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FIRST FEDERAL CAPITAL CORP.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is effective as of January 1, 2001 (the
"Commencement Date") between First Federal Capital Corp., its successors and
assigns (hereinafter referred to as the "Company"), having its principal offices
located at 000 Xxxxx Xxxxxx, Xx Xxxxxx, Xxxxxxxxx 00000, and Xxxxxx X. Xxxxxx
(the "Executive").
RECITALS
WHEREAS, Executive is a key employee, who has been employed in the
financial services industry for more than 40 years and whose extensive
background, knowledge and experience has substantially benefited both First
Federal Savings Bank La Crosse-Madison, F.S.B. (the "Bank") and the Company and
whose continued employment as Chairman of the Board of Directors and as a Senior
Executive Officer of the Company ("Corporate Position") will benefit the Company
in the future;
WHEREAS, Executive possesses an intimate knowledge of the business and
affairs of the Bank, of First Federal Capital Corporation (the "Company"), and
of the financial industry both in the Bank and Company's primary market areas
and nationally;
WHEREAS, Executive has expressed a desire to reduce the level of his
work commitment, but has indicated a willingness to continue to make his
expertise and abilities available to the Bank, Company and their respective
Boards and management in the future;
WHEREAS, the Boards of Directors of the Bank and Company recognize
Executive's contribution to their growth and desire to assure continued
availability of Executive's talent and expertise into the future;
WHEREAS, Executive is willing to commit himself to serve the Bank on
the terms provided in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below:
1. Employment. The Company shall employ Executive, and Executive shall
serve the Company, on the terms and conditions set forth in this Agreement.
2. Term of Employment. The period of Executive's employment under this
Agreement shall be referred to as the "Employment Term" and shall coincide in
all respects, including with respect to renewal or termination of such
Employment Term, with his period of employment by the Bank under the employment
agreement entered into between the Bank and Executive and bearing even date
herewith (the "Bank Agreement").
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3. Position and Duties. Executive shall serve the Company in his
Corporate Position as Chairman of the Board and Senior Executive Officer,
reporting directly to the Company's Board of Directors and having responsibility
for reviewing public and shareholder communications from the Company, assisting
in the review and formulation of actions in major operational, regulatory and
policy matters, providing advice, assistance and consultation to other members
of senior management, undertaking such special project assignments as may be
from time to time designated by the Board, and representing the Company and the
Bank as a member of the Boards of Directors of the Wisconsin Bankers Association
and TYME Corporation until expiration of his terms on those boards as of June
30, 2002. During the term of this Agreement, Executive shall be nominated and
placed on the ballot for election by shareholders to the Board of Directors of
the Company and if so elected shall serve as Chairman of the Board with
responsibility for chairing meetings thereof and for overseeing and recommending
action on corporate governance issues.
4. Compensation. As compensation for services provided pursuant to this
Agreement, Executive shall receive from the Company the compensation and
benefits set forth below:
(i) Base Salary. During the Employment Term, Executive shall
receive a base salary payable by the Bank ("Base Salary") in such
amount as may from time to time be approved by the Board of Directors
of the Bank; provided, however, that the Company and Executive agree
that (i) a portion of the amount received by Executive from the Bank
will be allocable to time and effort of the Executive spent on behalf
of the Company pursuant to this Agreement, and (ii) that the Company
may reimburse the Bank in any such amount as may be jointly determined
by the Boards of Directors of the Company and Bank to reflect such
allocable portion. No increase in Base Salary paid by the Bank (or the
amount thereof reimbursed by the Company) or other compensation granted
by the Company or Bank shall in any way limit or reduce any other
obligation of the Company under this Agreement. Executive's Base Salary
and other compensation shall be paid in accordance with the Bank's
regular payroll practices, as in effect from time to time.
(ii) Bonus Payments. In addition to Base Salary, Executive
shall be entitled, during the initial twelve (12) months of the
Employment Term, to participate in and receive payments from all bonus
and other incentive compensation plans (as currently in effect, as
modified from time to time, or as subsequently adopted) of the Company
at a level equal to 50% of other Group 1 executives covered under such
plans; provided, however, that nothing contained herein shall grant
Executive the right to continue in any bonus or other incentive
compensation plan following its discontinuance by the Board (except to
the extent Executive had earned or otherwise accumulated vested rights
therein prior to such discontinuance). Participation in such plans
beyond the initial twelve (12) months of the Employment Term shall be
at the discretion of the Board.
