EMPLOYMENT AGREEMENT
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This Employment Agreement ("Agreement") is made as of the 1st day of
January, 2003, by and between Ridgestone Bank, Brookfield, Wisconsin, a state
chartered bank ("Bank") and Xxxxxxx X. Xxxxx ("Executive").
WHEREAS, Executive possesses intimate knowledge of the business and affairs
of Bank and its policies, markets and financial and human resources; and
WHEREAS, Executive is currently a Senior Vice President of Bank
("Position") and a director of Ridgestone Financial Services, Inc.
("Corporation"); and
WHEREAS, Executive plans to retire in three years from the date hereof and
desires to change his employment with Bank to a part-time basis; and
WHEREAS, Bank desires to accommodate Executive's request to change to
part-time employment in so far as such employment shall serve as training to
Executive's planned replacement; and
WHEREAS, Executive is willing to continue in the employment of Bank on a
part-time basis, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained in this Agreement, Bank and Executive agree as follows:
1. Employment. Bank shall continue to employ Executive and Executive shall
continue to serve Bank for the period of time stated in paragraph 2 of this
Agreement. Bank and Executive agree that Executive shall not be required to
perform Executive's duties under this Agreement other than in Brookfield,
Wisconsin.
2. Employment Term. Unless employment has sooner terminated in accordance
with paragraph 5 of this Agreement, the term of Executive's employment under
this Agreement shall continue until December 31, 2005 (the "Employment Term").
3. Position and Duties. Executive agrees to devote Executive's knowledge,
skill and efforts to the performance of Executive's duties as an executive of
Bank and to assist in training Executive's replacement, as designated by Bank.
During the Employment Term, Executive's time commitment and salary shall be
reduced according to the following schedule:
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Year Hours per week Annual Salary
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1 30 $37,500
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2 30 $37,500
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3 30 $37,500
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4. Compensation/Benefits. During the Employment Term, Executive shall
receive a base salary in accordance with the schedule set forth above in
paragraph 3 and the regular payroll practices of Bank from time to time in
effect. During the Employment Term, Executive shall be entitled to participate
in such other benefits and perquisites of employment generally made available to
Bank's full-time executive or key management personnel, in accordance with
Bank's practices from time to time in effect, such as group health, dental,
disability and life insurance plans, retirement and pension plans, deferred
compensation plans, stock purchase plans, stock option plans, paid vacations,
club memberships, and automobile usage, and any other similar plans or
arrangements presently or hereafter made available by Bank to its executive
officers. In the event of any Change in Control, Executive shall retain
Executive's then current level of seniority for compensation and benefits
purposes.
5. Termination.
a. Death or Disability; Cause; Voluntary Termination. The Employment
Term will cease prior to its expiration under paragraph 2: (i) automatically and
immediately, upon Executive's death or Disability; (ii) upon the effective date
of a notice of termination for Cause given by Bank to Executive; or (iii) upon
the effective date of a notice of voluntary termination given by Executive to
Bank. If the Employment Term ceases for any of these reasons, Executive or
Executive's estate, heirs and beneficiaries, as applicable, shall be entitled to
all compensation and other benefits and expense reimbursement to which Executive
is entitled through the Termination Date. In addition, Executive shall be
entitled to all benefits otherwise payable to Executive relating to retirement
benefits or any other deferred compensation benefits for Executive, if any,
according to the terms of such plans.
b. Other. The Employment Term will cease prior to its expiration under
paragraph 2 upon the effective date of a notice of termination for any reason
other than for Cause (and other than confirmation of death or Disability), given
by Bank to Executive. In the event of termination under this subparagraph 5.b.,
compensation shall be paid to Executive as provided in subparagraph 5.d.
c. Definitions.
