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WEST ALLIS SAVINGS BANK
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is effective as of _____________________ (the
"Commencement Date") between West Allis Savings Bank, its successors and
assigns, a state chartered savings bank (hereinafter referred to as the "Bank"),
having its principal offices located at 0000 Xxxxx Xxxx Xxxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxx 00000, and Xxxxx X. Xxxxxxx (the "Executive").
RECITALS
WHEREAS, Executive is a key employee, whose extensive background, knowledge
and experience in the financial services industry has substantially benefited
the Bank and whose continued employment as an executive member of its management
team in the position of Executive Vice President, Chief Operating Officer
("Corporate Position") will continue to benefit the Bank in the future; and
WHEREAS, the parties are mutually desirous of entering into this Agreement
setting forth the terms and conditions for the employment relationship between
the Bank and Executive; and
WHEREAS, the Bank's Board of Directors has approved and authorized its
entry into this Agreement with Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below:
1. Employment. Bank shall continue to employ Executive, and Executive shall
continue to serve Bank, on the terms and conditions set forth in this Agreement,
for the period set forth in section 2 of this Agreement.
2. Term of Employment. The period of Executive's employment under this
Agreement shall begin as of the Commencement Date and expire on the third
anniversary of the last day of the month preceding such date, unless sooner
terminated as provided herein; provided that, on each annual anniversary of the
last day of said month, the term of employment may be extended by action of the
Bank's Board of Directors to add one additional year to the remaining term of
employment annually restoring such term to a full three-years. The Board of
Directors or Executive shall each provide the other with at least ninety (90)
days' advance written notice of any decision on their respective parts not to
extend the Agreement on its Anniversary Date. The term of employment as in
effect from time to time hereunder shall be referred to as the "Employment
Term".
3. Position and Duties. Subject to Section 5(iv)(B), Executive shall serve
the Bank in his Corporate Position as its Executive Vice President and Chief
Operating Officer. As such, Executive shall report directly to the Bank's Board
of Directors, be nominated as a management
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candidate for election to the Board of Directors upon expiration of each term
thereon while this Agreement remains in effect, and be generally responsible for
selection and supervision of the Bank's management team and for the formulation
of Bank business and personnel policies, and shall render executive,
policy-making and other management services of the type customarily performed by
persons serving in similar capacities at other savings banks and savings and
loan associations, together with such other duties and responsibilities as may
be appropriate to Executive's position and as may be from time to time
determined by the Bank's Board of Directors to be necessary to its operations
and in accordance with its bylaws.
4. Compensation. As compensation for services provided pursuant to this
Agreement, Executive shall receive from the Bank the compensation and benefits
set forth below:
(i) Base Salary. During the Employment Term, Executive shall receive 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 $ per
annum (which amount shall be paid by the Bank subject to reimbursement by
Hallmark Capital Corp. (the "Company") of any portion that is jointly
determined by their Boards of Directors to appropriately reflect the
allocation of Executive's time and efforts between the Bank and Company),
unless Executive and Bank mutually agree to some lesser amount reflecting a
reduction in Executive's duties in contemplation of retirement. No increase
in Base Salary or other compensation granted by the Board shall in any way
limit or reduce any other obligation of the Bank under this Agreement and,
once established at a specified annual rate, Executive's Base Salary under
this Agreement shall not thereafter be reduced except as part of a general
pro-rata reduction in compensation applicable to all Bank Executive
Officers; provided, however, that no such reduction shall be permitted
following a "change in control" as defined herein. Executive's Base Salary
and other compensation shall be paid in accordance with the Bank's regular
payroll practices, as then in effect.
(ii) Bonus Payments. In addition to Base Salary, Executive shall be
entitled, during the Employment Term, to participate in and receive
payments from all Bank bonus and other incentive compensation plans (as
currently in effect, as modified from time to time, or as subsequently
adopted); provided, however, that nothing contained herein shall grant
Executive the right to continue in any bonus or other incentive
compensation plan following its discontinuance by the Board (except to the
extent Executive had earned or otherwise accumulated vested rights therein
prior to such discontinuance).
For purposes of this Agreement, the term "Executive Officers" shall
mean all officers of the Bank serving as President or a Senior
Vice-President of the Bank.
(iii) Other Benefits. During the Employment Term, the Bank shall
provide to Executive all other benefits of employment (or, with Executive's
consent, equivalent benefits) generally made available to other Executive
Officers. Such benefits shall include participation by Executive in any
group health, life, disability, or similar insurance program, in any
corporate automobile program, and in any pension, profit-sharing, Employee
Stock Ownership Plan ("ESOP") deferred compensation, 401(k) or
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other or similar retirement program. In addition, Executive shall
participate, on the same basis (which may include allocations based on
compensation, years of service, or such other uniformly applied criteria as
the Board may determine) as other Executive Officers, in any stock
purchase, stock option or stock appreciation rights, plans, or any other
stock based program of any type, made available by the Bank to such
Executive Officers.
