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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): JUNE 7, 1999
ANCHOR BANCORP WISCONSIN INC.
(Exact name of registrant as specified in its charter)
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WISCONSIN 0-20006 39-1726871
(State or other jurisdiction of (Commission File Number) (IRS Employer Identification No.)
incorporation)
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25 WEST MAIN STREET
MADISON, WISCONSIN 53703
(Address of Principal Executive Offices)
(608) 252-8700
(Registrant's Telephone Number, Including Area Code)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On January 5, 1999, the Registrant entered into a definitive Agreement
and Plan of Reorganization (the "Agreement") with FCB Financial Corp. ("FCB")
which provided for the stock-for-stock merger of FCB with and into the
Registrant (the "Merger"), subject to approval by the shareholders of FCB and
the Registrant. The Registrant subsequently filed a Registration Statement on
Form S-4 under the Securities Act of 1933 (Registration No. 333-77163), which
was declared effective on April 28, 1999, including a Joint Proxy
Statement/Prospectus relating to the solicitation of proxies from the
shareholders of each company and to register shares of the Registrant's common
stock to be issued in the Merger. Such Registration Statement sets forth certain
information concerning the Registrant, FCB, and the Merger, including without
limitation, a description of the companies, the nature and amount of
consideration paid by the Registrant, the method used for determining the amount
of such consideration, and the nature of any material relationships between FCB
and the Registrant. Such information is incorporated herein by reference as
additional information in response to Item 2 of this Current Report on Form 8-K.
The Agreement was approved by the shareholders of FCB and the
Registrant at separate special meetings of the shareholders of each company held
on June 7, 1999.
At the special meeting of FCB's shareholders 3,840,680 votes were
eligible to be cast, and a simple majority (1,920,341 votes) was necessary to
approve the Agreement. Of the shares eligible to vote, 3,221,733 shares were
represented at that meeting, which were voted as follows: 3,069,242 shares were
voted in favor of approval of the Agreement; 134,402 shares were voted against
approval of the Agreement; and 18,089 shares abstained.
At the special meeting of the Registrant's shareholders 18,068,490
votes were eligible to be cast, and a simple majority (9,034,246 votes) was
necessary to approve the Agreement and the issuance of additional shares of
common stock in connection with the Merger. Of the shares eligible to vote at
that meeting, 14,840,577 shares were represented, which were voted as follows:
14,371,638 shares were voted in favor of approval of the Agreement and the
issuance of additional shares; 350,599 shares were voted against approval of the
Agreement and the issuance of additional shares; and 118,340 shares abstained.
On June 7, 1999, following the special meetings of the two companies, a
closing was held, the Registrant filed Articles of Merger with the Wisconsin
Department of Financial Institutions, and the Merger was consummated. Pursuant
to their own terms, the Articles of Merger became effective as of 12:01 a.m. CDT
on June 8, 1999, and, pursuant to the terms of the Agreement, the merger of Fox
Cities Bank and AnchorBank, S.S.B., wholly-owned subsidiaries of FCB and the
Registrant, respectively, became effective immediately thereafter.
Pursuant to the terms of the Agreement, the exchange ratio in the
Merger was 1.83 shares of the Registrant's common stock for each share of FCB
common stock outstanding at the effective time, plus cash in lieu of fractional
shares at the rate of $17.06 per whole share
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of the Registrant's common stock. As a result of the Merger, the Registrant
issued 7,026,395 shares of common stock and will pay approximately $9,493.02 in
cash in lieu of the issuance of fractional shares. In its capacity as the
Registrant's Exchange Agent, Firstar Bank Milwaukee, N.A. mailed Letters of
Transmittal to former FCB shareholders on or about June 8, 1999.
The Merger was accounted for as a pooling of interests transaction
under generally accepted accounting principles.
At March 31, 1999, FCB and its subsidiaries had assets of approximately
$521,909,000.
ITEM 5. OTHER EVENTS
Pursuant to the terms of the Agreement, the Registrant also entered
into employment contracts dated as of June 8, 1999, with Mr. James J. Rothenbach
and Mr. Donald D. Parker, former officers of FCB, which agreements are being
filed herewith as Exhibits 10.1 and 10.2, respectively, and are incorporated
herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial statements of business acquired: To be filed by
amendment pursuant to Item 7(a)(4) of Form 8-K.
(b) Pro forma financial information: To be filed by amendment
pursuant to Item 7(b)(2) of Form 8-K.
(c) Exhibits: See Exhibit Index attached hereto and incorporated
herein by reference.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ANCHOR BANCORP WISCONSIN INC.
By: /s/ Michael W. Helser
-------------------------------------
Michael W. Helser
Treasurer and Chief Financial Officer
Dated: June 22, 1999
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EXHIBIT INDEX
TO
CURRENT REPORT ON FORM 8-K
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<CAPTION>
INCORPORATED
EXHIBIT HEREIN BY FILED
NUMBER DESCRIPTION REFERENCE FROM HEREWITH
- ------ ----------- -------------- --------
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3.1 Articles of Merger relating to the merger of X*
FCB Financial Corp. and the Registrant effective
June 8, 1999
10.1 Employment Agreement dated as of June 8, 1999, X
by and between the Registrant and Mr. James J.
Rothenbach
10.2 Employment Agreement dated as of June 8, 1999, X
by and between the Registrant and Mr. Donald D.
