KEY EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT
THIS AGREEMENT, is made and entered into as of the 1st day of October,
1999, by and between STATE FINANCIAL SERVICES CORPORATION, a Wisconsin
corporation (hereinafter referred to as the "Company"), and _________________
(hereinafter referred to as the "Executive").
W I T N E S S E T H :
WHEREAS, the Executive is employed by the Company and/or a subsidiary
of the Company in a key executive capacity, and the Executive's services are
valuable to the conduct of the business of the Company;
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that circumstances may arise in which a change in control of the
Company occurs, through acquisition or otherwise, thereby causing uncertainty
about the Executive's future employment with the Company and/or any such
subsidiary without regard to the Executive's competence or past contributions,
which uncertainty may result in the loss of valuable services of the Executive
to the detriment of the Company and its shareholders, and the Company and the
Executive wish to provide reasonable security to the Executive against changes
in the Executive's relationship with the Company in the event of any such change
in control;
WHEREAS, the Company and the Executive desire that any proposal for a
change in control or acquisition of the Company will be considered by the
Executive objectively and with reference only to the best interests of the
Company and its shareholders; and
WHEREAS, the Executive will be in a better position to consider the
Company's best interests if the Executive is afforded reasonable security, as
provided in this Agreement, against altered conditions of employment which could
result from any such change in control or acquisition.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto mutually
covenant and agree as follows:
1. Definitions.
(a) Act. The term "Act" means the Securities Exchange Act of
1934, as amended.
(b) Accrued Benefits. The term "Accrued Benefits" shall include
the following amounts, payable as described herein: (i) all base salary for the
time period ending with the Termination Date; (ii) reimbursement for any and all
monies advanced in connection with the Executive's employment for reasonable and
necessary expenses incurred by the Executive on
behalf of the Company and its Affiliates for the time period ending with the
Termination Date; (iii) any and all other cash earned through the Termination
Date and deferred at the election of the Executive or pursuant to any deferred
compensation plan then in effect; (iv) notwithstanding any provision of any
bonus or incentive compensation plan applicable to the Executive, a lump sum
amount, in cash, equal to the sum of (A) any bonus or incentive compensation
that has been allocated or awarded to the Executive for a fiscal year or other
measuring period under the plan that ends prior to the Termination Date but has
not yet been paid (pursuant to Section 5(f) or otherwise) and (B) a pro rata
portion to the Termination Date of the aggregate value of all contingent bonus
or incentive compensation awards to the Executive for all uncompleted periods
under the plan calculated as to each such award as if the Goals with respect to
such bonus or incentive compensation award had been attained; and (v) all other
payments and benefits to which the Executive or in the event of the Executive's
death, the Executive's surviving spouse or other beneficiary) may be entitled as
compensatory fringe benefits or under the terms of any benefit plan of the
Employer, including severance payments under the Employer's severance policies
and practices in the form most favorable to the Executive that were in effect at
any time during the one-year period prior to the Effective Date. Payment of
Accrued Benefits shall be made promptly in accordance with the Employee's
prevailing practice with respect to clauses (i) and (ii) or, with respect to
clauses (iii), (iv) and (v), pursuant to the terms of the benefit plan or
practice establishing such benefits.
(c) Affiliate and Associate. The terms "Affiliate" and
"Associate" shall have the respective meanings ascribed to such terms in Rule
12b-2 of the General Rules and Regulations of the Act.
(d) Annual Cash Compensation. The term "Annual Cash Compensation"
shall mean the sum of (A) the Executive's Annual Base Salary, plus (B) the
highest of (1) the annual bonus or incentive compensation award earned by the
Executive under any cash bonus or incentive compensation plan of the Company or
any of its Affiliates during the three complete fiscal years of the Company
immediately preceding the Termination Date or, if more favorable to the
Executive, during the three complete fiscal years of the Company immediately
preceding the Effective Date; (2) the Executive's bonus or incentive
compensation Targeted Bonus for the fiscal year in which the Termination Date
occurs; or (3) the highest average annual bonus and/or incentive compensation
earned during the three complete fiscal years of the Company immediately
preceding the Termination Date (or, if more favorable to the Executive, during
the three complete fiscal years of the Company immediately preceding the
Effective Date) under any cash bonus or incentive compensation plan of the
Company or any of its Affiliates by the group of executives of the Company and
its Affiliates participating under such plan during such fiscal years at a
status or position comparable to that at which the Executive participated or
would have participated pursuant to the Executive's most senior position at any
time during the year preceding the Effective Date or thereafter until the
Termination Date, plus (C) the Company Contribution to the ESOP, Money Purchase
Pension Plan and Supplemental Executive Plan for the fiscal year of the Company
out of the three complete fiscal years prior to the Termination Date in which
the combined Company Contribution was highest.
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(e) Cause. The Company may terminate the Executive's employment
after the Effective Date for "Cause" only if the conditions set forth in
paragraphs (i) and (ii) have been met and the Company otherwise complies with
this Agreement:
(i) (A) the Executive has committed any act of fraud,
embezzlement or theft in connection with the Executive's Tduties as an
Executive or in the course of employment with the Company and/or its
subsidiaries; (B) the Executive has willfully and continually failed to
perform substantially the Executive's duties with the Company or any of its
Affiliates (other than any such failure resulting from incapacity due to
physical or mental illness or injury, regardless of whether such illness or
injury is job-related) for an appropriate period, which shall not be less
than 30 days, after the Chief Executive Officer of the Company (or, if the
Executive is then Chief Executive Officer, the Board) has delivered a
written demand for performance to the Executive that specifically
identifies the manner in which the Chief Executive Officer (or the Board,
as the case may be) believes the Executive has not substantially performed
the Executive's duties; (C) the Executive has willfully engaged in illegal
conduct or gross misconduct that is materially and demonstrably injurious
to the Company; (D) the Executive has willfully and wrongfully disclosed
any trade secret or other confidential information of the Company or any of
its Affiliates; or (E) the Executive has engaged in any Competitive
Activity; and in any such case the act or omission shall have been
determined by the Board to have been materially harmful to the Company and
its subsidiaries taken as a whole.
For purposes of this provision, (1) no act or failure to act
on the part of the Executive shall be considered "willful" unless it is
done, or omitted to be done, by the Executive in bad faith or without
reasonable belief that the Executive's action or omission was in the best
interests of the Company and (2) any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board or upon
the instructions of the Chief Executive Officer or a senior officer of the
Company or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by the Executive
in good faith and in the best interests of the Company.
