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EXHIBIT 10.19
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is effective as of October 1, 1996 between St.
Xxxxxxx Capital Corporation (the "Company"), a Wisconsin-chartered corporation,
St. Xxxxxxx Bank, F.S.B. (the "Bank"), a federally-chartered savings and loan
and wholly-owned subsidiary of the Company, their respective successors and
assigns, and Xxxxxx X. Xxxx (the "Executive").
RECITALS
WHEREAS, Executive is a key employee, whose extensive background, knowledge
and experience in the savings and loan industry has substantially benefitted the
Bank and Company and whose continued employment as an executive member of their
respective management teams in the positions of President and Chief Executive
Officer ("Corporate Position") will continue to benefit the Bank and Company in
the future; and
WHEREAS, the parties are mutually desirous of entering into this Agreement
setting forth the terms and conditions for the employment relationship between
the Bank, Company (sometimes collectively referred to herein as the
"Employers"), and Executive; and
WHEREAS, the respective Boards of Directors of the Employers have approved
and authorized their entry into this Agreement with Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below:
1. Employment. The Bank and Company shall continue to employ Executive,
and Executive shall continue to serve the Bank and Company, on the terms,
conditions and for the period set forth in Section 2 of this Agreement.
2. Term of Employment. The period of Executive's employment under this
Agreement shall begin as of October 1, 1996 (the Commencement Date) and expire
on the third anniversary of the date immediately preceding the Commencement
Date, unless sooner terminated as provided herein; provided that, on each date
immediately preceding the anniversary of the Commencement Date, the term of
employment may be extended by action of the Bank's and Company's Boards of
Directors, following an explicit review by said Boards of the Executive's
performance under this Agreement (with appropriate documentation thereof and
after taking into account all relevant factors including Executive's performance
hereunder), to add one additional year to the remaining term of employment
annually restoring such term to a full three-years. The Board of
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Directors or Executive shall each provide the other with at least ninety (90)
days' advance written notice of any decision on their respective parts not to
extend the Agreement on any date immediately preceding an anniversary of the
Commencement Date. The term of employment as in effect from time to time
hereunder shall be referred to as the "Employment Term".
3. Positions and Duties. Executive shall serve the Bank and Company in
his Corporate Position as President and Chief Executive Officer of each
respectively. As such, Executive shall report directly to their Boards of
Directors, be elected to or nominated as a management candidate for election to
the respective Boards of Directors upon expiration of each term thereon while
this Agreement remains in effect, serve as a member of the Bank's and Company's
Management Committees and be generally responsible for selection and supervision
of the Bank's and Company's management personnel and for the formulation of
their business and personnel policies, rendering executive, policy-making and
other management services of the type customarily performed by persons serving
in similar capacities at other institutions, together with such other duties and
responsibilities as may be appropriate to Executive's position and as may be
from time to time determined by the Bank's and Company's Boards of Directors to
be necessary to their operations and in accordance with their bylaws.
4. Compensation. As compensation for services provided pursuant to this
Agreement, Executive shall receive from the Bank the compensation and benefits
set forth below:
(i) Base Salary. During the Employment Term, Executive shall
receive from Employers a base salary ("Base Salary") in such amount as
may from time to time be approved by their Boards of Directors. The
Base Salary shall at no time be less than $264,448 per annum,
payable by the Bank and Company in such proportion as shall be
determined by their Boards of Directors. The Base Salary may be
increased from time to time as determined by the Employers' Boards of
Directors, provided that no such increase in Base Salary or other
compensation shall in any way limit or reduce any other obligation of
the Employers under this Agreement. Once established at a specified
annual rate, Executive's Base Salary shall not thereafter be reduced
except as part of a general pro-rata reduction in compensation
applicable to all Executive Officers; provided, however, that no such
reduction shall be permitted following a "change in control" as
defined herein. Executive's Base Salary and other compensation shall
be paid in accordance with the Employers' regular payroll practices as
from time to time in effect. For purposes of this Agreement, the term
"Executive Officers" shall mean all officers of the Bank and/or
Company having a written Employment Agreement.