Parker
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* The Agreement and Plan of Merger dated January 5, 1999, between FCB
Financial Corp. and the Registrant referenced in and attached to the
Articles of Merger is filed as Exhibit 2.1 to the Registrant's Registration
Statement on Form S-4 filed with the Commission on April 28, 1999 (File No.
333-77163) and is incorporated herein by reference thereto.
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EXHIBIT 3.1
ARTICLES OF MERGER
OF
FCB FINANCIAL CORP. INTO ANCHOR BANCORP WISCONSIN INC.
On behalf of the Surviving Corporation named herein, and pursuant to
Section 180.1105 of the Wisconsin Business Corporation Law, the undersigned
hereby makes and executes these Articles of Merger and states as follows:
A. CORPORATIONS PARTY TO THE MERGER
ANCHOR BANCORP WISCONSIN INC., a Wisconsin corporation, the
Surviving Corporation.
FCB FINANCIAL CORP., a Wisconsin corporation, the Merging
Corporation.
B. PLAN OF MERGER.
A true and correct copy of the Agreement and Plan of Merger
between the parties dated January 5, 1999 is attached hereto. The
Plan was approved in accordance with Section 180.1103 of the
Wisconsin Statutes.
C. EFFECTIVE DATE AND TIME.
These Articles of Merger shall be effective as of 12:01 a.m. on
June 8, 1999.
Dated as of the 7th day of June, 1999.
ANCHOR BANCORP WISCONSIN INC.
By: /s/ Douglas J. Timmerman
----------------------------------
Douglas J. Timmerman, President
This instrument was drafted by John F. Emanuel
Please return to: John F. Emanuel
Whyte Hirschboeck Dudek S.C.
111 East Wisconsin Avenue
Suite 2100
Milwaukee, Wisconsin 53202-4894
(414) 273-2100
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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is effective as of the 8th day of June, 1999
between Anchor BanCorp Wisconsin Inc. (the "Company"), a Wisconsin-chartered
corporation, AnchorBank, S.S.B. (the "Bank"), a Wisconsin-chartered savings
association and wholly-owned subsidiary of the Company, their respective
successors and assigns, and James J. Rothenbach (the "Executive").
RECITALS
WHEREAS, the Company and FCB Financial Corp ("FCB Financial") entered
into an Agreement and Plan of Merger, dated January 5, 1999 (the "Merger
Agreement"), providing for the combination of the Company and FCB Financial and
a concurrent combination of the Bank and Fox Cities Bank ("FCB Bank") in a
strategic merger, wherein the Company and the Bank survive the merger
(collectively, the "Merger");
WHEREAS, prior to the Merger, FCB Financial and FCB Bank employed the
Executive as President and Chief Executive Officer;
WHEREAS, Executive previously entered into an Employment Agreement,
dated May 1, 1998, by and among Executive, FCB Financial and FCB Bank (the
"Prior Agreement);
WHEREAS, consummation of the Merger contemplated by the Merger
Agreement is conditioned upon the Company, the Bank and the Executive entering
into an Employment Agreement conforming to the terms hereof and the termination
of the Prior Agreement;
WHEREAS, Executive's skills and extensive experience and knowledge in
the financial institutions industry will substantially benefit the Company and
the Bank;
WHEREAS, the Company and the Bank desire to retain the services of
Executive in connection with the business activities of the Company and the Bank
following the Merger.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, it is agreed as
follows:
1. Employment and Termination of Prior Agreement.
(i) The Bank and Company shall employ Executive and Executive
shall serve the Bank and Company on the terms, conditions and for the period set
forth in Section 2 of this Agreement.
(ii) Executive hereby acknowledges (a) receipt of the amounts
due Executive under the Prior Agreement in connection with the Merger, which
amount has been calculated in
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accordance with Section 2.6 of the Prior Agreement, and (b) termination of the
Prior Agreement in its entirety. Company and Bank acknowledge termination of the
Prior Agreement in its entirety.
(iii) Pursuant to the terms of the Prior Agreement, the
amounts due Executive thereunder as well as under any other agreement or plan
were to be limited such that no portion of said payments would be deemed an
"excess parachute payment" as defined in Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code"). The parties hereto are in agreement that
the present value of any payment (including payments made under the Prior
Agreement, after giving effect to the limitation referred to in the preceding
sentence) to or for the benefit of Executive in the nature of compensation,
receipt of which is contingent on the occurrence of the Merger, and to which
Section 280G of the Code applies (in the aggregate "Total Payments"), is equal
to an amount that is one dollar less than the maximum amount that may be paid
without the loss of deduction under Section 280G(a) of the Code. Present value
of the Total Payments for purposes of this Agreement has been calculated in
accordance with Section 280G(d)(4) of the Code. Notwithstanding the foregoing,
if it is ultimately determined by a court or pursuant to a final determination
by the Internal Revenue Service that any portion of the Total Payments is
subject to the tax ("Excise Tax") imposed by Section 4999 of the Code (or any
successor thereto), then Company and Bank shall pay to Executive an additional
amount (the "Gross-Up Payment") such that the net amount retained by Executive
after deduction of (1) any Excise Tax and any interest charges or penalties in
respect to the imposition of such Excise Tax (but not any federal, state or
local income tax) on the Total Payments, and (2) any federal, state and local
income tax and Excise Tax upon the payment provided for by this Section 1(iii)
shall be equal to the Total Payments. For purposes of determining the amount of
the Gross-Up 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 Gross-Up 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 Gross-Up Payment is made, net
of the maximum reduction of federal income taxes that could be obtained from
deduction of such state and local taxes.