(ii) (A) The Company terminates the Executive's employment
by delivering a Notice of Termination to the Executive, (B) prior to the
time the Company has terminated the Executive's employment pursuant to a
Notice of Termination, the Board, by the affirmative vote of not less than
three-quarters (3/4) of the entire membership of the Board, has adopted a
resolution finding that the Executive was guilty of conduct set forth in
this definition of Cause, and specifying the particulars thereof in detail,
at a meeting of the Board called and held for the purpose of considering
such termination (after reasonable notice to the Executive and an
opportunity for the Executive, together with the Executive's counsel, to be
heard before the Board) and (C) the Company delivers a copy of such
resolution to the Executive with the Notice of Termination at the time the
Executive's employment is terminated.
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In the event of a dispute regarding whether the Executive's employment has been
terminated for Cause, no claim by the Company that the Company has terminated
the Executive's employment for Cause in accordance with this Agreement shall be
given effect unless the Company establishes by clear and convincing evidence
that the Company has complied with the requirements of this Agreement to
terminate the Executive's employment for Cause.
(f) Change in Control. A "Change in Control" shall be deemed to
have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
(i) any Person (other than (A) the Company or any of its
subsidiaries, (B) a trustee or other fiduciary holding securities under any
employee benefit plan of the Company or any of its subsidiaries, (C) an
underwriter temporarily holding securities pursuant to an offering of such
securities or (D) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock in the Company ("Excluded Persons")) is or becomes the
"Beneficial Owner" (as such term is defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired
directly from the Company or its Affiliates after June 1, 1999 pursuant to
express authorization by the Board that refers to this exception)
representing 25% or more of either the then outstanding shares of common
stock of the Company or the combined voting power of the Company's then
outstanding voting securities; or
(ii) the following individuals cease for any reason to
constitute a majority of the number of directors then serving: individuals
who, on June 1, 1999, constituted the Board and any new director (other
than a director whose initial assumption of office is in connection with an
actual or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of the Company,
as such terms are used in Rule 14a-11 of Regulation 14A under the Act)
whose appointment or election by the Board or nomination for election by
the Company's stockholders was approved by a vote of at least two-thirds
(2/3) of the directors then still in office who either were directors on
June 1, 1999 or whose appointment, election or nomination for election was
previously so approved; or
(iii) the stockholders of the Company approve a merger,
consolidation or share exchange of the Company with any other corporation
or approve the issuance of voting securities of the Company in connection
with a merger, consolidation or share exchange of the Company (or any
direct or indirect subsidiary of the Company) pursuant to applicable stock
exchange requirements, other than (A) a merger, consolidation or share
exchange which would result in the voting securities of the Company
outstanding immediately prior to such merger, consolidation or share
exchange continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity or any
parent thereof) at least 50% of the combined voting power of the voting
securities of the Company or such surviving entity or any parent thereof
outstanding immediately after such merger, consolidation or share exchange,
or (B) a merger, consolidation or share exchange
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which would result in the voting securities of the Company outstanding
immediately prior to such merger, consolidation or share exchange
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or any parent
thereof) at least 25% of the combined voting power of the voting securities
of the Company or such surviving entity or any parent thereof outstanding
immediately after such merger, consolidation or share exchange, but only if
the individuals described in subsection (ii) above cease for any reason to
constitute a majority of the number of directors of the Company or such
surviving entity or any parent thereof (for purposes of this determination
the Company shall be deemed to include such surviving entity or any parent
thereof); or
(iv) the stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company or an agreement for the
sale or disposition by the Company of all or substantially all of the
Company's assets (in one transaction or a series of related transactions
within any period of 24 consecutive months), other than a sale or
disposition by the Company of all or substantially all of the Company's
assets to an entity at least 75% of the combined voting power of the voting
securities of which are owned by Persons in substantially the same
proportions as their ownership of the Company immediately prior to such
sale.
Notwithstanding the foregoing, no "Change in Control" shall be
deemed to have occurred if there is consummated any transaction or series of
integrated transactions immediately following which the record holders of the
common stock of the Company immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in
an entity that owns all or substantially all of the assets or voting securities
of the Company immediately following such transaction or series of transactions.
(g) Code. The term "Code" means the Internal Revenue Code of
1986, including any amendments thereto or successor tax codes thereof.
(h) Competitive Activity. The Executive shall engage in a
"Competitive Activity" if the Executive participates in the management of, is
employed by or owns any interest in any business enterprise at a location within
the United States that engages in substantial competition with the Company or
its subsidiaries, where such enterprise's revenues from any competitive
activities amount to 10% or more of such enterprise's consolidated net revenues
and sales for its most recently completed fiscal year; provided, however, that
owning stock or other securities of a competitor amounting to less than five
percent of the outstanding capital stock of such competitor shall not be a
"Competitive Activity".
(i) Covered Termination. The term "Covered Termination" means any
termination of the Executive's employment during the Employment Period where the
Termination Date or the date Notice of Termination is delivered is any date on
or prior to the end of the Employment Period.
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(j) Effective Date. The term "Effective Date" shall mean the
first date on which a Change in Control occurs. Anything in this Agreement to
the contrary notwithstanding, if (i) a Change in Control occurs, (ii) the
Executive's employment with the Employer terminates (whether by the Company, the
Executive or otherwise) within one-year prior to the Change in Control and (iii)
it is reasonably demonstrated by the Executive that (A) any such termination of
employment by the Employer (1) was at the request of a third party who has taken
steps reasonably calculated to effect a Change in Control or (2) otherwise arose
in connection with or in anticipation of a Change in Control, or (B) any such
termination of employment by the Executive took place subsequent to the
occurrence of an event described in clause (ii), (iii), (iv) or (v) of the
definition of "Good Reason" which event (1) occurred at the request of a third
party who has taken steps reasonably calculated to effect a Change in Control or
(2) otherwise arose in connection with or in anticipation of a Change in
Control, then for all purposes of this Agreement the term "Effective Date" shall
mean the day immediately prior to the date of such termination of employment.
(k) Employer. The term "Employer" means the Company and/or any
subsidiary of the Company that employed the Executive immediately prior to the
Effective Date.