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(ii) Bonus and Incentive Plans. Executive shall be entitled, during
the Employment Term, to participate in and receive payments from all bonus
and other incentive compensation plans (as currently in effect, as modified
from time to time, or as subsequently adopted); provided, however, that
nothing contained herein shall grant Executive the right to continue in any
bonus or other incentive compensation plan following its discontinuance by
the Board or Boards (except to the extent Executive had earned or otherwise
accumulated vested rights therein prior to such discontinuance). In
addition, Executive shall participate in all stock purchase, stock option,
stock appreciation right, stock grant, or other stock based incentive
programs of any type made available by Employers to their Executive
Officers. The Employers shall not make any changes in such plans, benefits
or privileges which would adversely affect Executive's rights or benefits
thereunder, unless such change occurs pursuant to a program applicable to
all Executive Officers of the Employers and does not result in a
proportionately greater adverse change in the rights and benefits of
Executive as compared with other Executive Officers.
(iii) Other Benefits. During the Employment Term, Employers shall
provide to Executive all other benefits of employment (or, with Executive's
consent, equivalent benefits) generally made available to other Executive
Officers. Such benefits shall include participation by Executive in any
group health, life, disability, or similar insurance program and in any
pension, profit-sharing, Employee Stock Ownership Plan ("ESOP"), 401(k) or
other or similar retirement program. Employers shall continue in effect
any individual insurance plans or deferred compensation agreements in
effect as of the Commencement Date and Executive shall be entitled to use
of an automobile provided by Employers under the terms of such corporate
automobile policy as they shall maintain in effect and as it may be amended
from time to time.
Executive shall receive vacation, sick time, personal days and other
perquisites in the same manner and to the same extent as provided under the
Employers' policies as in effect from time to time for other Executive
Officers. Employers shall also reimburse Executive or otherwise provide
for or pay all reasonable expenses incurred by Executive in furtherance of
or in connection with the business of Employers, including but not by way
of limitation, travel expenses and all reasonable entertainment expenses
(whether incurred at Executive's residence, while traveling or otherwise)
subject to such reasonable documentation and other limitations as may be
imposed by the Boards of Directors of the Employers.
Nothing contained herein shall be construed as granting Executive the
right to continue in any benefit plan or
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program, or to receive any other perquisite of employment provided under
this subsection 4(iii) following termination or discontinuance of such
plan, program or perquisite by the Board (except to the extent Executive
had previously earned or accumulated vested rights therein).
5. Termination Other Than Following a Change-In-Control. This Agreement
may be terminated, subject to payment of the compensation and other benefits
described below, upon occurrence of any of the events described herein. In case
of such termination, the date on which Executive ceases to be employed under
this Agreement, after giving effect to any prior notice requirement, is referred
to as the "Termination Date".
(i) Death, Retirement. This Agreement shall terminate at the death
or retirement of Executive. As used herein, the term "retirement" shall
mean Executive's retirement in accordance with and pursuant to any
retirement plan of the Employers generally applicable to Executive Officers
or in accordance with any retirement arrangement established for Executive
with his consent.
If termination occurs for such reason, no additional compensation
shall be payable to Executive under this Agreement except as specifically
provided herein. Notwithstanding anything to the contrary contained
herein, Executive shall receive all compensation and other benefits to
which he was entitled under Section 4 through the Termination Date and, in
addition, shall receive all other benefits available to him under the
Bank's benefit plans and programs to which he was entitled by reason of
employment through the Termination Date.