(iii) Other Benefits. Throughout the Employment Term, the
Company shall provide to Executive all other benefits of employment
(or, with Executive's consent, equivalent benefits) generally made
available to other executives of the Company. During the initial twelve
(12) months of the Employment Term, Executive shall participate in
stock option, restricted stock, stock appreciation right, and other
stock-related
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programs made available by the Company at a level equal to 50% of other
Group 1 executives covered under such plans; provided that
participation in such plans beyond the initial twelve (12) months of
the Employment Term shall be to the same extent as other Directors and
to such further extent as the Board may deem appropriate in
consideration of Executives duties, responsibilities and level of
compensation. Executive shall be entitled to vacation, sick time,
personal days and other perquisites in the same manner and to the same
extent as such benefits are available under the Bank Agreement, it
being understood that this Agreement is intended to allow Executive to
utilize the perquisites provided pursuant to the Bank Agreement and not
to create additional perquisites hereunder.
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
paragraph 4(iii) (except to the extent Executive had previously earned
or accumulated vested rights therein) following termination or
discontinuance of such plan, program or perquisite by the Board.
5. Termination. This Agreement shall terminate upon the effective date
of termination of the Bank Agreement.
Upon termination of this Agreement, simultaneous with termination of
the Bank Agreement, Executive shall be entitled to the receipt of
termination/severance benefits from the Bank as determined under all applicable
provisions of the Bank Agreement ("Severance Benefits"). The Bank shall be
primarily responsible for the payment of Severance Benefits; provided, however,
that the Company may reimburse the Bank for a portion of the cost of Executive's
Severance Benefits in any amount jointly determined by the Boards of Directors
of the Company and Bank to correspond to the allocation of Executive's time and
effort between Bank and Company matters during the 12-month period preceding
termination of the Bank Agreement. Notwithstanding the foregoing, if the
application of Section 6 of the Bank Agreement results in Unpaid Severance as
defined therein, the Company shall be responsible for payment to Executive of
the entire amount of Unpaid Severance and shall also pay to Executive an
additional amount (the "Reimbursement Payment") such that the net amount
retained by Executive after deduction of (i) any tax imposed by Section 4999 of
the Internal Revenue Code (the "Excise Tax") and any interest charges or
penalties in respect to imposition of such Excise Tax (but not any federal,
state or local income tax) on the Total Payments (which for purposes of this
Agreement shall mean the Severance Benefits plus any Unpaid Severance, together
with any other payments and/or the value of any benefits provided by the Bank or
Company, including but not limited to any amount or value attributable to the
vesting of stock options upon Executive's termination and to which said Excise
Tax applies by reason of Section 280G of the Code), and (ii) any federal, state
and local income tax and Excise Tax upon the payment pursuant to Section 5(i)
above, so that the total received by Executive after deduction of said Excise
Taxes shall be equal to the Total Payments. For purposes of determining the
amount of Reimbursement Payment, Executive shall be deemed to pay federal income
taxes at the highest marginal rate of federal income taxation in the calendar
year in which the Reimbursement Payment is to be made and state and local income
taxes at the highest marginal rate of taxation in the state and locality of
Executive's domicile for income tax purposes on the date the Reimbursement
Payment is
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made, net of the maximum reduction of federal income taxes that could be
obtained from deduction of such state and local taxes.
6. General Provisions.
(i) Successors; Binding Effect. 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; provided, however, that in the event of Executive's death
prior to the receipt of payments or benefits payable hereunder, the
Executive's spouse or estate shall be entitled to the receipt thereof.
This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by Executive and his heirs, beneficiaries and personal
representatives and the Company and any successor organization.
