EMPLOYMENT AGREEMENT
Exhibit 10.23
THIS AGREEMENT made the 1st day of August, 2010, by and between ANCHORBANK FSB, a
federally-chartered depository financial institution having its principal office in Madison,
Wisconsin (hereinafter referred to as the “Company” or “AnchorBank” or “Employer”), and XXXXXX
XXXXX (hereinafter referred to as the “Employee”).
W I T N E S E T H:
WHEREAS, AnchorBank is in the banking business, providing a variety of financial services, to
its customers, including but not limited to, residential, commercial and consumer loans and
investments services throughout the State of Wisconsin.
WHEREAS, the Company wishes to assure itself of the services of the Employee for a limited
time period and in a special capacity as Chief Credit Risk Officer of the Company and the Employee
wishes to serve in the employ of the Company in such a capacity;
And
WHEREAS, the parties agree upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual agreements hereinafter set
forth, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Position. The Employee shall serve the Company in a special capacity as its Chief
Risk Officer. The Employee hereby represents that she is not bound by any confidentiality
agreements or restrictive covenants which restrict or may restrict her ability to perform her
duties hereunder, and agrees that she will not enter into any such agreements or covenants during
the term of her employment hereunder, except such restrictive covenants or confidentiality
agreements as are required by the Company. The Employee shall report to the Chief Executive Officer
(CEO), Xxxxx Xxxxx. The starting date of the position for purposes of this Agreement is August 1,
2010.
2. Duties. The Employee shall devote her full business and professional time and
attention to the performance of her duties and responsibilities hereunder. The Employee shall
perform such duties as providing professional, technical, analytical, and strategic advice and
assistance to the Company, including but not limited to, supervision over the Company’s Special
Assets Group, Commercial Credit Underwriting Group with credit approval authority, Business
Intelligence Analysis Group, Portfolio Management Group and Loan Operations Group, and shall render
such other services and duties as may be assigned from time to time by the Company. Employee’s
duties include, but are not limited to, management of personnel in the departments that she is
assigned, designing and recommending for approval by the CEO and Board of Directors policies and
procedures to minimize risk and maximize the Bank’s assets portfolios and loans and credit
operations and, upon approval, implementing and maintaining them and to otherwise establish and
carry out the operational mission of the Company. The Employee is to meet with the CEO as
requested and recommend policies, as above stated, for approval by the CEO, or the Board of
Directors as appropriate to insure sound credit risk practices.
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3. Location of Performance of Duties. It is anticipated that Employee will perform
her job duties at the corporate offices located in Madison, Wisconsin no less than three (3) days
per work week and the other days during the work week at remote locations as approved by the CEO.
However, the CEO reserves the right to increase the days to be worked at the corporate offices
based special circumstances as determined by the CEO.
4. Conduct. The Employee shall at all times during her employment by the Company:
4.1 Observe and conform to all federal, state and local laws;
4.2 Comply with all of the Company’s employment policies applicable to employees, including
the Company’s then-current Employee Handbook (the “Employee Handbook”);
4.3 All reasonable directions and orders of the CEO and/or his designee;
4.4 Otherwise act in a professional manner, setting the example of excellence to the
workforce, government officials and agencies, and community.
5. Reports. The Employee shall prepare any reports as requested by the CEO and/or his
designee on a timely basis.
6. Term of Employment and Compensation.
6.1 Term of Employment. The Company shall employ Employee for a period of one (1)
year, commencing on August 1, 2010 and ending on August 31, 2011, except as otherwise provided.
6.2 Salary. The Employee’s salary shall be $432,000 per annum, payable at the rate of
$36,000 per month in accordance with the Company’s normal payroll procedures.
