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EMPLOYMENT AGREEMENT
(As Amended Effective July 1, 1998)
THIS EMPLOYMENT AGREEMENT is made effective as of this 1st day of July,
1998, by and between First Federal Savings Bank, LaCrosse-Madison, a
federally-chartered savings bank (the "Bank"), and Xxxxxx X. Xxxxxxx (the
"Executive").
WHEREAS, Executive has been employed by the Bank for a number of years,
and currently serves as its Senior Vice President and Retail Banking Division
Manager ("Corporate Position"); and
WHEREAS, Executive possesses an intimate knowledge of the business and
affairs of the Bank, including its policies, markets and financial and human
resources; and
WHEREAS, the Board of Directors of the Bank (the "Board"), recognizes
that Executive's contribution to the growth and success of the Bank has been
substantial and desires to assure the Bank of Executive's continued employment
in an executive capacity and to compensate him therefore; and
WHEREAS, Executive is desirous of committing himself to serve the Bank
on the terms provided in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, the Bank and Executive agree as follows:
1. Employment. Bank shall continue to employ Executive and
Executive shall continue to serve Bank under the terms and conditions of this
Agreement (which terms and conditions are intended to amend and supercede the
agreement of July 1, 1994 as previously in effect between the parties), for the
period stated in paragraph 2 below.
2. Term of Employment. The period of Executive's employment under
this Agreement shall commence on the date set forth above ("Commencement Date")
and shall expire on the third annual anniversary of said Commencement Date,
unless sooner terminated as provided herein. Effective as of any annual
anniversary of the Commencement Date during the term of this Agreement, the term
of employment hereunder may be extended by the action of the Bank's Board of
Directors to add one additional year to the then remaining term of employment
hereunder so that said term is annually restored to a full three-year term. The
Board of Directors or the Executive shall each provide the other with at least
forty-five (45) days' advance written notice of any decision on their respective
parts not to extend the Agreement on the anniversary date. The term of
employment under this
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Agreement, as in effect from time to time, shall be referred to as the
"Employment Term."
3. Position and Duties. Subject to Section 5(iv)(B), the Executive
shall serve in his Corporate Position, reporting to the President, and shall
have supervision and control over, and responsibility for, the retail banking
activities of the Bank and shall have such other powers and duties as may from
time to time be prescribed by the President, provided that such duties are
consistent with his present duties and with the Executive's position as an
executive officer of the Bank. The Executive shall devote substantially all his
working time and efforts to the business and affairs of the Bank.
4. Compensation. As compensation for the services to be provided
pursuant to this Agreement, Executive shall receive from Bank the compensation
and other benefits set forth below:
(i) Base Salary. During the Employment Term the Executive
shall receive a base salary ("Base Salary") in such amount as may from time to
time be approved by the Board. The Base Salary shall at no time be less than the
annual base salary payable to the Executive on the date of this Agreement. Any
increase in Base Salary or other compensation granted by the Board shall in no
way limit or reduce any other obligation of the Bank under this Agreement and,
once established at an increased specified rate, Executive's Base Salary under
this Agreement shall not thereafter be reduced. Executive's Base Salary and
other compensation shall be paid in accordance with the Bank's regular payroll
practices, as from time to time in effect.
(ii) Bonus Payments. In addition to Base Salary, Executive
shall be entitled during the Employment Term to receive such bonus payments as
the Board may determine in accordance with the Bank's Management Incentive Plan
(the "Incentive Plan") in effect on the date of this Agreement or as the same
may be amended or modified from time to time for the Bank's executive officers.
(iii) Other Benefits. During the Employment Term the Bank shall
provide to Executive all other benefits of employment generally made available
to the Bank's executive officers as in effect with other plans or arrangements
providing Executive with at least equivalent benefits thereunder. Executive
shall be entitled to participate in or receive benefits under any group health
and life insurance plan, pension plan, stock purchase, incentive savings, stock
option, restricted stock, stock appreciation rights and any other similar plans
or arrangements presently or hereafter made available by the Bank to its
executive officers (collectively the "Benefit Plans"), subject to and on a basis
consistent with the terms, conditions and overall administration of such Benefit
Plans. Executive shall be
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entitled to vacations and perquisites in accordance with the Bank's policies as
in effect from time to time for its executive officers.