(l) Good Reason. The Executive shall have a "Good Reason" for
termination of employment on or after the Effective Date if the Executive
determines in good faith that any of the following events has occurred:
(i) any breach of this Agreement by the Company, including
specifically any breach by the Company of its agreements contained in
Section 4, Section 5 or Section 6, other than an isolated, insubstantial
and inadvertent failure not occurring in bad faith that the Company
remedies promptly after receipt of notice thereof given by the Executive;
(ii) any reduction in the Executive's base salary,
percentage of base salary available as incentive compensation or bonus
opportunity or benefits, in each case relative to those most favorable to
the Executive in effect at any time during the one-year period prior to the
Effective Date or, to the extent more favorable to the Executive, those in
effect after the Effective Date;
(iii) a material adverse change, without the Executive's
prior written consent, in the Executive's working conditions or status with
the Company or the Employer from such working conditions or status in
effect during the one-year period prior to the Effective Date or, to the
extent more favorable to the Executive, those in effect after the Effective
Date, including but not limited to (A) a material change in the nature or
scope of the Executive's titles, authority, powers, functions, duties,
reporting requirements or responsibilities, or (B) a material reduction in
the level of support services, staff, secretarial and other assistance,
office space and accoutrements, but excluding for this purpose an isolated,
insubstantial and inadvertent event not occurring in bad faith that the
Company remedies promptly after receipt of notice thereof given by the
Executive;
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(iv) the relocation of the Executive's principal place of
employment to a location more than 25 miles from the Executive's principal
place of employment on the date one year prior to the Effective Date;
(v) the Employer requires the Executive to travel on
Employer business to a materially greater extent than was required during
the one-year period prior to the Effective Date;
(vi) failure by the Company to obtain the agreement referred
to in Section 16(a) as provided therein;
(vii) the Executive has continued the Executive's employment
through the first anniversary of the Change in Control; provided, however,
that the Executive may exercise the Executive's rights to terminate the
Executive's employment under this clause (vii) only if the Executive
delivers the Notice of Termination during the 60 days following such first
anniversary; or
(viii) the Company or the Employer terminates the Executive's
employment after a Change in Control without delivering a Notice of
Termination in accordance with Section 12;
provided that (A) any such event occurs following the Effective Date or (B) in
the case of any event described in clauses (ii), (iii), (iv) or (v) above, such
event occurs on or prior to the Effective Date under circumstances described in
clause (iii)(B)(l) or (iii)(B)(2) of the definition of "Effective Date." In the
event of a dispute regarding whether the Executive terminated the Executive's
employment for "Good Reason" in accordance with this Agreement, no claim by the
Company that such termination does not constitute a Covered Termination shall be
given effect unless the Company establishes by clear and convincing evidence
that such termination does not constitute a Covered Termination. Any election by
the Executive to terminate the Executive's employment for Good Reason shall not
be deemed a voluntary termination of employment by the Executive for purposes of
any other employee benefit or other plan.
(m) Normal Retirement Date. The term "Normal Retirement Date"
means the date the Executive reaches "Normal Retirement Age" as defined in the
State Financial Services Corporation Money Purchase Pension Plan as in effect on
the date hereof, or the corresponding date under any successor plan of the
Employer as in effect on the Effective Date.
(n) Notice of Termination. The term "Notice of Termination" means
a written notice as contemplated by Section 12.
(o) Person. The term "Person" shall have the meaning given in
Section 3(a)(9) of the Act, as modified and used in Sections 13(d) and 14(d)
thereof.
(p) Termination Date. Except as otherwise provided in Section
9(b) and Section 16(a), the term "Termination Date" means (i) if the Executive's
employment is terminated by the Executive's death, the date of death; (ii) if
the Executive's employment is terminated by
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reason of voluntary early retirement, as agreed in writing by the Company and
the Executive, the date of such early retirement that is set forth in such
written agreement; (iii) if the Executive's employment is terminated for
purposes of this Agreement by reason of disability pursuant to Section 11,
thirty days after the Notice of Termination is given; (iv) if the Executive's
employment is terminated by the Executive voluntarily (other than for Good
Reason), the date the Notice of Termination is given; and (v) if the Executive's
employment is terminated by the Company (other than by reason of disability
pursuant to Section 11) or by the Executive for Good Reason, thirty days after
the Notice of Termination is given. Notwithstanding the foregoing,
(A) If the Executive shall in good faith give a Notice of
Termination for Good Reason and the Company notifies the Executive that a
dispute exists concerning the termination within the fifteen-day period
following receipt thereof, then the Executive may elect to continue the
Executive's employment during such dispute and the Termination Date shall be
determined under this paragraph. If the Executive so elects and it is thereafter
determined that the Executive terminated the Executive's employment for Good
Reason in accordance with this Agreement, then the Termination Date shall be the
earlier of (1) the date on which the dispute is finally determined, either (x)
by mutual written agreement of the parties or (y) in accordance with Section 21
or (2) the date of the Executive's death. If the Executive so elects and it is
thereafter determined that the Executive did not terminate the Executive's
employment for Good Reason in accordance with this Agreement, then the
employment of the Executive hereunder shall continue after such determination as
if the Executive had not delivered the Notice of Termination asserting Good
Reason and there shall be no Termination Date arising out of such Notice. In
either case, this Agreement continues, until the Termination Date, if any, as if
the Executive had not delivered the Notice of Termination except that, if it is
finally determined that the Executive terminated the Executive's employment for
Good Reason in accordance with this Agreement, then the Executive shall in no
case be denied the benefits described in Section 8 (including a Termination
Payment) based on events occurring after the Executive delivered the Executive's
Notice of Termination.
(B) If an opinion is required to be delivered pursuant to Section
8(a)(ii) and such opinion shall not have been delivered, then the Termination
Date shall be the date on which such opinion is delivered.
(C) Except as provided in paragraph (A) above, if the party
receiving the Notice of Termination notifies the other party that a dispute
exists concerning the termination within the fifteen-day period following
receipt thereof and it is finally determined that termination of the Executive's
employment for the reason asserted in such Notice of Termination was not in
accordance with this Agreement, then (1) if such Notice was delivered by the
Executive, then the Executive will be deemed to have voluntarily terminated the
Executive's employment other than for Good Reason by means of such Notice and
(2) if delivered by the Company, then the Company will be deemed to have
terminated the Executive's employment other than by reason of death, disability
or Cause by means of such Notice.
