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): May 1, 1997
FCB FINANCIAL CORP.
(Exact name of registrant as specified in its charter)
Wisconsin 0-22066 39-1760287
(State or other (Commission File Number) (IRS Employer
jurisdiction Identification No.)
of incorporation)
420 South Koeller Street, Oshkosh, Wisconsin 54902
(Address of principal executive offices, including zip code)
(414) 727-3400
(Registrant's telephone number)
<PAGE>
Item 2. Acquisition or Disposition of Assets.
Effective at the close of business on May 1, 1997, OSB Financial
Corp. ("OSB"), a Wisconsin corporation, was merged (the "Merger") with and
into FCB Financial Corp., a Wisconsin corporation ("FCB"), with FCB as the
surviving corporation. The Merger was consummated in accordance with the
terms of an Agreement and Plan of Merger, dated November 13, 1996 (the
"Merger Agreement"), between FCB and OSB. The Merger Agreement is filed
as an exhibit to this Current Report on Form 8-K. Matters with respect to
the Merger were approved by shareholders of FCB and OSB at special
meetings of shareholders of such companies held on April 24, 1997.
Under the terms of the Merger Agreement, each share of common
stock, $.01 par value, of OSB (the "OSB Common Stock") issued and
outstanding immediately prior to the effectiveness of the Merger was
(except as otherwise provided below) cancelled and converted into the
right to receive 1.46 shares of the common stock, $.01 par value, of FCB
(the "FCB Common Stock") plus cash in lieu of any fractional share. All
shares of OSB Common Stock (i) owned by OSB as treasury stock, (ii) owned
by the OSB Management Development and Recognition Plans and not allocated
to participants thereunder or (iii) owned by FCB have been cancelled and
no FCB Common Stock or other consideration was given in exchange therefor.
Of the 1,157,534 shares of OSB Common Stock issued and outstanding at the
effective time of the Merger, 48,650 shares were cancelled pursuant to the
preceding sentence and the remaining 1,108,884 shares were converted into
shares of FCB Common Stock and cash in lieu of fractional shares as
described above. Shares of FCB Common Stock which were issued and
outstanding at the time of the Merger were not affected by the Merger and
remain outstanding. In connection with the Merger, Oshkosh Savings Bank,
F.S.B., a federally chartered stock savings association and a subsidiary
of OSB, was merged with and into Fox Cities Bank, F.S.B., a federally
chartered stock savings association and a subsidiary of FCB ("Fox Cities
Bank"). Fox Cities Bank was the surviving corporation in that merger.
Pursuant to the terms of the Merger Agreement, directors of OSB,
namely David L. Baston, Thomas C. Butterbrodt, Dr. Edwin L. Downing,
David L. Geurden, David L. Omachinski, James J. Rothenbach and Ronald L.
Tenpas, were added to the Board of Directors of FCB effective as of the
effective time of the Merger. In addition, each of Donald D. Parker,
James J. Rothenbach, Phillip J. Schoofs, Harold L. Hermansen, and Theodore
W. Hoff have entered into employment agreements with FCB and Fox Cities
Bank (the "Employment Agreements"). Pursuant to the Employment
Agreements, each of the above will serve as officers of Fox Cities Bank:
Mr. Parker will serve as Chairman of the Board; Mr. Rothenbach will serve
as President and Chief Executive Officer; Mr. Schoofs will serve as Vice
President, Treasurer and Chief Financial Officer; Mr. Hermansen will serve
as Vice President-Retail Lending and Secretary; and Mr. Hoff will serve as
Vice President-Retail Sales and Service. The foregoing individuals will
also serve as officers of FCB in accordance with the Employment
Agreements. Copies of the Employment Agreements are filed as exhibits to
this Current Report on Form 8-K.
Additional information regarding the Merger, including a
description of the terms of the Merger and the securities issuable in
connection therewith and the other transactions contemplated thereby was
previously reported (as defined in Rule 12b-2 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) in the definitive
Joint Proxy Statement/Prospectus of FCB and OSB, dated March 12, 1997.
The information in the Joint Proxy Statement/Prospectus responsive to the
requirements of this Item 2 is incorporated herein by reference.
Item 7. Financial Statements and Exhibits.
(a)-(b) Substantially the same information as that required by
paragraphs (a) and (b) of this Item 7 was previously reported (as defined
in Rule 12b-2 under the Exchange Act) in the definitive Joint Proxy
Statement/Prospectus of FCB and OSB, dated as of March 12, 1997. Such
information is incorporated herein by reference.
(c) The exhibits furnished with this Current Report on Form 8-K
are listed on the attached Exhibit Index.
<PAGE>
SIGNATURE
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 thereunto duly authorized.
FCB FINANCIAL CORP.
May 12, 1997 By: /s/ Donald D. Parker
Donald D. Parker
Chairman of the Board
By: /s/ James J. Rothenbach
James J. Rothenbach
President and Chief Executive Officer
<PAGE>
FCB FINANCIAL CORP.
FORM 8-K
EXHIBIT INDEX
Exhibit
Number Description
2.1 Agreement and Plan of Merger between FCB Financial Corp. and
OSB Financial Corp., dated November 13, 1996* [Incorporated
by reference to Exhibit 2.1 to FCB Financial Corp.'s
Registration Statement on Form S-4 (Reg. No. 333-23177)]
2.2 Employment Agreement with Donald D. Parker, dated May 1,
1997
2.3 Employment Agreement with James J. Rothenbach, dated May 1,
1997
2.4 Employment Agreement with Phillip J. Schoofs, dated May 1,
1997
2.5 Employment Agreement with Theodore W. Hoff, dated May 1,
1997
2.6 Employment Agreement with Harold L. Hermansen, dated May 1,
1997
20.1 Joint Proxy Statement/Prospectus, dated March 12, 1997, of
FCB Financial Corp. and OSB Financial Corp. used in
connection with special meetings of shareholders held on
April 24, 1997 [Incorporated by reference to FCB Financial
Corp.'s Registration Statement on Form S-4 (Reg. No.
333-23177)]
23.1 Consent of Wipfli Ullrich Bertelson LLP
-------------------
* The schedules to this document are neither incorporated by reference
herein nor filed herewith. FCB Financial Corp. agrees to furnish
supplementally a copy of any omitted schedule to the Securities and
Exchange Commission upon request.
Exhibit 2.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into
this 1st day of May 1997 between FCB Financial Corp., a Wisconsin
corporation (the "Company"), Fox Cities Bank, F.S.B., a federal savings
bank which is wholly-owned by the Company (the "Bank") and Donald D.
Parker (the "Executive").
WHEREAS, the Company and OSB Financial Corp. ("OSB Financial")
entered into an Agreement and Plan of Merger, dated November 13, 1996 (the
"Merger Agreement"), providing for the combination of the Company and OSB
Financial Corp. and a concurrent combination of the Bank and Oshkosh
Savings Bank, F.S.B. ("OSB Bank") in a strategic merger, wherein the
Company and the Bank survive the merger (collectively, the "Merger");
WHEREAS, prior to the Merger, the Bank employed the Executive as
President and Chief Executive Officer of the Bank;
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;
WHEREAS, Executive's skills and extensive experience and
knowledge in the financial institutions industry will substantially
benefit the Company and the Bank; and
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:
ARTICLE I
EMPLOYMENT
1.1 Term of Employment.
The Bank hereby employs Executive for a period commencing on May 1,
1997 (the "Commencement Date") and terminating on October 31, 1999,
subject to earlier termination as provided in Article II hereof. The
Board of Directors of the Bank shall review this Agreement annually.
1.2 Duties of Executive.
The Bank hereby employs Executive, and Executive hereby accepts
employment with the Bank, upon the terms and conditions hereinafter set
forth for the term of this Agreement. Executive is employed by the Bank
to perform the duties of Chairman of the Board of the Bank, and the
Company shall cause the Bank to appoint Executive to such position. As
part of Executive's employment by the Bank hereunder, Executive shall also
serve as, and the Company hereby appoints Executive during the term of his
employment by the Bank hereunder to serve as, Chairman of the Board of the
Company. The services to be performed by the Executive shall include
those normally performed by the Chairman of the Board of similar banking
organizations and as directed by the Board of Directors of the Company and
the Bank, respectively, which are not inconsistent with the foregoing.
Executive agrees to devote his full business time to the rendition of such
services, subject to absences for customary vacations and for temporary
illnesses. The Company and the Bank 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 consent. Furthermore,
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 the Bank. During the term of this
Agreement, Executive shall also serve as a director of the Company
(subject to being elected by shareholders) and the Bank and shall be
entitled to receive applicable director's fees (including fees for
committee meetings) for service as a director of the Company and the Bank.
1.3 Compensation.
The Bank agrees to compensate, and the Company agrees to cause the
Bank to compensate, the Executive for his services hereunder during the
term of this Agreement by payment of a salary at the annual rate of
$139,200 in such monthly, semi-monthly or other payments as are from time
to time applicable to other executive officers of the Bank. 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 the
Bank, but Executive's salary shall not be reduced below the level then in
effect. In addition, Executive shall be entitled to participate in
incentive compensation plans as may from time to time be established by
the Company or the Bank on an equivalent basis as other executive officers
of the Company or the Bank (but recognizing differences in
responsibilities among executive officers). All directors and committee
meeting fees in respect to the Company and the Bank received by Executive
shall be included along with his salary for purposes of computing any
amount to which he may become entitled under any bonus or similar plan of
the Company and the Bank.
1.4 Benefits.
(a) 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 the Bank
(which initially will include a 30% co-pay by the Executive), (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 Executive, (v) paid
vacations and sick leave in accordance with prevailing policies of the
Bank, provided that allowed vacations shall in no event be less than five
weeks per annum, and (vi) such other benefits as are provided to other
executive officers of the Bank; provided that amounts allocated to
Executive's personal use under clause (iii) above and additional charges
for Executive's spouse pursuant to clause (iv) above shall be treated as
taxable income to Executive in accordance with applicable Bank policies.
