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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
(As Amended Effective July 1, 1993)
THIS EMPLOYMENT AGREEMENT is made effective as of this 1st day of July,
1993, by and between First Federal Savings Bank, LaCrosse-Madison, a
federally-chartered savings bank (the "Bank"), and Xxxxxx X. Xxxxxx (the
"Executive").
WHEREAS, Executive has been employed by the Bank for more than thirty
years, and currently serves as its President and Chief Executive Officer
("Corporate Position"); and
WHEREAS, Executive possesses an intimate knowledge of the business and
affairs of the Bank, including its policies, markets and financial and human
resources; and
WHEREAS, the Board of Directors of the Bank (the "Board"), recognizes
that Executive's contribution to the growth and success of the Bank has been
substantial and desires to assure the Bank of Executive's continued employment
in an executive capacity and to compensate him therefore; and
WHEREAS, Executive is desirous of committing himself to serve the Bank
on the terms provided in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, the Bank and Executive agree as follows:
1. Employment. Bank shall continue to employ Executive and Executive
shall continue to serve Bank under the terms and conditions of this Agreement
(which terms and conditions are intended to amend and supercede the agreement of
July 1, 1987 as previously in effect between the parties), for the period stated
in paragraph 2 below.
2. Term of Employment. The period of Executive's employment under this
Agreement shall commence on the date set forth above ("Commencement Date") and
shall expire on the third annual anniversary of said Commencement Date, unless
sooner terminated as provided herein. Effective as of any annual anniversary of
the Commencement Date during the term of this Agreement, the term of employment
hereunder may be extended by the action of the Bank's Board of Directors to add
one additional year to the then remaining term of employment hereunder so that
said term is annually restored to a full three-year term. The Board of Directors
or the Executive shall each provide the other with at least forty-five (45)
days' advance written notice of any decision on their respective parts not to
extend the Agreement on the anniversary date. The term of employment under this
Agreement, as in effect from time to time, shall be referred to
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as the "Employment Term."
3. Position and Duties. Subject to Section 5(iv)(B), Executive shall
serve in his Corporate Position, reporting to the Board, and shall have
supervision and control over, and responsibility for, the operation of the Bank
and shall have such other powers and duties as may from time to time be
prescribed by the Board, provided that such duties are consistent with his
present duties and position as an executive officer of the Bank. Executive shall
devote substantially all his working time and efforts to the business and
affairs of the Bank.
4. Compensation. As compensation for the services to be provided
pursuant to this Agreement, Executive shall receive from Bank the compensation
and other benefits set forth below:
(i) Base Salary. During the Employment Term the Executive shall
receive a base salary ("Base Salary") in such amount as may from time to time be
approved by the Board. The Base Salary shall at no time be less than the annual
base salary payable to the Executive on the date of this Agreement. Any increase
in Base Salary or other compensation granted by the Board shall in no way limit
or reduce any other obligation of the Bank under this Agreement and, once
established at an increased specified rate, Executive's Base Salary under this
Agreement shall not thereafter be reduced. Executive's Base Salary and other
compensation shall be paid in accordance with the Bank's regular payroll
practices, as from time to time in effect.
(ii) Bonus Payments. In addition to Base Salary, Executive shall
be entitled during the Employment Term to receive such bonus payments as the
Board may determine in accordance with the Bank's Management Incentive Plan (the
"Incentive Plan") in effect on the date of this Agreement or as the same may be
amended or modified from time to time for the Bank's executive officers.
(iii) Other Benefits. During the Employment Term the Bank shall
provide to Executive all other benefits of employment generally made available
to the Bank's executive officers as in effect with other plans or arrangements
providing Executive with at least equivalent benefits there-under. Executive
shall be entitled to participate in or receive benefits under any group health
and life insurance plan, pension plan, stock purchase, incentive savings, stock
option, restricted stock, stock appreciation rights and any other similar plans
or arrangements presently or hereafter made available by the Bank to its
executive officers (collectively the "Benefit Plans"), subject to and on a basis
consistent with the terms, conditions and overall administration of such Benefit
Plans. Executive shall be entitled to vacations and perquisites in accordance
with the Bank's policies as in effect from time to time for its executive
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officers.
5. Termination. This Agreement may be terminated, subject to payment of
the compensation and other benefits described below, upon the occurrence of any
of the events described below. In case of such termination, the date on which
Executive ceases to be employed under this Agreement, after giving effect to any
prior notice requirement set forth below, is referred to as the "Termination
Date."
(i) Death; Disability; Retirement. This Agreement shall terminate
upon the death, disability or retirement of Executive. As used in this
Agreement, the term "disability" shall mean Executive's inability, as a result
of physical or mental incapacity, to substantially perform his duties with the
Bank for a period of 180 consecutive days. Any question as to the existence of
Executive's disability upon which the Executive and the Bank cannot agree shall
be determined by a qualified independent physician mutually agreeable to
Executive and the Bank or, if the parties are unable to agree upon a physician
within ten (10) days after notice from either to the other suggesting a
physician, by a physician designated by the then president of the medical
society for the county in which Executive maintains his principal residence,
upon the request of either party. The costs of any such medical examination
shall be borne by the Bank. If Executive is terminated due to disability he
shall be paid 100% of his Base Salary at the rate in effect at the time notice
of termination is given for the remainder of the Employment Term, payable in
substantially equal monthly installments less, in each case, any disability
payments otherwise payable under plans provided by the Bank for disability or
any governmental social security or workers compensation program, and actually
paid to Executive in substantially equal monthly installments.
As used in this Agreement, the term "retirement" shall mean
Executive's retirement in accordance with and pursuant to any retirement plan of
the Bank generally applicable to its executive officers or in accordance with
any retirement arrangement established with Executive's consent with respect to
Executive.
If termination occurs for such reason, no additional compensation
shall be payable to the Executive under this Agreement except as specifically
provided in this Agreement. Notwithstanding anything to the contrary contained
in this Agreement, the Executive shall receive all compensation and other
benefits to which he was entitled under Section 4 through the Termination Date
and, in addition, shall receive all other benefits available to him under the
Bank's Benefit Plans as in effect on the date of death, disability or
retirement.
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(ii) Cause. The Bank may terminate the Executive's employment
under this Agreement for Cause at any time, and thereafter the Bank's
obligations under this Agreement shall cease and terminate. Notwithstanding
anything to the contrary contained in this Agreement, Executive shall receive
all compensation and other benefits to which he was entitled under Section 4
through the Termination Date and, in addition, shall receive all benefits
available to him under the Bank's Benefit Plans as in effect on the Termination
Date. For purposes of this Agreement, "Cause" shall mean (A) the willful and
continued failure by Executive to substantially perform his duties with the Bank
(other than failure resulting from the Executive's incapacity due to physical or
mental illness) after a written demand for substantial performance is delivered
to Executive by the Board, which demand specifically identifies the manner in
which the Board believes Executive has not substantially performed his duties,
(B) any willful act of misconduct by Executive which is materially injurious to
the Bank, monetarily or otherwise, (C) a criminal conviction of Executive for
any act involving dishonesty, breach of trust or a violation of the banking or
savings and loan laws of the State of Wisconsin or the United States, (D) a
criminal conviction of the Executive for the commission of any felony, (E) a
willful breach of fiduciary duty involving personal profit, (F) a willful
violation of any law, rule or regulation or final cease and desist order where
such violations materially, adversely, affect the Bank, (G) incompetence,
personal dishonesty or material breach of any provision of this Agreement which
would have a material adverse impact on the Bank. For purposes of this
Subsection 5(ii), no act, or failure to act, on the Executive's part shall be
deemed "willful" unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that the action or omission was in the
best interest of the Bank.
(iii) Voluntary Termination by Executive. Executive may
voluntarily terminate his employment under this Agreement at any time by giving
at least ninety (90) days prior written notice to the Bank. In such event,
Executive shall receive all compensation and other benefits to which he was
entitled under Section 4 through the Termination Date and, in addition, shall
receive all other benefits available to him under the Bank's Benefit Plans as in
effect on the Termination Date.
(iv) Termination by Executive After Change in Control. For
purposes of this Agreement, a "change in control" shall mean a change in control
with respect to the Bank or its parent holding company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act") or any successor thereto; provided that, without limitation, such a change
in control shall be deemed to have occurred if (i) any "person" (as such term is
used in Sections
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13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities representing 25% or more of the combined voting power of the Bank or
holding company's then outstanding securities; or (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Bank or company cease for any reason to constitute
at least a majority thereof unless the election, or the nomination for election
by stockholders, of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were directors at the
beginning of the period. The Executive may terminate his employment under this
Agreement by giving at least ninety (90) days prior written notice to the Bank
at anytime (1) within eighteen (18) months of the effective date of a "change in
control", or (2) after the occurrence, at any time subsequent to a "change in
control," of any of the following events, without Executive's express written
consent:
(A) Executive is assigned to any positions, duties or
responsibilities that are materially less significant than his positions, duties
and responsibilities as of the time immediately prior to any change in control;
(B) Executive is removed from or the Board fails to re-elect
Executive to any of his Corporate Position, except (1) in connection with
termination of Executive's employment for cause, disability or retirement, or
(2) in connection with any change in control after which the Bank is not the
continuing or surviving corporation, if the successor organization has executed
an agreement as required by Section 8(i)(A) and the removal or failure to
re-elect is limited to his Corporate Position with the Bank;
(C) Executive's Base Salary is materially reduced or the
Executive experiences in any year a material reduction of the ratio of his bonus
payment to his Base Salary which is greater than the average reduction in the
ratio of bonus payments to base salaries in such year experienced by all other
executive officers of the Bank or any other material failure by the Bank to
comply with Section 4;
(D) Executive is transferred to a location not within a 25
mile radius of the City of LaCrosse, Wisconsin; or
(E) The Bank fails to obtain an agreement from any successor
organization as required by Section 8(i)(A).
(v) Suspension or Termination Required by the OTS
(A) If Executive is suspended and/or temporarily prohibited
from participating in the conduct of the Bank's
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affairs by a notice served under section 8(e)(3), or section 8(g)(1) of the
Federal Deposit Insurance Act (12 U.S.C. ss. 1818(e)(3) and (g)(1), the Bank's
obligations under the Agreement shall be suspended as of the date of service of
the notice unless stayed by appropriate proceedings. If the charges in the
notice are dismissed, Bank shall (1) pay Executive all of the compensation
withheld while its obligations under this Agreement were suspended and (2)
reinstate any of its obligations which were suspended.
(B) If Executive is removed and/or permanently prohibited
from participating in the conduct of the Bank's affairs by an order issued under
section 8(e)(4) or section 8(g)(1) of the Federal Deposit Insurance Act (12
U.S.C. ss. 1818(e)(4) or (g)(1) obligations of the Bank under the Agreement
shall terminate as of the effective date of the order, but vested rights of the
Executive to compensation and to any benefits under the Bank's Pension Plan
shall not be affected.
(C) If the Bank is in default as defined in section 3(x)(1)
of the Federal Deposit Insurance Act, (12 U.S.C. 1813 (x)(1)) all obligations
under the Agreement shall terminate as of the date of default, except that this
paragraph shall not affect vested rights of the Executive under any qualified
retirement plan nor, in the event the Executive terminates prior to the date of
such default, the Executive's vested rights to continue to receive severance
payments and benefits pursuant to Section 5(vi) of this Agreement.
(D) All obligations under the Agreement shall be terminated,
except to the extent determined that continuation of the contract is necessary
for the continued operation of the Bank, (i) by the OTS, at the time the FDIC or
Resolution Trust Corporation ("RTC") enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in section
13(c) of the Federal Deposit Insurance Act; or (ii) by the OTS at the time it
approves a supervisory merger to resolve problems related to operation of the
Bank or when the Bank is determined by the OTS to be in an unsafe or unsound
condition. Any rights of the parties that have already vested, however, shall
not be affected by such action, and the Executive shall receive the compensation
and benefits set forth in section 5(vi) of this Agreement.
(E) In the event that 12 C.F.R. ss. 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. ss. 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
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Agreement be so revised.
(vi) Termination by the Bank Other Than Due to Death, Disability,
Retirement or For Cause; Termination of Executive. If this Agreement is
terminated by the Bank for any reason other than death, disability, retirement
or for cause as set forth in Section 5(i) or (ii), or is terminated by the
Executive pursuant to Section 5(iv), then, following the Date of Termination:
(A) In lieu of any further salary payments to the Executive
for a period subsequent to the Termination Date, the Executive shall receive
severance pay in the form of payments continuing for the remaining unexpired
portion of the Employment Term, fully restored as of the Termination Date, at
the times provided in Section 4(i) and 4 (ii) ("Severance Payments") and based
on his highest rate of Base Salary within the 3 years preceding his Termination
Date and his total cash bonus paid in his most recently completed calendar year
of employment. In the event of a termination as a result of a change in control,
the Executive may elect to receive the Severance Payments calculated above in
one lump-sum, subject to any applicable limitations set forth in Section 6
below; provided that the amount of Severance Payment in connection with a change
in control shall be at least equal to the particular Executive's annual
compensation as of the Termination Date.
(B) In addition to the retirement benefits to which the
Executive is entitled under the Bank's Group Pension Plan, 401(k) Plan, and
ESOP, as amended from time to time (the "Retirement Plans"), the Executive shall
receive additional severance retirement benefits payable under this Agreement,
which benefits (except as provided below) shall be determined in accordance
with, and payable in the form and at the times provided in, the respective
Retirement Plans. Such benefits shall be determined as if the Executive were
fully vested under each Retirement Plan and had accumulated (after any
termination under this Agreement) the additional years of credited service
and/or allocations and Employer contributions under each of said Plans that he
would have received had he continued in the employment of the Bank for the
entire Employment Term at the levels of Base Salary and cash bonus used to
calculate the Severance Payments pursuant to subsection 5(vi)(A) above.
(C) In addition to all other amounts payable under this
section 5, Executive shall be entitled to coverage under any group health, life,
dental, or other group insurance plans (as well as under any individual life
coverages provided by the Bank on Executive's behalf) for the remainder of the
Employment Term upon his continued payment of any required employee contribution
at the rate in effect as of his Termination Date and to receipt of all benefits
otherwise payable to Executive under (i) any tax qualified Bank plan or
agreement relating to pension or
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retirement benefits, and (ii) any other Bank plan or agreement, regardless of
tax status, established to provide deferred compensation, retirement, or other
benefits for the Executive.
(D) If Executive is under fifty-five (55) years of age on the
Termination Date, Executive shall take reasonable steps to obtain employment and
thereby mitigate the amount of compensation and benefits due under Section
5(vi); provided, however, that Executive shall not be required to accept a
position other than one within a 25 mile radius of the City of LaCrosse,
Wisconsin. If the Executive is fifty-five (55) years of age or older on the
Termination Date or if Executive determines upon the advice of a qualified
independent physician that he is physically or medically unable to substantially
perform duties with another employer comparable to those performed by him with
the Bank, the Executive shall have no obligation to seek other employment.
Notwithstanding the foregoing, and regardless of age, during any portion of the
Employment term remaining after the Termination Date, if the Executive becomes
employed on a full-time basis by another employer, then to the extent the
Executive shall receive compensation, benefits or service credit from such other
employer, the aggregate amount of all compensation to be paid and benefits and
service credit to be provided by the Bank under this Agreement shall be
correspondingly reduced.
(E) The requirement for mitigation, as set forth in Section 5
(vi)(D) above, shall not apply with respect to any termination under Section
5(iv) subsequent to a change in control.
6. Limitations on Termination Compensation.
(i) In the event that the severance benefits payable to the
Executive under Subsection 5(vi) ("Severance Benefits"), or any other payments
or benefits received or to be received by the Executive from the Bank (whether
payable pursuant to the terms of this Agreement, any other plan, agreement or
arrangement with the Bank or any corporation ("Affiliate") affiliated with the
Bank within the meaning of Section 1504 of the Internal Revenue Code of 1954, as
amended (the "Code"), in the opinion of tax counsel selected by the Bank's
independent auditors and acceptable to the Executive, constitute "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and the present
value of such "parachute payments" equals or exceeds three (3) times the average
of the annual compensation payable to the Executive by the Bank (or an
Affiliate) and includible in the Executive's gross income for federal income tax
purposes for the five (5) calendar years preceding the year in which a change in
ownership or control of the Bank occurred ("Base Amount"), such severance
benefits shall be reduced to an amount the present value of which (when combined
with the present value of any other payments or
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benefits otherwise received or to be received by the Executive from the Bank (or
an Affiliate) that are deemed "parachute payments") is equal to 2.99 times the
Base Amount, notwithstanding any other provision to the contrary in this
Agreement. The Severance Benefits shall not be reduced if (A) the Executive
shall have effectively waived his receipt or enjoyment of any such payment or
benefit which triggered the applicability of this Section 6, 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 Bank. The Base Amount shall include every type and form of compensation
includible in the Executive's gross income in respect of his employment by the
Bank (or an Affiliate), except to the extent otherwise provided in temporary or
final regulations promulgated under Section 280G(b) of the Code. For purposes of
this Section 6, a "change in ownership or control" shall have the meaning set
forth in Section 280G(b) of the code and any temporary or final regulations
promulgated thereunder. The present value of any non-cash benefit or any
deferred cash payment shall be determined by the Bank's independent auditors in
accordance with the principles of Sections 280G(b)(3) and (4) of the Code.
(ii) Executive shall have the right to request that the Bank
obtain a ruling from the Internal Revenue Service ("Service") as to whether any
or all payments or benefits deter- mined by such tax counsel are, in the view of
the Service, "para- chute payments" under Section 280G. If a ruling is sought
pursuant to the Executive's request, no severance benefits payable under this
Agreement shall be made to the Executive until after fifteen (15) days from the
date of such ruling. For purposes of this Subsection 6(ii), the Executive and
the Bank agree to be bound by the Service's ruling as to whether payments
constitute "parachute payments" under Section 280G. If the service declines, for
any reason, to provide the ruling requested, the tax counsel's opinion provided
under Sub-section 6(i) with respect to what payments or benefits constitute
"parachute payments" shall control, and the period during which the Severance
Benefits may be deferred shall be extended to a date fifteen (15) days from the
date of the Service's notice indicating that no ruling would be forthcoming.
(iii) In the event that Section 280G, or any successor statute, is
repealed, this Section 6 shall cease to be effective on the effective date of
such repeal. The parties to this Agreement recognize that final regulations
under Section 280G of the Code may affect the amounts that may be paid under
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this Agreement and agree that, upon issuance of such final regulations this
Agreement may be modified as in good faith deemed necessary in light of the
provisions of such regulations to achieve the purposes of this Agreement, and
that consent to such modifications shall not be unreasonably withheld.
7. Noncompetition After Voluntary Termination And Duty of
Confidentiality.