(1) Cause. Cause shall mean (i) the continued failure by
Executive to substantially perform Executive's duties with Bank (other than a
failure resulting from Executive's incapacity due to Disability or physical or
mental illness) after a written demand for substantial performance is delivered
to Executive by Bank, which demand specifically identifies the manner in which
Bank believes that Executive has not substantially performed Executive's duties;
(ii) any willful act of misconduct by Executive which is injurious to Bank,
monetarily or otherwise; (iii) criminal conviction of Executive for any act
involving dishonesty, breach of trust or a violation of the banking laws of the
State of Wisconsin or the United States; (iv) criminal conviction of Executive
for the commission of any felony; or (v) final action by a bank regulatory
agency prohibiting Executive from participating in the affairs of Bank. For
purposes of this definition, no act, or failure to act on Executive's part shall
be deemed "willful" unless done or admitted to be done by Executive not in good
faith and without reasonable belief that the action or omission was in the best
interest of Bank.
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(2) Change in Control. Change in Control shall mean if and when,
as a result of a transaction or a series of transactions: (i) any person (other
than a member of Executive's immediate family) acting alone or in concert with
others becomes the beneficial owner, directly or indirectly, of securities of
Bank or Corporation representing 25% or more of the combined voting power of the
then outstanding securities of Bank or Corporation, respectively; (ii) Bank or
Corporation is combined (by merger, share exchange, consolidation, or otherwise)
with another entity and as a result of such combination less than 75% of the
outstanding securities of the surviving or resulting financial institution or
corporation are owned in the aggregate by the former shareholders of Bank or
Corporation; or (iii) Bank or Corporation sells, leases, or otherwise transfers
all or substantially all of the properties or assets of Bank or Corporation not
in the ordinary course of business to another person or entity. Executive's
immediate family is Executive's children and spouse.
(3) Disability. The term "Disability" shall have the same
definition contained in Executive's disability insurance plan in effect as of
the date of this Agreement. In the event there is no such disability insurance
plan, Disability shall mean Executive's inability, as a result of physical or
mental incapacity, to substantially perform Executive's duties with Bank for a
period of six (6) consecutive months. Any question as to the existence of
Executive's Disability upon which Executive and Bank cannot agree shall be
determined by a qualified independent physician mutually agreeable to Executive
and Bank or, if the parties are unable to agree upon a physician within 10 days
after notice from Bank or Executive 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. Costs of any such medical examination shall be paid by Bank.
(4) Termination Date. The "Termination Date" is the effective
date of termination of Executive's employment under this Agreement.
d. Compensation for Termination Under Paragraph 5.b. If the Employment
Term is terminated for any of the reasons in paragraph 5.b, Executive shall at
Executive's option receive either a lump sum severance payment, or a series of
installment severance payments for the lesser of (i) a period of two years
commencing on the Termination Date or (ii) the remaining period in the
Employment Term (the "Severance Period"). The lump sum payment of cash shall be
in a total cash amount (without making a present value adjustment) equal to the
salary Executive would have received (according to the schedule set forth in
paragraph 3) had Executive remained employed for the period of time equal to the
Severance Period. If Executive elects to receive installment payments, Executive
shall receive the same amount as would be provided by a lump sum payment, but
payment shall be made in equal installments on the same dates as Bank's regular
payroll payments are made for the period of time equal to the Severance Period.
Executive shall continue to receive during the Severance Period, and
not via a lump sum, all other benefits that Executive was receiving or was
entitled to receive immediately prior to the Termination Date; provided,
however, if it is impractical to continue a particular benefit (for example, a
benefit plan limits benefits to active employees) Bank shall provide a
reasonably equivalent substitute benefit to Executive or shall pay in cash to
Executive the reasonable equivalent value of the benefit.
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In addition, Executive shall be entitled to all benefits otherwise
payable to Executive relating to retirement benefits or any other deferred
compensation benefits for Executive, if any, according to the terms of such
plans, computed as though Executive had continued in Bank's employ for the then
unexpired portion of the Employment Term remaining as of the Termination Date
(as though the Employment Term had not been terminated under paragraph 5.b) at
Executive's compensation level as of the Termination Date; provided, however, if
it is impractical to continue a particular benefit (for example, a benefit plan
limits benefits to active employees) Bank shall provide a reasonably equivalent
substitute benefit to Executive or shall pay in cash to Executive the reasonable
equivalent value of the benefit.