(b) If Executive shall become temporarily disabled or incapacitated
to the extent that he is unable to perform the duties of Chairman of the
Board of the Company or the Bank for three (3) consecutive months, he
shall nevertheless be entitled to receive 100 percent of his compensation
under Section 1.3 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 the Bank or disability
insurance policy maintained for the benefit of Executive by the Company or
the Bank. Upon returning to active full-time employment, Executive's full
compensation as set forth in this Agreement shall be reinstated. In the
event that Executive returns to active employment on other than a full-
time basis with the approval of the Board of Directors of the Bank, then
his compensation (as set forth in Section 1.3 of this Agreement) shall be
reduced proportionately based upon the fraction of full-time employment
devoted by Executive to his employment and responsibilities at the Bank
and the Company. But, if he is again unable to perform the duties of
Chairman of the Board of the Company and the Bank hereunder due to
disability or incapacity, he must have been engaged in active full-time
employment 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).
(c) It is the intention of the Company that, within 30 days after
the date of this Agreement, the Company shall cause 10,000 non-tax-
qualified stock options (exercisable for shares of the Company's common
stock) to be granted to Executive. The 10,000 stock options provided for
in this Section 1.4(c) shall be granted by the personnel committee of the
Company under the terms of the Company's 1993 Stock Option and Incentive
Plan and shall vest ratably over a five year period beginning from the
date of their grant and any unvested options shall vest immediately upon
Executive's termination of employment on October 31, 1999.
1.5 Covenant Not to Compete.
Executive acknowledges that the Company and the Bank would be
substantially damaged by an association of Executive with a depository
institution that competes for customers with the Company and the Bank.
Without the consent of the Company, Executive shall not at any time during
the term of this Agreement or Executive's employment by the Bank, 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 the Bank or any of
their subsidiaries during the two year period prior to the termination of
this Agreement or Executive's employment hereunder for the purpose of
offering the same products or rendering the same services to such customer
as were provided or proposed to be provided by the Company or the Bank or
any of their subsidiaries to such customer as of the time of termination
of Executive's employment, (ii) directly or indirectly, on 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 Bank or any banking office of the Company in existence as of
the Commencement Date, provided, however, that 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 the Bank 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 Executive.
Executive may terminate his employment hereunder at any time for any
reason upon giving the Bank written notice, at least ninety (90) days
prior to termination of employment. Upon such termination, Executive
shall be entitled to receive 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 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 Executive's employment is terminated by reason of Executive's
death, then Executive's personal representative shall be entitled to
receive Executive's theretofore unpaid base salary for the period of
employment up to the date of death. Executive's spouse and dependent
children shall continue to be entitled, at the expense of the Bank
(subject to then existing co-payment features applicable under the Bank's
medical insurance plan) if it is an insured plan, to further medical
coverage to the extent permitted by COBRA; provided that, if the Bank's
plan is not insured, the Bank will pay to Executive's spouse an additional
monthly death benefit during the applicable COBRA period, based upon COBRA
rates in effect at the time of 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.
2.3 Termination of Employment for Disability.
If Executive becomes Totally and Permanently Disabled (as defined
below) during the term of this Agreement, the Bank may terminate
Executive's employment and this Agreement, except Section 1.5 and Article
IV hereof, by giving Executive written notice of such termination not less
than 5 days before the effective date thereof. If Executive's employment
and this Agreement are terminated pursuant to this Section 2.3, the Bank
shall pay to Executive his theretofore unpaid base salary for the period
of employment up to the date of termination, and the Company and the Bank
shall have no further obligations to 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
Chairman of the Board of the Company or the Bank 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 Bank may terminate Executive's employment hereunder for Just
Cause (as such term is defined below), in which case the Executive shall
be entitled to receive 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 Bank has given written notice of such nonperformance to
the Executive and its intention to terminate 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 Bank Without Cause.
The Bank may terminate 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 through the then remaining term of employment under Section 1.1
consistent with the terms and conditions set forth in Section 1.4, to the
extent the same can be provided under the insurance arrangements of the
Bank in effect at the time of termination, (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 and (e) an amount equal
to the product of the Bank's annual aggregate contribution, for the
benefit of the Executive in the fiscal year preceding termination, to all
qualified retirement plans in which the Executive participated multiplied
by the number of years 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 the Bank at the time of termination. If the Bank's
medical and dental plans are not insured, the medical and dental benefit
in (c) shall be accomplished by the Bank paying to Executive an additional
cash amount equal to the COBRA premium for such coverage, plus taxes on
such amount, so that Executive may purchase the coverage on an after-tax
basis.
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 Executive by
the Bank 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 Chairman of the Board
of the Company or the Bank 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, if unreasonable or materially
adverse to the Executive 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 the Company's headquarters at 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, a material reduction in the number or seniority of other
Company or Bank personnel reporting to the Executive, or a reduction in
the frequency with which, or in the nature of the matters with respect to
which, such personnel are to report to the Executive, other than as part
of a Company-wide or Bank-wide reduction in staff; 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 the Bank.
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 the Bank to continue
employing Executive, but only to the extent required by the applicable
regulations of the OTS (12 C.F.R. Section 563.39), or similar succeeding
regulations:
(a) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served
under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(3) and (g)(1)) the Bank'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, the Bank may in its discretion (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.
(b) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(4) or (g)(1)) all obligations of the Bank under
this Agreement shall terminate as of the effective date of the order.
(c) If the Bank is in default (as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act), the obligation to 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 the Bank 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 the Bank or when the Bank 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 the Bank without cause entitling
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. Section 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. Section 563.39(b), the latter shall prevail.
ARTICLE III
LEGAL FEES AND EXPENSES
The Company shall pay, or shall cause the Bank to pay, all legal fees
and expenses which the Executive may incur as a result of the Company or
the Bank 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
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 the Company, the Bank and their
subsidiaries, as well as similar information regarding OSB Financial and
its subsidiaries and that the disclosure to, or the use of such
information by, and business in competition with the Company, the Bank or
their subsidiaries shall result in substantial and undeterminable harm to
the Company, the Bank and their subsidiaries. In order to protect the
Company, the Bank and their subsidiaries against such harm and from unfair
competition, Executive agrees with the Company and the Bank that while
employed by the Bank and at any time thereafter, Executive will not
disclose, communicate or divulge to anyone, or use in any manner adverse
to the Company, the Bank or their subsidiaries any information concerning
customers, methods of business, financial information or other
confidential information of the Company, the Bank, their subsidiaries or
similar information regarding OSB Financial 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 Executive).
ARTICLE V
GENERAL PROVISIONS
5.1 Inquiries Regarding Proposed Activities.
In the event Executive shall inquire in writing of the Company
whether any proposed action on the part of Executive would be considered
by the Company or the Bank 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 Executive its position with respect
thereof and in the event such writing shall not be given to 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 the Bank to any
other business entity that is directly or indirectly controlled by the
Company or the Bank. This Agreement may not be assigned by the Company or
the Bank except in connection with a merger involving the Company or the
Bank or a sale of substantially all of the assets of the Company or the
Bank, and the respective obligations of the Company and the Bank provided
for in this Agreement shall be the binding legal obligations of any
successor to the Company or the Bank by purchase, merger, consolidation,
or otherwise. 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 the Bank shall be directed
to the attention of the Board of Directors of the Company and/or the Bank,
as the case may be, with a copy to the Secretary of the Company and/or the
Bank, 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
FCB FINANCIAL CORP.
/s/ James J. Rothenbach
James J. Rothenbach
President and Chief Executive Officer
Address: 420 South Koeller Street
Oshkosh, Wisconsin 54901
FOX CITIES BANK, F.S.B.
/s/ James J. Rothenbach
James J. Rothenbach
President and Chief Executive Officer
Address: 420 South Koeller Street
Oshkosh, Wisconsin 54901
EXECUTIVE
/s/ Donald D. Parker
Donald D. Parker
Address: 5740 I-AH-MAYTAH Road
Oshkosh, Wisconsin 54901
Exhibit 2.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into
this 1st day of May 1997 between FCB Financial Corp., a Wisconsin
corporation (the "Company"), Fox Cities Bank, F.S.B., a federal savings
bank which is wholly-owned by the Company (the "Bank") and James J.
Rothenbach (the "Executive").
WHEREAS, the Company and OSB Financial Corp. ("OSB Financial")
entered into an Agreement and Plan of Merger, dated November 13, 1996 (the
"Merger Agreement"), providing for the combination of the Company and OSB
Financial Corp. and a concurrent combination of the Bank and Oshkosh
Savings Bank, F.S.B. in a strategic merger, wherein the Company and the
Bank survive the merger (collectively, the "Merger");
WHEREAS, prior to the Merger, OSB Financial employed the
Executive as President and Chief Executive Officer of OSB Financial under
the terms of an employment agreement, dated July 1, 1995;
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;
WHEREAS, Executive's skills and extensive experience and
knowledge in the financial institutions industry will substantially
benefit the Company and the Bank; and
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:
ARTICLE I
EMPLOYMENT
1.1 Term of Employment.
The Bank hereby employs Executive for an initial period of three (3)
years commencing on May 1, 1997 (the "Commencement Date") and terminating
on April 30, 2000 (the "Initial Termination Date"), subject to earlier
termination as provided in Article II hereof. The Board of Directors of
the Bank shall review and may extend the term of this Agreement for a
period of one (1) additional year beginning on the Initial Termination
Date and in each subsequent year thereafter for a period of one (1)
additional year. Any extensions of the term of this Agreement shall be
made by giving Executive written notice of such extension at least 90 days
prior to the Initial Termination Date or the expiration of any renewal
period. Reference herein to the term of this Agreement shall refer to
both the initial term and such extended terms.
