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EXHIBIT 10.13
EMPLOYMENT AGREEMENT
(as amended on August 8, 2000)
THIS EMPLOYMENT AGREEMENT is effective as of October 1, 1996 between
Bank Wisconsin (the "Bank"), a Wisconsin-chartered corporation, its successors
and assigns, and Xxxxx X. Xxxxxxx (the "Executive").
RECITALS
WHEREAS, Executive is a key employee, whose extensive background,
knowledge and experience in the savings and loan industry have substantially
benefited the Bank and whose continued employment as its President and Chief
Executive Officer and as a member of its Board of Directors ("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 (hereinafter sometimes referred to as the "Employer") and
Executive; and
WHEREAS, the Board of Directors of the Bank has approved and authorized
entry into this Agreement with Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below:
1. Employment. The Bank shall continue to employ Executive, and
Executive shall continue to serve the Bank, on the terms, conditions and 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 October 1, 1996 (the Commencement Date) and expire
on the third anniversary of the date immediately preceding the Commencement
Date, unless sooner terminated as provided herein; provided that, on each date
immediately preceding the anniversary of the Commencement Date, the term of
employment may be extended by action of the Bank's Board of Directors, following
an explicit review by said Board of the Executive's performance under this
Agreement (with appropriate documentation thereof and after taking into account
all relevant factors including Executive's performance hereunder), 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 any date immediately
preceding an anniversary of the Commencement Date.
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The term of employment as in effect from time to time hereunder shall be
referred to as the "Employment Term".
3. Positions and Duties. Executive shall serve the Bank in his
Corporate Position as its President and Chief Executive Officer. As such,
Executive shall report directly to the Board of Directors, be nominated as a
management candidate for election to the Board of Directors upon expiration of
each term thereon while this Agreement remains in effect, and work in connection
with the formulation of business and personnel policies, rendering executive,
policy-making and other management services of the type customarily performed by
persons serving in similar capacities at other institutions, 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 Employer the compensation and
benefits set forth below:
(i) Base Salary. During the Employment Term, Executive shall
receive from Employer a base salary ("Base Salary") in such amount as
may from time to time be approved by the Board of Directors. The Base
Salary shall at no time be less than $140,000 per annum, payable by the
Bank. The Base Salary may be increased from time to time as determined
by the Employer's Board of Directors, provided that no such increase in
Base Salary or other compensation shall in any way limit or reduce any
other obligation of the Employer under this Agreement. Once established
at a specified annual rate, Executive's Base Salary shall not
thereafter be reduced except as part of a general pro-rata reduction in
compensation applicable to all Executive Officers or by agreement of
the Executive in connection with a retirement program established by
the Employer on his behalf; 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 Employer's regular payroll practices as from time
to time in effect.
(ii) Bonus and Incentive Plans. Executive shall be entitled,
during the Employment Term, to participate in and receive payments from
all bonus and other incentive compensation plans of the Bank (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
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incentive compensation plan following its discontinuance (except to the
extent Executive had earned or otherwise accumulated vested rights
therein prior to such discontinuance). In addition, Executive shall
participate in all stock purchase, stock option, stock appreciation
right, stock grant, or other stock based incentive programs of any type
made available by the Bank or Bank to their Executive Officers.
Employer shall not make any changes in such plans, benefits or
privileges which would adversely affect Executive's rights or benefits
thereunder, unless such change occurs pursuant to a program applicable
to all of their Executive Officers of the Employer and does not result
in a proportionately greater adverse change in the rights and benefits
of Executive as compared with other Executive Officers.
(iii) Other Benefits. During the Employment Term, Employer 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 in
any group health, life, disability, or similar insurance program and in
any pension, profit-sharing, Employee Stock Ownership Plan ("ESOP"),
401(k) or other or similar retirement program. Employer shall continue
any individual insurance plans or deferred compensation agreements in
effect on the Commencement Date and Executive shall be entitled to use
of an automobile under the terms of such Employer automobile policy as
is maintained in effect (or as amended) from time to time.
