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EXHIBIT 10.23
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is effective as of October 1, 1996 between St.
Francis Capital Corporation (the "Company"), a Wisconsin-chartered
corporation, its successors and assigns, and John C. Schlosser (the
"Executive").
RECITALS
WHEREAS, Executive is a key employee, whose extensive background,
knowledge and experience in the savings and loan industry have substantially
benefitted the Company and its subsidiary, St. Francis Bank, F.S.B. (the
"Bank"), and whose continued employment as an executive member of the
Company's management team, as Chairman of the Company's Board of Directors
and as its President and CEO through January 22, 1997 and continuing as
Chairman thereafter ("Corporate Position") will continue to benefit the Company
in the future; 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 (hereinafter sometimes referred to as the
"Employer") and Executive; and
WHEREAS, the Board of Directors of the Company has approved and authorized
entry into this Agreement with Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below:
1. Employment. The Company shall continue to employ Executive, and
Executive shall continue to serve the Company, on the terms, conditions and
for the period set forth in Section 2 of this Agreement.
2. Term of Employment. The period of Executive's employment under this
Agreement shall begin as of October 1, 1996 (the Commencement Date) and expire
as of January 2, 1999, unless sooner terminated as provided herein. 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 Company in his
Corporate Position, which through January 22, 1997, shall include service as
its President, CEO, and Chairman of its Board of Directors. Thereafter, during
the balance of the Employment Term, Executive shall serve as Chairman of the
Company's Board of Directors. As such, Executive shall serve as a consultant
to the President, counseling with the President and CEO in such areas as
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may be requested and with such other duties and responsibilities as may be
appropriate to Executive's position and as may be from time to time determined
by the Company's Board of Directors to be necessary to its operations and in
accordance with its bylaws.
4. Compensation. As compensation for services provided pursuant to this
Agreement, Executive shall receive from the Employer the compensation and
benefits set forth below:
(i) Base Salary. During the Employment Term, Executive shall
receive from Employer a base salary ("Base Salary"), payable by the
Company, which shall at no time be less than (i) $287,955 per annum for
the period through January 31, 1997, or (ii) $150,000 per annum for the
balance of the Employment Term thereafter. Executive's Base Salary and
other compensation shall be paid in accordance with the Employer's regular
payroll practices as from time to time in effect.
(ii) Other Benefits. During the Employment Term, Employer shall
provide to Executive such benefits (or, with Executive's consent,
equivalent benefits) as are generally made available to other Executive
Officers, exclusive of benefits under bonus and/or stock incentive plans.
Such benefits shall include participation by Executive in any group health,
life, disability, or similar insurance program and in any pension,
profit-sharing, Employee Stock Ownership Plan ("ESOP"), 401(k) or other or
similar retirement program. Employer shall continue in effect any
individual insurance plans or deferred compensation agreements in effect as
of the Commencement Date and Executive shall be entitled to use of an
automobile provided by Employer under the terms of such corporate
automobile policy as they shall maintain in effect and as it may be amended
from time to time.
Executive shall receive vacation, sick time, personal days and other
perquisites in the same manner and to the same extent as provided under the
Employer's policies as in effect from time to time for other Executive
Officers. Employer 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 Employer, including but not by way of
limitation, travel expenses and all reasonable entertainment expenses
(whether incurred at Executive's residence, while traveling or otherwise)
subject to such reasonable documentation and other limitations as may be
imposed by the Board of Directors of the Employer.
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
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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 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
retirement plan of the Employer generally applicable to Executive Officers
or in accordance with any retirement arrangement established for Executive
with his 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 he was entitled under Section 4 through the Termination Date and, in
addition, shall receive all other benefits available to him under the
Bank's benefit plans and programs to which he 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 his employment duties for a period of 90
consecutive days. Any question as to the existence of Executive's
disability upon which Executive and Employer cannot agree shall be
determined by a qualified independent physician mutually agreeable to
Executive and Employer 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 his
principal residence. The costs of any such medical examination shall be
borne by the Employer. If Executive is terminated due to disability, he
shall be paid 100% of his Base Salary at the rate in effect at the time
notice of termination is given for one year and thereafter an annual amount
equal to 75% of such Base Salary for any remaining portion of the
Employment Term, such amounts to be paid in substantially equal monthly
installments and offset by any monthly payments actually received by
Executive
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during the payment period from (i) any disability plans provided by the
Employer, 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 he was entitled under
Section 4 through the Termination Date and, in addition, shall receive all
other benefits under the Employer's benefit plans and programs to which he
was entitled by reason of employment through the Termination Date.
(iii) Cause. Employer 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 he was vested or to which he 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 his position and level of
compensation) with the Employer (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 his 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;
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(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 Employer.
(iv) Voluntary Termination by Executive. Executive may voluntarily
terminate his employment under this Agreement at any time by giving at
least thirty (30) days prior written notice to Employer. In such event,
Executive shall receive all compensation and other benefits in which he
was vested or to which he was otherwise entitled under Section 4 through
the date specified in such notice (the "Termination Date"), in addition to
all other benefits available to him under benefit plans and programs to
which he 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 Employer's 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 Employer's 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 Employer 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 Employer's 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 Employer 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
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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 Employer's continued operations (i) by the
Director of the OTS, or his 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 Employer
under the authority contained in section 13(c) of the Federal
Deposit Insurance Act; or (ii) by the Director of the OTS, or
his or her designee, at the time it approves a supervisory
merger to resolve problems related to operation of the Employer
or when the Employer is 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
Employer other than for cause, death, disability or retirement or (2) by
Executive due to a failure by Employer 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 Employer; 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 Covered Period, which shall be the remainder of the
Employment Term. Payments under this Agreement shall be in
accordance with the Employer's normal payroll practices,
beginning with the first pay date following the Termination
Date. The monthly rate of Severance Pay shall be determined
based on the
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monthly Base Salary that would have been payable to Executive
under the terms of this Agreement for the Covered Period.
(B) Employer 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 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 Employer),
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 Employer 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 he was vested or to which he was otherwise entitled under
Section 4 and the plans and programs provided therein by reason
of employment through the Termination Date.
6. General Provisions.
(i) Successors; Binding Agreement.
(A) 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.
(B) This Agreement shall be binding upon and inure to
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the benefit of and be enforceable by (1) Executive and his
heirs, beneficiaries and personal representatives, and (2) the
Employer 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 Employer has invested
considerable time and money in his development of such contacts and
relationships, that Employer could suffer irreparable harm if he were to
leave employment and solicit the business of the Employer's customers,
and that it is reasonable to protect the Employer 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), 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 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 Employer 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 Employer 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 Employer brings legal action for
injunctive or other relief, the Employer 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
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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 Company:
St. Francis Capital Corporation
3545 South Kinnickinnic Avenue
Milwaukee, Wisconsin 53207
Attn: Secretary
If to the Executive:
Mr. John C. Schlosser
W175 S7217 Lake Drive
Muskego, Wisconsin 53150
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.
(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 may be entitled.
(v) Withholding. Employer 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. Employer 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
Employer under Sections 5(i), (ii), (iii), or (vi), or by Executive under
Section 5(iv) or 5(vi) 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
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given, except in the case of termination of Executive's employment for
Cause; and (iv) is given in the manner specified in Section 6(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
Employer 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
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 Employer, or
any affiliate of the Employer. 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.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the date first above written.
Executive:
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John C. Schlosser
ST. FRANCIS CAPITAL CORPORATION
By:
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Its:
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