1.2 Duties of Executive.
The Bank hereby employs Executive, and Executive hereby accepts
employment with the Bank, upon the terms and conditions hereinafter set
forth for the term of this Agreement. Executive is employed by the Bank
to perform the duties of President and Chief Executive Officer of the
Bank, and the Company shall cause the Bank to appoint Executive to such
position. As part of Executive's employment by the Bank hereunder,
Executive shall also serve as, and the Company hereby appoints Executive
during the term of his employment by the Bank hereunder to serve as,
President and Chief Executive officer of the Company. The services to be
performed by the Executive shall include those normally performed by the
President and Chief Executive Officer of similar banking organizations and
as directed by the Board of Directors of the Company and the Bank,
respectively, which are not inconsistent with the foregoing. Executive
agrees to devote his full business time to the rendition of such services,
subject to absences for customary vacations and for temporary illnesses.
The Company and the Bank 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 consent. Furthermore, 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 the Bank. During the term of this
Agreement, Executive shall also serve as a director of the Company
(subject to being elected by shareholders) and the Bank without any
additional compensation.
1.3 Compensation.
The Bank agrees to compensate, and the Company agrees to cause the
Bank to compensate, the Executive for his services hereunder during the
term of this Agreement by payment of a salary at the annual rate of
$150,000 in such monthly, semi-monthly or other payments as are from time
to time applicable to other executive officers of the Bank. 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 the
Bank, but Executive's salary shall not be reduced below the level then in
effect. In addition, Executive shall be entitled to participate in
incentive compensation plans as may from time to time be established by
the Company or the Bank on an equivalent basis as other executive officers
of the Company or the Bank (but recognizing differences in
responsibilities among executive officers).
1.4 Benefits.
(a) 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 the Bank
(which initially will include a 30% co-pay by the Executive), (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 Executive, (v) paid
vacations and sick leave in accordance with prevailing policies of the
Bank, provided that allowed vacations shall in no event be less than four
weeks per annum, and (vi) such other benefits as are provided to other
executive officers of the Bank; provided that amounts allocated to
Executive's personal use under clause (iii) above and additional charges
for Executive's spouse pursuant to clause (iv) above shall be treated as
taxable income to Executive in accordance with applicable Bank policies.
(b) If Executive shall become temporarily disabled or incapacitated
to the extent that he is unable to perform the duties of President and
Chief Executive Officer of the Company or the Bank for three (3)
consecutive months, he shall nevertheless be entitled to receive 100
percent of his compensation under Section 1.3 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 the Bank or disability insurance policy maintained for the benefit of
Executive by the Company or the Bank. Upon returning to active full-time
employment, Executive's full compensation as set forth in this Agreement
shall be reinstated. In the event that Executive returns to active
employment on other than a full-time basis with the approval of the Board
of Directors of the Bank, then his compensation (as set forth in Section
1.3 of this Agreement) shall be reduced proportionately based upon the
fraction of full-time employment devoted by Executive to his employment
and responsibilities at the Bank and the Company. But, if he is again
unable to perform the duties of President and Chief Executive Officer of
the Company and the Bank hereunder due to disability or incapacity, he
must have been engaged in active full-time employment 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).
(c) It is the intention of the Company that, within 30 days after
the date of this Agreement, the Company shall cause 20,000 non-tax-
qualified stock options (exercisable for shares of the Company's common
stock) to be granted to Executive. The 20,000 stock options provided for
in this Section 1.4(c) shall be granted by the personnel committee of the
Company under the terms of the Company's 1993 Stock Option and Incentive
Plan and shall vest ratably over a five year period beginning from the
date of their grant.
1.5 Covenant Not to Compete.
Executive acknowledges that the Company and the Bank would be
substantially damaged by an association of Executive with a depository
institution that competes for customers with the Company and the Bank.
Without the consent of the Company, Executive shall not at any time during
the term of this Agreement or Executive's employment by the Bank, 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 the Bank or any of
their subsidiaries during the two year period prior to the termination of
this Agreement or Executive's employment hereunder for the purpose of
offering the same products or rendering the same services to such customer
as were provided or proposed to be provided by the Company or the Bank or
any of their subsidiaries to such customer as of the time of termination
of Executive's employment, (ii) directly or indirectly, on 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 Bank or any banking office of the Company in existence as of
the Commencement Date or the beginning of any renewal period as provided
in Section 1.1 hereof, provided, however, that 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 the Bank 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 Executive.
Executive may terminate his employment hereunder at any time for any
reason upon giving the Bank written notice, at least ninety (90) days
prior to termination of employment. Upon such termination, Executive
shall be entitled to receive 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 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 Executive's employment is terminated by reason of Executive's
death, then Executive's personal representative shall be entitled to
receive Executive's theretofore unpaid base salary for the period of
employment up to the date of death. Executive's spouse and dependent
children shall continue to be entitled, at the expense of the Bank
(subject to then existing co-payment features applicable under the Bank's
medical insurance plan) if it is an insured plan, to further medical
coverage to the extent permitted by COBRA; provided that, if the Bank's
plan is not insured, the Bank will pay to Executive's spouse an additional
monthly death benefit during the applicable COBRA period, based upon COBRA
rates in effect at the time of 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.
2.3 Termination of Employment for Disability.
If Executive becomes Totally and Permanently Disabled (as defined
below) during the term of this Agreement, the Bank may terminate
Executive's employment and this Agreement, except Section 1.5 and Article
IV hereof, by giving Executive written notice of such termination not less
than 5 days before the effective date thereof. If Executive's employment
and this Agreement are terminated pursuant to this Section 2.3, the Bank
shall pay to Executive his theretofore unpaid base salary for the period
of employment up to the date of termination, and the Company and the Bank
shall have no further obligations to 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
President and Chief Executive Officer of the Company or the Bank 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 Bank may terminate Executive's employment hereunder for Just
Cause (as such term is defined below), in which case the Executive shall
be entitled to receive 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 Bank has given written notice of such nonperformance to
the Executive and its intention to terminate 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 Bank Without Cause.
The Bank may terminate 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 through the then remaining term of employment under Section 1.1
consistent with the terms and conditions set forth in Section 1.4, to the
extent the same can be provided under the insurance arrangements of the
Bank in effect at the time of termination, (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 and (e) an amount equal
to the product of the Bank's annual aggregate contribution, for the
benefit of the Executive in the fiscal year preceding termination, to all
qualified retirement plans in which the Executive participated multiplied
by the number of years in the initial 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 the Bank at the time of termination. If the
Bank's medical and dental plans are not insured, the medical and dental
benefit in (c) shall be accomplished by the Bank paying to Executive an
additional cash amount equal to the COBRA premium for such coverage, plus
taxes on such amount, so that Executive may purchase the coverage on an
after-tax basis.
2.6 Termination of Employment Due to Change in Control.
(a) If, at any time after the date hereof, a "Change in Control" (as
hereinafter defined) occurs and within twelve (12) months thereafter
Executive's appointment as President or as Chief Executive Officer of the
Company or his employment as President or as Chief Executive Officer of
the Bank is involuntarily terminated (other than for Just Cause pursuant
to Section 2.4) then the Executive shall be entitled to the benefits
provided below.
(i) The Company shall promptly pay, or cause the Bank to pay,
to the Executive an amount equal to the product of 2.00 times the
Executive's "base amount" as defined in Section 280G(b)(3) of the Code
(such "base amount" to be derived from Executive's compensation paid by
the Company and the Bank).
(ii) During the term of this Agreement set forth in paragraph
1.1 (including any renewal term), the Executive, his dependents,
beneficiaries and estate shall continue to be covered under all employee
benefit plans of the Company and the Bank, including without limitation
the Company's and the Bank's pension and retirement plans, life insurance
and health insurance as if the Executive was still employed by the Bank
during such period under this Agreement; provided that coverage under the
medical and dental plans of the Company and the Bank shall be handled as
set forth in Section 2.5 above.
(iii) If and to the extent that benefits or services credit
for benefits under Section 2.6(a)(ii) above shall not be payable or
provided under any such plans to the Executive, his dependents,
beneficiaries and estate, by reason of his no longer being an employee of
the Bank as a result of termination of employment, the Company shall
itself, or shall cause the Bank to, pay or provide for payment of such
benefits and service credit for benefits to the Executive, his dependents,
beneficiaries and estate. Any such payment relating to retirement shall
commence on a date selected by the Executive which must be a date on which
payments under the Company or Bank's qualified pension plan or successor
plan may commence.
(b) (i) Anything in this Agreement to the contrary notwithstanding,
it is the intention of the Company, the Bank and the Executive that no
portion of any payment under this Agreement, or payments to or for the
benefit of the Executive under any other agreement or plan, be deemed an
"Excess Parachute Payment" as defined in Section 280G of the Code, or its
successors. It is agreed that the present value of any payment to or for
the benefit of the Executive in the nature of compensation, receipt of
which is contingent on the occurrence of a Change in Control, and to which
Section 280G of the Code applies (in the aggregate "Total Payments") shall
not exceed an amount equal to one dollar less than the maximum amount that
the Company and the Bank may pay without loss of deduction under Section
280(G)(a) of the Code. Present value for purposes of this Agreement shall
be calculated in accordance with Section 280G(d)(4) of the Code. Within
sixty days (60) following the earlier of (1) the giving of notice of
termination of employment or (2) the giving of notice by the Company to
the Executive of its belief that there is a payment or benefit due the
Executive, the Company, at the Company's expense, shall obtain the opinion
of the Company's public accounting firm (the "Accounting Firm"), which
opinion need not be unqualified, which sets forth: (a) the amount of the
Base Period Income of the Executive (as defined in Code Section 280G), (b)
the present value of Total Payments and (c) the amount and present value
of any Excess Parachute Payments. In the event that such opinion
determines that there would be an Excess Parachute Payment, the payment
hereunder shall be modified, reduced or eliminated as specified by the
Executive in writing delivered to the Company within thirty (30) days of
his receipt of such opinion or, if the Executive fails to so notify the
Company, then as the Company shall reasonably determine, so that under the
bases of calculation set forth in such opinion there will be no Excess
Parachute Payment. In the event that the provisions of Sections 280G and
4999 of the Code are repealed without succession, this Section shall be of
no further force or effect.
