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EXHIBIT 10.2
XXXXX X. XXXXXXXXX
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is effective as of ________________, 1998
among St. Xxxxxxx Capital Corporation (the "Company"), a Wisconsin-chartered
corporation, St. Xxxxxxx Bank, F.S.B. (the "Bank"), a federally-chartered
savings and loan and wholly-owned subsidiary of the Company, their respective
successors and assigns, and Xxxxx X. Xxxxxxxxx (the "Executive").
RECITALS
WHEREAS, Executive has extensive background, knowledge and experience
in the savings and loan industry, acquired as an employee of Reliance Savings
Bank ("Reliance"); and
WHEREAS, that background, knowledge and experience are expected to
substantially benefit the Bank and Company (sometimes collectively referred to
herein as the "Employers")and to assist in the integration of the customers and
operations of Reliance with those of the Employers following the combination of
those respective organizations; and
WHEREAS, the parties are mutually desirous of entering into this
Agreement setting forth the terms and conditions for the employment
relationship between the Employers and Executive; and
WHEREAS, the respective Boards of Directors of the Employers have
approved and authorized their entry into this Agreement with Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below:
1. Employment. The Bank and Company shall employ Executive, and
Executive shall serve the Bank and Company, on the terms, conditions set forth
herein and for the period provided in Section 2.
2. Term of Employment. The period of Executive's employment under
this Agreement shall begin as of ________________, 1998 and expire on the third
anniversary of the date immediately preceding such date, unless sooner
terminated as provided herein; provided that, on the date immediately preceding
the third anniversary of the Commencement Date and on each subsequent date
preceding an anniversary of the Commencement Date, the term of employment may
be extended by action of the Bank's and Company's Boards of Directors,
following review by said Boards of the Executive's performance under this
Agreement, to extend the remaining term of employment for an additional year.
The Board of Directors or Executive shall
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each provide the other with at least ninety (90) days' advance written notice
of any decision on their respective parts not to extend the Agreement on any
date immediately preceding an anniversary of the Commencement Date. The term
of employment as in effect from time to time hereunder shall be referred to as
the "Employment Term".
3. Positions and Duties. Executive shall serve the Bank and Company,
respectively, as Manager of the Bank's office at 0000 Xxxxx 00xx Xxxxxx (her
"Corporate Position"), reporting within the Bank's normal retail operating
structure and rendering executive services of the type customarily performed by
persons serving in similar capacities at other institutions. Executive shall
also provide such services and exercise such responsibilities as are
appropriate to her position and as are from time to time assigned within the
Bank's and Company's normal operating structures and as determined by the
Bank's and Company's Boards of Directors to be necessary to their operations
and in accordance with their bylaws.
4. Compensation. As compensation for services provided pursuant to
this Agreement, Executive shall receive from the Bank the compensation and
benefits set forth below:
(i) Base Salary. During the Employment Term, Executive
shall receive from Employers a base salary ("Base Salary") in such
amount as may from time to time be approved by their Boards of
Directors. The Base Salary shall at no time be less than $65,600 per
annum, payable by the Bank and Company in such proportion as is
determined by their Boards of Directors. The Base Salary may be
increased from time to time as determined by the Employers' Boards of
Directors, provided that no such increase in Base Salary or other
compensation shall in any way limit or reduce any other obligation of
the Employers under this Agreement. Once established at a specified
annual rate, Executive's Base Salary shall not thereafter be reduced
except as part of a general pro-rata reduction in compensation
applicable to all Executive Officers; provided, however, that no such
reduction shall be permitted following a "change in control" as
defined herein. Executive's Base Salary and other compensation shall
be paid in accordance with the Employers' regular payroll practices as
from time to time in effect.
(ii) Bonus and Incentive Plans. Executive shall be
entitled, during the Employment Term, to participate in the St.
