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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is effective as of the 18th day of April,
1995 between Reliance Bancshares, Inc. (the Company"), a Wisconsin-chartered
corporation, Reliance Savings Bank (the "Bank"), a Wisconsin-chartered savings
association and wholly-owned subsidiary of the Company, their respective
successors and assigns, and Xxxxx X. Xxxx (the "Executive").
RECITALS
WHEREAS, Executive is a key employee, whose extensive background,
knowledge and experience in the savings and loan industry has substantially
benefitted the Bank and Company and whose continued employment as an executive
member of their respective management teams in the positions of President and
Chief Executive Officer ("Corporate Position") will continue to benefit the
Bank and Company 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, Company, and Executive; and
WHEREAS, the Boards of Directors of the Bank and Company have approved
and authorized their entry into this Agreement with Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below:
1. Employment. The Bank and Company shall continue to employ
Executive and Executive shall continue to serve the Bank and Company 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 April 18, 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 and Company's
Boards of Directors, following an explicit review by the Boards of 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
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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. 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 and Company
in his Corporate Position as their President and Chief Executive Officer. As
such, Executive shall report directly to their Boards of Directors, be
nominated as a management candidate for election to the respective Boards of
Directors upon expiration of each term thereon while this Agreement remains in
effect, serve as a member of the Bank's and Company's Management Committees and
be generally responsible for selection and supervision of the Bank's and
Company's management personnel and for the formulation of their 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 and Company's Boards of Directors to
be necessary to their operations and in accordance with their bylaws.
4. Compensation. As compensation for services provided pursuant to
this Agreement, Executive shall receive from the Bank the compensation and
benefits set forth below:
(i) Base Salary. During the Employment Term, Executive
shall receive from Employers a base salary ("Base Salary") in such
amount as may from time to time be approved by their Boards of
Directors. The Base Salary shall at no time be less than One Hundred
Three Thousand Six Hundred Fifty-Six Dollars and No/100 ($103,656) per
annum, payable by the Bank and Company in such proportion as shall be
determined by their Boards of Directors. The Base Salary may be
increased from time to time as determined by the Employers' Boards 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 Employers 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; 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 Employers' regular payroll practices as
from time to time in effect. For purposes of this Agreement, the term
"Executive Officers" shall mean all officers of the Bank and/or
Company having a written Employment Agreement.
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(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 (as
currently in effect, as modified from time to time, or as subsequently
adopted); provided, however, that nothing contained herein shall grant
Executive the right to continue in any bonus or other incentive
compensation plan following its discontinuance by the Board or Boards
(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 Employers to their Executive
Officers. The Employers 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 Executive Officers of the Employers 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, Employers
shall provide to Executive all other benefits of employment (or, with
Executive's consent, equivalent benefits) generally made available to
other Executive Officers. Such benefits shall include participation
by Executive in any group health, life, disability, or similar
insurance program and in any pension, profit-sharing, Employee Stock
Ownership Plan ("ESOP"), 401(k) or other or similar retirement
program. Employers shall continue in effect any individual insurance
plans or deferred compensation agreements in effect as of the
Commencement Date and Executive shall be entitled to use of an
automobile provided by Employers under the terms of such corporate
automobile policy as they shall maintain in effect and as it may be
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 Employers' policies as in effect from time to time for other
Executive Officers. Employers 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
Employers, including but not by way of limitation, travel expenses and
all reasonable entertainment expenses (whether incurred at Executive's
residence, while traveling or otherwise) subject to such reasonable
documentation and other limitations as may be imposed by the Boards of
Directors of the Employers.
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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 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 Employers 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 Employers cannot agree
shall be determined by a qualified independent physician mutually
agreeable to Executive and Employers 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 Employers. 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
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thereafter an annual amount equal to 75% of such Base Salary for any
remaining portion of the Employment Term, such amounts to be paid in
substantially equal monthly installments and offset by any monthly
payments actually received by Executive during the payment period from
(i) any disability plans provided by the Employers, 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
Employers' benefit plans and programs to which he was entitled by
reason of employment through the Termination Date.
(iii) Cause. Employers 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: (i) the
intentional failure by Executive to substantially perform his duties
(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 Employers,
which demand specifically identifies the manner in which they believe
Executive has not substantially performed his duties, (ii) any willful
act of misconduct by Executive, (iii) a criminal conviction of
Executive for any act involving dishonesty, breach of trust or a
violation of the banking or savings and loan laws of the United
States, (iv) a criminal conviction of Executive for the commission of
any felony, (v) a breach of fiduciary duty involving personal profit,
(vi) a willful violation of any law, rule or regulation (other than a
traffic violation or similar offenses) or final cease and desist
order; or (vii) personal dishonesty or material breach by Executive
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
Employers.
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(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 Employers.
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 FDIC or
Commissioner
(A) If Executive is suspended and/or temporarily
prohibited from participating in the conduct of the
Employers' 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. Section 1818(e)(3) and
(g)(1)], the Employers' 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 Employers 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 prohibited
from participating in the conduct of the Employers'
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. Section 1818(e)(4) or (g)(1)], the
obligations of the Employers 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
Employers' continued operations (i) by the Regional
Director of the FDIC or the Wisconsin Commissioner of
Savings and Loan (the "Commissioner"), or his or her
designee at the time the FDIC or Resolution
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Trust Corporation ("RTC") enters into an agreement to
provide assistance to or on behalf of the Employers
under the authority contained in section 13(c) of the
Federal Deposit Insurance Act; or (ii) by the
Commissioner, or his or her designee, at the time it
approves a supervisory merger to resolve problems
related to operation of the Employers or when the
Employers are determined by the Commissioner 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.