(ii) In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the
Change in Control, the Executive shall appoint another nationally
recognized public accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the
Accounting Firm under Section 2.6(b)). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any determination
by the Accounting Firm shall be binding upon the Company and the
Executive.
(c) For purposes of Section 2.6 of this Agreement, a "Change in
Control" shall be deemed to have occurred if:
(i) a third person, including a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934 (as in effect on the date
hereof), becomes the beneficial owner of shares of the Company having 20%
or more of the total number of votes that may be cast for the election of
directors of the Company, including for this purpose any shares
beneficially owned by such third person or group as of the date hereof; or
(ii) as the result of, or in connection with, any cash tender or
exchange offer, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing transactions (a
"Transaction"), the persons who were directors of the Company before the
Transaction shall cease to constitute a majority of the Board of Directors
of the Company or any successor to the Company. (In the event of any
reorganization involving the Company in a transaction initiated by the
Company in which the shareholders of the Company immediately prior to such
reorganization become the shareholders of a successor or ultimate parent
company of the Company resulting from such reorganization and the persons
who were directors of the Company immediately prior to such reorganization
constitute a majority of the Board of Directors of such successor or
ultimate parent, no "Change in Control" shall be deemed to have taken
place solely by reason of such reorganization, notwithstanding the fact
that the Company may have become the wholly-owned subsidiary of another
Company in such reorganization and the Board of Directors thereof may have
been reconstituted, and thereafter the term "Company" for purposes of this
paragraph shall refer to such successor or ultimate parent company.); or
(iii) a third person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934 (as in effect on
the date hereof), acquires control, as defined in 12 C.F.R. Section
574.4, or any successor regulation, of the Company which would require the
filing of an application for acquisition of control or notice of change in
control in a manner set forth in 12 C.F.R. Section 574.3, or any
successor regulation; or
(iv) The terms "termination" or "involuntarily terminated" in
this Agreement shall refer to the termination of the employment of
Executive by the Bank 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 President
and Chief Executive Officer of the Company or the Bank 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, if
unreasonable or materially adverse to the Executive 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 the Company's headquarters
at 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, a material reduction in the number or
seniority of other Company or Bank personnel reporting to the Executive,
or a reduction in the frequency with which, or in the nature of the
matters with respect to which, such personnel are to report to the
Executive, other than as part of a Company-wide or Bank-wide reduction in
staff; 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 the Bank.
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 the Bank to continue
employing Executive, but only to the extent required by the applicable
regulations of the OTS (12 C.F.R. Section 563.39), or similar succeeding
regulations:
(a) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served
under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(3) and (g)(1)) the Bank'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, the Bank may in its discretion (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.
(b) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(4) or (g)(1)) all obligations of the Bank under
this Agreement shall terminate as of the effective date of the order.
(c) If the Bank is in default (as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act), the obligation to 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 the Bank 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 the Bank or when the Bank 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 the Bank without cause entitling
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. Section 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. Section 563.39(b), the latter shall prevail.
ARTICLE III
LEGAL FEES AND EXPENSES
The Company shall pay, or shall cause the Bank to pay, all legal fees
and expenses which the Executive may incur as a result of the Company or
the Bank 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
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 the Company, the Bank and their
subsidiaries, as well as similar information regarding OSB Financial and
its subsidiaries relating to his previous employment by that company, and
that the disclosure to, or the use of such information by, and business in
competition with the Company, the Bank or their subsidiaries shall result
in substantial and undeterminable harm to the Company, the Bank and their
subsidiaries. In order to protect the Company, the Bank and their
subsidiaries against such harm and from unfair competition, Executive
agrees with the Company and the Bank that while employed by the Bank and
at any time thereafter, Executive will not disclose, communicate or
divulge to anyone, or use in any manner adverse to the Company, the Bank
or their subsidiaries any information concerning customers, methods of
business, financial information or other confidential information of the
Company, the Bank, their subsidiaries or similar information regarding OSB
Financial 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 Executive).
ARTICLE V
GENERAL PROVISIONS
5.1 Inquiries Regarding Proposed Activities.
In the event Executive shall inquire in writing of the Company
whether any proposed action on the part of Executive would be considered
by the Company or the Bank 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 Executive its position with respect
thereof and in the event such writing shall not be given to 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 the Bank to any
other business entity that is directly or indirectly controlled by the
Company or the Bank. This Agreement may not be assigned by the Company or
the Bank except in connection with a merger involving the Company or the
Bank or a sale of substantially all of the assets of the Company or the
Bank, and the respective obligations of the Company and the Bank provided
for in this Agreement shall be the binding legal obligations of any
successor to the Company or the Bank by purchase, merger, consolidation,
or otherwise. 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 the Bank shall be directed
to the attention of the Board of Directors of the Company and/or the Bank,
as the case may be, with a copy to the Secretary of the Company and/or the
Bank, 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
FCB FINANCIAL CORP.
/s/ Donald D. Parker
Donald D. Parker
Chairman of the Board of Directors
Address: 420 South Koeller Street
Oshkosh, Wisconsin 54901
FOX CITIES BANK, F.S.B.
/s/ Donald D. Parker
Donald D. Parker
Chairman of the Board of Directors
Address: 420 South Koeller Street
Oshkosh, Wisconsin 54901
EXECUTIVE
/s/ James J. Rothenbach
James J. Rothenbach
Address: 2550 Lamplight Court
Oshkosh, Wisconsin 54904
Exhibit 2.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into
this 1st day of May 1997 between FCB Financial Corp., a Wisconsin
corporation (the "Company"), Fox Cities Bank, F.S.B., a federal savings
bank which is wholly-owned by the Company (the "Bank") and Phillip J.
Schoofs (the "Executive").
WHEREAS, the Company and OSB Financial Corp. ("OSB Financial")
entered into an Agreement and Plan of Merger, dated November 13, 1996 (the
"Merger Agreement"), providing for the combination of the Company and OSB
Financial Corp. and a concurrent combination of the Bank and Oshkosh
Savings Bank, F.S.B. ("OSB Bank") in a strategic merger, wherein the
Company and the Bank survive the merger (collectively, the "Merger");
WHEREAS, prior to the Merger, the Bank employed the Executive as
Vice President - Finance/Treasurer of the Bank;
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;
WHEREAS, Executive's skills and extensive experience and
knowledge in the financial institutions industry will substantially
benefit the Company and the Bank; and
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:
ARTICLE I
EMPLOYMENT
1.1 Term of Employment.
The Bank hereby employs Executive for an initial period of fifteen
(15) months commencing on May 1, 1997 (the "Commencement Date") and
terminating on July 31, 1998 (the "Initial Termination Date"), subject to
earlier termination as provided in Article II hereof. The Board of
Directors of the Bank shall review and may extend the term of this
Agreement for a period of one (1) additional year beginning on the Initial
Termination Date and in each subsequent year thereafter for a period of
one (1) additional year. Any extensions of the term of this Agreement
shall be made by giving Executive written notice of such extension at
least 90 days prior to the Initial Termination Date or the expiration of
any renewal period. Reference herein to the term of this Agreement shall
refer to both the initial term and such extended terms.
1.2 Duties of Executive.
The Bank hereby employs Executive, and Executive hereby accepts
employment with the Bank, upon the terms and conditions hereinafter set
forth for the term of this Agreement. Executive is employed by the Bank
to perform the duties of Vice President, Treasurer and Chief Financial
Officer of the Bank, and the Company shall cause the Bank to appoint
Executive to such position. As part of Executive's employment by the
Bank hereunder, Executive shall also serve as, and the Company hereby
appoints Executive during the term of his employment by the Bank hereunder
to serve as, Vice President, Treasurer and Chief Financial Officer of the
Company. The services to be performed by the Executive shall include
those normally performed by the Vice President, Treasurer and Chief
Financial Officer of similar banking organizations and as directed by the
Board of Directors of the Company and the Bank, respectively, which are
not inconsistent with the foregoing. Executive agrees to devote his full
business time to the rendition of such services, subject to absences for
customary vacations and for temporary illnesses. The Company and the Bank
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 consent. Furthermore, 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 the Bank.
1.3 Compensation.
The Bank agrees to compensate, and the Company agrees to cause the
Bank to compensate, the Executive for his services hereunder during the
term of this Agreement by payment of a salary at the annual rate of
$75,000 in such monthly, semi-monthly or other payments as are from time
to time applicable to other executive officers of the Bank. 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 the
Bank, but Executive's salary shall not be reduced below the level then in
effect. In addition, Executive shall be entitled to participate in
incentive compensation plans as may from time to time be established by
the Company or the Bank on an equivalent basis as other executive officers
of the Company or the Bank (but recognizing differences in
responsibilities among executive officers).
1.4 Benefits.
(a) 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 the Bank
(which initially will include a 30% co-pay by the Executive), (iii)
membership or appropriate affiliation with a recreational club, (iv)
reimbursement of business expenses reasonably incurred in connection with
his employment and expenses incurred by his spouse when accompanying
Executive, (v) paid vacations and sick leave in accordance with prevailing
policies of the Bank, provided that allowed vacations shall in no event be
less than three weeks per annum, and (vi) such other benefits as are
provided to other executive officers of the Bank; provided that amounts
allocated to Executive's personal use under clause (iii) above and
additional charges for Executive's spouse pursuant to clause (iv) above
shall be treated as taxable income to Executive in accordance with
applicable Bank policies.