6.3 EESA/ARRA. The Agreement is intended to comply with rules and regulations
pertaining to executive compensation under the Emergency Economic Stabilization Act of 2008 (EESA),
as amended by the American Recovery and Reinvestment Act of 2009 (the ARRA) and any amendments
thereto and regulations which may have impact on the Agreement, including those regulations which
became effective upon issuance by the U.S. Department of Treasury as 31 C.F.R. Part 30 on or about
June 15, 2009 (the “Regulations”). Effective during the period in which any obligation of the
Employers arising from financial assistance provided under the United States Treasury’s Troubled
Assets Relief Program (TARP) remains outstanding (but not including any period during which the
Federal Government only holds warrants to purchase common stock of the Company), such that the
Company is subject to Section 111 of EESA (the “TARP Participation Period”), Employers shall not,
and shall not be obligated to, pay or accrue any bonus, retention award or incentive compensation
or make any payment for Employee’s departure from the Employers for any reason (except for payments
for services performed or benefits accrued) to or for Executive to the extent prohibited by Section
111 of EESA or the Regulations. If in the opinion of tax or regulatory counsel selected by
Employers and acceptable to Executive, it is necessary to limit or reduce Employee’s compensation
pursuant to this Section 8(iii), the Company shall take all reasonable steps to restructure this
Agreement
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and Employee’s compensation and benefits in a manner intended to compensate the Employee
according to the original provisions and intent of this Agreement. This restructuring may, to the
extent permissible under EESA and/or the Regulations, include (a) delaying payments during the TARP
Participation Period to a time when the Company is no longer subject to Section 111 of EESA, or (b)
implementing payments or programs not originally contemplated by the parties. If in the opinion of
such counsel there are payments or amounts not capable of restructuring, such amounts or payments
shall be deemed waived by Employee and Employee agrees to accept such waiver; provided, however,
that if Employee believes such opinion to be incorrect, (A) Employers shall pay to the Employee the
maximum amount of payments and benefits which such opinion indicates there is a high probability do
not result in any such payment and benefits being in violation of EESA and/or the Regulations, and
(B) Employers may request, and Employee shall have the right to demand, that Employers request a
ruling from the IRS or other applicable regulatory authority as to whether the disputed payments
have such consequences. Any such request for a ruling shall be promptly prepared and filed by the
Employers, but in no event later than thirty (30) days from the date of the Employee’s request as
referred to above, and shall be subject to Employee’s approval prior to filing, which shall not be
unreasonably withheld. Employers and Employee agree to be bound by any ruling received and to make
appropriate payments to each other to reflect the impact of EESA and the Regulations on payments
made or to be made as reflected by such rulings, together with interest at the applicable federal
rate provided for in Section 7872(f)(2) of the Code.
In the event the Employers cease to be subject to ARRA and/or Section 111 of EESA and the
Regulations for any reason, any limitations on amounts or payments to Employee imposed by this
Section 6.3 shall cease to be effective. The parties to this Agreement recognize that further
regulations under AARA and EESA, in addition to the Regulations, may affect the amounts that may be
paid under this Agreement and agree that, upon issuance of any such further regulations this
Agreement may be modified as is in good faith deemed necessary in light of the provisions of such
regulations to achieve the intent and purposes of this Agreement, and that consent to such
modifications shall be unreasonably withheld.
7. Expense Reimbursement. During the term of this Agreement, the Company shall
reimburse the Employee for all reasonable and necessary out-of-pocket expenses incurred, such as,
mileage for commuting at the IRS approved rate, lodging, meals and other travel-related expenses or
other expense as determined by the Company with the Company’s prior written approval, by the
Employee in connection with the performance of her duties hereunder, upon the presentation of
proper accounts therefore in accordance with the Company’s policies. Such reimbursement will be
due within ten (10) days after the Company’s receipt of Employee’s request for reimbursement.
8. Benefits. During the term of this Agreement, the Employee shall be entitled to the
employee benefits as provided in the Employee Handbook, dated October 1, 2009. Employee, if she
satisfies the conditions for eligibility, will be eligible to receive such other benefits that are
available to employees with the similar job title and job classification as Employee, including
stock options and restricted stock as is authorized and approved by the Board of Directors.