(ii) Disability. This Agreement shall terminate upon the
disability of Executive. As used in this Agreement, "disability" shall
mean Executive's inability, as the result of physical or mental incapacity,
to substantially perform his employment duties for a period of 90
consecutive days. Any question as to the existence of Executive's
disability upon which Executive and Employers cannot agree shall be
determined by a qualified independent physician mutually agreeable to
Executive and Employers or, if the parties are unable to agree upon a
physician within ten (10) days after notice from either to the other
suggesting a physician, by a physician designated by the then president of
the medical society for the county in which Executive maintains his
principal residence. The costs of any such medical examination shall be
borne by the Employers. If Executive is terminated due to disability, he
shall be paid 100% of his Base Salary at the rate in effect at the time
notice of termination is given for one year and thereafter an annual amount
equal to 75% of such Base Salary for any remaining portion of the
Employment Term, such amounts
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to be paid in substantially equal monthly installments and offset by any
monthly payments actually received by Executive during the payment period
from (i) any disability plans provided by the Employers, and/or (ii) any
governmental social security or workers compensation program.
If termination occurs for such reason, no additional compensation
shall be payable to Executive except as specifically provided herein.
Notwithstanding anything to the contrary contained herein, Executive shall
receive all compensation and other benefits to which he was entitled under
Section 4 through the Termination Date and, in addition, shall receive all
other benefits under the Employers' benefit plans and programs to which he
was entitled by reason of employment through the Termination Date.
(iii) Cause. Employers may terminate Executive's employment under
this Agreement for cause at any time, and thereafter their obligations
under this Agreement shall cease and terminate. Notwithstanding anything
to the contrary contained herein, Executive shall receive all compensation
and other benefits in which he was vested or to which he was otherwise
entitled under Section 4, and the plans and programs provided therein, by
reason of employment through the Termination Date.
For purposes of this Agreement, "Cause" shall mean:
(A) The intentional failure by Executive to substantially perform
assigned duties (appropriate to his position and level of
compensation) with the Bank (other than any such failure
resulting from the Executive's incapacity due to physical or
mental illness) after a written demand for substantial
performance is delivered to Executive by the Board, which demand
specifically identifies the manner in which the Board believes
Executive has not substantially performed his duties, advises
Executive of what steps must be taken to achieve substantial
performance, and allows Executive Sixty (60) days in which to
demonstrate such performance;
(B) Any willful act of misconduct by Executive;
(C) A criminal conviction of Executive for any act involving
dishonesty, breach of trust or a violation of the banking or
savings and loan laws of the United States;
(D) A criminal conviction of Executive for the commission of any
felony;
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(E) A breach of fiduciary duty involving personal profit;
(F) A willful violation of any law, rule or regulation (other than a
traffic violation or similar offenses) or final cease and desist
order; or
(G) Personal dishonesty or material breach of any provision of this
Agreement.
For purposes of this Subsection (5)(iii), no act, or failure to act, on
Executive's part shall be deemed "willful" unless done, or omitted to be
done, by Executive not in good faith and without reasonable belief that the
action or omission was in the best interest of the Employers.
(iv) Voluntary Termination by Executive. Executive may voluntarily
terminate his employment under this Agreement at any time by giving at
least thirty (30) days prior written notice to Employers. In such event,
Executive shall receive all compensation and other benefits in which he was
vested or to which he was otherwise entitled under Section 4 through the
date specified in such notice (the "Termination Date"), in addition to all
other benefits available to him under benefit plans and programs to which
he was entitled by reason of employment through the Termination Date.
(v) Suspension or Termination Required by the OTS
(A) If Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Employers' affairs by a
notice served under section 8(e)(3), or section 8(g)(1), of the
Federal Deposit Insurance Act [12 U.S.C. Section 1818(e)(3) and
(g)(1)], the Employers' obligations under the Agreement shall be
suspended as of the date of service of the notice unless stayed
by appropriate proceedings. If the charges in the notice are
dismissed, the Employers shall (i) pay Executive all of the
compensation withheld while their obligations under this
Agreement were suspended, and (ii) reinstate such obligations as
were suspended.
(B) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Employers' affairs by an
order issued under section 8(e)(4) or section 8(g)(1) of the
Federal Deposit Insurance Act [12 U.S.C. Section 1818(e)(4) or
(g)(1)], the obligations of the Employers under the Agreement
shall terminate as of the effective date of the order, but vested
rights of the contracting parties shall not be affected.