(ii) Noncompetition. Executive acknowledges that the
development of personal contacts and relationships is an essential
element of the Company's business, that the Company has invested
considerable time and money in his development of such contacts and
relationships, that the Company could suffer irreparable harm if he
were to leave employment and solicit the business of customers of the
Company or Bank, and that it is reasonable to protect the Company and
Bank 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) of
the Bank Agreement, or upon expiration of the Bank Agreement as a
result of Executive's election not to continue automatic annual
renewals, Executive shall not accept employment in LaCrosse, Dane or
St. Croix counties with any Significant Competitor of the Company or
Bank for a period of eighteen (18) 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,
mortgage banking corporation, or holding company for any of the
foregoing, which at the time of termination of Executive's employment,
or during the period of this covenant not to compete, (i) maintains a
home, branch or other office in any of said counties, or (ii) has
originated with any of said counties $10,000,000 or more in residential
mortgage loans during any consecutive twelve (12) month period within
the thirty-six (36) months prior to Executive's termination and
inclusive of the period covered by this covenant.
Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of the Company and the Bank and
are reasonably limited as to (i) the scope of activities affected, (ii)
their duration and geographic scope, and (iii) their effect on
Executive and the public. In the event Executive violates the
non-competition provisions set forth herein, the Company 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 Company
brings legal action for injunctive or other relief, the Company 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
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duration specified herein, computed from the date such relief is
granted, but reduced by any period between commencement of the period
and the date of the first violation. In addition to such other relief
as may be awarded, if the Company is the prevailing party it shall be
entitled to reimbursement for all reasonable costs, including
attorneys' fees, incurred in enforcing its rights hereunder.
(iii) Notice. For purposes of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when delivered or mailed by
the Company, United States registered mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Company:
First Federal Capital Corp.
000 Xxxxx Xxxxxx
Xx Xxxxxx, Xxxxxxxxx
Attention: Secretary
If to the Executive, at the address set forth below the
Executive's signature line of this Agreement. Either party may furnish
to the other in writing in accordance herewith, a notice of change of
address which shall become effective only upon receipt by the other
party.
(iv) Expenses. If any legal proceeding is necessary to enforce
or interpret the terms of this Agreement or to recover damages for
breach of it, the prevailing party shall be entitled to recover from
the other party reasonable attorneys' fees and necessary costs and
disbursements incurred in such litigation, in addition to any other
relief to which such prevailing party is entitled.
Notwithstanding the foregoing, in the event of a legal
proceeding to enforce or interpret the terms of this Agreement
following a change in control, Executive shall be entitled to recover
from the Bank, regardless of the outcome of said action, necessary
costs and disbursements incurred together with actual attorney's fees
up to the greater of (A) $25,000, or (B) thirty percent (30%) of the
amount in dispute between the parties [which amount, for purposes of
this Agreement, shall be deemed to be the difference between the
highest written settlement offer (exclusive of any claim for
consequential, punitive, or other forms or amounts of damages not based
on specific contract terms) from Executive]. Recovery by Executive of
attorney's fees and costs as provided herein following a change in
control shall be in addition to any other relief to which Executive may
be entitled.
(v) Withholding. The Company shall be entitled to withhold
from amounts to be paid to Executive under this Agreement any federal,
state, or local withholding or other taxes of charges which it is from
time to time required to withhold. The Company shall be entitled to
rely on an opinion of counsel if any question as to the amount or
requirement of any such withholding shall arise.
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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 signed by Executive and such
Company officer as may be specifically designated by the Board. No
waiver by either party hereto at any time of any breach by the other
party hereto of (or compliance with) any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver
of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter
hereof have been made by either party which are not expressly set forth
in this Agreement; provided, however, that the parties acknowledge the
Bank Agreement is a separate employment agreement between Executive and
the Bank and that nothing contained herein is intended to supercede or
extinguish any of the rights or obligations created therein. 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, each 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 section of this Agreement,
notwithstanding that the actual date of execution by any party may
differ therefrom.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of this 1st day of January, 2001.
First Federal Capital Corp. Executive:
By:
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Title: Title:
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Witness Address:
By:
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Title:
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EMPLOYMENT AGREEMENT
(Effective January 1, 2001)
THIS EMPLOYMENT AGREEMENT is made effective as of this 1st day of
January 1, 2001, by and between First Federal Savings Bank, LaCrosse-Madison, a
federally-chartered savings bank (the "Bank"), First Federal Capital Corporation
(the "Company"), and Xxxxxx X. Xxxxxx (the "Executive").