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2. Termination or Cancellation Prior to the Effective Date. The
Employer and the Executive shall each retain the right to terminate the
employment of the Executive at any time prior to the Effective Date. If the
Executive's employment is terminated prior to the Effective Date, then this
Agreement shall be terminated and cancelled and of no further force or effect
and any and all rights and obligations of the parties hereunder shall cease. In
addition, this Agreement shall terminate upon the Executive ceasing to be an
officer of the Employer prior to a Change in Control unless the Executive can
reasonably demonstrate that such change in status occurred under circumstances
described in clause (iii)(B)(l) or (iii)(B)(2) of the definition of "Effective
Date" in Section 1 hereof.
3. Employment Period. If the Executive is employed by the Employer on
the Effective Date, then the Company will, or will cause the Employer to,
continue thereafter to employ the Executive during the Employment Period (as
hereinafter defined), and the Executive will remain in the employ of the
Employer, in accordance with and subject to the terms and provisions of this
Agreement. For purposes of this Agreement, the term "Employment Period" means a
period (i) commencing on the Effective Date, and (ii) ending at 11:59 p.m.
Milwaukee Time on the earlier of the third anniversary of such date or the
Executive's Normal Retirement Date.
4. Duties. During the Employment Period, the Executive shall, in the
most significant capacities and positions held by the Executive at any time
during the one-year period preceding the Effective Date or in such other
capacities and positions as may be agreed to by the Company and the Executive in
writing, devote the Executive's best efforts and all of the Executive's business
time, attention and skill to the business and affairs of the Employer, as such
business and affairs now exist and as they may hereafter be conducted.
5. Compensation. During the Employment Period, the Executive shall be
compensated as follows:
(a) The Executive shall receive, at reasonable intervals (but not
less often than monthly) and in accordance with such standard policies as may be
in effect immediately prior to the Effective Date, an annual base salary in cash
equivalent of not less than twelve times the Executive's highest monthly base
salary for the twelve-month period immediately preceding the month in which the
Effective Date occurs or, if higher, annual base salary at the rate in effect
immediately prior to the Effective Date (which base salary shall, unless
otherwise agreed in writing by the Executive, include the current receipt by the
Executive of any amounts which, prior to the Effective Date, the Executive had
elected to defer, whether such compensation is deferred under Section 401(k) of
the Code or otherwise), subject to upward adjustment as provided in Section 6
(such salary amount as adjusted upward from time to time is hereafter referred
to as the "Annual Base Salary").
(b) The Executive shall receive fringe benefits at least equal in
value to those provided for the Executive at any time during the one-year period
immediately preceding the Effective Date or, if more favorable to the Executive,
those provided generally at any time after the Effective Date to any executives
of the Company and its Affiliates of comparable status and position to the
Executive. The Executive shall be reimbursed, at such intervals and
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in accordance with such standard policies that are most favorable to the
Executive that were in effect at any time during the one-year period immediately
preceding the Effective Date or, if more favorable to the Executive, those
provided generally at any time after the Effective Date to any executives of the
Company and its Affiliates of comparable status and position to the Executive,
for any and all monies advanced in connection with the Executive's employment
for reasonable and necessary expenses incurred by the Executive on behalf of the
Company and its Affiliates, including travel expenses.
(c) The Executive and/or the Executive's family, as the case may
be, shall be included, to the extent eligible thereunder (which eligibility
shall not be conditioned on the Executive's salary grade or on any other
requirement that excludes executives of the Company and its Affiliates of
comparable status and position to the Executive unless such exclusion was in
effect for such plan or an equivalent plan on the date one year prior to the
Effective Date), in any and all welfare benefit plans, practices, policies and
programs providing benefits for the Company's salaried employees in general or,
if more favorable to the Executive, to any executives of the Company and its
Affiliates of comparable status and position to the Executive, including but not
limited to group life insurance, hospitalization, medical and dental plans;
provided, that, (i) in no event shall the aggregate level of benefits under such
plans, practices, policies and programs in which the Executive is included be
less than the aggregate level of benefits under plans, practices, policies and
programs of the type referred to in this Section 5(c) in which the Executive was
participating at any time during the one-year period immediately preceding the
Effective Date and (ii) in no event shall the aggregate level of benefits under
such plans, practices, policies and programs be less than the aggregate level of
benefits under plans, practices, policies and programs of the type referred to
in this Section 5(c) provided at any time after the Effective Date to any
executive of the Company and its Affiliates of comparable status and position to
the Executive.
(d) The Executive shall annually be entitled to not less than the
amount of paid vacation and not fewer than the number of paid holidays to which
the Executive was entitled annually at any time during the one-year period
immediately preceding the Effective Date or such greater amount of paid vacation
and number of paid holidays as may be made available annually to the Executive
or any other executive of the Company and its Affiliates of comparable status
and position to the Executive at any time after the Effective Date.
(e) The Executive shall be included in all plans providing
additional benefits to any executives of the Company and its Affiliates of
comparable status and position to the Executive, including but not limited to
deferred compensation, split-dollar life insurance, retirement, supplemental
retirement, stock option, stock appreciation, stock bonus and similar or
comparable plans; provided, that, (i) in no event shall the aggregate level of
benefits under such plans be less than the aggregate level of benefits under
plans of the type referred to in this Section 5(e) in which the Executive was
participating at any time during the one-year period immediately preceding the
Effective Date; (ii) in no event shall the aggregate level of benefits under
such plans be less than the aggregate level of benefits under the plans of the
type referred to in this Section 5(c) provided at any time after the Effective
Date to the Executive or any executive of the Company and its Affiliates of
comparable status and position
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to the Executive; and (iii) the Company's obligation to include the Executive in
bonus or incentive compensation plans shall be determined by Section 5(f).