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(C) If the Bank is in default as defined in section 3(x)(1) of the
Federal Deposit Insurance Act [12 U.S.C. 1813 (x)(1)], all
obligations under the Agreement shall terminate as of the date of
default, but this paragraph shall not affect any vested rights of
the Executive.
(D) All obligations under the Agreement shall be terminated, except
to the extent determined that continuation of the contract is
necessary for the Employers' continued operations (i) by the
Director of the OTS, or his or her designee at the time the FDIC
or Resolution Trust Corporation ("RTC") enters into an agreement
to provide assistance to or on behalf of the Employers under the
authority contained in section 13(c) of the Federal Deposit
Insurance Act; or (ii) by the Director of the OTS, or his or her
designee, at the time it approves a supervisory merger to resolve
problems related to operation of the Employers or when the
Employers are determined by the Director of the OTS to be in an
unsafe or unsound condition. Any rights of the parties that have
already vested, however, shall not be affected by such action.
(E) In the event that 12 C.F.R. Section 563.39, or any successor
regulation, is repealed, this section 5(v) shall cease to be
effective on the effective date of such repeal. In the event that
12 C.F.R. Section 563.39, or any successor regulation, is
amended or modified, this Agreement shall be revised to reflect
the amended or modified provisions if: (1) the amended or
modified provision is required to be included in this Agreement;
or (2) if not so required, the Executive requests that the
Agreement be so revised.
(vi) Other Termination. If this Agreement is terminated (1) by the
Employers other than for cause, death, disability or retirement (and other
than following a change in control as defined in Section 6), or (2) by
Executive due to a failure by Employers to comply with any material
provision of this Agreement, which failure has not been cured within thirty
(30) days after notice of such non-compliance has been given by Executive
to Employers; then following the Termination Date:
(A) In lieu of any further salary payments to Executive subsequent to
the Termination Date, Executive shall receive Severance Pay for a
twenty-four (24) month period in accordance with the Employers'
normal payroll practices, beginning with the first pay date
following the Termination Date. The monthly
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rate of Severance Pay shall be the monthly Base Salary received
by Executive (based on his highest rate of Base Salary within the
3 years preceding his Termination Date) plus one-twelfth of the
total bonus and incentive compensation paid to or vested in
Executive on the basis of his most recently completed calendar
year of employment.
(B) Employers shall maintain and provide for the period during which
Severance Payments are to be made and ending at the earlier of
(i) the expiration of such period, or (ii) the date of the
Executive's full-time employment by another employer (provided
that the Executive is entitled under the terms of such employment
to benefits substantially similar to those described in this
subparagraph (B)), at no cost to the Executive, the Executive's
continued participation in all group insurance, life insurance,
health and accident, disability and other employee benefit plans,
programs and arrangements in which Executive was entitled to
participate immediately prior to the Termination Date (other than
retirement plans, deferred compensation, or stock compensation
plans of the Employers), provided that in the event Executive's
participation in any plan, program or arrangement as provided in
this subparagraph (B) is barred, or during such period any such
plan, program or arrangement is discontinued or the benefits
thereunder are materially reduced, the Employers shall arrange to
provide the Executive with benefits substantially similar to
those which the Executive was entitled to receive under such
plans, programs and arrangements immediately prior to the
Termination Date.
(C) In addition to such Severance Pay and continued benefits,
Executive shall receive all other compensation and benefits in
which he was vested or to which he was otherwise entitled under
Section 4 and the plans and programs provided therein by reason
of employment through the Termination Date.
6. Termination by Executive After Change in Control.
(i) Definition "Change in Control". For purposes of this Agreement, a
"change in control" shall mean any change in control with respect to the
Bank or Company that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended ("Exchange Act") or any successor thereto;
provided that, without limitation, a change
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in control shall be deemed to have occurred if (i) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities representing 25% or more of the
combined voting power of the Bank's or Company's then outstanding
securities; or (ii) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of 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.