5. Termination. This Agreement may be terminated, subject to
payment of the compensation and other benefits described below, upon the
occurrence of any of the events described below. In case of such termination,
the date on which Executive ceases to be employed under this Agreement, after
giving effect to any prior notice requirement set forth below, is referred to as
the "Termination Date."
(i) Death; Disability; Retirement. This Agreement shall
terminate upon the death, disability or retirement of Executive. As used in this
Agreement, the term "disability" shall mean Executive's inability, as a result
of physical or mental incapacity, to substantially perform his duties with the
Bank for a period of 180 consecutive days. Any question as to the existence of
Executive's disability upon which the Executive and the Bank cannot agree shall
be determined by a qualified independent physician mutually agreeable to
Executive and the Bank or, if the parties are unable to agree upon a physician
within ten (10) days after notice from either to the other suggesting a
physician, by a physician designated by the then president of the medical
society for the county in which Executive maintains his principal residence,
upon the request of either party. The costs of any such medical examination
shall be borne by the Bank. If Executive is terminated due to disability he
shall be paid 100% of his Base Salary at the rate in effect at the time notice
of termination is given for the remainder of the Employment Term, payable in
substantially equal monthly installments less, in each case, any disability
payments otherwise payable under plans provided by the Bank for disability or
any governmental social security or workers compensation program, and actually
paid to Executive in substantially equal monthly installments.
As used in this Agreement, the term "retirement" shall mean
Executive's retirement in accordance with and pursuant to any retirement plan of
the Bank generally applicable to its executive officers or in accordance with
any retirement arrangement established with Executive's consent with respect to
Executive.
If termination occurs for such reason, no additional
compensation shall be payable to the Executive under this Agreement except as
specifically provided in this Agreement. Notwithstanding anything to the
contrary contained in this Agreement, the 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
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benefits available to him under the Bank's Benefit Plans as in effect on the
date of death, disability or retirement.
(ii) Cause. The Bank may terminate the Executive's employment
under this Agreement for Cause at any time, and thereafter the Bank's
obligations under this Agreement shall cease and terminate. Notwithstanding
anything to the contrary contained in this Agreement, Executive shall receive
all compensation and other benefits to which he was entitled under Section 4
through the Termination Date and, in addition, shall receive all benefits
available to him under the Bank's Benefit Plans as in effect on the Termination
Date. For purposes of this Agreement, "Cause" shall mean (A) the willful and
continued failure by Executive to substantially perform his duties with the Bank
(other than failure resulting from the Executive's incapacity due to physical or
mental illness) after a written demand for substantial performance is delivered
to Executive by the Board, which demand specifically identifies the manner in
which the Board believes Executive has not substantially performed his duties,
(B) any willful act of misconduct by Executive which is materially injurious to
the Bank, monetarily or otherwise, (C) a criminal conviction of Executive for
any act involving dishonesty, breach of trust or a violation of the banking or
savings and loan laws of the State of Wisconsin or the United States, (D) a
criminal conviction of the Executive for the commission of any felony, (E) a
willful breach of fiduciary duty involving personal profit, (F) a willful
violation of any law, rule or regulation or final cease and desist order where
such violations materially, adversely, affect the Bank, (G) incompetence,
personal dishonesty or material breach of any provision of this Agreement which
would have a material adverse impact on the Bank. For purposes of this
Subsection 5(ii), no act, or failure to act, on the Executive's part shall be
deemed "willful" unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that the action or omission was in the
best interest of the Bank.
(iii) Voluntary Termination by Executive. Executive may
voluntarily terminate his employment under this Agreement at any time by giving
at least forty-five (45) days prior written notice to the Bank. In such event,
Executive shall receive all compensation and other benefits to which he was
entitled under Section 4 through the Termination Date and, in addition, shall
receive all other benefits available to him under the Bank's Benefit Plans as in
effect on the Termination Date.