(a) Noncompetition. Executive acknowledges that the development of
personal contacts and relationships is an essential element of the Bank's
business, that the Bank has invested considerable time and money in his
development of such contacts and relationships, that the Bank could suffer
irreparable harm if he were to leave employment and solicit the business of
Bank's customers, and that it is reasonable to protect the Bank against
competitive activities by Executive. Executive covenants and agrees, in
recognition of the foregoing and in consideration of the mutual promises
contained herein, that in the event of a voluntary termination of employment by
Executive pursuant to Section 5(iii), or upon expiration of this Agreement as a
result of Executive's election not to continue automatic annual renewals,
Executive shall not accept employment in La Crosse, Dane or St. Croix counties
with any Significant Competitor of the Bank for a period of eighteen (18) months
following such termination. For purposes of this Agreement, the term Significant
Competitor means any financial institution including, but not limited to, any
commercial bank, savings bank, savings and loan association, credit union, or
mortgage banking corporation which, at the time of termination of Executive's
employment or during the period of this covenant not to compete, (i) maintains a
home, branch or other office in any of said counties, or (ii) has originated
within any of said counties $10,000,000 or more in residential mortgage loans
during any consecutive twelve (12) month period within the thirty-six (36)
months prior to Executive's termination and inclusive of the period covered by
this covenant.
Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of the Bank and are reasonably limited
as to (i) the scope of activities affected, (ii) their duration and geographic
scope, and (iii) their effect on Executive and the public. In the event
Executive violates the non-competition provisions set forth herein, Bank shall
be entitled, in addition to its other legal remedies, to enjoin the employment
of Executive with any Significant Competitor for the period set forth herein. If
Executive violates this covenant and the Bank brings legal action for injunctive
or other relief, the Bank shall not, as a result of the time involved in
obtaining such relief, be deprived of the benefit of the full period of the
restrictive covenant. Accordingly, the covenant shall be deemed to have the
duration specified herein, computed from the date such relief is granted, but
reduced by any period between
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commencement of the period and the date of the first violation. In addition to
such other relief as may be awarded, if the Bank is the prevailing party it
shall be entitled to reimbursement for all reasonable costs, including
attorneys' fees, incurred in enforcing its rights hereunder.
(b) Duty of Confidentiality. Executive acknowledges that he will,
as the result of services performed on behalf of the Bank, obtain or otherwise
become aware of confidential and/or proprietary information regarding the Bank's
affairs, including, but not limited to, information relative to (i) customers,
customer accounts and customer lists, (ii) marketing, (iii) customer development
strategies, (iv) financial and economic plans and projections, and (v) other
similar information. Executive agrees that following termination of his
employment for any reason, he will treat all such matters as confidential and
will refrain both from divulging such information in any manner and from the use
of such information for his benefit or for the benefit of any employer
(regardless of whether such employer would constitute a Significant Competitor
under this Agreement) or third-party.
8. General Provisions.
(i) Successors; Binding Agreement.
(A) The Bank 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 Bank ("successor
organization") to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Bank would be required to perform it
if no such succession had taken place. As used in this Agreement, "Bank" shall
mean the Bank as hereinbefore defined and any successor to its business and/or
assets as aforesaid which executes and delivers the agreement provided for in
this Section 8 or which otherwise becomes bound by the terms and provisions of
this Agreement by operation of this Agreement or law. Failure of the Bank to
obtain such agreement prior to the effectiveness of any such succession shall be
a breach of this Agreement and shall entitle the Executive as his exclusive
remedy to compensation from the Bank in the same amount and on the same terms as
he would be entitled to under this agreement if he terminated his employment
under Section 5(iv). 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 transferrable 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
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obligations of the Executive.
(C) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the Executive and his heirs, beneficiaries and
personal representatives and the Bank and any successor organization.
(ii) Notice. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Bank:
000 Xxxxx Xxxxxx
XxXxxxxx, XX 00000
Attn: Secretary
or if to Executive at the address set forth below the Executive's signature line
of this Agreement, or to such other address as either party may have furnished
to the other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
(iii) Expenses. If any legal proceeding is necessary to enforce or
interpret this Agreement, or to recover damages for breach of it, the prevailing
party, shall be entitled to recover from the other party reasonable attorneys'
fees and necessary costs and disbursements incurred in such litigation, in
addition to any other relief to which such prevailing party may be entitled.
Notwithstanding the foregoing, in the event of a legal proceeding
to enforce or interpret the terms of this Agreement following a change in
control, Executive shall be entitled to recover from Bank, regardless of the
outcome of said action, necessary costs and disbursements incurred together with
actual attorney's fees up to the greater of (A) $25,000, or (B) thirty percent
(30%) of the amount in dispute between the parties [which amount, for purposes
of this Agreement, shall be deemed to be the difference between the highest
written settlement offer from the Bank and the lowest written settlement offer
(exclusive of any claim for consequential, punitive, or other forms or amounts
of damages not based on specific contract terms) from Executive]. Recovery by
Executive of attorneys fees and costs as provided herein following a change in
control shall be in addition to any other relief to which Executive may be
entitled.
(iv) Withholding. The Bank shall be entitled to withhold from
amounts to be paid to the Executive under this Agreement any federal, state or
local withholding or other taxes
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of charges which it is from time to time required to withhold. the Bank shall be
entitled to rely on an opinion of counsel if any question as to the amount or
requirement of any such withholding shall arise.
(v) Miscellaneous. No provision of this Agreement may be amended,
waived or discharged unless such amendment, waiver or discharge is agreed to in
writing and signed by the Executive and such officer as may be specifically
designated by the board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Wisconsin.
(vi) Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
(vii) Counterparts. This Agreement may be executed in several
counterparts, each of which together will constitute one and the same
instrument.
(viii) Headings. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of any
provision of this Agreement.
(ix) Effective Date. The effective date of this Agreement shall be
the date indicated in the first paragraph of this Agreement, notwithstanding the
actual date of execution by any party.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first above written.
Executive: Xxxxxx X. Xxxxxx
----------------------------------
----------------------------------
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(Address)
First Federal Savings Bank,
LaCrosse-Madison
(CORPORATE SEAL)
By:
----------------------------------------
By:
----------------------------------------
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EMPLOYMENT AGREEMENT
(As Amended Effective July 1, 1994)
THIS EMPLOYMENT AGREEMENT is made effective as of this 1st day of July,
1994, by and between First Federal Savings Bank, LaCrosse-Madison, a
federally-chartered savings bank (the "Bank"), and Xxxxxxxx X. Xxxxx (the
"Executive").
WHEREAS, Executive has been employed by the Bank for a number of years,
and currently serves as its Executive Vice President, Secretary, and Residential
Lending Division Manager ("Corporate Position"); and
WHEREAS, Executive possesses an intimate knowledge of the business and
affairs of the Bank, including its policies, markets and financial and human
resources; and
WHEREAS, the Board of Directors of the Bank (the "Board"), recognizes
that Executive's contribution to the growth and success of the Bank has been
substantial and desires to assure the Bank of Executive's continued employment
in an executive capacity and to compensate him therefore; and
WHEREAS, Executive is desirous of committing himself to serve the Bank
on the terms provided in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, the Bank and Executive agree as follows:
1. Employment. Bank shall continue to employ Executive and Executive
shall continue to serve Bank under the terms and conditions of this Agreement
(which terms and conditions are intended to amend and supercede the agreement of
July 1, 1987 as previously in effect between the parties), for the period stated
in paragraph 2 below.
2. Term of Employment. The period of Executive's employment under this
Agreement shall commence on the date set forth above ("Commencement Date") and
shall expire on the third annual anniversary of said Commencement Date, unless
sooner terminated as provided herein. Effective as of any annual anniversary of
the Commencement Date during the term of this Agreement, the term of employment
hereunder may be extended by the action of the Bank's Board of Directors to add
one additional year to the then remaining term of employment hereunder so that
said term is annually restored to a full three-year term. The Board of Directors
or the Executive shall each provide the other with at least forty-five (45)
days' advance written notice of any decision on their respective parts not to
extend the Agreement on the anniversary date. The term of employment under this
16
Agreement, as in effect from time to time, shall be referred to as the
"Employment Term."
3. Position and Duties. Subject to Section 5(iv)(B), the Executive
shall serve in his Corporate Position, reporting to the President, and shall
have supervision and control over, and responsibility for, residential lending
activities of the Bank, corporate recordkeeping and shall have such other powers
and duties as may from time to time be prescribed by the President, provided
that such duties are consistent with his present duties and with the Executive's
position as an executive officer of the Bank. The Executive shall devote
substantially all his working time and efforts to the business and affairs of
the Bank.
4. Compensation. As compensation for the services to be provided
pursuant to this Agreement, Executive shall receive from Bank the compensation
and other benefits set forth below:
(i) Base Salary. During the Employment Term the Executive shall
receive a base salary ("Base Salary") in such amount as may from time to time be
approved by the Board. The Base Salary shall at no time be less than the annual
base salary payable to the Executive on the date of this Agreement. Any increase
in Base Salary or other compensation granted by the Board shall in no way limit
or reduce any other obligation of the Bank under this Agreement and, once
established at an increased specified rate, Executive's Base Salary under this
Agreement shall not thereafter be reduced. Executive's Base Salary and other
compensation shall be paid in accordance with the Bank's regular payroll
practices, as from time to time in effect.
(ii) Bonus Payments. In addition to Base Salary, Executive shall
be entitled during the Employment Term to receive such bonus payments as the
Board may determine in accordance with the Bank's Management Incentive Plan (the
"Incentive Plan") in effect on the date of this Agreement or as the same may be
amended or modified from time to time for the Bank's executive officers.
(iii) Other Benefits. During the Employment Term the Bank shall
provide to Executive all other benefits of employment generally made available
to the Bank's executive officers as in effect with other plans or arrangements
providing Executive with at least equivalent benefits thereunder. Executive
shall be entitled to participate in or receive benefits under any group health
and life insurance plan, pension plan, stock purchase, incentive savings, stock
option, restricted stock, stock appreciation rights and any other similar plans
or arrangements presently or hereafter made available by the Bank to its
executive officers (collectively the "Benefit Plans"), subject to and on a basis
consistent with the terms, conditions and overall administration of such Benefit
Plans. Executive shall be
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entitled to vacations and perquisites in accordance with the Bank's policies as
in effect from time to time for its executive officers.
5. Termination. This Agreement may be terminated, subject to payment of
the compensation and other benefits described below, upon the occurrence of any
of the events described below. In case of such termination, the date on which
Executive ceases to be employed under this Agreement, after giving effect to any
prior notice requirement set forth below, is referred to as the "Termination
Date."
(i) Death; Disability; Retirement. This Agreement shall terminate
upon the death, disability or retirement of Executive. As used in this
Agreement, the term "disability" shall mean Executive's inability, as a result
of physical or mental incapacity, to substantially perform his duties with the
Bank for a period of 180 consecutive days. Any question as to the existence of
Executive's disability upon which the Executive and the Bank cannot agree shall
be determined by a qualified independent physician mutually agreeable to
Executive and the Bank or, if the parties are unable to agree upon a physician
within ten (10) days after notice from either to the other suggesting a
physician, by a physician designated by the then president of the medical
society for the county in which Executive maintains his principal residence,
upon the request of either party. The costs of any such medical examination
shall be borne by the Bank. If Executive is terminated due to disability he
shall be paid 100% of his Base Salary at the rate in effect at the time notice
of termination is given for the remainder of the Employment Term, payable in
substantially equal monthly installments less, in each case, any disability
payments otherwise payable under plans provided by the Bank for disability or
any governmental social security or workers compensation program, and actually
paid to Executive in substantially equal monthly installments.
As used in this Agreement, the term "retirement" shall mean
Executive's retirement in accordance with and pursuant to any retirement plan of
the Bank generally applicable to its executive officers or in accordance with
any retirement arrangement established with Executive's consent with respect to
Executive.
If termination occurs for such reason, no additional compensation
shall be payable to the Executive under this Agreement except as specifically
provided in this Agreement. Notwithstanding anything to the contrary contained
in this Agreement, the Executive shall receive all compensation and other
benefits to which he was entitled under Section 4 through the Termination Date
and, in addition, shall receive all other benefits available to him under the
Bank's Benefit Plans as in
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effect on the date of death, disability or retirement.
(ii) Cause. The Bank may terminate the Executive's employment
under this Agreement for Cause at any time, and thereafter the Bank's
obligations under this Agreement shall cease and terminate. Notwithstanding
anything to the contrary contained in this Agreement, Executive shall receive
all compensation and other benefits to which he was entitled under Section 4
through the Termination Date and, in addition, shall receive all benefits
available to him under the Bank's Benefit Plans as in effect on the Termination
Date. For purposes of this Agreement, "Cause" shall mean (A) the willful and
continued failure by Executive to substantially perform his duties with the Bank
(other than failure resulting from the Executive's incapacity due to physical or
mental illness) after a written demand for substantial performance is delivered
to Executive by the Board, which demand specifically identifies the manner in
which the Board believes Executive has not substantially performed his duties,
(B) any willful act of misconduct by Executive which is materially injurious to
the Bank, monetarily or otherwise, (C) a criminal conviction of Executive for
any act involving dishonesty, breach of trust or a violation of the banking or
savings and loan laws of the State of Wisconsin or the United States, (D) a
criminal conviction of the Executive for the commission of any felony, (E) a
willful breach of fiduciary duty involving personal profit, (F) a willful
violation of any law, rule or regulation or final cease and desist order where
such violations materially, adversely, affect the Bank, (G) incompetence,
personal dishonesty or material breach of any provision of this Agreement which
would have a material adverse impact on the Bank. For purposes of this
Subsection 5(ii), no act, or failure to act, on the Executive's part shall be
deemed "willful" unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that the action or omission was in the
best interest of the Bank.
(iii) Voluntary Termination by Executive. Executive may
voluntarily terminate his employment under this Agreement at any time by giving
at least forty-five (45) days prior written notice to the Bank. In such event,
Executive shall receive all compensation and other benefits to which he was
entitled under Section 4 through the Termination Date and, in addition, shall
receive all other benefits available to him under the Bank's Benefit Plans as in
effect on the Termination Date.
(iv) Termination by Executive After Change in Control. For
purposes of this Agreement, a "change in control" shall mean a change in control
with respect to the Bank or its parent holding company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act") or any successor thereto; provided that, without
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19
limitation, such a change in control shall be deemed to have occurred if (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities representing 25% or more of
the combined voting power of the Bank or holding company's then outstanding
securities; or (ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board of Directors of the Bank or
company cease for any reason to constitute at least a majority thereof unless
the election, or the nomination for election by stockholders, of each new
director was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of the period. The Executive
may terminate his employment under this Agreement by giving at least ninety (90)
days prior written notice to the Bank at anytime (1) within eighteen (18) months
of the effective date of a "change in control", or (2) after the occurrence, at
any time subsequent to a "change in control," of any of the following events,
without Executive's express written consent:
(A) Executive is assigned to any positions, duties or
responsibilities that are less significant than his positions, duties and
responsibilities as of the time immediately prior to any change in control;
(B) Executive is removed from or the Board fails to re-elect
Executive to any of his Corporate Position, except (1) in connection with
termination of Executive's employment for cause, disability or retirement, or
(2) in connection with any change in control after which the Bank is not the
continuing or surviving corporation, if the successor organization has executed
an agreement as required by Section 8(i)(A) and the removal or failure to
re-elect is limited to his Corporate Position with the Bank;
(C) Executive's Base Salary is materially reduced or the
Executive experiences in any year a material reduction of the ratio of his bonus
payment to his Base Salary which is greater than the average reduction in the
ratio of bonus payments to base salaries in such year experienced by all other
executive officers of the Bank or any other material failure by the Bank to
comply with Section 4;
(D) Executive is transferred to a location not within a 25
mile radius of the City of LaCrosse, Wisconsin; or
(E) The Bank fails to obtain an agreement from any successor
organization as required by Section 8(i)(A).
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(v) Suspension or Termination Required by the OTS
(A) If Executive is suspended and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice served under
section 8(e)(3), or section 8(g)(1) of the Federal Deposit Insurance Act (12
U.S.C. ss. 1818(e)(3) and (g)(1), the Bank's obligations under the Agreement
shall be suspended as of the date of service of the notice unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, Bank shall
(1) pay Executive all of the compensation withheld while its obligations under
this Agreement were suspended and (2) reinstate any of its obligations which
were suspended.
(B) If Executive is removed and/or permanently prohibited
from participating in the conduct of the Bank's affairs by an order issued under
section 8(e)(4) or section 8(g)(1) of the Federal Deposit Insurance Act (12
U.S.C. ss. 1818(e)(4) or (g)(1) obligations of the Bank under the Agreement
shall terminate as of the effective date of the order, but vested rights of the
Executive to compensation and to any benefits under the Bank's Pension Plan
shall not be affected.
(C) If the Bank is in default as defined in section 3(x)(1)
of the Federal Deposit Insurance Act, (12 U.S.C. 1813 (x)(1))all obligations
under the Agreement shall terminate as of the date of default, except that this
paragraph shall not affect any vested rights of the Executive under any
qualified retirement plan nor, in the event the Executive terminates prior to
the date of such default, the Executive's vested rights to continue to receive
severance payments and benefits pursuant to section 5(vi) of this Agreement.
(D) All obligations under the Agreement shall be terminated,
except to the extent determined that continuation of the contract is necessary
for the continued operation of the Bank, (i) by the OTS, at the time the FDIC or
Resolution Trust Corporation ("RTC") enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in section
13(c) of the Federal Deposit Insurance Act; or (ii) by the OTS at the time it
approves a supervisory merger to resolve problems related to operation of the
Bank or when the Bank is determined by the OTS to be in an unsafe or unsound
condition. Any rights of the parties that have already vested, however, shall
not be affected by such action, and the Executive shall receive the compensation
and benefits set forth in section 5(vi) of this Agreement.
(E) In the event that 12 C.F.R. ss. 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. ss. 563.39, or any
successor regulation, is
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amended or modified, this Agreement shall be revised to reflect the amended or
modified provisions if: (1) the amended or modified provision is required to be
included in this Agreement; or (2) if not so required, the Executive requests
that the Agreement be so revised.
(vi) Termination by the Bank Other Than Due to Death, Disability,
Retirement or For Cause; Termination of Executive. If this Agreement is
terminated by the Bank for any reason other than death, disability, retirement
or for cause as set forth in Section 5(i) or (ii), or is terminated by the
Executive pursuant to Section 5(iv), then, following the Date of Termination:
(A) In lieu of any further salary payments to the Executive
for a period subsequent to the Termination Date, the Executive shall receive
severance pay in the form of payments continuing for the remaining unexpired
portion of the Employment Term, fully restored as of the Termination Date, at
the times provided in Section 4(i) and 4 (ii) ("Severance Payments") and based
on his highest rate of Base Salary within the 3 years preceding his Termination
Date and his total cash bonus paid in his most recently completed calendar year
of employment. In the event of a termination as a result of a change in control,
the Executive may elect to receive the Severance Payments calculated above in
one lump-sum, subject to any applicable limitations set forth in Section 6
below; provided that the amount of Severance Payment in connection with a change
in control shall be at least equal to the particular Executive's annual
compensation as of the Termination Date.