(ii) Good Reason for Executive Termination. The Executive may
terminate his employment under this Agreement for "good reason" by giving
at least thirty (30) days prior written notice to the Bank at any time
within twenty-four (24) months of the effective date of a change in
control. Occurrence of any of the following events shall constitute good
reason:
(A) Without the Executive's express written consent, assignment by
the Employers of any duties which are materially inconsistent
with Executive's positions, duties, responsibilities and status
with the Employers immediately prior to a change in control, or a
material change in the Executive's reporting responsibilities,
titles or offices as in effect immediately prior to such change
in control, or any removal of the Executive from or any failure
to re-elect the Executive to all or any portion of his Corporate
Position, except in connection with a termination of Executive's
employment for cause, disability, retirement or death (or by the
Executive other than for good reason as defined in this section
6(B)).
(B) Without the Executive's express written consent, a reduction by
the Employers in the Executive's Base Salary as in effect on the
date of the change in control or as the same may have been
increased from time to time thereafter;
(C) The principal executive offices of either of the Employers are
relocated outside of the Milwaukee, Wisconsin metropolitan area
or, without the Executive's express written consent, the
Employers require the Executive to be based anywhere other than
an area in which the Employers principal executives offices are
located, except for required
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travel on business of the Employers to an extent substantially
consistent with the Executive's present business travel
obligations;
(D) Without Executive's express written consent, the Employers fail
or refuse to continue Executive's participation in incentive
compensation and stock incentive programs comparable to either
(1) those in effect prior to the change in control or (2) those
subsequently in effect for the senior executives of any acquiring
company effecting the change in control;
(E) Without Executive's express written consent, Employers fail to
provide the Executive with the same fringe benefits that were
provided to Executive immediately prior to a change in control,
or with a package of fringe benefits (including paid vacations)
that, though one or more of such benefits may vary from those in
effect immediately prior to such change in control, is
substantially comparable in all material respects to such fringe
benefits taken as a whole;
(F) Any purported termination of the Executive's employment for
cause, disability or retirement which is not effected in
accordance with the notice requirements applicable under this
Agreement; or
(G) The failure by either of the Employers to obtain the assumption
of, or an agreement to perform this Agreement by any successor as
contemplated in Section 7(i) hereof;
(iii) Benefits Upon Termination by Executive After a "Change in Control".
If this Agreement is terminated by Executive for good reason following a change
in control, then following the Termination Date:
(A) In lieu of any further salary payments to Executive subsequent to
the Termination Date, Executive shall receive Severance Pay for
the longer of (i) the remaining unexpired term of the agreement
as in effect immediately prior to the Termination Date, or (ii) a
thirty-six (36) month period. Payments shall be made in
accordance with the Employers' normal payroll practices,
beginning with the first pay date following the Termination Date.
The monthly rate of Severance Pay shall be the average monthly
Base Salary received by Executive (based on his highest rate of
Base Salary within the 3 years preceding his Termination Date)
plus one-twelfth of
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the total bonus and incentive compensation paid to or vested in
Executive on the basis of his most recently completed calendar
year of employment.
(B) Employers shall maintain and provide for the period during which
Severance Payments are to be made and ending at the earlier of
(i) the expiration of such period, or (ii) the date of the
Executive's full-time employment by another employer (provided
that the Executive is entitled under the terms of such other
employment to benefits substantially similar to those described
in this subparagraph (B)), at no cost to the Executive, the
Executive's continued participation in all group insurance, life
insurance, health and accident, disability and other employee
benefit plans, programs and arrangements in which the Executive
was entitled to participate immediately prior to the Termination
Date (other than retirement and deferred compensation plans and
individual insurance policies covered under subsection 6(C) or
stock compensation plans of the Employers), provided that in the
event Executive's participation in any plan, program or
arrangement as provided in this subparagraph (B) is barred, or
during such period any such plan, program or arrangement is
discontinued or the benefits thereunder are materially reduced,
the Employers shall arrange to provide Executive with benefits
substantially similar to those Executive was entitled to receive
under such plans, programs and arrangements immediately prior to
the Termination Date.
