Exhibit 10.5
EMPLOYMENT AND CHANGE OF CONTROL AGREEMENT
WITH
DAVID K. KOPPERUD
THIS AGREEMENT, made January 1, 2003, by and between Peoples State Bank,
Wausau, Wisconsin, a Wisconsin banking corporation, ("the Bank") and David K.
Kopperud, of Wausau, Wisconsin ("Mr. Kopperud").
WITNESSETH:
WHEREAS, the Bank has employed Mr. Kopperud for many years and Mr.
Kopperud has performed his duties in a highly satisfactory manner; and
WHEREAS, the Bank wished to continue to employ Mr. Kopperud and
Mr. Kopperud wishes to continue his employment by the Bank on the terms and
conditions hereinafter provided;
NOW, THEREFORE, in consideration of the premises, covenants and mutual
agreements contained herein, the Bank and Mr. Kopperud agree as follows:
1. Employment. Subject to the earlier termination of this agreement
pursuant to the terms hereof, Mr. Kopperud is hereby employed as the President
and Chief Executive Officer of the Bank and Mr. Kopperud agrees to serve in
such capacity on the terms and conditions hereinafter set forth.
2. Term. The term of this agreement shall commence on January 1, 2003
(the "Commencement Date") and shall end at midnight on the Expiration Date.
For purposes of this agreement, the term "Expiration Date" shall mean the first
to occur of (a) the date of Mr. Kopperud's death, (b) the third anniversary of
the Commencement Date and (c) the date to which the term of this agreement has
most recently been automatically extended pursuant to the following sentence.
On the last day of each calendar month which commences on or after the
Commencement Date, the term of this agreement shall automatically be extended
for one calendar month; provided, however, that automatic extensions of the
term of this agreement (and, consequently, the Expiration Date) pursuant to
this sentence shall cease on the first to occur of (x) either the Bank or Mr.
Kopperud giving to the other, at any time on or after the Commencement Date, a
written notice that no, or no further, as the case may be, automatic extensions
of the term of this agreement shall thereafter occur, but the giving of such a
notice shall not affect any previous extensions, or (y) Mr. Kopperud's 62nd
birthday.
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The term "Term of Employment" shall mean the period beginning on the
Commencement Date and ending on the earlier of the Expiration Date or the date
on which Mr. Kopperud's employment is terminated pursuant to paragraphs 5 or 8.
3. Extent of Services. Mr. Kopperud agrees to devote his full-time
attention and efforts (except during vacation periods, periods of illness and
other approved absences as provided for in paragraph 4(c)) to the duties of any
office held by him during the Term of Employment, provided, however, that
Mr. Kopperud's devotion of a reasonable and de minimis portion of his attention
or efforts to the management of his personal affairs during normal business
hours shall not constitute a breach of the foregoing requirement.
4. Compensation and Reimbursement.
(a) Salary. The Bank shall pay to Mr. Kopperud a salary based on
an annual amount of $170,000. The Bank may increase Mr. Kopperud's salary
from the amount specified herein during the Term of Employment, but may
not decrease Mr. Kopperud's salary from any previously established amount.
Mr. Kopperud's salary shall be payable at such times and in such
installments as are consistent with the manner in which the salaries of
other executive officers of the Bank are paid.
(b) Incentive Compensation. During the Term of Employment,
Mr. Kopperud shall be entitled to receive such additional compensation
from the Bank as may be provided for officers under the terms of any
incentive program from time to time maintained and in effect at the Bank
for executive officers.
(c) Other Benefits. During the Term of Employment, Mr. Kopperud
shall be entitled to receive all benefits and perquisites ordinarily
provided to executive officers of the Bank including coverage under an
officer's and director's liability insurance policy and Mr. Kopperud shall
participate in all employee benefit plans or fringe benefit programs now
or hereafter established or maintained by the Bank including, but not
limited to, group insurance plans, pension benefit plans, welfare benefit
plans, pay practices, and vacation and sick leave benefits. Mr. Kopperud
shall be entitled to participate in all plans or programs maintained by
the Bank on terms no less favorable than those generally available to
officers of the Bank and at a level of participation commensurate with his
office.