(iv) Termination by Executive After Change in Control. For
purposes of this Agreement, a "change in control" shall mean a change in control
with respect to the Bank or its parent holding company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended
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("Exchange Act") or any successor thereto; provided that, without limitation,
such a change in control shall be deemed to have occurred if (i) any "person"
(as such term is used in Sections 13(d) and 14(d) of the Exchange Act) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities representing 25% or more of the
combined voting power of the Bank or holding company's then outstanding
securities; or (ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board of Directors of the Bank or
company cease for any reason to constitute at least a majority thereof unless
the election, or the nomination for election by stockholders, of each new
director was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of the period. The Executive
may terminate his employment under this Agreement by giving at least ninety (90)
days prior written notice to the Bank at anytime (1) within eighteen (18) months
of the effective date of a "change in control", or (2) after the occurrence, at
any time subsequent to a "change in control," of any of the following events,
without Executive's express written consent:
(A) Executive is assigned to any positions, duties or
responsibilities that are less significant than his positions, duties and
responsibilities as of the time immediately prior to any change in control;
(B) Executive is removed from or the Board fails to
re-elect Executive to any of his Corporate Position, except (1) in connection
with termination of Executive's employment for cause, disability or retirement,
or (2) in connection with any change in control after which the Bank is not the
continuing or surviving corporation, if the successor organization has executed
an agreement as required by Section 8(i)(A) and the removal or failure to
re-elect is limited to his Corporate Position with the Bank;
(C) Executive's Base Salary is materially reduced or the
Executive experiences in any year a material reduction of the ratio of his bonus
payment to his Base Salary which is greater than the average reduction in the
ratio of bonus payments to base salaries in such year experienced by all other
executive officers of the Bank or any other material failure by the Bank to
comply with Section 4;
(D) Executive is transferred to a location not within a 25
mile radius of the City of LaCrosse, Wisconsin; or
(E) The Bank fails to obtain an agreement from any
successor organization as required by Section 8(i)(A).
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(v) Suspension or Termination Required by the OTS
(A) If Executive is suspended and/or temporarily
prohibited from participating in the conduct of the Bank's affairs by a notice
served under section 8(e)(3), or section 8(g)(1) of the Federal Deposit
Insurance Act (12 U.S.C. Sections 1818(e)(3) and (g)(1), the Bank's obligations
under the Agreement shall be suspended as of the date of service of the notice
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, Bank shall (1) pay Executive all of the compensation withheld while
its obligations under this Agreement were suspended and (2) reinstate any of its
obligations which were suspended.
(B) If Executive is removed and/or permanently prohibited
from participating in the conduct of the Bank's affairs by an order issued under
section 8(e)(4) or section 8(g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Sections 1818(e)(4) or (g)(1) obligations of the Bank under the Agreement
shall terminate as of the effective date of the order, but vested rights of the
Executive to compensation and to any benefits under the Bank's Pension Plan
shall not be affected.
(C) If the Bank is in default as defined in section
3(x)(1) of the Federal Deposit Insurance Act, (12 U.S.C. 1813 (x)(1))all
obligations under the Agreement shall terminate as of the date of default,
except that this paragraph shall not affect any vested rights of the
Executive under any qualified retirement plan nor, in the event the Executive
terminates prior to the date of such default, the Executive's vested rights to
continue to receive severance payments and benefits pursuant to section 5(vi) of
this Agreement.
(D) All obligations under the Agreement shall be
terminated, except to the extent determined that continuation of the contract is
necessary for the continued operation of the Bank, (i) by the OTS, at the time
the FDIC or Resolution Trust Corporation ("RTC") enters into an agreement to
provide assistance to or on behalf of the Bank under the authority contained in
section 13(c) of the Federal Deposit Insurance Act; or (ii) by the OTS at the
time it approves a supervisory merger to resolve problems related to operation
of the Bank or when the Bank is determined by the OTS to be in an unsafe or
unsound condition. Any rights of the parties that have already vested, however,
shall not be affected by such action, and the Executive shall receive the
compensation and benefits set forth in section 5(vi) of this Agreement.