Executive's death after a termination under paragraph 5.b. shall not
affect Bank's payment obligations under this subparagraph.
e. Prohibited Compensation. Regardless of any provision in this
Agreement, Bank is not required to compensate Executive according to the terms
of this Agreement to the extent such compensation is prohibited or limited by
applicable federal or state law, including but not limited to 12 U.S.C ss.
182(k) and 12 C.F.R. Part 359, or by a federal or state law or regulation, but
shall compensate Executive according to the terms of this Agreement to the
extent compensation is not so prohibited or limited.
f. Limitations on Termination Compensation.
(1) In the event that the severance benefits payable to Executive
under paragraph 5.d., or any other payments or benefits received or to be
received by Executive from Bank (whether payable pursuant to the terms of this
Agreement, any other plan, agreement or arrangement with Bank or any corporation
("Affiliate") affiliated with 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 Bank and acceptable to Executive, constitute "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and the present
value of such "parachute payments" equals or exceeds three (3) times the average
of the annual compensation payable to Executive by Bank (or an Affiliate) and
includable 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 Bank occurred ("Base Amount"), such 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 Executive
from 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) Executive
shall have effectively waived his receipt or enjoyment of any such payment or
benefit which triggered the applicability of this paragraph f., 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
Bank. The Base Amount shall include every type and form of compensation
includable in Executive's gross income in respect to his employment by Bank (or
an Affiliate), except to the extent otherwise provided in regulations
promulgated under Section 280G(b) of the Code. For purposes of this paragraph
g.(1), a "change in ownership or control" shall have the
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meaning set forth in Section 280G(b) of the Code and any regulations promulgated
thereunder. The present value of any non-cash benefit or any deferred cash
payment shall be determined by Bank's independent auditors in accordance with
the principles of Sections 280G(b)(3) and (4) of the Code.
(2) In the event that Section 280G, or any successor statute, is
repealed, this paragraph f. shall cease to be effective on the effective date of
such repeal.
6. Confidential Information. Executive acknowledges that during the course
of Executive's employment, Executive has produced and has access to material
records, files, documents, data, trade secrets and information not generally
available to the public ("Confidential Information") regarding Bank and its
affiliates. Therefore, during and subsequent to Executive's employment by Bank,
Executive shall hold in confidence and not directly or indirectly disclose or
use or copy or make lists of any such Confidential Information, except to the
extent required by any court or administrative agency, other than to an employee
of Bank or a person to whom disclosure is reasonably necessary or appropriate in
connection with the performance by Executive of Executive's duties as an officer
of Bank. All records, files, documents, and other materials or copies of these
items, relating to Bank's business and the business of any affiliate thereof,
which Executive shall prepare, or use or come into contact with, shall be and
remain the sole property of Bank, and should not be removed from Bank's premises
without its written consent, and shall be promptly returned to Bank upon the
Termination Date.
7. Competition. Executive agrees that at any time while Executive is
employed by Bank pursuant to this Agreement, or during any period after
termination of Executive's employment under paragraph 5.b. during which time
Executive is receiving or has received severance pay under this Agreement,
Executive shall not either directly or indirectly as agent, stockholder,
employee, officer, director, trustee, partner, proprietor, or otherwise (except
as the holder of not more than 1% equity in another entity) engage in, render
advice or assistance to (other than on behalf of Bank), or be employed on a
compensation basis, without the prior written consent of Bank, by any person,
firm or entity which competes with Bank in any banking market in the State of
Wisconsin where, in the immediately preceding fiscal year, Bank derived not less
than two percent (2%) of its total consolidated banking deposits.
Notwithstanding anything to the contrary in this paragraph, Executive may engage
in employment which competes with Bank at any time during which or for which
Executive is no longer receiving severance benefits under the terms of this
Agreement.