WHEREAS, Executive has been employed in the financial services industry
for more than 40 years, and has most recently served in the capacities of
President and Chief Executive Officer of the Bank and Company, respectively; and
WHEREAS, Executive possesses an intimate knowledge of the business and
affairs of the Bank, the Company, and of the financial industry in the Bank and
Company's primary market areas and nationally;
WHEREAS, Executive has expressed a desire to reduce the level of his
work commitment, but has indicated a willingness to continue to make his
expertise and abilities available to the Bank, Company and their respective
Boards and management in the future;
WHEREAS, the Boards of Directors of the Bank and Company recognize
Executive's contribution to their growth and desire to assure continued
availability of Executive's talent and expertise into the future;
WHEREAS, Executive is willing to commit himself to serve the Bank and
Company on the terms provided in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, the Bank, Company, and Executive agree as follows:
1. Employment. The Bank and Company shall continue to employ Executive
and Executive shall continue to serve under the terms and conditions of this
Agreement (which terms and conditions are intended to supercede the agreement of
July 1, 2000 as previously in effect between the parties) for the period stated
in paragraph 2 below.
2. Term of Employment. The period of Executive's employment under this
Agreement shall commence on the date set forth above ("Commencement Date") and
shall expire on June 30, 2002, unless sooner terminated as provided herein.
Thereafter, beginning as of the July 1, 2002 (the "Renewal Date") and on each
annual anniversary of the Renewal Date thereafter, the term of employment
hereunder may be extended for an additional year by action of the Boards of
Directors of the Bank and Company. The Boards of Directors or the Executive
shall provide at least forty-five (45) days' advance written notice of any
decision on their respective parts not to extend the Agreement as of any such
anniversary date. The term of employment under this Agreement, as in effect from
time to time, shall be referred to as the "Employment Term."
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3. Position and Duties. Executive shall serve the Bank as Chairman of
the Board of Directors and as a Senior Executive Officer, reporting directly to
the Board and with responsibility for chairing meetings of the Board, overseeing
and recommending action on corporate governance issues, assisting in the review
and formulation of actions in major operations, regulatory and policy matters,
and providing advice, assistance and consultation to other senior members of
bank management. Executive shall serve the Company as Chairman of the Board and
Senior Executive Officer, reporting directly to the Company's Board of Directors
and having responsibility for reviewing public and shareholder communications
from the Company, assisting in the review and formulation of actions in major
operational, regulatory and policy matters, and providing advice, assistance and
consultation to other members of the Company's senior management. During the
term of this Agreement, Executive shall be nominated and placed on the ballot
for election by shareholders to the Board of Directors of the Company and if so
elected shall serve as Chairman of the Board with responsibility for chairing
meetings thereof. Executive shall also undertake such special project
assignments as may be from time to time designated by either of the Boards of
Directors and shall represent the Bank and Company as a member of the Boards of
Directors of the Wisconsin Bankers Association and TYME Corporation until
expiration of his term on those boards on June 30, 2002.
4. Compensation. As compensation for the services to be provided
pursuant to this Agreement, Executive shall receive from the Bank and Company
the compensation and other benefits set forth below:
(i) Base Salary. During the Employment Term, Executive shall
receive a base salary ("Base Salary") of $300,000. The Base Salary shall not be
reduced during the initial term of this Agreement, but may be adjusted upward or
downward by agreement between the Bank and Executive upon any renewal to reflect
changes in the scope of Executive's duties. The Bank may receive reimbursement
of some or all of such base salary amount from the Company, as agreed upon
between the Boards of Directors of the Bank and Company, to appropriately
reflect the allocation of Executive's time and efforts between each. Executive's
Base Salary and other compensation shall be paid in accordance with the Bank's
regular payroll practices, as from time to time in effect.
(ii) Bonus Payments. In addition to Base Salary, Executive shall
be entitled during the initial twelve (12) months of the Employment Term to
participate in the Bank's Management Incentive Plan (the "Incentive Plan") in
effect on the date of this Agreement at a level equal to 50% of other Group 1
executives covered under the Incentive Plan. Subsequent to the initial twelve
(12) months of the Employment Term, any further bonus awards shall be at the
discretion of the Board.