Xxxxxxx Bank Employee Bonus Plan (which, as currently in effect,
provides a bonus payment equal to 3.5% of the employee's compensation
if the Bank achieves certain pre-established net income targets) and
in the Achievement Incentive Motivation, or A.I.M., program, which
allows participating employees to earn commission payments based on
the levels of sales of certain specified individual loan,
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deposit and annuity products. For purposes of calculations of
earnings under the A.I.M., Executive shall be deemed to have a base
salary of $41,000 per annum and shall receive payments from the A.I.M.
program to the extent that earnings under the A.I.M., plus $41,000,
exceed Executive's actual Base Salary paid pursuant to Section 4(i).
The Employers shall not make any changes in said plans which would
adversely affect Executive's rights or benefits thereunder, unless
such change is applicable to all participating employees of the
Employers and does not result in a proportionately greater adverse
change in the rights and benefits of Executive as compared with such
other employees.
(iii) Other Benefits. During the Employment Term, Employers
shall provide to Executive all other benefits of employment (or, with
Executive's consent, equivalent benefits) generally made available to
comparably situated employees. Such benefits shall include
participation by Executive in any group health, life, disability, or
similar insurance program and in other applicable employee benefit
plans; provided that Executive shall be allowed to make alternative
health insurance arrangements for which Employers will assist in the
deferment of costs up to the cost of health insurance coverage for
their other employers.
Executive shall receive vacation, sick time, personal days and other
perquisites pursuant to Employers' policies as in effect from time to time.
Employers shall also reimburse Executive or otherwise provide for or pay all
reasonable expenses incurred by Executive in furtherance of or in connection
with the business of Employers, including travel expenses and the cost of
membership in the Financial Managers Association, all subject to such
reasonable documentation and other limitations as may be imposed by the Boards
of Directors of the Employers.
Nothing contained herein shall be construed as granting Executive the
right to continue in any benefit plan or program, or to receive any other
perquisite of employment provided under this subsection 4(iii) following
termination or discontinuance of such plan, program or perquisite by the Board
(except to the extent Executive had previously earned or accumulated vested
rights therein).
5. Termination Other Than Following a Change-In-Control. This
Agreement may be terminated, subject to payment of the compensation and other
benefits described below, upon occurrence of any of the events described
herein. In case of such termination, the date on which Executive ceases to be
employed under this Agreement, after giving effect to any prior notice
requirement, is referred to as the "Termination Date".
(i) Death, Retirement. This Agreement shall terminate
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at the death or retirement of Executive. As used herein, the term
"retirement" shall mean Executive's retirement in accordance with and
pursuant to any generally applicable retirement plan of the Employers
or in accordance with any retirement arrangement established for
Executive with her consent.
If termination occurs for such reason, no additional
compensation shall be payable to Executive under this Agreement except
as specifically provided herein. Notwithstanding anything to the
contrary contained herein, Executive shall receive all compensation
and other benefits to which she was entitled under Section 4 through
the Termination Date and, in addition, shall receive all other
benefits available to her under the Bank's benefit plans and programs
to which she was entitled by reason of employment through the
Termination Date.
(ii) Disability. This Agreement shall terminate upon the
disability of Executive. As used in this Agreement, "disability"
shall mean Executive's inability, as the result of physical or mental
incapacity, to substantially perform her employment duties for a
period of 90 consecutive days. Any question as to the existence of
Executive's disability upon which Executive and Employers cannot agree
shall be determined by a qualified independent physician mutually
agreeable to Executive and Employers or, if the parties are unable to
agree upon a physician within ten (10) days after notice from either
to the other suggesting a physician, by a physician designated by the
then president of the medical society for the county in which
Executive maintains her principal residence. The costs of any such
medical examination shall be borne by the Employers. If Executive is
terminated due to disability, she shall be paid 100% of her Base
Salary at the rate in effect at the time notice of termination is
given for one year and thereafter, for any remainder of the Employment
Term, an annual amount equal to 75% of such Base Salary, such amounts
to be paid in substantially equal monthly installments and offset by
any monthly payments actually received by Executive during the payment
period from (i) any disability plans provided by the Employers, and/or
(ii) any governmental social security or workers compensation program.
