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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
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This Employment Agreement (this "Agreement") is entered into as of this
17th day of June, 1997 between Xxxxx X. Xxxxxxxxx ("Executive") and Midwest
Federal Financial Corp., a Wisconsin corporation (the "Company").
WHEREAS, Executive is currently employed by the Company as its Vice
President; and
WHEREAS, Executive also is currently employed by the Company's
wholly-owned subsidiary, Baraboo Federal Bank, FSB, a federally-chartered
capital stock savings bank (the "Bank"), as its Executive Vice President under
the employment agreement entered into between Executive, the Company and the
Bank dated as of December 29, 1995 (the "Prior Agreement"); and
WHEREAS, Executive and the Company desire to enter into this Agreement
pertaining to the terms of the continued employment of Executive with the
Company and the Bank and the security the Company is providing to Executive
with respect to his employment in lieu of the terms and conditions of the Prior
Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Employment of Executive. The Company hereby employs Executive, and
Executive hereby accepts employment with the Company, upon the terms and
conditions hereinafter set forth, for the term set forth in Section 2 of this
Agreement. Executive is employed by the Company to perform the duties of Vice
President of the Company and Executive Vice President of the Bank, and the
Company shall cause the Bank to appoint Executive to such position. The
services to be performed by the Executive shall include those normally
performed by the Vice Presidents of similar banking organizations and as
directed by the Board of Directors of the Company which are not inconsistent
with the foregoing. It is the Company's present intention that the services to
be performed by Executive shall be substantially similar to the services
presently being performed by Executive. Executive agrees to devote his full
business time to the rendition of such services, subject to absences for
customary vacations and for temporary illnesses. The Company agrees that
during the term of this Agreement (a) it will not reduce the Executive's job
titles, status or responsibilities without the Executive's consent, (b)
Executive shall not be required, without his express written consent, to be
based anywhere other than within the Baraboo metropolitan area, except for
reasonable business travel in connection with the Company's business, (c)
Executive shall not be assigned duties materially inconsistent with his
position, duties, responsibilities, and status as Vice President of the Company
and Executive Vice President of the Bank, (d) it will not change in any
significant way the nature or scope of Executive's authority or his overall
working environment, (e) it will not terminate any incentive compensation plan
or arrangement, so that when considered in the
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aggregate and with any substitute plan or plans, the incentive plan or
arrangement in which Executive is participating fail to provide him with
substantially the same level of benefits, (f) it will not materially reduce the
secretarial or other administrative support of the Executive, (g) it will not
materially reduce the number or seniority of other Company personnel who report
to Executive, or materially reduce the frequency with which, or the nature of
the matters with respect to which, such personnel are to report to Executive,
other than as part of a Company-wide reduction in staff; and (h) it will not
reduce or adversely change the salary, perquisites, benefits, contingent
benefits or vacation time which had theretofore been provided to the Executive.
During the term of this Agreement, Executive also shall serve as a director of
the Bank and shall receive as compensation therefor directors fees in the same
amount paid to other directors of the Bank for similar services (which amount
shall be in addition to the compensation provided for under Section 3 hereof).
During the term of this Agreement, Executive also shall serve as an officer of
any subsidiaries of the Company or the Bank without any additional compensation.
Executive also may serve on boards of directors of charitable organizations and
other business corporations and may request personal time off to attend to
civic, charitable and personal investment activities, provided Executive
notifies the Board of Directors of the Company concerning such service and
activities, the Board of Directors does not disapprove them and such service and
activities do not interfere with the discharge of Executive's management duties.
2. Term of Employment. The term of this Agreement and of Executive's
employment hereunder shall be for an initial period commencing on the date
hereof (the "Commencement Date") and ending on the third anniversary of the
date hereof, unless terminated earlier as provided in Sections 5, 6 and 7
hereof. Beginning on the date one year after the Commencement Date, and each
anniversary of the Commencement Date thereafter but not including the
expiration date of this Agreement (each such date is hereinafter referred to as
an "Anniversary Date"), the Board of Directors of the Company may extend the
term of this Agreement for a period of one year in addition to the
then-remaining term, if any, by giving the Executive written notice of such
extension. Reference herein to the term of this Agreement shall refer to both
the initial term and such extended term.