(b) If Executive shall become temporarily disabled or incapacitated
to the extent that he is unable to perform the duties of Vice President,
Treasurer and Chief Financial Officer of the Company or the Bank for three
(3) consecutive months, he shall nevertheless be entitled to receive 100
percent of his compensation under Section 1.3 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 the Bank or disability insurance policy maintained for the benefit of
Executive by the Company or the Bank. Upon returning to active full-time
employment, Executive's full compensation as set forth in this Agreement
shall be reinstated. In the event that Executive returns to active
employment on other than a full-time basis with the approval of the Board
of Directors of the Bank, then his compensation (as set forth in Section
1.3 of this Agreement) shall be reduced proportionately based upon the
fraction of full-time employment devoted by Executive to his employment
and responsibilities at the Bank and the Company. But, if he is again
unable to perform the duties of Vice President, Treasurer and Chief
Financial Officer of the Company and the Bank hereunder due to disability
or incapacity, he must have been engaged in active full-time employment
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).
(c) It is the intention of the Company that, within 30 days after
the date of this Agreement, the Company shall cause 7,500 non-tax-
qualified stock options (exercisable for shares of the Company's common
stock) to be granted to Executive. The 7,500 stock options provided for
in this Section 1.4(c) shall be granted by the personnel committee of the
Company under the terms of the Company's 1993 Stock Option and Incentive
Plan and shall vest ratably over a five year period beginning from the
date of their grant.
1.5 Covenant Not to Compete.
Executive acknowledges that the Company and the Bank would be
substantially damaged by an association of Executive with a depository
institution that competes for customers with the Company and the Bank.
Without the consent of the Company, Executive shall not at any time during
the term of this Agreement or Executive's employment by the Bank, 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 the Bank or any of
their subsidiaries during the two year period prior to the termination of
this Agreement or Executive's employment hereunder for the purpose of
offering the same products or rendering the same services to such customer
as were provided or proposed to be provided by the Company or the Bank or
any of their subsidiaries to such customer as of the time of termination
of Executive's employment, or (ii) actively induce or solicit any
employees of the Company or the Bank 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 Executive.
Executive may terminate his employment hereunder at any time for any
reason upon giving the Bank written notice, at least ninety (90) days
prior to termination of employment. Upon such termination, Executive
shall be entitled to receive 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 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 Executive's employment is terminated by reason of Executive's
death, then Executive's personal representative shall be entitled to
receive Executive's theretofore unpaid base salary for the period of
employment up to the date of death. Executive's spouse and dependent
children shall continue to be entitled, at the expense of the Bank
(subject to then existing co-payment features applicable under the Bank's
medical insurance plan) if it is an insured plan, to further medical
coverage to the extent permitted by COBRA; provided that, if the Bank's
plan is not insured, the Bank will pay to Executive's spouse an additional
monthly death benefit during the applicable COBRA period, based upon COBRA
rates in effect at the time of 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.
2.3 Termination of Employment for Disability.
If Executive becomes Totally and Permanently Disabled (as defined
below) during the term of this Agreement, the Bank may terminate
Executive's employment and this Agreement, except Section 1.5 and Article
IV hereof, by giving Executive written notice of such termination not less
than 5 days before the effective date thereof. If Executive's employment
and this Agreement are terminated pursuant to this Section 2.3, the Bank
shall pay to Executive his theretofore unpaid base salary for the period
of employment up to the date of termination, and the Company and the Bank
shall have no further obligations to 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
Vice President, Treasurer and Chief Financial Officer of the Company or
the Bank 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 Bank may terminate Executive's employment hereunder for Just
Cause (as such term is defined below), in which case the Executive shall
be entitled to receive 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 Bank has given written notice of such nonperformance to
the Executive and its intention to terminate 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 Bank Without Cause.
The Bank may terminate 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 through the then remaining term of employment under Section 1.1
consistent with the terms and conditions set forth in Section 1.4, to the
extent the same can be provided under the insurance arrangements of the
Bank in effect at the time of termination, (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 and (e) an amount equal
to the product of the Bank's annual aggregate contribution, for the
benefit of the Executive in the fiscal year preceding termination, to all
qualified retirement plans in which the Executive participated multiplied
by the number of years in the initial 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 the Bank at the time of termination. If the
Bank's medical and dental plans are not insured, the medical and dental
benefit in (c) shall be accomplished by the Bank paying to Executive an
additional cash amount equal to the COBRA premium for such coverage, plus
taxes on such amount, so that Executive may purchase the coverage on an
after-tax basis.
2.6 Termination of Employment Due to Change in Control.
(a) If, at any time after the date hereof, a "Change in Control" (as
hereinafter defined) occurs and within twelve (12) months thereafter
Executive's appointment as Vice President, Treasurer and Chief Financial
Officer of the Company or his employment as Vice President, Treasurer and
Chief Financial Officer of the Bank is involuntarily terminated (other
than for Just Cause pursuant to Section 2.4) then the Executive shall be
entitled to the benefits provided below.
(i) The Company shall promptly pay, or cause the Bank to pay,
to the Executive an amount equal to the product of 2.0 times the
Executive's "base amount" as defined in Section 280G(b)(3) of the Code
(such "base amount" to be derived from Executive's compensation paid by
the Company and the Bank).
(ii) During the term of this Agreement set forth in paragraph
1.1 (including any renewal term), the Executive, his dependents,
beneficiaries and estate shall continue to be covered under all employee
benefit plans of the Company and the Bank, including without limitation
the Company's and the Bank's pension and retirement plans, life insurance
and health insurance as if the Executive was still employed by the Bank
during such period under this Agreement; provided that coverage under the
medical and dental plans of the Company and the Bank shall be handled as
set forth in Section 2.5 above.
(iii) If and to the extent that benefits or services credit
for benefits under Section 2.6(a)(ii) above shall not be payable or
provided under any such plans to the Executive, his dependents,
beneficiaries and estate, by reason of his no longer being an employee of
the Bank as a result of termination of employment, the Company shall
itself, or shall cause the Bank to, pay or provide for payment of such
benefits and service credit for benefits to the Executive, his dependents,
beneficiaries and estate. Any such payment relating to retirement shall
commence on a date selected by the Executive which must be a date on which
payments under the Company or Bank's qualified pension plan or successor
plan may commence.
(b) (i) Anything in this Agreement to the contrary notwithstanding,
it is the intention of the Company, the Bank and the Executive that no
portion of any payment under this Agreement, or payments to or for the
benefit of the Executive under any other agreement or plan, be deemed an
"Excess Parachute Payment" as defined in Section 280G of the Code, or its
successors. It is agreed that the present value of any payment to or for
the benefit of the Executive in the nature of compensation, receipt of
which is contingent on the occurrence of a Change in Control, and to which
Section 280G of the Code applies (in the aggregate "Total Payments") shall
not exceed an amount equal to one dollar less than the maximum amount that
the Company and the Bank may pay without loss of deduction under Section
280(G)(a) of the Code. Present value for purposes of this Agreement shall
be calculated in accordance with Section 280G(d)(4) of the Code. Within
sixty days (60) following the earlier of (1) the giving of notice of
termination of employment or (2) the giving of notice by the Company to
the Executive of its belief that there is a payment or benefit due the
Executive, the Company, at the Company's expense, shall obtain the opinion
of the Company's public accounting firm (the "Accounting Firm"), which
opinion need not be unqualified, which sets forth: (a) the amount of the
Base Period Income of the Executive (as defined in Code Section 280G), (b)
the present value of Total Payments and (c) the amount and present value
of any Excess Parachute Payments. In the event that such opinion
determines that there would be an Excess Parachute Payment, the payment
hereunder shall be modified, reduced or eliminated as specified by the
Executive in writing delivered to the Company within thirty (30) days of
his receipt of such opinion or, if the Executive fails to so notify the
Company, then as the Company shall reasonably determine, so that under the
bases of calculation set forth in such opinion there will be no Excess
Parachute Payment. In the event that the provisions of Sections 280G and
4999 of the Code are repealed without succession, this Section shall be of
no further force or effect.
(ii) In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the
Change in Control, the Executive shall appoint another nationally
recognized public accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the
Accounting Firm under Section 2.6(b)). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any determination
by the Accounting Firm shall be binding upon the Company and the
Executive.
(c) For purposes of Section 2.6 of this Agreement, a "Change in
Control" shall be deemed to have occurred if:
(i) a third person, including a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934 (as in effect on the date
hereof), becomes the beneficial owner of shares of the Company having 20%
or more of the total number of votes that may be cast for the election of
directors of the Company, including for this purpose any shares
beneficially owned by such third person or group as of the date hereof; or
(ii) as the result of, or in connection with, any cash tender or
exchange offer, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing transactions (a
"Transaction"), the persons who were directors of the Company before the
Transaction shall cease to constitute a majority of the Board of Directors
of the Company or any successor to the Company. (In the event of any
reorganization involving the Company in a transaction initiated by the
Company in which the shareholders of the Company immediately prior to such
reorganization become the shareholders of a successor or ultimate parent
company of the Company resulting from such reorganization and the persons
who were directors of the Company immediately prior to such reorganization
constitute a majority of the Board of Directors of such successor or
ultimate parent, no "Change in Control" shall be deemed to have taken
place solely by reason of such reorganization, notwithstanding the fact
that the Company may have become the wholly-owned subsidiary of another
Company in such reorganization and the Board of Directors thereof may have
been reconstituted, and thereafter the term "Company" for purposes of this
paragraph shall refer to such successor or ultimate parent company.); or
(iii) a third person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934 (as in effect on
the date hereof), acquires control, as defined in 12 C.F.R. Section
574.4, or any successor regulation, of the Company which would require the
filing of an application for acquisition of control or notice of change in
control in a manner set forth in 12 C.F.R. Section 574.3, or any
successor regulation; or
(iv) The terms "termination" or "involuntarily terminated" in
this Agreement shall refer to the termination of the employment of
Executive by the Bank 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 Vice
President, Treasurer and Chief Financial Officer of the Company or the
Bank 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, if unreasonable or materially adverse to the Executive
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 the
Company's headquarters at 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, a
material reduction in the number or seniority of other Company or Bank
personnel reporting to the Executive, or a reduction in the frequency with
which, or in the nature of the matters with respect to which, such
personnel are to report to the Executive, other than as part of a Company-
wide or Bank-wide reduction in staff; 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 the Bank.