Executive shall be entitled to vacation, sick time, personal days and
other perquisites in the same manner and to the same extent as provided
under Bank policies as in effect from time to time for its other Executive
Officers.
Nothing contained herein shall be construed as granting Executive the
right to continue in any benefit plan or program, or to receive any other
perquisite of employment provided under this paragraph 4(iii) (except to
the extent Executive had previously earned or accumulated vested rights
therein) following termination or discontinuance of such plan, program or
perquisite by the Board.
5. Termination. This Agreement may be terminated, subject to payment of the
compensation and other benefits described below, upon occurrence of any of the
events described herein. In case of such termination, the date on which
Executive ceases to be employed under this Agreement, after giving effect to any
prior notice requirement 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, "disability" shall mean Executive's inability, as the 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 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. 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 one year and thereafter an annual amount equal to
75% of such Base Salary for any remaining portion of the Employment Term,
such amounts to be paid in substantially equal monthly installments and
offset by any monthly payments actually received by Executive during such
payment period from (i) any disability plans provided by the Bank, and/or
(ii) any governmental social security or workers compensation program.
As used in this Agreement, the term "retirement" shall mean
Executive's retirement in accordance with and pursuant to any Bank
retirement plan generally applicable to its Executive Officers or in
accordance with any retirement arrangement established for Executive with
his consent.
If termination occurs for such reason, no additional compensation
shall be payable to Executive under this Agreement except as specifically
provided herein.
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Notwithstanding anything to the contrary contained herein, Executive shall
receive all compensation and other benefits to which he was entitled under
Section 4 through the Termination Date and, in addition, shall receive all
other benefits available to him under the Bank's benefit plans as in effect
on the date of death, disability or retirement.
(ii) Cause. The Bank may terminate 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 in which he was vested or to which he was
otherwise entitled under Section 4, and the plans and programs provided
therein, by reason of employment through the Termination Date.
For purposes of this Agreement, "Cause" shall mean:
(A) The willful failure by Executive to substantially perform his
duties with the Bank (other than any such failure resulting from
the Executive's incapacity due to physical or mental illness)
after a written demand for substantial performance is delivered
to Executive by the Board, which demand specifically identifies
the manner in which the Board believes Executive has not
substantially performed his duties;
(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 United States;
(D) A criminal conviction of Executive for the commission of any
felony;
(E) A breach of fiduciary duty involving personal profit;
(F) A willful violation of any law, rule or regulation or final cease
and desist order; or
(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
Executive's part shall be deemed "willful" unless done, or omitted to be
done, by Executive not in good faith and without reasonable belief that the
action or omission was in the best interest of the 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 in which he was
vested or to which he was otherwise entitled under
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Section 4 through the date specified in such notice (the "Termination
Date"), in addition to all other benefits available to him under Bank
benefit plans 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 the 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 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
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 any time (i) within eighteen
(18) months of the effective date of a "change in control", or (ii) 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 immediately prior to any change in
control;
(B) Executive is removed from, or the Board fails to re-elect
Executive to, his Corporate Position, except (i) in connection
with termination of Executive's employment for cause, disability
or retirement, or (ii) in connection with any change in control
after which the Bank is not the continuing or surviving
corporation (unless the successor organization has executed an
agreement as required by Section 7(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 reduced or the Executive experiences
in any year a 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 (including the
executive officers of any successor to or acquiror 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 Milwaukee; or
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(E) The Bank fails to obtain an agreement from any successor
organization as required by Section 7(i)(A).
(v) Suspension or Termination Required by the Wisconsin Department of
Financial Institutions ("WDFI") or the FDIC.
(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
may, in its discretion, (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)], the
obligations of the Bank under the Agreement shall terminate as of
the effective date of the order, provided that any vested rights
of the Executive to compensation and/or 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, but this paragraph shall not affect any vested rights of
the Executive.
(D) All obligations under the Agreement shall be terminated, except
to the extent determined that continuation of the contract is
necessary for the continued operation of the Bank, (i) by the
Commissioner, 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 WDFI at the time that office approves a
supervisory merger to resolve problems related to operation of
the Bank or when the Bank is determined by the WDFI 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.