(C) Executive shall also receive all other compensation and benefits
in which he was vested or to which he was otherwise entitled
under section 4 and the plans and programs provided therein by
reason of employment through the Termination Date. In addition to
benefits to which Executive is entitled under retirement and
deferred compensation plans and individual insurance policies
maintained by Employers (hereinafter collectively referred to as
"Plan"), Executive shall receive as additional severance benefits
a benefit paid under this Agreement, which benefit shall be
determined in accordance with and paid under this Agreement, but
in the form and at the times provided in the Plan. Such benefits
shall be determined as if Executive were fully vested under the
Plan and had accumulated (after any termination under this
Agreement) the additional years of credit service under the
applicable Plan that he would have
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received had he continued in the employment of the Bank for the
period during which Severance Payments are to be made and at the
annual compensation level represented by such payments. Such
Severance Payment level shall be deemed to represent the
compensation received by Executive during each such additional
year for purposes of determining his additional benefits under
this Subsection 6(C).
(iv) Limitation of Benefits under Certain Circumstances. If the severance
benefits payable to Executive under this Section 6 ("Severance Benefits"), or
any other payments or benefits received or to be received by Executive from
Employers (whether payable pursuant to the terms of this Agreement, any other
plan, agreement or arrangement with the Employers or any corporation affiliated
with the Employers ("Affiliate") within the meaning of Section 1504 of the
Internal Revenue Code of 1954, as amended (the "Code")), in the opinion of tax
counsel selected by the Employers's independent auditors and acceptable to
Executive, constitute "parachute payments" within the meaning of Section
280G(b)(2) of the Code, and the present value of such "parachute payments"
equals or exceeds three times the average of the annual compensation payable to
Executive by the Employers (or an Affiliate) and includable in Executive's gross
income for federal income tax purposes for the five (5) calendar years preceding
the year in which a change in ownership or control of the Employers occurred
("Base Amount"), such Severance Benefits shall be reduced, in a manner
determined by Executive, to an amount the present value of which (when combined
with the present value of any other payments or benefits otherwise received or
to be received by Executive from the Employers (or an Affiliate) that are deemed
"parachute payments") is equal to 2.99 times the Base Amount, notwithstanding
any other provision to the contrary in this Agreement. The Severance Benefits
shall not be reduced if (A) Executive shall have effectively waived his receipt
or enjoyment of any such payment or benefit which triggered the applicability of
this Section 6(iv), or (B) in the opinion of such tax counsel, the Severance
Benefits (in its full amount or as partially reduced, as the case may be) plus
all other payments or benefits which constitute "parachute payments" within the
meaning of Section 280G(b)(2) of the Code are reasonable compensation for
services actually rendered, within the meaning of Section 280G (b)(4) of the
code, and such payments are deductible by the Employers. The Base Amount shall
include every type and form of compensation includable in Executive's gross
income in respect of his employment by the Employers (or an Affiliate), except
to the extent otherwise provided in temporary or final regulations promulgated
under Section 280G (b) of the Code. For purposes of this Section 6(iv), a
"change in ownership or control" shall have the meaning set forth in Section
280G(b) of the Code and any temporary or final regulations promulgated
thereunder. The present value of any non-cash benefit or any deferred cash
payment shall be determined by the Employers' independent auditors in
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accordance with the principles of Sections 280G (b)(3) and (4) of the Code.
In the event that Employers and/or the Executive do not agree with the
opinion of such counsel, (A) Employers shall pay to the Executive the maximum
amount of payments and benefits pursuant to Section 6, as selected by the
Executive, which such opinion indicates that there is a high probability do not
result in any of such payments and benefits being non-deductible to the
Employers and subject to the imposition of the excise tax imposed under Section
4999 of the Code and (B) Employers may request, and Executive shall have the
right to demand the Employers request, a ruling from the IRS as to whether the
disputed payments and benefits pursuant to Section 6 hereof have such
consequences. Any such request for a ruling from the IRS shall be promptly
prepared and filed by the Employers, but in no event later than thirty (30) days
from the date of the opinion of counsel referred to above, and shall be subject
to Executive's approval prior to filing, which shall not be unreasonably
withheld. Employers and Executive agree to be bound by any ruling received from
the IRS and to make appropriate payments to each other to reflect any such
rulings, together with interest at the applicable federal rate provided for in
Section 7872(f)(2) of the Code. Nothing contained herein shall result in a
reduction of any payments or benefits to which the Executive may be entitled
upon termination of employment under any circumstances other than as specified
herein or a reduction in payments and benefits other than those provided in this
Section 6.