8. General Provisions.
a. Successors; Assignment. Executive's rights and obligations under
this Agreement shall not be transferable by assignment or otherwise. This
Agreement and all rights of Executive hereunder shall inure to the benefit of
and be enforceable by Executive's personal or legal representatives, estate,
executors, administrators, heirs, and beneficiaries. Nothing in this Agreement
shall prevent the consolidation of Bank with, its merger into, or a share
exchange with, any other corporation, or the sale by Bank of all or
substantially all of its properties or assets; and this Agreement shall inure to
the benefit of, be binding upon and be enforceable by, any successor, surviving
or resulting corporation, or other entity to which such assets are transferred.
This Agreement shall not be terminated by the voluntary or involuntary
dissolution
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of Bank. As used herein, the term "Bank" shall, where the context requires, mean
and include, in addition to Ridgestone Bank, any successor of Bank following a
Change in Control and any successor(s) of any such successor.
b. Arbitration. Any controversy or claim arising out of or relating to
this Agreement shall be submitted and settled by binding arbitration in
Brookfield, Wisconsin, or at such other place as the parties may agree, under
the rules of the American Arbitration Association. Any award, order or judgment
pursuant to such arbitration shall be deemed final and may be entered and
enforced in any state or federal court of competent jurisdiction. Each party
agrees to submit to the jurisdiction of any such court for purposes of the
enforcement of any such award, order or judgment. The arbitrator(s) shall
interpret this Agreement in accordance with the laws of the State of Wisconsin.
In any arbitration proceeding hereunder, the arbitrator(s) are authorized to
award reasonable attorneys' fees and other arbitration-related costs to the
prevailing party.
c. Expenses. If any legal proceeding is necessary to enforce or
interpret the terms of this Agreement or to recover damages for breach of this
Agreement, the prevailing party shall be entitled to recover from the other
party reasonable attorneys' fees and necessary costs and disbursements incurred
in such legal proceeding, in addition to any other relief to which such
prevailing party may be entitled.
d. Enforcement. The provisions of this Agreement shall be regarded as
divisible and if any provisions or any part of them are declared invalid or
unenforceable by a court of competent jurisdiction, the validity and
enforceability of the remainder of the provisions or parts of the provisions and
the applicability of the provisions shall not be affected by such declaration.
e. Withholding. Bank shall be entitled to withhold from amounts to be
paid to Executive under this Agreement any federal, state or local withholding
or other taxes or charges which it is from time to time required to withhold.
Bank shall be entitled to rely on an opinion of legal counsel if any question as
to the amount or requirement of any such withholding arises.
f. Governing Law. This Agreement and the rights and obligations under
this Agreement shall be governed by and construed in accordance with the laws of
the State of Wisconsin.
g. Notice. Notices given pursuant to this Agreement shall be in
writing and shall be deemed given when received if delivered by hand, or
forty-eight (48) hours after mailing, if properly mailed as described below.
Notices by mail shall be mailed by United States registered or certified mail,
return receipt requested, addressee only, postage prepaid, if to Bank to 00000
X. Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx, 00000, or if to Executive at the address
set forth below Executive's signature line on this Agreement, or to such other
address as the party to be notified shall have given to the other party by
proper notice.
h. No Waiver. No waiver by either party at any time of any breach by
the other party of, or compliance with, any condition or provisions of this
Agreement to be
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performed by the other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same time or any prior or subsequent time.
i. Headings. The headings in this Agreement are for reference only and
shall not affect the meaning or interpretation of any provision of this
Agreement.
j. Miscellaneous. This Agreement constitutes the entire agreement
between the parties pertaining to its subject matter, and supersedes all prior
and contemporaneous agreements, employment agreements, understandings, and
discussions, whether oral or written, in connection with the subject matter.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument. This Agreement may not be amended or modified except by written
instrument executed by Bank and Executive.
RIDGESTONE BANK (SEAL)
By:
/s/ Xxxx X. Xxxxxx
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Title: President
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/s/ Xxxxxxx X. Xxxxx
----------------------------------(SEAL)
Xxxxxxx X. Xxxxx
Address:
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