EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of January 2004, between
Merchants & Manufacturers Bancorporation, Inc. (the "Employer"), a Wisconsin
corporation, its successors and assigns, and Xxxxxx X. Xxxxxxx (the "Employee").
RECITALS
WHEREAS, Employer is in the business of providing banking and other
related services, to individuals and businesses, including to customers of
Employer's affiliated businesses; and
WHEREAS, Employer and Employee desire to set forth terms and conditions of
Employee's terms of employment.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below:
1. EMPLOYMENT. Employer shall employ Employee and Employee shall serve,
on the terms and conditions set forth herein, for the period provided in Section
2.
2. TERM OF EMPLOYMENT. The period of Employee's employment under this
Agreement shall be deemed to have commenced as of the date first above written
and shall continue for a period of sixty (60) calendar months thereafter, unless
earlier terminated as provided in this Agreement (the "Employment Term"). The
Employment Term may thereafter be extended upon such terms and conditions as the
parties may mutually determine.
3. POSITIONS AND DUTIES. Employee shall serve Employer in such capacity
as the President/CEO/COO of Employer. Employee shall report to the Chairman of
the Board of Directors of Employer and shall provide such services as may be
appropriate to his position and as may be from time to time determined by the
Chairman. The Board of Directors or Board as referred to in this Agreement means
the Board of Directors of Merchants. During the Employment Term, Employee shall
devote substantially all his working time and efforts to the business and
affairs of the Employer and shall not engage in any activity which is
competitive with or adverse to the business of the Employer or any of its
affiliates whether done as a partner, director, officer, employee, shareholder
of or consultant or advisor to any other business.
4. COMPENSATION. As compensation for services provided pursuant to this
Agreement, Employee shall receive the compensation and other benefits set forth
below:
(i) BASE SALARY. During the Employment Term, Employee shall
receive an annual base salary ("Base Salary") in such amounts as may from
time to time be approved by the Board of Directors. The minimum initial
Base Salary shall be $275,000. Such amount shall be subject to review and
to annual adjustment by the Board of Directors in accordance with
Employer's normal personnel practices. Employee's Base Salary and other
compensation shall be paid in accordance with Employer's regular payroll
practices. Reduction in salary shall only occur pursuant to a directive
issued by the Board of Directors requiring a general reduction of salaries
for executive officers.
(ii) BONUS PAYMENTS. In addition to Base Salary, Employee shall be
entitled, during the Employment Term, to such bonuses and other incentive
compensation as may be determined from time to time by the Board of
Directors, except that such annual bonus payment shall not be less than
$50,000.
(iii) OTHER BENEFITS. During the Employment Term, Employer shall
provide to Employee, in addition to Base Salary, such other fringe
benefits as are made generally available to employees serving in
comparable positions at Employer. Such benefits include participation in
group health, life, disability, or similar insurance program and in
pension, profit sharing, deferred compensation, 401(k) or other similar
retirement program provided. Granting of stock options shall be subject to
approval of the Executive Stock Option Committee of Employer.
Employee shall be entitled to an auto allowance of $750 per month.
In addition, for a period not to exceed one year from the date of this
Agreement, Employer shall provide appropriate executive housing and
reasonable reimbursement relating to the cost of roundtrip airfare from
Dallas, Texas to Milwaukee, Wisconsin.
Employee shall be entitled to vacation, sick time, personal days and
other perquisites in the same manner and to the same extent as provided
other employees serving in comparable positions at Employer.
Nothing contained herein shall be construed as granting Employee the
right to continue in any benefit plan or program, or to receive any other
perquisite of employment, provided under this section 4(iii) (except to
the extent Employee had previously earned or otherwise accumulated vested
rights therein) following a valid and lawful termination, discontinuance
or modification of such plan, program or perquisite.
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. The date on which Employee ceases to be employed
under this Agreement, after giving effect to the period of time specified in any
notice requirement, is referred to as the "Termination Date."
(i) DEATH; DISABILITY. This agreement shall terminate upon the
death or disability of Employee. As used in this Agreement, "disability"
means Employee's inability, as the result of physical or mental
incapacity, to substantially perform his duties for a period of 180
consecutive days. If the Employer and Employee cannot agree as to the
existence of a disability, the determination shall be made by a qualified
independent physician acceptable to both parties, or alternatively, by a
physician designated by the president of the medical society for the
county in which Employee resides. The costs of any such medical
examination shall be borne by Employer.
If termination occurs as a result of death or disability, no
additional compensation shall be payable to Employee under this Agreement
except as specifically provided herein. Notwithstanding anything to the
contrary contained herein, Employee shall receive all compensation and
other benefits to which he was entitled under Section 4, and the plans and
programs provided therein, by reason of employment through the Termination
Date.