(iii) Other Benefits. Throughout the Employment Term, the Bank
and Company shall provide to Executive all other benefits of employment (or,
with Executive's consent, equivalent benefits) generally made available to their
other executive officers under plans or
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arrangements as in effect from time to time. Executive shall be entitled to
participate in or receive benefits under any group health and life insurance
plan, pension plan, stock purchase, incentive savings and any other similar
plans or arrangements presently or hereafter available to such executive
officers (collectively the "Benefit Plans"), subject to and on a basis
consistent with the terms, conditions and overall administration of such Benefit
Plans. Executive shall be entitled to vacations and perquisites in accordance
with Bank and Company policies for their executive officers. During the initial
twelve (12) months of the Employment Term, Executive shall participate in the
stock option program at a level equal to 50% of other Group 1 executives covered
under such plans, with any award made for that period being reduced to reflect
the relation of said twelve (12) month period to the three (3) year award cycle
otherwise applicable under such option plan; provided that option participation
beyond the initial twelve (12) months of the Employment Term shall be to the
same extent as other Directors and to such further extent as the Board may deem
appropriate in consideration of Executive's duties, responsibilities and level
of compensation.
5. Termination. This Agreement may be terminated, subject to payment of
the compensation and other benefits described below, upon the occurrence of any
of the events described below. In case of such termination, the date on which
Executive ceases to be employed under this Agreement, after giving effect to any
prior notice requirement set forth below, is referred to as the "Termination
Date."
(i) Death; Disability; Retirement. This Agreement shall
terminate upon the death, disability or retirement of Executive. As used in this
Agreement, the term "disability" shall mean Executive's inability, as a result
of physical or mental incapacity, to substantially perform his duties hereunder
for a period of 180 consecutive days. Any question as to the existence of
Executive's disability upon which the Executive and the Bank cannot agree shall
be determined by a qualified independent physician mutually agreeable to
Executive and the Bank or, if the parties are unable to agree upon a physician
within ten (10) days after notice from either to the other suggesting a
physician, by a physician designated by the then president of the medical
society for the county in which Executive maintains his principal residence,
upon the request of either party. 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 the remainder of the Employment Term, payable in
substantially equal monthly installments less, in each case, any disability
payments actually paid to Executive under plans provided by the Bank or under
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 retirement plan of
the Bank or Company generally applicable to their executive officers or in
accordance with any retirement arrangement established with Executive's consent.
If termination occurs for such reason, no additional
compensation shall be payable to the Executive under this Agreement except as
specifically provided in this Agreement.
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Notwithstanding anything to the contrary contained in this Agreement, the
Executive shall receive all compensation and other benefits to which he was
entitled under Section 4 through the Termination Date and, in addition, shall
receive all other benefits available to him under the Bank's and Company's
Benefit Plans as in effect on the date of death, disability or retirement.
(ii) Cause. The Bank and Company may terminate the Executive's
employment under this Agreement for Cause at any time, and there after their
obligations under this Agreement shall cease and terminate. Notwithstanding
anything to the contrary contained in this Agreement, Executive shall receive
all compensation and other benefits to which he was entitled under Section 4
through the Termination Date and, in addition, shall receive all benefits
available to him under Benefit Plans as in effect on the Termination Date. For
purposes of this Agreement, "Cause" shall mean (A) the willful and continued
failure by Executive to substantially perform his duties (other than failure
resulting from the Executive's incapacity due to physical or mental illness)
after a written demand for substantial performance is delivered to Executive by
the Board, which demand specifically identifies the manner in which the Board
believes Executive has not substantially performed his duties, (B) any willful
act of misconduct by Executive which is materially injurious to the Bank or
Company, monetarily or otherwise, (C) a criminal conviction of Executive for any
act involving dishonesty, breach of trust or a violation of the banking or
savings and loan laws of the State of Wisconsin or the United States, (D) a
criminal conviction of the Executive for the commission of any felony, (E) a
willful breach of fiduciary duty involving personal profit, (F) a willful
violation of any law, rule or regulation or final cease and desist order where
such violations materially, adversely, affect the Bank or Company, (G)
incompetence, personal dishonesty or material breach of any provision of this
Agreement which would have a material adverse impact on the Bank or Company. For
purposes of this Subsection 5(ii), no act, or failure to act, on the Executive's
part shall be deemed "willful" unless done, or omitted to be done, by the
Executive not in good faith and without reasonable belief that the action or
omission was in the best interest of the Bank or Company.