(B) In addition to the retirement benefits to which the
Executive is entitled under the Bank's Group Pension Plan, 401(k) Plan, and
ESOP, as amended from time to time (the "Retirement Plans"), the Executive shall
receive additional severance retirement benefits payable under this Agreement,
which benefits (except as provided below) shall be determined in accordance
with, and payable in the form and at the times provided in, the respective
Retirement Plans. Such benefits shall be determined as if the Executive were
fully vested under each Retirement Plan and had accumulated (after any
termination under this Agreement) the additional years of credited service
and/or allocations and Employer contributions under each of said Plans that he
would have received had he continued in the employment of the Bank for the
entire Employment Term at the levels of Base Salary and cash bonus used to
calculate the Severance Payments pursuant to subsection 5(vi)(A) above.
(C) In addition to all other amounts payable under this
section 5, Executive shall be entitled to coverage under any group health, life,
dental, or other group insurance plans (as well as under any individual life
coverages provided by the Bank on Executive's behalf) for the remainder of the
Employment Term
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upon his continued payment of any required employee contribution at the rate in
effect as of his Termination Date and to receipt of all benefits otherwise
payable to Executive under (i) any tax qualified Bank plan or agreement relating
to pension or retirement benefits, and (ii) any other Bank plan or agreement,
regardless of tax status, established to provide deferred compensation,
retirement, or other benefits for the Executive.
(D) If Executive is under fifty-five (55) years of age on the
Termination Date, Executive shall take reasonable steps to obtain employment and
thereby mitigate the amount of compensation and benefits due under Section
5(vi); provided, however, that Executive shall not be required to accept a
position other than one within a 25 mile radius of the City of LaCrosse,
Wisconsin. If the Executive is fifty-five (55) years of age or older on the
Termination Date or if Executive determines upon the advice of a qualified
independent physician that he is physically or medically unable to substantially
perform duties with another employer comparable to those performed by him with
the Bank, the Executive shall have no obligation to seek other employment.
Notwithstanding the foregoing, and regardless of age, during any portion of the
Employment term remaining after the Termination Date, if the Executive becomes
employed on a full-time basis by another employer, then to the extent the
Executive shall receive compensation, benefits or service credit from such other
employer, the aggregate amount of all compensation to be paid and benefits and
service credit to be provided by the Bank under this Agreement shall be
correspondingly reduced.
(E) The requirement for mitigation, as set forth in Section 5
(vi)(D) above, shall not apply with respect to any termination under Section
5(iv) subsequent to a change in control.
6. Limitations on Termination Compensation.
(i) In the event that the severance benefits payable to the
Executive under Subsection 5(vi) ("Severance Benefits"), or any other payments
or benefits received or to be received by the Executive from the Bank (whether
payable pursuant to the terms of this Agreement, any other plan, agreement or
arrangement with the Bank or any corporation ("Affiliate") affiliated with the
Bank within the meaning of Section 1504 of the Internal Revenue Code of 1954, as
amended (the "Code"), in the opinion of tax counsel selected by the Bank's
independent auditors and acceptable to the Executive, constitute "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and the present
value of such "parachute payments" equals or exceeds three (3) times the average
of the annual compensation payable to the Executive by the Bank (or an
Affiliate) and includible in the Executive's gross income for federal income tax
purposes for the five (5)
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calendar years preceding the year in which a change in ownership or control of
the Bank occurred ("Base Amount"), such severance benefits shall be reduced to
an amount the present value of which (when combined with the present value of
any other payments or benefits otherwise received or to be received by the
Executive from the Bank (or an Affiliate) that are deemed "parachute payments")
is equal to 2.99 times the Base Amount, notwithstanding any other provision to
the contrary in this Agreement. The Severance Benefits shall not be reduced if
(A) the Executive shall have effectively waived his receipt or enjoyment of any
such payment or benefit which triggered the applicability of this Section 6, 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 Bank. The Base Amount shall include every type
and form of compensation includible in the Executive's gross income in respect
of his employment by the Bank (or an Affiliate), except to the extent otherwise
provided in temporary or final regulations promulgated under Section 280G(b) of
the Code. For purposes of this Section 6, a "change in ownership or control"
shall have the meaning set forth in Section 280G(b) of the code and any
temporary or final regulations promulgated thereunder. The present value of any
non-cash benefit or any deferred cash payment shall be determined by the Bank's
independent auditors in accordance with the principles of Sections 280G(b)(3)
and (4) of the Code.
(ii) Executive shall have the right to request that the Bank
obtain a ruling from the Internal Revenue Service ("Service") as to whether any
or all payments or benefits determined by such tax counsel are, in the view of
the Service, "parachute payments" under Section 280G. If a ruling is sought
pursuant to the Executive's request, no severance benefits payable under this
Agreement shall be made to the Executive until after fifteen (15) days from the
date of such ruling. For purposes of this Subsection 6(ii), the Executive and
the Bank agree to be bound by the Service's ruling as to whether payments
constitute "parachute payments" under Section 280G. If the service declines, for
any reason, to provide the ruling requested, the tax counsel's opinion provided
under Subsection 6(i) with respect to what payments or benefits constitute
"parachute payments" shall control, and the period during which the Severance
Benefits may be deferred shall be extended to a date fifteen (15) days from the
date of the Service's notice indicating that no ruling would be forthcoming.
(iii) In the event that Section 280G, or any successor statute, is
repealed, this Section 6 shall cease to be effective
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on the effective date of such repeal. The parties to this Agreement recognize
that final regulations under Section 280G of the Code may affect the amounts
that may be paid under this Agreement and agree that, upon issuance of such
final regulations this Agreement may be modified as in good faith deemed
necessary in light of the provisions of such regulations to achieve the purposes
of this Agreement, and that consent to such modifications shall not be
unreasonably withheld.
7. Noncompetition After Voluntary Termination And Duty of
Confidentiality.
(a) Noncompetition. Executive acknowledges that the development of
personal contacts and relationships is an essential element of the Bank's
business, that the Bank has invested considerable time and money in his
development of such contacts and relationships, that the Bank could suffer
irreparable harm if he were to leave employment and solicit the business of
Bank's customers, and that it is reasonable to protect the Bank against
competitive activities by Executive. Executive covenants and agrees, in
recognition of the foregoing and in consideration of the mutual promises
contained herein, that in the event of a voluntary termination of employment by
Executive pursuant to Section 5(iii), or upon expiration of this Agreement as a
result of Executive's election not to continue automatic annual renewals,
Executive shall not accept employment in La Crosse, Dane or St. Croix counties
with any Significant Competitor of the Bank for a period of eighteen (18) months
following such termination. For purposes of this Agreement, the term Significant
Competitor means any financial institution including, but not limited to, any
commercial bank, savings bank, savings and loan association, credit union, or
mortgage banking corporation which, at the time of termination of Executive's
employment or during the period of this covenant not to compete, (i) maintains a
home, branch or other office in any of said counties, or (ii) has originated
within any of said counties $10,000,000 or more in residential mortgage loans
during any consecutive twelve (12) month period within the thirty-six (36)
months prior to Executive's termination and inclusive of the period covered by
this covenant.
Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of the Bank and are reasonably limited
as to (i) the scope of activities affected, (ii) their duration and geographic
scope, and (iii) their effect on Executive and the public. In the event
Executive violates the non-competition provisions set forth herein, Bank shall
be entitled, in addition to its other legal remedies, to enjoin the employment
of Executive with any Significant Competitor for the period set forth herein. If
Executive violates this covenant and the Bank brings legal action for injunctive
or other relief, the Bank shall not, as a result of the time involved in
obtaining
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such relief, be deprived of the benefit of the full period of the restrictive
covenant. Accordingly, the covenant shall be deemed to have the duration
specified herein, computed from the date such relief is granted, but reduced by
any period between commencement of the period and the date of the first
violation. In addition to such other relief as may be awarded, if the Bank is
the prevailing party it shall be entitled to reimbursement for all reasonable
costs, including attorneys' fees, incurred in enforcing its rights hereunder.
(b) Duty of Confidentiality. Executive acknowledges that he will,
as the result of services performed on behalf of the Bank, obtain or otherwise
become aware of confidential and/or proprietary information regarding the Bank's
affairs, including, but not limited to, information relative to (i) customers,
customer accounts and customer lists, (ii) marketing, (iii) customer development
strategies, (iv) financial and economic plans and projections, and (v) other
similar information. Executive agrees that following termination of his
employment for any reason, he will treat all such matters as confidential and
will refrain both from divulging such information in any manner and from the use
of such information for his benefit or for the benefit of any employer
(regardless of whether such employer would constitute a Significant Competitor
under this Agreement) or third-party.
8. General Provisions.
(i) Successors; Binding Agreement.
(A) The Bank 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 Bank ("successor
organization") to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Bank would be required to perform it
if no such succession had taken place. As used in this Agreement, "Bank" shall
mean the Bank as hereinbefore defined and any successor to its business and/or
assets as aforesaid which executes and delivers the agreement provided for in
this Section 8 or which otherwise becomes bound by the terms and provisions of
this Agreement by operation of this Agreement or law. Failure of the Bank to
obtain such agreement prior to the effectiveness of any such succession shall be
a breach of this Agreement and shall entitle the Executive as his exclusive
remedy to compensation from the Bank in the same amount and on the same terms as
he would be entitled to under this agreement if he terminated his employment
under Section 5(iv). 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
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benefits under this Agreement shall be assignable or transferrable in any
respect by the Executive, nor shall any such payment, right or interest be
subject to seizure, attachment or creditor's process for payment of any debts,
judgments, or obligations of the Executive.
(C) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the Executive and his heirs, beneficiaries and
personal representatives and the Bank and any successor organization.
(ii) Notice. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Bank:
000 Xxxxx Xxxxxx
XxXxxxxx, XX 00000
Attn: Chief Executive Officer
or if to Executive at the address set forth below the Executive's signature line
of this Agreement, or to such other address as either party may have furnished
to the other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
(iii) Expenses. If any legal proceeding is necessary to enforce or
interpret this Agreement, or to recover damages for breach of it, the prevailing
party, shall be entitled to recover from the other party reasonable attorneys'
fees and necessary costs and disbursements incurred in such litigation, in
addition to any other relief to which such prevailing party may be entitled.
Notwithstanding the foregoing, in the event of a legal proceeding
to enforce or interpret the terms of this Agreement following a change in
control, Executive shall be entitled to recover from Bank, regardless of the
outcome of said action, necessary costs and disbursements incurred together with
actual attorney's fees up to the greater of (A) $25,000, or (B) thirty percent
(30%) of the amount in dispute between the parties [which amount, for purposes
of this Agreement, shall be deemed to be the difference between the highest
written settlement offer from the Bank and the lowest written settlement offer
(exclusive of any claim for consequential, punitive, or other forms or amounts
of damages not based on specific contract terms) from Executive]. Recovery by
Executive of attorneys fees and costs as provided herein following a change in
control shall be in addition to any other relief to which Executive may be
entitled.
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(iv) Withholding. The Bank shall be entitled to withhold from
amounts to be paid to the Executive under this Agreement any federal, state or
local withholding or other taxes of charges which it is from time to time
required to withhold. the Bank shall be entitled to rely on an opinion of
counsel if any question as to the amount or requirement of any such withholding
shall arise.
(v) Miscellaneous. No provision of this Agreement may be amended,
waived or discharged unless such amendment, waiver or discharge is agreed to in
writing and signed by the Executive and such officer as may be specifically
designated by the board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Wisconsin.
(vi) Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
(vii) Counterparts. This Agreement may be executed in several
counterparts, each of which together will constitute one and the same
instrument.
(viii) Headings. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of any
provision of this Agreement.
(ix) Effective Date. The effective date of this Agreement shall be
the date indicated in the first paragraph of this Agreement, notwithstanding the
actual date of execution by any party.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the date first above written.
Executive: Xxxxxxxx X. Xxxxx
------------------------------------
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------------------------------------
(Address)
First Federal Savings Bank,
LaCrosse-Madison
(CORPORATE SEAL)
By:
------------------------------------
By:
------------------------------------
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EMPLOYMENT AGREEMENT
(As Amended Effective July 1, 1994)
THIS EMPLOYMENT AGREEMENT is made effective as of this 1st day of July,
1994, by and between First Federal Savings Bank, LaCrosse-Madison, a
federally-chartered savings bank (the "Bank"), and Xxxx X. Xxxxx (the
"Executive").
WHEREAS, Executive has been employed by the Bank for a number of years,
and currently serves as its Executive Vice President, Treasurer, and Finance and
Administrative Division Manager ("Corporate Position"); and
WHEREAS, Executive possesses an intimate knowledge of the business and
affairs of the Bank, including its policies, markets and financial and human
resources; and
WHEREAS, the Board of Directors of the Bank (the "Board"), recognizes
that Executive's contribution to the growth and success of the Bank has been
substantial and desires to assure the Bank of Executive's continued employment
in an executive capacity and to compensate him therefore; and
WHEREAS, Executive is desirous of committing himself to serve the Bank
on the terms provided in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, the Bank and Executive agree as follows:
1. Employment. Bank shall continue to employ Executive and Executive
shall continue to serve Bank under the terms and conditions of this Agreement
(which terms and conditions are intended to amend and supercede the agreement of
July 1, 1987 as previously in effect between the parties), for the period stated
in paragraph 2 below.
2. Term of Employment. The period of Executive's employment under this
Agreement shall commence on the date set forth above ("Commencement Date") and
shall expire on the third annual anniversary of said Commencement Date, unless
sooner terminated as provided herein. Effective as of any annual anniversary of
the Commencement Date during the term of this Agreement, the term of employment
hereunder may be extended by the action of the Bank's Board of Directors to add
one additional year to the then remaining term of employment hereunder so that
said term is annually restored to a full three-year term. The Board of Directors
or the Executive shall each provide the other with at least forty-five (45)
days' advance written notice of any decision on their respective parts not to
extend the Agreement on the anniversary date. The term of employment under this
30
Agreement, as in effect from time to time, shall be referred to as the
"Employment Term."
3. Position and Duties. Subject to Section 5(iv)(B), the Executive shall
serve in his Corporate Position, reporting to the President, and shall have
supervision and control over, and responsibility for, the finance and
administration of the Bank and shall have such other powers and duties as may
from time to time be prescribed by the President, provided that such duties are
consistent with his present duties and with the Executive's position as an
executive officer of the Bank. The Executive shall devote substantially all his
working time and efforts to the business and affairs of the Bank.
4. Compensation. As compensation for the services to be provided
pursuant to this Agreement, Executive shall receive from Bank the compensation
and other benefits set forth below:
(i) Base Salary. During the Employment Term the Executive shall
receive a base salary ("Base Salary") in such amount as may from time to time be
approved by the Board. The Base Salary shall at no time be less than the annual
base salary payable to the Executive on the date of this Agreement. Any increase
in Base Salary or other compensation granted by the Board shall in no way limit
or reduce any other obligation of the Bank under this Agreement and, once
established at an increased specified rate, Executive's Base Salary under this
Agreement shall not thereafter be reduced. Executive's Base Salary and other
compensation shall be paid in accordance with the Bank's regular payroll
practices, as from time to time in effect.
(ii) Bonus Payments. In addition to Base Salary, Executive shall
be entitled during the Employment Term to receive such bonus payments as the
Board may determine in accordance with the Bank's Management Incentive Plan (the
"Incentive Plan") in effect on the date of this Agreement or as the same may be
amended or modified from time to time for the Bank's executive officers.
(iii) Other Benefits. During the Employment Term the Bank shall
provide to Executive all other benefits of employment generally made available
to the Bank's executive officers as in effect with other plans or arrangements
providing Executive with at least equivalent benefits thereunder. Executive
shall be entitled to participate in or receive benefits under any group health
and life insurance plan, pension plan, stock purchase, incentive savings, stock
option, restricted stock, stock appreciation rights and any other similar plans
or arrangements presently or hereafter made available by the Bank to its
executive officers (collectively the "Benefit Plans"), subject to and on a basis
consistent with the terms, conditions and overall administration of such Benefit
Plans. Executive shall be
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entitled to vacations and perquisites in accordance with the Bank's policies as
in effect from time to time for its executive officers.
5. Termination. This Agreement may be terminated, subject to payment of
the compensation and other benefits described below, upon the occurrence of any
of the events described below. In case of such termination, the date on which
Executive ceases to be employed under this Agreement, after giving effect to any
prior notice requirement set forth below, is referred to as the "Termination
Date."
(i) Death; Disability; Retirement. This Agreement shall terminate
upon the death, disability or retirement of Executive. As used in this
Agreement, the term "disability" shall mean Executive's inability, as a result
of physical or mental incapacity, to substantially perform his duties with the
Bank for a period of 180 consecutive days. Any question as to the existence of
Executive's disability upon which the Executive and the Bank cannot agree shall
be determined by a qualified independent physician mutually agreeable to
Executive and the Bank or, if the parties are unable to agree upon a physician
within ten (10) days after notice from either to the other suggesting a
physician, by a physician designated by the then president of the medical
society for the county in which Executive maintains his principal residence,
upon the request of either party. The costs of any such medical examination
shall be borne by the Bank. If Executive is terminated due to disability he
shall be paid 100% of his Base Salary at the rate in effect at the time notice
of termination is given for the remainder of the Employment Term, payable in
substantially equal monthly installments less, in each case, any disability
payments otherwise payable under plans provided by the Bank for disability or
any governmental social security or workers compensation program, and actually
paid to Executive in substantially equal monthly installments.
As used in this Agreement, the term "retirement" shall mean
Executive's retirement in accordance with and pursuant to any retirement plan of
the Bank generally applicable to its executive officers or in accordance with
any retirement arrangement established with Executive's consent with respect to
Executive.
If termination occurs for such reason, no additional compensation
shall be payable to the Executive under this Agreement except as specifically
provided in this Agreement. Notwithstanding anything to the contrary contained
in this Agreement, the Executive shall receive all compensation and other
benefits to which he was entitled under Section 4 through the Termination Date
and, in addition, shall receive all other benefits available to him under the
Bank's Benefit Plans as in
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effect on the date of death, disability or retirement.