Executive shall receive vacation, sick time, personal days and other
perquisites in the same manner and to the same extent as provided under
the Employer's policies as in effect from time to time for other
Executive Officers. Employer shall also reimburse Executive or
otherwise provide for or pay all reasonable expenses incurred by
Executive in furtherance of or in connection with the business of
Employer, including but not by way of limitation, travel expenses,
reasonable entertainment expenses (whether incurred at Executive's
residence, while traveling or otherwise), and tax preparation fees
pursuant to established reimbursement guidelines, subject to such
documentation and other limitations as may be imposed by the Board of
Directors of the Employer.
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 subsection 4(iii)
following termination
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or discontinuance of such plan, program or perquisite by the Board
(except to the extent Executive had previously earned or accumulated
vested rights therein).
5. Termination Other Than Following a Change-In-Control. 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, is referred
to as the "Termination Date".
(i) Death, Retirement. This Agreement shall terminate at the death
or retirement of Executive. As used herein, the term "retirement" shall
mean Executive's retirement in accordance with and pursuant to any
retirement plan of the Employer generally applicable to 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. 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 and programs to which
he was entitled by reason of employment through the Termination Date.
(ii) Disability. This Agreement shall terminate upon the
disability 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 employment duties for a period
of 90 consecutive days. Any question as to the existence of Executive's
disability upon which Executive and Employer cannot agree shall be
determined by a qualified independent physician mutually agreeable to
Executive and Employer 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 Employer. 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
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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 the payment period from
(i) any disability plans provided by the Employer, and/or (ii) any
governmental social security or workers compensation program.
If termination occurs for such reason, no additional compensation
shall be payable to Executive except as specifically provided herein.
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 under the Employer's benefit plans and
programs to which he was entitled by reason of employment through the
Termination Date.
(iii) Cause. Employer may terminate Executive's employment under
this Agreement for cause at any time, and thereafter their obligations
under this Agreement shall cease and terminate. Notwithstanding
anything to the contrary contained herein, 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 intentional failure by Executive to substantially
perform assigned duties (appropriate to his position and
level of compensation) with the Employer (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, advises Executive of what steps must
be taken to achieve substantial performance, and allows
Executive Sixty (60) days in which to demonstrate such
performance;
(B) Any willful act of misconduct by Executive;
(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
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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 (other
than a traffic violation or similar offenses) or final cease
and desist order; or
(G) Personal dishonesty or material breach of any provision of
this Agreement.
For purposes of this Subsection (5)(iii), 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 Employer.
(iv) Voluntary Termination by Executive. Executive may
voluntarily terminate his employment under this Agreement at any time
by giving at least thirty (30) days prior written notice to Employer.
In such event, Executive shall receive all compensation and other
benefits in which he was vested or to which he was otherwise entitled
under Section 4 through the date specified in such notice (the
"Termination Date"), in addition to all other benefits available to him
under benefit plans and programs to which he was entitled by reason of
employment through the Termination Date.
(v) Suspension or Termination Required by the OTS
(A) If Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Employer'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 Employer's obligations under the Agreement
shall be suspended as of the date of service of the notice
unless stayed by appropriate proceedings. If the charges in
the notice are dismissed, the Employer shall (i) pay
Executive all of the compensation withheld while their
obligations under this Agreement were suspended, and (ii)
reinstate such obligations as were suspended.
(B) If Executive is removed and/or permanently
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prohibited from participating in the conduct of the
Employer'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
Employer under the Agreement shall terminate as of the
effective date of the order, but vested rights of the
contracting parties shall not be affected.
(C) If the Bank is in default as defined in section 3(x)(1) of
the Federal Deposit Insurance Act [12 U.S.C. 1813 (x)(1)],
all obligations under the 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 Employer's continued
operations (i) by the Director of the OTS, or his or her
designee at the time the FDIC or Resolution Trust
Corporation ("RTC") enters into an agreement to provide
assistance to or on behalf of the Employer under the
authority contained in section 13(c) of the Federal Deposit
Insurance Act; or (ii) by the Director of the OTS, or his or
her designee, at the time it approves a supervisory merger
to resolve problems related to operation of the Employer or
when the Employer is determined by the Director of the OTS
to be in an unsafe or unsound condition. Any rights of the
parties that have already vested, however, shall not be
affected by such action.
(E) In the event that 12 C.F.R. 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 Agreement be so revised.
