EXHIBIT 10(s)
EMPLOYMENT AGREEMENT - KENNETH F. CSINICSEK
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of June
14, 1994, among First Financial Corporation (the "Company"), First Financial
Bank, FSB, a wholly owned subsidiary of the Company (the "Bank"), and Kenneth F.
Csinicsek, (the "Employee").
WHEREAS, Employee is currently serving as an executive of the Company
and/or the Bank;
WHEREAS, the Company and Bank consider it important to retain competent
executives when the company and Bank are potential takeover targets; and
WHEREAS, the Company and Bank wish to take steps to ensure that each
will receive advice from its top management which is unaffected by concerns of
distractions caused by personal risks associated with an actual or threatened
change in control, thus guaranteeing that all action taken in a takeover context
is done in the best interests of the constituents and shareholders served by the
Company and Bank.
NOW, THEREFORE, IT IS AGREED:
1. Term. The initial term of employment under this Agreement shall be
for a three-year period from January 1, 1994, which is the effective date of
this Agreement. No later than 60 days after the second and, if appropriate, each
subsequent anniversary date of the effective date of this Agreement, the
Employee and the full Boards of Directors of both the Company and the Bank by a
majority vote may extend the term of this Agreement for one additional year. It
is anticipated that the Board of Directors of the Bank will consider the matter
in the month of December immediately prior to the anniversary date in question,
and the Board of Directors of the Company in the month of February immediately
subsequent thereto. If the Employee and the Board of Directors of the Company
and the Bank fail to extend the term of this Agreement within 60 days of any
such anniversary date, this Agreement shall automatically terminate one year
after the anniversary date in question. Each initial term and all such extended
terms are collectively referred to herein as the term of this Agreement.
2. Change in Control. No compensation or benefits shall be payable
hereunder unless there shall have been a Change in Control.
(a) A "Change in Control of the Company" for purposes of this
Agreement, shall be deemed to have taken place if: (i) any person becomes the
beneficial owner of 25 percent or more of the total number of outstanding voting
shares of the Company; (ii) any person becomes the beneficial owner of 10
percent or more, but less than 25 percent, of the total number of outstanding
voting shares of the Company, provided that, if the FHLBB has approved a
rebuttal agreement filed by such person or such person has filed a certification
with the FHLBB, a Change in Control will not be so deemed to have occurred
unless the Board of Directors of the Company has made a determination that such
a beneficial ownership constitutes or will constitute control of the Company;
(iii) any person (other than the persons named as proxies solicited on behalf of
the Board of Directors of the Company) holds revocable or irrevocable proxies,
as to the election or removal of two or more directors of the Company, for 25
percent or more of the total number of outstanding voting shares of the Company;
(iv) any person has received the approval of the FHLBB under Section 408 of the
National Housing Act (the "Holding Company Act"), or regulations issued
thereunder, to acquire control of the Company; (v) any person has received
approval of the FHLBB under the Change in Savings and Loan Control Act of 1978
(the "Control Act"), or regulations issued thereunder, to acquire control of the
Company; (vi) any person has commenced a tender or exchange offer, or entered
into any agreement or received an option, to acquire beneficial ownership of 25
percent or more of the total number of outstanding voting shares of the Company,
whether or not the requisite regulatory approval for such acquisition has been
received under the Holding Company Act, the Control Act, or the respective
regulations issued thereunder, provided that a Change in Control will not be
deemed to have occurred under this clause (vii) unless the Board of Directors of
the Company has made a determination that such action constitutes or will
constitute a Change in Control; or (viii) as a result of, or in connection with,
any cash tender or exchange offer, merger, or other business combination, sale
of assets or contested election, or any combination of the foregoing
transactions, the persons who were directors of the Company before such
transaction shall cease to constitute at least two-thirds of the Board of
Directors of the Company or any successor institution. For purposes of this
Section, a "person" includes an individual, corporation, partnership, trust,
association, joint venture, pool, syndicate, unincorporated organization,
joint-stock company or similar organization or group acting in concert, but does
not include any employee stock ownership plan or similar employee benefit plan
of the Company or the Bank. A person for these purposes shall be deemed to be a
beneficial owner as that term is used in Rule 13d-3 under the Securities
Exchange Act of 1934.
(b) A "Change in Control of the Bank," for purposes of this
Agreement, shall be deemed to have taken place if the Company's beneficial
ownership of the total number of outstanding voting shares of the Bank is
reduced to less than 50 percent.
3. Good Reason. Employee shall be deemed to have resigned for Good
Reason if Employee resigns within twenty-four months following a Change in
Control as a result of one or more of the following events:
(a) Employee is assigned any duties materially inconsistent
with his principal responsibilities as compared to his principal
responsibilities immediately prior to such Change in Control.