If termination occurs for such reason, no additional
compensation shall be payable to Executive except as specifically
provided herein. Notwithstanding anything to the contrary contained
herein, Executive shall receive all compensation and other benefits to
which she was entitled under Section 4 through the Termination Date
and, in addition, shall receive all other benefits under the
Employers' benefit plans and programs to which she was entitled by
reason of employment through the Termination Date.
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(iii) Cause. Employers may terminate Executive's employment
under this Agreement for cause at any time, and thereafter their
obligations under this Agreement shall cease and terminate.
Notwithstanding anything to the contrary contained herein, Executive
shall receive all compensation and other benefits in which she was
vested or to which she was otherwise entitled under Section 4, and the
plans and programs provided therein, by reason of employment through
the Termination Date.
For purposes of this Agreement, "Cause" shall mean:
(A) The intentional failure by Executive to substantially
perform assigned duties (appropriate to her position
and level of compensation) with the Bank (other than
any such failure resulting from the Executive's
incapacity due to physical or mental illness) after a
written demand for substantial performance is
delivered to Executive by the Board, which demand
specifically identifies the manner in which the Board
believes Executive has not substantially performed
her duties, advises Executive of what steps must be
taken to achieve substantial performance, and allows
Executive Sixty (60) days in which to demonstrate
such performance;
(B) Any willful act of misconduct by Executive;
(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 United
States;
(D) A criminal conviction of Executive for the commission
of any felony;
(E) A breach of fiduciary duty involving personal profit;
(F) A willful violation of any law, rule or regulation
(other than a traffic violation or similar offenses)
or final cease and desist order; or
(G) Personal dishonesty or material breach of any
provision of this Agreement.
For purposes of this Subsection (5)(iii), no act, or failure to act,
on Executive's part shall be deemed "willful" unless done, or omitted
to be done, by Executive not in good faith and without reasonable
belief that the action or omission was in the best interest of the
Employers.
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(iv) Voluntary Termination by Executive. Executive may
voluntarily terminate her employment under this Agreement at any time
by giving at least thirty (30) days prior written notice to Employers.
In such event, Executive shall receive all compensation and other
benefits in which she was vested or to which she was otherwise
entitled under Section 4 through the date specified in such notice
(the "Termination Date"), in addition to all other benefits available
to her under benefit plans and programs to which she was entitled by
reason of employment through the Termination Date.
(v) Suspension or Termination Required by the OTS
(A) If Executive is suspended and/or temporarily
prohibited from participating in the conduct of the
Employers' affairs by a notice served under section
8(e)(3), or section 8(g)(1), of the Federal Deposit
Insurance Act [12 U.S.C. Section 1818(e)(3) and
(g)(1)], the Employers' obligations under the
Agreement shall be suspended as of the date of
service of the notice unless stayed by appropriate
proceedings. If the charges in the notice are
dismissed, the Employers shall (i) pay Executive all
of the compensation withheld while their obligations
under this Agreement were suspended, and (ii)
reinstate such obligations as were suspended.
(B) If Executive is removed and/or permanently prohibited
from participating in the conduct of the Employers'
affairs by an order issued under section 8(e)(4) or
section 8(g)(1) of the Federal Deposit Insurance Act
[12 U.S.C. Section 1818(e)(4) or (g)(1)], the
obligations of the Employers under the Agreement
shall terminate as of the effective date of the
order, but vested rights of the contracting parties
shall not be affected.
(C) If the Bank is in default as defined in section
3(x)(1) of the Federal Deposit Insurance Act [12
U.S.C. 1813 (x)(1)], all obligations under the
Agreement shall terminate as of the date of default,
but this paragraph shall not affect any vested rights
of the Executive.
(D) All obligations under the Agreement shall be
terminated, except to the extent determined that
continuation of the contract is necessary for the
Employers' continued operations (i) by the Director
of the OTS, or her or her designee at the time the
FDIC or Resolution Trust Corporation ("RTC") enters
into an agreement to provide assistance to or on
behalf of the Employers under the authority
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contained in section 13(c) of the Federal Deposit
Insurance Act; or (ii) by the Director of the OTS, or
her or her designee, at the time it approves a
supervisory merger to resolve problems related to
operation of the Employers or when the Employers are
determined by the Director of 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.