(vi) Other Termination. If this Agreement is terminated (1) by the
Employer other than for cause, death, disability or retirement (and
other than following a change
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in control as defined in Section 6), or (2) by Executive due to a
failure by Employer to comply with any material provision of this
Agreement, which failure has not been cured within thirty (30) days
after notice of such non-compliance has been given by Executive to
Employer; then following the Termination Date:
(A) In lieu of any further salary payments to Executive
subsequent to the Termination Date, Executive shall receive
Severance Pay for a twelve (12) month period in accordance
with the Employer's normal payroll practices, beginning with
the first pay date following the Termination Date. The
monthly rate of Severance Pay shall be the monthly Base
Salary received by Executive (based on his highest rate of
Base Salary within the 3 years preceding his Termination
Date) plus one-twelfth of the total bonus and incentive
compensation paid to or vested in Executive on the basis of
his most recently completed calendar year of employment.
(B) Employer shall maintain and provide for the period during
which Severance Payments are to be made and ending at the
earlier of (i) the expiration of such period, or (ii) the
date of the Executive's full-time employment by another
employer (provided that the Executive is entitled under the
terms of such employment to benefits substantially similar
to those described in this subparagraph (B)), at no cost to
the Executive, the Executive's continued participation in
all group insurance, life insurance, health and accident,
disability and other employee benefit plans, programs and
arrangements in which Executive was entitled to participate
immediately prior to the Termination Date (other than
retirement plans, deferred compensation, or stock
compensation plans of the Employer), provided that in the
event Executive's participation in any plan, program or
arrangement as provided in this subparagraph (B) is barred,
or during such period any such plan, program or arrangement
is discontinued or the benefits thereunder are materially
reduced, the Employer shall arrange to provide the Executive
with benefits substantially similar to those which the
Executive was entitled to receive under such plans, programs
and arrangements immediately prior to the Termination Date.
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(C) In addition to such Severance Pay and continued benefits,
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.
6. Termination by Executive After Change in Control.
(i) Definition "Change in Control". For purposes of this
Agreement, a "change in control" shall mean any change in control with
respect to the Bank or St. Xxxxxxx Capital Corporation (the
"Corporation") 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, 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's or Company's then
outstanding securities; or (ii) during any period of two consecutive
years, individuals who at the beginning of such period constituted the
Board of Directors of the Bank or Corporation 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.
(ii) Good Reason for Executive Termination. The Executive may
terminate his employment under this Agreement for "good reason" by
giving at least thirty (30) days prior written notice to the Bank at
any time within twenty-four (24) months of the effective date of a
change in control. Occurrence of any of the following events shall
constitute good reason:
(A) Without the Executive's express written consent, assignment
by the Employer of any duties which are materially
inconsistent with Executive's positions, duties,
responsibilities and status with the Employer immediately
prior to a change in control, or a material change in the
Executive's reporting responsibilities, titles or offices as
in effect immediately prior to such change in control, or
any removal of the Executive from or
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any failure to re-elect the Executive to all or any portion
of his Corporate Position, except in connection with a
termination of Executive's employment for cause, disability,
retirement or death (or by the Executive other than for good
reason as defined in this section 6(B)).
(B) Without the Executive's express written consent, a reduction
by the Employer in the Executive's Base Salary as in effect
on the date of the change in control or as the same may have
been increased from time to time thereafter;
(C) The principal executive offices of the Employer are
relocated outside of the Milwaukee, Wisconsin metropolitan
area or, without the Executive's express written consent,
the Employer requires the Executive to be based anywhere
other than an area in which the Employer principal
executives offices are located, except for required travel
on business of the Employer to an extent substantially
consistent with the Executive's present business travel
obligations;
(D) Without Executive's express written consent, the Employer
fails or refuse to continue Executive's participation in
incentive compensation and stock incentive programs
comparable to either (1) those in effect prior to the change
in control or (2) those subsequently in effect for the
senior executives of any acquiring company effecting the
change in control;
(E) Without Executive's express written consent, Employers fail
to provide the same fringe benefits provided to Executive
immediately prior to a change in control, or with a package
of fringe benefits (including paid vacations) that, though
individual benefits may vary from those in effect
immediately prior to such change in control, is
substantially comparable in all material respects to such
fringe benefits taken as a whole;
(F) Any termination of Executive's employment by the Employer,
including any purported termination for cause, disability or
retirement not effected in accordance with the notice
requirements of this Agreement; or
(G) The failure by either of the Employers to obtain
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the assumption of, or an agreement to perform this Agreement
by any successor as contemplated in Section 7(i) hereof;
(iii) Benefits Upon Termination by Executive After a "Change in
Control". If this Agreement is terminated by Executive for good reason
following a change in control, then following the Termination Date:
(A) In lieu of further salary payments subsequent to the
Termination Date, Executive shall receive Severance Pay for
the longer of (i) the remaining unexpired term of the
agreement as in effect immediately prior to the Termination
Date, or (ii) thirty-six (36) months. Payments shall be made
in accordance with Employers' normal payroll practices,
beginning with the first pay date following the Termination
Date. Monthly Severance Pay shall be the average monthly
Base Salary received by Executive (based on his highest rate
of Base Salary within the 3 years preceding his Termination
Date) plus one-twelfth of the total bonus and incentive
compensation paid to or vested in Executive, or to which
Executive became entitled (based on the average of such
bonus and incentive compensation for the 3 calendar years
preceding his Termination Date).
