MARK D. TIMMERMAN EMPLOYMENT AGREEMENT
Exhibit 10.11
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
THIS AGREEMENT made the 1st day of March, 2011, by and between ANCHORBANK FSB, a
federally-chartered depository financial institution having its principal office in Madison,
Wisconsin (hereinafter referred to as “AnchorBank”, “Bank” or “Employer”), and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
(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 AnchorBank wishes to assure itself of the services of the Employee for an initial
twelve (12) month period in the capacity of Executive Vice President — General Counsel/Corporate
Secretary and Employee wishes to serve in the employ of the Bank 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 Bank as its Executive Vice President — General
Counsel/Corporate Secretary and shall serve Anchor BanCorp Wisconsin, Inc. (the “Company”) in the
same capacity (the Bank and Company may be referred to collectively herein as the “Employer”). The
Employee hereby represents that he is not bound by any confidentiality agreements or restrictive
covenants which restrict or may restrict his ability to perform his duties hereunder, and agrees
that he will not enter into any such agreements or covenants during the term of his employment
hereunder, except such restrictive covenants or confidentiality agreements as are required by the
Bank and/or Company. The Employee shall report to the Chief Executive Officer (CEO), ▇▇▇▇▇ ▇▇▇▇▇.
The starting date of the position for purposes of this Agreement is March 1, 2011.
2. Duties. Employee shall devote his full business and professional time and
attention to the performance of his duties and responsibilities hereunder. Employee shall, in his
capacity as Chief Legal Counsel for the Bank and Company, perform such duties as are assigned to
him by the CEO and the respective Boards, advising the Boards and management with respect to legal,
regulatory, and corporate governance matters and related duties and obligations. Employee’s duties
shall include serving as corporate secretary and chief compliance officer for the Bank, Company and
subsidiaries, with responsibility for securities law, bank regulatory matters, employment law,
internal audit, required corporate filings, and real estate. Employee shall also be responsible to
oversee and manage engagement and utilization of outside counsel, overall litigation strategy,
vendors, regulatory matters, trade association affiliations, and to
1
provide community liaison for the Madison/Dane County market. Employee will report to and
meet with the CEO and with the Board of Directors as requested.
3. Location of Performance of Duties. It is anticipated that Employee will perform
his job duties at the corporate offices located in Madison, Wisconsin, except to the extent his
duties may from time to time require his presence at branch offices or other locations.
4. Conduct. The Employee shall at all times during his employment:
4.1 Observe and conform to all federal, state and local laws;
4.2 Comply with all Bank employment policies applicable to employees, including the Bank’s
then-current Employee Handbook (the “Employee Handbook”);
4.3 Accept and carry out all reasonable directions and orders of the CEO, his designee and/or
the Board of Directors;
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 and/or the Board of Directors on a timely basis.
6. Term of Employment and Compensation.
6.1 Term of Employment. The Bank shall employ Employee for a period of one (1) year,
commencing on March 1, 2011 and ending on February 29, 2012, except as otherwise provided.
6.2 Salary. The Employee’s salary shall be $350,000 per annum, payable by the Bank at
the rate of $29,166.66 per month in accordance with the Bank’s normal payroll procedures; provided,
however, that such amount may be prorated between the Bank and Company in such proportion as may be
determined by their Boards of Directors to appropriately reflect the allocation of Employee’s time
between them.
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
Company 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 Employee to the extent prohibited by Section
111 of EESA or the Regulations. If in the opinion of tax or regulatory counsel selected by
Employer
2
and acceptable to Employee, it is necessary to limit or reduce Employee’s compensation
pursuant to this Section 6.3, the Bank shall take all reasonable steps to restructure this
Agreement 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 Bank 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) the Bank 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) the Bank 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
Bank, 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. The Bank 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 Bank ceases 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 Bank 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 job and travel-related expenses or
other expense as determined by the Bank with the Bank’s prior written approval, by the Employee in
connection with the performance of his duties hereunder, upon the presentation of proper accounts
therefore in accordance with the Bank’s policies. Such reimbursement will be due within ten (10)
days after the Bank’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 and as updated by
Employers from time to time. Employee, if he 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.
3
9. Termination of Employment. Employee’s employment may be terminated by the Bank or
Employee before the end of the term of the Agreement, as follows:
| (a) | By Bank. Employee can be terminated by the Bank’s Board of Directors or CEO at any time by written notice during the term of this Agreement for “Cause” or for any other reason. For purposes of a termination for Cause, Cause shall mean any 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 Bank, Employee agrees to give at least thirty (30) days written notice to the Bank. 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 Bank, 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 winding up and transitioning of matters, and contingent upon Employee providing the same during the entire thirty (30) day period, the Bank 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 Employee 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 Bank’s obligations under the Agreement shall be suspended as of the date of service of the notice unless stayed by appropriate proceedings. If the charges in the notice are dismissed, the Bank shall (i) pay Employee all of the compensation withheld while their obligations under this Agreement were suspended, and (ii) reinstate such obligations as were suspended. | |||
| (B) If Employee 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 Bank under the Agreement shall terminate as of the effective date of the order, but vested rights of the contracting parties shall not be affected. |
4
| (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 Employee. | |||
| (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 his 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 Employee 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
▇▇▇▇▇ ▇▇▇▇▇▇ 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.
5
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 Section 10, Employee agrees:
10.3.1 During the term of his 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 his 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 ▇▇▇▇▇ ▇▇▇▇▇▇ 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 AnchorBank, the
Employee shall provide the AnchorBank with prompt notice thereof so that the Bank 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 AnchorBank 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.
10.7 Availability of Documents to Employee. In the event Employee becomes the subject
of any form of regulatory action or complaint relating to his period of employment by the
Employers, Employee may request access to such documents and other Bank, Company or subsidiary
information as is deemed reasonably necessary by the Employee (or his counsel or
6
representative) to Employee’s defense of such action or complaint. Employers shall determine,
in their sole discretion, what documentation or information to make available; provided, however,
that (i) no information or materials constituting “unpublished OTS information” under 12 C.F.R.
Section 510.5 shall be provided under any circumstances except in compliance with the provisions
thereof, and (ii) Employee and his counsel or representative must first agree to steps acceptable
to the Employers (or to any successor to one or both of the Employers) to safeguard against
unauthorized disclosure of the accessed information. Employee’s right of access pursuant to this
Section 10.7 shall survive any termination of employment regardless of cause.
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 ▇▇▇▇, or copyright by
AnchorBank, and shall execute all documents and do 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 Employers or the business reputation
or good name of the Employers, its officers, directors or employees, or be otherwise detrimental to
the Employers.
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 Bank 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
7
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 his legal
representative or to the business address of the Bank, as the case may be, or to such other
addresses either party may designate by written notice to the other party.
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above
written.
| ANCHORBANK FSB |
||||
| By: | ||||
| ▇▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer | ||||
| EMPLOYEE: |
||||
| ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Executive Vice President-General | ||||
| Counsel and Corporate Security | ||||
8