(iii) Voluntary Termination by Executive. Executive may
voluntarily terminate his employment under this Agreement at any time by giving
at least ninety (90) days prior written notice to the Bank. In such event,
Executive shall receive all compensation and other benefits to which he was
entitled under Section 4 through the Termination Date and, in addition, shall
receive all other benefits available to him under the Bank's and Company's
Benefit Plans as in effect on the Termination Date.
(iv) Termination by Executive After Change in Control. For
purposes of this Agreement, a "change in control" shall mean a change in control
with respect to the Bank or Company of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934, as amended ("Exchange Act") or any
successor thereto; provided that, without limitation, such a change in control
shall be deemed to have occurred if (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities representing 25% or more of the combined voting power
of the Bank or holding company's then outstanding securities; or (ii)
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during any period of two consecutive years, individuals who at the beginning of
such period constitute the Board of Directors of the Bank or company cease for
any reason to constitute at least a majority thereof unless the election, or the
nomination for election by stockholders, of each new director was approved by a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period. The Executive may terminate his
employment under this Agreement by giving written notice to the Bank at anytime
within twelve (12) months of the effective date of a "change in control".
(v) Suspension or Termination Required by the 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), 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, Bank 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 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) or (g)(1) obligations of the Bank under the
Agreement shall terminate as of the effective date of the order, but vested
rights of the Executive to compensation and to any benefits under the Bank's
Pension Plan shall not be affected.
(C) If the Bank is in default as defined in section
3(x)(1) of the Federal Deposit Insurance Act, (12 U.S.C. 1813 (x)(1)) all
obligations under the Agreement shall terminate as of the date of default,
except that this paragraph shall not affect vested rights of the Executive under
any qualified retirement plan nor, in the event the Executive terminates prior
to the date of such default, the Executive's vested rights to continue to
receive severance payments and benefits pursuant to Section 5(vi) of this
Agreement.
(D) All obligations under the Agreement shall be
terminated, except to the extent determined that continuation of the contract is
necessary for the continued operation of the Bank, (i) by the OTS, at the time
the FDIC or 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 OTS at the
time it approves a supervisory merger to resolve problems related to operation
of the Bank or when the Bank is determined by the OTS to be in an unsafe or
unsound condition. Any rights of the parties that have already vested, however,
shall not be affected by such action, and the Executive shall receive the
compensation and benefits set forth in section 5(vi) of this Agreement.
(E) In the event that 12 C.F.R. Section 563.39, or any
successor regulation, is repealed, this section 5(v) shall cease to be effective
on the effective date of such repeal. In the
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event that 12 C.F.R. Section 563.39, or any successor regulation, is amended or
modified, this Agreement shall be revised to reflect the amended or modified
provisions if: (1) the amended or modified provision is required to be included
in this Agreement; or (2) if not so required, the Executive requests that the
Agreement be so revised.
(vi) Termination by the Bank or Company Other Than For Death,
Disability, Retirement, Cause and Other Than Following a Change in Control. If
this Agreement is terminated by the Bank or Company for any reason other than
death, disability, retirement or for cause as set forth in Section 5(i) or (ii),
and other than by Executive pursuant to Section 5(iv), then, following the Date
of Termination:
(A) In lieu of any further salary payments to the
Executive for a period subsequent to the Termination Date, the Executive shall
receive severance pay in the form of payments continuing for the remaining
unexpired portion of the Employment Term based on his rate of Base Salary as in
effect at whichever is applicable of the commencement or renewal of the then
running Employment Term and his total cash bonus paid in his most recently
completed calendar year of employment.
(B) Executive shall also receive all retirement benefits
to which Executive is entitled under the Bank's Group Pension Plan, 401(k) Plan,
and ESOP, as amended from time to time (the "Retirement Plans").
