2.
2. Term of Employment. This period of Executive's employment under
this Agreement shall be deemed to have commenced as of the date first above
written and shall continue for a period of thirty-six (36) full calendar months
thereafter. Commencing on the first anniversary date of this Agreement, and
continuing at each anniversary date thereafter, the Agreement shall renew for
an additional year such that the remaining terms shall be three (3) years
unless written notice is provided by either party at least
10(c)d-1
41
ten (10) days and not more than twenty (20) days prior to any such anniversary
date, that the Agreement shall terminate at the end of twenty-four (24) months
following such anniversary date. Prior to the renewal or non-renewal of the
Agreement, the Board of Directors will conduct a formal performance evaluation
of the Executive for the purpose of determining whether to extend the Agreement,
and the results thereof shall be included in the minutes of the Board's meeting.
The term of employment under this Agreement, as in effect from time to time,
shall be referred to as the "Employment Term".
3. Position and Duties. Subject to Section 5(iv)(b), Executive shall
serve the Bank as an Executive Officer in the capacity of President and CEO
("Corporate Position"). As such, Executive shall be responsible for
establishment of long term Bank goals and strategies, the integration of the
Bank's operations with those of MMB and serving as an ongoing liaison between
the Bank and MMB, oversight of the Bank's general operation and management level
personnel decisions and provide such other management services as are
customarily performed by persons serving in similar capacities at other banks
and savings and loan associations, and perform such other duties as my be
appropriate to his 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. During the Employment Term the Board of Directors may modify
Executive's duties and responsibilities consistent with continued executive
status; provided, however, there shall be no material change in Executive's
status nor any material increase or decrease in duties and responsibilities
following a "change in control", except as agreed to in writing by Executive.
During the term of this Agreement, Executive shall devote substantially all his
working time and efforts to the business and affairs of the Bank and shall not
engage in any activity which is competitive with or adverse to the business of
the Bank whether done as a partner, director, officer, employee, shareholder of
or consultant or advisor to any other business.
4. Compensation. As compensation for services provided pursuant to
this Agreement, Executive shall receive the compensation and other benefits set
forth below:
(i) Base Salary. During the Employment Term, Executive shall
receive an annual base salary ("Base Salary") in such amount as may from time to
time be approved by the Board. The Base Salary in effect as of the Commencement
Date shall be $114,000. Such amount shall be subject to review and to annual
adjustment by the Board in accordance with the Bank's normal personnel practices
and, once established at a specified annual rate (including the initial rate)
Executive's Base Salary shall not thereafter be reduced without his consent
except pursuant to subsection 5(v)(c) of this Agreement. No increase in Base
Salary or other compensa-
10(c)d-2
42
tion shall limit or reduce any other obligation of the Bank. Executive's Base
Salary and other compensation shall be paid in accordance with the Bank's
regular payroll practices. Review and adjustment of Executive's Base Salary
shall be done on a basis comparable to, and applied uniformly with, that
utilized for other executives of MMB and/or its subsidiaries and shall
incorporate the then current MMB evaluation form (copy of current form attached
hereto as Exhibit A).
(ii) Bonus Payments. In addition to Base Salary, Executive shall
be entitled, during the Employment Term, to participate in and receive payments
from all bonus and other incentive compensation plans as in effect from time to
time, on the same basis as other Bank executive officers or as other comparably
placed executives of MMB and/or its subsidiaries. It is intended that the bonus
and incentive plans (other than the Management Recognition Plan referenced
below) available to Executives shall be the same as or comparable to those
available to executives of MMB and/or its subsidiaries.
(iii) Other Benefits. During the Employment Term, the Bank shall
provide to Executive, in addition to Base Salary, such other benefits of
employment (or, with Executive's consent, equivalent benefits) as are made
generally available to executive officers serving in comparable positions at MMB
or in other MMB unit banks. Such benefits shall include participation in any
group health, life, disability, or similar insurance program and in any pension,
profit-sharing, deferred compensation, 401(k) or other similar retirement
program provided. Executive's benefits under MMB qualified retirement plans
shall be calculated to include vesting service credit for service with the Bank
both before and after its affiliation with MMB. Executive shall also have the
right to participate, on the same basis as other MMB and MMB unit executives in
any stock purchase, stock option or stock appreciation rights plans, or other
stock based program made available to such executive officers and shall also
participate in the Lincoln Savings Bank S.A. Management Recognition Plan ("MRP")
established solely for management of the Bank.
Executive shall be entitled to vacation, sick time, personal days
and other perquisites in the same manner and to the same extent as provided
other MMB and MMB unit executives and to use of an automobile provided by the
Bank consistent with the policy for MMB and MMB unit executives.
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 section 4(iii) (except to the
extent Executive had previously earned or otherwise accumulated vested rights
therein) following a
10(c)d-3
43
valid and lawful termination or discontinuance of such plan, program or
perquisite.
On the date of this Agreement, Executive shall be granted stock
options pursuant to the Qualified Stock Option Plan maintained by MMB to
purchase up to 3,000 shares of common stock of MMB, $1.00 par value, ("MMB
Common Stock") at 100% of the market value of such shares on the date of grant.
Executive shall also receive an MRP grant of MMB Common Stock equal to .75% of
the total shares of stock sold in the conversion as purchased by the MRP in the
Conversion or thereafter.
5. Termination. This Agreement may be terminated, subject to
payment of the compensation and other benefits described below, upon occurrence
of any of the events described herein. The date on which Executive ceases to be
employed under this Agreement, after giving effect to the period of time
specified in any notice requirement, is referred to as the "Termination Date".
(i) Death; Disability; Retirement. This Agreement shall
terminate upon the death, disability or retirement of Executive. As used in this
Agreement, "disability" means Executive's inability, as the result of physical
or mental incapacity, to substantially perform his duties for a period of 180
consecutive days. If the Executive and Bank cannot agree as to existence of a
disability the determination shall be made by a qualified independent physician
acceptable to both parties or, alternatively, by a physician designated by the
president of the medical society for the county in which Executive resides. The
costs of any such medical examination shall be borne by the Bank. 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 the 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 from: (a) any disability plans or disability insurance programs
provided by the Bank and/or (b) any governmental social security or workers
compensation program.
As used in this Agreement, the term "retirement" shall mean
Executive's retirement in accordance with and pursuant to any generally
applicable retirement plan of the Bank or MMB or in accordance with any
retirement arrangement established for Executive with his consent.
If termination occurs as a result of death, disability or
retirement, no additional compensation shall be payable to Executive under this
Agreement except as specifically provided herein. Notwithstanding anything to
the contrary contained herein,
10(c)d-4
44
Executive shall receive all compensation and other benefits to which he was
entitled under Section 4 and the plans and programs provided therein, through
the Termination Date and, in addition, shall receive or continue to receive for
the remaining portion of the Employment Term all other benefits available to him
under any applicable group health, life, disability or similar insurance program
as in effect on the date of death, disability or retirement.
If, following termination by reason of disability and prior to the
expiration of the then remaining balance of the Employment Term, Executive
becomes able to resume his duties, he shall be reinstated to his Corporate
Position or, if such position has been filled, to a position as nearly
comparable as possible. From the date of reinstatement and for the balance of
the Employment Term, Executive shall be obligated to perform all duties and
responsibilities, and entitled to receive all compensation and other benefits,
as provided in this Agreement.
(ii) Cause. The Bank may terminate Executive's employment under
this Agreement for cause at any time, and thereafter Bank shall have no further
obligation under this Agreement. 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) A failure by Executive to substantially perform his duties
(other than failure resulting from incapacity) after a
written demand by the Board, which demand identifies, with
reasonable specificity, the manner in which the Board
believes Executive has not substantially performed, and
Executive's failure to cure within a reasonable period of
time after his receipt of the notice;
(b) A criminal conviction of or plea of nolo contendere by
Executive for any act involving dishonesty, breach of trust
or a violation of the banking or savings and loan laws of
the State of Wisconsin or the United States;
(c) A criminal conviction of or plea of nolo contendere by
Executive for the commission of any felony;
(d) A breach of fiduciary duty by Executive involving personal
profit;
10(c)d-5
45
(e) A willful violation of any law, rule, or order by Executive
(other than traffic violations or similar offenses); or
(f) Incompetence, personal dishonesty or material breach of any
provision of this Agreement or any willful misconduct by
Executive.
For purposes of this Subsection (5)(ii), 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 Bank.
(iii) Voluntary Termination by Executive. Executive may
voluntarily terminate employment at any time by giving at least ninety (90)
days' prior written notice to the Bank. In such event, the Bank shall have no
further obligation hereunder, except that 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 his employment through the Termination Date.
(iv) Termination by Executive After Change in Control.
(a) For purposes of this Agreement, a "change in control"
shall mean and include: (I) any transaction or series of transactions subject to
the Change in Bank Control Act (12 U.S.C. Section 1817(j)), as amended, in which
any person, acting directly, or indirectly, through or in concert with one or
more other persons, acquires control of the Bank; (II) any transaction or series
of transactions subject to Subsection (e) of the Savings and Loan Holding
Company Act (12 U.S.C. Section 1467a(e)), as amended, in which any savings and
loan holding company directly or indirectly, or through one or more subsidiaries
acquires control of the Bank or of a holding company which controls the Bank;
(III) any transaction or series of transactions subject to the Bank Merger Act
(12 U.S.C. Sections 215a and 1828(c)), as amended, in which the surviving bank
or association is controlled by a person or entity other than the holding
company that controlled the Bank immediately prior to the consummation of said
transaction or series of transactions; and (IV) any sale by MMB of more than
half of the assets of the Bank upon approval of less than an eighty percent
(80%) or greater vote by the MMB Board. "Change in control" shall not refer to
or include any subsequent transaction involving only entities controlled
directly or indirectly by MMB, except to the extent that such transaction by
Bank occurs within four (4) years of the Commencement Date and was approved by
less than an eighty percent (80%) or greater vote of the MMB Board of Directors.
10(c)d-6
46
(b) Executive may, at any time within twelve (12) months
following a "change in control", terminate his employment under this Agreement
by giving at least ninety (90) days' prior written notice to the Bank.
(v) Termination by Executive "For Cause." Executive may
terminate his employment under this Agreement by giving at least ninety (90)
days' prior written notice to the Bank at any time after the occurrence of any
of the following without Executive's express written consent:
(a) Executive is assigned to positions, duties or
responsibilities that are substantially less significant
than the positions, duties and responsibilities provided
herein;
(b) Executive is removed from or the Bank fails to reelect
Executive to his Corporate Position, except in connection
with termination of Executive's employment for cause,
disability or retirement;
(c) Executive's Base Salary is reduced other than as the result
of a program applied on a proportionately equivalent basis
to all executives of the Bank; or any other failure by the
Bank to comply with Section 4(i);
(d) Executive is transferred without his consent to a location
other than the current home office of the Bank; or
(vi) Suspension or Termination Required by the FDIC or OTS.
(a) If Executive is suspended and/or temporarily prohibited
from participating in the conduct of the Bank'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), respectively), the Bank'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 Bank shall: (I) pay Executive all of the
compensation withheld while its obligations under this
Agreement were suspended; and (II) reinstate any of its
obligations which were suspended.
10(c)d-7
47
(b) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank'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) and (g)(1), respectively, the obligations of the
Bank under the Agreement shall terminate as of the
effective date of the order, but earned or otherwise vested
rights of Executive to compensation and to any benefits
under Section 4 shall not be affected.
(c) If the Bank is in default (as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act), all obligations under
the Agreement shall terminate as of the date of default,
but this Subsection 5(vi)(c) shall not affect any vested
rights of Executive, including the right to receive the
compensation and benefits set forth in Section 5(vii) or
5(viii) of this Agreement.
(d) All obligations under the Agreement may be terminated,
except to the extent determined that continuation of the
contract is necessary to operation of the Bank: (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 the Resolution Trust
Corporation ("RTC") enters into an agreement to provide
assistance to or on behalf of the Bank 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 the Director or his or her designee
approves a supervisory merger to resolve problems related
to operation of the Bank or when the Bank is determined by
the Director of the OTS to be in an unsafe or unsound
condition. Any rights of the parties that have been already
earned or otherwise vested, however, shall not be affected
by such action, including the right of the Executive to
receive the compensation and benefits set forth in Section
5(vii) or 5(viii) of this Agreement.