(d) Expenses. The Bank shall pay or reimburse Mr. Kopperud, upon
submission of vouchers by him, for all entertainment, travel, meal, hotel
accommodation, and miscellaneous expenses reasonably incurred by him in
the interest of the Bank's business during the Term of Employment.
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5. Termination of Employment.
(a) Termination by the Bank for Good Cause. The Bank may terminate
Mr. Kopperud's employment prior to the Expiration Date for good cause only
upon compliance with the requirements of this paragraph 5(a). "Good
cause" for termination of Mr. Kopperud's employment by the Bank shall
consist only of one or more of (i) the commission of an act or acts by
Mr. Kopperud which results in a payment to the Bank or to PSB Holdings,
Inc. ("PSB") of a claim filed by the Bank or PSB under a blanket banker
fidelity bond policy as from time to time and at any time maintained; (ii)
the willful and continuing failure to perform his duties in accordance
with standards or policies established, from time to time, or at any time,
by the Board, after a written demand for substantial performance is
delivered to Mr. Kopperud by the Board which specifically identifies the
manner in which the Board believes that Mr. Kopperud has not substantially
performed his duties; (iii) the commission by Mr. Kopperud of any crime of
moral turpitude, of dishonesty, of breach of trust, of theft, of
embezzlement, of misapplication of funds, of unauthorized issuance of
obligations or of false entries; (iv) any intentional, reckless, or
negligent act or omission to act by Mr. Kopperud which results in the
violation by Mr. Kopperud of any policy established by the Bank which is
designed to insure compliance with applicable banking, securities,
employment discrimination or other laws or which causes or results in the
Bank's violation of such laws, except any act done by Mr. Kopperud in good
faith, as determined in the reasonable discretion of the Board of
Directors of the Bank, or which results in a violation of such policies or
law which is, in the reasonable sole discretion of such Board, immaterial;
or (v) Mr. Kopperud's physical or mental disability, if such disability
either results in Mr. Kopperud receiving permanent disability payments
pursuant to any group disability insurance policy or prevents Mr. Kopperud
from the normal performance of his duties for a continuous period of at
least six months. Upon the occurrence of any event constituting good
cause for which the Bank elects to terminate Mr. Kopperud's employment
prior to the Expiration Date, the Bank shall provide written notice to
Mr. Kopperud, which shall state the good cause for termination, and
Mr. Kopperud's termination of employment shall be effective as of the date
specified in such notice. In the event of termination of Mr. Kopperud's
employment in accordance with the conditions of this paragraph (a), on the
effective date of Mr. Kopperud's termination of employment, the Term of
Employment shall end, all of Mr. Kopperud's obligations pursuant to this
agreement (except for those provided in paragraphs 6 and 7) shall end and
the Bank's obligations to pay compensation or provide benefits to
Mr. Kopperud pursuant to paragraph 4 shall end.
(b) Termination by the Bank Other Than for Good Cause. The Bank
may terminate Mr. Kopperud's employment prior to the Expiration Date for
any reason other than good cause (as defined in paragraph 5(a)) upon
providing written notice to Mr. Kopperud specifying the effective date of
Mr. Kopperud's termination of employment. If the Bank terminates
Mr. Kopperud's employment other than for good
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cause under paragraph 5(a), the Term of Employment and all of Mr.
Kopperud's obligations pursuant to this agreement (except for those
provided in paragraphs 6 and 7) shall end on the effective date of Mr.
Kopperud's termination of employment and the Bank shall provide, for a
period beginning on the effective date of Mr. Kopperud's termination of
employment, as a severance benefit to Mr. Kopperud and as liquidated
damages for breach by the Bank of its otherwise applicable obligations
hereunder, (i) a monthly cash payment equal to the amount which would,
except for Mr. Kopperud's termination of employment, have been paid to
Mr. Kopperud, if then living, as salary under paragraph 4(a) and (ii)
until Mr. Kopperud becomes eligible for coverage under the health
insurance plan of another employer of Mr. Kopperud, coverage for Mr.