(ii) Cause. The Bank may terminate the Executive's employment
under this Agreement for Cause at any time, and thereafter the Bank's
obligations under this Agreement shall cease and terminate. Notwithstanding
anything to the contrary contained in this Agreement, Executive shall receive
all compensation and other benefits to which he was entitled under Section 4
through the Termination Date and, in addition, shall receive all benefits
available to him under the Bank's Benefit Plans as in effect on the Termination
Date. For purposes of this Agreement, "Cause" shall mean (A) the willful and
continued failure by Executive to substantially perform his duties with the Bank
(other than failure resulting from the Executive's incapacity due to physical or
mental illness) after a written demand for substantial performance is delivered
to Executive by the Board, which demand specifically identifies the manner in
which the Board believes Executive has not substantially performed his duties,
(B) any willful act of misconduct by Executive which is materially injurious to
the Bank, monetarily or otherwise, (C) a criminal conviction of Executive for
any act involving dishonesty, breach of trust or a violation of the banking or
savings and loan laws of the State of Wisconsin or the United States, (D) a
criminal conviction of the Executive for the commission of any felony, (E) a
willful breach of fiduciary duty involving personal profit, (F) a willful
violation of any law, rule or regulation or final cease and desist order where
such violations materially, adversely, affect the Bank, (G) incompetence,
personal dishonesty or material breach of any provision of this Agreement which
would have a material adverse impact on the Bank. For purposes of this
Subsection 5(ii), no act, or failure to act, on the Executive's part shall be
deemed "willful" unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that the action or omission was in the
best interest of the Bank.
(iii) Voluntary Termination by Executive. Executive may
voluntarily terminate his employment under this Agreement at any time by giving
at least forty-five (45) days prior written notice to the Bank. In such event,
Executive shall receive all compensation and other benefits to which he was
entitled under Section 4 through the Termination Date and, in addition, shall
receive all other benefits available to him under the Bank's Benefit Plans as in
effect on the Termination Date.
(iv) Termination by Executive After Change in Control. For
purposes of this Agreement, a "change in control" shall mean a change in control
with respect to the Bank or its parent holding company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act") or any successor thereto; provided that, without
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limitation, such a change in control shall be deemed to have occurred if (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities representing 25% or more of
the combined voting power of the Bank or holding company's then outstanding
securities; or (ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board of Directors of the Bank or
company cease for any reason to constitute at least a majority thereof unless
the election, or the nomination for election by stockholders, of each new
director was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of the period. The Executive
may terminate his employment under this Agreement by giving at least ninety (90)
days prior written notice to the Bank at anytime (1) within eighteen (18) months
of the effective date of a "change in control", or (2) after the occurrence, at
any time subsequent to a "change in control," of any of the following events,
without Executive's express written consent:
(A) Executive is assigned to any positions, duties or
responsibilities that are less significant than his positions, duties and
responsibilities as of the time immediately prior to any change in control;
(B) Executive is removed from or the Board fails to re-elect
Executive to any of his Corporate Position, except (1) in connection with
termination of Executive's employment for cause, disability or retirement, or
(2) in connection with any change in control after which the Bank is not the
continuing or surviving corporation, if the successor organization has executed
an agreement as required by Section 8(i)(A) and the removal or failure to
re-elect is limited to his Corporate Position with the Bank;
(C) Executive's Base Salary is materially reduced or the
Executive experiences in any year a material reduction of the ratio of his bonus
payment to his Base Salary which is greater than the average reduction in the
ratio of bonus payments to base salaries in such year experienced by all other
executive officers of the Bank or any other material failure by the Bank to
comply with Section 4;
(D) Executive is transferred to a location not within a 25
mile radius of the City of LaCrosse, Wisconsin; or
(E) The Bank fails to obtain an agreement from any successor
organization as required by Section 8(i)(A).
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(v) Suspension or Termination Required by the OTS
(A) If Executive is suspended and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice served under
section 8(e)(3), or section 8(g)(1) of the Federal Deposit Insurance Act (12
U.S.C. ss. 1818(e)(3) and (g)(1), the Bank's obligations under the Agreement
shall be suspended as of the date of service of the notice unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, Bank shall
(1) pay Executive all of the compensation withheld while its obligations under
this Agreement were suspended and (2) reinstate any of its obligations which
were suspended.
(B) If Executive is removed and/or permanently prohibited
from participating in the conduct of the Bank's affairs by an order issued under
section 8(e)(4) or section 8(g)(1) of the Federal Deposit Insurance Act (12
U.S.C. ss. 1818(e)(4) or (g)(1) obligations of the Bank under the Agreement
shall terminate as of the effective date of the order, but vested rights of the
Executive to compensation and to any benefits under the Bank's Pension Plan
shall not be affected.
(C) If the Bank is in default as defined in section 3(x)(1)
of the Federal Deposit Insurance Act, (12 U.S.C. 1813 (x)(1))all obligations
under the Agreement shall terminate as of the date of default, except that this
paragraph shall not affect any vested rights of the Executive under any
qualified retirement plan nor, in the event the Executive terminates prior to
the date of such default, the Executive's vested rights to continue to receive
severance payments and benefits pursuant to section 5(vi) of this Agreement.
(D) All obligations under the Agreement shall be terminated,
except to the extent determined that continuation of the contract is necessary
for the continued operation of the Bank, (i) by the OTS, at the time the FDIC or
Resolution Trust Corporation ("RTC") enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in section
13(c) of the Federal Deposit Insurance Act; or (ii) by the OTS at the time it
approves a supervisory merger to resolve problems related to operation of the
Bank or when the Bank is determined by the OTS to be in an unsafe or unsound
condition. Any rights of the parties that have already vested, however, shall
not be affected by such action, and the Executive shall receive the compensation
and benefits set forth in section 5(vi) of this Agreement.
(E) In the event that 12 C.F.R. ss. 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. ss. 563.39, or any
successor regulation, is
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amended or modified, this Agreement shall be revised to reflect the amended or
modified provisions if: (1) the amended or modified provision is required to be
included in this Agreement; or (2) if not so required, the Executive requests
that the Agreement be so revised.
(vi) Termination by the Bank Other Than Due to Death, Disability,
Retirement or For Cause; Termination of Executive. If this Agreement is
terminated by the Bank for any reason other than death, disability, retirement
or for cause as set forth in Section 5(i) or (ii), or is terminated by the
Executive pursuant to Section 5(iv), then, following the Date of Termination:
(A) In lieu of any further salary payments to the Executive
for a period subsequent to the Termination Date, the Executive shall receive
severance pay in the form of payments continuing for the remaining unexpired
portion of the Employment Term, fully restored as of the Termination Date, at
the times provided in Section 4(i) and 4 (ii) ("Severance Payments") and based
on his highest rate of Base Salary within the 3 years preceding his Termination
Date and his total cash bonus paid in his most recently completed calendar year
of employment. In the event of a termination as a result of a change in control,
the Executive may elect to receive the Severance Payments calculated above in
one lump-sum, subject to any applicable limitations set forth in Section 6
below; provided that the amount of Severance Payment in connection with a change
in control shall be at least equal to the particular Executive's annual
compensation as of the Termination Date.
(B) In addition to the retirement benefits to which the
Executive is entitled under the Bank's Group Pension Plan, 401(k) Plan, and
ESOP, as amended from time to time (the "Retirement Plans"), the Executive shall
receive additional severance retirement benefits payable under this Agreement,
which benefits (except as provided below) shall be determined in accordance
with, and payable in the form and at the times provided in, the respective
Retirement Plans. Such benefits shall be determined as if the Executive were
fully vested under each Retirement Plan and had accumulated (after any
termination under this Agreement) the additional years of credited service
and/or allocations and Employer contributions under each of said Plans that he
would have received had he continued in the employment of the Bank for the
entire Employment Term at the levels of Base Salary and cash bonus used to
calculate the Severance Payments pursuant to subsection 5(vi)(A) above.
(C) In addition to all other amounts payable under this
section 5, Executive shall be entitled to coverage under any group health, life,
dental, or other group insurance plans (as well as under any individual life
coverages provided by the Bank on Executive's behalf) for the remainder of the
Employment Term
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upon his continued payment of any required employee contribution at the
rate in effect as of his Termination Date and to receipt of all benefits
otherwise payable to Executive under (i) any tax qualified Bank plan or
agreement relating to pension or retirement benefits, and (ii) any other Bank
plan or agreement, regardless of tax status, established to provide deferred
compensation, retirement, or other benefits for the Executive.
(D) If Executive is under fifty-five (55) years of age on the
Termination Date, Executive shall take reasonable steps to obtain employment and
thereby mitigate the amount of compensation and benefits due under Section
5(vi); provided, however, that Executive shall not be required to accept a
position other than one within a 25 mile radius of the City of LaCrosse,
Wisconsin. If the Executive is fifty-five (55) years of age or older on the
Termination Date or if Executive determines upon the advice of a qualified
independent physician that he is physically or medically unable to substantially
perform duties with another employer comparable to those performed by him with
the Bank, the Executive shall have no obligation to seek other employment.
Notwithstanding the foregoing, and regardless of age, during any portion of the
Employment term remaining after the Termination Date, if the Executive becomes
employed on a full-time basis by another employer, then to the extent the
Executive shall receive compensation, benefits or service credit from such other
employer, the aggregate amount of all compensation to be paid and benefits and
service credit to be provided by the Bank under this Agreement shall be
correspondingly reduced.
(E) The requirement for mitigation, as set forth in Section 5
(vi)(D) above, shall not apply with respect to any termination under Section
5(iv) subsequent to a change in control.
6. Limitations on Termination Compensation.
(i) In the event that the severance benefits payable to the
Executive under Subsection 5(vi) ("Severance Benefits"), or any other payments
or benefits received or to be received by the Executive from the Bank (whether
payable pursuant to the terms of this Agreement, any other plan, agreement or
arrangement with the Bank or any corporation ("Affiliate") affiliated with the
Bank within the meaning of Section 1504 of the Internal Revenue Code of 1954, as
amended (the "Code"), in the opinion of tax counsel selected by the Bank's
independent auditors and acceptable to the Executive, constitute "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and the present
value of such "parachute payments" equals or exceeds three (3) times the average
of the annual compensation payable to the Executive by the Bank (or an
Affiliate) and includible in the Executive's gross income for federal income tax
purposes for the five (5)
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calendar years preceding the year in which a change in ownership or control of
the Bank occurred ("Base Amount"), such severance benefits shall be reduced to
an amount the present value of which (when combined with the present value of
any other payments or benefits otherwise received or to be received by the
Executive from the Bank (or an Affiliate) that are deemed "parachute payments")
is equal to 2.99 times the Base Amount, notwithstanding any other provision to
the contrary in this Agreement. The Severance Benefits shall not be reduced if
(A) the Executive shall have effectively waived his receipt or enjoyment of any
such payment or benefit which triggered the applicability of this Section 6, 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 Bank. The Base Amount shall include every type
and form of compensation includible in the Executive's gross income in respect
of his employment by the Bank (or an Affiliate), except to the extent otherwise
provided in temporary or final regulations promulgated under Section 280G(b) of
the Code. For purposes of this Section 6, a "change in ownership or control"
shall have the meaning set forth in Section 280G(b) of the code and any
temporary or final regulations promulgated thereunder. The present value of any
non-cash benefit or any deferred cash payment shall be determined by the Bank's
independent auditors in accordance with the principles of Sections 280G(b)(3)
and (4) of the Code.
(ii) Executive shall have the right to request that the Bank
obtain a ruling from the Internal Revenue Service ("Service") as to whether any
or all payments or benefits determined by such tax counsel are, in the view of
the Service, "parachute payments" under Section 280G. If a ruling is sought
pursuant to the Executive's request, no severance benefits payable under this
Agreement shall be made to the Executive until after fifteen (15) days from the
date of such ruling. For purposes of this Subsection 6(ii), the Executive and
the Bank agree to be bound by the Service's ruling as to whether payments
constitute "parachute payments" under Section 280G. If the service declines, for
any reason, to provide the ruling requested, the tax counsel's opinion provided
under Subsection 6(i) with respect to what payments or benefits constitute
"parachute payments" shall control, and the period during which the Severance
Benefits may be deferred shall be extended to a date fifteen (15) days from the
date of the Service's notice indicating that no ruling would be forthcoming.
(iii) In the event that Section 280G, or any successor statute, is
repealed, this Section 6 shall cease to be effective
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on the effective date of such repeal. The parties to this Agreement recognize
that final regulations under Section 280G of the Code may affect the amounts
that may be paid under this Agreement and agree that, upon issuance of such
final regulations this Agreement may be modified as in good faith deemed
necessary in light of the provisions of such regulations to achieve the purposes
of this Agreement, and that consent to such modifications shall not be
unreasonably withheld.
7. Noncompetition After Voluntary Termination And Duty of
Confidentiality.
(a) Noncompetition. Executive acknowledges that the development of
personal contacts and relationships is an essential element of the Bank's
business, that the Bank has invested considerable time and money in his
development of such contacts and relationships, that the Bank could suffer
irreparable harm if he were to leave employment and solicit the business of
Bank's customers, and that it is reasonable to protect the Bank against
competitive activities by Executive. Executive covenants and agrees, in
recognition of the foregoing and in consideration of the mutual promises
contained herein, that in the event of a voluntary termination of employment by
Executive pursuant to Section 5(iii), or upon expiration of this Agreement as a
result of Executive's election not to continue automatic annual renewals,
Executive shall not accept employment in La Crosse, Dane or St. Croix counties
with any Significant Competitor of the Bank for a period of eighteen (18) months
following such termination. For purposes of this Agreement, the term Significant
Competitor means any financial institution including, but not limited to, any
commercial bank, savings bank, savings and loan association, credit union, or
mortgage banking corporation which, at the time of termination of Executive's
employment or during the period of this covenant not to compete, (i) maintains a
home, branch or other office in any of said counties, or (ii) has originated
within any of said counties $10,000,000 or more in residential mortgage loans
during any consecutive twelve (12) month period within the thirty-six (36)
months prior to Executive's termination and inclusive of the period covered by
this covenant.
Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of the Bank and are reasonably limited
as to (i) the scope of activities affected, (ii) their duration and geographic
scope, and (iii) their effect on Executive and the public. In the event
Executive violates the non-competition provisions set forth herein, Bank shall
be entitled, in addition to its other legal remedies, to enjoin the employment
of Executive with any Significant Competitor for the period set forth herein. If
Executive violates this covenant and the Bank brings legal action for injunctive
or other relief, the Bank shall not, as a result of the time involved in
obtaining
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such relief, be deprived of the benefit of the full period of the restrictive
covenant. Accordingly, the covenant shall be deemed to have the duration
specified herein, computed from the date such relief is granted, but reduced by
any period between commencement of the period and the date of the first
violation. In addition to such other relief as may be awarded, if the Bank is
the prevailing party it shall be entitled to reimbursement for all reasonable
costs, including attorneys' fees, incurred in enforcing its rights hereunder.
(b) Duty of Confidentiality. Executive acknowledges that he will,
as the result of services performed on behalf of the Bank, obtain or otherwise
become aware of confidential and/or proprietary information regarding the Bank's
affairs, including, but not limited to, information relative to (i) customers,
customer accounts and customer lists, (ii) marketing, (iii) customer development
strategies, (iv) financial and economic plans and projections, and (v) other
similar information. Executive agrees that following termination of his
employment for any reason, he will treat all such matters as confidential and
will refrain both from divulging such information in any manner and from the use
of such information for his benefit or for the benefit of any employer
(regardless of whether such employer would constitute a Significant Competitor
under this Agreement) or third-party.
8. General Provisions.
(i) Successors; Binding Agreement.
(A) The Bank 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 Bank ("successor
organization") to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Bank would be required to perform it
if no such succession had taken place. As used in this Agreement, "Bank" shall
mean the Bank as hereinbefore defined and any successor to its business and/or
assets as aforesaid which executes and delivers the agreement provided for in
this Section 8 or which otherwise becomes bound by the terms and provisions of
this Agreement by operation of this Agreement or law. Failure of the Bank to
obtain such agreement prior to the effectiveness of any such succession shall be
a breach of this Agreement and shall entitle the Executive as his exclusive
remedy to compensation from the Bank in the same amount and on the same terms as
he would be entitled to under this agreement if he terminated his employment
under Section 5(iv). 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
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benefits under this Agreement shall be assignable or transferrable in any
respect by the Executive, nor shall any such payment, right or interest be
subject to seizure, attachment or creditor's process for payment of any debts,
judgments, or obligations of the Executive.
(C) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the Executive and his heirs, beneficiaries and
personal representatives and the Bank and any successor organization.
(ii) Notice. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Bank:
000 Xxxxx Xxxxxx
XxXxxxxx, XX 00000
Attn: Secretary
or if to Executive at the address set forth below the Executive's signature line
of this Agreement, or to such other address as either party may have furnished
to the other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
(iii) Expenses. If any legal proceeding is necessary to enforce or
interpret this Agreement, or to recover damages for breach of it, the prevailing
party, shall be entitled to recover from the other party reasonable attorneys'
fees and necessary costs and disbursements incurred in such litigation, in
addition to any other relief to which such prevailing party may be entitled.
Notwithstanding the foregoing, in the event of a legal proceeding
to enforce or interpret the terms of this Agreement following a change in
control, Executive shall be entitled to recover from Bank, regardless of the
outcome of said action, necessary costs and disbursements incurred together with
actual attorney's fees up to the greater of (A) $25,000, or (B) thirty percent
(30%) of the amount in dispute between the parties [which amount, for purposes
of this Agreement, shall be deemed to be the difference between the highest
written settlement offer from the Bank and the lowest written settlement offer
(exclusive of any claim for consequential, punitive, or other forms or amounts
of damages not based on specific contract terms) from Executive]. Recovery by
Executive of attorneys fees and costs as provided herein following a change in
control shall be in addition to any other relief to which Executive may be
entitled.
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(iv) Withholding. The Bank shall be entitled to withhold from
amounts to be paid to the Executive under this Agreement any federal, state or
local withholding or other taxes of charges which it is from time to time
required to withhold. the Bank shall be entitled to rely on an opinion of
counsel if any question as to the amount or requirement of any such withholding
shall arise.
(v) Miscellaneous. No provision of this Agreement may be amended,
waived or discharged unless such amendment, waiver or discharge is agreed to in
writing and signed by the Executive and such officer as may be specifically
designated by the board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Wisconsin.
(vi) Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
(vii) Counterparts. This Agreement may be executed in several
counterparts, each of which together will constitute one and the same
instrument.
(viii) Headings. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of any
provision of this Agreement.
(ix) Effective Date. The effective date of this Agreement shall be
the date indicated in the first paragraph of this Agreement, notwithstanding the
actual date of execution by any party.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first above written.
Executive: Xxxx X. Xxxxx
------------------------------------
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------------------------------------
(Address)
First Federal Savings Bank,
LaCrosse-Madison
(CORPORATE SEAL)
By:
--------------------------------
By:
--------------------------------
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43
EMPLOYMENT AGREEMENT
(As Amended Effective July 1, 1998)
THIS EMPLOYMENT AGREEMENT is made effective as of this 1st day of July,
1998, by and between First Federal Savings Bank, LaCrosse-Madison, a
federally-chartered savings bank (the "Bank"), and Xxxxxx X. Xxxxxxx (the
"Executive").