(e) In the event that 12 C.F.R. Section 563.39, or any
successor regulation, is repealed, this Section 5(vi) 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:
10(c)d-8
48
(I) the amended or modified provision is required to be
included in this Agreement; or (II) if not so required,
Executive requests that the Agreement be so revised.
(vii) Benefits Upon Other Termination by the Bank or Upon
Termination by Executive Following a "Change in Control." If this Agreement is
terminated by the Bank other than for death, disability or retirement under
Section 5(i) and other than for "cause" under Section 5(ii), or if Executive
terminates this Agreement following a "change in control" pursuant to Section
5(iv)(b), then following the Termination Date Executive shall be entitled to the
benefits described in Section 5(viii).
(viii) Benefits Upon Termination by Executive "For Cause." If this
Agreement is terminated by Executive pursuant to Section 5(v), then, following
the Termination Date:
(a) In lieu of any further salary payments, Executive shall
receive severance payments equal to the lesser of (1) base
salary plus cash bonuses for the year prior to termination,
plus payment of base salary plus cash bonuses for the
remaining term of the Employment Contract or (2) three
times the Executive's base salary plus cash bonuses for the
year prior to termination, payable in the amount and at the
times provided in Section 4(i) and (ii). If termination
follows a "change in control" under Section 5(iv)(b),
Executive may elect to receive the payments specified in
(1) or (2) above, in a lump sum, provided that the amount
of such severance payments may not exceed the limitations
established in Section 6.
(b) In addition to the retirement benefits to which Executive
is entitled under tax qualified retirement plans maintained
by the Bank (hereinafter collectively referred to as
"Plan"), Executive shall receive as additional severance
benefits a retirement benefit under this Agreement, which
(except as provided below) shall be determined in
accordance with, and paid under this Agreement 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 termination of this
Agreement) the additional years of service and benefit
credits under the Plan that he would have received had he
continued employment with the Bank for the balance of the
Employment Term at the highest annual rate
10(c)d-9
49
of Base Salary in effect during the twelve (12) months
immediately preceding the Termination Date. Such Base
Salary, plus the average of Executive's cash bonuses, if
any, for the past four years, shall be deemed to represent
the compensation received by Executive during each such
additional year for purposes of determining additional
retirement benefits under this Subsection 5(viii).
(c) In addition to other amounts payable to Executive under
this Section 5(viii), Executive shall be entitled to
receive all 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, together with the
continuation, without cost to Executive, of other benefits
under Section 4(iii) for the remaining unexpired Employment
Term, all subject to the limitations set forth in Section 6
below.
6. Limitations on Change in Control Compensation. In the event
severance benefits under Subsection 5(vii) or 5(viii), or any other payments or
benefits received or to be received by Executive from the Bank (whether payable
pursuant to the terms of this Agreement, any other plan, agreement or
arrangement with the Bank or any corporation ("Affiliate") affiliated with the
Bank within the meaning of Section 1504 of the Internal Revenue Code of 1986, as
amended (the "Code") ) constitute, in the opinion of tax counsel selected by the
Bank's independent auditors and acceptable to Executive, "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 Bank's (or an Affiliate) and
includible 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 Bank occurred ("Base Amount"), such Severance Benefits shall be
reduced to an amount the present value of which (when combined with the present
value or any other payments or benefits otherwise received or to be received by
Executive from the Bank (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
(i) Executive shall have effectively waived his receipt or enjoyment of any such
payment or benefit which triggered the applicability of this Section 6, or (ii)
in the opinion of tax counsel, the Severance Benefits (in their 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
10(c)d-10
50
reasonable compensation for services actually rendered, within the meaning of
Section 280G (b)(4) of the Code, and such payments are deductible by the Bank.
The Base Amount shall include every type and form of compensation includible in
Executive's gross income in respect of his employment by the Bank (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, 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 Bank's independent auditors in
accordance with the principles of Section 280G of the Code.
Executive shall have the right to request that the Bank obtain a
ruling from the Internal Revenue Service ("Service") as to whether any or all
payments or benefits determined by such tax counsel are, in the view of the
Service, "parachute payments" under Section 280G. If a ruling is sought pursuant
to Executive's request, no Severance Benefits payable under this Agreement in
excess of the Section 280G limitation shall be made to executive until after
fifteen (15) days from the date of such ruling, however Severance Benefits shall
continue to be paid during this time up to the amount of that limitation. For
purposes of this Section 6, Executive and the Bank agree to be bound by the
Service's ruling as to whether payments constitute "parachute payments" under
Section 280G. If the Service declines, for any reason, to provide the ruling
requested, the tax counsel's opinion provided with respect to what payments or
benefits constitute "parachute payments" shall control, and the period during
which the Severance Benefits may be deferred shall be extended to a date fifteen
(15) days from the date of the Service's notice indicating that no ruling would
be forthcoming.
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 agree 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.
10(c)d-11
51
7. General Provisions.
(i) Successors; Binding Agreement.
(a) The Bank will require any successor (whether direct
or indirect, by purchase, merger, consolidation or
otherwise) to substantially all of the business
and/or assets of the Bank ("successor organization")
to expressly assume and agree to perform this
Agreement in the same manner and to the same extent
that the Bank would have been required to perform if
no such succession had taken place. If such
succession is the result of a "change in control" as
defined herein, such assumption shall specifically
preserve to Executive, for 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) provided under this
Agreement upon a "change in control".
As used in this Agreement "Bank" shall mean the Bank
as hereinbefore defined and any successor to its
business and/or assets as aforesaid which becomes
bound by the terms and provisions of this agreement
by operation of this Agreement or law. Failure of
the Bank to obtain such agreement prior to the
effectiveness of any such succession shall be a
breach of this Agreement and shall entitle Executive
to compensation from the Bank 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(v). 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.
10(c)d-12
52
(c) This Agreement shall be binding upon and inure to
the benefit of and be enforceable by Executive and
his heirs, beneficiaries and personal
representatives and the Bank and any successor
organization.
(ii) Non-competition Provision. Executive acknowledges that the
development of personal contacts and relationships is an essential element of
the savings and loan business, that Bank has invested considerable time and
money in his development of such contacts and relationships, that Bank, and its
affiliates included on the consolidated federal income tax return filed by
Bank's parent holding company in which Bank is included ("affiliates"), could
suffer irreparable harm if he were to leave Bank's employment and solicit the
business of customers of Bank and/or Affiliates, and that it is reasonable to
protect Bank and its Affiliates 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),
Executive shall not accept employment with any Significant Competitor of Bank or
of any of Bank's Affiliates for a period of twelve (12) months following such
termination. In the event Executive is terminated by the Bank, under Section
5(vii) other than following a change in control, Executive shall not accept
employment with any Significant Competitor of the Bank, or of any of the Bank's
affiliates, for the lesser of (i) the remaining term of the Agreement, or (ii) a
period of twelve (12) 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 with Bank, or during the period
of this covenant not to compete, has a home, branch or other office within a
three (3) mile radius of any office of the Bank or of MMB or any MMB unit.
Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of the Bank and its Affiliates and are
reasonably limited as to (a) the scope of activities affected, (b) their
duration and geographic scope, and (c) their effect on Executive and the public.
In the event Executive violates the non-competition provisions set forth herein,
the Bank 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 Bank brings legal
action for injunctive or other relief, the Bank 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
10(c)d-13
53
shall be deemed to have the duration specified herein, computed from the date
relief is granted, but reduced by any period between commencement of the period
and the date of the first violation.
(iii) Notice. All notices and other communications provided for in
this Agreement shall be in writing and shall be deemed duly given when delivered
or mailed by United States registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Bank:
c/o Merchants & Manufacturers' Bancorporation
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: President
If to the Executive:
Xx. Xxxxxx X. Xxxxxxx
President & CEO
Lincoln Savings Bank, S.A.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith.
(iv) Expenses. If legal proceedings are necessary to enforce or
interpret this Agreement, or to recover damages for breach, the prevailing party
shall be entitled to recover reasonable attorneys' fees, costs and
disbursements of such proceedings, in addition to any other relief to which such
prevailing party may be entitled. Notwithstanding the foregoing, in the event of
legal proceedings to enforce or interpret this Agreement following a change in
control, Executive shall be entitled to recover from the Bank: (a) reasonable
attorneys' fees, costs and disbursements if Executive is the prevailing party;
or (b) reasonable attorneys' fees, costs and disbursements of up to $7,500
incurred in such proceedings regardless of whether Executive is the prevailing
party. Recovery of attorneys' fees and costs following a "change in control"
shall be in addition to any other relief to which Executive is entitled.
(v) Withholding. The Bank 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. The Bank shall
10(c)d-14
54
be entitled to rely on an opinion of counsel as to the amount or requirement of
any such withholding.
(vi) Miscellaneous. No provision of this Agreement may be
amended, waived or discharged unless such Amendment, waiver or discharge is
agreed to in writing and duly executed by Executive and the Bank or its
successor in interest. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof; no agreements or
representations, oral or otherwise, express or implied, have been made by either
party respect to the subject matter hereof. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Wisconsin.
(vii) 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.
(viii) Counterparts. This Agreement may be executed in several
counterparts, all of which together will constitute one and the same instrument.
(ix) Headings. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of any
provision of this Agreement.
(x) Effective Date. The effective date of this Agreement shall
be the date indicated in the first paragraph 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
Xxxxxx X. Xxxxxxx (SEAL)
----------------------------------
Title: President
----------------------------------
LINCOLN SAVINGS BANK, S.A.
By: Xxxx Xxxxxxxx
-------------------------------------
Title: Exec VP
----------------------------------
10(c)d-15
55
ASSIGNMENT OF EXECUTIVE EMPLOYMENT AGREEMENT
Lincoln Community Bank, f/k/a Lincoln Savings Bank, herein referred to
as assignor, a Wisconsin corporation organized and existing under the laws of
the State of Wisconsin, with its principal office located at 0000 Xxxxx 00
Xxxxxx, Xxxxxxxxx, XX, for value received hereby assigns, orders, and transfers
to M&M Services, Inc. a corporation organized and existing under the laws of the
State of Wisconsin, with its principal office located at 0000 Xxxxxxxxxx Xxxxx,
Xxxxxxxxx, XX, all the rights, title, and interest of assignor in and to the
Executive Employment Agreement made as of January 2, 1996, between Assignor and
Xxxxxx X. Xxxxxxx, said Executive Employment Agreement is incorporated in this
assignment by reference.
The assignment shall be binding on and inure to the benefit of the
parties to this assignment and their successors and assigns.
[Signatures Begin on the Next Page]
10(c)d-16
56
IN WITNESS WHEREOF, Lincoln Community Bank, f/k/a Lincoln Savings Bank,
has caused this assignment to be executed at Milwaukee WI, this 15th day of
April, 1997.
LINCOLN COMMUNITY BANK
By: Xxxxx Xxxx
----------------------------------
Xxxxx Xxxx, Chairman of the Board
Attest: Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx, Secretary
ACCEPTANCE
M&M Services, Inc., assignees, named in the above assignment, accepts the above
Executive Employment Agreement by assignment and agrees to each and all of the
covenants and conditions in such Executive Employment Agreement.
M&M SERVICES, INC
Dated: April 15, 1997 By: Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxxx, Chairman of Board
Attest Xxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxxx, Secretary
CONSENT OF EXECUTIVE
Xxxxxx X. Xxxxxxx, the named Executive in the above Executive
Employment Agreement hereby consents to the above assignment and acknowledges
the validity of the assignment under the terms and conditions of the Executive
Employment Agreement.
Dated: April 15, 1997 Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx
10(c)d-17
57
Exhibit 10(c)e
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 2nd day of April, 1993, between
Lincoln Savings Bank, S.A. (the "Bank"), a Wisconsin-chartered savings
association, its successors and assigns, and Xxxxxxx X. Xxxxxxx (the
"Executive").