(b) The Company or Bank reduces the Employee's total
compensation (including base salary and bonus) below the rate in effect
immediately prior to such Change in Control.
(c) The Company or Bank fails to provide the Employee with
benefits at least as favorable as those provided by the Company and/or Bank
immediately prior to such Change in Control; provided, however, that Good Reason
shall not exist under this paragraph 3(c) if Employee is provided benefits equal
to those provided the executives in the Company or Bank and their affiliates
following the Change in Control.
(d) The Company or Bank shall change the location of the
primary worksite of Employee to a location more than 50 miles from the worksite
immediately prior to the Change in Control, without Employee's consent.
4. Benefits Payable upon Termination or Resignation for Good Reason
Following Change in Control. The Board of Directors of the Company or Bank may
terminate Employee's employment at any time; however, if termination of
Employee's employment shall occur within 24 months of a Change in Control and is
not for cause as defined in paragraph 5 (c), or if Employee resigns within 24
months of a Change in Control for Good Reason as defined in paragraphs 3(a)
through 3(d), Employee shall be entitled to receive:
(a) For services previously rendered to the Bank and/or the
Company, a cash payment equal to two times Employee's average annual
compensation (including base salary and bonus) which was payable by the Company
and/or the Bank and was includable by Employee in his gross income for federal
income tax purposes with respect to the five most recent taxable years ending
prior to such Change in Control of the Company or of the Bank. The cash payment
may be made, at the option of the Company or the Bank, (i) in a lump sum within
ten (10) business days after the date of termination or resignation for Good
Reason or (ii) in twenty-four (24) consecutive equal monthly installments with
the first installment commencing no later than ten (10) business days after the
date of termination or resignation for Good Reason. If no payment is made to
Employee within ten (10) business days of the date of termination or resignation
for Good Reason, the Bank and Company shall lose the option of making
installment payments to Employee and the lump sum payment shall be immediately
due and payable together with interest at the rate of 12% per annum from the
date of termination or resignation for Good Reason until paid.
(b) The Company and Bank shall maintain in full force and
effect for Employee's continued benefit for two years after the date of
termination or resignation for Good Reason, all insurance plans (including
medical, dental, life and disability) in which Employee was entitled to
participate immediately prior to the Change in Control, provided that Employee's
participation is possible under the general terms and provisions of such plans.
In the event that Employee's participation in any such plan is barred, the
Company or Bank shall arrange to provide the Employee with benefits
substantially similar to those to which he was entitled to receive under such
plans.
(c) The Company and Bank shall also pay all legal fees and
expenses incurred by Employee as a result of such termination of resignation for
Good Reason, including such fees and expenses, if any, incurred in good faith in
contesting or disputing any such termination or in seeking to obtain or enforce
any right or benefit provided by this Agreement.
(d) Employee shall have the right to exercise on or within 90
days after termination or resignation for Good Reason all unexercised stock
options granted under the First Financial Stock Option Plans prior to the Change
in Control unless such exercise is prohibited by law.
(e) To the extent that any payment or benefit to be extended
by the Bank under paragraphs 4(a) through 4(d) of the Employment Agreement shall
exceed any of the limitations provided for in RB 27 (or any other applicable
regulatory or statutory limitation to which the Bank is or may be subject from
time to time), then the Bank shall not be responsible for payment of any such
benefit in excess of the applicable limitation and the Company shall be solely
liable for payment of such excess benefits; provided, however, that nothing
contained in this paragraph 4(d) shall decrease or diminish the total payments
or benefits to be extended to the Employee under the Employment Agreement.
5. Restrictions on Benefits. Notwithstanding the provisions of
paragraphs 4(a) through 4(d) hereof, the following restrictions on benefits
shall apply:
(a) Employee shall not have any right to receive any payment
or benefit under this Agreement or any other agreement or benefit plan if such
payment or benefit, taking into account all other payments or benefits to the
Employee, would cause any payment to the Employee under this Agreement to be
considered a "parachute payment" within the meaning of Section 280G(b)(2) of the
Internal Revenue Code as then in effect (a "Parachute Payment"). In the event
that the receipt of any such payment or benefit under this Agreement, or any
other agreement or benefit plan, would cause Employee to be considered to have
received a Parachute Payment under this Agreement, then the Employee shall have
the right, in the Employee's sole discretion, to designate those payment or
benefits under this Agreement, or any other agreements or benefit plans, which
should be reduced or eliminated so as to avoid having a payment to the Employee
under this Agreement to be deemed a Parachute Payment.