9. Termination of Employment. Employee’s employment, whether by the Employee or the
Company, may be terminated before the end of the term of the Agreement, as follows:
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| (a) | By Company for Cause. Employee can be terminated by the Company’s Board of Directors or CEO at any time by written notice during the term of this Agreement for “Cause”, which shall include termination because of Employee’s personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving personal profit, intentional failure to perform stated duties, willful violation of any law, rule, or regulation (other than traffic violations or similar offenses) or final cease and desist order, or material breach of any provision of this contract. Should Employee be terminated for Cause under this provision, Employee will not be eligible to receive any further compensation or benefits for any period after such termination. | ||
| (b) | By Employee Resignation. If Employee voluntarily resigns from the Company, Employee agrees to give at least thirty (30) days written notice to the Company. Employee agrees to continue to provide services consistent with the terms of this Agreement throughout the thirty (30) day notice period and also to work with the Company, CEO, and any person designated by the CEO as a replacement for Employee to (i) wind up those matters with which Employee is involved which are capable of resolution within the notice period, and (ii) assist in the training of a replacement and in the transitioning of those matters not capable of being wound up within the notice period. In consideration of continuing to provide such services, together with providing assistance in the winding up and transitioning of matters, and contingent upon Employee providing the same during the entire thirty (30) day period, the Company agrees to pay Employee an amount equal to one month’s salary for such services. | ||
| (c) | Suspension or Termination Required by the OTS or FDIC. | ||
| (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. § 1818(e)(3) and (g)(l)], 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. § 1818(e)(4) or (g)(1)], all obligations of the Employers under the Agreement shall terminate as of the effective date of the order, but vested rights of the contracting parties shall not be affected. | |||
| (C) If the Bank is in default as defined in Section 3(x)(1) of the Federal Deposit Insurance Act [12 U.S.C. 1813 (x)(1)], all obligations under the |
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| 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. § 563.39, or any successor regulation, is repealed, this Section 9(c) shall cease to be effective on the effective date of such repeal. In the event that 12 C.F.R. § 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. |
10. Confidential Information.
10.1 Non-Disclosure. Employee acknowledges that AnchorBank is engaged in a highly
competitive industry which draws customers primarily from the local communities both in and
surrounding the locations of its corporate and branch offices throughout the State of Wisconsin.
AnchorBank has a proprietary interest in its information, including without limitation, data and
plans pertaining to marketing/strategic/business planning, pricing information, training, and
personnel information, all of which are highly confidential and/or constitute trade secrets.
Employee further acknowledges that AnchorBank obtains and compiles, at significant expense, highly
sensitive customer information, including, but not limited to, customer names, addresses, telephone
numbers, social security numbers, account numbers, and asset and/or investment information, such as
name, nature and amount of assets, date of transactions and other such information and that
AnchorBank has developed and implemented comprehensive security measures to protect such
information from unauthorized disclosure, which are required under federal, specifically, the Gramm
Xxxxx Xxxxxx Statute, and implementing regulations, known as Regulation P — Privacy of Consumer
Financial Information.
10.2 Employee acknowledges that such confidential and proprietary information is contained at
AnchorBank’s offices, in AnchorBank’s computer network systems, and other electronic communication
devices which Employee may be given access.
10.3 Employee acknowledges that such confidential and proprietary information is owned and
shall continue to be owned by AnchorBank. Except as provided in this paragraph, Employee agrees:
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10.3.1 During the term of her employment and for a period of one (1) year after such
employment terminates, not to use such information for any purpose whatsoever or to divulge
such information to any person other than AnchorBank or persons to whom AnchorBank has given
its consent unless such information has already become common knowledge or unless Employee
is compelled to disclose it by governmental process;
10.3.2 To the extent that such information constitutes information protected by the
Uniform Trade Secrets Act, Section 134.90, Wis. Stats., Employee agrees not to use or
divulge such information, during the term of her employment and thereafter indefinitely,
until such information is no longer protected by the foregoing statute or unless AnchorBank
has given its consent;
10.3.3 To the extent that such information constitutes information protected by the
Gramm Xxxxx Xxxxxx Statute, Employee agrees not to use or divulge customer personal
information, such as, social security numbers, account numbers, and asset and/or investment
information, such as name, nature and amount of assets, date of transactions and other such
information, during the term of his/her employment and thereafter indefinitely.
10.4 Upon termination, all documents and information listed in paragraph 10.1 shall be
returned to AnchorBank, unless otherwise authorized by AnchorBank. To the extent the property
belongs to any other affiliate of AnchorBank, AnchorBank will forward the information to the
affiliate.
10.5 Employee agrees not to make any copies of any trade secret or confidential information
for use outside of AnchorBank’s office except as specifically authorized in writing by AnchorBank.