2. Term of Employment. The period of Executive's employment under this
Agreement shall begin as of June 8, 1999 (the Commencement Date) and expire on
the first anniversary of the Commencement Date, unless sooner terminated as
provided herein; provided that, on a date no less than 180 days preceding the
first anniversary and, assuming renewal of this Agreement as provided herein, on
each subsequent 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 an explicit review by the Boards of Executive's performance under this
Agreement (with appropriate documentation thereof and after taking into account
all relevant factors including Executive's performance hereunder), to add one
additional year to the remaining term of employment. The Boards of Directors of
the Company and the Bank shall provide Executive with at least one hundred
eighty (180) days' advance written notice of any decision on their part not to
extend the Agreement prior to the expiration of the initial term or any renewal
term hereof; in the absence of such written notice the term of this Agreement
shall automatically be so extended. The term of employment as in effect from
time to time hereunder shall be referred to as the "Employment Term". In the
event the Company and Bank give notice
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to Executive that at the end of the initial term of this Agreement it shall not
be renewed, Executive shall nonetheless continue as an employee of the Company
and the Bank hereunder (including for purposes of all employee benefit and other
plans), and shall continue to render the services required of him hereunder, for
the remainder of such initial term; provided that the Company and Bank will make
reasonable accommodation to the Executive for the time required for his efforts
to secure other employment during such period. In the event that Company and
Bank give notice to Executive that any subsequent renewal term of this Agreement
shall not be renewed, Executive may terminate his employment under this
Agreement at any time following the receipt of such notice; provided, however,
that in such event Executive shall, as a severance benefit, continue to receive
his compensation and benefits as provided in Section 4 through the expiration of
the Employment Term and for purposes of all employee benefit and other plans
shall continue to be deemed an employee of Company and Bank through the
expiration of such Employment Term.
3. Positions and Duties. Executive shall serve as Senior Vice President
of the Bank and Company (or in such other position and with such other title as
the Board of Directors of the Bank and the Company may determine, provided that
the level of authority and responsibilities attendant to Executive's position
are not materially reduced) and as a member of the management team. As such,
Executive shall report directly to the 1st Vice President-Commercial Lending of
the Bank and be generally responsible for management services of the type
customarily performed by persons serving in similar capacities at other
institutions, together 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 Bank's and Company's Boards of Directors to be necessary to their
operations and in accordance with their bylaws. Company and Bank agree that
during the Employment Term they will not reduce materially Executive's level of
authority, status or responsibilities without Executive's prior written consent.
Furthermore, Executive shall not be required, without his prior written consent,
to be based anywhere other than within the Oshkosh-Neenah/Menasha-Appleton
metropolitan areas, except for reasonable business travel in connection with the
business of Company and Bank.
4. Compensation. As compensation for services provided pursuant to this
Agreement, Executive shall receive from the Bank and the Company (collectively,
"Employers") 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 $155,000 per annum. 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. 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. For purposes of this
Agreement, the term "Executive Officers" shall mean all officers of the Bank
and/or Company having a written Employment Agreement.
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(ii) Bonus and Incentive Plans. 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); 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 or Boards (except to the extent Executive had earned or otherwise
accumulated vested rights therein prior to such discontinuance). In addition,
Executive shall participate in all stock purchase, stock option, stock
appreciation right, stock grant, or other stock based incentive programs of any
type made available by Employers to their Executive Officers. The Employers
shall not make any changes in such plans, benefits or privileges which would
adversely affect Executive's rights or benefits thereunder, unless such change
occurs pursuant to a program applicable to all Executive Officers of the
Employers and does not result in a proportionately greater adverse change in the
rights and benefits of Executive as compared with other Executive Officers. Any
stock options granted to Executive pursuant to any of the foregoing plans shall
provide that they vest in full no later than one day prior to the end of the
Employment Term hereunder; provided that such vesting will not be accelerated if
the Executive's employment is terminated for "cause" as provided in Section 5
hereof.
(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 other
Executive Officers. 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. Employers 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 Employers under the terms of such corporate automobile policy as
they shall maintain in effect and as it may be amended from time to time;
provided, however, that if the Employers' corporate automobile policy is amended
in a manner adverse to Executive, or this Agreement is terminated, in either
case on or prior to the first anniversary of the Commencement Date, Executive
shall be entitled to purchase his current automobile (1998 Buick LaSabre) or a
comparable vehicle from the Employers for the lesser of $3,000 or the net book
value of such vehicle.
Executive shall receive at least four weeks of paid vacation
per annum, sick time, personal days and other perquisites in the same manner and
to the same extent as provided under the Employers' policies as in effect from
time to time for other Executive Officers. In addition, Employers shall provide
Executive with a membership in the Oshkosh Country Club or its equivalent.
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 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 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
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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. In addition to a termination of employment by Executive
as contemplated in Section 2, this Agreement may be terminated prior to the
expiration of the Employment Term, 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 pursuant to this Section 5, 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 Employers 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 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 his
principal residence. The costs of any such medical examination shall be borne by
the Employers. 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 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 he was entitled under
Section 4 through the Termination Date and, in addition, shall receive all
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other benefits under the Employers' benefit plans and programs to which he was
entitled by reason of employment through the Termination Date.