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 the Bank to continue
employing Executive, but only to the extent required by the applicable
regulations of the OTS (12 C.F.R. Section 563.39), or similar succeeding
regulations:
(a) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served
under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(3) and (g)(1)) the Bank'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, the Bank may in its discretion (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.
(b) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(4) or (g)(1)) all obligations of the Bank under
this Agreement shall terminate as of the effective date of the order.
(c) If the Bank is in default (as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act), the obligation to 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 the Bank 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 the Bank or when the Bank 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 the Bank without cause entitling
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. Section 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. Section 563.39(b), the latter shall prevail.
ARTICLE III
LEGAL FEES AND EXPENSES
The Company shall pay, or shall cause the Bank to pay, all legal fees
and expenses which the Executive may incur as a result of the Company or
the Bank 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
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 the Company, the Bank and their
subsidiaries, as well as similar information regarding OSB Financial and
its subsidiaries, and that the disclosure to, or the use of such
information by, and business in competition with the Company, the Bank or
their subsidiaries shall result in substantial and undeterminable harm to
the Company, the Bank and their subsidiaries. In order to protect the
Company, the Bank and their subsidiaries against such harm and from unfair
competition, Executive agrees with the Company and the Bank that while
employed by the Bank and at any time thereafter, Executive will not
disclose, communicate or divulge to anyone, or use in any manner adverse
to the Company, the Bank or their subsidiaries any information concerning
customers, methods of business, financial information or other
confidential information of the Company, the Bank, their subsidiaries or
similar information regarding OSB Financial 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 Executive).
ARTICLE V
GENERAL PROVISIONS
5.1 Inquiries Regarding Proposed Activities.
In the event Executive shall inquire in writing of the Company
whether any proposed action on the part of Executive would be considered
by the Company or the Bank 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 Executive its position with respect
thereof and in the event such writing shall not be given to 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 the Bank to any
other business entity that is directly or indirectly controlled by the
Company or the Bank. This Agreement may not be assigned by the Company or
the Bank except in connection with a merger involving the Company or the
Bank or a sale of substantially all of the assets of the Company or the
Bank, and the respective obligations of the Company and the Bank provided
for in this Agreement shall be the binding legal obligations of any
successor to the Company or the Bank by purchase, merger, consolidation,
or otherwise. 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 the Bank shall be directed
to the attention of the Board of Directors of the Company and/or the Bank,
as the case may be, with a copy to the Secretary of the Company and/or the
Bank, 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
FCB FINANCIAL CORP.
/s/ James J. Rothenbach
James J. Rothenbach
President and Chief Executive Officer
Address: 420 South Koeller Street
Oshkosh, Wisconsin 54901
FOX CITIES BANK, F.S.B.
/s/ James J. Rothenbach
James J. Rothenbach
President and Chief Executive Officer
Address: 420 South Koeller Street
Oshkosh, Wisconsin 54901
EXECUTIVE
/s/ Phillip J. Schoofs
Phillip J. Schoofs
Address: 748 Nicolet Blvd.
Menasha, Wisconsin 54952
Exhibit 2.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into
this 1st day of May 1997 between FCB Financial Corp., a Wisconsin
corporation (the "Company"), Fox Cities Bank, F.S.B., a federal savings
bank which is wholly-owned by the Company (the "Bank") and Theodore W.
Hoff (the "Executive").
WHEREAS, the Company and OSB Financial Corp. ("OSB Financial")
entered into an Agreement and Plan of Merger, dated November 13, 1996 (the
"Merger Agreement"), providing for the combination of the Company and OSB
Financial Corp. and a concurrent combination of the Bank and Oshkosh
Savings Bank, F.S.B. ("OSB Bank") in a strategic merger, wherein the
Company and the Bank survive the merger (collectively, the "Merger");
WHEREAS, prior to the Merger, OSB Bank employed the Executive as
Vice President - Retail Sales and Service;
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;
WHEREAS, Executive's skills and extensive experience and
knowledge in the financial institutions industry will substantially
benefit the Company and the Bank; and
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:
ARTICLE I
EMPLOYMENT
1.1 Term of Employment.
The Bank hereby employs Executive for an initial period of fifteen
(15) months commencing on May 1, 1997 (the "Commencement Date") and
terminating on July 31, 1998 (the "Initial Termination Date"), subject to
earlier termination as provided in Article II hereof. The Board of
Directors of the Bank shall review and may extend the term of this
Agreement for a period of one (1) additional year beginning on the Initial
Termination Date and in each subsequent year thereafter for a period of
one (1) additional year. Any extensions of the term of this Agreement
shall be made by giving Executive written notice of such extension at
least 90 days prior to the Initial Termination Date or the expiration of
any renewal period. Reference herein to the term of this Agreement shall
refer to both the initial term and such extended terms.
1.2 Duties of Executive.
The Bank hereby employs Executive, and Executive hereby accepts
employment with the Bank, upon the terms and conditions hereinafter set
forth for the term of this Agreement. Executive is employed by the Bank
to perform the duties of Vice President - Retail Sales and Service of the
Bank, and the Company shall cause the Bank to appoint Executive to such
position. As part of Executive's employment by the Bank hereunder,
Executive shall also serve as, and the Company hereby appoints Executive
during the term of his employment by the Bank hereunder to serve as Vice
President - Retail Sales and Service of the Company. The services to be
performed by the Executive shall include those normally performed by Vice
President - Retail Sales and Service of similar banking organizations and
as directed by the Board of Directors of the Company and the Bank,
respectively, which are not inconsistent with the foregoing. Executive
agrees to devote his full business time to the rendition of such services,
subject to absences for customary vacations and for temporary illnesses.
The Company and the Bank 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 consent. Furthermore, 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 the Bank.
1.3 Compensation.
The Bank agrees to compensate, and the Company agrees to cause the
Bank to compensate, the Executive for his services hereunder during the
term of this Agreement by payment of a salary at the annual rate of
$70,000 in such monthly, semi-monthly or other payments as are from time
to time applicable to other executive officers of the Bank. 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 the
Bank, but Executive's salary shall not be reduced below the level then in
effect. In addition, Executive shall be entitled to participate in
incentive compensation plans as may from time to time be established by
the Company or the Bank on an equivalent basis as other executive officers
of the Company or the Bank (but recognizing differences in
responsibilities among executive officers).
1.4 Benefits.
(a) 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 the Bank
(which initially will include a 30% co-pay by the Executive), (iii)
membership or appropriate affiliation with a recreational club, (iv)
reimbursement of business expenses reasonably incurred in connection with
his employment and expenses incurred by his spouse when accompanying
Executive, (v) paid vacations and sick leave in accordance with prevailing
policies of the Bank, provided that allowed vacations shall in no event be
less than four weeks per annum, and (vi) such other benefits as are
provided to other executive officers of the Bank; provided that amounts
allocated to Executive's personal use under clause (iii) above and
additional charges for Executive's spouse pursuant to clause (iv) above
shall be treated as taxable income to Executive in accordance with
applicable Bank policies.
(b) If Executive shall become temporarily disabled or incapacitated
to the extent that he is unable to perform the duties of Vice President -
Retail Sales and Service of the Company or the Bank for three (3)
consecutive months, he shall nevertheless be entitled to receive 100
percent of his compensation under Section 1.3 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 the Bank or disability insurance policy maintained for the benefit of
Executive by the Company or the Bank. Upon returning to active full-time
employment, Executive's full compensation as set forth in this Agreement
shall be reinstated. In the event that Executive returns to active
employment on other than a full-time basis with the approval of the Board
of Directors of the Bank, then his compensation (as set forth in Section
1.3 of this Agreement) shall be reduced proportionately based upon the
fraction of full-time employment devoted by Executive to his employment
and responsibilities at the Bank and the Company. But, if he is again
unable to perform the duties of Vice President - Retail Sales and Service
of the Company and the Bank hereunder due to disability or incapacity, he
must have been engaged in active full-time employment 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).
(c) It is the intention of the Company that, within 30 days after
the date of this Agreement, the Company shall cause 6,000 non-tax-
qualified stock options (exercisable for shares of the Company's common
stock) to be granted to Executive. The 6,000 stock options provided for
in this Section 1.4(c) shall be granted by the personnel committee of the
Company under the terms of the Company's 1993 Stock Option and Incentive
Plan and shall vest ratably over a five year period beginning from the
date of their grant.
1.5 Covenant Not to Compete.
Executive acknowledges that the Company and the Bank would be
substantially damaged by an association of Executive with a depository
institution that competes for customers with the Company and the Bank.
Without the consent of the Company, Executive shall not at any time during
the term of this Agreement or Executive's employment by the Bank, 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 the Bank or any of
their subsidiaries during the two year period prior to the termination of
this Agreement or Executive's employment hereunder for the purpose of
offering the same products or rendering the same services to such customer
as were provided or proposed to be provided by the Company or the Bank or
any of their subsidiaries to such customer as of the time of termination
of Executive's employment, or (ii) actively induce or solicit any
employees of the Company or the Bank 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 Executive.
Executive may terminate his employment hereunder at any time for any
reason upon giving the Bank written notice, at least ninety (90) days
prior to termination of employment. Upon such termination, Executive
shall be entitled to receive 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 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 Executive's employment is terminated by reason of Executive's
death, then Executive's personal representative shall be entitled to
receive Executive's theretofore unpaid base salary for the period of
employment up to the date of death. Executive's spouse and dependent
children shall continue to be entitled, at the expense of the Bank
(subject to then existing co-payment features applicable under the Bank's
medical insurance plan) if it is an insured plan, to further medical
coverage to the extent permitted by COBRA; provided that, if the Bank's
plan is not insured, the Bank will pay to Executive's spouse an additional
monthly death benefit during the applicable COBRA period, based upon COBRA
rates in effect at the time of 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.