(vi) Termination by Bank Other Than Due to Death, Disability,
Retirement, or For Cause. 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), then following the Termination Date:
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(A) In lieu of any further salary payments to Executive for a period
subsequent to the Termination Date, Executive shall receive
Severance Pay in the amount of one (1) year's Base Salary (based
on his highest Base Salary within the three (3) years preceding
his Date of Termination) payable in accordance with the Bank's
normal payroll practice and beginning with the first normal pay
date following his Date of Termination.
(B) In addition to such Base Salary payments, Executive shall receive
all other compensation and benefits in which he was vested or to
which he was otherwise entitled under Section 4 and the plans and
programs provided therein by reason of employment through the
Termination Date.
(C) In the event of termination of Executive under this subsection
5(vi) following a "change in control" and within the greater of
twelve (12) months or the Employment Term remaining under the
Agreement as of the effective date of such "change in control",
Executive shall have the option of having this subsection 5(vi)
or subsection 5(vii) applicable to such termination.
(vii) Benefits Upon Termination by Executive After a "Change in
Control". If this Agreement is terminated by Executive pursuant to Section
5 (iv) after a "change in control", then, following the Termination Date:
(A) In lieu of any further salary payments to Executive for a period
subsequent to the Termination Date, Executive shall receive
severance pay in the form of payments continuing for the then
remaining unexpired portion of the Employment Term in the amount
and at the times provided in Section 4(i) and (ii). Executive may
elect to receive such payments ("Severance Payments") in one lump
sum, calculated on the basis of his average annual compensation
for the past three years multiplied by the time remaining to the
end of the term of this Agreement, subject to limitations set
forth in Section 6 below; provided that the amount of such
Severance Payment shall not in any event be less than three (3)
year's compensation for Executive based on Executive's annual
compensation as of the Termination Date.
(B) In addition to the retirement benefits to which Executive is
entitled under all tax qualified retirement plans maintained by
the Bank (hereinafter collectively referred to as "Plan"), as
amended from time to time, Executive shall receive as additional
severance benefits a retirement benefit paid under this
Agreement, which benefit (except as provided below) shall be
determined in accordance with, and paid under this Agreement in
the form and at the times provided in, the Plan. Such benefits
shall be determined as if Executive were fully vested under the
Plan and had accumulated (after any termination under this
Agreement) the additional years of credit service under the Plan
that he would have received had he continued in the employment of
the Bank for the balance of the Employment Term at the highest
annual rate of Base Salary in
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effect during the twelve (12) months immediately preceding the
Termination Date. Such Base Salary shall be deemed to represent
the compensation received by Executive during each such
additional year for purposes of determining his additional
retirement benefits under this Subsection 5(vi).
(C) In addition to other amounts payable to Executive under this
Section 5, Executive shall be entitled to receive all other
benefits in which he was vested or to which he was otherwise
entitled under Section 4 and the plans and programs provided
therein by reason of employment through the Termination Date,
together with the continuation of other benefits under Section
4(iii), excepting those Section 4(ii) provisions relating to
stock options or similar stock programs in which Executive had no
interest as of the date of termination of his employment, for the
remaining unexpired portion of the Employment Term subject to the
limitations set forth in Section 6 below.
6. Limitations on Termination Compensation. In the event that the severance
benefits payable to Executive under Subsection 5(vii) ("Severance Benefits"), or
any other payments or benefits received or to be received by 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 Executive,
constitute "parachute payments" within the meaning of Section 280G(b)(2) of the
Code, and the present value of such "parachute payments" equals or exceeds three
times the average of the annual compensation payable to Executive by the Bank
(or an Affiliate) and includable in Executive's gross income for federal income
tax purposes for the five (5) calendar years preceding the year in which a
change in ownership or control of the Bank occurred (which average shall be
referred to as the "Base Amount"), the amount of such Severance Benefits payable
under this Agreement 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 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 (i) Executive shall have
effectively waived his receipt or enjoyment of any such payment or benefit which
triggered the applicability of this Section 6, or (ii) 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 includable in
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
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with the principles of Sections 280G (b)(3) and (4) of the Code, with the value
of any amount by which the Severance Benefits payable under this Agreement are
reduced pursuant to this Section 6 and/or the value of any other benefit not
provided plus any other amount not paid by the Bank, the Company, or any plan
maintained by either (regardless of its source) being referred to collectively
herein as the Unpaid Severance.
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
Executive's request, no Severance Benefits payable under this Agreement shall be
made to Executive until after fifteen (15) days from the date of such ruling.
For purposes of this Section 6, 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 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.