3. Compensation. The Company agrees to compensate or to cause the Bank to
compensate the Executive for his services hereunder during the term of this
Agreement by payment of a base salary at the annual rate of $__________ in such
monthly, semi-monthly or other payments as are from time to time applicable to
other executive officers of the Bank. The Executive's salary may be increased
from time to time during the term of this Agreement in the sole discretion of
the Board of Directors of the Company, but Executive's salary shall not be
reduced below the level then in effect. Executive also shall be paid directors
fees as provided in Section 1 hereof. In addition, Executive shall be entitled
to participate in incentive compensation plans or arrangements as may from time
to time be established by the Company or the Bank on a basis consistent with
the treatment of other executive officers of the Company or the Bank (but
recognizing differences in responsibilities among executive officers).
Executive also shall be entitled to receive any other bonus or discretionary
compensation payments as the Board of Directors of the Company may determine
from time to time.
4. Additional Benefits - Expenses. Executive shall be provided such other
benefits (including but not limited to medical, health, life and other
insurance coverage) and shall be
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entitled to participate in such retirement plans of the Company and the Bank, as
are generally made available to other executive officers of the Company or the
Bank. During his employment, Executive also shall be entitled to customary
vacations in accordance with vacation policies and practices of the Company or
the Bank prevailing from time to time, and to reimbursement for reasonable
expenses incurred on behalf of the Company or the Bank in accordance with the
then prevailing policies and practices of the Company. Executive also shall
be provided an automobile by the Company for his business and personal use (but
Executive agrees to reimburse the Company for his personal use of the vehicle at
a rate established by the Company). All payments under this Agreement shall be
subject to all federal, state or local withholdings which may be required.
5. Termination.
(a) Just Cause. The Board of Directors of the Company may terminate the
employment of Executive with the Company and the Bank at any time for "Just
Cause." "Just Cause" shall mean personal dishonesty, incompetence, willful
misconduct or breach of a fiduciary duty involving personal profit in the
performance of his duties under this Agreement, intentional failure to perform
stated duties (provided that such nonperformance has continued for 10 days
after the Company has given written notice of such nonperformance to the
Executive and its intention to terminate Executive's employment because of such
nonperformance), willful violation of any law, rule or regulation (other than a
law, rule or regulation relating to a misdemeanor, traffic violation or similar
offense), final cease-and-desist order or material breach of any provision of
this Agreement. If Executive's employment is terminated for "Just Cause", the
Executive shall be entitled to receive his theretofore unpaid base salary for
the period of employment up to the date of termination, but shall not be
entitled to any compensation or employment benefits pursuant to this Agreement
for any period after the date of termination.
(b) Termination or Suspension of Employment as Required by Law.
Notwithstanding anything in this Agreement to the contrary, the following
provisions shall limit the obligation of the Company to continue employing
Executive, but only to the extent required by the applicable regulations of the
OTS (12 C.F.R. Section 563.39), or similar succeeding regulations:
(i) If the 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 (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
Section 1818(e)(3) and (g)(1)), the Company's obligations under this Agreement
shall be suspended as of the date of service of notice, unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, the
Company may in its discretion (i) pay Executive all or part of the compensation
withheld while its contract obligations hereunder were suspended and (ii)
reinstate (in whole or in part) any of its obligations which were suspended.
If the Company does not pay Executive all of the compensation withheld while
its contract obligations hereunder were suspended or does not reinstate in
whole its obligations which were suspended, Executive may terminate his
employment hereunder pursuant to Section 5(d) and such termination shall be
considered as termination for "Good Reason."
(ii) If the Executive is removed and/or permanently prohibited from
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participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
Section 1818(e)(4) or (g)(1)) all obligations of the Company under this
Agreement shall terminate as of the effective date of the order.
(iii) If the Bank is in default (as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act), all obligations to Executive hereunder shall
terminate as of the date of default, but such termination shall not affect any
vested rights of Executive, the Company or the Bank.
(iv) All obligations under this Agreement may be terminated, except to the
extent determined that continuation of the contract is necessary for the
continued operation of the Bank: (i) by the Director of the Office of Thrift
Supervision (the "Director") or his or her designee at the time the Federal
Deposit Insurance Company 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 and (ii) by the Director, or his or her designee
at the time the Director or such designee approves a supervisory merger to
resolve problems related to operation of the Bank or when the Bank is
determined by the Director to be in an unsafe or unsound condition.
(v) Termination under this Section 5(b) shall not affect other rights
hereunder which are vested at the time of termination.
(c) Voluntary Termination. Executive may terminate his employment
hereunder at any time for any reason upon giving the Company written notice, at
least ninety (90) days prior to termination of employment. Upon such
termination, Executive shall be entitled to receive Executive's theretofore
unpaid base salary for the period of employment up to the date of termination,
but shall not be entitled to any compensation or employment benefits pursuant
to this Agreement for any period after the date of termination.