2.3 Termination of Employment for Disability.
If Executive becomes Totally and Permanently Disabled (as defined
below) during the term of this Agreement, the Bank may terminate
Executive's employment and this Agreement, except Section 1.5 and Article
IV hereof, by giving Executive written notice of such termination not less
than 5 days before the effective date thereof. If Executive's employment
and this Agreement are terminated pursuant to this Section 2.3, the Bank
shall pay to Executive his theretofore unpaid base salary for the period
of employment up to the date of termination, and the Company and the Bank
shall have no further obligations to 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
Vice President - Retail Sales and Services of the Company and the Bank 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 Bank may terminate Executive's employment hereunder for Just
Cause (as such term is defined below), in which case the Executive shall
be entitled to receive 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 Bank has given written notice of such nonperformance to
the Executive and its intention to terminate 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 Bank Without Cause.
The Bank may terminate 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 through the then remaining term of employment under Section 1.1
consistent with the terms and conditions set forth in Section 1.4, to the
extent the same can be provided under the insurance arrangements of the
Bank in effect at the time of termination, (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 and (e) an amount equal
to the product of the Bank's annual aggregate contribution, for the
benefit of the Executive in the fiscal year preceding termination, to all
qualified retirement plans in which the Executive participated multiplied
by the number of years in the initial 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 the Bank at the time of termination. If the
Bank's medical and dental plans are not insured, the medical and dental
benefit in (c) shall be accomplished by the Bank paying to Executive an
additional cash amount equal to the COBRA premium for such coverage, plus
taxes on such amount, so that Executive may purchase the coverage on an
after-tax basis.
2.6 Termination of Employment Due to Change in Control.
(a) If, at any time after the date hereof, a "Change in Control" (as
hereinafter defined) occurs and within twelve (12) months thereafter
Executive's appointment as Vice President - Retail Sales and Service of
the Company or his employment as Vice President - Retail Sales and Service
of the Bank is involuntarily terminated (other than for Just Cause
pursuant to Section 2.4) then the Executive shall be entitled to the
benefits provided below.
(i) The Company shall promptly pay, or cause the Bank to pay,
to the Executive an amount equal to the product of 2.0 times the
Executive's "base amount" as defined in Section 280G(b)(3) of the Code
(such "base amount" to be derived from Executive's compensation paid by
the Company and the Bank).
(ii) During the term of this Agreement set forth in paragraph
1.1 (including any renewal term), the Executive, his dependents,
beneficiaries and estate shall continue to be covered under all employee
benefit plans of the Company and the Bank, including without limitation
the Company's and the Bank's pension and retirement plans, life insurance
and health insurance as if the Executive was still employed by the Bank
during such period under this Agreement; provided that coverage under the
medical and dental plans of the Company and the Bank shall be handled as
set forth in Section 2.5 above.
(iii) If and to the extent that benefits or services credit
for benefits under Section 2.6(a)(ii) above shall not be payable or
provided under any such plans to the Executive, his dependents,
beneficiaries and estate, by reason of his no longer being an employee of
the Bank as a result of termination of employment, the Company shall
itself, or shall cause the Bank to, pay or provide for payment of such
benefits and service credit for benefits to the Executive, his dependents,
beneficiaries and estate. Any such payment relating to retirement shall
commence on a date selected by the Executive which must be a date on which
payments under the Company or Bank's qualified pension plan or successor
plan may commence.
(b) (i) Anything in this Agreement to the contrary notwithstanding,
it is the intention of the Company, the Bank and the Executive that no
portion of any payment under this Agreement, or payments to or for the
benefit of the Executive under any other agreement or plan, be deemed an
"Excess Parachute Payment" as defined in Section 280G of the Code, or its
successors. It is agreed that the present value of any payment to or for
the benefit of the Executive in the nature of compensation, receipt of
which is contingent on the occurrence of a Change in Control, and to which
Section 280G of the Code applies (in the aggregate "Total Payments") shall
not exceed an amount equal to one dollar less than the maximum amount that
the Company and the Bank may pay without loss of deduction under Section
280(G)(a) of the Code. Present value for purposes of this Agreement shall
be calculated in accordance with Section 280G(d)(4) of the Code. Within
sixty days (60) following the earlier of (1) the giving of notice of
termination of employment or (2) the giving of notice by the Company to
the Executive of its belief that there is a payment or benefit due the
Executive, the Company, at the Company's expense, shall obtain the opinion
of the Company's public accounting firm (the "Accounting Firm"), which
opinion need not be unqualified, which sets forth: (a) the amount of the
Base Period Income of the Executive (as defined in Code Section 280G), (b)
the present value of Total Payments and (c) the amount and present value
of any Excess Parachute Payments. In the event that such opinion
determines that there would be an Excess Parachute Payment, the payment
hereunder shall be modified, reduced or eliminated as specified by the
Executive in writing delivered to the Company within thirty (30) days of
his receipt of such opinion or, if the Executive fails to so notify the
Company, then as the Company shall reasonably determine, so that under the
bases of calculation set forth in such opinion there will be no Excess
Parachute Payment. In the event that the provisions of Sections 280G and
4999 of the Code are repealed without succession, this Section shall be of
no further force or effect.
(ii) In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the
Change in Control, the Executive shall appoint another nationally
recognized public accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the
Accounting Firm under Section 2.6(b)). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any determination
by the Accounting Firm shall be binding upon the Company and the
Executive.
(c) For purposes of Section 2.6 of this Agreement, a "Change in
Control" shall be deemed to have occurred if:
(i) a third person, including a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934 (as in effect on the date
hereof), becomes the beneficial owner of shares of the Company having 20%
or more of the total number of votes that may be cast for the election of
directors of the Company, including for this purpose any shares
beneficially owned by such third person or group as of the date hereof; or
(ii) as the result of, or in connection with, any cash tender or
exchange offer, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing transactions (a
"Transaction"), the persons who were directors of the Company before the
Transaction shall cease to constitute a majority of the Board of Directors
of the Company or any successor to the Company. (In the event of any
reorganization involving the Company in a transaction initiated by the
Company in which the shareholders of the Company immediately prior to such
reorganization become the shareholders of a successor or ultimate parent
company of the Company resulting from such reorganization and the persons
who were directors of the Company immediately prior to such reorganization
constitute a majority of the Board of Directors of such successor or
ultimate parent, no "Change in Control" shall be deemed to have taken
place solely by reason of such reorganization, notwithstanding the fact
that the Company may have become the wholly-owned subsidiary of another
Company in such reorganization and the Board of Directors thereof may have
been reconstituted, and thereafter the term "Company" for purposes of this
paragraph shall refer to such successor or ultimate parent company.); or
(iii) a third person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934 (as in effect on
the date hereof), acquires control, as defined in 12 C.F.R. Section
574.4, or any successor regulation, of the Company which would require the
filing of an application for acquisition of control or notice of change in
control in a manner set forth in 12 C.F.R. Section 574.3, or any
successor regulation; or
(iv) The terms "termination" or "involuntarily terminated" in
this Agreement shall refer to the termination of the employment of
Executive by the Bank 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 Vice
President - Retail Sales and Service of the Company or the Bank 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, if
unreasonable or materially adverse to the Executive 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 the Company's headquarters
at 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, a material reduction in the number or
seniority of other Company or Bank personnel reporting to the Executive,
or a reduction in the frequency with which, or in the nature of the
matters with respect to which, such personnel are to report to the
Executive, other than as part of a Company-wide or Bank-wide reduction in
staff; 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 the Bank.
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 the Bank to continue
employing Executive, but only to the extent required by the applicable
regulations of the OTS (12 C.F.R. Section 563.39), or similar succeeding
regulations:
(a) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served
under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(3) and (g)(1)) the Bank'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, the Bank may in its discretion (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.
(b) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(4) or (g)(1)) all obligations of the Bank under
this Agreement shall terminate as of the effective date of the order.
(c) If the Bank is in default (as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act), the obligation to 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 the Bank 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 the Bank or when the Bank 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 the Bank without cause entitling
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. Section 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. Section 563.39(b), the latter shall prevail.
ARTICLE III
LEGAL FEES AND EXPENSES
The Company shall pay, or shall cause the Bank to pay, all legal fees
and expenses which the Executive may incur as a result of the Company or
the Bank 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
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 the Company, the Bank and their
subsidiaries, as well as similar information regarding OSB Financial and
its subsidiaries relating to his previous employment by OSB Bank, and that
the disclosure to, or the use of such information by, and business in
competition with the Company, the Bank or their subsidiaries shall result
in substantial and undeterminable harm to the Company, the Bank and their
subsidiaries. In order to protect the Company, the Bank and their
subsidiaries against such harm and from unfair competition, Executive
agrees with the Company and the Bank that while employed by the Bank and
at any time thereafter, Executive will not disclose, communicate or
divulge to anyone, or use in any manner adverse to the Company, the Bank
or their subsidiaries any information concerning customers, methods of
business, financial information or other confidential information of the
Company, the Bank, their subsidiaries or similar information regarding OSB
Financial 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 Executive).
ARTICLE V
GENERAL PROVISIONS
5.1 Inquiries Regarding Proposed Activities.
In the event Executive shall inquire in writing of the Company
whether any proposed action on the part of Executive would be considered
by the Company or the Bank 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 Executive its position with respect
thereof and in the event such writing shall not be given to 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 the Bank to any
other business entity that is directly or indirectly controlled by the
Company or the Bank. This Agreement may not be assigned by the Company or
the Bank except in connection with a merger involving the Company or the
Bank or a sale of substantially all of the assets of the Company or the
Bank, and the respective obligations of the Company and the Bank provided
for in this Agreement shall be the binding legal obligations of any
successor to the Company or the Bank by purchase, merger, consolidation,
or otherwise. 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 the Bank shall be directed
to the attention of the Board of Directors of the Company and/or the Bank,
as the case may be, with a copy to the Secretary of the Company and/or the
Bank, 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
FCB FINANCIAL CORP.