(f) To assure that the Executive will have an opportunity to earn
incentive compensation after the Effective Date, the Executive shall be included
in a bonus plan of the Company that shall satisfy the standards described below
(the "Bonus Plan"). Bonuses under the Bonus Plan shall be payable with respect
to achieving such financial or other goals reasonably related to the business of
the Company, including the Employer, as the Company shall establish (the
"Goals"), all of which Goals shall be attainable, prior to the end of the
Employment Period, with approximately the same degree of probability as the
goals under the Employer's annual incentive plan currently in effect, or the
successor to such plan, in the form most favorable to the Executive that was in
effect at any time during the one-year period prior to the Effective Date (the
"Existing Plan") and in view of the Company's existing and projected financial
and business circumstances applicable at the time. The amount of the bonus (the
"Bonus Amount") that the Executive is eligible to earn under the Bonus Plan
shall be no less than the amount of the Executive's highest maximum potential
award under the Existing Plan at any time during the one-year period prior to
the Effective Date or, if higher, any maximum potential award under the Bonus
Plan or any other bonus or incentive compensation plan in effect after the
Effective Date for the Executive or for any executive of the Company and its
Affiliates of comparable status and position to the Executive (such bonus amount
herein referred to as the "Targeted Bonus"), and if the Goals are not achieved
(and, therefore, the entire Targeted Bonus is not payable), then the Bonus Plan
shall provide for a payment of a Bonus Amount not less than a portion of the
Targeted Bonus reasonably related to that portion of the Goals that were
achieved. Payment of the Bonus Amount (i) shall be in cash, unless otherwise
agreed by the Executive, and (ii) shall not be affected by any circumstance
occurring subsequent to the end of the Employment Period, including termination
of the Executive's employment.
6. Annual Compensation Adjustments. During the Employment Period, the
Board of Directors of the Company (or an appropriate committee thereof) will
consider and appraise, at least annually, the contributions of the Executive to
the Employer, and in accordance with the Company's practice prior to the
Effective Date, due consideration shall be given, at least annually, to the
upward adjustment of the Executive's Annual Base Salary (i) commensurate with
increases generally given to other executives of the Company and its Affiliates
of comparable status and position to the Executive, and (ii) as the scope of the
Company's operations or the Executive's duties expand.
7. Termination During Employment Period.
(a) Right to Terminate. During the Employment Period, (i) the
Company shall be entitled to terminate the Executive's employment (A) for Cause,
(B) by reason of the Executive's disability pursuant to Section 11, or (C) for
any other reason, and (ii) the Executive shall be entitled to terminate the
Executive's employment for any reason. Any such termination shall be subject to
the procedures set forth in Section 12 and shall be subject to any consequences
of such termination set forth in this Agreement. Any termination of the
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Executive's employment during the Employment Period by the Employer shall be
deemed a termination by the Company for purposes of this Agreement.
(b) Termination for Cause or Without Good Reason. If there is a
Covered Termination for Cause or due to the Executive's voluntarily terminating
the Executive's employment other than for Good Reason, then the Executive shall
be entitled to receive only Accrued Benefits.
(c) Termination Giving Rise to a Termination Payment. If there is
a Covered Termination by the Executive for Good Reason, or by the Company other
than by reason of (i) death, (ii) disability pursuant to Section 11, or (iii)
Cause, then the Executive shall be entitled to receive, and the Company shall
promptly pay, Accrued Benefits and, in lieu of further base salary for periods
following the Termination Date, as liquidated damages and additional severance
pay and in consideration of the covenant of the Executive set forth in Section
13(a), the Termination Payment pursuant to Section 8(a).
8. Payments Upon Termination.
(a) Termination Payments.
(i) Subject to the limits set forth in Section 8(a)(ii),
for purposes of this Agreement, the "Termination Payment" shall be an
amount equal to the Annual Cash Compensation multiplied by the number of
years or fractional portion thereof remaining in the Employment Period
determined as of the Termination Date, except that the Termination Payment
shall not be less than the amount of Annual Cash Compensation. The
Termination Payment shall be paid to the Executive in cash equivalent not
later than ten business days after the Termination Date. The Executive
shall not be required to mitigate the amount of the Termination Payment by
securing other employment or otherwise, nor will such Termination Payment
be reduced by reason of the Executive securing other employment or for any
other reason. The Termination Payment shall be in addition to any other
severance payments to which the Executive is entitled under the Company's
severance policies and practices in the form most favorable to the
Executive that were in effect at any time during the one-year period prior
to the Effective Date.
(ii) Notwithstanding any other provision of this Agreement,
if any portion of the Termination Payment or any other payment under this
Agreement, or under any other agreement with or plan of the Company or the
Employer (in the aggregate "Total Payments"), would constitute an "excess
parachute payment," then the Total Payments to be made to the Executive
shall be reduced such that the value of the aggregate Total Payments that
the Executive is entitled to receive shall be One Dollar ($1) less than the
maximum amount which the Executive may receive without becoming subject to
the tax imposed by Section 4999 of the Code (or any successor provision) or
which the Company may pay without loss of deduction under Section 280G(a)
of the Code (or any successor provision). For purposes of this Agreement,
the terms "excess parachute payment" and "parachute payments" shall have
the
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meanings assigned to them in Section 280G of the Code (or any successor
provision), and such "parachute payments" shall be valued as provided
therein. Present value for purposes of this Agreement shall be calculated
in accordance with Section 1274(b)(2) of the Code (or any successor
provision). Within sixty days following delivery of the Notice of
Termination or notice by the Company to the Executive of its belief that
there is a payment or benefit due the Executive which will result in an
excess parachute payment as defined in Section 280G of the Code (or any
successor provision), the Executive and the Company, at the Company's
expense, shall obtain the opinion (which need not be unqualified) of
nationally recognized tax counsel selected by the Company's independent
auditors and acceptable to the Executive in the Executive's sole
discretion, which sets forth (A) the amount of the Base Period Income, (B)
the amount and present value of Total Payments and (C) the amount and
present value of any excess parachute payments without regard to the
limitations of this Section 8(a)(ii). As used in this Section 8(a)(ii), the
term "Base Period Income" means an amount equal to the Executive's
"annualized includible compensation for the base period" as defined in
Section 280G(d)(l) of the Code (or any successor provision). For purposes
of such opinion, the value of any noncash benefits or any deferred payment
or benefit shall be determined by the Company's independent auditors in
accordance with the principles of Sections 280G(d)(3) and (4) of the Code
(or any successor provisions), which determination shall be evidenced in a
certificate of such auditors addressed to the Company and the Executive.