RECITALS
WHEREAS, Executive is a valued, long-term, employee, whose experience
in the industry and continued employment in the position of Vice President,
Controller, will benefit the Bank in the future; and
WHEREAS, effective as of the date of this Agreement, the Bank will
convert from a Wisconsin-chartered mutual savings and loan association to a
Wisconsin-chartered stock savings institution and concurrently issue all of its
capital stock to be outstanding to Merchants and Manufacturers' Bancorporation
("MMB"), a Wisconsin corporation registered under the Bank Holding Company Act
of 1956, as amended, with the Bank thereby becoming a wholly-owned subsidiary of
MMB (the above-described transactions being collectively referred to as the
"Conversion");
WHEREAS, the parties desire to enter into this Agreement to provide
terms and conditions for continued employment relationship between Executive
and Bank following the Conversion;
WHEREAS, the Bank's Board of Directors (hereinafter the "Board") has
approved and authorized the Bank to enter 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, on the terms and conditions set forth herein
for the period provided in Section 2.
2. Term of Employment. The period of Executive's employment under
this Agreement shall be deemed to have commenced as of the date set forth above
(the "Commencement Date") and shall continue for a period of thirty-six (36)
full calendar months thereafter. Commencing on the first anniversary date of
this Agreement, and continuing at each anniversary date thereafter, the
Agreement shall renew for an additional year such that the remaining term shall
be three (3) years unless written notice is provided
10(c)e-1
58
by either party at least ten (10) days and not more than twenty (20) days prior
to any such anniversary date, that the Agreement shall terminate at the end of
twenty-four (24) months following such anniversary date. Prior to the renewal or
non-renewal of the Agreement, the Board of Directors of the Bank ("Board") will
conduct a formal performance evaluation of the Executive for the purpose of
determining whether to extend the Agreement, and the results thereof shall be
included in the minutes of the Board's meeting. The term of employment under
this Agreement, as in effect from time to time, shall be referred to as the
"Employment Term".
3. Position and Duties. Subject to Section 5(iv)(b), Executive shall
serve the Bank as an Executive Officer in the capacity of Vice President,
Controller ("Corporate Position"). As such, Executive shall be responsible for
management of the Bank's liquidity investment and mortgage backed securities
portfolios, recommendations with respect to maintenance of the Bank's interest
rate sensitivity position, general budgeting decisions and provide such other
management services as are customarily performed by persons serving in similar
capacities at other banks and savings and loan associations, and perform such
other duties as my be appropriate to his 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. During the Employment Term the
Board of Directors may modify Executive's duties and responsibilities consistent
with continued executive status; provided, however, there shall be no material
change in Executive's status nor any material increase or decrease in duties and
responsibilities following a "change in control", except as agreed to in writing
by Executive. During the term of this Agreement, Executive shall devote
substantially all his working time and efforts to the business and affairs of
the Bank and shall not engage in any activity which is competitive with or
adverse to the business of the Bank whether done as a partner, director,
officer, employee, shareholder of or consultant or advisor to any other
business.
4. Compensation. As compensation for services provided pursuant to
this Agreement, Executive shall receive the compensation and other benefits set
forth below:
(i) Base Salary. During the Employment Term, Executive shall
receive an annual base salary ("Base Salary") in such amount as may from time to
time be approved by the Board. The Base Salary in effect as of the Commencement
Date shall be $48,000. Such amount shall be subject to review and to annual
adjustment by the Board in accordance with the Bank's normal personnel practices
and, once established at a specified annual rate (including the initial rate)
Executive's Base Salary shall not thereafter be reduced without his consent
except pursuant to subsection 5(v)(c) of this Agreement. No increase in Base
Salary or other
10(c)e-2
59
compensation shall limit or reduce any other obligation of the Bank. Executive's
Base Salary and other compensation shall be paid in accordance with the Bank's
regular payroll practices. Review and adjustment of Executive's Base Salary
shall be done on a basis comparable to, and applied uniformly with, that
utilized for other executives of MMB and/or its subsidiaries and shall
incorporate the then current MMB evaluation form (copy of current form attached
hereto as Exhibit A).
(ii) Bonus Payments. In addition to Base Salary, Executive shall
be entitled, during the Employment Term, to participate in and receive payments
from all bonus and other incentive compensation plans as in effect from time to
time, on the same basis as other Bank executive officers or as other comparably
placed executives of MMB and/or its subsidiaries. It is intended that the bonus
and incentive plans (other than the Management Recognition Plan referenced
below) available to Executives shall be the same as or comparable to those
available to executives of MMB and/or its subsidiaries.
(iii) Other Benefits. During the Employment Term, the Bank shall
provide to Executive, in addition to Base Salary, such other benefits of
employment (or, with Executive's consent, equivalent benefits) as are made
generally available to executive officers serving in comparable positions at MMB
or in other MMB unit banks. Such benefits shall include participation in any
group health, life, disability, or similar insurance program and in any pension,
profit-sharing, deferred compensation, 401(k) or other similar retirement
program provided. Executive's benefits under MMB qualified retirement plans
shall be calculated to include vesting service credit for service with the Bank
both before and after its affiliation with MMB. Executive shall also have the
right to participate, on the same basis as other MMB and MMB unit executives in
any stock purchase, stock option or stock appreciation rights plans, or other
stock based program made available to such executive officers and shall also
participate in the Lincoln Savings Bank S.A. Management Recognition Plan
("MRP") established solely for management of the Bank.
Executive shall be entitled to vacation, sick time, personal days
and other perquisites in the same manner and to the xxx extent as provided other
MMB and MMB unit executives.
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 section 4(iii) (except to the
extent Executive had previously earned or otherwise accumulated vested rights
therein) following a valid and lawful termination or discontinuance of such
plan, program or perquisite.
10(c)e-3
60
Executive shall receive an MRP grant of MMB Common Stock equal to
.3% of the total shares of stock sold in the conversion as purchased by the MRP
in the Conversion or thereafter.
5. Termination. This Agreement may be terminated, subject to
payment of the compensation and other benefits described below, upon occurrence
of any of the events described herein. The date on which Executive ceases to be
employed under this Agreement, after giving effect to the period of time
specified in any notice requirement, is referred to as the "Termination Date".
(i) Death; Disability; Retirement. This Agreement shall
terminate upon the death, disability or retirement of Executive. As used in this
Agreement, "disability" means Executive's inability, as the result of physical
or mental incapacity, to substantially perform his duties for a period of 180
consecutive days. if the Executive and Bank cannot agree as to existence of a
disability the determination shall be made by a qualified independent physician
acceptable to both parties or, alternatively, by a physician designated by the
president of the medical society for the county in which Executive resides. The
costs of any such medical examination shall be borne by the Bank. 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 the 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 from: (a) any disability plans or disability insurance programs
provided by the Bank and/or (b) any governmental social security or workers
compensation program.
As used in this Agreement, the term "retirement" shall mean
Executive's retirement in accordance with and pursuant to any generally
applicable retirement plan of the Bank or MMB or in accordance with any
retirement arrangement established for Executive with his consent.
If termination occurs as a result of death, disability or
retirement, 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 and the plans and
programs provided therein, through the Termination Date and, in addition, shall
receive or continue to receive for the remaining portion of the Employment Term
all other benefits available to him under any applicable group health, life,
disability or similar insurance program as in effect on the date of death,
disability or retirement.
10(c)e-4
61
If, following termination by reason of disability and prior to the
expiration of the then remaining balance of the Employment Term, Executive
becomes able to resume his duties, he shall be reinstated to his Corporate
Position or, if such position has been filled, to a position as nearly
comparable as possible. From the date of reinstatement and for the balance of
the Employment Term, Executive shall be obligated to perform all duties and
responsibilities, and entitled to receive all compensation and other benefits,
as provided in this Agreement.
(ii) Cause. The Bank may terminate Executive's employment under this
Agreement for cause at any time, and thereafter Bank shall have no further
obligation under this Agreement. 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) A failure by Executive to substantially perform his duties (other
than failure resulting from incapacity) after a written demand by
the Board, which demand identifies, with reasonable specificity,
the manner in which the Board believes Executive has not
substantially performed, and Executive's failure to cure within a
reasonable period of time after his receipt of the notice;
(b) A criminal conviction of or plea of nolo contendere by Executive
for any act involving dishonesty, breach of trust or a violation
of the banking or savings and loan laws of the State of Wisconsin
or the United States;
(c) A criminal conviction of or plea of nolo contendere by Executive
for the commission of any felony;
(d) A breach of fiduciary duty by Executive involving personal profit;
(e) A willful violation of any law, rule, or order by Executive (other
than traffic violations or similar offenses); or
(f) Incompetence, personal dishonesty or material breach of any
provision of this Agreement or any willful misconduct by
Executive.
10(c)e-5
62
For purposes of this Subsection (5)(ii), 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 Bank.
(iii) Voluntary Termination by Executive. Executive may voluntarily
terminate employment at any time by giving at least ninety (90) days' prior
written notice to the Bank. In such event, the Bank shall have no further
obligation hereunder, except that 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 his
employment through the Termination Date.
(iv) Termination by Executive After Change in Control.
(a) For purposes of this Agreement, a "change in control" shall mean
and include: (I) any transaction or series of transactions subject to the Change
in Bank Control Act (12 U.S.C. Section 1817(j)), as amended, in which any
person, acting directly, or indirectly, through or in concert with one or more
other persons, acquires control of the Bank; (II) any transaction or series of
transactions subject to Subsection (e) of the Savings and Loan Holding Company
Act (12 U.S.C. Section 1467a(e)), as amended, in which any savings and loan
holding company directly or indirectly, or through one or more subsidiaries
acquires control of the Bank or of a holding company which controls the Bank;
(III) any transaction or series of transactions subject to the Bank Merger Act
(12 U.S.C. Sections 215a and 1828(c)), as amended, in which the surviving bank
or association is controlled by a person or entity other than the holding
company that controlled the Bank immediately prior to the consummation of said
transaction or series of transactions; and (IV) any sale by MMB of more than
half of the assets of the Bank upon approval of less than an eighty percent
(80%) or greater vote by the MMB Board. "Change in control" shall not refer to
or include any subsequent transaction involving only entities controlled
directly or indirectly by MMB, except to the extent that such transaction by
Bank occurs within four (4) years of the Commencement Date and was approved by
less than an eighty percent (80%) or greater vote of the MMB Board of Directors.
(b) Executive may, at any time within twelve (12) months following a
"change in control", terminate his employment under this Agreement by giving at
least ninety (90) days' prior written notice to the Bank.
(v) Termination by Executive "For Cause." Executive may terminate his
employment under this Agreement by giving at least ninety (90) days' prior
written notice to the Bank at any time
10(c)e-6
63
after the occurrence of any of the following without Executive's express written
consent:
(a) Executive is assigned to positions, duties or responsibilities
that are substantially less significant than the positions, duties
and responsibilities provided herein;
(b) Executive is removed from or the Bank fails to reelect Executive
to his Corporate Position, except in connection with termination
of Executive's employment for cause, disability or retirement;
(c) Executive's Base Salary is reduced other than as the result of a
program applied on a proportionately equivalent basis to all
executives of the Bank; or any other failure by the Bank to
comply with Section 4(i);
(vi) Suspension or Termination Required by the FDIC or OTS.
(a) If Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank'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),
respectively), the Bank'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 Bank shall: (I) pay Executive all of the
compensation withheld while its obligations under this Agreement
were suspended; and (II) reinstate any of its obligations which
were suspended.
(b) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank'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) and (g)(1),
respectively, the obligations of the Bank under the Agreement
shall terminate as of the effective date of the order, but earned
or otherwise vested rights of Executive to compensation and to any
benefits under Section 4 shall not be affected.
(c) If the Bank is in default (as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act), all obligations under the
Agreement shall terminate as
10(c)e-7
64
of the date of default, but this Subsection 5(vi)(c) shall not
affect any vested rights of Executive, including the right to
receive the compensation and benefits set forth in Section 5(vii)
or 5(viii) of this Agreement.
(d) All obligations under the Agreement may be terminated, except to
the extent determined that continuation of the Contract is
necessary to operation of the Bank: (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 the
Resolution Trust Corporation ("RTC") enters into an agreement to
provide assistance to or on behalf of the Bank 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 the Director or his or her designee approves a supervisory
merger to resolve problems related to operation of the Bank or
when the Bank is determined by the Director of the OTS to be in an
unsafe or unsound condition. Any rights of the parties that have
been already earned or otherwise vested, however, shall not be
affected by such action, including the right of the Executive to
receive the compensation and benefits set forth in Section 5(vii)
or 5(viii) of this Agreement.
(e) In the event that 12 C.F.R. ss 563.39, or any successor
regulation, is repealed, this Section 5(vi) 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: (I) the amended or modified provision
is required to be included in this Agreement; or (II) if not so
required, Executive requests that the Agreement be so revised.