(C) In addition to all other amounts payable under this
section 5, Executive shall be entitled to coverage under any group health, life,
dental, or other group insurance plans (as well as under any individual life
coverages provided by the Bank on Executive's behalf) for the remainder of the
Employment Term upon his continued payment of any required employee contribution
at the rate in effect as of his Termination Date and to receipt of all benefits
otherwise payable to Executive under (i) any tax qualified Bank plan or
agreement relating to pension or retirement benefits, and (ii) any other Bank
plan or agreement, regardless of tax status, established to provide deferred
compensation, retirement, or other benefits for the Executive.
(vii) Termination Following A Change In Control. If this
Agreement is terminated by the Bank, any successor to the Bank, or by Executive
pursuant to Section 5(iv) following a change in control:
(A) In lieu of any further salary payments, subsequent
to the Termination Date Executive shall receive monthly severance payments for
the remainder of the Employment Term, based on his then effective rate of Base
Salary under this Agreement and the cash bonus, if any, for the calendar year
preceding his Termination Date and subject to any applicable limitations set
forth in Section 6 below.
(B) Executive shall also receive all retirement benefits
to which Executive is entitled under the Bank's Group Pension Plan, 401(k) Plan
and ESOP, as amended from time to time (the "Retirement Plans").
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(C) In addition to all other amounts payable under this
Section 5, Executive shall be entitled to coverage under any group health, life,
dental, or other group insurance plans (as well as under any individual life
coverages provided by the Bank on Executive's behalf) for the remainder of the
Employment Term period upon his continued payment of any required employee
contribution at the rate in effect as of his Termination Date and to receipt of
all benefits otherwise payable to Executive under (i) any tax qualified Bank
plan or agreement relating to pension or retirement benefits, and (ii) any other
Bank plan or agreement, regardless of tax status, established to provide
deferred compensation, retirement, or other benefits for the Executive.
6. Limitations on Termination Compensation.
(i) If severance benefits payable to the Executive under
Subsection 5(vii) ("Severance Benefits"), or any other payments or benefits
received or to be received by the Executive from the Bank and Company (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 1954, as
amended (the "Code")), in the opinion of tax counsel selected by the Bank's
independent auditors and acceptable to the Executive, constitute "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and the present
value of such "parachute payments" equals or exceeds three (3) times the average
of the annual compensation payable to the Executive by the Bank (or an
Affiliate) and includible in the 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 of any other payments or benefits otherwise received or
to be received by the 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, in the opinion of tax counsel, the Severance Benefits
(in their full amount) 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
the 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 Sections 280G(b)(3) and (4) of the Code, with
the value of any amount by which the Severance Benefits payable under this
Agreement are reduced pursuant to this Section 6 and/or the value of any other
amount not paid by the Bank, the Company, or any plan maintained by either
(regardless of its source) being referred to collectively herein as the Unpaid
Severance.
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(ii) 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 the Executive's request, no severance benefits payable under this
Agreement shall be made to the Executive until after fifteen (15) days from the
date of such ruling. For purposes of this Subsection 6(ii), the 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
under Subsection 6(i) 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.
(iii) 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. Noncompetition After Voluntary Termination And Duty of
Confidentiality.
(a) Noncompetition. Executive acknowledges that the development
of personal contacts and relationships is an essential element of the Bank's and
Company's businesses, that they have invested considerable time and money in his
development of such contacts and relationships, that they could suffer
irreparable harm if he were to leave employment and solicit the business of the
Bank's customers, and that it is reasonable to protect the Bank and Company
against competitive activities by Executive. Executive covenants and agrees, in
recognition of the foregoing and in consideration of the mutual promises
contained herein, that in the event of a voluntary termination of employment by
Executive pursuant to Section 5(iii), or upon expiration of this Agreement as a
result of Executive's election not to continue automatic annual renewals,
Executive shall not accept employment with any Significant Competitor of the
Bank for a period of eighteen (18) months following such termination in any
county in which the Bank both (i) has deposits of $50,000,000 or more, and (ii)
has originated mortgage loans of $100,000,000 or more during any consecutive
twelve (12) month period within the past twenty-four (24) months. 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.