Kopperud, under the same terms then available to executive officers of the
Bank, under any group health insurance program in which Mr. Kopperud was a
participant on the effective date of Mr. Kopperud's termination of
employment or under such successor plan or program as maintained after
such date for the benefit of the Bank's employees, but in no event longer
than the period for which payments are made pursuant to clause (i). Mr.
Kopperud shall not, by virtue of his severance benefit and liquidated
damages rights, acquire any right, title or interest in particular assets
of the Bank, and such rights shall be no greater than the right of any
unsecured general creditor of the Bank. Despite any other provision of
this agreement, Mr. Kopperud shall not be entitled to any severance
benefit or liquidated damages, and the Bank shall not be obligated to pay
any such benefit or damages, if Mr. Kopperud violates the provisions of
paragraphs 6 or 7.
(c) Termination by Mr. Kopperud. Mr. Kopperud may terminate his
employment at any time upon providing 30 days prior written notice to the
Bank stating the effective date of his termination. In any such event,
all obligations of the Bank to Mr. Kopperud under this agreement and all
obligations of Mr. Kopperud to the Bank (except those provided for in
paragraphs 6 and 7) shall cease and the Term of Employment shall end on
the effective date of Mr. Kopperud's termination of employment.
6. Restrictive Covenant. Mr. Kopperud agrees, subject to the
provisions of paragraph 8, that during the Term of Employment and during the
one-year period which ends on the first anniversary of the effective date of
Mr. Kopperud's termination of employment:
(a) he will not, within a radius of 25 miles of the principal
office of the Bank in Wausau, Wisconsin or any branch or subsidiary office
or operation of the Bank, directly or indirectly, solicit loans, deposits
or other business on behalf of any depository institution, doing business
as a bank, savings and loan association, or otherwise or as a mortgage
broker, or on behalf of any other entity which competes for the Bank's
retail or commercial loan business (each, a "Financial Institution"); and
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(b) he will not, directly or indirectly, solicit loans, deposits
or other business on behalf of any Financial Institution from any person,
corporation, limited liability company, partnership or other entity or
organization:
(i) who was a customer on the date of his termination of
employment or within the one year period ending on the date of his
termination of employment;
(ii) was identified to management of the Bank by him, or by
management of the Bank to him, as a potential customer of the Bank
within the six-month period ending on the date of his termination of
employment, or
(iii)was solicited by him for loans, deposits or other business
on behalf of any Financial Institution at any time during the one-
year period ending on the date of his termination of employment; and
(c) he will not, directly or indirectly, for himself or for any
other person induce or attempt to induce any customer of the Bank to cease
doing business with the Bank, or in any way interfere with the
relationship between any customer of the Bank and the Bank.
For purposes of this paragraph 6, the term "directly or indirectly" includes
(a) any sale through any medium and (b) the direct or indirect ownership,
management, operation, control, service as a director for, or association or
employment with, any Financial Institution if such Financial Institution is
engaged in the activities prohibited to Mr. Kopperud by the provisions of this
paragraph 6 and Mr. Kopperud's activities or services for such Financial
Institution involve the activities and services which are the same or
substantially similar to those services performed by him for the Bank;
provided, however, that an aggregate beneficial ownership interest of
Mr. Kopperud of less than 5% of the equity interests in any Financial
Institution (or affiliate thereof) whose stock is registered pursuant to the
provisions of the Securities Exchange Act of 1934 shall be deemed not to
constitute a violation of this provision. Mr. Kopperud further agrees that the
restrictions set forth in this agreement are reasonably necessary to protect
the reasonable interests of the Bank.
7. Confidential Information. Mr. Kopperud agrees that during the Term
of Employment and for a two year period following the termination of his
employment he will not reveal to any individual who is not then either employed
by, retained by, or on the Board of Directors of PSB, or any of its
subsidiaries, without the consent of PSB or the Bank, any confidential or
proprietary information of PSB or the Bank, the revealing of which would
adversely affect the business of PSB or the Bank, unless Mr. Kopperud discloses
such matters in response to a subpoena or to discovery proceedings concerning a
matter in litigation or based on advice of counsel acceptable to the Bank that
such disclosure is appropriate or necessary under applicable law or regulation.