(vii) Benefits Upon Other Termination by the Bank or Upon Termination
by Executive Following a "Change in Control." If this Agreement is terminated by
the Bank other than for death, disability or retirement under Section 5(i) and
other than for "cause" under Section 5(ii), or if Executive terminates this
Agreement following a "change in control" pursuant to Section 5(iv)(b), then
following the Termination Date Executive shall be entitled to the benefits
described in Section 5(viii).
10(c)e-8
65
(viii) Benefits Upon Termination by Executive "For Cause." If this
Agreement is terminated by Executive pursuant to Section 5(v), then, following
the Termination Date:
(a) In lieu of any further salary payments, Executive shall receive
severance payments equal to the lesser of (1) base salary plus
cash bonuses for the year prior to termination, plus payment of
base salary plus cash bonuses for the remaining term of the
Employment Contract or (2) three times the Executive's base salary
plus cash bonuses for the year prior to termination, payable in
the amount and at the times provided in Section 4(i) and (ii). If
termination follows a "change in control" under Section 5(iv)(b),
Executive may elect to receive the payments specified in (1) or
(2) above, in a lump sum, provided that the amount of such
severance payments may not exceed the limitations established in
Section 6.
(b) In addition to the retirement benefits to which Executive is
entitled under tax qualified retirement plans maintained by the
Bank (hereinafter collectively referred to as "Plan"), Executive
shall receive as additional severance benefits a retirement
benefit under this Agreement, which (except as provided below)
shall be determined in accordance with, and paid under this
Agreement 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 termination of this
Agreement) the additional years of service and benefit credits
under the Plan that he would have received had he continued
employment with the Bank for the balance of the Employment Term at
the highest annual rate of Base Salary in effect during the twelve
(12) months immediately preceding the Termination Date. Such Base
Salary, plus the average of Executive's cash bonuses, if any, for
the past four years, shall be deemed to represent the compensation
received by Executive during each such additional year for
purposes of determining additional retirement benefits under this
Subsection 5(viii).
(c) In addition to other amounts payable to Executive under this
Section 5(viii), Executive shall be entitled to receive all other
benefits in which he was vested or to which he was otherwise
entitled under Section 4 and the plans and programs provided
10(c)e-9
66
therein by reason of employment through the Termination Date,
together with the continuation, without cost to Executive, of
other benefits under Section 4(iii) for the remaining unexpired
Employment Term, all subject to the limitations set forth in
Section 6 below.
6. Limitations on Change in Control Compensation. In the event
severance benefits under Subsection 5(vii) or 5(viii) or any other payments
or benefits received or to be received by Executive from the Bank (whether
payable pursuant to the terms of this Agreement, any other plan, agreement or
arrangement with the Bank or any corporation ("Affiliate") affiliated with the
Bank within the meaning of Section 1504 of the Internal Revenue Code of 1986, as
amended (the "Code")) constitute, in the opinion of tax counsel selected by the
Bank's independent auditors and acceptable to Executive, "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 Bank's (or an Affiliate) and
includible 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 Bank occurred ("Base Amount"), such Severance Benefits shall be
reduced to an amount the present value of which (when combined with the present
value or any other payments or benefits otherwise received or to be received by
Executive from the Bank (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
(i) Executive shall have effectively waived his receipt or enjoyment of any such
payment or benefit which triggered the applicability of this Section 6, or (ii)
in the opinion of tax counsel, the Severance Benefits (in their 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 Bank. The Base Amount shall include every type and form of compensation
includible in Executive's gross income in respect of his employment by the Bank
(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, 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 Bank's independent auditors in
accordance with the principles of Section 280G of the Code.
10(c)e-10
67
Executive shall have the right to request that the Bank obtain a ruling
from the Internal Revenue Service ("Service") as to whether any or all
payments or benefits determined by such tax counsel are, in the view of the
Service, "parachute payments" under Section 280G. If a ruling is sought pursuant
to Executive's request, no Severance Benefits payable under this Agreement in
excess of the Section 28OG limitation shall be made to executive until after
fifteen (15) days from the date of such ruling, however Severance Benefits shall
continue to be paid during this time up to the amount of that limitation. For
purposes of this Section 6, Executive and the Bank agree to be bound by the
Service's ruling as to whether payments constitute "parachute payments" under
Section 280G. If the Service declines, for any reason, to provide the ruling
requested, the tax counsel's opinion provided with respect to what payments or
benefits constitute "parachute payments" shall control, and the period during
which the Severance Benefits may be deferred shall be extended to a date fifteen
(15) days from the date of the Service's notice indicating that no ruling would
be forthcoming.
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
28OG of the Code may affect the amounts that may be paid under this Agreement
and agree 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) The Bank will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to
substantially all of the business and/or assets of the Bank
("successor organization") to expressly assume and agree to
perform this Agreement in the same manner and to the same
extent that the Bank would have been required to perform if
no such succession had taken place. If such succession is the
result of a "change in control" as defined herein, such
assumption shall specifically preserve to Executive, for the
then remaining term of this Agreement, the same rights and
remedies (recognizing them as being available and applicable
as the result
10(c)e-11
68
of the "change in control" effectuating said succession)
provided under this Agreement upon a "change in control".
As used in this Agreement "Bank" shall mean the Bank as
hereinbefore defined and any successor to its business and/or
assets as aforesaid which becomes bound by the terms and
provisions of this agreement by operation of this Agreement
or law. Failure of the Bank to obtain such agreement prior to
the effectiveness of any such succession shall be a breach of
this Agreement and shall entitle Executive to compensation
from the Bank 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(v). 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 Executive and his heirs,
beneficiaries and personal representatives and the Bank and
any successor organization.
(ii) Non-competition Provision. Executive acknowledges that the
development of personal contacts and relationships is an essential element of
the savings and loan business, that Bank has invested considerable time and
money in his development of such contacts and relationships, that Bank, and its
affiliates included on the consolidated federal income tax return filed by
Bank's parent holding company in which Bank is included ("affiliates"), could
suffer irreparable harm if he were to leave Bank's employment and solicit the
business of customers of Bank and/or Affiliates, and that it is reasonable to
protect Bank and its Affiliates against competitive activities by Executive.
Executive covenants and agrees, in recognition of the foregoing and in
consideration of he mutual promises contained herein, that in the event of a
voluntary termination of employment by Executive pursuant to Section
10(c)e-12
69
5(iii), Executive shall not accept employment with any Significant Competitor of
Bank or of any of Bank's Affiliates for a period of twelve (12) months following
such termination. In the event Executive is terminated by the Bank, under
Section 5(vii) other than following a change in control, Executive shall not
accept employment with any Significant Competitor of the Bank, or of any of the
Bank's affiliates, for the lesser of (i) the remaining term of the Agreement, or
(ii) a period of twelve (12) 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 with Bank, or during
the period of this covenant not to compete, has a home, branch or other office
within a three (3) mile radius of any office of the Bank or of MMB or any MMB
unit.
Executive agrees that the non-competition provisions set forth herein
are necessary for the protection of the Bank and its Affiliates and are
reasonably limited as to (a) the scope of activities affected, (b) their
duration and geographic scope, and (c) their effect on Executive and the public.
In the event Executive violates the non-competition provisions set forth herein,
the Bank 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 Bank brings legal
action for injunctive or other relief, the Bank shall not, as a result of the
time involved in obtaining such relief, be deprived of the benefit of the full
period of the restrictive covenant. Accordingly, the covenant shall be deemed to
have the duration specified herein, computed from the date relief is granted,
but reduced by any period between commencement of the period and the date of the
first violation.
(iii) Notice. All notices and other communications provided
for in this Agreement shall be in writing and shall be deemed duly given when
delivered or mailed by United States registered mail, return receipt requested,
postage prepaid, addressed as follows;
If to the Bank:
c/o Merchants & Manufacturers' Bancorporation
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: President
1O(c)e-13
70
If to the Executive:
Xxxxxxx X. Xxxxxxx
Lincoln Savings Bank, S.A.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith.
(iv) Expenses. If legal proceedings are necessary to enforce
or interpret this Agreement, or to recover damages for breach, the prevailing
party shall be entitled to recover reasonable attorneys' fees, costs and
disbursements of such proceedings, in addition to any other relief to which such
prevailing party may be entitled. Notwithstanding the foregoing, in the event of
legal proceedings to enforce or interpret this Agreement following a change in
control, Executive shall be entitled to recover from the Bank: (a) reasonable
attorneys' fees, costs and disbursements if Executive is the prevailing party;
or (b) reasonable attorneys' fees, costs and disbursements of up to $7,500
incurred in such proceedings regardless of whether Executive is the prevailing
party. Recovery of attorneys' fees and costs following a "change in control"
shall be in addition to any other relief to which Executive is entitled.
(v) Withholding. The Bank 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. The Bank shall be entitled to rely on an opinion of
counsel as to the amount or requirement of any such withholding.
(vi) Miscellaneous. No provision of this Agreement may be
amended, waived or discharged unless such Amendment, waiver or discharge is
agreed to in writing and duly executed by Executive and the Bank or its
successor in interest. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof; no agreements or
representations, oral or otherwise, express or implied, have been made by either
party respect to the subject matter hereof. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Wisconsin.
(vii) 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.
10(c)e-14
71
(viii) Counterparts. This Agreement may be executed in several
counterparts, all of which together will constitute one and the same instrument.
(ix) Headings. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of any
provision of this Agreement.
(x) Effective Date. The effective date of this Agreement shall be
the date indicated in the first paragraph 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/ Xxxxxxx X. Xxxxxxx (SEAL)
-----------------------
Title: VP / Controller
-----------------------
LINCOLN SAVINGS BANK, S.A.
By: Title: Xxxxxx X. Xxxxxxx
--------------------------
Title: President
-----------------------
10(c)e-15
72
ASSIGNMENT OF EXECUTIVE EMPLOYMENT AGREEMENT
Lincoln Savings Bank, S.A., herein referred to as assignor, a savings and
loan association organized and existing under the laws of the State of
Wisconsin, with its principal office located at 0000 Xxxxx 00xx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx, for value received hereby assigns, orders and transfers to
Merchants and Manufacturers Bancorporation, Inc., a corporation organized and
existing under the laws of the State of Wisconsin, with its principal office
located at 0000 Xxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx, all the rights, title
and interest of assignor in and to the Executive Employment Agreement made as of
April 2, 1993 between Assignor and Xxxxxxx Xxxxxxx, a copy of which Executive
Employment Agreement is attached to and incorporated in this assignment by
reference.
The above assignment is made pursuant to the conversion of assignor from a
mutual to stock form of organization and the acquisition of the converted
association by Merchants and Manufacturers Bancorporation, Inc. The assignment
shall be binding on and inure to the benefit of the parties to this assignment
and their successors and assigns.
[Signatures Begin on the Next Page]
10(c)e-16
73
IN WITNESS WHEREOF, Lincoln Savings Bank, S.A. has caused this assignment
to be executed at Milwaukee, Wisconsin this 15th day of April, 1993.
LINCOLN SAVINGS BANK, S.A.
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Xxxxxx Xxxxxxx, President
Attest: /s/ Xxxx Xxx X'Xxxx
------------------------------
Xxxx Xxx X'Xxxx, Secretary
ACCEPTANCE
Merchants and Manufacturers Bancorporation, Inc., assignee, named in the
above assignment, accepts the above Executive Employment Agreement by
assignment and agrees to each and all of the covenants and conditions in such
Executive Employment Agreement.
MERCHANTS AND MANUFACTURERS
BANCORPORATION, INC.
Dated: April 15, 1993 By: /s/ Xxxxxxx Xxxxx
---------------------------------
Xxxxxxx Xxxxx, Chairman of the
Board of Directors
Executive Officer
Attest: /s/ Xxxxx Xxxxxxxxxxx
-----------------------------
Xxxxx Xxxxxxxxxxx, Secretary
CONSENT OF EXECUTIVE
Xxxxxxx Xxxxxxx, the named Executive in the above Executive Employment
Agreement hereby consents to the above assignment and acknowledges the validity
of the assignment under the terms and conditions of the Executive Employment
Agreement.