In the event that Section 280G, or any successor statute, is repealed, this
Section 6 shall cease to be effective on the effective date of such repeal. The
parties to this Agreement recognize that final regulations under Section 280G of
the Code may affect the amounts that may be paid under this Agreement and agreed
that, upon issuance of such final regulations this Agreement may be modified as
in good faith deemed necessary in light of the provisions of such regulations to
achieve the purposes of this Agreement, and that consent to such modifications
shall not be unreasonably withheld.
7. General Provisions.
(i) Successors; Binding Agreement.
(A) Employers will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Employers
("successor organization") to expressly assume and agree to
perform this Agreement in the same manner and to the same extent
that Employers would have been required to perform if no such
succession had taken place or to re-execute this Agreement as
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provided pursuant to section 6(ii)(G). If such succession is the
result of a "change in control" as defined herein, such
assumption shall specifically preserve to Executive, for the
greater of twenty-four (24) months or the then remaining term of
this Agreement, the same rights and remedies (recognizing them as
being available and applicable as the result of the "change in
control" effectuating said succession) as provided under this
Agreement upon a "change in control".
As used in this Agreement "Employers" shall mean the
Employers as hereinbefore defined (and any successor to their
business and/or assets) which executes and delivers the agreement
provided for in this Section 7 or which otherwise becomes bound
by the terms and provisions of this Agreement by operation of
this Agreement or law. Failure of the Employers to obtain such
agreement prior to the effectiveness of any such succession shall
be a breach of this Agreement and shall entitle Executive, if he
elects to terminate this Agreement, to compensation from the
Employers in the same amount and on the same terms as he would be
entitled to under this Agreement if he terminated his employment
under Section 6. For purposes of implementing the foregoing, the
date on which any such succession becomes effective shall be
deemed the Termination Date.
(B) No right or interest to or in any payments or benefits under this
agreement shall be assignable or transferable in any respect by
the Executive, nor shall any such payment, right or interest be
subject to seizure, attachment or creditor's process for payment
of any debts, judgments, or obligations of Executive.
(C) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by (1) Executive and his heirs, beneficiaries
and personal representatives, and (2) the Employers and any
successor organization.
(ii) Noncompetition Provision. Executive acknowledges that the
development of personal contacts and relationships is an essential element
of the savings and loan business, that Employers has invested considerable
time and money in his development of such contacts and relationships, that
Employers could suffer irreparable harm if he were to leave employment and
solicit the business of the Employers customers, and that it is reasonable
to protect the Employers against competitive
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activities by Executive. Executive covenants and agrees, in recognition of
the foregoing and in consideration of the mutual promises contained herein,
that in the event of a voluntary termination of employment by Executive
pursuant to Section 5(iii), or upon expiration of this Agreement as a
result of Executive's election (but not as the result of an election by
Employers) not to continue automatic annual renewals, Executive shall not
accept employment with any Significant Competitor of Bank for 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, or during the period
of this covenant not to compete, has a home, branch or other office in
Milwaukee County or which has, during the twelve (12) months preceding
Executive's termination, originated, or which during the period of this
covenant not to compete originates, more than $50,000,000 in commercial or
mortgage loans secured by real property in any such county.