(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 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) Other Termination. If this Agreement is terminated (1)
by the Employers other than for cause, death, disability or retirement
(and other than following a change in control as defined in Section
6), or (2) by Executive due to a failure by Employers to comply with
any material provision of this Agreement, which failure has not been
cured within thirty (30) days after notice of such non-compliance has
been given by Executive to Employers; then following the Termination
Date:
(A) In lieu of any further salary payments to Executive
subsequent to the Termination Date, Executive shall
receive Severance Pay for the remainder of the
Employment Term in accordance with the Employers'
normal payroll practices, beginning with the first
pay date following the Termination Date. The monthly
rate of Severance Pay shall be the monthly Base
Salary in effect for Executive plus one-twelfth of
the total bonus and incentive compensation paid to or
vested in Executive on the basis of her most recently
completed calendar year of employment.
(B) Employers shall maintain and provide for the period
during which Severance Payments are to be made and
ending at the earlier of (i) the expiration of such
period, or (ii) the date of the Executive's full-time
employment by another employer (provided that the
Executive is entitled under the terms of such
employment to benefits substantially similar to those
described in this subparagraph (B)), at no
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cost to the Executive, the Executive's continued
participation in all group insurance, life insurance,
health and accident, disability and other employee
benefit plans, programs and arrangements in which
Executive was entitled to participate immediately
prior to the Termination Date (other than retirement
plans, deferred compensation, or stock compensation
plans of the Employers), provided that in the event
Executive's participation in any plan, program or
arrangement as provided in this subparagraph (B) is
barred, or during such period any such plan, program
or arrangement is discontinued or the benefits
thereunder are materially reduced, the Employers shall
arrange to provide the Executive with benefits
substantially similar to those which the Executive was
entitled to receive under such plans, programs and
arrangements immediately prior to the Termination
Date.
(C) In addition to such Severance Pay and continued
benefits, Executive shall receive all other
compensation and benefits in which she was vested or
to which she was otherwise entitled under Section 4
and the plans and programs provided therein by reason
of employment through the Termination Date.
6. Termination Following a Change in Control.
(i) Definition "Change in Control". For purposes of this
Agreement, a "change in control" shall mean any change in control with
respect to the Bank or Company that would be required to be reported
in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934, as amended ("Exchange Act")
or any successor thereto; provided that, without limitation, a change
in control shall be deemed to have occurred if (i) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act) is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities representing 25%
or more of the combined voting power of the Bank's or Company's then
outstanding securities; or (ii) during any period of two consecutive
years, individuals who at the beginning of such period constituted the
Board of Directors of the Bank or Company cease for any reason to
constitute at least a majority thereof unless the election, or the
nomination for election by stockholders, of each new director was
approved by a vote of at least two-thirds of the directors then still
in office who were directors at the beginning of the period.
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(ii) Good Reason for Executive Termination. The Executive
may terminate her employment under this Agreement for "good reason" by
giving at least thirty (30) days prior written notice to the Bank at
any time within twenty-four (24) months of the effective date of a
change in control. Occurrence of any of the following events shall
constitute good reason:
(A) Without the Executive's express written consent,
assignment by the Employers of any duties which are
materially inconsistent with Executive's positions,
duties, responsibilities and status with the
Employers immediately prior to a change in control,
or a material change in the Executive's reporting
responsibilities, titles or offices as in effect
immediately prior to such change in control, or any
removal of the Executive from or any failure to
re-elect the Executive to all or any portion of her
Corporate Position, except in connection with a
termination of Executive's employment for cause,
disability, retirement or death (or by the Executive
other than for good reason as defined in this section
6(B)).