Dated: April 15, 1993 /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxx
10(c)e-17
74
EXHIBIT 10(c)f
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 2nd day of April, 1993, between
Lincoln Savings Bank, S.A. (the "Bank") a Wisconsin-chartered savings
association, its successors and assigns, and Xxxxxx X. Xxxxx (the "Executive").
RECITALS
WHEREAS, Executive is a valued, long-term, employee, whose experience
in the industry and continued employment in the position of Senior Vice
President, Director of Lending Operations, will benefit the Bank in the future;
and
WHEREAS, effective as of the date of this Agreement, the Bank will
convert from a Wisconsin-chartered mutual savings and loan association to a
Wisconsin-chartered stock savings institution and concurrently issue all of its
capital stock to be outstanding to Merchants and Manufacturers' Bancorporation
("MMB"), a Wisconsin corporation registered under the Bank Holding Company Act
of 1956, as amended, with the Bank thereby becoming a wholly-owned subsidiary of
MMB (the above-described transactions being collectively referred to as the
"Conversion");
WHEREAS, the parties desire to enter into this Agreement to provide
terms and conditions for continued employment relationship between Executive and
Bank following the Conversion;
WHEREAS, the Bank's Board of Directors (hereinafter the "Board") has
approved and authorized the Bank to enter 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, on the terms and conditions set forth herein
for the period provided in Section 2.
2. Term of Employment. The period of Executive's employment under this
Agreement shall be deemed to have commenced as of the date set forth above (the
"Commencement Date") and shall continue for a period of thirty-six (36) full
calendar months thereafter. Commencing on the first anniversary date of this
Agreement, and continuing at each anniversary date thereafter, the Agreement
shall renew for an additional year such that the remaining term shall be three
(3) years unless written notice is provided
10(c)f-1
75
by either party at least ten (10) days and not more than twenty (20) days prior
to any such anniversary date, that the Agreement shall terminate at the end of
twenty-four (24) months following such anniversary date. Prior to the renewal or
non-renewal of the Agreement, the Board of Directors of the Bank ("Board") will
conduct a formal performance evaluation of the Executive for the purpose of
determining whether to extend the Agreement, and the results thereof shall be
included in the minutes of the Board's meeting. The term of employment under
this Agreement, as in effect from time to time, shall be referred to as the
"Employment Term".
3. Position and Duties. Subject to Section 5(iv)(b), Executive shall
serve the Bank as an Executive Officer in the capacity of Senior Vice President,
Director of Lending Operations ("Corporate Position"). As such, Executive shall
be responsible for establishment of the Bank's lending policies and programs,
development of new loan programs, general oversight and implementation of the
Bank's lending and lending related activities, and provide such other management
services as are customarily performed by persons serving in similar capacities
at other banks and savings and loan associations, and perform such other duties
as my be appropriate to his 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. During the Employment Term the Board of Directors
may modify Executive's duties and responsibilities consistent with continued
executive status; provided, however, there shall be no material change in
Executive's status nor any material increase or decrease in duties and
responsibilities following a "change in control", except as agreed to in writing
by Executive. During the term of this Agreement, Executive shall devote
substantially all his working time and efforts to the business and affairs of
the Bank and shall not engage in any activity which is competitive with or
adverse to the business of the Bank whether done as a partner, director,
officer, employee, shareholder of or consultant or advisor to any other
business.
4. Compensation. As compensation for services provided pursuant to
this Agreement, Executive shall receive the compensation and other benefits set
forth below:
(i) Base Salary. During the Employment Term, Executive shall
receive an annual base salary ("Base Salary") in such amount as may from time to
time be approved by the Board. The Base Salary in effect as of the Commencement
Date shall be $56,500. Such amount shall be subject to review and to annual
adjustment by the Board in accordance with the Bank's normal personnel practices
and, once established at a specified annual rate (including the initial rate)
Executive's Base Salary shall not thereafter be reduced without his consent
except pursuant to subsection 5(v)(c) of this Agreement. No increase in Base
Salary or other
10(c)f-2
76
compensation shall limit or reduce any other obligation of the Bank. Executive's
Base Salary and other compensation shall be paid in accordance with the Bank's
regular payroll practices. Review and adjustment of Executive's Base Salary
shall be done on a basis comparable to, and applied uniformly with, that
utilized for other executives of MMB and/or its subsidiaries and shall
incorporate the then current MMB evaluation form (copy of current form attached
hereto as Exhibit A).
(ii) Bonus Payments. In addition to Base Salary, Executive shall
be entitled, during the Employment Term, to participate in and receive payments
from all bonus and other incentive compensation plans as in effect from time to
time, on the same basis as other Bank executive officers or as other comparably
placed executives of MMB and/or its subsidiaries. It is intended that the bonus
and incentive plans (other than the Management Recognition Plan referenced
below) available to Executives shall be the same as or comparable to those
available to executives of MMB and/or its subsidiaries.
(iii) Other Benefits. During the Employment Term, the Bank shall
provide to Executive, in addition to Base Salary, such other benefits of
employment (or, with Executive's consent, equivalent benefits) as are made
generally available to executive officers serving in comparable positions at MMB
or in other MMB unit banks. Such benefits shall include participation in any
group health, life, disability, or similar insurance program and in any pension,
profit-sharing, deferred compensation, 401(k) or other similar retirement
program provided. Executive's benefits under MMB qualified retirement plans
shall be calculated to include vesting service credit for service with the Bank
both before and after its affiliation with MMB. Executive shall also have the
right to participate, on the same basis as other MMB and MMB unit executives in
any stock purchase, stock option or stock appreciation rights plans, or other
stock based program made available to such executive officers and shall also
participate in the Lincoln Savings Bank S.A. Management Recognition Plan ("MRP")
established solely for management of the Bank.
Executive shall be entitled to vacation, sick time, personal days and
other perquisites in the same manner and to the same extent as provided other
MMB and MMB unit executives.
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 section 4(iii) (except to the
extent Executive had previously earned or otherwise accumulated vested rights
therein) following a valid and lawful termination or discontinuance of such
plan, program or perquisite.
10(c)f-3
77
On the date of this Agreement, Executive shall be granted stock
options pursuant to the Qualified Stock Option Plan maintained by MMB to
purchase up to 2,000 shares of common stock of MMB, $1.00 par value, ("MMB
Common Stock") at 100% of the market value of such shares on the date of grant.
Executive shall also receive an MRP grant of MMB Common Stock equal to .75% of
the total shares of stock sold in the conversion as purchased by the MRP in the
Conversion or thereafter.
5. Termination. This Agreement may be terminated, subject to payment
of the compensation and other benefits described below, upon occurrence of any
of the events described herein. The date on which Executive ceases to be
employed under this Agreement, after giving effect to the period of time
specified in any notice requirement, is referred to as the "Termination Date".
(i) Death, Disability; Retirement. This Agreement shall terminate
upon the death, disability or retirement of Executive. As used in this
Agreement, "disability" means Executive's inability, as the result of physical
or mental incapacity, to substantially perform his duties for a period of 180
consecutive days. If the Executive and Bank cannot agree as to existence of a
disability the determination shall be made by a qualified independent physician
acceptable to both parties or, alternatively, by a physician designated by the
president of the medical society for the county in which Executive resides. The
costs of any such medical examination shall be borne by the Bank. 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 the 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 from: (a) any disability plans or disability insurance programs
provided by the Bank and/or (b) any governmental social security or workers
compensation program.
As used in this Agreement, the term "retirement" shall mean
Executive's retirement in accordance with and pursuant to any generally
applicable retirement plan of the Bank or MMB or in accordance with any
retirement arrangement established for Executive with his consent.
If termination occurs as a result of death, disability or retirement,
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 and the plans and programs provided
therein, through the Termination Date and, in addition, shall
10(c)f-4
78
receive or continue to receive for the remaining portion of the Employment Term
all other benefits available to him under any applicable group health, life,
disability or similar insurance program as in effect on the date of death,
disability or retirement.
If, following termination by reason of disability and prior to the
expiration of the then remaining balance of the Employment Term, Executive
becomes able to resume his duties, he shall be reinstated to his Corporate
Position or, if such position has been filled, to a position as nearly
comparable as possible. From the date of reinstatement and for the balance of
the Employment Term, Executive shall be obligated to perform all duties and
responsibilities, and entitled to receive all compensation and other benefits,
as provided in this Agreement.
(ii) Cause. The Bank may terminate Executive's employment under this
Agreement for cause at any time, and thereafter Bank shall have no further
obligation under this Agreement. 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) A failure by Executive to substantially perform his duties (other
than failure resulting from incapacity) after a written demand by
the Board, which demand identifies, with reasonable specificity,
the manner in which the Board believes Executive has not
substantially performed, and Executive's failure to cure within a
reasonable period of time after his receipt of the notice;
(b) A criminal conviction of or plea of nolo contendere by Executive
for any act involving dishonesty, breach of trust or a violation
of the banking or savings and loan laws of the State of Wisconsin
or the United States;
(c) A criminal conviction of or plea of nolo contendere by Executive
for the commission of any felony;
(d) A breach of fiduciary duty by Executive involving personal profit;
10(c)f-5
79
(e) A willful violation of any law, rule, or order by Executive (other
than traffic violations or similar offenses); or
(f) Incompetence, personal dishonesty or material breach of any
provision of this Agreement or any willful misconduct by
Executive.
For purposes of this Subsection (5)(ii), no act, or failure to act,
an 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 Bank.
(iii) Voluntary Termination by Executive. Executive may voluntarily
terminate employment at any time by giving at least ninety (90) days' prior
written notice to the Bank. In such event, the Bank shall have no further
obligation hereunder, except that 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 his
employment through the Termination Date.
(iv) Termination by Executive After Change in Control.
(a) For purposes of this Agreement, a "change in control" shall mean
and include: (I) any transaction or series of transactions subject to the Change
in Bank Control Act (12 U.S.C. s 1817(j)), as amended, in which any person,
acting directly, or indirectly, through or in concert with one or more other
persons, acquires control of the Bank; (II) any transaction or series of
transactions subject to Subsection (e) of the Savings and Loan Holding Company
Act (12 U.S.C. ss.1467a(e)), as amended, in which any savings and loan holding
company directly or indirectly, or through one or more subsidiaries acquires
control of the Bank or of a holding company which controls the Bank; (III) any
transaction or series of transactions subject to the Bank Merger Act (12 U.S.C.
ss 215a and 1828(c)), as amended, in which the surviving bank or association
is controlled by a person or entity other than the holding company that
controlled the Bank immediately prior to the consummation of said transaction or
series of transactions; and (IV) any sale by MMB of more than half of the assets
of the Bank upon approval of less than an eighty percent (80%) or greater vote
by the MMB Board. "Change in control" shall not refer to or include any
subsequent transaction involving only entities controlled directly or indirectly
by MMB, except to the extent that such transaction by Bank occurs within four
(4) years of the Commencement Date and was approved by less than an eighty
percent (80%) or greater vote of the MMB Board of Directors.
10(c)f-6
80
(b) Executive may, at any time within twelve (12) months following a
"change in control", terminate his employment under this Agreement by giving at
least ninety (90) days' prior written notice to the Bank.
(v) Termination by Executive "For Cause." Executive may terminate his
employment under this Agreement by giving at least ninety (90) days' prior
written notice to the Bank at any time after the occurrence of any of the
following without Executive's express written consent:
(a) Executive is assigned to positions, duties or responsibilities
that are substantially less significant than the positions, duties
and responsibilities provided herein;
(b) Executive is removed from or the Bank fails to reelect Executive
to his Corporate Position, except in connection with termination
of Executive's employment for cause, disability or retirement;
(c) Executive's Base Salary is reduced other than as the result of a
program applied on a proportionately equivalent basis to all
executives of the Bank; or any other failure by the Bank to comply
with Section 4(i);
(vi) Suspension or Termination Required by the FDIC or OTS.
(a) If Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank'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. ss 1818(e)(3) and (g)(1),
respectively), the Bank'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 Bank shall: (I) pay Executive all of the
compensation withheld while its obligations under this Agreement
were suspended; and (II) reinstate any of its obligations which
were suspended.
(b) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank'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. ss 1818(e)(4) and (g)(1),
respectively, the obligations of the Bank under the
10(c)f-7
81
Agreement shall terminate as of the effective date of the order,
but earned or otherwise vested rights of Executive to compensation
and to any benefits under Section 4 shall not be affected.