(B) Employer shall maintain and provide for the period during
which Severance Payments are to be made and ending at the
earlier of (i) the expiration of such period, or (ii) the
date of the Executive's full-time employment by another
employer (provided that the Executive is entitled under the
terms of such other employment to benefits substantially
similar to those described in this subparagraph (B)), at no
cost to the Executive, the Executive's continued
participation in all group insurance, life insurance, health
and accident, disability and other employee benefit plans,
programs and arrangements in which the Executive was
entitled to participate immediately prior to the Termination
Date (other than retirement and deferred compensation plans
and individual insurance policies covered under subsection
6(C) or stock compensation plans of the Employer), provided
that in the event Executive's participation in any plan,
program or arrangement as provided in this subparagraph (B)
is barred, or during such period any such plan, program or
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arrangement is discontinued or the benefits thereunder are
materially reduced, the Employer shall arrange to provide
Executive with benefits substantially similar to those
Executive was entitled to receive under such plans, programs
and arrangements immediately prior to the Termination Date.
(C) Executive shall also 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. In addition to benefits to which Executive is entitled
under retirement and deferred compensation plans and
individual insurance policies maintained by the Corporation
and Bank (hereinafter collectively referred to as "Plan"),
Executive shall receive as additional severance benefits a
benefit paid under this Agreement, which benefit shall be
determined in accordance with and paid under this Agreement,
but 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 applicable Plan that he would have
received had he continued in the employment of the Bank for
the period during which Severance Payments are to be made
and at the annual compensation level represented by such
payments. Such Severance Payment level shall be deemed to
represent the compensation received by Executive during each
such additional year for purposes of determining his
additional benefits under this Subsection 6(C).
(iv) Limitation of Benefits under Certain Circumstances. If the
severance benefits payable to Executive under this Section 6 ("Severance
Benefits"), or any other payments or benefits received or to be received by
Executive from Employer (whether payable pursuant to the terms of this
Agreement, any other plan, agreement or arrangement with the Employer or any
corporation affiliated with the Employer ("Affiliate") 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 Employer'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
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exceeds three times the average of the annual compensation payable to Executive
by the Employer (or an Affiliate) and includible 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 Employer occurred ("Base
Amount"), such Severance Benefits shall be reduced, in a manner determined by
Executive, 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 Employer (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 Section 6(iv), 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 Employer. The Base Amount shall
include every type and form of compensation includible in Executive's gross
income in respect of his employment by the Employer (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(iv), 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 Employer's independent auditors in accordance
with the principles of Sections 280G (b)(3) and (4) of the Code.
In the event that Employer and/or the Executive do not agree with the
opinion of such counsel, (A) Employer shall pay to the Executive the maximum
amount of payments and benefits pursuant to Section 6, as selected by the
Executive, which in the opinion of counsel may be made without a substantial
risk that such payments and benefits will be treated as non-deductible to the
Employers and subject to the excise tax imposed under Section 4999 of the Code
and (B) Employers may request, and Executive shall have the right to demand the
Employers request, a ruling from the IRS as to whether the disputed payments and
benefits pursuant to Section 6 hereof have such consequences. Any such request
for a ruling from the IRS shall be promptly prepared and filed by the Employer,
but in no event later than thirty (30) days from the date of the opinion of
counsel referred to above, and shall be subject to Executive's approval prior to
filing, which shall not be unreasonably withheld. Employer and Executive agree
to be
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bound by any ruling received from the IRS and to make appropriate payments
to each other to reflect any such rulings, together with interest at the
applicable federal rate provided for in Section 7872(f)(2) of the Code. Nothing
contained herein shall result in a reduction of any payments or benefits to
which the Executive may be entitled upon termination of employment under any
circumstances other than as specified herein or a reduction in payments and
benefits other than those provided in this Section 6.