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Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of the Bank and Company and are
reasonably limited as to (i) the scope of activities affected, (ii) their
duration and geographic scope, and (iii) their effect on Executive and the
public. In the event Executive violates the non-competition provisions set forth
herein, Bank and Company 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 or Company brings legal action for injunctive or other relief, the Bank and
Company shall not, as a result of the time involved in obtaining such relief, be
deprived of the benefit of the full period of the restrictive covenant.
Accordingly, the covenant shall be deemed to have the duration specified herein,
computed from the date such relief is granted, but reduced by any period between
commencement of the period and the date of the first violation. In addition to
such other relief as may be awarded, if the Bank and/or Company is the
prevailing party it shall be entitled to reimbursement for all reasonable costs,
including attorneys' fees, incurred in enforcing its rights hereunder.
(b) Duty of Confidentiality. Executive acknowledges that he
will, as the result of services performed on behalf of the Bank and Company,
obtain or otherwise become aware of confidential and/or proprietary information
regarding the Bank's and Company's affairs, including, but not limited to,
information relative to (i) customers, customer accounts and customer lists,
(ii) marketing, (iii) customer development strategies, (iv) financial and
economic plans and projections, and (v) other similar information. Executive
agrees that following termination of his employment for any reason, he will
treat all such matters as confidential and will refrain both from divulging such
information in any manner and from the use of such information for his benefit
or for the benefit of any employer (regardless of whether such employer would
constitute a Significant Competitor under this Agreement) or third-party.
8. General Provisions.
(i) Successors; Binding Effect. 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 the Executive. This Agreement shall
be binding upon and inure to the benefit of and be enforceable by the Executive
and his heirs, beneficiaries and personal representatives and the Bank, the
Company, and any successor organizations.
(ii) Notice. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
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If to the Bank and Company:
000 Xxxxx Xxxxxx
XxXxxxxx, XX 00000
Attn: Secretary
or if to Executive at the address set forth below the Executive's signature line
of this Agreement, or to such other address as either party may have furnished
to the other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
(iii) Expenses. If any legal proceeding is necessary to enforce
or interpret this Agreement, or to recover damages for breach of it, the
prevailing party, shall be entitled to recover from the other party reasonable
attorneys' fees and necessary costs and disbursements incurred in such
litigation, in addition to any other relief to which such prevailing party may
be entitled.
Notwithstanding the foregoing, in the event of a legal
proceeding to enforce or interpret the terms of this Agreement following a
change in control, Executive shall be entitled to recover from Bank and Company,
regardless of the outcome of said action, necessary costs and disbursements
incurred together with actual attorney's fees up to the greater of (A) $25,000,
or (B) thirty percent (30%) of the amount in dispute between the parties [which
amount, for purposes of this Agreement, shall be deemed to be the difference
between the highest written settlement offer from the Bank and Company and the
lowest written settlement offer (exclusive of any claim for consequential,
punitive, or other forms or amounts of damages not based on specific contract
terms) from Executive]. Recovery by Executive of attorneys fees and costs as
provided herein following a change in control shall be in addition to any other
relief to which Executive may be entitled.
(iv) Withholding. The Bank shall be entitled to withhold from
amounts to be paid to the Executive under this Agreement any federal, state or
local withholding or other taxes of charges which it is from time to time
required to withhold. The Bank shall be entitled to rely on an opinion of
counsel if any question as to the amount or requirement of any such withholding
shall arise.
(v) Miscellaneous. No provision of this Agreement may be
amended, waived or discharged unless such amendment, waiver or discharge is
agreed to in writing and signed by the Executive and such officer as may be
specifically designated by the board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement; provided, however, that the parties acknowledge there is a separate
Employment Agreement between the Executive and the Company and that nothing
contained herein is
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intended to supercede or extinguish any of the rights or obligations created
therein. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Wisconsin.
(vi) 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.
(vii) Counterparts. This Agreement may be executed in several
counterparts, each of which together will constitute one and the same
instrument.
(viii) Headings. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of any
provision of this Agreement.
(ix) 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.
First Federal Capital Corporation Executive: Xxxxxx X. Xxxxxx
By:
------------------------------- ----------------------------------
Title
By:
------------------------------- ----------------------------------
----------------------------------
(Address)
First Federal Savings Bank,
LaCrosse-Madison
By:
-------------------------------
By:
-------------------------------
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