Executive agrees that the non-competition provisions set forth herein
are necessary for the protection of the Employers and are reasonably
limited as to (i) the scope of activities affected, (ii) their duration and
geographic scope, and (iii) their effect on Executive and the public. In
the event Executive violates the non-competition provisions set forth
herein, the Employers shall be entitled, in addition to its other legal
remedies, to enjoin the employment of Executive with any Significant
Competitor for the period set forth herein. If Executive violates this
covenant and the Employers bring legal action for injunctive or other
relief, the Employers shall not, as a result of the time involved in
obtaining such relief, be deprived of the benefit of the full period of the
restrictive covenant. Accordingly, the covenant shall be deemed to have
the duration specified herein, computed from the date such relief is
granted, but reduced by any period between commencement of the period and
the date of the first violation.
(iii) Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Bank or Company:
St. Xxxxxxx Capital Corporation
0000 Xxxxx Xxxxxxxxxxxx Xxxxxx
-00-
00
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Secretary
If to the Executive:
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
(iv) Expenses. If any legal proceeding is necessary to enforce or
interpret the terms of this Agreement (or to recover damages for breach of
it) in the absence of a change in control, the prevailing party shall be
entitled to recover from the other party reasonable attorneys' fees and
necessary costs and disbursements incurred in such litigation, in addition
to any other relief to which such prevailing party may be entitled.
Notwithstanding the foregoing, in the event of a legal proceeding to
enforce or interpret the terms of this Agreement following a change in
control or a re-execution of this Agreement pursuant to section 6(ii)(G),
the only recoverable costs shall be those which Executive shall be entitled
to recover from the Bank (i.e. reasonable attorneys' fees and necessary
costs and disbursements incurred in such litigation), which fees shall be
recoverable only if the Executive is the prevailing party. Recovery of
attorneys' fees and costs as provided herein following a change in control
or re-execution shall be in addition to any other relief to which Executive
may be entitled.
(v) Withholding. Employers shall be entitled to withhold from
amounts to be paid to Executive under this Agreement any federal, state, or
local withholding or other taxes or charges which it is from time to time
required to withhold. Employers shall be entitled to rely on an opinion of
counsel if any question as to the amount or requirement of any such
withholding shall arise.
(vi) Notice of Termination. Any purported termination by the
Employers under Sections 5(i), (ii), (iii) or (iv), or by Executive under
Sections 5(vi) or 6(ii) shall be communicated by written "Notice of
Termination" to the other party. For purposes of this Agreement, a "Notice
of Termination" shall mean a dated notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis
for termination under
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the provision so indicated, (iii) specifies a Date of Termination, which
shall be not less than thirty (30) nor more than ninety (90) days after
such Notice of Termination is given, except in the case of termination of
Executive's employment for Cause; and (iv) is given in the manner specified
in Section 7(iii) of this Agreement.
(vii) Miscellaneous. No provision of this Agreement may be amended,
waived or discharged unless such amendment, waiver or discharge is agreed
to in writing and signed by Executive and such officers of the Employers
as may be specifically designated by the Board. No waiver by either party
hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been
made by either party which are not expressly set forth in this Agreement
and it is agreed that execution of this Agreement shall result in its
superseding and extinguishing any rights of Executive under any other
employment agreement previously in effect between himself, the Employers,
or any of their affiliates. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Wisconsin.
(viii) Mitigation; Exclusivity of Benefits. The Executive shall not
be required to mitigate the amount of any benefits hereunder by seeking
other employment or otherwise, nor shall the amount of any such benefits be
reduced by any compensation earned by the Executive as a result of
employment by another employer after the Termination Date or otherwise.
(ix) Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any
other provision of this Agreement, which shall remain in full force and
effect.
(x) Counterparts. This Agreement may be executed in several
counterparts, each of which together will constitute one and the same
instrument.
(xi) Headings. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of any
provision of this Agreement.
(xii) Effective Date. The effective date of this Agreement shall be
the date indicated in the first section of this Agreement, notwithstanding
the actual date of execution by any party.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the date first above written.
Executive:
----------------------------------
Xxxxxx X. Xxxx
ST. XXXXXXX CAPITAL CORPORATION
By:
------------------------------
Its:
------------------------------
ST. XXXXXXX BANK, F.S.B.
By:
------------------------------
Its:
------------------------------
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