WHEREAS, Executive has been employed by the Bank for a number of years,
and currently serves as its Senior Vice President and Retail Banking Division
Manager ("Corporate Position"); and
WHEREAS, Executive possesses an intimate knowledge of the business and
affairs of the Bank, including its policies, markets and financial and human
resources; and
WHEREAS, the Board of Directors of the Bank (the "Board"), recognizes
that Executive's contribution to the growth and success of the Bank has been
substantial and desires to assure the Bank of Executive's continued employment
in an executive capacity and to compensate him therefore; and
WHEREAS, Executive is desirous of committing himself to serve the Bank
on the terms provided in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, the Bank and Executive agree as follows:
1. Employment. Bank shall continue to employ Executive and Executive
shall continue to serve Bank under the terms and conditions of this Agreement
(which terms and conditions are intended to amend and supersede the agreement of
July 1, 1994 as previously in effect between the parties), for the period stated
in paragraph 2 below.
2. Term of Employment. The period of Executive's employment under this
Agreement shall commence on the date set forth above ("Commencement Date") and
shall expire on the third annual anniversary of said Commencement Date, unless
sooner terminated as provided herein. Effective as of any annual anniversary of
the Commencement Date during the term of this Agreement, the term of employment
hereunder may be extended by the action of the Bank's Board of Directors to add
one additional year to the then remaining term of employment hereunder so that
said term is annually restored to a full three-year term. The Board of Directors
or the Executive shall each provide the other with at least forty-five (45)
days' advance written notice of any decision on their respective parts not to
extend the Agreement on the anniversary date. The term of employment under this
Agreement, as in effect from time to time, shall be referred to
44
as the "Employment Term."
3. Position and Duties. Subject to Section 5(iv)(B), Executive shall
serve in his Corporate Position, reporting to the Board, and shall have
supervision and control over, and responsibility for, the operation of the Bank
and shall have such other powers and duties as may from time to time be
prescribed by the Board, provided that such duties are consistent with his
present duties and position as an executive officer of the Bank. Executive shall
devote substantially all his working time and efforts to the business and
affairs of the Bank.
4. Compensation. As compensation for the services to be provided
pursuant to this Agreement, Executive shall receive from Bank the compensation
and other benefits set forth below:
(i) Base Salary. During the Employment Term the Executive shall
receive a base salary ("Base Salary") in such amount as may from time to time be
approved by the Board. The Base Salary shall at no time be less than the annual
base salary payable to the Executive on the date of this Agreement. Any increase
in Base Salary or other compensation granted by the Board shall in no way limit
or reduce any other obligation of the Bank under this Agreement and, once
established at an increased specified rate, Executive's Base Salary under this
Agreement shall not thereafter be reduced. Executive's Base Salary and other
compensation shall be paid in accordance with the Bank's regular payroll
practices, as from time to time in effect.
(ii) Bonus Payments. In addition to Base Salary, Executive shall
be entitled during the Employment Term to receive such bonus payments as the
Board may determine in accordance with the Bank's Management Incentive Plan (the
"Incentive Plan") in effect on the date of this Agreement or as the same may be
amended or modified from time to time for the Bank's executive officers.
(iii) Other Benefits. During the Employment Term the Bank shall
provide to Executive all other benefits of employment generally made available
to the Bank's executive officers as in effect with other plans or arrangements
providing Executive with at least equivalent benefits there-under. Executive
shall be entitled to participate in or receive benefits under any group health
and life insurance plan, pension plan, stock purchase, incentive savings, stock
option, restricted stock, stock appreciation rights and any other similar plans
or arrangements presently or hereafter made available by the Bank to its
executive officers (collectively the "Benefit Plans"), subject to and on a basis
consistent with the terms, conditions and overall administration of such Benefit
Plans. Executive shall be entitled to vacations and perquisites in accordance
with the Bank's policies as in effect from time to time for its executive
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officers.
5. Termination. This Agreement may be terminated, subject to payment of
the compensation and other benefits described below, upon the occurrence of any
of the events described below. In case of such termination, the date on which
Executive ceases to be employed under this Agreement, after giving effect to any
prior notice requirement set forth below, is referred to as the "Termination
Date."
(i) Death; Disability; Retirement. This Agreement shall terminate
upon the death, disability or retirement of Executive. As used in this
Agreement, the term "disability" shall mean Executive's inability, as a result
of physical or mental incapacity, to substantially perform his duties with the
Bank for a period of 180 consecutive days. Any question as to the existence of
Executive's disability upon which the Executive and the Bank cannot agree shall
be determined by a qualified independent physician mutually agreeable to
Executive and the Bank or, if the parties are unable to agree upon a physician
within ten (10) days after notice from either to the other suggesting a
physician, by a physician designated by the then president of the medical
society for the county in which Executive maintains his principal residence,
upon the request of either party. The costs of any such medical examination
shall be borne by the Bank. If Executive is terminated due to disability he
shall be paid 100% of his Base Salary at the rate in effect at the time notice
of termination is given for the remainder of the Employment Term, payable in
substantially equal monthly installments less, in each case, any disability
payments otherwise payable under plans provided by the Bank for disability or
any governmental social security or workers compensation program, and actually
paid to Executive in substantially equal monthly installments.
As used in this Agreement, the term "retirement" shall mean
Executive's retirement in accordance with and pursuant to any retirement plan of
the Bank generally applicable to its executive officers or in accordance with
any retirement arrangement established with Executive's consent with respect to
Executive.
If termination occurs for such reason, no additional compensation
shall be payable to the Executive under this Agreement except as specifically
provided in this Agreement. Notwithstanding anything to the contrary contained
in this Agreement, the Executive shall receive all compensation and other
benefits to which he was entitled under Section 4 through the Termination Date
and, in addition, shall receive all other benefits available to him under the
Bank's Benefit Plans as in effect on the date of death, disability or
retirement.
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(ii) Cause. The Bank may terminate the Executive's employment
under this Agreement for Cause at any time, and thereafter the Bank's
obligations under this Agreement shall cease and terminate. Notwithstanding
anything to the contrary contained in this Agreement, Executive shall receive
all compensation and other benefits to which he was entitled under Section 4
through the Termination Date and, in addition, shall receive all benefits
available to him under the Bank's Benefit Plans as in effect on the Termination
Date. For purposes of this Agreement, "Cause" shall mean (A) the willful and
continued failure by Executive to substantially perform his duties with the Bank
(other than failure resulting from the Executive's incapacity due to physical or
mental illness) after a written demand for substantial performance is delivered
to Executive by the Board, which demand specifically identifies the manner in
which the Board believes Executive has not substantially performed his duties,
(B) any willful act of misconduct by Executive which is materially injurious to
the Bank, monetarily or otherwise, (C) a criminal conviction of Executive for
any act involving dishonesty, breach of trust or a violation of the banking or
savings and loan laws of the State of Wisconsin or the United States, (D) a
criminal conviction of the Executive for the commission of any felony, (E) a
willful breach of fiduciary duty involving personal profit, (F) a willful
violation of any law, rule or regulation or final cease and desist order where
such violations materially, adversely, affect the Bank, (G) incompetence,
personal dishonesty or material breach of any provision of this Agreement which
would have a material adverse impact on the Bank. For purposes of this
Subsection 5(ii), no act, or failure to act, on the Executive's part shall be
deemed "willful" unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that the action or omission was in the
best interest of the Bank.
(iii) Voluntary Termination by Executive. Executive may
voluntarily terminate his employment under this Agreement at any time by giving
at least ninety (90) days prior written notice to the Bank. In such event,
Executive shall receive all compensation and other benefits to which he was
entitled under Section 4 through the Termination Date and, in addition, shall
receive all other benefits available to him under the Bank's Benefit Plans as in
effect on the Termination Date.
(iv) Termination by Executive After Change in Control. For
purposes of this Agreement, a "change in control" shall mean a change in control
with respect to the Bank or its parent holding company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act") or any successor thereto; provided that, without limitation, such a change
in control shall be deemed to have occurred if (i) any "person" (as such term is
used in Sections
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47
13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities representing 25% or more of the combined voting power of the Bank or
holding company's then outstanding securities; or (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Bank or company cease for any reason to constitute
at least a majority thereof unless the election, or the nomination for election
by stockholders, of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were directors at the
beginning of the period. The Executive may terminate his employment under this
Agreement by giving at least ninety (90) days prior written notice to the Bank
at anytime (1) within eighteen (18) months of the effective date of a "change in
control", or (2) after the occurrence, at any time subsequent to a "change in
control," of any of the following events, without Executive's express written
consent:
(A) Executive is assigned to any positions, duties or
responsibilities that are materially less significant than his positions, duties
and responsibilities as of the time immediately prior to any change in control;
(B) Executive is removed from or the Board fails to re-elect
Executive to any of his Corporate Position, except (1) in connection with
termination of Executive's employment for cause, disability or retirement, or
(2) in connection with any change in control after which the Bank is not the
continuing or surviving corporation, if the successor organization has executed
an agreement as required by Section 8(i)(A) and the removal or failure to
re-elect is limited to his Corporate Position with the Bank;
(C) Executive's Base Salary is materially reduced or the
Executive experiences in any year a material reduction of the ratio of his bonus
payment to his Base Salary which is greater than the average reduction in the
ratio of bonus payments to base salaries in such year experienced by all other
executive officers of the Bank or any other material failure by the Bank to
comply with Section 4;
(D) Executive is transferred to a location not within a 25
mile radius of the City of LaCrosse, Wisconsin; or
(E) The Bank fails to obtain an agreement from any successor
organization as required by Section 8(i)(A).
(v) Suspension or Termination Required by the OTS
(A) If Executive is suspended and/or temporarily prohibited
from participating in the conduct of the Bank's
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affairs by a notice served under section 8(e)(3), or section 8(g)(1) of the
Federal Deposit Insurance Act (12 U.S.C. ss. 1818(e)(3) and (g)(1), the Bank's
obligations under the Agreement shall be suspended as of the date of service of
the notice unless stayed by appropriate proceedings. If the charges in the
notice are dismissed, Bank shall (1) pay Executive all of the compensation
withheld while its obligations under this Agreement were suspended and (2)
reinstate any of its obligations which were suspended.
(B) If Executive is removed and/or permanently prohibited
from participating in the conduct of the Bank's affairs by an order issued under
section 8(e)(4) or section 8(g)(1) of the Federal Deposit Insurance Act (12
U.S.C. ss. 1818(e)(4) or (g)(1) obligations of the Bank under the Agreement
shall terminate as of the effective date of the order, but vested rights of the
Executive to compensation and to any benefits under the Bank's Pension Plan
shall not be affected.
(C) If the Bank is in default as defined in section 3(x)(1)
of the Federal Deposit Insurance Act, (12 U.S.C. 1813 (x)(1)) all obligations
under the Agreement shall terminate as of the date of default, except that this
paragraph shall not affect vested rights of the Executive under any qualified
retirement plan nor, in the event the Executive terminates prior to the date of
such default, the Executive's vested rights to continue to receive severance
payments and benefits pursuant to Section 5(vi) of this Agreement.
(D) All obligations under the Agreement shall be terminated,
except to the extent determined that continuation of the contract is necessary
for the continued operation of the Bank, (i) by the OTS, at the time the FDIC or
Resolution Trust Corporation ("RTC") enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in section
13(c) of the Federal Deposit Insurance Act; or (ii) by the OTS at the time it
approves a supervisory merger to resolve problems related to operation of the
Bank or when the Bank is determined by the OTS to be in an unsafe or unsound
condition. Any rights of the parties that have already vested, however, shall
not be affected by such action, and the Executive shall receive the compensation
and benefits set forth in section 5(vi) of this Agreement.
(E) In the event that 12 C.F.R. ss. 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. ss. 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
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Agreement be so revised.
(vi) Termination by the Bank Other Than Due to Death, Disability,
Retirement or For Cause; Termination of Executive. If this Agreement is
terminated by the Bank for any reason other than death, disability, retirement
or for cause as set forth in Section 5(i) or (ii), or is terminated by the
Executive pursuant to Section 5(iv), then, following the Date of Termination:
(A) In lieu of any further salary payments to the Executive
for a period subsequent to the Termination Date, the Executive shall receive
severance pay in the form of payments continuing for the remaining unexpired
portion of the Employment Term, fully restored as of the Termination Date, at
the times provided in Section 4(i) and 4 (ii) ("Severance Payments") and based
on his highest rate of Base Salary within the 3 years preceding his Termination
Date and his total cash bonus paid in his most recently completed calendar year
of employment. In the event of a termination as a result of a change in control,
the Executive may elect to receive the Severance Payments calculated above in
one lump sum, subject to any applicable limitations set forth in Section 6
below; provided that the amount of Severance Payment in connection with a change
in control shall be at least equal to the particular Executive's annual
compensation as of the Termination Date.
(B) In addition to the retirement benefits to which the
Executive is entitled under the Bank's Group Pension Plan, 401(k) Plan, and
ESOP, as amended from time to time (the "Retirement Plans"), the Executive shall
receive as additional severance retirement benefits payable under this
Agreement, which benefits (except as provided below) shall be determined in
accordance with, and payable in the form and at the times provided in, the
respective Retirement Plans. Such benefits shall be determined as if the
Executive were fully vested under each Retirement Plan and had accumulated
(after any termination under this Agreement) the additional years of credited
service and/or allocations and Employer contributions under each of said Plans
that he would have received had he continued in the employment of the Bank for
the entire Employment Term at the levels of Base Salary and cash bonus used to
calculate the Severance Payments pursuant to subsection 5(vi)(A) above.
(C) In addition to all other amounts payable under this
section 5, Executive shall be entitled to coverage under any group health, life,
dental, or other group insurance plans (as well as under any individual life
coverages provided by the Bank on Executive's behalf) for the remainder of the
Employment Term upon his continued payment of any required employee contribution
at the rate in effect as of his Termination Date and to receipt of all benefits
otherwise payable to Executive under (i) any tax qualified Bank plan or
agreement relating to pension or
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retirement benefits, and (ii) any other Bank plan or agreement, regardless of
tax status, established to provide deferred compensation, retirement, or other
benefits for the Executive.
(D) If Executive is under fifty-five (55) years of age on the
Termination Date, Executive shall take reasonable steps to obtain employment and
thereby mitigate the amount of compensation and benefits due under Section
5(vi); provided, however, that Executive shall not be required to accept a
position other than one within a 25 mile radius of the City of LaCrosse,
Wisconsin. If the Executive is fifty-five (55) years of age or older on the
Termination Date or if Executive determines upon the advice of a qualified
independent physician that he is physically or medically unable to substantially
perform duties with another employer comparable to those performed by him with
the Bank, the Executive shall have no obligation to seek other employment.
Notwithstanding the foregoing, and regardless of age, during any portion of the
Employment term remaining after the Termination Date, if the Executive becomes
employed on a full-time basis by another employer, then to the extent the
Executive shall receive compensation, benefits or service credit from such other
employer, the aggregate amount of all compensation to be paid and benefits and
service credit to be provided by the Bank under this Agreement shall be
correspondingly reduced.
(E) The requirement for mitigation, as set forth in Section 5
(vi)(D) above, shall not apply with respect to any termination under Section
5(iv) subsequent to a change in control.
6. Limitations on Termination Compensation.
(i) In the event that the severance benefits payable to the
Executive under Subsection 5(vi) ("Severance Benefits"), or any other payments
or benefits received or to be received by the Executive from the Bank (whether
payable pursuant to the terms of this Agreement, any other plan, agreement or
arrangement with the Bank or any corporation ("Affiliate") affiliated with the
Bank within the meaning of Section 1504 of the Internal Revenue Code of 1954, as
amended (the "Code"), in the opinion of tax counsel selected by the Bank's
independent auditors and acceptable to the Executive, constitute "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and the present
value of such "parachute payments" equals or exceeds three (3) times the average
of the annual compensation payable to the Executive by the Bank (or an
Affiliate) and includible in the Executive's gross income for federal income tax
purposes for the five (5) calendar years preceding the year in which a change in
ownership or control of the Bank occurred ("Base Amount"), such severance
benefits shall be reduced to an amount the present value of which (when combined
with the present value of any other payments or
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51
benefits otherwise received or to be received by the Executive from the Bank (or
an Affiliate) that are deemed "parachute payments") is equal to 2.99 times the
Base Amount, notwithstanding any other provision to the contrary in this
Agreement. The Severance Benefits shall not be reduced if (A) the Executive
shall have effectively waived his receipt or enjoyment of any such payment or
benefit which triggered the applicability of this Section 6, 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 Bank. The Base Amount shall include every type and form of compensation
includible in the Executive's gross income in respect of his employment by the
Bank (or an Affiliate), except to the extent otherwise provided in temporary or
final regulations promulgated under Section 280G(b) of the Code. For purposes of
this Section 6, a "change in ownership or control" shall have the meaning set
forth in Section 280G(b) of the code and any temporary or final regulations
promulgated thereunder. The present value of any non-cash benefit or any
deferred cash payment shall be determined by the Bank's independent auditors in
accordance with the principles of Sections 280G(b)(3) and (4) of the Code.
(ii) Executive shall have the right to request that the Bank
obtain a ruling from the Internal Revenue Service ("Service") as to whether any
or all payments or benefits deter- mined by such tax counsel are, in the view of
the Service, "para- chute payments" under Section 280G. If a ruling is sought
pursuant to the Executive's request, no severance benefits payable under this
Agreement shall be made to the Executive until after fifteen (15) days from the
date of such ruling. For purposes of this Subsection 6(ii), the Executive and
the Bank agree to be bound by the Service's ruling as to whether payments
constitute "parachute payments" under Section 280G. If the service declines, for
any reason, to provide the ruling requested, the tax counsel's opinion provided
under Sub-section 6(i) with respect to what payments or benefits constitute
"parachute payments" shall control, and the period during which the Severance
Benefits may be deferred shall be extended to a date fifteen (15) days from the
date of the Service's notice indicating that no ruling would be forthcoming.
(iii) In the event that Section 280G, or any successor statute, is
repealed, this Section 6 shall cease to be effective on the effective date of
such repeal. The parties to this Agreement recognize that final regulations
under Section 280G of the Code may affect the amounts that may be paid under
this Agreement and agree that, upon issuance of such final regulations
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this Agreement may be modified as in good faith deemed necessary in light of the
provisions of such regulations to achieve the purposes of this Agreement, and
that consent to such modifications shall not be unreasonably withheld.
7. Noncompetition After Voluntary Termination And Duty of
Confidentiality.