(d) Good Reason. Executive may terminate his employment hereunder at any
time for "Good Reason." "Good Reason" shall be deemed to exist if Executive
terminates his employment because, without his express written consent, the
Company breaches any of the terms of this Agreement. If Executive terminates
his employment for "Good Reason," Executive shall receive (i) his base salary
under Section 3 hereof through the then remaining term of employment under
Section 2 (calculated as if his employment had not been terminated under this
Section 5(d)), which amount shall be paid in a lump-sum or in equal monthly
installments at the discretion of Executive, (ii) his theretofore unpaid base
salary and pro-rated incentive compensation for the period of employment up to
the date of termination, (iii) medical and other insurance through the then
remaining term of employment under Section 2 (calculated as if his employment
had not been terminated under this Section 5(d)) consistent with the terms and
conditions set forth in Section 4, (iv) any other benefits to which Executive
is entitled by law or the specific terms of the Company's policies in effect at
the time of termination of employment and (v) an amount equal to the product of
the Company's or the Bank's annual aggregate contribution, for the benefit of
Executive in the year preceding termination, to all qualified retirement plans
in which Executive participated multiplied by three (calculated as if his
employment had not been terminated under this Section 5(d)). The benefit in
(v) under this Section 5(d) shall be in
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addition to any benefit payable from any qualified or non-qualified plans or
programs maintained by the Company or the Bank at the time of termination.
(e) Termination without Just Cause. The Company may terminate Executive's
employment without Just Cause, in which case the Executive shall receive the
amounts that would be paid Executive under Section 5(d) if he had terminated
his employment for Good Reason.
(f) Change in Control. (i) If, at any time after the date hereof, a
"Change in Control" (as hereinafter defined) occurs and within twelve (12)
months thereafter Executive's employment is terminated by the Company other
than for Just Cause or Executive terminates his employment for any reason, then
Executive shall be entitled to the benefits provided below.
(A) The Company shall promptly pay to Executive an amount
equal to the product of 2.99 times Executive's "base amount" as defined in
Section 280G(b)(3) of the Code (such "base amount" to be derived from
Executive's compensation paid by the Company and the Bank).
(B) For purposes of all employee benefit plans (including, but
not limited to, health and life insurance and incentive, pension and retirement
plans) of the Company and the Bank, Executive (and his dependents and
beneficiaries, as the case may be) shall be given service credit for all
purposes for, and shall be deemed to be an employee of the Company and the Bank
during, the term of this Agreement set forth in Section 2 (calculated as if
employment had not been terminated under this Section 5(f)), notwithstanding the
fact that he is no longer an employee of the Company or the Bank; provided that,
if the terms of any of such employee benefit plans do not permit such credit or
deemed employee treatment, the Company or the Bank will make payments and
distributions to Executive outside of the plans in amounts substantially
equivalent to the payments and distributions Executive would have received
pursuant to the terms of the plans and attributable to such credit or deemed
employee treatment, had such credit or deemed employee treatment been permitted
pursuant to the terms of the plans.
(ii) (A) Anything in this Agreement to the contrary
notwithstanding, it is the intention of the Company and Executive that no
portion of any payment under this Agreement, or payments to or for the benefit
of Executive under any other agreement or plan, be deemed an "Excess Parachute
Payment" as defined in Section 280G of the Code, or its successors. It is
agreed that the present value of and any payment to or for the benefit of
Executive in the nature of compensation, receipt of which is contingent on the
occurrence of a Change in Control, and to which Section 280G of the Code applies
(in the aggregate "Total Payments") shall not exceed an amount equal to one
dollar less than the maximum amount that the Company may pay without loss of
deduction under Section 280G(a) of the Code. Present value for purposes of this
Agreement shall be calculated in accordance with Section 280G(d)(4) of the
Code. Within sixty days (60) following the earlier of (1) the giving of
notice of termination of employment or (2) the giving of notice by the Company
to Executive of its belief that there is a payment or benefit due Executive, the
Company, at the Company's expense, shall obtain the opinion of the Company's
public accounting firm (the "Accounting Firm"), which opinion need not be
unqualified, which sets forth: (a) the amount
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of the Base Period Income of Executive (as defined in Code Section 280G), (b)
the present value of Total Payments and (c) the amount and present value of any
excess parachute payments. In the event that such opinion determines that there
would be an Excess Parachute Payment, the payment hereunder shall be modified,
reduced or eliminated as specified by Executive in writing delivered to the
Company within thirty (30) days of his receipt of such opinion or, if Executive
fails to so notify the Company, then as the Company shall reasonably determine,
so that under the bases of calculation set forth in such opinion there will be
no Excess Parachute Payment. In the event that the provisions of Sections 280G
and 4999 of the Code are repealed without succession, this Section shall be of
no further force or effect.