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8. Change of Control. In the event of a Change of Control, the
following provisions of this agreement shall apply notwithstanding any other
terms or conditions of this agreement:
(a) Upon a Change of Control, the "Term of Employment" for purposes
of paragraph 2 shall mean the period equal in length to the Term of
Employment then remaining on the date immediately prior to the Change of
Control and the "Expiration Date" shall mean the first to occur of (i) Mr.
Kopperud's death, or (ii) his termination pursuant to paragraph 5, or
(iii) his termination pursuant to paragraph 8(b). Notwithstanding any
other provision of this agreement or any incentive compensation plan then
in effect, Mr. Kopperud shall be awarded, for each fiscal year ending
during the Employment Period following the Change in Control, an annual
bonus (the "Annual Bonus") in cash at least equal to his average annual
bonus under any bonus plan with respect to performance during each of the
three full calendar years prior to the effective date of the Change in
Control, regardless of when such bonus was actually paid (the "Recent
Annual Bonus") and each such Annual Bonus shall be paid no later than the
end of the third month of the fiscal year next following the fiscal year
for which the Annual Bonus is awarded but such amount shall be offset by
any amount accrued under any other incentive compensation plan maintained
after the Change of Control.
(b) Termination of Employment by Mr. Kopperud for Good Reason.
Mr. Kopperud's employment may be terminated by Mr. Kopperud during the
Term of Employment for Good Reason if, (i) within 60 days of the date of
occurrence of a triggering event, Mr. Kopperud notifies the Bank in
writing of his intention to treat such event as Good Reason, (ii) within
30 days following receipt of such notice provided for in (i), the Bank
fails to cure the triggering event and (iii) within 30 days following the
expiration of the 30 day period described in (ii), Mr. Kopperud
voluntarily terminates his employment by giving written notice to the
Bank.
(c) Good Reason. For purposes of this agreement, "Good Reason"
shall mean the occurrence of one or more of the following events
subsequent to the public announcement of, or actual knowledge of the Bank
or PSB of, any actual or proposed transaction which results, directly or
indirectly, within 270 days of the date of such announcement or knowledge,
in a Change of Control (each of which shall be a "triggering event"):
(i) a change in job title or the assignment to Mr. Kopperud of
any duties inconsistent in any respect with the duties or
responsibilities then held by Mr. Kopperud (except if his status,
title, or authority has been increased), or any other action by the
Bank which results in a diminution in such duties or
responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Bank promptly after receipt of notice
thereto given by Mr. Kopperud;
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(ii) any failure by the Bank to comply with any of the
provisions of paragraph 4 of this agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and
which is remedied by the Bank promptly after receipt of notice
thereof given by Mr. Kopperud, unless the Bank agrees to fully
compensate Mr. Kopperud for any such reduction;
(iii) Mr. Kopperud is required to locate his office more than
25 miles from the current location of the Bank's principal office,
excluding business travel reasonably consistent with the amount of
travel required of him prior to such relocation;
(iv) any purported termination by the Bank of Mr. Kopperud's
employment otherwise than as expressly permitted by this agreement;
(v) any failure of any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Bank to
assume expressly and agree to perform this agreement in the same
manner and to the same extent that the Bank would be required to
perform it if no such succession had taken place; or
(vi) the Bank's or PSB's request that Mr. Kopperud perform an
illegal, or wrongful act in violation of the Bank's code of conduct
policies.