Such opinion shall be dated as of the Termination Date and addressed to the
Company and the Executive and shall be binding upon the Company and the
Executive. If such opinion determines that there would be an excess
parachute payment, then the Termination Payment hereunder or any other
payment determined by such counsel to be includible in Total Payments shall
be reduced or eliminated as specified by the Executive in writing delivered
to the Company within thirty days of the Executive's receipt of such
opinion or, if the Executive falls to so notify the Company, then as the
Company shall reasonably determine, so that under the bases of calculations
set forth in such opinion there will be no excess parachute payment. If
such counsel so requests in connection with the opinion required by this
Section, the Executive and the Company shall obtain, at the Company's
expense, and the counsel may rely on in providing the opinion, the advice
of a firm of recognized executive compensation consultants as to the
reasonableness of any item of compensation to be received by the Executive.
Notwithstanding the foregoing, the provisions of this Section 8(a)(ii),
including the calculations, notices and opinions provided for herein, shall
be based upon the conclusive presumption that the following are reasonable:
(1) the compensation and benefits provided for in Section 5 and (2) any
other compensation, including but not limited to the Accrued Benefits,
earned prior to the Termination Date by the Executive pursuant to the
Company's compensation programs if such payments would have been made in
the future in any event, even though the timing of such payment is
triggered by the Change in Control or the Termination Date. If the
provisions of Sections 280G and 4999 of the Code (or any successor
provisions) are repealed without succession, then this Section 8(a)(ii)
shall be of no further force or effect.
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(b) Additional Benefits. If there is a Covered Termination and
the Executive is entitled to Accrued Benefits and the Termination Payment, then
the Executive shall be entitled to the following additional benefits:
(i) Until the earlier of the end of the Employment Period
or such time as the Executive has obtained new employment and is covered by
benefits which in the aggregate are at least equal in value to the
following benefits, the Executive shall continue to be covered, at the
expense of the Company, by the most favorable life insurance,
hospitalization, medical and dental coverage and other welfare benefits
provided to the Executive and the Executive's family during the one-year
period immediately preceding the Effective Date or at any time thereafter
or, if more favorable to the Executive, coverage as was required hereunder
with respect to the Executive immediately prior to the date Notice of
Termination is given.
(ii) The Executive shall receive, at the expense of the
Company, outplacement services, on an individualized basis at a level of
service commensurate with the Executive's most senior status with the
Company during the one-year period prior to the Effective Date (or, if
higher, at any time after the Effective Date), provided by a nationally
recognized executive placement firm selected by the Company with the
consent of the Executive, which consent will not be unreasonably withheld:
provided that the cost to the Company of such services shall not exceed 15%
of the Executive's Annual Base Salary.
(iii) The Company shall bear up to $10,000 in the aggregate
of fees and expenses of consultants and/or legal or accounting advisors
engaged by the Executive to advise the Executive as to matters relating to
the computation of benefits due and payable under this Section 8.
9. Death.
(a) Except as provided in Section 9(b), in the event of a Covered
Termination due to the Executive's death, the Executive's estate, heirs and
beneficiaries shall receive all the Executive's Accrued Benefits through the
Termination Date.
(b) If the Executive dies after a Notice of Termination is given
(i) by the Company or (ii) by the Executive for Good Reason, then the
Executive's estate, heirs and beneficiaries shall be entitled to the benefits
described in Section 9(a) and, subject to the provisions of this Agreement, to
such Termination Payment to which the Executive would have been entitled had the
Executive lived. In such event, the Termination Date shall be thirty days
following the giving of the Notice of Termination, subject to extension pursuant
to the definition of "Termination Date" in Section 1(p).
10. Retirement. If, during the Employment Period, the Executive and
the Employer shall execute an agreement providing for the early retirement of
the Executive from the Employer, or the Executive shall otherwise give notice
that the Executive is voluntarily choosing to retire early from the Employer,
then the Executive shall receive Accrued Benefits through the Termination Date;
provided, that if the Executive's employment is terminated by the Executive for
Good Reason or by the Company other than by reason of death, disability or
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Cause and the Executive also, in connection with such termination, elects
voluntary early retirement, then the Executive shall also be entitled to receive
a Termination Payment pursuant to Section 8(a).
11. Termination for Disability. If, during the Employment Period, as a
result of the Executive's disability due to physical or mental illness or injury
(regardless of whether such illness or injury is job-related), the Executive
shall have been absent from the Executive's duties hereunder on a full-time
basis for a period of 182 days and, within thirty days after the Company
notifies the Executive in writing that it intends to terminate the Executive's
employment (which notice shall not constitute the Notice of Termination
contemplated below), the Executive shall not have returned to the performance of
the Executive's duties hereunder on a full-time basis, then the Company may
terminate the Executive's employment for purposes of this Agreement pursuant to
a Notice of Termination. If the Executive's employment is terminated on account
of the Executive's disability in accordance with this Section, then the
Executive shall receive Accrued Benefits in accordance with Section 8(a) and
shall remain eligible for all benefits provided by any long term disability
programs of the Employer in effect at the time the Company sends notice to the
Executive of its intent to terminate pursuant to this Section.
12. Termination Notice and Procedure.
(a) Any termination of the Executive's employment during the
Employment Period by the Company or the Executive (other than a termination of
the Executive's employment referenced in the second sentence of the definition
of "Effective Date" in Section 1(j) hereof) shall be communicated by written
Notice of Termination to the Executive, if such Notice is given by the Company,
and to the Company, if such Notice is given by the Executive, all in accordance
with the following procedures and those set forth in Section 22:
(i) If such termination is for disability, Cause or Good
Reason, the Notice of Termination shall indicate in reasonable detail the
facts and circumstances alleged to provide a basis for such termination.
(ii) Any Notice of Termination by the Company shall have
been approved, prior to the giving thereof to the Executive, by a
resolution duly adopted by a majority of the directors of the Company (or
any successor corporation) then in office, a copy of which shall accompany
the Notice.
(iii) If the Notice is given by the Executive for Good
Reason, then the Executive may cease performing the Executive's duties
hereunder on or after the date 15 days after the delivery of Notice of
Termination (unless the Notice of Termination is based upon clause (viii)
of the definition of "Good Reason" in Section 1(l), in which case the
Executive may cease performing his duties at the time the Executive's
employment is terminated) and shall in any event cease employment on the
Termination Date, if any, arising from the delivery of such Notice. If the
Notice is given by the Company, then the Executive may cease performing the
Executive's duties hereunder on the date of receipt of the Notice of
Termination, subject to the Executive's rights hereunder.