(B) In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the Change
in Control, Executive shall appoint another nationally recognized public
accounting firm to make the determinations required hereunder (which accounting
firm shall then be referred to as the Accounting Firm under Section
5(f)(ii)(A)). All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any determination by the Accounting Firm shall be
binding upon the Company and Executive.
(iii) For purposes of Section 5(f) of this Agreement, a "Change in
Control" shall be deemed to have occurred if:
(A) a third person, including a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934 (as in effect on the date
hereof), becomes the beneficial owner of shares of the Company having 20% or
more of the total number of votes that may be cast for the election of directors
of the Company, including for this purpose any shares beneficially owned by such
third person or group as of the date hereof; or
(B) as the result of, or in connection with, any cash tender
or exchange offer, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing transactions (a
"Transaction"), the persons who were directors of the Company before the
Transaction shall cease to constitute a majority of the Board of Directors of
the Company or any successor to the Company. (In the event of any reorganization
involving the Company in a transaction initiated by the Company in which the
shareholders of the Company immediately prior to such reorganization become the
shareholders of a successor or ultimate parent company of the Company resulting
from such reorganization and the persons who were directors of the Company
immediately prior to such reorganization constitute a majority of the Board of
Directors of such successor or ultimate parent, no "Change in Control" shall be
deemed to have taken place solely by reason of such reorganization,
notwithstanding the fact that the Company may have become the wholly-owned
subsidiary of another company in such reorganization and members of the Board of
Directors of the Company may have become members of the Board of Directors of
such successor company, and thereafter the term "Company" for purposes of this
paragraph shall refer to such successor or ultimate parent company.); or
(C) a third person, including a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934 (as in effect on the date
hereof), acquires control, as
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defined in 12 C.F.R. Section 574.4, or any successor regulation, of the Company
which would require the filing of an application for acquisition of control or
notice of change in control in a manner set forth in 12 C.F.R. Section 574.3,
or any successor regulation.
6. Death of Executive. If Executive shall die during the term of this
Agreement, his employment with the Company and this Agreement shall terminate
and the Company shall pay to a beneficiary designated in writing by Executive,
or in the absence of such designation, to Executive's estate, the full amount
of his theretofore unpaid base salary and pro-rated incentive compensation for
the period of employment up to the date of termination, and the Company shall
have no further obligations hereunder. The preceding sentence shall not be
construed to limit any benefit payable in the event of the death of Executive
under any applicable benefit plans or other arrangements.
7. Disability of Executive. If Executive becomes Totally and Permanently
Disabled (as defined below) during the term of this Agreement, the Company may
terminate Executive's employment and this Agreement, except Sections 8 and 9
hereof, by giving Executive written notice of such termination not less than 5
days before the effective date thereof. If Executive's employment and this
Agreement are terminated pursuant to this Section 7, the Company shall pay to
Executive his theretofore unpaid base salary and pro-rated incentive
compensation for the period of employment up to the date of termination, and
the Company shall have no further obligations to Executive under this
Agreement. The preceding sentence shall not be construed to limit any benefit
payable to Executive under any applicable benefit plans or other arrangements.
The Executive is Totally and Permanently Disabled for purposes of this Section
7 if he is disabled or incapacitated to the extent that he is unable to perform
the duties of Vice President of the Company or Executive Vice President of the
Bank for more than three (3) consecutive months, and such disability or
incapacity is expected to continue for more than three (3) additional months as
certified by a medical doctor of Executive's own choosing and concurred in by a
doctor of the Company's choosing.
8. Covenant Not to Compete. Executive acknowledges that the Company would
be substantially damaged by an association of Executive with a depository
institution that competes for customers with the Company and the Bank. Without
the consent of the Company, Executive shall not at any time during the term of
this Agreement or Executive's employment, and for a period of three years
thereafter (regardless of the reason for termination), (a) solicit any person
who was a customer of the Company or the Bank or any of their subsidiaries
during the two year period prior to the termination of this Agreement or
Executive's employment hereunder for Executive or any other person, to offer
the same products or render the same services to such customer as were provided
or proposed to be provided by the Company or the Bank or any of their
subsidiaries to such customer as of the time of termination of Executive's
employment, (b) directly or indirectly, on Executive's behalf or in the service
or on the behalf of others, render or be retained to render similar services as
described in Section 1 hereof, whether as an officer, partner, trustee,
consultant, or employee for any depository institution, which has a banking
office located within 25 miles of any office of the Bank or any banking office
of the Company as of the date of Executive's termination of employment,
provided, however, that Executive shall not be deemed to have breached this
undertaking if his sole relationship with any other such entity consists of his
holding, directly or indirectly, an equity interest in such entity not greater
than
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three percent (3%) of such entity's outstanding equity interest, or (c) actively
induce or solicit any employees of the Company or the Bank to leave such
employ. For purposes of this Section 8, "person" shall include any individual,
corporation, partnership, trust, firm, proprietorship, venture or other entity
of any nature whatsoever.