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) Employer 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 Employer ("successor organization") to expressly assume
and agree to perform this Agreement in the same manner and
to the same extent that Employer would have been required to
perform if no such succession had taken place or to
re-execute this Agreement as provided pursuant to section
6(ii)(G). 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
twenty-four (24) 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) as provided under
this Agreement upon a "change in control".
As used in this Agreement "Employer" shall mean the
Employer as hereinbefore defined (and any successor to its
business and/or assets) which executes and delivers the
agreement provided for in this Section 7 or which otherwise
becomes bound
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by the terms and provisions of this Agreement by operation
of this Agreement or law. Failure of the Employer to obtain
such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall
entitle Executive, if he elects to terminate this Agreement,
to compensation from the Employer 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 6.
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 (1) Executive and his
heirs, beneficiaries and personal representatives, and (2)
the Employer 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 Employer has invested
considerable time and money in his development of such contacts and
relationships, that Employer could suffer irreparable harm if he were
to leave employment and solicit the business of the Employer's
customers, and that it is reasonable to protect the Employer 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 Employer) 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
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time of termination of Executive's employment, or during the period of
this covenant not to compete, has a home, branch or other office in
Milwaukee, Ozaukee, Washington or Waukesha Counties 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 $5,000,000 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 the Employer 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, the Employer 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 Employer
brings legal action for injunctive or other relief, the Employer 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.
(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
United States registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Bank:
Bank Wisconsin
c/o St. Xxxxxxx Capital Corporation
0000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Secretary
If to the Executive:
Xx. Xxxxx X. Xxxxxxx
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that
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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) in the absence of a change in control, 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 re-execution of this Agreement pursuant to section
6(ii)(G), the only recoverable costs shall be those which Executive
shall be entitled to recover from the Bank (i.e. reasonable attorneys'
fees and necessary costs and disbursements incurred in such
litigation), which fees shall be recoverable only if the Executive is
the prevailing party. Recovery of attorneys' fees and costs as provided
herein following a change in control or re-execution shall be in
addition to any other relief to which Executive may be entitled.
(v) Withholding. Employer 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. Employer 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) Notice of Termination. Any purported termination by the
Employer under Sections 5(i), (ii), (iii) or (iv), or by Executive
under Sections 5(vi) or 6(ii) shall be communicated by written "Notice
of Termination" to the other party. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates
the specific termination provision in this Agreement relied upon, (ii)
sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination under the provision so indicated, (iii)
specifies a Date of Termination, which shall be not less than thirty
(30) nor more than ninety (90) days after such Notice of Termination is
given, except in the case of termination of Executive's employment for
Cause; and (iv) is given in the manner specified in Section 7(iii) of
this Agreement.
(vii) Miscellaneous. No provision of this Agreement
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may be amended, waived or discharged unless such amendment, waiver or
discharge is agreed to in writing and signed by Executive and such
officers of the Employer 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 and it is agreed that execution
of this Agreement shall result in its superceding and extinguishing any
rights of Executive under any other employment previously in effect
between himself, the Employer, or any affiliate of the Employer. The
validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Wisconsin.
(viii) Mitigation; Exclusivity of Benefits. The Executive shall
not be required to mitigate the amount of any benefits hereunder by
seeking other employment or otherwise, nor shall the amount of any such
benefits be reduced by any compensation earned by the Executive as a
result of employment by another employer after the Termination Date or
otherwise.
(ix) 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.
(x) Counterparts. This Agreement may be executed in several
counterparts, each of which together will constitute one and the same
instrument.
(xi) Headings. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of
any provision of this Agreement.
(xii) 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.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first above written.
Executive:
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxx
ST. XXXXXXX CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Its: Senior Vice President - Human Resources
----------------------------------------
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