(ii) CAUSE. Employer may terminate Employee's employment under this
Agreement for Cause at any time, and thereafter Employer shall have no
further obligation under this Agreement. Notwithstanding anything to the
contrary contained herein, Employee 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) A failure by Employee to substantially perform his duties to
the satisfaction of the Board of Directors (other than failure
resulting from incapacity) after a written demand by the
Board, which demand identifies, with reasonable specificity,
the manner in which the Board believes Employee has not
substantially performed, and Employee's failure to cure within
a thirty (30) day period of time after his receipt of this
notice;
(b) A criminal conviction of or plea of nolo contendere by
Employee for any act involving dishonesty, breach of trust or
a violation of the laws of the State of Wisconsin or the
United States;
(c) A criminal conviction of or plea of nolo contendere by
Employee for the commission of any felony;
(d) A material breach of fiduciary duty by Employee involving
substantial personal profit;
(e) A willful violation of any law, rule or order by Employee
(other than traffic violations or similar offenses); or
(f) Incompetence, personal dishonesty or material breach of any
provision of this Agreement or any willful misconduct by
Employee.
(iii) VOLUNTARY TERMINATION BY EMPLOYEE. Employee may voluntarily
terminate employment at any time by giving at least thirty (30) days prior
written notice to Employer. In such event, Employee shall have no further
obligation hereunder, except that Employee 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 his employment through the Termination Date.
(iv) TERMINATION OF EMPLOYEE WITHOUT CAUSE. Employer may terminate
Employee's employment without Cause at any time by giving written notice
to Employee. In such event Employer shall have no further obligation
hereunder, except that Employee 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
his employment through the Termination Date, and Employee shall receive as
severance his Base Salary in effect on the Termination Date continued
until the date that the Employment Term would have ended had it not been
terminated pursuant to this Section 5(iv), however such severance shall
not be for less than a twelve (12) month period. Such severance shall be
payable in the same manner that the Base Salary would have been paid. For
purposes of this paragraph, a substantial reduction of Employee's duties
by Employer shall be defined to be a termination of Employee's employment
without cause.
(v) SUSPENSION OR TERMINATION REQUIRED BY REGULATORY AGENCIES.
(a) If Employee is suspended and/or temporarily prohibited from
participating in the conduct of Employer's or any of
Employer's affiliates' affairs by a regulatory agency and
Employee's employment is not terminated, 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: (1) pay Employee 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 Employee is removed and/or permanently prohibited from
participating in the conduct of Employer's or any of
Employer's affiliates affairs by an order issued by a
regulatory agency, the obligation of Employer under the
Agreement shall terminate as of the effective date of the
order, and Employer shall have further obligation hereunder,
except that Employee 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 provide
therein, by reason of his employment through the Termination
Date.
(c) All obligations under the Agreement may be terminated, except
to the extent determined that continuation of the contract is
necessary to operation of Employer or any of its affiliates,
at the time the Federal Deposit Insurance Corporation ("FDIC")
enters into an agreement to provide assistance to or on behalf
of Employer or any of Employer's affiliates under the
authority contained in Section 13(c) of the Federal Deposit
Insurance Act, or when Employer or any of its affiliates is
determined by any appropriate bank regulatory agency to be in
an unsafe or unsound condition. Any rights of the parties that
have been already earned or otherwise vested, however, shall
not be affected by such action.
6. NONCOMPETITION.
(i) NONCOMPETITION AND NONSOLICITATION.
Executive acknowledges that the development of personal contacts and
relationships is an essential element of Employer's and Employer's
affiliates' business, that Employer has invested considerable time and
money in his development of such contacts and relationships, that Employer
and its affiliates could suffer irreparable harm if he were to leave
Employer's employment and solicit the business of customers of Employer or
Employer's affiliates and that it is reasonable to protect Employer
against competitive activities by Executive.
Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of Employer and its affiliates and
are reasonably limited as to (a) the scope of activities affected, (b)
their duration and geographic scope, and (c) their effect on Executive and
the public. In the event Executive violates the non-competition provisions
set forth herein, 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 Employer brings legal action for injunctive or other relief,
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 relief is granted, but reduced by
any period between commencement of the period and the date of the first
violation.
Executive acknowledges that as a result of his employment with
Employer or its affiliates Executive has access to confidential
information concerning Employer's business, customers and services.
Executive agrees that during the Employment Term or subsequent thereto, he
will not, directly or indirectly, whether in original, duplicated,
computerized or other form, use, disclose or divulge to any person,
agency, firm, corporation or other entity any confidential or proprietary
information, including, without limitation, customer lists, reports,
files, manuals, training materials, records or information of any kind, or
any other secret or confidential information pertaining to the products,
services, customers or prospective customers, sales, technology and
business affairs or methods of Employer or any of its affiliates
(collectively "Confidential Information") which Executive acquires or has
access to during the Employment Term. Notwithstanding the foregoing,
Confidential Information shall not include information or data which is
otherwise available in the public domain.