10.6 Notice of Disclosure. In the event that the Employee is required, by oral
questions, interrogatories, requests for information or documents, subpoena, civil investigative
demand or similar process, to disclose any confidential material relating to the Company, the
Employee shall provide the Company with prompt notice thereof so that the Company may seek an
appropriate protective order and/or waive compliance by the Employee with the provisions hereof;
provided, however, that if in the absence of a protective order or the receipt of such a waiver,
the Employee is, in the opinion of counsel for the Company or the Employee, compelled to disclose
confidential material not otherwise disclosable hereunder to any legislative, judicial or
regulatory body, agency or authority, or else be exposed to liability for contempt, fine or penalty
or to other censure, such confidential material may be so disclosed.
11. Discoveries and Inventions. Employee agrees that all inventions, designs,
improvements, writings, research, analysis, and discoveries made during the term of this Agreement
and pertaining to the business conducted by AnchorBank shall be the exclusive property of
AnchorBank, as determined solely by AnchorBank. Employee shall assist AnchorBank in obtaining
patents, trademarks, service marks and/or copyrights on all such inventions, designs, improvements,
writings and discoveries deemed suitable for patent, trademark, service xxxx, or copyright by
AnchorBank, and shall execute all documents and do
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all things necessary to obtain letters, patents, or copyrights, vest AnchorBank with full and
exclusive title thereto, and protect the same against infringements by others.
12. Goodwill. At no time, may Employee take any action or make any statement the
effect of which is intended to disparage the goodwill of the Company or the business reputation or
good name of the Company, its officers, directors or employees, or be otherwise detrimental to the
Company.
13. Equitable Relief/Court Jurisdiction. In the event of a breach or threatened
breach of this Agreement, the non-breaching party shall be entitled to pre-judgment injunctive
relief or similar equitable relief (and the breaching party shall reimburse the Company for the
costs and reasonable attorneys’ fees of procuring such an injunction or relief) restraining the
breaching party from committing or continuing any such breach or threatened breach or granting
specific performance of any act required to be performed, without the necessity of showing any
actual damage or that money damages would not afford an adequate remedy and without the necessity
of posting any bond or other security. The parties also hereby consent to the jurisdiction of the
Federal courts located in the Western District of Wisconsin and the state courts located in Dane
County for any proceedings under this Agreement. Nothing herein shall be construed as prohibiting
either party from pursuing any other remedies at law or in equity which it may have.
14. Successors and Assigns. The Employee may not assign this Agreement or any part
thereof.
15. Governing Law. This Agreement shall be deemed a contract made under, and for all
purposes shall be construed in accordance with, the laws of the State of Wisconsin applicable to
contracts to be performed entirely within such State.
16. Entire Agreement. This Agreement contains all the understandings and
representations between the parties hereto pertaining to the subject matter hereof and it
supersedes all undertakings and agreements, whether oral or in writing, if there be any, previously
entered into by them with respect thereto.
17. Amendment. No modification, amendment or addition to this Agreement will be valid
or enforceable unless it is in writing and signed by both parties.
18. Waiver. Failure to insist upon the full performance of an obligation or failure
to exercise rights under this Agreement shall not constitute a waiver as to future defaults or
exercise of rights.
19. Notices. All notices, demands and other communications which may or are required
to be given under this Agreement must be in writing, must be given either by personal delivery or
by registered or certified mail and will be deemed to have been given when personally delivered or
when deposited in the mail, postage prepaid, addressed to the residence of Employee or her legal
representative or to the business address of the Company, as the case may be, or to such other
addresses either party may designate by written notice to the other party.
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20. Severability. The invalidity or unenforceability of any particular provision of
this Agreement shall not affect the other provisions hereof and this Agreement shall be construed
in all respects as if such invalid or unenforceable provisions were omitted.
21. Survivorship. The respective rights and obligations of the parties hereunder
shall survive any termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
22. Counterparts. This Agreement may be executed in counterparts, both of which shall
be deemed an original, but all of which taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above
written.
| ANCHORBANK FSB | ||||||
| By: | ||||||
| Xxxxx Xxxxx, Chief Executive Officer | ||||||
| EMPLOYEE: | ||||||
| Xxxxxx Xxxxx, Chief Credit Risk Officer | ||||||
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