(vi) Other Termination. If this Agreement is terminated (1)
by the Employers other than for cause, death, disability or retirement
(and other than following a change in control as defined in Section
6), or (2) by Executive due to a failure by Employers 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 Employers; 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 twenty-four (24) month
period in accordance with the Employers' normal
payroll practices, beginning with the first pay date
following the Termination Date. The monthly rate of
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 on the basis of his most recently completed
calendar year of employment.
(B) Employers 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
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Employers), 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 Employers 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.
(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 Company 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 Company cease for any reason to
constitute at least a majority thereof unless the election, or the
nomination for election by stockholders, of each new director was
approved by a vote of at least two-thirds of the directors then still
in office who were directors at the beginning of the period.
(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:
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(A) Without the Executive's express written consent,
assignment by the Employers of any duties which are
materially inconsistent with Executive's positions,
duties, responsibilities and status with the
Employers 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 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 Employers 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 either of the
Employers are relocated outside of the Milwaukee,
Wisconsin metropolitan area or, without the
Executive's express written consent, the Employers
require the Executive to be based anywhere other than
an area in which the Employers principal executives
offices are located, except for required travel on
business of the Employers to an extent substantially
consistent with the Executive's present business
travel obligations;
(D) Without Executive's express written consent, the
Employers fail 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 Executive with the same
fringe benefits that were provided to Executive
immediately prior to a change in control, or with a
package of fringe benefits (including paid vacations)
that, though one or more of such 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;
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(F) Any purported termination of the Executive's
employment for cause, disability or retirement which
is not effected in accordance with the notice
requirements applicable under this Agreement; or
(G) The failure by either of the Employers to obtain 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 any further salary payments to Executive
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) a, thirty-six (36) month period. Payments shall
be made in accordance with the Employers' normal
payroll practices, beginning with the first pay date
following the Termination Date. The monthly rate of
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 on the basis of his most recently completed
calendar year of employment.
(B) Employers 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 Employers), provided
that in the event Executive's participation in any
plan, program or arrangement as provided in this
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subparagraph (B) is barred, or during such period any
such plan, program or arrangement is discontinued or
the benefits thereunder are materially reduced, the
Employers 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 Employers
(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 Employers (whether payable pursuant to the terms of this
Agreement, any other plan, agreement or arrangement with the Employers or any
corporation affiliated with the Employers ("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 Employers's independent auditors and
acceptable to Executive, constitute "parachute payments" within the meaning of
Section 280G(b)(2) of the Code, and the present value of such "parachute
payments" equals or exceeds three times the average of the annual compensation
payable to Executive by the Employers (or an Affiliate) and includable in
Executive's gross income for federal income tax purposes for the
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five (5) calendar years preceding the year in which a change in ownership or
control of the Employers 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 Employers
(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 Employers. The Base Amount shall include every type and form of
compensation includable in Executive's gross income in respect of his
employment by the Employers (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
Employers' independent auditors in accordance with the principles of Sections
280G (b)(3) and (4) of the Code.
In the event that Employers and/or the Executive do not agree with the
opinion of such counsel, (A) Employers shall pay to the Executive the maximum
amount of payments and benefits pursuant to Section 6, as selected by the
Executive, which such opinion indicates that there is a high probability do not
result in any of such payments and benefits being non-deductible to the
Employers and subject to the imposition of 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 Employers, 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. Employers and Executive agree to be 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
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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) Employers 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 Employers ("successor
organization") to expressly assume and agree to
perform this Agreement in the same manner and to the
same extent that Employers 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 "Employers" shall
mean the Employers as hereinbefore defined (and any
successor to their business and/or assets) which
executes and delivers the agreement provided for in
this Section 7 or which otherwise becomes bound by
the terms and provisions of this Agreement by
operation of this Agreement or law. Failure of the
Employers 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 Employers in the same amount
and on the same terms as he would
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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 Employers 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 Employers has invested
considerable time and money in his development of such contacts and
relationships, that Employers could suffer irreparable harm if he were
to leave employment and solicit the business of the Employers
customers, and that it is reasonable to protect the Employers 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 Employers) not to continue
automatic annual renewals, Executive shall not accept employment with
any Significant Competitor of Bank for a period of twelve (12) months
following such termination. For purposes of this Agreement, the term
Significant Competitor means any financial institution including, but
not limited to, any commercial bank, savings bank, savings and loan
association, credit union, or mortgage banking corporation which, at
the time of termination of Executive's employment, or during the
period of this covenant not to compete, has a home, branch or other
office in Milwaukee County 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.
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Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of the Employers 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 Employers 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
Employers bring legal action for injunctive or other relief, the
Employers 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: Reliance Savings Bank
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000
If to the Company: Reliance Bancshares, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000
If to the Executive: Xx. Xxxxx X. Xxxx
X000 X0000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxx Xxxxx, XX 00000
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change
of address shall be effective only upon receipt.
(iv) Expenses. If any legal proceeding is necessary to
enforce or interpret the terms of this Agreement (or to recover
damages for breach of it) 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.
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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 attorney's 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. Employers 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. Employers 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
Employers 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 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 Employers as may be specifically designated by the
Board. No waiver by either party hereto at any time of any breach by
the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall
be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect
to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of Wisconsin.
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(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.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first above written.
Executive:
-----------------------------------
Xxxxx X. Xxxx
(CORPORATE SEAL)
RELIANCE BANCSHARES, INC.
By:
---------------------------------
O. William Held
Chairman of the Board
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(CORPORATE SEAL)
RELIANCE SAVINGS BANK
By:
--------------------------------
O. William Held
Chairman of the Board
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