In the event that Section 280G, or any successor statute, is repealed, this
Section 6 shall cease to be effective on the effective date of such repeal. The
parties to this Agreement recognize that final regulations under Section 280G of
the Code may affect the amounts that may be paid under this Agreement and agreed
that, upon issuance of such final regulations this Agreement may be modified as
in good faith deemed necessary in light of the provisions of such regulations to
achieve the purposes of this Agreement, and that consent to such modifications
shall not be unreasonably withheld.
7. General Provisions.
(i) Successors; Binding Agreement.
(A) 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 have been required to perform if no such
succession had taken place or to reexecute this Agreement as
provided pursuant to section 5(iv). If such succession is the
result of a "change in control" as defined herein, such
assumption shall specifically preserve to Executive, for the
greater of twelve (12) months or the then remaining term of this
Agreement, the same rights and remedies (recognizing them as
being available and applicable as the result of the "change in
control" effectuating said succession) provided under this
Agreement upon a "change in control".
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
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Section 7 or which otherwise becomes bound by the terms and
provisions of this Agreement by operation of this Agreement or
law. Failure of the Bank to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle 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 transferable in any respect by
the Executive, nor shall any such payment, right or interest be
subject to seizure, attachment or creditor's process for payment
of any debts, judgments, or obligations of Executive.
(C) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by Executive and his heirs, beneficiaries and
personal representatives and the Bank and any successor
organization.
(ii) Noncompetition Provision. Executive acknowledges that the
development of personal contacts and relationships is an essential element
of the savings and loan business, that Bank has invested considerable time
and money in his development of such contacts and relationships, that Bank
could suffer irreparable harm if he were to leave employment and solicit
the business of Bank customers, and that it is reasonable to protect 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 (but not as the result
of an election by the Bank) not to continue automatic annual renewals,
Executive shall not accept employment with any Significant Competitor of
Bank for a period of twelve (12) months following such termination. For
purposes of this Agreement, the term Significant Competitor means any
financial institution including, but not limited to, any commercial bank,
savings bank, savings and loan association, credit union, or mortgage
banking corporation which, at the time of termination of Executive's
employment with Bank, or during the period of this covenant not to compete,
has a home, branch or other office in any county in which Bank has an
office or which has, during the twelve (12) months preceding Executive's
termination, originated, or which during the period of this covenant not to
compete originates, more than $500,000 in commercial or mortgage loans
secured by real property in any such county.
Executive agrees that the non-competition provisions set forth herein
are necessary for the protection of 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
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the employment of Executive with any Significant Competitor for the period
set forth herein. If Executive violates this covenant and Bank brings legal
action for injunctive or other relief, 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 Bank is the prevailing party it shall be
entitled to reimbursement for all reasonable costs, including attorneys'
fees, incurred in enforcing its rights hereunder.
(iii) Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by Bank States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Bank:
West Allis Savings Bank
0000 Xxxx Xxxxxxxxxx Xxxx
P. O. Xxx 00000
Xxxxxxxx, XX 00000-0000
or if to Executive, at the address set forth below:
Xx. Xxxxx X. Xxxxxxx
0000 Xxxx Xxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
(iv) Expenses. If any legal proceeding is necessary to enforce or
interpret the terms of this Agreement, or to recover damages for breach of
it, the prevailing party shall be entitled to recover from the other party
reasonable attorneys' fees and necessary costs and disbursements incurred
in such litigation, in addition to any other relief to which such
prevailing party may be entitled.
Notwithstanding the foregoing, in the event of a legal proceeding to
enforce or interpret the terms of this Agreement following a change in
control, or a reexecution of this Agreement pursuant to section 5(iv),
Executive shall be entitled to recover from the Bank (A) reasonable
attorney's fees and necessary costs and disbursements incurred in such
litigation if Executive is the prevailing party, or (B) reasonable
attorneys fees and necessary costs and disbursements of up to $7,500
incurred in such litigation if Executive is not the prevailing party.
Recovery of attorneys fees and costs as provided herein following a change
in control or reexecution shall be in addition to any other relief to which
Executive may be entitled.
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(v) Withholding. The 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 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.
(vi) Miscellaneous. No provision of this Agreement may be amended,
waived or discharged unless such amendment, waiver of discharge is agreed
to in writing and signed by Executive and such Bank 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.
(vii) 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.
(viii) Counterparts. This Agreement may be executed in several
counterparts, each of which together will constitute one and the same
instrument.
(ix) Headings. Headings contained in this Agreement are for reference
only and shall not affect the meaning or interpretation of any provision of
this Agreement.
(x) Effective Date. The effective date of this Agreement shall be the
date indicated in the first section of this Agreement, notwithstanding the
actual date of execution by any party.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the date first above written.
West Allis Savings Bank Executive:
By ___________________________ _________________________
Title ________________________
Witness
By ____________________________
Title _________________________
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