(E) In the event that 12 C.F.R. Section 563.39, or any
successor regulation, is repealed, this section 5(v) shall cease to be effective
on the effective date of such repeal. In the event that 12 C.F.R. Section
563.39, or any successor regulation, is
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amended or modified, this Agreement shall be revised to reflect the amended or
modified provisions if: (1) the amended or modified provision is required to be
included in this Agreement; or (2) if not so required, the Executive requests
that the Agreement be so revised.
(vi) Termination by the Bank Other Than Due to Death,
Disability, Retirement or For Cause; Termination of Executive. If this Agreement
is terminated by the Bank for any reason other than death, disability,
retirement or for cause as set forth in Section 5(i) or (ii), or is terminated
by the Executive pursuant to Section 5(iv), then, following the Date of
Termination:
(A) In lieu of any further salary payments to the
Executive for a period subsequent to the Termination Date, the Executive shall
receive severance pay in the form of payments continuing for the remaining
unexpired portion of the Employment Term, fully restored as of the Termination
Date, in the amount and at the times provided in Section 4(i) and 4 (ii)
("Severance Payments"). In the event of a termination as a result of a change in
control, the Executive may elect to receive the Severance Payment in one lump
sum, calculated on the basis of his average annual compensation for the past
three years multiplied by the time remaining to the end of the term of this
Agreement, fully restored as of the Termination Date, subject to any applicable
limitations set forth in Section 6 below; provided that the amount of such
Severance Payment in connection with a change in control shall be at least equal
to the particular Executive's annual compensation as of the Termination Date.
(B) In addition to the retirement benefits to which the
Executive is entitled under the Bank's Group Pension Plan, as amended from time
to time (the "Pension Plan"), the Executive shall receive as additional
severance benefits a retirement benefit under this Agreement, which benefit
(except as provided below) shall be determined in accordance with, and payable
in the form and at the times provided in, the Pension Plan. Such benefits shall
be determined as if the Executive were fully vested under the Pension Plan and
had accumulated (after any termination under this Agreement) the additional
years of credited service under the Pension Plan that he would have received had
he continued in the employment of the Bank for the entire Employment Term at the
highest annual rate of Base Salary in effect during the twelve (12) months
immediately preceding the Termination Date. Such Base Salary shall be deemed to
represent the compensation (as defined in the Pension Plan) received by the
Executive during each such additional year for purposes of determining his
additional retirement benefits under this Subsection 5(vi), subject to Chapter V
of the Pension Plan and as it may be amended from time to time.
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(C) In addition to all other amounts payable under this
section 5, Executive shall be entitled to receive all benefits otherwise payable
to Executive under (i) any tax qualified Bank plan or agreement relating to
pension or retirement benefits, and (ii) any other Bank plan or agreement,
regardless of tax status, established to provide deferred compensation,
retirement, or other benefits for the Executive.
(D) If Executive is under fifty-five (55) years of age on
the Termination Date, Executive shall take reasonable steps to obtain employment
and thereby mitigate the amount of compensation and benefits due under Section
5(vi); provided, however, that Executive shall not be required to accept a
position other than one within a 25 mile radius of the City of LaCrosse,
Wisconsin. If the Executive is fifty-five (55) years of age or older on the
Termination Date or if Executive determines upon the advice of a qualified
independent physician that he is physically or medically unable to substantially
perform duties with another employer comparable to those performed by him with
the Bank, the Executive shall have no obligation to seek other employment.
Notwithstanding the foregoing, and regardless of age, during any portion of the
Employment term remaining after the Termination Date, if the Executive becomes
employed on a full-time basis by another employer, then to the extent the
Executive shall receive compensation, benefits or service credit from such other
employer, the aggregate amount of all compensation to be paid and benefits and
service credit to be provided by the Bank under this Agreement shall be
correspondingly reduced.
(E) The requirement for mitigation, as set forth in
Section 5 (vi)(D) above, shall not apply with respect to any termination under
Section 5(iv) subsequent to a change in control.