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(iv) The recipient of any Notice of Termination shall
personally deliver or mail in accordance with Section 22 written notice of
any dispute relating to such Notice of Termination to the party giving such
Notice within fifteen days after receipt thereof. After the expiration of
such fifteen days, the contents of the Notice of Termination shall become
final and not subject to dispute.
Notwithstanding the foregoing, (A) if the Executive terminates the Executive's
employment after a Change in Control without complying with this Section 12,
then the Executive will be deemed to have voluntarily terminated the Executive's
employment other than for Good Reason and deemed to have delivered a written
Notice of Termination to that effect to the Company as of the date of such
termination and (B) if the Company or the Employer terminates the Executive's
employment after a Change in Control without complying with this Section 12,
then the Company will be deemed to have terminated the Executive's employment
other than by reason of death, disability, or Cause and the Company will be
deemed to have delivered a written Notice of Termination to that effect to the
Executive as of the date of such termination. Under circumstances described in
clause (B) above, the Executive may, but shall not be obligated to, also deliver
a Notice of Termination based upon clause (viii) of the definition of "Good
Reason" in Section 1(l) for the purpose of subjecting such Notice to Section
12(a)(iv).
(b) If a Change in Control occurs and the Executive's employment
with the Employer terminates (whether by the Company, the Executive or
otherwise) within one-year prior to the Change in Control, then the executive
may assert that such termination is a Covered Termination by sending a written
Notice of Termination to the Company at any time prior to the first anniversary
of the Change in Control in accordance with the procedures set forth in this
Section 12(b) and those set forth in Section 22. If the Executive asserts that
the Executive terminated the Executive's employment for Good Reason or that the
Company terminated the Executive's employment other than for disability or
Cause, then the Notice of Termination shall indicate in reasonable detail the
facts and circumstances alleged to provide a basis for such assertions. The
Company shall personally deliver or mail in accordance with Section 22 written
notice of any dispute relating to such Notice of Termination to the Executive
within 15 days after receipt thereof. After the expiration of such 15 days, the
contents of the Notice of Termination shall become final and not subject to
dispute.
13. Further Obligations of the Executive.
(a) Competition. The Executive agrees that, in the event of any
Covered Termination where the Executive is entitled to (and receives) Accrued
Benefits and the Termination Payment, the Executive shall not, for a period of
six months after the Termination Date, without the prior written approval of the
Company's Board of Directors, engage in any Competitive Activity.
(b) Confidentiality. During and following the Executive's
employment by the Employer, the Executive shall hold in confidence and not
directly or indirectly disclose or use or copy or make lists of any confidential
information or proprietary data of the Company (including that of the Employer),
except to the extent authorized in writing by the Board of
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Directors of the Company or required by any court or administrative agency,
other than to an employee of the Company or a person to whom disclosure is
reasonably necessary or appropriate in connection with the performance by the
Executive of duties as an executive of the Company or the Employer. Confidential
information shall not include any information known generally to the public or
any information of a type not otherwise considered confidential by persons
engaged in the same business or a business similar to that of the Company. All
records, files, documents and materials, or copies thereof, relating to the
business of the Company which the Executive shall prepare, or use, or come into
contact with, shall be and remain the sole property of the Company and shall be
promptly returned to the Company upon termination of employment with the
Employer.
14. Expenses and Interest. If, after the Effective Date, (i) a dispute
arises with respect to the enforcement of the Executive's rights under this
Agreement, (ii) any legal or arbitration proceeding shall be brought to enforce
or interpret any provision contained herein or to recover damages for breach
hereof, or (iii) any tax audit or proceeding is commenced that is attributable
in part to the application of Section 4999 of the Code, in any case so long as
the Executive is not acting in bad faith, then the Company shall reimburse the
Executive for any reasonable attorneys' fees and necessary costs and
disbursements incurred as a result of such dispute, legal or arbitration
proceeding or tax audit or proceeding ("Expenses"), and prejudgment interest on
any money judgment or arbitration award obtained by the Executive calculated at
the rate published in The Wall Street Journal, from time to time, as the prime
rate from the date that payments to the Executive should have been made under
this Agreement. Within ten days after the Executive's written request therefor,
the Company shall pay to the Executive, or such other person or entity as the
Executive may designate in writing to the Company, the Executive's reasonable
Expenses in advance of the final disposition or conclusion of any such dispute,
legal or arbitration proceeding.
15. Payment Obligations Absolute. The Company's obligation during and
after the Employment Period to pay the Executive the amounts and to make the
benefit and other arrangements provided herein shall be absolute and
unconditional and shall not be affected by any circumstances, including, without
limitation, any setoff, counterclaim, recoupment, defense or other right which
the Company may have against the Executive or anyone else. Except as provided in
Section 14, all amounts payable by the Company hereunder shall be paid without
notice or demand. Each and every payment made hereunder by the Company shall be
final, and the Company will not seek to recover all or any part of such payment
from the Executive, or from whomsoever may be entitled thereto, for any reason
whatsoever.
16. Successors.
(a) If the Company sells, assigns or transfers all or
substantially all of its business and assets to any Person or if the Company
merges into or consolidates or otherwise combines (where the Company does not
survive such combination) with any Person (any such event, a "Sale of
Business"), then the Company shall assign all of its right, title and interest
in this Agreement as of the date of such event to such Person, and the Company
shall cause such Person, by written agreement in form and substance reasonably
satisfactory to the Executive, to expressly assume and agree to perform from and
after the date of such assignment all of the terms, conditions and provisions
imposed by this Agreement upon the Company. Failure of the Company to obtain
such agreement prior to the effective
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date of such Sale of Business shall be a breach of this Agreement constituting
"Good Reason" hereunder, except that for purposes of implementing the foregoing,
the date upon which such Sale of Business becomes effective shall be deemed the
Termination Date. In case of such assignment by the Company and of assumption
and agreement by such Person, as used in this Agreement, "Company" shall
thereafter mean such Person which executes and delivers the agreement provided
for in this Section 16 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law, and this Agreement shall inure
to the benefit of, and be enforceable by, such Person. The Executive shall, in
the Executive's discretion, be entitled to proceed against any or all of such
Persons, any Person which theretofore was such a successor to the Company (as
defined in the first paragraph of this Agreement) and the Company (as so
defined) in any action to enforce any rights of the Executive hereunder. Except
as provided in this Subsection, this Agreement shall not be assignable by the
Company. This Agreement shall not be terminated by the voluntary or involuntary
dissolution of the Company.