(d) Severance Benefit on Termination by Mr. Kopperud for Good
Reason. Upon termination of Mr. Kopperud's employment by Mr. Kopperud
pursuant to paragraph 8(a) or by the Bank for a reason other than good
cause subsequent to the public announcement of, or the Bank's or PSB's
actual knowledge of, any actual or proposed transaction which results,
directly or indirectly, within 270 days of the date of such announcement
or knowledge, in a Change of Control, all obligations of the Bank to
Mr. Kopperud under this agreement and all obligations of Mr. Kopperud to
the Bank (except those provided for in paragraph 7) shall cease and the
Term of Employment shall end (the "Date of Termination") and:
(i) subject to paragraph 8(f), the Bank shall pay to
Mr. Kopperud in a lump sum in cash within 30 days after the Date of
Termination the aggregate of the following amounts:
(A) the sum of (1) Mr. Kopperud's base salary under
paragraph 4(a) through the Date of Termination and any accrued
incentive compensation to the extent not theretofore paid, (2)
the product of (a) an amount equal to any incentive
compensation earned by Mr. Kopperud for the most recently
completed fiscal year during the Term of Employment, if any and
(b) a fraction, the numerator of which is the number of days in
the current fiscal year through the Date of
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Termination, and the denominator of which is 365 and (3) any
compensation previously deferred by Mr. Kopperud (together with
any accrued interest or earnings thereon) and any accrued
vacation pay, in each case to the extent not theretofore paid;
and
(B) the amount equal to 300% of the sum of (1) Mr.
Kopperud's annual salary as most recently in effect pursuant to
paragraph 4(a) and (2) the average incentive compensation
earned by Mr. Kopperud in the three most recently completed
fiscal years during the Term of Employment;
(ii) until Mr. Kopperud becomes eligible for coverage under the
health insurance plan of another employer of Mr. Kopperud, coverage
for Mr. Kopperud, under the same terms then available to executive
officers of the Bank, under any group health insurance program in
which Mr. Kopperud was a participant on the effective date of
Mr. Kopperud's termination of employment or under such successor
plan or program as maintained after such date for the benefit of the
Bank's employees; and
(iii) to the extent not theretofore paid or provided, the Bank
shall timely pay or provide to Mr. Kopperud any other amounts or
benefits required to be paid or provided or which he is eligible to
receive under any plan, program, policy or practice or contract or
agreement of the Bank and its affiliated companies.
(e) Definition of Change of Control. For the purpose of this
agreement, a "Change of Control" shall be deemed to have occurred:
(i) when any "person" as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and
as used in Sections 13(d) and 14(d) thereof, including a "group" as
defined in Section 13(d) of the Exchange Act, excluding any employee
benefit plan sponsored or maintained by PSB or any subsidiary of PSB
(including any trustee of such plan acting as trustee), directly or
indirectly, becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act, as amended from time to time), of securities
of PSB or the Bank representing 30% or more of the combined voting
power of the Bank's or PSB's then outstanding securities with
respect to the election of the directors of the Bank or PSB; or
(ii) when, during any period of 24 consecutive months, the
individuals who, at the beginning of such period, constitute the
Board of Directors of the Bank or PSB (the "Incumbent Directors")
cease for any reason other than death to constitute at least a
majority thereof, provided, however, that a director who was not a
director at the beginning of such 24-month period
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shall be deemed to have satisfied such 24-month requirement (and be
an Incumbent Director) if such director was elected by, or on the
recommendation of or with the approval of, at least a majority of
the directors who then qualified as Incumbent Directors either
actually (because they were directors at the beginning of such
24-month period) or by prior operation of this provision; or
(iii)the occurrence of a transaction requiring stockholder
approval of the acquisition of the Bank by an entity other than PSB
or a 50% or more owned subsidiary of PSB or shareholder approval of
the acquisition of PSB through purchase of assets, or by merger,
consolidation or otherwise, except in the case of a transaction
pursuant to which, immediately after the transaction, PSB's
shareholders immediately prior to the transaction own at least 60%
of the combined voting power of the surviving entity's then
outstanding securities with respect to the election of the directors
of such entity solely be reason of such transaction; or
(iv) the liquidation or dissolution of the Bank or PSB.
(f) Limitation on Benefits.