(c) If the Bank is in default (as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act), all obligations under the
Agreement shall terminate as of the date of default, but this
Subsection 5(vi)(c) shall not affect any vested rights of
Executive, including the right to receive the compensation and
benefits set forth in Section 5(vii) or 5(viii) of this Agreement.
(d) All obligations under the Agreement may be terminated, except to
the extent determined that continuation of the contract is
necessary to operation of the Bank: (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 the
Resolution Trust Corporation ("RTC") enters into an agreement to
provide assistance to or on behalf of the Bank 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 the Director or his or her designee approves a supervisory
merger to resolve problems related to operation of the Bank or
when the Bank is determined by the Director of the OTS to be in an
unsafe or unsound condition. Any rights of the parties that have
been already earned or otherwise vested, however, shall not be
affected by such action, including the right of the Executive to
receive the compensation and benefits set forth in Section 5(vii)
or 5(viii) of this Agreement.
(e) In the event that 12 C.F.R. ss 563.39, or any successor
regulation, is repealed, this Section 5(vi) shall cease to be
effective on the effective date of such repeal. In the event that
12 C.F.R. ss 5563.39, or any successor regulation, is amended or
modified, this Agreement shall be revised to reflect the amended
or modified provisions if: (I) the amended or modified provision
is required to be included in this Agreement; or (II) if not so
required, Executive requests that the Agreement be so revised.
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82
(vii) Benefits Upon Other Termination by the Bank or Upon Termination by
Executive Following a "Change in Control." If this Agreement is terminated by
the Bank other than for death, disability or retirement under Section 5(i) and
other than for "cause" under Section 5(ii), or if Executive terminates this
Agreement following a "change in control" pursuant to Section 5(iv)(b), then
following the Termination Date Executive shall be entitled to the benefits
described in Section 5(viii).
(viii) Benefits Upon Termination by Executive "For Cause." If this
Agreement is terminated by Executive pursuant to Section 5(v), then, following
the Termination Date:
(a) In lieu of any further salary payments, Executive shall receive
severance payments equal to the lesser of (1) base salary plus
cash bonuses for the year prior to termination, plus payment of
base salary plus cash bonuses for the remaining term of the
Employment Contract or (2) three times the Executive's base salary
plus cash bonuses for the year prior to termination, payable in
the amount and at the times provided in Section 4(i) and (ii). If
termination follows a "change in control" under Section 5(iv)(b),
Executive may elect to receive the payments specified in (1) or
(2) above, in a lump sum, provided that the amount of such
severance payments may not exceed the limitations established in
Section 6.
(b) In addition to the retirement benefits to which Executive is
entitled under tax qualified retirement plans maintained by the
Bank (hereinafter collectively referred to as "Plan"), Executive
shall receive as additional severance benefits a retirement
benefit under this Agreement, which (except as provided below)
shall be determined in accordance with, and paid under this
Agreement 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 termination of
this Agreement) the additional years of service and benefit
credits under the Plan that he would have received had he
continued employment with the Bank for the balance of the
Employment Term at the highest annual rate of Base Salary in
effect during the twelve (12) months immediately preceding the
Termination Date. Such Base Salary, plus the average of
Executive's cash bonuses, if any, for the past four years, shall
be deemed to represent the compensation
10(c)f-9
83
received by Executive during each such additional year for
purposes of determining additional retirement benefits under this
Subsection 5(viii).
(c) In addition to other amounts payable to Executive under this
Section 5(viii), Executive shall be entitled to receive all 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,
together with the continuation, without cost to Executive, of
other benefits under Section 4(iii) for the remaining unexpired
Employment Term, all subject to the limitations set forth in
Section 6 below.
6. Limitations on Change in Control Compensation. In the event
severance benefits under Subsection 5 (vii) or 5 (viii), or any other payments
or benefits received or to be received by Executive from the Bank (whether
payable pursuant to the terms of this Agreement, any other plan, agreement or
arrangement with the Bank or any corporation ("Affiliate") affiliated with the
Bank within the meaning of Section 1504 of the Internal Revenue Code of 1986, as
amended (the "Code")) constitute, in the opinion of tax counsel selected by the
Bank's independent auditors and acceptable to Executive, "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 Bank's (or an Affiliate) and
includible 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 Bank occurred ("Base Amount"), such Severance Benefits shall
be reduced to an amount the present value of which (when combined with the
present value or any other payments or benefits otherwise received or to be
received by Executive from the Bank (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 (i) Executive shall have effectively waived his receipt or enjoyment
of any such payment or benefit which triggered the applicability of this Section
6, or (ii) in the opinion of tax counsel, the Severance Benefits (in their 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 Bank. The Base Amount shall include every type
and form of compensation includible in Executive's gross income in respect of
his employment by the Bank (or an Affiliate), except to
10(c)f-10
84
the extent otherwise provided in temporary or final regulations promulgated
under Section 280G(b) of the Code. For purposes of this Section 6, 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 Bank's independent auditors in accordance with the principles of Section
280G of the Code.
Executive shall have the right to request that the Bank obtain a
ruling from the Internal Revenue Service ("Service") as to whether any or all
payments or benefits determined by such tax counsel are, in the view of the
Service, "parachute payments" under Section 280G. If a ruling is sought pursuant
to Executive's request, no Severance Benefits payable under this Agreement in
excess of the Section 280G limitation shall be made to executive until after
fifteen (15) days from the date of such ruling, however Severance Benefits shall
continue to be paid during this time up to the amount of that limitation. For
purposes of this Section 6, Executive and the Bank agree to be bound by the
Service's ruling as to whether payments constitute "parachute payments" under
Section 280G. If the Service declines, for any reason, to provide the ruling
requested, the tax counsel's opinion provided with respect to what payments or
benefits constitute "parachute payments" shall control, and the period during
which the Severance Benefits may be deferred shall be extended to a date fifteen
(15) days from the date of the Service's notice indicating that no ruling would
be forthcoming.
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 agree 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) The Bank will require any successor (whether direct or
indirect, by purchase, merger, consolidation or
otherwise) to substantially all of the business and/or
assets of the Bank ("successor organization") to
expressly assume and agree to perform this Agreement in
the
10(c)f-11
85
same manner and to the same extent that the Bank would have
been required to perform if no such succession had taken
place. If such succession is the result of a "change in
control" as defined herein, such assumption shall
specifically preserve to Executive, for 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) provided under this Agreement upon a "change in
control".
As used in this Agreement "Bank" shall mean the Bank as
hereinbefore defined and any successor to its business
and/or assets as aforesaid which becomes bound by the terms
and provisions of this agreement by operation of this
Agreement or law. Failure of the Bank to obtain such
agreement prior to the effectiveness of any such succession
shall be a breach of this Agreement and shall entitle
Executive to compensation from the Bank 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(v). 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 Executive and his heirs,
beneficiaries and personal representatives and the Bank and
any successor organization.
(ii) Non-competition Provision. Executive acknowledges that the
development of personal contacts and relationships is an essential element of
the savings and loan business, that Bank has invested considerable time and
money in his development of such contacts and relationships, that Bank, and its
affiliates included
10(c)f-12
86
on the consolidated federal income tax return filed by Bank's parent holding
company in which Bank is included ("affiliates"), could suffer irreparable
harm if he were to leave Bank's employment and solicit the business of
customers of Bank and/or Affiliates, and that it is reasonable to protect Bank
and its Affiliates 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), Executive
shall not accept employment with any Significant Competitor of Bank or of any of
Bank's Affiliates for a period of twelve (12) months following such termination.
In the event Executive is terminated by the Bank, under Section 5(vii) other
than following a change in control, Executive shall not accept employment with
any Significant Competitor of the Bank, or of any of the Bank's affiliates, for
the lesser of (i) the remaining term of the Agreement, or (ii) a period of
twelve (12) 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 with Bank, or during the period of this covenant not
to compete, has a home, branch or other office within a three (3) mile radius of
any office of the Bank or of MMB or any MMB unit.
Executive agrees that the non-competition provisions set forth herein
are necessary for the protection of the Bank and its Affiliates and are
reasonably limited as to (a) the scope of activities affected, (b) their
duration and geographic scope, and (c) their effect on Executive and the public.
In the event Executive violates the non-competition provisions set forth herein,
the Bank 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 Bank brings legal
action for injunctive or other relief, the Bank shall not, as a result of the
time involved in obtaining such relief, be deprived of the benefit of the full
period of the restrictive covenant. Accordingly, the covenant shall be deemed to
have the duration specified herein, computed from the date relief is granted,
but reduced by any period between commencement of the period and the date of the
first violation.
(iii) Notice. All notices and other communications provided for
in this Agreement shall be in writing and shall be deemed duly given when
delivered or mailed by United States registered mail, return receipt requested,
postage prepaid, addressed as follows:
10(c)f-13
87
If to the Bank:
c/o Merchants & Manufacturers' Bancorporation
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: President
If to the Executive:
Xxxxxx X. Xxxxx
Lincoln Savings Bank, S.A.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith.
(iv) Expenses. If legal proceedings are necessary to enforce or
interpret this Agreement, or to recover damages for breach, the prevailing party
shall be entitled to recover reasonable attorneys' fees, costs and disbursements
of such proceedings, in addition to any other relief to which such prevailing
party may be entitled. Notwithstanding the foregoing, in the event of legal
proceedings to enforce or interpret this Agreement following a change in
control, Executive shall be entitled to recover from the Bank: (a) reasonable
attorneys' fees, costs and disbursements if Executive is the prevailing party;
or (b) reasonable attorneys' fees, costs and disbursements of up to $7,500
incurred in such proceedings regardless of whether Executive is the prevailing
party. Recovery of attorneys' fees and costs following a "change in control"
shall be in addition to any other relief to which Executive is entitled.
(v) Withholding. The Bank 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. The Bank shall be entitled to rely on an opinion of
counsel as to the amount or requirement of any such withholding.
(vi) Miscellaneous. No provision of this Agreement may be
amended, waived or discharged unless such Amendment, waiver or discharge is
agreed to in writing and duly executed by Executive and the Bank or its
successor in interest. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof; no agreements or
representations, oral or otherwise, express or implied, have been made by either
party respect to the subject matter hereof. The validity, interpretation,
10(c)f-14
88
construction and performance of this Agreement shall be governed by the laws of
the State of Wisconsin.
(vii) 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.
(viii) Counterparts. This Agreement may be executed in several
counterparts, all of which together will constitute one and the same instrument.
(ix) Headings. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of any
provision of this Agreement.
(x) Effective Date. The effective date of this Agreement
shall be the date indicated in the first paragraph 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/ Xxxxxx X. Xxxxx (SEAL)
-----------------------------
Title: Senior Vice President
----------------------------
LINCOLN SAVINGS BANK, S.A.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Title: President
----------------------------
10(c)f-15
89
ASSIGNMENT OF EXECUTIVE EMPLOYMENT AGREEMENT
Lincoln Savings Bank, herein referred to as assignor, a Wisconsin
corporation organized and existing under the laws of the State of Wisconsin,
with its principal office located at 0000 Xxxxx 00 Xxxxxx, Xxxxxxxxx, XX, for
value received hereby assigns, orders, and transfers to M&M Services, Inc., a
corporation organized and existing under the laws of the State of Wisconsin,
with its principal office located at 0000 Xxxxxxxxxx xxxxx, Xxxxxxxxx, XX, all
the rights, title, and interest of assignor in and to the Executive Employment
Agreement made as of April 2, 1993, between Assignor and Xxxxxx X. Xxxxx; said
Executive Employment Agreement is incorporated in this assignment by
reference.
The assignment shall be binding on and inure to the benefit of the parties
to this assignment and their successors and assigns.
(Signatures Begin on the Next Page]
10(c)f-16
90
IN WITNESS WHEREOF, Lincoln Savings Bank has caused this assignment to
be executed at Milwaukee, WI this 23rd day of May, 1995.
LINCOLN SAVINGS BANK
By: /s/ Xxxxx Xxxx
---------------------------------------
Xxxxx Xxxx, Chairman of the Board
Attest: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx, Secretary
ACCEPTANCE
M&M Services, Inc., assignees, named in the above assignment, accepts
the above Executive Employment Agreement by assignment and agrees to each and
all of the covenants and conditions in such Executive Employment Agreement.
M&M SERVICES, INC.