(B) Without the Executive's express written consent, a
reduction by the Employers in the Executive's Base
Salary as in effect on the date of the change in
control or as the same may have been increased from
time to time thereafter;
(C) The principal executive offices of either of the
Employers are relocated outside of the Milwaukee,
Wisconsin metropolitan area or, without the
Executive's express written consent, the Employers
require the Executive to be based anywhere other than
an area in which the Employers principal executives
offices are located, except for required travel on
business of the Employers to an extent substantially
consistent with the Executive's present business
travel obligations;
(D) Without Executive's express written consent, the
Employers fail or refuse to continue Executive's
participation in incentive compensation and stock
incentive programs comparable to either (1) those in
effect and in which Executive participated prior to
the change in control or (2) those subsequently in
effect for the comparably situated employees of any
acquiring company effecting the change in control;
(E) Without Executive's express written consent,
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Employers fail to provide the Executive with the same
fringe benefits that were provided to Executive
immediately prior to a change in control, or with a
package of fringe benefits (including paid vacations)
that, though one or more of such benefits may vary
from those in effect immediately prior to such change
in control, is substantially comparable in all
material respects to such fringe benefits taken as a
whole;
(F) Any purported termination of the Executive's
employment for cause, disability or retirement which
is not effected in accordance with the notice
requirements applicable under this Agreement; or
(G) The failure by either of the Employers to obtain the
assumption of, or an agreement to perform this
Agreement by any successor as contemplated in Section
7(i) hereof;
(iii) Benefits Upon Termination by Executive After a "Change in
Control". If this Agreement is terminated by Executive for good reason
following a change in control, then following the Termination Date:
(A) In lieu of any further salary payments to Executive
subsequent to the Termination Date, Executive shall
receive Severance Pay for the longer of (i) a twelve
(12) month period, or (ii) the remaining unexpired
term of the Agreement as in effect immediately prior
to the Termination Date. Payments shall be made in
accordance with the Employers' normal payroll
practices, beginning with the first pay date
following the Termination Date. The monthly rate of
Severance Pay shall be the average monthly Base
Salary received by Executive (based on her highest
rate of Base Salary within the 3 years preceding her
Termination Date) plus one-twelfth of the total bonus
and incentive compensation paid to or vested in
Executive on the basis of her most recently completed
calendar year of employment.
(B) Employers shall maintain and provide for the period
during which Severance Payments are to be made and
ending at the earlier of (i) the expiration of such
period, or (ii) the date of the Executive's full-time
employment by another employer (provided that the
Executive is entitled under the terms of such other
employment to benefits substantially similar to those
described in this subparagraph (B)), at no cost to
the Executive, the Executive's continued
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participation in all group insurance, life insurance,
health and accident, disability and other employee
benefit plans, programs and arrangements in which the
Executive was entitled to participate immediately
prior to the Termination Date (other than retirement
and deferred compensation plans and individual
insurance policies covered under subsection 6(C) or
stock compensation plans of the Employers), provided
that in the event Executive's participation in any
plan, program or arrangement as provided in this
subparagraph (B) is barred, or during such period any
such plan, program or arrangement is discontinued or
the benefits thereunder are materially reduced, the
Employers shall arrange to provide Executive with
benefits substantially similar to those Executive was
entitled to receive under such plans, programs and
arrangements immediately prior to the Termination
Date.
(C) Executive shall also receive all other compensation
and benefits in which she was vested or to which she
was otherwise entitled under section 4 and the plans
and programs provided therein by reason of employment
through the Termination Date. In addition to
benefits to which Executive is entitled under
retirement and deferred compensation plans and
individual insurance policies maintained by Employers
(hereinafter collectively referred to as "Plan"),
Executive shall receive as additional severance
benefits a benefit paid under this Agreement, which
benefit shall be determined in accordance with and
paid under this Agreement, but in the form and at the
times provided in the Plan. Such benefits shall be
determined as if Executive were fully vested under
the Plan and had accumulated (after any termination
under this Agreement) the additional years of credit
service under the applicable Plan that she would have
received had she continued in the employment of the
Bank for the period during which Severance Payments
are to be made and at the annual compensation level
represented by such payments. Such Severance Payment
level shall be deemed to represent the compensation
received by Executive during each such additional
year for purposes of determining her additional
benefits under this Subsection 6(C).
(iv) Limitation of Benefits under Certain Circumstances. If the
severance benefits payable to Executive under this Section 6 ("Severance
Benefits"), or any other payments or benefits received or to be received by
Executive from Employers (whether payable
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pursuant to the terms of this Agreement, any other plan, agreement or
arrangement with the Employers or any corporation affiliated with the Employers
("Affiliate") within the meaning of Section 1504 of the Internal Revenue Code
of 1954, as amended (the "Code")), in the opinion of tax counsel selected by
the Employers's independent auditors and acceptable to Executive, constitute
"parachute payments" within the meaning of Section 280G(b)(2) of the Code, and
the present value of such "parachute payments" equals or exceeds three times
the average of the annual compensation payable to Executive by the Employers
(or an Affiliate) and includable in Executive's gross income for federal income
tax purposes for the five (5) calendar years preceding the year in which a
change in ownership or control of the Employers occurred ("Base Amount"), such
Severance Benefits shall be reduced, in a manner determined by Executive, to an
amount the present value of which (when combined with the present value of any
other payments or benefits otherwise received or to be received by Executive
from the Employers (or an Affiliate) that are deemed "parachute payments") is
equal to 2.99 times the Base Amount, notwithstanding any other provision to the
contrary in this Agreement. The Severance Benefits shall not be reduced if (A)
Executive shall have effectively waived her receipt or enjoyment of any such
payment or benefit which triggered the applicability of this Section 6(iv), or
(B) in the opinion of such tax counsel, the Severance Benefits (in its full
amount or as partially reduced, as the case may be) plus all other payments or
benefits which constitute "parachute payments" within the meaning of Section
280G(b)(2) of the Code are reasonable compensation for services actually
rendered, within the meaning of Section 280G (b)(4) of the code, and such
payments are deductible by the Employers. The Base Amount shall include every
type and form of compensation includable in Executive's gross income in respect
of her employment by the Employers (or an Affiliate), except to the extent
otherwise provided in temporary or final regulations promulgated under Section
280G (b) of the Code. For purposes of this Section 6(iv), a "change in
ownership or control" shall have the meaning set forth in Section 280G(b) of
the Code and any temporary or final regulations promulgated thereunder. The
present value of any non-cash benefit or any deferred cash payment shall be
determined by the Employers' independent auditors in accordance with the
principles of Sections 280G (b)(3) and (4) of the Code.
In the event that Employers and/or the Executive do not agree with the
opinion of such counsel, (A) Employers shall pay to the Executive the maximum
amount of payments and benefits pursuant to Section 6, as selected by the
Executive, which in the opinion of counsel may be made without a substantial
risk that such payments and benefits will be treated as non-deductible to the
Employers and subject to the excise tax imposed under Section 4999 of the Code
and (B) Employers may request, and Executive shall have the right to demand
the Employers request, a ruling from the IRS as to whether the disputed
payments and benefits pursuant
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to Section 6 hereof have such consequences. Any such request for a ruling from
the IRS shall be promptly prepared and filed by the Employers, but in no event
later than thirty (30) days from the date of the opinion of counsel referred to
above, and shall be subject to Executive's approval prior to filing, which
shall not be unreasonably withheld. Employers and Executive agree to be bound
by any ruling received from the IRS and to make appropriate payments to each
other to reflect any such rulings, together with interest at the applicable
federal rate provided for in Section 7872(f)(2) of the Code. Nothing contained
herein shall result in a reduction of any payments or benefits to which the
Executive may be entitled upon termination of employment under any
circumstances other than as specified herein or a reduction in payments and
benefits other than those provided in this Section 6.
In the event that Section 280G, or any successor statute, is repealed,
this Section 6 shall cease to be effective on the effective date of such
repeal. The parties to this Agreement recognize that final regulations under
Section 280G of the Code may affect the amounts that may be paid under this
Agreement and agreed that, upon issuance of such final regulations this
Agreement may be modified as in good faith deemed necessary in light of the
provisions of such regulations to achieve the purposes of this Agreement, and
that consent to such modifications shall not be unreasonably withheld.
7. General Provisions.
(i) Successors; Binding Agreement.