6. Limitations on Termination Compensation.
(i) In the event that the severance benefits payable to the
Executive under Subsection 5(vi) ("Severance Benefits"), or any other payments
or benefits received or to be received by the Executive from the Bank (whether
payable pursuant to the terms of this Agreement, any other plan, agreement or
arrangement with the Bank or any corporation ("Affiliate") affiliated with the
Bank within the meaning of Section 1504 of the Internal Revenue Code of 1954, as
amended (the "Code"), in the opinion of tax counsel selected by the Bank's
independent auditors and acceptable to the 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 (3) times the average
of the annual compensation payable to the Executive by the Bank (or an
Affiliate) and includible in the Executive's gross income for federal income tax
purposes for the five (5)
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calendar years preceding the year in which a change in ownership or control of
the Bank occurred ("Base Amount"), such severance benefits shall be reduced to
an amount the present value of which (when combined with the present value of
any other payments or benefits otherwise received or to be received by the
Executive from the Bank (or an Affiliate) that are deemed "parachute payments")
is equal to 2.99 times the Base Amount, notwithstanding any other provision to
the contrary in this Agreement. The Severance Benefits shall not be reduced if
(A) the Executive shall have effectively waived his receipt or enjoyment of any
such payment or benefit which triggered the applicability of this Section 6, 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 Bank. The Base Amount shall include every type
and form of compensation includible in the Executive's gross income in respect
of his employment by the Bank (or an Affiliate), except to the extent otherwise
provided in temporary or final regulations promulgated under Section 280G(b) of
the Code. For purposes of this Section 6, a "change in ownership or control"
shall have the meaning set forth in Section 280G(b) of the code and any
temporary or final regulations promulgated thereunder. The present value of any
non-cash benefit or any deferred cash payment shall be determined by the Bank's
independent auditors in accordance with the principles of Sections 280G(b)(3)
and (4) of the Code.
(ii) Executive shall have the right to request that the Bank
obtain a ruling from the Internal Revenue Service ("Service") as to whether any
or all payments or benefits determined by such tax counsel are, in the view of
the Service, "parachute payments" under Section 280G. If a ruling is sought
pursuant to the Executive's request, no severance benefits payable under this
Agreement shall be made to the Executive until after fifteen (15) days from the
date of such ruling. For purposes of this Subsection 6(ii), the Executive and
the Bank agree to be bound by the Service's ruling as to whether payments
constitute "parachute payments" under Section 280G. If the service declines, for
any reason, to provide the ruling requested, the tax counsel's opinion provided
under Subsection 6(i) with respect to what payments or benefits constitute
"parachute payments" shall control, and the period during which the Severance
Benefits may be deferred shall be extended to a date fifteen (15) days from the
date of the Service's notice indicating that no ruling would be forthcoming.
(iii) In the event that Section 280G, or any successor statute,
is repealed, this Section 6 shall cease to be effective
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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 agree 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. Noncompetition After Voluntary Termination And Duty of
Confidentiality.
(a) Noncompetition. Executive acknowledges that the
development of personal contacts and relationships is an essential element of
the Bank's business, that the Bank has invested considerable time and money in
his development of such contacts and relationships, that the Bank could suffer
irreparable harm if he were to leave employment and solicit the business of
Bank's customers, and that it is reasonable to protect the Bank against
competitive activities by Executive. Executive covenants and agrees, in
recognition of the foregoing and in consideration of the mutual promises
contained herein, that in the event of a voluntary termination of employment by
Executive pursuant to Section 5(iii), or upon expiration of this Agreement as a
result of Executive's election not to continue automatic annual renewals,
Executive shall not accept employment in La Crosse, Dane or St. Croix counties
with any Significant Competitor of the Bank for a period of eighteen (18) 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, (i) maintains a
home, branch or other office in any of said counties, or (ii) has originated
within any of said counties $10,000,000 or more in residential mortgage loans
during any consecutive twelve (12) month period within the thirty-six (36)
months prior to Executive's termination and inclusive of the period covered by
this covenant.
Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of the Bank and are reasonably limited
as to (i) the scope of activities affected, (ii) their duration and geographic
scope, and (iii) their effect on Executive and the public. In the event
Executive violates the non-competition provisions set forth herein, Bank shall
be entitled, in addition to its other legal remedies, to enjoin the employment
of Executive with any Significant Competitor for the period set forth herein. If
Executive violates this covenant and the Bank brings legal action for injunctive
or other relief, the Bank shall not, as a result of the time involved in
obtaining
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such relief, be deprived of the benefit of the full period of the restrictive
covenant. Accordingly, the covenant shall be deemed to have the duration
specified herein, computed from the date such relief is granted, but reduced by
any period between commencement of the period and the date of the first
violation. In addition to such other relief as may be awarded, if the Bank is
the prevailing party it shall be entitled to reimbursement for all reasonable
costs, including attorneys' fees, incurred in enforcing its rights hereunder.
(b) Duty of Confidentiality. Executive acknowledges that he
will, as the result of services performed on behalf of the Bank, obtain or
otherwise become aware of confidential and/or proprietary information regarding
the Bank's affairs, including, but not limited to, information relative to (i)
customers, customer accounts and customer lists, (ii) marketing, (iii) customer
development strategies, (iv) financial and economic plans and projections, and
(v) other similar information. Executive agrees that following termination of
his employment for any reason, he will treat all such matters as confidential
and will refrain both from divulging such information in any manner and from the
use of such information for his benefit or for the benefit of any employer
(regardless of whether such employer would constitute a Significant Competitor
under this Agreement) or third-party.
8. General Provisions.
(i) Successors; Binding Agreement.
(A) The Bank will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Bank ("successor
organization") to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Bank would be required to perform it
if no such succession had taken place. As used in this Agreement, "Bank" shall
mean the Bank as hereinbefore defined and any successor to its business and/or
assets as aforesaid which executes and delivers the agreement provided for in
this Section 8 or which otherwise becomes bound by the terms and provisions of
this Agreement by operation of this Agreement or law. Failure of the Bank to
obtain such agreement prior to the effectiveness of any such succession shall be
a breach of this Agreement and shall entitle the Executive as his exclusive
remedy to compensation from the Bank in the same amount and on the same terms as
he would be entitled to under this agreement if he terminated his employment
under Section 5(iv). For purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Termination
Date.
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(B) No right or interest to or in any payments or benefits
under this Agreement shall be assignable or transferrable 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 the Executive.
(C) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the Executive and his heirs, beneficiaries and
personal representatives and the Bank and any successor organization.
(ii) Notice. For the purpose 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:
000 Xxxxx Xxxxxx
XxXxxxxx, XX 00000
Attn: Secretary
or if to Executive at the address set forth below the Executive's signature line
of this Agreement, 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.
(iii) Expenses. If any legal proceeding is necessary to enforce
or interpret this Agreement, or to recover damages for breach of it, the
prevailing party, shall be entitled to recover from the other party reasonable
attorneys' fees and necessary costs and disbursements incurred in such
litigation, in addition to any other relief to which such prevailing party may
be entitled.
Notwithstanding the foregoing, in the event of a legal
proceeding to enforce or interpret the terms of this Agreement following a
change in control, Executive shall be entitled to recover from Bank, regardless
of the outcome of said action, necessary costs and disbursements incurred
together with actual attorney's fees up to the greater of (A) $25,000, or (B)
thirty percent (30%) of the amount in dispute between the parties [which amount,
for purposes of this Agreement, shall be deemed to be the difference between the
highest written settlement offer from the Bank and the lowest written settlement
offer (exclusive of any claim for consequential, punitive, or other forms or
amounts of damages not based on specific contract terms) from Executive].
Recovery by Executive of attorneys fees and costs as provided
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herein following a change in control shall be in addition to any other relief to
which Executive may be entitled.
(iv) Withholding. The Bank shall be entitled to withhold from
amounts to be paid to the Executive under this Agreement any federal, state or
local withholding or other taxes of charges which it is from time to time
required to withhold. the Bank shall be entitled to rely on an opinion of
counsel if any question as to the amount or requirement of any such withholding
shall arise.
(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 signed by the Executive and such officer as may be
specifically designated by the board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Wisconsin.
(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, each 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.
Executive: Xxxxxx X. Xxxxxxx
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(Address)
First Federal Savings Bank,
LaCrosse-Madison
(CORPORATE SEAL)
By:
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By:
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