9. Confidential Information. Executive acknowledges that he now has, and
hereunder will have, access to important and confidential information regarding
the business and services of the Company, the Bank and their subsidiaries, and
that the disclosure to, or the use of such information by, any business in
competition with the Company, the Bank or their subsidiaries shall result in
substantial and undeterminable harm to the Company, the Bank and its
subsidiaries. In order to protect the Company, the Bank and its subsidiaries
against such harm and from unfair competition, Executive agrees with the
Company that while employed by the Company and at any time thereafter,
Executive will not disclose, communicate or divulge to anyone, or use in any
manner adverse to the Company, the Bank or their subsidiaries any information
concerning customers, methods of business, financial information or other
confidential information of the Company, the Bank, or their subsidiaries,
except for information as is in the public domain or ascertainable through
common sources of public information (otherwise than as a result of any breach
of this covenant by Executive).
10. Limitation on Termination or Disability Pay. Any payments made to
Executive pursuant to this Agreement or otherwise are subject to and
conditioned upon the compliance of such payments with 12 U.S.C. Section
1828(k) and any regulations promulgated thereunder.
11. Legal Fees and Expenses. The Company shall pay all legal fees and
expenses that Executive may incur in connection with his enforcement of the
terms of this Agreement, but only if and after a legal judgment or settlement
has been reached. Executive shall be entitled to receive interest thereon for
the period of any delay in payment from the date such payment was due at the
rate determined by adding two hundred basis points to the six-month Treasury
Xxxx rate.
12. Inquiries Regarding Proposed Activities. In the event Executive shall
inquire in writing of the Company whether any proposed action on the part of
Executive would be considered by the Company to be prohibited by or in breach
of the terms of this Agreement, the Company shall have 30 days after receipt of
such notice to express in writing to Executive its position with respect
thereof and in the event such writing shall not be given to Executive, such
proposed action, as set forth in the writing of the Company, shall not be
deemed to be a violation of or breach of this Agreement.
13. No Duty of Mitigation. Executive shall not be required to mitigate
the amount of any payment or benefit provided for in this Agreement by seeking
other employment or otherwise, nor shall the amount of any payment or benefit
provided for in this Agreement be reduced by any compensation earned by
Executive as the result of employment by another employer, by retirement
benefits after the date of termination or otherwise.
14. Successors. This Agreement may not be assigned by the Company except
in connection with a merger involving the Company or a sale of substantially
all of its assets (subject to the Change in Control provisions of Section
5(f)), and the obligations of the
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Company provided for in this Agreement shall be formally assumed by, and be the
binding legal obligations of, any successor to the Company by purchase, merger,
consolidation, or otherwise. This Agreement may not be assigned by Executive
during his life, and upon his death will be binding upon and inure to the
benefit of his heirs, legatees and the legal representatives of his estate.
15. Notice. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth on the first page of this Agreement (provided that all
notices to the Company shall be directed to the attention of the Board of
Directors of the Company with a copy to the Secretary of the Company), or to
such other address as either party may have furnished to the other in writing
in accordance herewith.
16. Amendments. No amendment or additions to this Agreement shall be
binding unless in writing and signed by all parties, except as herein otherwise
provided.
17. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If,
however, any provision of this Agreement is declared invalid or unenforceable
by a court of competent jurisdiction, then the parties hereto shall in good
faith amend this Agreement to include an alternative provision that
accomplishes a similar result.
18. Governing Law. This Agreement shall be governed by the laws of the
United States to the extent applicable and otherwise by the internal laws of
the State of Wisconsin.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
MIDWEST FEDERAL FINANCIAL CORP.
By: \s\ Xxxxxx X. XxXxxxxx
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Its: Chairman
EXECUTIVE
\s\ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
The Bank hereby acknowledges this Agreement and by its execution of this
Agreement hereby agrees to fulfill its obligations hereunder.
BARABOO FEDERAL BANK, FSB
By: \s\ Xxxxxx X. XxXxxxxx
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Its: Chairman
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