(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 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: (i) the
intentional failure by Executive to substantially perform his duties (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 Employers, which demand specifically identifies the manner in
which they believe Executive has not substantially performed his duties, (ii)
any willful act of misconduct by Executive, (iii) 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, (iv) a criminal
conviction of Executive for the commission of any felony, (v) a breach of
fiduciary duty involving personal profit, (vi) a willful violation of any law,
rule or regulation (other than a traffic violation or similar offenses) or final
cease and desist order; or (vii) personal dishonesty or material breach by
Executive 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.
(iv) Voluntary Termination by Executive. In addition to the
right to terminate employment following a nonrenewal of this Agreement as
provided in Section 2, Executive may voluntarily terminate his employment under
this Agreement at any time by giving at least thirty (30) days prior written
notice to Employers. In the event of a termination pursuant to this Section
5(iv), 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
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 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.ss.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.
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(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. ss. 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 Office of Thrift Supervision ("OTS"), or his or her
designee at the time the Federal Deposit Insurance
Corporation ("FDIC") or Resolution Trust Corporation
("RTC") enters into an agreement to provide assistance
to or on behalf of the Employers 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 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. ss. 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. ss. 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 by the
Employers (1) other than for cause, death, disability or retirement, 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 the Executive shall receive (a) his Base Salary
through the end of the Employment Term, (b) his theretofore unpaid Base Salary
for the period of employment up to the Termination Date, (c) medical, dental and
life insurance through the end of the Employment Term and the other employee
benefits contemplated by Section 4 through the end of the Employment Term, and
(d) any other benefits to which Executive is entitled by law or the specific
terms of the Bank's policies in effect at the time of termination of employment.
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6. 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.
As used in this Agreement "Employers" shall mean the
Employers as hereinbefore defined (and any successor
to their business and/or assets) 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 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 he elects to terminate
this Agreement, to compensation from the Employers in
the same amount and on the same terms as he would be
entitled to under this Agreement if he terminated his
employment under Section 5(vi). 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
his 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 FCB Financial and FCB Bank have invested and
Employers will during the Employment Term invest considerable time and money in
his development of such contacts and relationships, that Employers could suffer
irreparable harm if he 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 mutual
promises contained herein, that in the event of any termination or cessation of
his employment hereunder (regardless of the reason for such termination or
cessation), Executive shall not accept employment with or render services (in
any capacity, whether as employee, officer, director, partner, trustee
consultant or otherwise) to any Significant Competitor of Bank for a period of
8
<PAGE> 9
one (1) year 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 the Wisconsin counties of Winnebago and
Outagamie 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 $5,000,000 in commercial or mortgage loans secured
by real property in any such county; provided, however, that Executive shall not
be deemed to have breached this covenant not to compete (a) solely by reason of
his rendering services otherwise prohibited by this Section 6(ii) for a
financial institution which has its home office located outside of the Wisconsin
counties of Winnebago and Outagamie if he renders such services from a
full-service banking office of such financial institution which is located
outside these same Wisconsin counties or (b) if his sole relationship with any
other such entity consists of his holding, directly or indirectly, an equity
interest in such entity not greater than five percent (5%) of such entity's
outstanding equity interests.
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, posted prepaid, addressed as follows:
If to the Bank Anchor BanCorp Wisconsin Inc./
AnchorBank, S.S.B.
25 West Main Street
Madison, Wisconsin 53703
If to the Executive James J. Rothenbach
2550 Lamplight Ct.
Oshkosh, WI 54904
9
<PAGE> 10
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. 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 Section 5(i) (in the case of retirement), (ii), (iii) or (vi),
or by Executive under Sections 2, 5(i) (in the case of retirement) (iii), (iv)
or (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
given, except in the case of termination of Executive's employment for Cause or
termination by Executive pursuant to Section 2; 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 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 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. 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.
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<PAGE> 11
(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.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first above written.
Executive:
/s/ James J. Rothenbach
-----------------------------------
James J. Rothenbach
ANCHOR BANCORP WISCONSIN INC.
(CORPORATE SEAL)
By: /s/ Douglas J. Timmerman
-----------------------------------
Its: President
ANCHORBANK, S.S.B.
(CORPORATE SEAL)
By: /s/ Douglas J. Timmerman
-----------------------------------
Its: President
11
<PAGE> 1
EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into
this 8th day of June, 1999, between Anchor BanCorp Wisconsin Inc., a Wisconsin
corporation (the "Company"), AnchorBank, S.S.B., a Wisconsin-chartered savings
bank which is wholly-owned by the Company ("AnchorBank") and Donald D. Parker
(the "Executive").
WHEREAS, FCB Financial Corp., a Wisconsin corporation ("FCB"),
entered into an Agreement and Plan of Merger, dated January 5, 1999 (the "Merger
Agreement"), providing for the combination of the Company and FCB and a
concurrent combination of AnchorBank and Fox Cities Bank ("Fox Cities") in a
merger, wherein the Company and AnchorBank survive the merger (collectively, the
"Merger"); and
WHEREAS, prior to the Merger, the Executive was employed as
Chairman of the Board of FCB and Fox Cities pursuant to an Employment Agreement,
dated May 1, 1997, between FCB, Fox Cities and the Executive (the "Prior
Agreement"); and
WHEREAS, consummation of the Merger contemplated by the Merger
Agreement is conditioned upon the Company, AnchorBank and the Executive entering
into an Employment Agreement conforming to the terms hereof and superseding the
Prior Agreement; and
WHEREAS, the Executive's skills and extensive experience and
knowledge in the financial institutions industry will substantially benefit the
Company and AnchorBank; and
WHEREAS, the Company and AnchorBank desire to retain the
services of the Executive in connection with the business activities of the
Company and AnchorBank following the Merger.