(b) This Agreement and all rights of the Executive shall inure to
the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, heirs and beneficiaries. All amounts
payable to the Executive under Sections 7, 8, 9, 10, 11 and 14 if the Executive
had lived shall be paid, in the event of the Executive's death, to the
Executive's estate, heirs and representatives; provided, however, that the
foregoing shall not be construed to modify any terms of any benefit plan of the
Employer, as such terms are in effect on the Effective Date, that expressly
govern benefits under such plan in the event of the Executive's death.
17. Severability. The provisions of this Agreement shall be regarded
as divisible, and if any of said provisions or any part hereof are declared
invalid or unenforceable by a court of competent jurisdiction, then the validity
and enforceability of the remainder of such provisions or parts hereof and the
applicability thereof shall not be affected thereby.
18. Amendment. This Agreement may not be amended or modified at any
time except by written instrument executed by the Company and the Executive.
19. Withholding. The Employer shall be entitled to withhold from
amounts to be paid to the Executive hereunder any federal, state or local
withholding or other taxes or charges which it is from time to time required to
withhold; provided, that the amount so withheld shall not exceed the minimum
amount required to be withheld by law. The Employer shall be entitled to rely on
an opinion of nationally recognized tax counsel if any question as to the amount
or requirement of any such withholding shall arise.
20. Certain Rules of Construction. No party shall be considered as
being responsible for the drafting of this Agreement for the purpose of applying
any rule construing ambiguities against the drafter or otherwise. No draft of
this Agreement shall be taken into account in construing this Agreement. Any
provision of this Agreement which requires an agreement in writing shall be
deemed to require that the writing in question be signed by the Executive and an
authorized representative of the Company.
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21. Governing Law; Resolution of Disputes.
(a) This Agreement and the rights and obligations hereunder shall
be governed by and construed in accordance with the internal laws of the State
of Wisconsin (excluding any choice of law rules that may direct the application
of the laws of another jurisdiction) except that Section 21(b) shall be
construed in accordance with the Federal Arbitration Act if arbitration is
chosen by the Executive as the method of dispute resolution.
(b) Any dispute arising out of this Agreement shall, at the
Executive's election, be determined by arbitration under the rules of the
American Arbitration Association then in effect (but subject to any evidentiary
standards set forth in this Agreement), in which case both parties shall be
bound by the arbitration award, or by litigation. Whether the dispute is to be
settled by arbitration or litigation, the venue for the arbitration or
litigation shall be Milwaukee, Wisconsin or, at the Executive's election, if the
Executive is no longer residing or working in the Milwaukee, Wisconsin
metropolitan area, in the judicial district encompassing the city in which the
Executive resides; provided, that, if the Executive is not then residing in the
United States, the election of the Executive with respect to such venue shall be
either Milwaukee, Wisconsin or in the judicial district encompassing that city
in the United States among the thirty cities having the largest population (as
determined by the most recent United States Census data available at the
Termination Date) that is closest to the Executive's residence. The parties
consent to personal jurisdiction in each trial court in the selected venue
having subject matter jurisdiction notwithstanding their residence or situs, and
each party irrevocably consents to service of process in the manner provided
hereunder for the giving of notices.
22. Notice. Notices given pursuant to this Agreement shall be in
writing and, except as otherwise provided by Section 12(a)(iii), shall be deemed
given when actually received by the Executive or actually received by the
Company's Secretary or any officer of the Company other than the Executive. If
mailed, such notices shall be mailed by United States registered or certified
mail, return receipt requested, addressee only, postage prepaid, if to the
Company, Attention: Secretary (or, if the Executive is then Secretary, to the
Chief Executive Officer), 00000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx Xxxxxxx, Xxxxxxxxx
00000, or if to the Executive, at the address set forth below the Executive's
signature to this Agreement, or to such other address as the party to be
notified shall have theretofore given to the other party in writing.
(a) Additional Payment. (a) If, notwithstanding the provisions of
Section 8a(ii), but subject to subsection (b), it is ultimately determined by a
court or pursuant to a final determination by the Internal Revenue Service that
any portion of Total Payments is subject to the tax (the "Excise Tax") imposed
by Section 4999 of the Code (or any successor provision), then the Company shall
pay to the Executive an additional amount (the "Gross-Up Payment") such that the
net amount retained by the Executive after deduction of any Excise Tax and any
interest charges or penalties in respect of the imposition of such Excise Tax
(but not any federal, state or local income tax) on the Total Payments, and any
federal, state and local income tax and Excise Tax upon the payment provided for
by this Section 23 shall be equal to the Total Payments. For purposes of
determining the amount of the Gross-Up Payment, the Executive shall be deemed to
pay federal income taxes at the highest marginal rate of federal
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income taxation in the calendar year in which the Gross-Up Payment is to be made
and state and local income taxes at the highest marginal rates of taxation in
the state and locality of the Executive's domicile for income tax purposes on
the date the Gross-Up Payment is made, net of the maximum reduction in federal
income taxes that could be obtained from deduction of such state and local
taxes.
(b) If legislation is enacted that would require the Company's
shareholders to approve this Agreement, prior to a Change in Control, due solely
to the provision contained in subsection (a) of this Section 23, then
(i) from and after such time as shareholder approval would
be required, until shareholder approval is obtained as required by such
legislation, subsection (a) shall be of no force and effect;
(ii) if the Company seeks shareholder approval of any other
agreement providing similar benefits to any other executive of the Company,
then the Company shall seek shareholder approval of this Agreement at the
same shareholders' meeting or meetings at which the shareholders consider
any such other agreement; and
(iii) the Company and the Executive shall use their best
efforts to consider and agree in writing upon an amendment to this Section
23 such that, as amended, this Subsection would provide the Executive with
the benefits intended to be afforded to the Executive by subsection (a)
without requiring shareholder approval.
23. No Waiver. The Executive's or the Company's failure to insist upon
strict compliance with any provision of this Agreement or the failure to assert
any right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason,
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
24. Headings. The headings herein contained are for reference only and
shall not affect the meaning or interpretation of any provision of this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
STATE FINANCIAL SERVICES CORPORATION
By:_________________________________
Name:
Title:
EXECUTIVE
______________________________(SEAL)
Name:
