EXHIBIT 10.8.g.1
FIRST FEDERAL CAPITAL CORP.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is amended and effective as of July 1, 2001
(the "Commencement Date") between First Federal Capital Corp., its successors
and assigns (hereinafter referred to as the "Company"), having its principal
offices located at 000 Xxxxx Xxxxxx, Xx Xxxxxx, Xxxxxxxxx 00000, and Milne X.
Xxxxxx (the "Executive").
RECITALS
WHEREAS, Executive is a key employee, whose extensive background,
knowledge and experience in the financial services industry has substantially
benefited both First Federal Savings Bank LaCrosse-Madison, F.S.B. (the "Bank")
and the Company and whose continued employment by the Bank in the capacities of
Senior Vice President and Human Resources Division Manager ("Corporate
Position") and service as an Executive of the Company will benefit both in the
future; and
WHEREAS, Executive possesses an intimate knowledge of the business and
affairs of the Company and the Bank, including their policies, markets and
financial and human resources; and
WHEREAS, the parties are mutually desirous of entering into this
Agreement setting forth the terms and conditions for the employment relationship
between the Company and Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below:
1. Employment. The Company shall employ Executive, and Executive shall
serve the Company, on the terms and conditions set forth in this Agreement.
2. Term of Employment. The period of Executive's employment under this
Agreement shall coincide in all respects, including with respect to termination
of such employment, with his period of employment by the Bank under the
employment agreement entered into between the Bank and Executive and bearing
even date herewith (the "Bank Agreement"). The term of employment as in effect
from time to time hereunder shall be referred to as the "Employment Term".
3. Position and Duties. Executive shall serve as an Executive of the
Company and, as such, Executive shall report directly to the President of the
Company and shall have supervision and control over, and responsibility for,
corporate recordkeeping of the Company and shall have such other powers, duties
and responsibilities as may be from time to time prescribed and assigned by the
President and the Board, provided that such duties are consistent with his
present duties and position as an executive officer of the Company. Executive
shall devote substantially all his working time and efforts to the business and
affairs of the Company and the Bank.
4. Compensation. As compensation for services provided pursuant to this
Agreement, Executive shall receive from the Company the compensation and
benefits set forth below:
(i) Base Salary. During the Employment Term, Executive shall
receive a base salary payable by the Bank ("Base Salary") in such
amount as may from time to time be approved by the Board of Directors
of the Bank; provided, however, that the Company and Executive agree
that (i) a portion of the amount received by Executive from the Bank
will be allocable to time and effort of the Executive spent on behalf
of the Company pursuant to this Agreement, and (ii) that the Company
may reimburse the Bank in any such amount as may be jointly determined
by the Boards of Directors of the Company and Bank to reflect such
allocable portion. No increase in Base Salary paid by the Bank (or the
amount thereof reimbursed by the Company) or other compensation granted
by the Company or Bank shall in any way limit or reduce any other
obligation of the Company under this Agreement. Executive's Base Salary
and other compensation shall be paid in accordance with the Bank's
regular payroll practices, as in effect from time to time.
(ii) Bonus Payments. In addition to Base Salary, Executive
shall be entitled, during the Employment Term, to participate in and
receive payments from all bonus and other incentive compensation plans
(as currently in effect, as modified from time to time, or as
subsequently adopted) of the Company; provided, however, that nothing
contained herein shall grant Executive the right to continue in any
bonus or other incentive compensation plan following its discontinuance
by the Board (except to the extent Executive had earned or otherwise
accumulated vested rights therein prior to such discontinuance).
(iii) Other Benefits. During the Employment Term, the Company
shall provide to Executive all other benefits of employment (or, with
Executive's consent, equivalent benefits) generally made available to
other executives of the Company. In addition, Executive shall
participate in any stock purchase, stock option or stock appreciation
rights, plans, or any other stock-based programs, made available by the
Company to its executives.
Executive shall be entitled to vacation, sick time, personal
days and other perquisites in the same manner and to the same extent as
such benefits are available under the Bank Agreement; provided that
this Agreement is intended to allow Executive to utilize the
perquisites provided pursuant to the Bank Agreement and not to create
additional perquisites hereunder.
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
paragraph 4(iii) (except to the extent Executive had previously earned
or accumulated vested rights therein) following termination or
discontinuance of such plan, program or perquisite by the Board.
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5. Termination. This Agreement shall terminate upon the effective date
of termination of the Bank Agreement.
Upon termination of this Agreement, simultaneous with termination of
the Bank Agreement, Executive shall be entitled to the receipt of
termination/severance benefits from the Bank as determined under all applicable
provisions of the Bank Agreement ("Severance Benefits"). The Bank shall be
primarily responsible for the payment of Severance Benefits; provided, however,
that the Company may reimburse the Bank for a portion of the cost of Executive's
Severance Benefits in any amount jointly determined by the Boards of Directors
of the Company and Bank to correspond to the allocation of Executive's time and
effort between Bank and Company matters during the 12-month period preceding
termination of the Bank Agreement. Notwithstanding the foregoing, if the
application of Section 6 of the Bank Agreement results in Unpaid Severance as
defined therein, the Company shall be responsible for payment to Executive of
the entire amount of Unpaid Severance and shall also pay to Executive an
additional amount (the "Reimbursement Payment") such that the net amount
retained by Executive after deduction of (i) any tax imposed by Section 4999 of
the Internal Revenue Code (the "Excise Tax") and any interest charges or
penalties in respect to imposition of such Excise Tax (but not any federal,
state or local income tax) on the Total Payments (which for purposes of this
Agreement shall mean the Severance Benefits plus any Unpaid Severance, together
with any other payments and/or the value of any benefits provided by the Bank or
Company, including but not limited to any amount or value attributable to the
vesting of stock options upon Executive's termination and to which said Excise
Tax applies by reason of Section 280G of the Code), and (ii) any federal, state
and local income tax and Excise Tax upon the payment pursuant to Section 5(i)
above, so that the total received by Executive after deduction of said Excise
Taxes shall be equal to the Total Payments. For purposes of determining the
amount of Reimbursement Payment, Executive shall be deemed to pay federal income
taxes at the highest marginal rate of federal income taxation in the calendar
year in which the Reimbursement Payment is to be made and state and local income
taxes at the highest marginal rate of taxation in the state and locality of
Executive's domicile for income tax purposes on the date the Reimbursement
Payment is made, net of the maximum reduction of federal income taxes that could
be obtained from deduction of such state and local taxes.
6. General Provisions.
(i) Successors; Binding Agreement.
(A) The Company 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 Company
("successor organization") to expressly assume and
agree to perform this Agreement in the same manner
and to the same extent that the Company would have
been required to perform if no such succession had
taken place. If such succession is the result of a
"change in control" as defined in the Bank Agreement,
such assumption shall specifically preserve to
Executive, for the greater of twelve (12) months or
the then remaining term under the Bank Agreement, all
rights and remedies (recognizing them as being
available and applicable as the result of the "change
in control"
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effectuating said succession) provided under this
Agreement which would arise in connection with a
"change in control" or the effect thereof.
As used in this Agreement "Company" shall
mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid
which executes and delivers the agreement provided
for in this Section 6 or which otherwise becomes
bound by the terms and provisions of this Agreement
by operation of this Agreement or law. Failure of the
Company to obtain such agreement prior to the
effectiveness of any such succession shall be a
breach of this Agreement and shall entitle Executive
as his exclusive remedy to compensation from the
Company in the same amount and on the same terms as
he would be entitled to the same pursuant to Section
5 of this Agreement. 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; provided, however, that in the event of
Executive's death prior to the receipt of payments or
benefits payable hereunder, the Executive's spouse or
estate shall be entitled to the receipt thereof.
(C) This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by Executive and his
heirs, beneficiaries and personal representatives and
the Company and any successor organization.