Dated, May 23rd, 1995 By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx, Chairman of Board
Attest: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxxx, Secretary
CONSENT OF EXECUTIVE
Xxxxxx X. Xxxxx, the named Executive in the above Executive Employment
Agreement hereby consents to the above assignment and acknowledges the validity
of the assignment under the terms and conditions of the Executive Employment
Agreement.
Dated: May 23rd, 1995 /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
10(c)f-17
91
ASSIGNMENT OF EXECUTIVE EMPLOYMENT AGREEMENT
M&M Services, Inc., herein referred to as assignor, a Wisconsin corporation
organized and existing under the laws of the State of Wisconsin, with its
principal office located at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, XX, for value
received hereby assigns, orders, and transfers to Achieve Mortgage Corp., a
corporation organized and existing under the laws of the State of Wisconsin,
with its principal office located at 0000 X. Xxxxxx Xxxx Xxxxxx, Xxxxxxxxx, XX
all the rights, title, and interest of assignor in and to the Executive
Employment Agreement made as of January 2, 1996, between Assignor and Xxxxxx X.
Xxxxx; said Executive Employment Agreement is incorporated in this assignment by
reference.
The assignment shall be binding on and inure to the benefit of the parties
to this assignment and their successors and assigns.
[Signatures Begin on the Next Page]
10(c)f-18
92
IN WITNESS WHEREOF, Lincoln State Bank has caused this assignment to
be executed at Milwaukee, WI this day of , 1997.
M&M Services, Inc.
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Xxxxxxx Xxxxx, Chairman of Board
Attest: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx, Secretary
ACCEPTANCE
Achieve Mortgage Corp. assignees, named in the above assignment,
accepts the above Executive Employment Agreement by assignment and agrees to
each and all of the covenants and conditions in such Executive Employment
Agreement.
ACHIEVE MORTGAGE CORP.
Dated: By: /s/ Xxxxxxx X. Xxxxx
---------------------- -------------------------------------
Xxxxxxx X. Xxxxx, Chairman of Board
Attest: /s/ Xxxxxxxx Xxxxxxx
---------------------------------
Xxxxxxxx Xxxxxxx, Secretary
CONSENT OF EXECUTIVE
Xxxxxx X. Xxxxx, the named Executive in the above Executive Employment
Agreement hereby consents to the above assignment and acknowledges the validity
of the assignment under the terms and conditions of the Executive Employment
Agreement.
Dated: By: /s/ Xxxxxx X. Xxxxx
---------------------- -------------------------------------
Xxxxxx X. Xxxxx
10(c)f-19
93
EXHIBIT 10(c)g
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of April, 1999 GRAFTON STATE
BANK, (the "Employer"), a Wisconsin corporation, its successors and assigns, and
Xxxxxx X. Xxxxxxx (the "Executive").
RECITALS
WHEREAS, Executive is a valued, long-term employee, whose experience in
the industry and continued employment in the position of President and CEO will
benefit the Employer in the future; and
WHEREAS, Employer desires to provide for management continuity and
stability and for the continued services of Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below:
1. EMPLOYMENT. Employer shall continue to employ Executive, and
Executive shall continue to serve, on the terms and conditions set forth herein
for the period provided in Section 2.
2. TERM OF EMPLOYMENT. The period of Executive's employment under
this Agreement shall be deemed to have commenced as of the date first above
written and shall continue for a period of thirty-six (36) calendar months
thereafter. Commencing on the first anniversary date of this Agreement, and
continuing at each anniversary date thereafter, the Agreement shall renew for an
additional 12 months such that the remaining term shall be thirty-six (36)
months unless written notice is provided by either party at least sixty (60)
days prior to any such anniversary date, that the Agreement shall terminate at
the end of twenty-four (24) months following such anniversary date. Prior to
the renewal or non-renewal of the Agreement, the Board of Directors or the
Executive Personnel/Compensation Committee will conduct a performance evaluation
of the Executive for the purpose of determining whether to extend the Agreement,
and the results thereof shall be included in the minutes of the Board or
Executive Personnel/Compensation Committee meeting. The term of employment under
this Agreement. As in effect from time to time, shall be referred to as the
"Employment Term."
3. POSITION AND DUTIES. Subject to Section 5(iv)(b), Executive shall
serve Employer as a Chief Executive Officer. Executive shall provide such
management services as are customarily performed by persons serving in similar
capacities at other bank holding companies or their affiliates, and perform such
other duties as may be appropriate to his position and as may be from time to
time determined by Employer's Board of Directors to be necessary to its
10(c)g-1
94
operations and in accordance with its bylaws. During the Employment Term the
Board of Directors may modify Executive's duties and responsibilities consistent
with continued executive status; provided, however, there shall be no material
change in Executive's status nor any material increase or decrease in duties and
responsibilities except as agreed to in writing by Executive. During the
Employment Term, Executive shall devote substantially all his working, time and
efforts to the business and affairs of the Employer and shall not engage in any
activity which is competitive with or adverse to the business of the Employer or
any of its affiliates whether done as a partner, director, officer, employee,
shareholder of or consultant or advisor to any other business. It is understood
that, notwithstanding the foregoing statement, the Executive does have
responsibilities as an elected national officer of the IBAA and as such is
required to be away from the bank on various occasions through his term as
National President. The Employer agrees that this involvement is considered to
be in the best interests of the Employer.
4. COMPENSATION. As compensation for services provided pursuant to
this Agreement, Executive shall receive the compensation and other benefits set
forth below:
(i) BASE SALARY. During the Employment Term, Executive shall
receive an annual base salary ("Base Salary") in such amount as may
from time to time be approved by the Board or the Executive
Personnel/Compensation Committee. The Base Salary in effect as of the
Commencement Date shall be $111,000. Such amount shall be subject to
review and to annual adjustment by the Board or the Executive
Personnel/Compensation Committee in accordance with Employer's normal
personnel practices and, once established at a specified annual rate
(including the initial rate), Executive's Base Salary shall not
thereafter be reduced without his consent except pursuant to subsection
5(v)(c) of this Agreement. No increase in Base Salary or other
compensation shall limit or reduce any other obligation of Employer.
Executive's Base Salary and other compensation shall be paid in
accordance with Employer's regular payroll practices. Review and
adjustment of Executive's Base Salary shall be done on a basis
comparable to, and applied uniformly with, that utilized for other
executives of Employer and/or its affiliates.
(ii) BONUS PAYMENTS. In addition to Base Salary, Executive shall
be entitled, during the Employment Term, to participate in and receive
payments from all bonus and other incentive compensation plans as in
effect from time to time on the same basis as other executive officers
of Employer.
(iii) OTHER BENEFITS. During the Employment Term, Employer shall
provide to Executive, in addition to Base Salary, such
other benefits of employment (or, with Executive's consent,
equivalent benefits) as are made generally available to
executive officers serving in comparable positions at
Employer of its affiliates. Such benefits shall include
participation in any group health, life, disability, or
similar insurance program and in any pension, profit
sharing, deferred compensation, 401(k) or other similar
retirement program provided. Executive shall also
10(c)g-2
95
be provided the use of an automobile similar to a Buick
Ultra and be provided with a full membership at Mequon
Country Club.
Executive shall be entitled to vacation, sick time,
personal days and other perquisites in the same manner and
to the same extent as provided other executives of
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 section 4(iii) (except to the extent
Executive had previously earned or otherwise accumulated
vested rights therein) following a valid and lawful
termination or discontinuance of such plan, program or
perquisite.
5. TERMINATION. This Agreement may be terminated, subject to payment
of the compensation and other benefits described below, upon occurrence of any
of the events described herein. The date on which Executive ceases to be
employed under this Agreement, after giving effect to the period of time
specified in any notice requirement, is referred to as the "Termination Date."
(i) DEATH; DISABILITY; RETIREMENT. This Agreement shall
terminate upon the death, disability or retirement of Executive. As
used in this Agreement, "disability" means Executive's inability, as
the result of physical or mental incapacity, to substantially perform
his duties for a period of 180 consecutive days. If the Executive and
Employer cannot agree as to the existence of a disability, the
determination shall be made by a qualified independent physician
acceptable to both parties or, alternatively, by a physician designated
by the president of the medical society for the county in which
Executive resides. The costs of any such medical examination shall be
borne by 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 the 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 from: (a) any disability plans or disability
insurance programs provided by Employer, and (b) any governmental
social security or workers compensation program.
As used in this Agreement, the term "retirement" shall mean
Executive's retirement in accordance with and pursuant to any generally
applicable retirement plan of Employer or in accordance with any
retirement arrangement established for Executive with his consent.
If termination occurs as a result of death, disability or
retirement, 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
10(c)g-3
96
and the plans and programs provided therein, through the Termination
Date and, in addition, shall receive or continue to receive for the
remaining portion of the Employment Term all other benefits available
to him under any applicable group health, life, disability or similar
insurance program as in effect on the date of death, disability or
retirement.
If, following termination by reason of disability and prior to the
expiration of the then remaining balance of the Employment Term,
Executive becomes able to resume his duties, he shall be reinstated to
his Corporate Position or, if such position has been filled, to a
position as nearly comparable as possible from the date of
reinstatement and for the balance of the Employment Term, Executive
shall be obligated to perform all duties and responsibilities, and
entitled to receive all compensation and other benefits, as provided in
this Agreement.
(ii) CAUSE. Employer may terminate Executive's employment under
this Agreement for cause at any time, and thereafter Employer shall have no
further obligation under this Agreement. 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) A failure by Executive to substantially perform his duties
(other than failure resulting from incapacity) after a written demand
by the Board, which demand identifies, with reasonable specificity, the
manner in which the Board believes Executive has not substantially
performed, and Executive's failure to cure within a reasonable period
of time after his receipt of the notice;
(b) A criminal conviction of or plea of nolo contendere by
Executive for any act involving dishonesty, breach of trust or a
violation of the banking laws of the State of Wisconsin or the United
States;
(c) A criminal conviction of or plea of nolo contendere by
Executive for the commission of any felony;
(d) A breach of fiduciary duty by Executive involving personal
profit;
(e) A willful violation of any law, rule or order by Executive
(other than traffic violations or similar offenses); or
(f) Incompetence, personal dishonesty or material breach of any
provision of this Agreement or any willful misconduct by Executive.
For purposes of this subsection 5(ii), 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
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faith and without reasonable belief that the action or omission was in
the best interest of Employer.
(iii) VOLUNTARY TERMINATION BY EXECUTIVE. Executive may voluntarily
terminate employment at any time by giving at least ninety (90) days' prior
written notice to Employer. In such event, Employer shall have no further
obligation hereunder, except that 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 his
employment through the Termination Date.
(iv) TERMINATION BY EXECUTIVE AFTER CHANGE IN CONTROL.
(a) For purposes of this Agreement, a "change in control" shall
be deemed to have occurred if any "individual, entity or group" (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 voting power of the securities of Employer or any of
Employer's affiliates or becomes the owner of all or substantially all
of the assets of Employer or any of Employer's affiliates or if the
shareholders of Employer or any affiliate of Employer approve a
reorganization, merger or consolidation of Employer or any affiliates
of Employer. "Change in control" shall not refer to or include: 1) any
transaction involving only entities affiliated directly or indirectly
with Employer; or 2) any transaction contemplated by the Agreement and
Plan of Merger between Pyramid Bancorp, Inc. and Merchants &
Manufacturers Bancorporation, Inc. dated March 9, 1999.
(b) Executive may, at any time within twelve (12) months
following a "change in control," terminate his employment under this
Agreement by giving at least ninety (90%) days' prior written notice to
Employer.
(v) TERMINATION BY EXECUTIVE "FOR CAUSE." Executive may terminate his
employment under this Agreement by giving at least ninety (90) days' prior
written notice to Employer at any time after the occurrence of any of the
following without Executive's express written consent:
(a) Executive is assigned to positions, duties or
responsibilities that are substantially less significant than the
positions, duties and responsibilities provided herein;
(b) Executive is removed from or Employer fails to reelect
Executive to his Corporate Position, except in connection with
termination of Executive's employment for cause, disability or
retirement, or in connection with suspension or termination by or
pursuant to regulatory action;
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98
(c) Executive's Base Salary is reduced other than as the result
of a program applied on a proportionately equivalent basis to all
executives of Employer and its affiliates; or any other failure by
Employer to comply with Section 4(i);
(vi) SUSPENSION OR TERMINATION REQUIRED BY THE FDIC.