(b) Employee shall not be required to mitigate the amount of
any payment provided for in this Agreement by seeking other employment. However,
upon Employee's employment by another employer after the date of termination or
resignation for Good Reason, payments provided for in this Agreement payable or
attributable to periods after commencement of such new employment shall be
reduced by fifty percent (50%) and the benefits coverage provided for in
paragraph 4(b) shall terminate.
(c) Employee shall have no right to receive compensation or
other benefits under this Agreement for any period after termination for cause.
"Termination for Cause" shall include termination because of personal
dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties, willful violation
of any law, rule, or regulation (other than traffic violations or similar
offenses) or final cease-and-desist order, or material breach of any provision
of this Agreement. In determining incompetence or intentional failure to perform
stated duties, the acts or omissions shall be measured against standards
generally prevailing in financial institutions of similar size and type;
provided it shall be the Company's or the Bank's burden to prove by a
preponderance of evidence the alleged acts and omissions and the prevailing
nature of the standards the Company or the Bank shall have alleged are violated
by such acts and omissions.
(d) If Employee is suspended and/or temporarily prohibited in
participating in the conduct of the Bank's affairs by notice served under
Section 5(e)(4)(D), or Section 5(d)(5)(A) of the Homeowners Loan Act or under
Section 407(g)(4) or 407(h) of the National Housing Act, the Company's and
Bank's obligations under this Agreement shall be suspended as of the date of
service, unless stayed by appropriate proceedings. If the charges in the notice
are dismissed, the Company and/or Bank may in its discretion (i) pay Employee
all or part of the compensation withheld while his contract obligations are
suspended and (ii) reinstate (in whole or part) any of its obligations which
were suspended.
(e) If Employee is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 5(e)(4)(e) or Section 5(d)(5)(A) of the Homeowners Loan Act or under
Section 407(g)(5) or Section 407(h) of the National Housing Act, all obligations
of the Company and Bank under this Agreement shall terminate as of the effective
date of the order, but vested rights of the parties shall not be affected.
(f) If the Bank is in default (as defined in Section 401(d) of
the National Housing Act), all obligations under this Agreement shall terminate
as of the date of default, but this paragraph shall not affect any vested rights
of the contracting parties.
(g) All obligations under this Agreement shall be terminated,
except to the extent determined that continuation of this Agreement is necessary
for the continued operation of the Bank, (i) by the Federal Savings and Loan
Insurance Corporation, at the time such Corporation enters into an agreement to
provide assistance to or on behalf of the Bank under the authority contained in
Section 406(f) of the National Housing Act; or (ii) by the Federal Home Loan
Bank Board, at the time the Board or its Principal Supervisory Agent approves a
supervisory merger to resolve problems related to operation of the Bank or when
the Bank is determined by the Board 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.
(h) This Agreement shall automatically terminate in the event
that prior to a Change in Control the Employee shall die, become permanently
totally disabled, or terminate his employment with the Company and Bank.
6. Miscellaneous.
(a) Applicable Law. This Agreement and all questions of its
interpretation, performance, enforcement and the rights and remedies of the
parties hereto shall be determined in accordance with the laws of the State of
Wisconsin and any applicable federal laws, rules, and regulations, including but
not limited to the Internal Revenue Code, the Homeowners Loan act, the National
Housing Act, and the rules and regulations of the Federal Home Loan Bank Board.
Any reference to statutes or regulations shall be deemed to include any
successor statute or regulation.
(b) Binding Effect. The obligations of this Agreement will be
binding upon the Company and Bank and any successor organization to all or
substantially all of the business and/or assets of the Company or Bank, whether
direct or indirect, by purchase, merger, consolidation or otherwise; and this
Agreement shall inure to the benefit of and be enforceable by the Employee's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. In the event of death of the Employee, all
rights to receive payments hereunder shall become rights of Employee's estate.
(c) Modification. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
approved by a majority vote of the full Board of Directors of the Company and
Bank and is agreed to in writing signed by the Employee and such officer as may
be specifically designated by the Board of Directors of the Company and Bank. 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 set forth expressly in this Agreement.
(d) Validity. The invalidity or unenforceability of any
provisions 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date, month and year first written above.
ATTEST: FIRST FINANCIAL CORPORATION
/s/ Patricia A. Janowski By: /s/ John C. Seramur
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Assistant Secretary John C. Seramur, President
ATTEST: FIRST FINANCIAL BANK, FSB
/s/ Patricia A. Janowski By: /s/ John C. Seramur
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Assistant Secretary John C. Seramur, President
EMPLOYEE
/s/ Kenneth F. Csinicsek
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Kenneth F. Csinicsek