(A) Employers will require any successor (whether direct
or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the
business and/or assets of the Employers ("successor
organization") to expressly assume and agree to
perform this Agreement in the same manner and to the
same extent that Employers would have been required
to perform if no such succession had taken place or
to re-execute this Agreement as provided pursuant to
section 6(ii)(G). If such succession is the result
of a "change in control" as defined herein, such
assumption shall specifically preserve to Executive,
for the greater of twelve (12) months or the then
remaining term of this Agreement, the same rights and
remedies (recognizing them as being available and
applicable as the result of the "change in control"
effectuating said succession) as provided under this
Agreement upon a "change in control".
As used in this Agreement "Employers" shall
mean the Employers as hereinbefore defined (and any
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successor to their business and/or assets) which
executes and delivers the agreement provided for in
this Section 7 or which otherwise becomes bound by the
terms and provisions of this Agreement by operation of
this Agreement or law. Failure of the Employers to
obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this
Agreement and shall entitle Executive, if she elects
to terminate this Agreement, to compensation from the
Employers in the same amount and on the same terms as
she would be entitled to under this Agreement if she
terminated her employment under Section 6. For
purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be
deemed the Termination Date.
(B) No right or interest to or in any payments or
benefits under this agreement shall be assignable or
transferable in any respect by the Executive, nor
shall any such payment, right or interest be subject
to seizure, attachment or creditor's process for
payment of any debts, judgments, or obligations of
Executive.
(C) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by (1) Executive and
her heirs, beneficiaries and personal
representatives, and (2) the Employers and any
successor organization.
(ii) Noncompetition Provision. Executive acknowledges that
the development of personal contacts and relationships is an essential
element of the savings and loan business, that Employers has invested
considerable time and money in her development of such contacts and
relationships, that Employers could suffer irreparable harm if she
were to leave employment and solicit the business of the Employers
customers, and that it is reasonable to protect the Employers against
competitive activities by Executive. Executive covenants and agrees,
in recognition of the foregoing and in consideration of the mutual
promises contained herein, that in the event of a voluntary
termination of employment by Executive pursuant to Section 5(iv), or
upon expiration of this Agreement as a result of Executive's election
(but not as the result of an election by Employers) not to renew
employment at expiration of the Employment Term, Executive shall not
accept employment with any Significant Competitor of Bank for a period
of twelve (12) months following such termination. For purposes of
this Agreement, the term Significant Competitor means any financial
institution including, but not limited to, any commercial bank,
savings bank, savings and loan association, credit
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union, or mortgage banking corporation which, at the time of
termination of Executive's employment, or during the period of this
covenant not to compete, has a home, branch or other office in
Milwaukee County or which has, during the twelve (12) months preceding
Executive's termination, originated, or which during the period of
this covenant not to compete originates, more than $50,000,000 in
commercial or mortgage loans secured by real property in any such
county.
Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of the Employers and are
reasonably limited as to (i) the scope of activities affected, (ii)
their duration and geographic scope, and (iii) their effect on
Executive and the public. In the event Executive violates the
non-competition provisions set forth herein, the Employers shall be
entitled, in addition to its other legal remedies, to enjoin the
employment of Executive with any Significant Competitor for the period
set forth herein. If Executive violates this covenant and the
Employers bring legal action for injunctive or other relief, the
Employers shall not, as a result of the time involved in obtaining
such relief, be deprived of the benefit of the full period of the
restrictive covenant. Accordingly, the covenant shall be deemed to
have the duration specified herein, computed from the date such relief
is granted, but reduced by any period between commencement of the
period and the date of the first violation.
(iii) Notice. For purposes of this Agreement, notices and
all other communications provided for in the Agreement shall be in
writing and shall be deemed to have been duly given when delivered or
mailed by United States registered mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Bank or Company:
St. Xxxxxxx Capital Corporation
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Secretary
If to the Executive:
Xx. Xxxxx X. Xxxxxxxxx
----------------------------
----------------------------
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.
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(iv) Expenses. If any legal proceeding is necessary to
enforce or interpret the terms of this Agreement (or to recover
damages for breach of it) in the absence of a change in control, the
prevailing party shall be entitled to recover from the other party
reasonable attorneys' fees and necessary costs and disbursements
incurred in such litigation, in addition to any other relief to which
such prevailing party may be entitled.