(a) Noncompetition. Executive acknowledges that the
development of personal contacts and relationships is an essential element of
the Bank's business, that the Bank has invested considerable time and money in
his development of such contacts and relationships, that the Bank could suffer
tirreparable harm if he were to leave employment and solicit the business of
Bank's customers, and that it is reasonable to protect the Bank against
competitive activities by Executive. Executive covenants and agrees, in
recognition of the foregoing and in consideration of the mutual promises
contained herein, that in the event of a voluntary termination of employment by
Executive pursuant to Section 5(iii), or upon expiration of this Agreement as a
result of Executive's election not to continue automatic annual renewals,
Executive shall not accept employment in La Crosse, Dane or St. Croix counties
with any Significant Competitor of the Bank for a period of eighteen (18) months
following such termination. For purposes of this Agreement, the term Significant
Competitor means any financial institution including, but not limited to, any
commercial bank, savings bank, savings and loan association, credit union, or
mortgage banking corporation which, at the time of termination of Executive's
employment or during the period of this covenant not to compete, (i) maintains a
home, branch or other office in any of said counties, or (ii) has originated
within any of said counties $10,000,000 or more in residential mortgage loans
during any consecutive twelve (12) month period within the thirty-six (36)
months prior to Executive's termination and inclusive of the period covered by
this covenant.
Executive agrees that the non-competition provisions set
forth herein are necessary for the protection of the Bank and are reasonably
limited as to (i) the scope of activities affected, (ii) their duration and
geographic scope, and (iii) their effect on Executive and the public. In the
event Executive violates the non-competition provisions set forth herein, Bank
shall be entitled, in addition to its other legal remedies, to enjoin the
employment of Executive with any Significant Competitor for the period set forth
herein. If Executive violates this covenant and the Bank brings legal action for
injunctive or other relief, the Bank shall not, as a result of the time involved
in obtaining such relief, be deprived of the benefit of the full period of the
restrictive covenant. Accordingly, the covenant shall be deemed to have the
duration specified herein, computed from the date such relief is granted, but
reduced by any period between
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commencement of the period and the date of the first violation. In addition to
such other relief as may be awarded, if the Bank is the prevailing party it
shall be entitled to reimbursement for all reasonable costs, including
attorneys' fees, incurred in enforcing its rights hereunder.
(b) Duty of Confidentiality. Executive acknowledges that he
will, as the result of services performed on behalf of the Bank, obtain or
otherwise become aware of confidential and/or proprietary information regarding
the Bank's affairs, including, but not limited to, information relative to (i)
customers, customer accounts and customer lists, (ii) marketing, (iii) customer
development strategies, (iv) financial and economic plans and projections, and
(v) other similar information. Executive agrees that following termination of
his employment for any reason, he will treat all such matters as confidential
and will refrain both from divulging such information in any manner and from the
use of such information for his benefit or for the benefit of any employer
(regardless of whether such employer would constitute a Significant Competitor
under this Agreement) or third-party.
8. General Provisions.
(i) Successors; Binding Agreement.
(A) The Bank 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 Bank ("successor
organization") to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Bank would be required to perform it
if no such succession had taken place. As used in this Agreement, "Bank" shall
mean the Bank as hereinbefore defined and any successor to its business and/or
assets as aforesaid which executes and delivers the agreement provided for in
this Section 8 or which otherwise becomes bound by the terms and provisions of
this Agreement by operation of this Agreement or law. Failure of the Bank to
obtain such agreement prior to the effectiveness of any such succession shall be
a breach of this Agreement and shall entitle the Executive as his exclusive
remedy to compensation from the Bank in the same amount and on the same terms as
he would be entitled to under this agreement if he terminated his employment
under Section 5(iv). 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 transferrable 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
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obligations of the Executive.
(C) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the Executive and his heirs, beneficiaries and
personal representatives and the Bank and any successor organization.
(ii) Notice. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Bank:
000 Xxxxx Xxxxxx
XxXxxxxx, XX 00000
Attn: Secretary
or if to Executive at the address set forth below the Executive's signature line
of this Agreement, or to such other address as either party may have furnished
to the other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
(iii) Expenses. If any legal proceeding is necessary to enforce or
interpret this Agreement, or to recover damages for breach of it, the prevailing
party, shall be entitled to recover from the other party reasonable attorneys'
fees and necessary costs and disbursements incurred in such litigation, in
addition to any other relief to which such prevailing party may be entitled.
Notwithstanding the foregoing, in the event of a legal proceeding
to enforce or interpret the terms of this Agreement following a change in
control, Executive shall be entitled to recover from Bank, regardless of the
outcome of said action, necessary costs and disbursements incurred together with
actual attorney's fees up to the greater of (A) $25,000, or (B) thirty percent
(30%) of the amount in dispute between the parties [which amount, for purposes
of this Agreement, shall be deemed to be the difference between the highest
written settlement offer from the Bank and the lowest written settlement offer
(exclusive of any claim for consequential, punitive, or other forms or amounts
of damages not based on specific contract terms) from Executive]. Recovery by
Executive of attorneys fees and costs as provided herein following a change in
control shall be in addition to any other relief to which Executive may be
entitled.
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(iv) Withholding. The Bank shall be entitled to withhold from
amounts to be paid to the Executive under this Agreement any federal, state or
local withholding or other taxes of charges which it is from time to time
required to withhold. the Bank shall be entitled to rely on an opinion of
counsel if any question as to the amount or requirement of any such withholding
shall arise.
(v) Miscellaneous. No provision of this Agreement may be amended,
waived or discharged unless such amendment, waiver or discharge is agreed to in
writing and signed by the Executive and such officer as may be specifically
designated by the board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Wisconsin.
(vi) Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
(vii) Counterparts. This Agreement may be executed in several
counterparts, each of which together will constitute one and the same
instrument.
(viii) Headings. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of any
provision of this Agreement.
(ix) Effective Date. The effective date of this Agreement shall be
the date indicated in the first paragraph of this Agreement, notwithstanding the
actual date of execution by any party.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the date first above written.
Executive:
------------------------------------
Xxxxxx X. Xxxxxxx
------------------------------------
------------------------------------
(Address)
First Federal Savings Bank,
LaCrosse-Madison
(CORPORATE SEAL)
By:
---------------------------------
By:
----------------------------------
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EMPLOYMENT AGREEMENT
(As Amended Effective July 1, 1994)
THIS EMPLOYMENT AGREEMENT is made effective as of this 1st day of July,
1994, by and between First Federal Savings Bank, LaCrosse-Madison, a
federally-chartered savings bank (the "Bank"), and Xxxx X. Xxxxx (the
"Executive").
WHEREAS, Executive has been employed by the Bank for a number of years,
and currently serves as its Executive Vice President, Treasurer, and Finance and
Administrative Division Manager ("Corporate Position"); and
WHEREAS, Executive possesses an intimate knowledge of the business and
affairs of the Bank, including its policies, markets and financial and human
resources; and
WHEREAS, the Board of Directors of the Bank (the "Board"), recognizes
that Executive's contribution to the growth and success of the Bank has been
substantial and desires to assure the Bank of Executive's continued employment
in an executive capacity and to compensate him therefore; and
WHEREAS, Executive is desirous of committing himself to serve the Bank
on the terms provided in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, the Bank and Executive agree as follows:
1. Employment. Bank shall continue to employ Executive and Executive
shall continue to serve Bank under the terms and conditions of this Agreement
(which terms and conditions are intended to amend and supercede the agreement of
July 1, 1987 as previously in effect between the parties), for the period stated
in paragraph 2 below.
2. Term of Employment. The period of Executive's employment under this
Agreement shall commence on the date set forth above ("Commencement Date") and
shall expire on the third annual anniversary of said Commencement Date, unless
sooner terminated as provided herein. Effective as of any annual anniversary of
the Commencement Date during the term of this Agreement, the term of employment
hereunder may be extended by the action of the Bank's Board of Directors to add
one additional year to the then remaining term of employment hereunder so that
said term is annually restored to a full three-year term. The Board of Directors
or the Executive shall each provide the other with at least forty-five (45)
days' advance written notice of any decision on their respective parts not to
extend the Agreement on the anniversary date. The term of employment under this
58
Agreement, as in effect from time to time, shall be referred to as the
"Employment Term."
3. Position and Duties. Subject to Section 5(iv)(B), the Executive shall
serve in his Corporate Position, reporting to the President, and shall have
supervision and control over, and responsibility for, the finance and
administration of the Bank and shall have such other powers and duties as may
from time to time be prescribed by the President, provided that such duties are
consistent with his present duties and with the Executive's position as an
executive officer of the Bank. The Executive shall devote substantially all his
working time and efforts to the business and affairs of the Bank.
4. Compensation. As compensation for the services to be provided
pursuant to this Agreement, Executive shall receive from Bank the compensation
and other benefits set forth below:
(i) Base Salary. During the Employment Term the Executive shall
receive a base salary ("Base Salary") in such amount as may from time to time be
approved by the Board. The Base Salary shall at no time be less than the annual
base salary payable to the Executive on the date of this Agreement. Any increase
in Base Salary or other compensation granted by the Board shall in no way limit
or reduce any other obligation of the Bank under this Agreement and, once
established at an increased specified rate, Executive's Base Salary under this
Agreement shall not thereafter be reduced. Executive's Base Salary and other
compensation shall be paid in accordance with the Bank's regular payroll
practices, as from time to time in effect.
(ii) Bonus Payments. In addition to Base Salary, Executive shall
be entitled during the Employment Term to receive such bonus payments as the
Board may determine in accordance with the Bank's Management Incentive Plan (the
"Incentive Plan") in effect on the date of this Agreement or as the same may be
amended or modified from time to time for the Bank's executive officers.
(iii) Other Benefits. During the Employment Term the Bank shall
provide to Executive all other benefits of employment generally made available
to the Bank's executive officers as in effect with other plans or arrangements
providing Executive with at least equivalent benefits thereunder. Executive
shall be entitled to participate in or receive benefits under any group health
and life insurance plan, pension plan, stock purchase, incentive savings, stock
option, restricted stock, stock appreciation rights and any other similar plans
or arrangements presently or hereafter made available by the Bank to its
executive officers (collectively the "Benefit Plans"), subject to and on a basis
consistent with the terms, conditions and overall administration of such Benefit
Plans. Executive shall be
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entitled to vacations and perquisites in accordance with the Bank's policies as
in effect from time to time for its executive officers.
5. Termination. This Agreement may be terminated, subject to payment of
the compensation and other benefits described below, upon the occurrence of any
of the events described below. In case of such termination, the date on which
Executive ceases to be employed under this Agreement, after giving effect to any
prior notice requirement set forth below, is referred to as the "Termination
Date."
(i) Death; Disability; Retirement. This Agreement shall terminate
upon the death, disability or retirement of Executive. As used in this
Agreement, the term "disability" shall mean Executive's inability, as a result
of physical or mental incapacity, to substantially perform his duties with the
Bank for a period of 180 consecutive days. Any question as to the existence of
Executive's disability upon which the Executive and the Bank cannot agree shall
be determined by a qualified independent physician mutually agreeable to
Executive and the Bank or, if the parties are unable to agree upon a physician
within ten (10) days after notice from either to the other suggesting a
physician, by a physician designated by the then president of the medical
society for the county in which Executive maintains his principal residence,
upon the request of either party. The costs of any such medical examination
shall be borne by the Bank. If Executive is terminated due to disability he
shall be paid 100% of his Base Salary at the rate in effect at the time notice
of termination is given for the remainder of the Employment Term, payable in
substantially equal monthly installments less, in each case, any disability
payments otherwise payable under plans provided by the Bank for disability or
any governmental social security or workers compensation program, and actually
paid to Executive in substantially equal monthly installments.
As used in this Agreement, the term "retirement" shall mean
Executive's retirement in accordance with and pursuant to any retirement plan of
the Bank generally applicable to its executive officers or in accordance with
any retirement arrangement established with Executive's consent with respect to
Executive.
If termination occurs for such reason, no additional compensation
shall be payable to the Executive under this Agreement except as specifically
provided in this Agreement. Notwithstanding anything to the contrary contained
in this Agreement, the Executive shall receive all compensation and other
benefits to which he was entitled under Section 4 through the Termination Date
and, in addition, shall receive all other benefits available to him under the
Bank's Benefit Plans as in
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effect on the date of death, disability or retirement.
(ii) Cause. The Bank may terminate the Executive's employment
under this Agreement for Cause at any time, and thereafter the Bank's
obligations under this Agreement shall cease and terminate. Notwithstanding
anything to the contrary contained in this Agreement, Executive shall receive
all compensation and other benefits to which he was entitled under Section 4
through the Termination Date and, in addition, shall receive all benefits
available to him under the Bank's Benefit Plans as in effect on the Termination
Date. For purposes of this Agreement, "Cause" shall mean (A) the willful and
continued failure by Executive to substantially perform his duties with the Bank
(other than failure resulting from the Executive's incapacity due to physical or
mental illness) after a written demand for substantial performance is delivered
to Executive by the Board, which demand specifically identifies the manner in
which the Board believes Executive has not substantially performed his duties,
(B) any willful act of misconduct by Executive which is materially injurious to
the Bank, monetarily or otherwise, (C) a criminal conviction of Executive for
any act involving dishonesty, breach of trust or a violation of the banking or
savings and loan laws of the State of Wisconsin or the United States, (D) a
criminal conviction of the Executive for the commission of any felony, (E) a
willful breach of fiduciary duty involving personal profit, (F) a willful
violation of any law, rule or regulation or final cease and desist order where
such violations materially, adversely, affect the Bank, (G) incompetence,
personal dishonesty or material breach of any provision of this Agreement which
would have a material adverse impact on the Bank. For purposes of this
Subsection 5(ii), no act, or failure to act, on the Executive's part shall be
deemed "willful" unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that the action or omission was in the
best interest of the Bank.
(iii) Voluntary Termination by Executive. Executive may
voluntarily terminate his employment under this Agreement at any time by giving
at least forty-five (45) days prior written notice to the Bank. In such event,
Executive shall receive all compensation and other benefits to which he was
entitled under Section 4 through the Termination Date and, in addition, shall
receive all other benefits available to him under the Bank's Benefit Plans as in
effect on the Termination Date.
(iv) Termination by Executive After Change in Control. For
purposes of this Agreement, a "change in control" shall mean a change in control
with respect to the Bank or its parent holding company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act") or any successor thereto; provided that, without
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limitation, such a change in control shall be deemed to have occurred if (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities representing 25% or more of
the combined voting power of the Bank or holding company's then outstanding
securities; or (ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board of Directors of the Bank or
company cease for any reason to constitute at least a majority thereof unless
the election, or the nomination for election by stockholders, of each new
director was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of the period. The Executive
may terminate his employment under this Agreement by giving at least ninety (90)
days prior written notice to the Bank at anytime (1) within eighteen (18) months
of the effective date of a "change in control", or (2) after the occurrence, at
any time subsequent to a "change in control," of any of the following events,
without Executive's express written consent:
(A) Executive is assigned to any positions, duties or
responsibilities that are less significant than his positions, duties and
responsibilities as of the time immediately prior to any change in control;
(B) Executive is removed from or the Board fails to re-elect
Executive to any of his Corporate Position, except (1) in connection with
termination of Executive's employment for cause, disability or retirement, or
(2) in connection with any change in control after which the Bank is not the
continuing or surviving corporation, if the successor organization has executed
an agreement as required by Section 8(i)(A) and the removal or failure to
re-elect is limited to his Corporate Position with the Bank;
(C) Executive's Base Salary is materiallly reduced or the
Executive experiences in any year a material reduction of the ratio of his bonus
payment to his Base Salary which is greater than the average reduction in the
ratio of bonus payments to base salaries in such year experienced by all other
executive officers of the Bank or any other material failure by the Bank to
comply with Section 4;
(D) Executive is transferred to a location not within a 25
mile radius of the City of LaCrosse, Wisconsin; or
(E) The Bank fails to obtain an agreement from any successor
organization as required by Section 8(i)(A).
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(v) Suspension or Termination Required by the OTS
(A) If Executive is suspended and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice served under
section 8(e)(3), or section 8(g)(1) of the Federal Deposit Insurance Act (12
U.S.C. ss. 1818(e)(3) and (g)(1), the Bank's obligations under the Agreement
shall be suspended as of the date of service of the notice unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, Bank shall
(1) pay Executive all of the compensation withheld while its obligations under
this Agreement were suspended and (2) reinstate any of its obligations which
were suspended.
(B) If Executive is removed and/or permanently prohibited
from participating in the conduct of the Bank's affairs by an order issued under
section 8(e)(4) or section 8(g)(1) of the Federal Deposit Insurance Act (12
U.S.C. ss. 1818(e)(4) or (g)(1) obligations of the Bank under the Agreement
shall terminate as of the effective date of the order, but vested rights of the
Executive to compensation and to any benefits under the Bank's Pension Plan
shall not be affected.
(C) If the Bank is in default as defined in section 3(x)(1)
of the Federal Deposit Insurance Act, (12 U.S.C. 1813 (x)(1))all obligations
under the Agreement shall terminate as of the date of default, except that this
paragraph shall not affect any vested rights of the Executive under any
qualified retirement plan nor, in the event the Executive terminates prior to
the date of such default, the Executive's vested rights to continue to receive
severance payments and benefits pursuant to section 5(vi) of this Agreement.
(D) All obligations under the Agreement shall be terminated,
except to the extent determined that continuation of the contract is necessary
for the continued operation of the Bank, (i) by the OTS, at the time the FDIC or
Resolution Trust Corporation ("RTC") enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in section
13(c) of the Federal Deposit Insurance Act; or (ii) by the OTS at the time it
approves a supervisory merger to resolve problems related to operation of the
Bank or when the Bank is determined by the OTS to be in an unsafe or unsound
condition. Any rights of the parties that have already vested, however, shall
not be affected by such action, and the Executive shall receive the compensation
and benefits set forth in section 5(vi) of this Agreement.
(E) In the event that 12 C.F.R. ss. 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. ss. 563.39, or any
successor regulation, is
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amended or modified, this Agreement shall be revised to reflect the amended or
modified provisions if: (1) the amended or modified provision is required to be
included in this Agreement; or (2) if not so required, the Executive requests
that the Agreement be so revised.
(vi) Termination by the Bank Other Than Due to Death, Disability,
Retirement or For Cause; Termination of Executive. If this Agreement is
terminated by the Bank for any reason other than death, disability, retirement
or for cause as set forth in Section 5(i) or (ii), or is terminated by the
Executive pursuant to Section 5(iv), then, following the Date of Termination:
(A) In lieu of any further salary payments to the Executive
for a period subsequent to the Termination Date, the Executive shall receive
severance pay in the form of payments continuing for the remaining unexpired
portion of the Employment Term, fully restored as of the Termination Date, at
the times provided in Section 4(i) and 4 (ii) ("Severance Payments") and based
on his highest rate of Base Salary within the 3 years preceding his Termination
Date and his total cash bonus paid in his most recently completed calendar year
of employment. In the event of a termination as a result of a change in control,
the Executive may elect to receive the Severance Payments calculated above in
one lump-sum, subject to any applicable limitations set forth in Section 6
below; provided that the amount of Severance Payment in connection with a change
in control shall be at least equal to the particular Executive's annual
compensation as of the Termination Date.
(B) In addition to the retirement benefits to which the
Executive is entitled under the Bank's Group Pension Plan, 401(k) Plan, and
ESOP, as amended from time to time (the "Retirement Plans"), the Executive shall
receive additional severance retirement benefits payable under this Agreement,
which benefits (except as provided below) shall be determined in accordance
with, and payable in the form and at the times provided in, the respective
Retirement Plans. Such benefits shall be determined as if the Executive were
fully vested under each Retirement Plan and had accumulated (after any
termination under this Agreement) the additional years of credited service
and/or allocations and Employer contributions under each of said Plans that he
would have received had he continued in the employment of the Bank for the
entire Employment Term at the levels of Base Salary and cash bonus used to
calculate the Severance Payments pursuant to subsection 5(vi)(A) above.
(C) In addition to all other amounts payable under this
section 5, Executive shall be entitled to coverage under any group health, life,
dental, or other group insurance plans (as well as under any individual life
coverages provided by the Bank on Executive's behalf) for the remainder of the
Employment Term
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upon his continued payment of any required employee contribution at the rate in
effect as of his Termination Date and to receipt of all benefits otherwise
payable to Executive under (i) any tax qualified Bank plan or agreement relating
to pension or retirement benefits, and (ii) any other Bank plan or agreement,
regardless of tax status, established to provide deferred compensation,
retirement, or other benefits for the Executive.
(D) If Executive is under fifty-five (55) years of age on the
Termination Date, Executive shall take reasonable steps to obtain employment and
thereby mitigate the amount of compensation and benefits due under Section
5(vi); provided, however, that Executive shall not be required to accept a
position other than one within a 25 mile radius of the City of LaCrosse,
Wisconsin. If the Executive is fifty-five (55) years of age or older on the
Termination Date or if Executive determines upon the advice of a qualified
independent physician that he is physically or medically unable to substantially
perform duties with another employer comparable to those performed by him with
the Bank, the Executive shall have no obligation to seek other employment.
Notwithstanding the foregoing, and regardless of age, during any portion of the
Employment term remaining after the Termination Date, if the Executive becomes
employed on a full-time basis by another employer, then to the extent the
Executive shall receive compensation, benefits or service credit from such other
employer, the aggregate amount of all compensation to be paid and benefits and
service credit to be provided by the Bank under this Agreement shall be
correspondingly reduced.
(E) The requirement for mitigation, as set forth in Section 5
(vi)(D) above, shall not apply with respect to any termination under Section
5(iv) subsequent to a change in control.
6. Limitations on Termination Compensation.
(i) In the event that the severance benefits payable to the
Executive under Subsection 5(vi) ("Severance Benefits"), or any other payments
or benefits received or to be received by the Executive from the Bank (whether
payable pursuant to the terms of this Agreement, any other plan, agreement or
arrangement with the Bank or any corporation ("Affiliate") affiliated with the
Bank within the meaning of Section 1504 of the Internal Revenue Code of 1954, as
amended (the "Code"), in the opinion of tax counsel selected by the Bank's
independent auditors and acceptable to the Executive, constitute "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and the present
value of such "parachute payments" equals or exceeds three (3) times the average
of the annual compensation payable to the Executive by the Bank (or an
Affiliate) and includible in the Executive's gross income for federal income tax
purposes for the five (5)
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calendar years preceding the year in which a change in ownership or control of
the Bank occurred ("Base Amount"), such severance benefits shall be reduced to
an amount the present value of which (when combined with the present value of
any other payments or benefits otherwise received or to be received by the
Executive from the Bank (or an Affiliate) that are deemed "parachute payments")
is equal to 2.99 times the Base Amount, notwithstanding any other provision to
the contrary in this Agreement. The Severance Benefits shall not be reduced if
(A) the Executive shall have effectively waived his receipt or enjoyment of any
such payment or benefit which triggered the applicability of this Section 6, 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 Bank. The Base Amount shall include every type
and form of compensation includible in the Executive's gross income in respect
of his employment by the Bank (or an Affiliate), except to the extent otherwise
provided in temporary or final regulations promulgated under Section 280G(b) of
the Code. For purposes of this Section 6, a "change in ownership or control"
shall have the meaning set forth in Section 280G(b) of the code and any
temporary or final regulations promulgated thereunder. The present value of any
non-cash benefit or any deferred cash payment shall be determined by the Bank's
independent auditors in accordance with the principles of Sections 280G(b)(3)
and (4) of the Code.
(ii) Executive shall have the right to request that the Bank
obtain a ruling from the Internal Revenue Service ("Service") as to whether any
or all payments or benefits determined by such tax counsel are, in the view of
the Service, "parachute payments" under Section 280G. If a ruling is sought
pursuant to the Executive's request, no severance benefits payable under this
Agreement shall be made to the Executive until after fifteen (15) days from the
date of such ruling. For purposes of this Subsection 6(ii), the Executive and
the Bank agree to be bound by the Service's ruling as to whether payments
constitute "parachute payments" under Section 280G. If the service declines, for
any reason, to provide the ruling requested, the tax counsel's opinion provided
under Subsection 6(i) with respect to what payments or benefits constitute
"parachute payments" shall control, and the period during which the Severance
Benefits may be deferred shall be extended to a date fifteen (15) days from the
date of the Service's notice indicating that no ruling would be forthcoming.
(iii) In the event that Section 280G, or any successor statute, is
repealed, this Section 6 shall cease to be effective
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on the effective date of such repeal. The parties to this Agreement recognize
that final regulations under Section 280G of the Code may affect the amounts
that may be paid under this Agreement and agree that, upon issuance of such
final regulations this Agreement may be modified as in good faith deemed
necessary in light of the provisions of such regulations to achieve the purposes
of this Agreement, and that consent to such modifications shall not be
unreasonably withheld.
7. Noncompetition After Voluntary Termination And Duty of
Confidentiality.
(a) Noncompetition. Executive acknowledges that the development of
personal contacts and relationships is an essential element of the Bank's
business, that the Bank has invested considerable time and money in his
development of such contacts and relationships, that the Bank could suffer
irreparable harm if he were to leave employment and solicit the business of
Bank's customers, and that it is reasonable to protect the Bank against
competitive activities by Executive. Executive covenants and agrees, in
recognition of the foregoing and in consideration of the mutual promises
contained herein, that in the event of a voluntary termination of employment by
Executive pursuant to Section 5(iii), or upon expiration of this Agreement as a
result of Executive's election not to continue automatic annual renewals,
Executive shall not accept employment in La Crosse, Dane or St. Croix counties
with any Significant Competitor of the Bank for a period of eighteen (18) months
following such termination. For purposes of this Agreement, the term Significant
Competitor means any financial institution including, but not limited to, any
commercial bank, savings bank, savings and loan association, credit union, or
mortgage banking corporation which, at the time of termination of Executive's
employment or during the period of this covenant not to compete, (i) maintains a
home, branch or other office in any of said counties, or (ii) has originated
within any of said counties $10,000,000 or more in residential mortgage loans
during any consecutive twelve (12) month period within the thirty-six (36)
months prior to Executive's termination and inclusive of the period covered by
this covenant.
Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of the Bank and are reasonably limited
as to (i) the scope of activities affected, (ii) their duration and geographic
scope, and (iii) their effect on Executive and the public. In the event
Executive violates the non-competition provisions set forth herein, Bank shall
be entitled, in addition to its other legal remedies, to enjoin the employment
of Executive with any Significant Competitor for the period set forth herein. If
Executive violates this covenant and the Bank brings legal action for injunctive
or other relief, the Bank shall not, as a result of the time involved in
obtaining
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such relief, be deprived of the benefit of the full period of the restrictive
covenant. Accordingly, the covenant shall be deemed to have the duration
specified herein, computed from the date such relief is granted, but reduced by
any period between commencement of the period and the date of the first
violation. In addition to such other relief as may be awarded, if the Bank is
the prevailing party it shall be entitled to reimbursement for all reasonable
costs, including attorneys' fees, incurred in enforcing its rights hereunder.
(b) Duty of Confidentiality. Executive acknowledges that he will,
as the result of services performed on behalf of the Bank, obtain or otherwise
become aware of confidential and/or proprietary information regarding the Bank's
affairs, including, but not limited to, information relative to (i) customers,
customer accounts and customer lists, (ii) marketing, (iii) customer development
strategies, (iv) financial and economic plans and projections, and (v) other
similar information. Executive agrees that following termination of his
employment for any reason, he will treat all such matters as confidential and
will refrain both from divulging such information in any manner and from the use
of such information for his benefit or for the benefit of any employer
(regardless of whether such employer would constitute a Significant Competitor
under this Agreement) or third-party.
8. General Provisions.
(i) Successors; Binding Agreement.
(A) The Bank 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 Bank ("successor
organization") to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Bank would be required to perform it
if no such succession had taken place. As used in this Agreement, "Bank" shall
mean the Bank as hereinbefore defined and any successor to its business and/or
assets as aforesaid which executes and delivers the agreement provided for in
this Section 8 or which otherwise becomes bound by the terms and provisions of
this Agreement by operation of this Agreement or law. Failure of the Bank to
obtain such agreement prior to the effectiveness of any such succession shall be
a breach of this Agreement and shall entitle the Executive as his exclusive
remedy to compensation from the Bank in the same amount and on the same terms as
he would be entitled to under this agreement if he terminated his employment
under Section 5(iv). 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
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benefits under this Agreement shall be assignable or transferrable in any
respect by the Executive, nor shall any such payment, right or interest be
subject to seizure, attachment or creditor's process for payment of any debts,
judgments, or obligations of the Executive.
(C) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the Executive and his heirs, beneficiaries and
personal representatives and the Bank and any successor organization.
(ii) Notice. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Bank:
000 Xxxxx Xxxxxx
XxXxxxxx, XX 00000
Attn: Secretary
or if to Executive at the address set forth below the Executive's signature line
of this Agreement, or to such other address as either party may have furnished
to the other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
(iii) Expenses. If any legal proceeding is necessary to enforce or
interpret this Agreement, or to recover damages for breach of it, the prevailing
party, shall be entitled to recover from the other party reasonable attorneys'
fees and necessary costs and disbursements incurred in such litigation, in
addition to any other relief to which such prevailing party may be entitled.
Notwithstanding the foregoing, in the event of a legal proceeding
to enforce or interpret the terms of this Agreement following a change in
control, Executive shall be entitled to recover from Bank, regardless of the
outcome of said action, necessary costs and disbursements incurred together with
actual attorney's fees up to the greater of (A) $25,000, or (B) thirty percent
(30%) of the amount in dispute between the parties [which amount, for purposes
of this Agreement, shall be deemed to be the difference between the highest
written settlement offer from the Bank and the lowest written settlement offer
(exclusive of any claim for consequential, punitive, or other forms or amounts
of damages not based on specific contract terms) from Executive]. Recovery by
Executive of attorneys fees and costs as provided herein following a change in
control shall be in addition to any other relief to which Executive may be
entitled.
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(iv) Withholding. The Bank shall be entitled to withhold from
amounts to be paid to the Executive under this Agreement any federal, state or
local withholding or other taxes of charges which it is from time to time
required to withhold. the Bank shall be entitled to rely on an opinion of
counsel if any question as to the amount or requirement of any such withholding
shall arise.
(v) Miscellaneous. No provision of this Agreement may be amended,
waived or discharged unless such amendment, waiver or discharge is agreed to in
writing and signed by the Executive and such officer as may be specifically
designated by the board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Wisconsin.
(vi) Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
(vii) Counterparts. This Agreement may be executed in several
counterparts, each of which together will constitute one and the same
instrument.
(viii) Headings. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of any
provision of this Agreement.
(ix) Effective Date. The effective date of this Agreement shall be
the date indicated in the first paragraph of this Agreement, notwithstanding the
actual date of execution by any party.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the date first above written.
Executive: Milne X. Xxxxxx
------------------------------------
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------------------------------------
(Address)
First Federal Savings Bank,
LaCrosse-Madison
(CORPORATE SEAL)
By:
---------------------------------
By:
---------------------------------
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EMPLOYMENT AGREEMENT
(As Amended Effective July 1, 1994)
THIS EMPLOYMENT AGREEMENT is made effective as of this 1st day of July,
1994, by and between First Federal Savings Bank, LaCrosse-Madison, a
federally-chartered savings bank (the "Bank"), and Xxxxxx X. Xxxxx (the
"Executive").
WHEREAS, Executive has been employed by the Bank for a number of years,
and currently serves as its Senior Vice President and Commercial Real Estate
Lending Division Manager ("Corporate Position"); and
WHEREAS, Executive possesses an intimate knowledge of the business and
affairs of the Bank, including its policies, markets and financial and human
resources; and
WHEREAS, the Board of Directors of the Bank (the "Board"), recognizes
that Executive's contribution to the growth and success of the Bank has been
substantial and desires to assure the Bank of Executive's continued employment
in an executive capacity and to compensate him therefore; and
WHEREAS, Executive is desirous of committing himself to serve the Bank
on the terms provided in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, the Bank and Executive agree as follows:
1. Employment. Bank shall continue to employ Executive and Executive
shall continue to serve Bank under the terms and conditions of this Agreement
(which terms and conditions are intended to amend and supercede the agreement of
July 1, 1987 as previously in effect between the parties), for the period stated
in paragraph 2 below.
2. Term of Employment. The period of Executive's employment under this
Agreement shall commence on the date set forth above ("Commencement Date") and
shall expire on the second annual anniversary of said Commencement Date, unless
sooner terminated as provided herein. Effective as of any annual anniversary of
the Commencement Date during the term of this Agreement, the term of employment
hereunder may be extended by the action of the Bank's Board of Directors to add
one additional year to the then remaining term of employment hereunder so that
said term is annually restored to a full two-year term. The Board of Directors
or the Executive shall each provide the other with at
72
least forty-five (45) days' advance written notice of any decision on their
respective parts not to extend the Agreement on the anniversary date. The term
of employment under this Agreement, as in effect from time to time, shall be
referred to as the "Employment Term."
3. Position and Duties. Subject to Section 5(iv)(B), the Executive shall
serve in his Corporate Position, reporting to the President, and shall have
supervision and control over, and responsibility for, commercial and real estate
lending functions of the Bank and shall have such other powers and duties as may
from time to time be prescribed by the President, provided that such duties are
consistent with his present duties and with the Executive's position as an
executive officer of the Bank. The Executive shall devote substantially all his
working time and efforts to the business and affairs of the Bank.
4. Compensation. As compensation for the services to be provided
pursuant to this Agreement, Executive shall receive from Bank the compensation
and other benefits set forth below:
(i) Base Salary. During the Employment Term the Executive shall
receive a base salary ("Base Salary") in such amount as may from time to time be
approved by the Board. The Base Salary shall at no time be less than the annual
base salary payable to the Executive on the date of this Agreement. Any increase
in Base Salary or other compensation granted by the Board shall in no way limit
or reduce any other obligation of the Bank under this Agreement and, once
established at an increased specified rate, Executive's Base Salary under this
Agreement shall not thereafter be reduced. Executive's Base Salary and other
compensation shall be paid in accordance with the Bank's regular payroll
practices, as from time to time in effect.
(ii) Bonus Payments. In addition to Base Salary, Executive shall be
entitled during the Employment Term to receive such bonus payments as the Board
may determine in accordance with the Bank's Management Incentive Plan (the
"Incentive Plan") in effect on the date of this Agreement or as the same may be
amended or modified from time to time for the Bank's executive officers.
(iii) Other Benefits. During the Employment Term the Bank shall
provide to Executive all other benefits of employment generally made available
to the Bank's executive officers as in effect with other plans or arrangements
providing Executive with at least equivalent benefits thereunder. Executive
shall be entitled to participate in or receive benefits under any group health
and life insurance plan, pension plan, stock purchase, incentive savings, stock
option, restricted stock, stock appreciation rights and any other similar plans
or arrangements presently or hereafter made available by the Bank to its
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executive officers (collectively the "Benefit Plans"), subject to and on a basis
consistent with the terms, conditions and overall administration of such Benefit
Plans. Executive shall be entitled to vacations and perquisites in accordance
with the Bank's policies as in effect from time to time for its executive
officers.
5. Termination. This Agreement may be terminated, subject to payment of
the compensation and other benefits described below, upon the occurrence of any
of the events described below. In case of such termination, the date on which
Executive ceases to be employed under this Agreement, after giving effect to any
prior notice requirement set forth below, is referred to as the "Termination
Date."
(i) Death; Disability; Retirement. This Agreement shall terminate
upon the death, disability or retirement of Executive. As used in this
Agreement, the term "disability" shall mean Executive's inability, as a result
of physical or mental incapacity, to substantially perform his duties with the
Bank for a period of 180 consecutive days. Any question as to the existence of
Executive's disability upon which the Executive and the Bank cannot agree shall
be determined by a qualified independent physician mutually agreeable to
Executive and the Bank or, if the parties are unable to agree upon a physician
within ten (10) days after notice from either to the other suggesting a
physician, by a physician designated by the then president of the medical
society for the county in which Executive maintains his principal residence,
upon the request of either party. The costs of any such medical examination
shall be borne by the Bank. If Executive is terminated due to disability he
shall be paid 100% of his Base Salary at the rate in effect at the time notice
of termination is given for the remainder of the Employment Term, payable in
substantially equal monthly installments less, in each case, any disability
payments otherwise payable under plans provided by the Bank for disability or
any governmental social security or workers compensation program, and actually
paid to Executive in substantially equal monthly installments.
As used in this Agreement, the term "retirement" shall mean
Executive's retirement in accordance with and pursuant to any retirement plan of
the Bank generally applicable to its executive officers or in accordance with
any retirement arrangement established with Executive's consent with respect to
Executive.
If termination occurs for such reason, no additional compensation
shall be payable to the Executive under this Agreement except as specifically
provided in this Agreement. Notwithstanding anything to the contrary contained
in this Agreement, the Executive shall receive all compensation and other
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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 as in effect on the date of death, disability or
retirement.