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein contained, it is
agreed as follows:
ARTICLE I
EMPLOYMENT
1.1 Term of Employment; Termination of Prior Agreement.
The Company and AnchorBank hereby agree to employ the
Executive for a period commencing on June 8, 1999 (the "Commencement Date") and
terminating upon the Executive's retirement on October 31, 1999, subject to
earlier termination as provided in Article II hereof. This Agreement shall
supersede the Prior Agreement and the parties hereto agree and acknowledge that,
following execution of this Agreement, the Prior Agreement shall be of no
further force or effect.
<PAGE> 2
1.2 Duties of the Executive.
The Company and AnchorBank hereby employ the Executive, and
the Executive hereby accepts employment with the Company and AnchorBank, upon
the terms and conditions hereinafter set forth for the term of this Agreement.
The Executive is employed by AnchorBank to perform the duties of Senior Vice
President of AnchorBank, and the Company shall cause AnchorBank to appoint the
Executive to such position. As part of the Executive's employment by AnchorBank
hereunder, the Executive shall also serve as, and the Company hereby appoints
the Executive during the term of his employment by AnchorBank hereunder to serve
as, Senior Vice President of the Company. The services to be performed by the
Executive shall include those normally performed by the Senior Vice President of
similar banking organizations and as directed by the Board of Directors of the
Company and AnchorBank, respectively, which are not inconsistent with the
foregoing; provided, however, that in no event shall the Executive be obligated
to perform duties substantially different from those the Executive performed
under the Prior Agreement. The Executive agrees to devote his full business time
to the rendition of such services, subject to absences for customary vacations
and for temporary illnesses and except as otherwise provided by the Board of
Directors of each of the Company and AnchorBank. The Company and AnchorBank each
agree that during the term of this Agreement it will not reduce the Executive's
current job title, status or responsibilities without the Executive's prior
written consent. Furthermore, the Executive shall not be required, without his
express written consent, to be based anywhere other than within the
Oshkosh-Neenah/Menasha-Appleton metropolitan area, except for reasonable
business travel in connection with the business of the Company and AnchorBank
1.3 Compensation.
Upon execution of this Agreement, the Company and AnchorBank
shall pay the Executive a lump sum amount equal to $31,800 as a signing bonus
and as consideration for termination of the Prior Agreement, and, thereafter,
AnchorBank agrees to compensate, and the Company agrees to cause AnchorBank to
compensate, the Executive for his services hereunder during the term of this
Agreement by payment of an aggregate salary of $31,800 in such monthly,
semi-monthly or other payments as are from time to time applicable to other
executive officers of AnchorBank. In order to determine the salary paid the
Executive hereunder for purposes of calculating benefits under employee benefit
plans in which the Executive participates, the aggregate of the signing bonus
and the salary provided in the preceding sentence shall be used. The Executive's
salary may be increased from time to time during the term of this Agreement in
the sole discretion of the Board of Directors of AnchorBank, but the Executive's
salary shall not be reduced below the level then in effect. In addition, the
Executive shall be entitled to participate in incentive compensation plans as
may from time to time be established by the Company or AnchorBank on an
equivalent basis as other executive officers of the Company or AnchorBank (but
recognizing differences in responsibilities among executive officers). All
advisory director fees in respect to the Company and AnchorBank received by the
Executive shall be included along with his salary for purposes of computing any
amount to which he may become entitled under any employee benefit plan of the
Company and AnchorBank.
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<PAGE> 3
1.4 Benefits.
(a) The Executive shall be provided the following additional
benefits, (i) participation in any pension, profit-sharing, deferred
compensation or other retirement plan, (ii) medical, dental and life insurance
coverage consistent with coverages provided to other executive officers of
AnchorBank, (iii) the use of an automobile and membership or appropriate
affiliation with a service club and a recreational club, (iv) reimbursement of
business expenses reasonably incurred in connection with his employment and
expenses incurred by his spouse when accompanying the Executive, (v) paid
vacations and sick leave in accordance with prevailing policies of AnchorBank,
provided that allowed vacations shall in no event be less than five weeks per
annum (determined pro rata based on the term of this Agreement), and (vi) such
other benefits as are provided to other executive officers of AnchorBank;
provided that amounts allocated to the Executive's personal use under clause
(iii) above and additional charges for the Executive's spouse pursuant to clause
(iv) above shall be treated as taxable income to the Executive in accordance
with applicable AnchorBank policies.
(b) If the Executive shall become temporarily disabled or
incapacitated to the extent that he is unable to perform the duties of Senior
Vice President of the Company or AnchorBank for three (3) consecutive months, he
shall nevertheless be entitled to receive 100 percent of his compensation and
benefits under Sections 1.3 and 1.4 of this Agreement for the period of his
disability up to three (3) months, less any amount paid to the Executive under
any other disability program maintained by the Company or AnchorBank or
disability insurance policy maintained for the benefit of the Executive by the
Company or AnchorBank. Upon returning to active full-time employment, the
Executive's full compensation as set forth in this Agreement shall be
reinstated. In the event that the Executive returns to active employment on
other than a full-time basis with the approval of the Board of Directors of
AnchorBank, then any future compensation to be paid the Executive (as set forth
in Section 1.3 of this Agreement) shall be reduced proportionately based upon
the fraction of full-time employment devoted by the Executive to his employment
and responsibilities at AnchorBank and the Company. But, if he is again unable
to perform the duties of Senior Vice President of the Company and AnchorBank
hereunder due to disability or incapacity, he must have been engaged in active
full-time employment (which period of full-time employment shall also include
employment with FCB and Fox Cities) for at least twelve (12) consecutive months
immediately prior to such later absence or inability in order to qualify for the
full or partial continuance of his salary under this Section (b).