(ii) Noncompetition. Executive acknowledges that the
development of personal contacts and relationships is an essential
element of the Company's business, that the Company has invested
considerable time and money in his development of such contacts and
relationships, that the Company could suffer irreparable harm if he
were to leave employment and solicit the business of customers of the
Company or Bank, and that it is reasonable to protect the Company and
Bank against competitive activities by Executive. Executive covenants
and agrees, in recognition of the foregoing and in consideration of the
mutual promises contained herein, that in the event of a voluntary
termination of employment by Executive pursuant to Section 5(iii) of
the Bank Agreement, or upon expiration of the Bank Agreement as a
result of Executive's election not to continue automatic annual
renewals, Executive shall not accept employment with any Competitor of
the Bank for a period of eighteen (18) months following such
termination in any county in which the Bank both (i) has deposits of
$50,000,000 or more, and (ii) has originated mortgage loans of
$100,000,000 or more during any consecutive twelve (12) month period
within the past twenty-four (24) months. For purposes of this
Agreement, the term Competitor means any financial institution
including, but not limited to, any commercial bank, savings bank,
savings and loan association, credit union, or mortgage banking
corporation.
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Executive agrees that the non-competition provisions set forth
herein are necessary for the protection of the Company and the Bank and
are reasonably limited as to (i) the scope of activities affected, (ii)
their duration and geographic scope, and (iii) their effect on
Executive and the public. In the event Executive violates the
non-competition provisions set forth herein, the Company 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 Company
brings legal action for injunctive or other relief, the Company 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. In addition to such other relief as may be
awarded, if the Company is the prevailing party it shall be entitled to
reimbursement for all reasonable costs, including attorneys' fees,
incurred in enforcing its rights hereunder.
(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
the Company, United States registered mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Company:
First Federal Capital Corp.
000 Xxxxx Xxxxxx
Xx Xxxxxx, Xxxxxxxxx
Attention: Secretary
If to the Executive, at the address set forth below the
Executive's signature line of this Agreement. Either party may furnish
to the other in writing in accordance herewith, a notice of change of
address which shall become effective only upon receipt by the other
party.
(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, 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 is entitled.
Notwithstanding the foregoing, in the event of a legal
proceeding to enforce or interpret the terms of this Agreement
following a change in control, Executive shall be entitled to recover
from the Bank, regardless of the outcome of said action, necessary
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costs and disbursements incurred together with actual attorney's fees
up to the greater of (A) $25,000, or (B) thirty percent (30%) of the
amount in dispute between the parties [which amount, for purposes of
this Agreement, shall be deemed to be the difference between the
highest written settlement offer (exclusive of any claim for
consequential, punitive, or other forms or amounts of damages not based
on specific contract terms) from Executive]. Recovery by Executive of
attorney's fees and costs as provided herein following a change in
control shall be in addition to any other relief to which Executive may
be entitled.
(v) Withholding. The Company shall be entitled to withhold
from amounts to be paid to Executive under this Agreement any federal,
state, or local withholding or other taxes of charges which it is from
time to time required to withhold. The Company 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) 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
Company officer as may be specifically designated by the Board. No
waiver by either party hereto at any time of any breach by the other
party hereto of (or compliance with) any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver
of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter
hereof have been made by either party which are not expressly set forth
in this Agreement; provided, however, that the parties acknowledge the
Bank Agreement is a separate employment agreement between Executive and
the Bank and that nothing contained herein is intended to supercede or
extinguish any of the rights or obligations created therein. The
validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Wisconsin.
(vii) 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.
(viii) Counterparts. This Agreement may be executed in several
counterparts, each of which together will constitute one and the same
instrument.
(ix) Headings. Headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of
any provision of this Agreement.
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(x) Effective Date. The effective date of this Agreement shall
be the date indicated in the first section of this Agreement,
notwithstanding that the actual date of execution by any party may
differ therefrom.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of this 1st day of July, 2001.
First Federal Capital Corp. Executive:
By:
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Title: Title:
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Witness Address:
By:
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Title:
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