(ii) Cause. The Bank may terminate the Executive's employment under
this Agreement for Cause at any time, and thereafter the Bank's obligations
under this Agreement shall cease and terminate. Notwithstanding anything to the
contrary contained in this Agreement, Executive shall receive all compensation
and other benefits to which he was entitled under Section 4 through the
Termination Date and, in addition, shall receive all benefits available to him
under the Bank's Benefit Plans as in effect on the Termination Date. For
purposes of this Agreement, "Cause" shall mean (A) the willful and continued
failure by Executive to substantially perform his duties with the Bank (other
than failure resulting from the Executive's incapacity due to physical or mental
illness) after a written demand for substantial performance is delivered to
Executive by the Board, which demand specifically identifies the manner in which
the Board believes Executive has not substantially performed his duties, (B) any
willful act of misconduct by Executive which is materially injurious to the
Bank, monetarily or otherwise, (C) a criminal conviction of Executive for any
act involving dishonesty, breach of trust or a violation of the banking or
savings and loan laws of the State of Wisconsin or the United States, (D) a
criminal conviction of the Executive for the commission of any felony, (E) a
willful breach of fiduciary duty involving personal profit, (F) a willful
violation of any law, rule or regulation or final cease and desist order where
such violations materially, adversely, affect the Bank, (G) incompetence,
personal dishonesty or material breach of any provision of this Agreement which
would have a material adverse impact on the Bank. For purposes of this
Subsection 5(ii), no act, or failure to act, on the Executive's part shall be
deemed "willful" unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that the action or omission was in the
best interest of the Bank.
(iii) Voluntary Termination by Executive. Executive may voluntarily
terminate his employment under this Agreement at any time by giving at least
forty-five (45) days prior written notice to the Bank. In such event, Executive
shall receive all compensation and other benefits to which he was entitled under
Section 4 through the Termination Date and, in addition, shall receive all other
benefits available to him under the Bank's Benefit Plans as in effect on the
Termination Date.
(iv) Termination by Executive After Change in Control. For purposes
of this Agreement, a "change in control" shall mean a change in control with
respect to the Bank or its parent holding company of a nature that would be
required to be reported
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in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended ("Exchange Act") or any successor
thereto; provided that, without limitation, such a change in control shall be
deemed to have occurred if (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities representing 25% or more of the combined voting power of the Bank or
holding company's then outstanding securities; or (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Bank or company cease for any reason to constitute
at least a majority thereof unless the election, or the nomination for election
by stockholders, of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were directors at the
beginning of the period. The Executive may terminate his employment under this
Agreement by giving at least ninety (90) days prior written notice to the Bank
at anytime (1) within eighteen (18) months of the effective date of a "change in
control", or (2) after the occurrence, at any time subsequent to a "change in
control," of any of the following events, without Executive's express written
consent:
(A) Executive is assigned to any positions, duties or
responsibilities that are less significant than his positions, duties and
responsibilities as of the time immediately prior to any change in control;
(B) Executive is removed from or the Board fails to re-elect
Executive to any of his Corporate Position, except (1) in connection with
termination of Executive's employment for cause, disability or retirement, or
(2) in connection with any change in control after which the Bank is not the
continuing or surviving corporation, if the successor organization has executed
an agreement as required by Section 8(i)(A) and the removal or failure to
re-elect is limited to his Corporate Position with the Bank;
(C) Executive's Base Salary is materially reduced or the
Executive experiences in any year a material reduction of the ratio of his bonus
payment to his Base Salary which is greater than the average reduction in the
ratio of bonus payments to base salaries in such year experienced by all other
material executive officers of the Bank or any other failure by the Bank to
comply with Section 4;
(D) Executive is transferred to a location not within a 25
mile radius of the City of LaCrosse, Wisconsin; or
(E) The Bank fails to obtain an agreement from any successor
organization as required by Section 8(i)(A).
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(v) Suspension or Termination Required by the OTS
(A) If Executive is suspended and/or temporarily
prohibited from participating in the conduct of the Bank's affairs by a notice
served under section 8(e)(3), or section 8(g)(1) of the Federal Deposit
Insurance Act (12 U.S.C. ss. 1818(e)(3) and (g)(1), the Bank's obligations under
the Agreement shall be suspended as of the date of service of the notice unless
stayed by appropriate proceedings. If the charges in the notice are dismissed,
Bank shall (1) pay Executive all of the compensation withheld while its
obligations under this Agreement were suspended and (2) reinstate any of its
obligations which were suspended.
(B) If Executive is removed and/or permanently
prohibited from participating in the conduct of the Bank's affairs by an order
issued under section 8(e)(4) or section 8(g)(1) of the Federal Deposit Insurance
Act (12 U.S.C. ss. 1818(e)(4) or (g)(1) obligations of the Bank under the
Agreement shall terminate as of the effective date of the order, but vested
rights of the Executive to compensation and to any benefits under the Bank's
Pension Plan shall not be affected.
(C) If the Bank is in default as defined in section
3(x)(1) of the Federal Deposit Insurance Act, (12 U.S.C. 1813 (x)(1)) all
obligations under the Agreement shall terminate as of the date of default,
except that this paragraph shall not affect any vested rights of the Executive
under any qualified retirement plan nor, in the event the Executive terminates
prior to the date of such default, the Executive's vested rights to continue to
receive severance payments and benefits pursuant to section 5(vi) of this
Agreement.
(D) All obligations under the Agreement shall be
terminated, except to the extent determined that continuation of the contract is
necessary for the continued operation of the Bank, (i) by the OTS, at the time
the FDIC or Resolution Trust Corporation ("RTC") enters into an agreement to
provide assistance to or on behalf of the Bank under the authority contained in
section 13(c) of the Federal Deposit Insurance Act; or (ii) by the OTS at the
time it approves a supervisory merger to resolve problems related to operation
of the Bank or when the Bank is determined by the OTS to be in an unsafe or
unsound condition. Any rights of the parties that have already vested, however,
shall not be affected by such action, and the Executive shall receive the
compensation and benefits set forth in section 5(vi) of this Agreement.
(E) In the event that 12 C.F.R. ss. 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. ss. 563.39, or
any successor regulation, is
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amended or modified, this Agreement shall be revised to reflect the amended or
modified provisions if: (1) the amended or modified provision is required to be
included in this Agreement; or (2) if not so required, the Executive requests
that the Agreement be so revised.
(vi) Termination by the Bank Other Than Due to Death,
Disability, Retirement or For Cause; Termination of Executive. If this Agreement
is terminated by the Bank for any reason other than death, disability,
retirement or for cause as set forth in Section 5(i) or (ii), or is terminated
by the Executive pursuant to Section 5(iv), then, following the Date of
Termination:
(A) In lieu of any further salary payments to the
Executive for a period subsequent to the Termination Date, the Executive shall
receive severance pay in the form of payments continuing for the remaining
unexpired portion of the Employment Term, fully restored as of the Termination
Date, at the times provided in Section 4(i) and 4(ii) ("Severance Payments")
and based on his highest rate of Base Salary within the 3 years preceding his
Termination Date and his total cash bonus paid in his most recently completed
calendar year of employment. In the event of a termination as a result of a
change in control, the Executive may elect to receive the Severance Payments
calculated above in one lump-sum, subject to any applicable limitations set
forth in Section 6 below; provided that the amount of Severance Payment in
connection with a change in control shall be at least equal to the particular
Executive's annual compensation as of the Termination Date.
(B) In addition to the retirement benefits to which the
Executive is entitled under the Bank's Group Pension Plan, 401(k) Plan, and
ESOP, as amended from time to time (the "Retirement Plans"), the Executive shall
receive additional severance retirement benefits payable under this Agreement,
which benefits (except as provided below) shall be determined in accordance
with, and payable in the form and at the times provided in, the respective
Retirement Plans. Such benefits shall be determined as if the Executive were
fully vested under each Retirement Plan and had accumulated (after any
termination under this Agreement) the additional years of credited service
and/or allocations and Employer contributions under each of said Plans that he
would have received had he continued in the employment of the Bank for the
entire Employment Term at the levels of Base Salary and cash bonus used to
calculate the Severance Payments pursuant to subsection 5(vi)(A) above.
(C) In addition to all other amounts payable under this
section 5, Executive shall be entitled to coverage under any group health, life,
dental, or other group insurance plans (as well as under any individual life
coverages provided by the Bank on Executive's behalf) for the remainder of the
Employment Term
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upon his continued payment of any required employee contribution at the rate in
effect as of his Termination Date and to receipt of all benefits otherwise
payable to Executive under (i) any tax qualified Bank plan or agreement relating
to pension or retirement benefits, and (ii) any other Bank plan or agreement,
regardless of tax status, established to provide deferred compensation,
retirement, or other benefits for the Executive.
(D) If Executive is under fifty-five (55) years of age
on the Termination Date, Executive shall take reasonable steps to obtain
employment and thereby mitigate the amount of compensation and benefits due
under Section 5(vi); provided, however, that Executive shall not be required to
accept a position other than one within a 25 mile radius of the City of
LaCrosse, Wisconsin. If the Executive is fifty-five (55) years of age or older
on the Termination Date or if Executive determines upon the advice of a
qualified independent physician that he is physically or medically unable to
substantially perform duties with another employer comparable to those performed
by him with the Bank, the Executive shall have no obligation to seek other
employment. Notwithstanding the foregoing, and regardless of age, during any
portion of the Employment term remaining after the Termination Date, if the
Executive becomes employed on a full-time basis by another employer, then to the
extent the Executive shall receive compensation, benefits or service credit from
such other employer, the aggregate amount of all compensation to be paid and
benefits and service credit to be provided by the Bank under this Agreement
shall be correspondingly reduced.
(E) The requirement for mitigation, as set forth in
Section 5(vi)(D) above, shall not apply with respect to any termination under
Section 5(iv) subsequent to a change in control.
6. Limitations on Termination Compensation.
(i) In the event that the severance benefits payable to the
Executive under Subsection 5(vi) ("Severance Benefits"), or any other payments
or benefits received or to be received by the Executive from the Bank (whether
payable pursuant to the terms of this Agreement, any other plan, agreement or
arrangement with the Bank or any corporation ("Affiliate") affiliated with the
Bank within the meaning of Section 1504 of the Internal Revenue Code of 1954, as
amended (the "Code"), in the opinion of tax counsel selected by the Bank's
independent auditors and acceptable to the Executive, constitute "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and the present
value of such "parachute payments" equals or exceeds three (3) times the average
of the annual compensation payable to the Executive by the Bank (or an
Affiliate) and includible in the Executive's gross income for federal income tax
purposes for the five (5)
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calendar years preceding the year in which a change in ownership or control of
the Bank occurred ("Base Amount"), such severance benefits shall be reduced to
an amount the present value of which (when combined with the present value of
any other payments or benefits otherwise received or to be received by the
Executive from the Bank (or an Affiliate) that are deemed "parachute payments")
is equal to 2.99 times the Base Amount, notwithstanding any other provision to
the contrary in this Agreement. The Severance Benefits shall not be reduced if
(A) the Executive shall have effectively waived his receipt or enjoyment of any
such payment or benefit which triggered the applicability of this Section 6, 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 Bank. The Base Amount shall include every type
and form of compensation includible in the Executive's gross income in respect
of his employment by the Bank (or an Affiliate), except to the extent otherwise
provided in temporary or final regulations promulgated under Section 280G(b) of
the Code. For purposes of this Section 6, a "change in ownership or control"
shall have the meaning set forth in Section 280G(b) of the code and any
temporary or final regulations promulgated thereunder. The present value of any
non-cash benefit or any deferred cash payment shall be determined by the Bank's
independent auditors in accordance with the principles of Sections 280G(b)(3)
and (4) of the Code.
(ii) Executive shall have the right to request that the Bank obtain
a ruling from the Internal Revenue Service ("Service") as to whether any or all
payments or benefits determined by such tax counsel are, in the view of the
Service, "parachute payments" under Section 280G. If a ruling is sought pursuant
to the Executive's request, no severance benefits payable under this Agreement
shall be made to the Executive until after fifteen (15) days from the date of
such ruling. For purposes of this Subsection 6(ii), the Executive and the Bank
agree to be bound by the Service's ruling as to whether payments constitute
"parachute payments" under Section 280G. If the service declines, for any
reason, to provide the ruling requested, the tax counsel's opinion provided
under Subsection 6(i) with respect to what payments or benefits constitute
"parachute payments" shall control, and the period during which the Severance
Benefits may be deferred shall be extended to a date fifteen (15) days from the
date of the Service's notice indicating that no ruling would be forthcoming.
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(iii) In the event that Section 280G, or any successor statute, is
repealed, this Section 6 shall cease to be effective on the effective date of
such repeal. The parties to this Agreement recognize that final regulations
under Section 280G of the Code may affect the amounts that may be paid under
this Agreement and agree that, upon issuance of such final regulations this
Agreement may be modified as in good faith deemed necessary in light of the
provisions of such regulations to achieve the purposes of this Agreement, and
that consent to such modifications shall not be unreasonably withheld.
7. Noncompetition After Voluntary Termination And Duty of
Confidentiality.
(a) Noncompetition. Executive acknowledges that the development of
personal contacts and relationships is an essential element of the Bank's
business, that the Bank has invested considerable time and money in his
development of such contacts and relationships, that the Bank could suffer
irreparable harm if he were to leave employment and solicit the business of
Bank's customers, and that it is reasonable to protect the Bank against
competitive activities by Executive. Executive covenants and agrees, in
recognition of the foregoing and in consideration of the mutual promises
contained herein, that in the event of a voluntary termination of employment by
Executive pursuant to Section 5(iii), or upon expiration of this Agreement as a
result of Executive's election not to continue automatic annual renewals,
Executive shall not accept employment in La Crosse, Dane or St. Croix counties
with any Significant Competitor of the Bank for a period of eighteen (18) months
following such termination. For purposes of this Agreement, the term Significant
Competitor means any financial institution including, but not limited to, any
commercial bank, savings bank, savings and loan association, credit union, or
mortgage banking corporation which, at the time of termination of Executive's
employment or during the period of this covenant not to compete, (i) maintains a
home, branch or other office in any of said counties, or (ii) has originated
within any of said counties $10,000,000 or more in residential mortgage loans
during any consecutive twelve (12) month period within the thirty-six (36)
months prior to Executive's termination and inclusive of the period covered by
this covenant.
Executive agrees that the non-competition provisions set forth herein
are necessary for the protection of the Bank and are reasonably limited as to
(i) the scope of activities affected, (ii) their duration and geographic scope,
and (iii) their effect on Executive and the public. In the event Executive
violates the non-competition provisions set forth herein, Bank shall be
entitled, in addition to its other legal remedies, to enjoin the employment of
Executive with any Significant Competitor for the period set forth herein. If
Executive violates this covenant and
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the Bank brings legal action for injunctive or other relief, the Bank shall not,
as a result of the time involved in obtaining such relief, be deprived of the
benefit of the full period of the restrictive covenant. Accordingly, the
covenant shall be deemed to have the duration specified herein, computed from
the date such relief is granted, but reduced by any period between commencement
of the period and the date of the first violation. In addition to such other
relief as may be awarded, if the Bank is the prevailing party it shall be
entitled to reimbursement for all reasonable costs, including attorneys' fees,
incurred in enforcing its rights hereunder.
(b) Duty of Confidentiality. Executive acknowledges that he will,
as the result of services performed on behalf of the Bank, obtain or otherwise
become aware of confidential and/or proprietary information regarding the Bank's
affairs, including, but not limited to, information relative to (i) customers,
customer accounts and customer lists, (ii) marketing, (iii) customer development
strategies, (iv) financial and economic plans and projections, and (v) other
similar information. Executive agrees that following termination of his
employment for any reason, he will treat all such matters as confidential and
will refrain both from divulging such information in any manner and from the use
of such information for his benefit or for the benefit of any employer
(regardless of whether such employer would constitute a Significant Competitor
under this Agreement) or third-party.
8. General Provisions.
(i) Successors; Binding Agreement.
(A) The Bank 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 Bank ("successor
organization") to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Bank would be required to perform it
if no such succession had taken place. As used in this Agreement, "Bank" shall
mean the Bank as hereinbefore defined and any successor to its business and/or
assets as aforesaid which executes and delivers the agreement provided for in
this Section 8 or which otherwise becomes bound by the terms and provisions of
this Agreement by operation of this Agreement or law. Failure of the Bank to
obtain such agreement prior to the effectiveness of any such succession shall be
a breach of this Agreement and shall entitle the Executive as his exclusive
remedy to compensation from the Bank in the same amount and on the same terms as
he would be entitled to under this agreement if he terminated his employment
under Section 5(iv). For purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Termination
Date.
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(B) No right or interest to or in any payments or benefits
under this Agreement shall be assignable or transferrable in any respect by the
Executive, nor shall any such payment, right or interest be subject to seizure,
attachment or creditor's process for payment of any debts, judgments, or
obligations of the Executive.
(C) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the Executive and his heirs, beneficiaries and
personal representatives and the Bank and any successor organization.
(ii) Notice. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Bank:
000 Xxxxx Xxxxxx
XxXxxxxx, XX 00000
Attn: Secretary
or if to Executive at the address set forth below the Executive's signature line
of this Agreement, or to such other address as either party may have furnished
to the other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
(iii) Expenses. If any legal proceeding is necessary to enforce or
interpret this Agreement, or to recover damages for breach of it, the prevailing
party, shall be entitled to recover from the other party reasonable attorneys'
fees and necessary costs and disbursements incurred in such litigation, in
addition to any other relief to which such prevailing party may be entitled.
Notwithstanding the foregoing, in the event of a legal proceeding to
enforce or interpret the terms of this Agreement following a change in control,
Executive shall be entitled to recover from Bank, regardless of the outcome of
said action, necessary costs and disbursements incurred together with actual
attorney's fees up to the greater of (A) $25,000, or (B) thirty percent (30%) of
the amount in dispute between the parties [which amount, for purposes of this
Agreement, shall be deemed to be the difference between the highest written
settlement offer from the Bank and the lowest written settlement offer
(exclusive of any claim for consequential, punitive, or other forms or amounts
of damages not based on specific contract terms) from Executive]. Recovery by
Executive of attorneys fees and costs as provided
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herein following a change in control shall be in addition to any other relief to
which Executive may be entitled.
(iv) Withholding. The Bank shall be entitled to withhold from
to be paid to the Executive under this Agreement any federal, state or
local withholding or other taxes of charges which it is from time to time
required to withhold. the Bank shall be entitled to rely on an opinion of
counsel if any question as to the amount or requirement of any such withholding
shall arise.
(v) Miscellaneous. No provision of this Agreement may be amended,
waived or discharged unless such amendment, waiver or discharge is agreed to in
writing and signed by the Executive and such officer as may be specifically
designated by the board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Wisconsin.
(vi) Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
(vii) Counterparts. This Agreement may be executed in several
counterparts, each of which together will constitute one and the same
instrument.
(viii) Headings. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of any
provision of this Agreement.
(ix) Effective Date. The effective date of this Agreement shall be
the date indicated in the first paragraph of this Agreement, notwithstanding the
actual date of execution by any party.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the date first above written.
Executive: Xxxxxx X. Xxxxx
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(Address)
First Federal Savings Bank,
LaCrosse-Madison
(CORPORATE SEAL)
By:
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By:
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