1.5 Covenant Not to Compete.
The Executive acknowledges that the Company and AnchorBank
would be substantially damaged by an association of the Executive with a
depository institution that competes for customers with the Company and
AnchorBank. Without the consent of the Company, the Executive shall not at any
time during the term of this Agreement or the Executive's employment by the
Company and AnchorBank, and for a period of one year thereafter (regardless of
the reason for termination), (i) on behalf of himself or as agent of any other
person solicit any person who was a customer of the Company or AnchorBank (or
the former FCB or Fox Cities) or any of their subsidiaries during the two year
period prior to the termination of this Agreement or the Executive's employment
hereunder or under the Prior Agreement for the purpose of offering the same
products or rendering the same services to such customer as were provided or
proposed to
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<PAGE> 4
be provided by the Company or AnchorBank (or the former FCB or Fox Cities) or
any of their subsidiaries to such customer as of the time of termination of the
Executive's employment, (ii) directly or indirectly, on the Executive's behalf
or in the service or on the behalf of others, render or be retained to render
similar services as described in Section 1.2 hereof, whether as an officer,
partner, trustee, consultant, or employee for any depository institution, which
has a banking office located within 10 miles of any office of the Company,
AnchorBank, the former Fox Cities or any banking office of the former FCB (in
the case of Fox Cities or FCB in existence immediately prior to the Commencement
Date), provided, however, that the Executive shall not be deemed to have
breached this undertaking if (a) he renders services otherwise prohibited by
this paragraph (ii) for a depository institution which has its home office
located outside of the Wisconsin counties of Winnebago and Outagamie and he
renders such services from a full-service banking office of such depository
institution which is located outside these same Wisconsin counties, or (b) his
sole relationship with any other such entity consists of his holding, directly
or indirectly, an equity interest in such entity not greater than three percent
(3%) of such entity's outstanding equity interest, or (iii) actively induce or
solicit any employees of the Company or AnchorBank (including former employees
of Fox Cities or FCB who are then employed by the Company or AnchorBank) to
leave such employ. For purposes of this Section 1.5, "person" shall include any
individual, corporation, partnership, trust, firm, proprietorship, venture or
other entity of any nature whatsoever.
ARTICLE II
TERMINATION OF EMPLOYMENT
2.1 Voluntary Termination of Employment by the Executive.
The Executive may terminate his employment hereunder at any
time for any reason upon giving the Company and AnchorBank written notice, at
least ninety (90) days prior to termination of employment. Upon such
termination, the Executive shall be entitled to receive the Executive's
theretofore unpaid base salary in effect at the date such written notice is
given for the period of employment up to the date of termination, and the
Executive and his spouse and dependents will be entitled to further medical
coverage, at his and/or their expense, to the extent required by COBRA.
2.2 Termination of Employment for Death.
If the Executive's employment is terminated by reason of the
Executive's death, then the Executive's personal representative shall be
entitled to receive the Executive's theretofore unpaid base salary for the
period of employment up to the date of death. The Executive's spouse and
dependent children shall continue to be entitled, at the expense of AnchorBank
(subject to then existing co-payment features applicable under AnchorBank's
medical insurance plan) if it is an insured plan, to further medical coverage to
the extent permitted by COBRA; provided that, if AnchorBank's plan is not
insured, AnchorBank will pay to the Executive's spouse an additional monthly
death benefit during the applicable COBRA period, based upon COBRA rates in
effect at the time of the Executive's death, in an amount equal to the COBRA
rate plus taxes due on such cash payment; provided further that this benefit
shall cease if the spouse and dependents cease to be eligible for COBRA
coverage.
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<PAGE> 5
2.3 Termination of Employment for Disability.
If the Executive becomes Totally and Permanently Disabled (as
defined below) during the term of this Agreement, the Company and AnchorBank may
terminate the Executive's employment and this Agreement, except Section 1.5 and
Article IV hereof, by giving the Executive written notice of such termination
not less than 5 days before the effective date thereof. If the Executive's
employment and this Agreement are terminated pursuant to this Section 2.3, the
Company and AnchorBank shall pay to the Executive his theretofore unpaid base
salary for the period of employment up to the date of termination, and the
Company and AnchorBank shall have no further obligations to the Executive under
this Agreement, except for any COBRA obligations. The Executive is Totally and
Permanently Disabled for purposes of this Section 2.3 if he is disabled or
incapacitated to the extent that he is unable to perform the duties of Senior
Vice President of the Company or AnchorBank for more than three (3) consecutive
months, and such disability or incapacity (i) is expected to continue for more
than three (3) additional months as certified by a medical doctor of the
Company's choosing which is not contradicted by a doctor of the Executive's
choosing or (ii) shall have in fact continued for more than three (3) additional
months.
2.4 Termination of Employment by the Company for Just Cause.
The Company and AnchorBank may terminate the Executive's
employment hereunder for Just Cause (as such term is defined below), in which
case the Executive shall be entitled to receive the Executive's theretofore
unpaid base salary for the period of employment up to the date of termination,
but shall not be entitled to any compensation or employment benefits pursuant to
this Agreement for any period after the date of termination, or the continuation
of any benefits except as may be required by law, including, at his own expense,
COBRA.