Notwithstanding the foregoing, in the event of a legal
proceeding to enforce or interpret the terms of this Agreement
following a change in control or a re-execution of this Agreement
pursuant to section 6(ii)(G), the only recoverable costs shall be
those which Executive shall be entitled to recover from the Bank (i.e.
reasonable attorneys' fees and necessary costs and disbursements
incurred in such litigation), which fees shall be recoverable only if
the Executive is the prevailing party. Recovery of attorneys' fees
and costs as provided herein following a change in control or
re-execution shall be in addition to any other relief to which
Executive may be entitled.
(v) Withholding. Employers shall be entitled to withhold
from amounts to be paid to Executive under this Agreement any federal,
state, or local withholding or other taxes or charges which it is from
time to time required to withhold. Employers shall be entitled to
rely on an opinion of counsel if any question as to the amount or
requirement of any such withholding shall arise.
(vi) Notice of Termination. Any purported termination by the
Employers under Sections 5(i), (ii), (iii) or (iv), or by Executive
under Sections 5(vi) or 6(ii) shall be communicated by written "Notice
of Termination" to the other party. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates
the specific termination provision in this Agreement relied upon, (ii)
sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination under the provision so indicated,
(iii) specifies a Date of Termination, which shall be not less than
thirty (30) nor more than ninety (90) days after such Notice of
Termination is given, except in the case of termination of Executive's
employment for Cause; and (iv) is given in the manner specified in
Section 7(iii) of this Agreement.
(vii) Miscellaneous. No provision of this Agreement may be
amended, waived or discharged unless such amendment, waiver or
discharge is agreed to in writing and signed by Executive and such
officers of the Employers as may be specifically designated by the
Board. No waiver by either party hereto at any time of any breach by
the other party
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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 and it is agreed that execution of this
Agreement shall result in its superseding and extinguishing any rights
of Executive under any other employment agreement previously in effect
between himself, the Employers, or any of their affiliates. The
validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Wisconsin.
(viii) Mitigation; Exclusivity of Benefits. The Executive
shall not be required to mitigate the amount of any benefits hereunder
by seeking other employment or otherwise, nor shall the amount of any
such benefits be reduced by any compensation earned by the Executive
as a result of employment by another employer after the Termination
Date or otherwise.
(ix) Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
(x) Counterparts. This Agreement may be executed in several
counterparts, each of which together will constitute one and the same
instrument.
(xi) Headings. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of
any provision of this Agreement.
(xii) Effective Date. The effective date of this Agreement
shall be the date indicated in the first section of this Agreement,
notwithstanding the actual date of execution by any party.
(xiii) Extinguishment of Prior Employment Agreements. This
Agreement is intended to establish the initial employment relation
between Executive and the Employers and it is agreed that it shall,
upon execution and effectiveness, supersede and extinguish any right
of Executive under the Employment Agreement dated April 18, 1996 as
amended on ___________________, 1998 ("Prior Employment Agreement")
previously in effect between herself and Reliance Bancshares, Inc.
and/or Reliance Savings Bank. Notwithstanding the preceding sentence,
however, if the employment of Executive pursuant to this Employment
Agreement is terminated on or before (a date six months after the
Effective Date of the
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Contract); (1) by Executive for any reason other than disability (as
defined in subsection 5(ii) above), retirement (as defined in
subsection 5(ii) above) or death, or (2) by the Employers for any
reason other than for Cause (as defined in subsection 5(iii) above),
disability, retirement or death, Executive shall be entitled to
receive under this Employment Agreement amounts and benefits that are
not less than amounts and benefits to which she would have been
entitled had her employment terminated under subsection 6(iii) of the
Prior Employment Agreement, Less all amounts received by Executive
under this Employment Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first above written.
Executive:
-----------------------------------
Xxxxx X. Xxxxxxxxx
ST. XXXXXXX CAPITAL CORPORATION
By:
--------------------------------
Its:
-------------------------------
ST. XXXXXXX BANK, F.S.B.
By:
-------------------------------
Its:
-------------------------------
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