Executive agrees that he will not at any time either during or
subsequent to his employment with Employer disclose or transmit, either
directly or indirectly, any Confidential Information of Employer or its
affiliates to any person, firm, corporation, association, or other entity,
and will not remove this information, in any form whatsoever, from the
premises or data base of Employer or its affiliates, except as required in
the ordinary course of business as is necessary to perform Executive's
duties or as required by applicable law. In the event of Executive's
termination from employment from Employer for any reason, Executive shall
immediately return all Confidential Information of Employer, including any
original, computerized or duplicated records to Employer.
Executive agrees that during the term of his employment with
Employer, and for a term of twelve (12) months thereafter, he will not,
directly or indirectly, on behalf of himself or on behalf of any other
individual or entity, as an agent or otherwise contact, influence or
encourage any of the customers of Employer, of which Executive has
knowledge or based on his capacity of employment for Employer or its
subsidiaries should reasonable have had knowledge, for the purpose of
soliciting business or inducing
such customer to acquire any product or service that is provided or under
development by Employer or its affiliates from any entity other than
Employer.
Executive agrees that during the term of his employment with
Employer, and for a period of twelve (12) months thereafter, he will not,
directly or indirectly, encourage, induce, or entice any employee of
Employer or its affiliates to leave the employment of Employer or its
affiliates.
Executive agrees that if he violates the covenants under this
section, Employer shall be entitled to an accounting and repayments of all
profits, compensation, commissions and other remuneration or benefits
which the Executive has realized or may realize as the result of or in
connection with any such violation. Executive further agrees that money
damages may be difficult to ascertain in case of a breach of this
covenant, and Executive therefore agrees that Employer or its affiliates
shall be entitled to injunctive relief in addition to any other remedy to
which Employer or its affiliates may be entitled.
(ii) PROHIBITIONS NOT UNREASONABLE. Employee recognize that the
restrictions set forth in this section are reasonably necessary for the
protection of Employer and they will not prevent Employee from engaging in
his chosen profession. Employee further recognizes that irreparable injury
may result to Employer, its business and its property and its affiliates
in the event of a breach by Employee of the restrictions imposed by this
paragraph, and that Employee's acceptance of such restriction was a
material factor in Employer's decision to provide the above. Employee
further agree that it may be extremely difficult to measure in money the
damages which would be suffered by Employer in the event Employee fails to
perform his obligations under this paragraph and Employer is likely to
suffer irreparable injury as a result of any such breach.
(iii) REMEDIES. Employee agrees that if he violates any other
provisions of this paragraph, Employer shall be entitled, in addition to
such other remedies and damages as may be available at law or equity, to
an injunction prohibiting Employee from engaging in any such prohibited
acts as well as payment for the costs, expenses and reasonable attorneys'
fees incurred by Employer in the successful enforcement of any of its
rights under this paragraph. If Employer violates this covenant and
Employer brings legal action for injunctive or other relief, 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 relief is granted, but reduced by any
period between commencement of the period and the date of the first
violation.
7. GENERAL PROVISIONS.
(i) SUCCESSORS; BINDING AGREEMENT. This Agreement and the rights,
interests and benefits of Employee shall not be assigned, transferred or
pledged in any way. The rights, interests and benefits to Employer under
this Agreement shall be
assignable and inure to the benefit of any successor to the Employer and
it related business or to any affiliate of Employer.
(ii) NOTICE. All notices and other communications provided for in
this Agreement shall be in writing and shall be deemed duly given when
delivered or mailed by United States registered mail, return receipt
requested, postage prepaid, addressed in the case of Employer to its
principal office and in the case of Employee, to his address appearing on
the records of Employer or to such other address as either party may have
furnished to the other in writing in accordance herewith.
(iii) EXPENSES. If legal proceedings are necessary to enforce or
interpret this Agreement, or to recover damages for breach, the prevailing
party shall be entitled to recover reasonable attorneys' fees, costs and
disbursements of such proceedings, in addition to any other relief to
which such prevailing party may be entitled.
(iv) WITHHOLDING. Employer shall be entitled to withhold from
amounts to be paid to Employee 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 as to the amount or requirement of any such withholding.
(v) MISCELLANEOUS. No provision of this Agreement may be amended,
waived or discharged unless such amendment, waiver or discharge is agreed
to in writing and duly executed by Employer and Employee or its successor
in interest. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements and undertakings, whether written or oral, between the parties
with respect thereto; no agreements or representations, oral or otherwise,
expressed or implied, have been made by either party with respect to the
subject matter hereof. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State
of Wisconsin.
(vi) VALIDITY. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any
other provision of this Agreement, which shall remain in full force and
effect.
(vii) COUNTERPARTS. This Agreement may be executed in several
counterparts, all of which together will constitute one and the same
instrument.
(viii) HEADINGS. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of any
provision of this Agreement.
(ix) EFFECTIVE DATE. The effective date of this Agreement shall be
the date indicated in the first paragraph of this Agreement
notwithstanding the actual date of execution by any party.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the date first above written.
EMPLOYEE
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Merchants & Manufacturers Bancorporation, Inc.
/s/ Xxxxxxx X. Xxxxx
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By: Xxxxxxx X. Xxxxx,
Chairman of the Board of Directors