"Just Cause" shall mean personal dishonesty, incompetence,
willful misconduct or breach of a fiduciary duty involving personal profit in
the performance of his duties under this Agreement, intentional failure to
perform stated duties (provided that such nonperformance has continued for 10
days after the Company and AnchorBank has given written notice of such
nonperformance to the Executive and its intention to terminate the Executive's
employment hereunder because of such nonperformance), willful violation of any
law, rule or regulation (other than a law, rule or regulation relating to a
traffic violation or similar offense), final cease-and-desist order, termination
under the provisions of Section 2.7(b) and (c) or material breach of any
provision of this Agreement.
2.5 Termination of Employment by the Company and AnchorBank
Without Cause.
The Company and AnchorBank may terminate the Executive's
employment hereunder without cause, in which case the Executive shall receive
(a) his base salary under Section 1.3 hereof through the then remaining term of
employment under Section 1.1, (b) his theretofore unpaid base salary for the
period of employment up to the date of termination, (c) medical, dental and life
insurance and all other benefits through the then remaining term of employment
under Section 1.1 consistent with the terms and conditions set forth in Section
1.4, (d) any other benefits to which the Executive is entitled by law or the
specific terms of the Company's and AnchorBank's policies in effect at the time
of termination of employment and (e) an amount
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<PAGE> 6
equal to the product of the Company's and AnchorBank's annual aggregate
contribution, for the benefit of the Executive, to all qualified retirement
plans in which the Executive participated multiplied by the fraction of a year
remaining in the term of employment under Section 1.1. The benefit in (e) under
this Section 2.5 shall be in addition to any benefit payable from any qualified
or non-qualified plans or programs maintained by the Company or AnchorBank at
the time of termination. If AnchorBank's medical and dental plans are not
insured, the medical and dental benefit in (c) shall be accomplished by
AnchorBank paying to the Executive an additional cash amount equal to the COBRA
premium for such coverage, plus taxes on such amount, so that the Executive may
purchase the coverage on an after-tax basis. Notwithstanding the foregoing, in
the event that the Executive is terminated pursuant to this Section 2.5, the
Executive shall nonetheless be deemed to continue as an employee of the Company
through the term of this Agreement for the sole purpose of determining his
rights under his outstanding stock options.
2.6 Definition of Termination of Employment.
The terms "termination" or "involuntarily terminated" in this
Agreement shall refer to the termination of the employment of the Executive by
the Company or AnchorBank without his express written consent. In addition, for
purposes of this Agreement, a material diminution or interference with the
Executive's duties, responsibilities and benefits as Senior Vice President of
the Company or AnchorBank shall be deemed and shall constitute an involuntary
termination of employment to the same extent as express notice of such
involuntary termination. By way of example and not by way of limitation, any of
the following actions shall constitute such diminution or interference unless
consented to in writing by the Executive: (1) a change in the principal work
place of the Executive to a location outside a twenty-five mile radius from 420
South Koeller Street, Oshkosh, Wisconsin; (2) a material reduction in the
secretarial or other administrative support of the Executive; (3) a material
demotion of the Executive; and (4) a reduction or adverse change in the salary,
perquisites, benefits, contingent benefits or vacation time which had
theretofore been provided to the Executive, other than as part of an overall
program applied uniformly and with equitable effect to all executive officers of
the Company or AnchorBank.
2.7 Termination or Suspension of Employment as Required by Law.
Notwithstanding anything in this Agreement to the contrary,
the following provisions shall limit the obligation of AnchorBank to continue
employing the Executive, but only to the extent required by the applicable
regulations of the OTS (12 C.F.R. ss.563.39), or similar succeeding regulations:
(a) If the Executive is suspended and/or temporarily
prohibited from participating in the conduct of AnchorBank's affairs by a notice
served under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. ss.1818(e)(3) and (g)(1)) AnchorBank's obligations under this Agreement
shall be suspended as of the date of service of notice, unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, AnchorBank
shall (i) pay the Executive all or part of the compensation withheld while its
contract obligations hereunder were suspended and (ii) reinstate (in whole or in
part) any of its obligations which were suspended.
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<PAGE> 7
(b) If the Executive is removed and/or permanently prohibited
from participating in the conduct of AnchorBank's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
ss.1818(e)(4) or (g)(1)) all obligations of AnchorBank under this Agreement
shall terminate as of the effective date of the order.
(c) If AnchorBank is in default (as defined in Section 3(x)(1)
of the Federal Deposit Insurance Act), the obligation to the Executive hereunder
shall terminate as of the date of default.
(d) All obligations under this Agreement may be terminated:
(i) by the Director of the Office of Thrift Supervision (the "Director") or his
or her designee at the time the Federal Deposit Insurance Company enters into an
agreement to provide assistance to or on behalf of AnchorBank under the
authority contained in Section 13(c) of the Federal Deposit Insurance Act and
(ii) by the Director, or his or her designee at the time the Director or such
designee approves a supervisory merger to resolve problems related to operation
of AnchorBank or when AnchorBank is determined by the Director to be in an
unsafe or unsound condition.
(e) Termination pursuant to subparagraph (d) of this Section
2.7 shall be treated as a termination by AnchorBank without cause entitling the
Executive to benefits payable under Section 2.5. Termination pursuant to
subparagraph (a), (b) or (c) shall be treated as a termination for Just Cause
under Section 2.4. Termination under this Section 2.7 shall not affect other
rights hereunder which are vested at the time of termination.