(a) If Executive is suspended and/or temporarily prohibited
from participating in the conduct of Employer's or any of Employer's
affiliates' 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. S1818
(e)(3) and (g)(1)), respectively), 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: (1) pay Executive all of the
compensation withheld while its obligations under this Agreement were
suspended; and (2) reinstate any of its obligations which were
suspended.
(b) If Executive is removed and/or permanently prohibited from
participating in the conduct of Employer's or any of Employer's
affiliates' 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. S1818(e)(4) and
(g)(1)), respectively, the obligations of Employer under the Agreement
shall terminate as of the effective date of the order, but earned or
otherwise vested rights of Executive to compensation and to any
benefits under Section 4 shall not be affected.
(c) If Employer or any of Employer's affiliates is in default
(as defined in Section 3(x)(1) of the Federal Deposit Insurance Act),
all obligations under the Agreement shall terminate as of the date of
default, but this Subsection 5(vi)(c) shall not affect any vested
rights of Executive, including the right to receive the compensation
and benefits set forth in Section 5(vii) or 5(viii) of this Agreement.
(d) All obligations under the Agreement may be terminated
except to the extent determined that continuation of the contract is
necessary to operation of Employer or any of its affiliates at the time
the Federal Deposit Insurance Corporation ('FDIC') enters into an
agreement to provide assistance to or on behalf of Employer or any of
Employer's affiliates under the authority contained in Section 13(c) of
the Federal Deposit Insurance Act; or when Employer or any of its
affiliates is determined by any appropriate bank regulatory agency to
be in an unsafe or unsound condition. Any rights of the parties that
have been already earned or otherwise vested, however, shall not be
affected by such action, including the right of the Executive to
receive the compensation and benefits set forth in Section 5(vii) or 5
(viii) of this Agreement.
(vii) BENEFITS UPON OTHER TERMINATION BY EMPLOYER OR UPON TERMINATION
BY EXECUTIVE FOLLOWING A "CHANGE IN CONTROL." If this Agreement is terminated
by Employer other than for death, disability or retirement under Section 5(i)
and other than for "cause" under Section 5(ii) or other than by regulatory
action under Section 5(vi)
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99
or if Executive terminates this Agreement following a "change in control"
pursuant to Section 5(iv)(b), then following the Termination Date Executive
shall be entitled to the benefits described in Section 5(viii).
(viii) BENEFITS UPON TERMINATION BY EXECUTIVE "FOR CAUSE." If this
Agreement is terminated by Executive pursuant to Section 5(v), then, following
the Termination Date:
(a) In lieu of any further salary payments, Executive shall
receive severance payments equal to the sum of the Base Salary in
effect on the Termination Date plus cash bonus for the year prior to
termination times the number of years of the remaining Employment Term,
payable in the amount and at the times provided in Sections 4(i) and
(ii). If termination follows a "change in control" under Section
5(iv)(b), Executive may elect to receive the payments specified in the
immediately preceding sentence in a lump sum without any discount,
provided that the amount of such severance payments may not exceed the
limitations established in Section 6.
(b) In addition to the retirement benefits to which Executive
is entitled under tax qualified retirement plans maintained by Employer
(hereinafter collectively referred to as "Plan"), Executive shall
receive as additional severance benefits a retirement benefit under the
Executive Employee Salary Continuation Agreement, which (except as
provided below) shall be determined in accordance with, and paid under
this Agreement in the form and at the times provided in, the Agreement.
Such benefits shall be determined as though Executive were fully vested
under the Plan and had accumulated (after termination of this
Agreement) the additional years of service and benefit credits under
the Plan that he would have received had he continued employment with
Employer for the balance of the Employment Term.
(c) In addition to other amounts payable to Executive under
this Section 5(viii), Executive shall be entitled to receive all 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, together with the
continuation, without cost to Executive, of other benefits under
Section 4(iii) for the remaining unexpired Employment Term, all subject
to the limitations set forth in Section 6 below.
(ix) SUSPENSION BY EMPLOYER. Employer in its sole discretion shall have
the right to temporarily suspend Executive from participating in the conduct of
the Employer's or Employer's affiliates' affairs. If Executive is suspended or
temporarily prohibited from participating in the conduct of Employer's or
Employer's affiliates' business, Employer shall pay Executive all compensation
and provide all benefits pursuant to Section 4 of this Agreement during the
period of such suspension
6. LIMITATIONS ON CHANGE IN CONTROL COMPENSATION. In the event
severance benefits under Subsection 5(vii) or 5(viii), or any other payments or
benefits received or to be received by Executive from Employer (whether payable
pursuant to the terms of this
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100
Agreement, any other plan, agreement or arrangement with Employer or any
corporation ("Affiliate") affiliated with Employer within the meaning of Section
1504 of the Internal Revenue Code of 1986. as amended (the "Code"), constitute,
in the opinion of tax counsel selected by Employer's independent auditors and
acceptable to Executive, "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 Employer (or an Affiliate) and includible in Executive's gross
income for federal income tax purposes for the five (5) calendar years preceding
the year in which a chance in ownership occurred ("Base Amount"), such Severance
Benefits shall be reduced to an amount the present value of which (when combined
with the present value of any other payments otherwise received or to be
received by Executive from 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 (i) Executive shall have effectively waived his receipt or enjoyment
of any such payment or benefit which triggered the applicability of this Section
6, or (ii) in the opinion of tax counsel, the Severance Benefits (in their 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 Employer. The Base Amount shall include every type
and form of compensation includible in Executive's gross income in respect of
his employment by 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, 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 Employer's
independent auditors in accordance with the principles of Section 280G of the
Code.
Executive shall have the right to request that Employer obtain a ruling
from the Internal Revenue Service ("Service") as to whether any or all payments
or benefits determined by such tax counsel are, in the view of the Service,
"parachute payments" under Section 280G. If a ruling is sought pursuant to
Executive's request, no Severance Benefits payable under this Agreement in
excess of the Section 280G limitation shall be made to Executive until after
fifteen (15) days from the date of such ruling; however, Severance Benefits
shall continue to be paid during this time up to the amount of that limitation.
For purposes of this Section 6, Executive and Employer agree to be bound by the
Service's ruling as to whether payments constitute "parachute payments" under
Section 280G. If the Service declines, for any reason, to provide the ruling
requested, the tax counsel's opinion provided with respect to what payments or
benefits constitute "parachute payments" shall control, and the period during
which the Severance Benefits may be deferred shall be extended to a date fifteen
(15) days from the date of the Service's notice indicating that no ruling will
be forthcoming
10(c)g-8
101
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 agree
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 substantially all of the
business and/or assets of 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. If such succession is the result of a "change
in control" as defined herein, such assumption shall specifically preserve
to Executive, for 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)
provided under this Agreement upon a "change in control".
As used in this Agreement, Employer shall mean Grafton State Bank and
any successor to its business and/or assets, which becomes bound by the
terms and provisions of this Agreement by operation of this Agreement or by
law. Failure of Employer to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement
and shall entitle Executive to compensation from 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 5(v). 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) Any rights and obligations of Employer under this Agreement may be
assigned or transferred by Employer to any of its affiliates prior to a
change in control as defined in this Agreement.
(d) This Agreement shall be binding upon and inure to the benefit of and
be enforceable by Executive and his heirs, beneficiaries and personal
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representatives and Employer and any successor organization or assignee of
Employer.
(ii) NON-COMPETITION/CONFIDENTIALITY PROVISIONS. Executive acknowledges
that the development of personal contacts and relationships is an essential
element of Employer's and Employer's affiliates' business, that Employer has
invested considerable time and money in his development of such contacts and
relationships, that Employer and its affiliates could suffer irreparable harm if
he were to leave Employer's employment and solicit the business of customers of
Employer or Employer's affiliates and that it is reasonable to protect Employer
a-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), Executive shall not accept employment with
any Significant Competitor of Employer or of any of Employer's affiliates for a
period of twelve (12) months following such termination. In the event Executive
is terminated by Employer, under Section 5(vii) other than following a change in
control, Executive shall not accept employment with any Significant Competitor
of Employer or of any of Employer's affiliates for the lesser of (a) the
remaining term of the agreement. or (b) a period of twelve (12) months following
such termination. For purposes of this Agreement, the term "Significant
Competitor" means any financial institution including, 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 with or during, the period of this covenant not to compete, has a
home, branch or other office within Ozaukee County or within a three (3) mile
radius of any office operated or maintained by Employer or any of Employer's
affiliates prior to a change in control as defined in this Agreement.
Executive agrees that the non-competition provisions set forth herein
are necessary for the protection of Employer and its affiliates and are
reasonably limited as to (a) the scope of activities affected, (b) their
duration and geographic scope, and (c) their effect on Executive and the public.
In the event Executive violates the non-competition provisions set forth herein,
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 Employer brings legal
action for injunctive or other relief, 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 relief is granted,
but. reduced by any period between commencement of the period and the date of
the first violation.
Executive acknowledges that as a result of his employment with Employer
or its affiliates Executive has access to confidential information concerning
Employer's business, customers and services. Executive agrees that during the
Employment Term and for a period of one (1) year following termination of
employment, he will not, directly or indirectly, use, disclose or divulge to any
person, agency, firm, corporation or other entity any confidential or
proprietary information, including, without limitation, customer lists, reports,
files, records or information of any kind pertaining to the business of Employer
or any of its affiliates which Executive
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103
acquires or has access to during the Employment Term. Executive agrees that if
he violates the covenants under this section, Employer shall be entitled to an
accounting and repayments of all profits, compensation, commissions and other
remuneration or benefits which the Executive has realized or may realize as the
result of or in connection with any such violation. Executive further agrees
that money damages may be difficult to ascertain in case of a breach of this
covenant, and Executive therefore agrees that Employer or its affiliates shall
be entitled to injunctive relief in addition to any other remedy to which
Employer or its affiliates may be entitled.
(iii) NOTICE. All notices and other communications provided for in this
Agreement shall be in writing and shall be deemed duly given when
delivered or mailed by United States registered mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Employer:
Grafton State Bank
000 Xxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Board of Directors
If to the Executive:
Xxxxxx X. Xxxxxxx
0000 X. Xxxxx Xxxxx
Xxxxxxx, XX 00000
or to such other address as either party may have furnished to the other in
writing accordance herewith.
(iv) EXPENSES. If legal proceedings are necessary to enforce or
interpret this Agreement, or to recover damages for breach, the prevailing
party shall be entitled to recover reasonable attorneys' fees, costs and
disbursements of such proceedings, in addition to any other relief to which such
prevailing party may be entitled. Notwithstanding, the foregoing, in the event
of legal proceedings to enforce or interpret this Agreement following a change
in control, Executive shall be entitled to recover from Employer, (a) reasonable
attorneys, fees, costs and disbursements if Executive is the prevailing party;
or (b) reasonable attorneys' fees, costs and disbursements of up to $7,500
incurred in such proceedings regardless of whether Executive is the prevailing
party. Recovery of attorneys' fees and costs following a "chance in control"
shall be in addition to any other relief to which Executive is 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 as to
the amount or requirement of any such withholding.
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104
(vi) MISCELLANEOUS. No provision of this Agreement may be amended,
waived or discharged unless such Amendment, waiver or discharge is agreed to in
writing and duly executed by Executive and Employer or its successor in
interest. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements
and undertakings, whether written or oral, between the parties with respect
thereto; no agreements or representations, oral or otherwise, express or
implied, have been made by either party with respect to the subject matter
hereof. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Wisconsin.
(vii) 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.
(viii) COUNTERPARTS. This Agreement may be executed in several
counterparts, all of which together will constitute one and the same instrument.
(ix) HEADINGS. Headings contained in this Agreement are for reference
only and shall not affect the meaning or interpretation of any, provision of
this Agreement.
(x) EFFECTIVE DATE. The effective date of this Agreement shall be the
date indicated in the first paragraph 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/ XXXXXX X. XXXXXXX (SEAL)
-----------------------
XXXXXX X. XXXXXXX
GRAFTON STATE BANK
By: /s/ Xxxxxx Xxxxxxxxx BY: /s/ Xxxxx Xxxxxxxxx
------------------------ ------------------------
Title: Director By: Director
3/31/99 3/31/99
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