(i) Notwithstanding any other provision of this agreement, the
present value of all amounts payable pursuant to this paragraph 8
which would constitute "parachute payments" (as such term is defined
in Section 280G of the Internal Revenue Code of 1986 as amended (the
"Code"), and any regulations promulgated thereunder), together with
the present value of all other benefits payable by the Bank to Mr.
Kopperud under any other plans and the Bank which would also
constitute "parachute payments," shall in no event equal or exceed
an amount (the "Testing Amount") equal to 3 times Mr. Kopperud's
"base amount" (as such term is defined in Section 280G of the Code
and any regulations promulgated thereunder), it being the intention
of the parties that no payment made pursuant to this agreement shall
constitute an "excess parachute payment" (as such term is defined in
Section 280G of the Code and any regulations promulgated
thereunder). In the event that the present value of the payments
provided for in this paragraph 8 together with the present value of
such other amounts, without taking into account this paragraph (f),
equals or exceeds the Testing Amount, then the amount of the
payments provided for in this paragraph 8 and under such plans shall
be reduced, beginning with the payments which are last in time,
until the present value of all such payments is less than the
Testing Amount. For purposes of this paragraph 8, present value
shall be determined in the manner provided in Section 280G of the
Code and the regulations promulgated thereunder.
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(ii) It is the intention of the parties that the provisions of
this paragraph 8 be construed to reduce the amounts otherwise
payable hereunder only to the extent necessary to avoid the
disallowance of the deduction by the Bank for any such amounts or
the imposition of an excise tax on Mr. Kopperud for any such
amounts, under federal income tax law as it currently exists or may
hereafter be amended.
(iii)In the event the provisions of this paragraph 8 require
any reduction in the amount to be paid to Mr. Kopperud under this
paragraph 8 of this Agreement, the Bank shall deliver to Mr.
Kopperud concurrently with such payment a statement signed by a
partner or principal of its independent accounting firm setting
forth the basis for and computation of such reduction and certifying
that such computation is made in good faith.
9. Miscellaneous.
(a) Notices. Any notice required or permitted to be given under
this agreement shall not be deemed to have been given unless delivered in
person or mailed, postage prepaid by certified mail addressed, in the case
of Mr. Kopperud, to his last known residence as specified by him in a
notice to the Bank, or, in the case of the Bank to its principal office.
(b) Benefits and Obligations. This agreement shall be binding
upon, shall inure to the benefit of the Bank and its successors or
assigns, and, as provided for herein, PSB, and shall be enforceable by the
Bank and its respective successors and assigns, and Mr. Kopperud, his
heirs, assigns or legal representatives; provided, however, that the
obligations of Mr. Kopperud contained herein may not be delegated or
assigned.
(c) Entire Agreement; Amendment. This agreement constitutes the
entire agreement between the parties with respect to the subject matter
hereof and may only be amended by an agreement in writing signed by all of
the parties hereto.
(d) Waiver. The failure of any party hereto to insist, in any one
or more instances, upon performance of any of the terms and conditions of
this agreement, shall not be construed as a waiver or relinquishment of
any right granted hereunder or of the future performance of any such term,
covenant or condition.
(e) Severability. In the event that any portion of this agreement
may be held to be invalid or unenforceable for any reason, the parties
hereto agree that said invalidity or unenforceability, shall not effect
the other portions of this agreement and that the remaining covenants,
terms and conditions or portions thereof shall remain in full force and
effect and any court of competent jurisdiction may so modify the
objectionable provision as to make it valid and enforceable.
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(f) Governing Laws. This agreement shall be governed by and
construed in accordance with the internal laws of the State of Wisconsin
without reference to conflicts of law principles.
(g) Captions. The captions contained in this agreement are for the
convenience of the Bank and Mr. Kopperud and shall not be deemed or
construed as in any way limiting or extending the language of the
provisions to which such captions refer.
IN WITNESS WHEREOF, the Bank and Mr. Kopperud have caused this instrument
to be executed as of the date first written above.
PEOPLES STATE BANK
By: DAVID A. SVACINA
David A. Svacina
As its Vice President
DAVID K. KOPPERUD
David K. Kopperud
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