2.8 Limitation on Termination or Disability Pay.
Any payments made to the Executive pursuant to this Agreement
or otherwise are subject to and conditioned upon their compliance with 12
U.S.C.ss. 1828(k) and any regulations promulgated thereunder. Total compensation
paid to the Executive upon termination shall not exceed the limitations set
forth in OTS Regulatory Bulletin RB-27a, dated March 5, 1993. If any provision
regarding termination contained herein conflicts with 12 C.F.R. ss.563.39(b),
the latter shall prevail.
ARTICLE III
LEGAL FEES AND EXPENSES
The Company shall pay, or shall cause AnchorBank to pay, all
legal fees and expenses which the Executive may incur as a result of the Company
or AnchorBank contesting the validity or enforceability of this Agreement,
provided that the Executive is the prevailing party in such contest or that any
dispute may otherwise be settled in favor of the Executive. The Executive shall
be entitled to receive interest thereon for the period of any delay in payment
from the date such payment was due at the rate determined by adding two hundred
basis points to the six-month Treasury Bill rate.
ARTICLE IV
CONFIDENTIALITY
The Executive acknowledges that he now has, and in the course
of his employment will have, access to important and confidential information
regarding the business and services of
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<PAGE> 8
the Company, AnchorBank and their subsidiaries, as well as similar information
regarding FCB and its subsidiaries and that the disclosure to, or the use of
such information by, any business in competition with the Company, AnchorBank or
their subsidiaries shall result in substantial and undeterminable harm to the
Company, AnchorBank and their subsidiaries. In order to protect the Company,
AnchorBank and their subsidiaries against such harm and from unfair competition,
the Executive agrees with the Company and AnchorBank that while employed by the
Company and AnchorBank and at any time thereafter, the Executive will not
disclose, communicate or divulge to anyone, or use in any manner adverse to the
Company, AnchorBank or their subsidiaries any information concerning customers,
methods of business, financial information or other confidential information of
the Company, AnchorBank, their subsidiaries or similar information regarding FCB
and its subsidiaries, except for information as is in the public domain or
ascertainable through common sources of public information (otherwise than as a
result of any breach of this covenant by the Executive).
ARTICLE V
GENERAL PROVISIONS
5.1 Inquiries Regarding Proposed Activities.
In the event the Executive shall inquire in writing of the
Company whether any proposed action on the part of the Executive would be
considered by the Company or AnchorBank to be prohibited by or in breach of the
terms of this Agreement, the Company shall have 30 days after receipt of such
notice to express in writing to the Executive its position with respect thereof
and in the event such writing shall not be given to the Executive, such proposed
action, as set forth in the writing of the Executive, shall not be deemed to be
a violation of or breach of this Agreement.
5.2 No Duty of Mitigation.
The Executive shall not be required to mitigate the amount of
any payment or benefit provided for in this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment or benefit provided
for in this Agreement be reduced by any compensation earned by the Executive as
the result of employment by another employer, by retirement benefits after the
date of termination of this Agreement or otherwise.
5.3 Successors.
This Agreement may be assigned by the Company or AnchorBank to
any other business entity that is directly or indirectly controlled by the
Company or AnchorBank. This Agreement may not be assigned by the Company or
AnchorBank except in connection with a merger involving the Company or
AnchorBank or a sale of substantially all of the assets of the Company or
AnchorBank, and the respective obligations of the Company and AnchorBank
provided for in this Agreement shall be the binding legal obligations of any
successor to the Company or AnchorBank by purchase, merger, consolidation, or
otherwise and such successor shall be obligated to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company and AnchorBank would have been required to perform if no such succession
had taken place. Failure of the Company and/or AnchorBank to obtain such
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agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement and shall entitle the Executive, if he elects to terminate this
Agreement, to treat such termination as though it was a termination without
cause by the Company and AnchorBank pursuant to Section 2.5 hereof. This
Agreement may not be assigned by the Executive during his life, and upon his
death will be binding upon and inure to the benefit of his heirs, legatees and
the legal representatives of his estate.
5.4 Notice.
For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth on the signature page of this Agreement (provided that all
notices to the Company and AnchorBank shall be directed to the attention of the
Board of Directors of the Company and/or AnchorBank, as the case may be, with a
copy to the Secretary of the Company and/or AnchorBank, as the case may be), or
to such other address as either party may have furnished to the other in writing
in accordance herewith.
5.5 Amendments.
No amendment or additions to this Agreement shall be binding
unless in writing and signed by all parties, except as herein otherwise
provided.
5.6 Severability.
The provisions of this Agreement shall be deemed severable and
the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof.
5.7 Governing Law.
This Agreement shall be governed by the laws of the United
States to the extent applicable and otherwise by the internal laws of the State
of Wisconsin.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
ANCHOR BANCORP WISCONSIN INC.
By: /s/ Douglas Timmerman
------------------------------
Address: 25 West Main Street
Madison, Wisconsin 53703
ANCHORBANK, S.S.B.
By: /s/ Douglas Timmerman
------------------------------
Address: 25 West Main Street
Madison, Wisconsin 53703
EXECUTIVE
By: /s/ Doanld D. Parker
------------------------------
Donald D. Parker
Address: 5740 I-AH-MAYTAH Road
Oshkosh, Wisconsin 54901
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