/s/ James J. Rothenbach
James J. Rothenbach
President and Chief Executive Officer
Address: 420 South Koeller Street
Oshkosh, Wisconsin 54901
FOX CITIES BANK, F.S.B.
/s/ James J. Rothenbach
James J. Rothenbach
President and Chief Executive Officer
Address: 420 South Koeller Street
Oshkosh, Wisconsin 54901
EXECUTIVE
/s/ Theodore W. Hoff
Theodore W. Hoff
Address: 1145 Honey Creek Circle
Oshkosh, Wisconsin 54904-9395
Exhibit 2.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into
this 1st day of May 1997 between FCB Financial Corp., a Wisconsin
corporation (the "Company"), Fox Cities Bank, F.S.B., a federal savings
bank which is wholly-owned by the Company (the "Bank") and Harold L.
Hermansen (the "Executive").
WHEREAS, the Company and OSB Financial Corp. ("OSB Financial")
entered into an Agreement and Plan of Merger, dated November 13, 1996 (the
"Merger Agreement"), providing for the combination of the Company and OSB
Financial Corp. and a concurrent combination of the Bank and Oshkosh
Savings Bank, F.S.B. ("OSB Bank") in a strategic merger, wherein the
Company and the Bank survive the merger (collectively, the "Merger");
WHEREAS, prior to the Merger, the Bank employed the Executive as
Vice President - Lending/Secretary of the Bank;
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;
WHEREAS, Executive's skills and extensive experience and
knowledge in the financial institutions industry will substantially
benefit the Company and the Bank; and
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:
ARTICLE I
EMPLOYMENT
1.1 Term of Employment.
The Bank hereby employs Executive for an initial period of fifteen
(15) months commencing on May 1, 1997 (the "Commencement Date") and
terminating on July 31, 1998 (the "Initial Termination Date"), subject to
earlier termination as provided in Article II hereof. The Board of
Directors of the Bank shall review and may extend the term of this
Agreement for a period of one (1) additional year beginning on the Initial
Termination Date and in each subsequent year thereafter for a period of
one (1) additional year. Any extensions of the term of this Agreement
shall be made by giving Executive written notice of such extension at
least 90 days prior to the Initial Termination Date or the expiration of
any renewal period. Reference herein to the term of this Agreement shall
refer to both the initial term and such extended terms.
1.2 Duties of Executive.
The Bank hereby employs Executive, and Executive hereby accepts
employment with the Bank, upon the terms and conditions hereinafter set
forth for the term of this Agreement. Executive is employed by the Bank
to perform the duties of Vice President - Retail Lending and Secretary of
the Bank, and the Company shall cause the Bank to appoint Executive to
such position. As part of Executive's employment by the Bank hereunder,
Executive shall also serve as, and the Company hereby appoints Executive
during the term of his employment by the Bank hereunder to serve as, Vice
President - Retail Lending and Secretary of the Company. The services to
be performed by the Executive shall include those normally performed by
the Vice President - Retail Lending and Secretary of similar banking
organizations and as directed by the Board of Directors of the Company and
the Bank, respectively, which are not inconsistent with the foregoing.
Executive agrees to devote his full business time to the rendition of such
services, subject to absences for customary vacations and for temporary
illnesses. The Company and the Bank 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 consent. Furthermore,
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 the Bank.
1.3 Compensation.
The Bank agrees to compensate, and the Company agrees to cause the
Bank to compensate, the Executive for his services hereunder during the
term of this Agreement by payment of a salary at the annual rate of
$70,000 in such monthly, semi-monthly or other payments as are from time
to time applicable to other executive officers of the Bank. 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 the
Bank, but Executive's salary shall not be reduced below the level then in
effect. In addition, Executive shall be entitled to participate in
incentive compensation plans as may from time to time be established by
the Company or the Bank on an equivalent basis as other executive officers
of the Company or the Bank (but recognizing differences in
responsibilities among executive officers).
1.4 Benefits.
(a) 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 the Bank
(which initially will include a 30% co-pay by the Executive), (iii)
membership or appropriate affiliation with a recreational club, (iv)
reimbursement of business expenses reasonably incurred in connection with
his employment and expenses incurred by his spouse when accompanying
Executive, (v) paid vacations and sick leave in accordance with prevailing
policies of the Bank, provided that allowed vacations shall in no event be
less than three weeks per annum, and (vi) such other benefits as are
provided to other executive officers of the Bank; provided that amounts
allocated to Executive's personal use under clause (iii) above and
additional charges for Executive's spouse pursuant to clause (iv) above
shall be treated as taxable income to Executive in accordance with
applicable Bank policies.
(b) If Executive shall become temporarily disabled or incapacitated
to the extent that he is unable to perform the duties of Vice President -
Retail Lending and Secretary of the Company or the Bank for three (3)
consecutive months, he shall nevertheless be entitled to receive 100
percent of his compensation under Section 1.3 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 the Bank or disability insurance policy maintained for the benefit of
Executive by the Company or the Bank. Upon returning to active full-time
employment, Executive's full compensation as set forth in this Agreement
shall be reinstated. In the event that Executive returns to active
employment on other than a full-time basis with the approval of the Board
of Directors of the Bank, then his compensation (as set forth in Section
1.3 of this Agreement) shall be reduced proportionately based upon the
fraction of full-time employment devoted by Executive to his employment
and responsibilities at the Bank and the Company. But, if he is again
unable to perform the duties of Vice President - Retail Lending and
Secretary of the Company and the Bank hereunder due to disability or
incapacity, he must have been engaged in active full-time employment 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).
(c) It is the intention of the Company that, within 30 days after
the date of this Agreement, the Company shall cause 6,000 non-tax-
qualified stock options (exercisable for shares of the Company's common
stock) to be granted to Executive. The 6,000 stock options provided for
in this Section 1.4(c) shall be granted by the personnel committee of the
Company under the terms of the Company's 1993 Stock Option and Incentive
Plan and shall vest ratably over a five year period beginning from the
date of their grant.
1.5 Covenant Not to Compete.
Executive acknowledges that the Company and the Bank would be
substantially damaged by an association of Executive with a depository
institution that competes for customers with the Company and the Bank.
Without the consent of the Company, Executive shall not at any time during
the term of this Agreement or Executive's employment by the Bank, 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 the Bank or any of
their subsidiaries during the two year period prior to the termination of
this Agreement or Executive's employment hereunder for the purpose of
offering the same products or rendering the same services to such customer
as were provided or proposed to be provided by the Company or the Bank or
any of their subsidiaries to such customer as of the time of termination
of Executive's employment, or (ii) actively induce or solicit any
employees of the Company or the Bank 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 Executive.
Executive may terminate his employment hereunder at any time for any
reason upon giving the Bank written notice, at least ninety (90) days
prior to termination of employment. Upon such termination, Executive
shall be entitled to receive 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 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 Executive's employment is terminated by reason of Executive's
death, then Executive's personal representative shall be entitled to
receive Executive's theretofore unpaid base salary for the period of
employment up to the date of death. Executive's spouse and dependent
children shall continue to be entitled, at the expense of the Bank
(subject to then existing co-payment features applicable under the Bank's
medical insurance plan) if it is an insured plan, to further medical
coverage to the extent permitted by COBRA; provided that, if the Bank's
plan is not insured, the Bank will pay to Executive's spouse an additional
monthly death benefit during the applicable COBRA period, based upon COBRA
rates in effect at the time of 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.
2.3 Termination of Employment for Disability.
If Executive becomes Totally and Permanently Disabled (as defined
below) during the term of this Agreement, the Bank may terminate
Executive's employment and this Agreement, except Section 1.5 and Article
IV hereof, by giving Executive written notice of such termination not less
than 5 days before the effective date thereof. If Executive's employment
and this Agreement are terminated pursuant to this Section 2.3, the Bank
shall pay to Executive his theretofore unpaid base salary for the period
of employment up to the date of termination, and the Company and the Bank
shall have no further obligations to 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
Vice President - Retail Lending and Secretary of the Company or the Bank
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 Bank may terminate Executive's employment hereunder for Just
Cause (as such term is defined below), in which case the Executive shall
be entitled to receive 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 Bank has given written notice of such nonperformance to
the Executive and its intention to terminate 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 Bank Without Cause.
The Bank may terminate 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 through the then remaining term of employment under Section 1.1
consistent with the terms and conditions set forth in Section 1.4, to the
extent the same can be provided under the insurance arrangements of the
Bank in effect at the time of termination, (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 and (e) an amount equal
to the product of the Bank's annual aggregate contribution, for the
benefit of the Executive in the fiscal year preceding termination, to all
qualified retirement plans in which the Executive participated multiplied
by the number of years in the initial 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 the Bank at the time of termination. If the
Bank's medical and dental plans are not insured, the medical and dental
benefit in (c) shall be accomplished by the Bank paying to Executive an
additional cash amount equal to the COBRA premium for such coverage, plus
taxes on such amount, so that Executive may purchase the coverage on an
after-tax basis.
2.6 Termination of Employment Due to Change in Control.
(a) If, at any time after the date hereof, a "Change in Control" (as
hereinafter defined) occurs and within twelve (12) months thereafter
Executive's appointment as Vice President - Retail Lending and Secretary
of the Company or his employment as Vice President - Retail Lending and
Secretary of the Bank is involuntarily terminated (other than for Just
Cause pursuant to Section 2.4) then the Executive shall be entitled to the
benefits provided below.
(i) The Company shall promptly pay, or cause the Bank to pay,
to the Executive an amount equal to the product of 2.0 times the
Executive's "base amount" as defined in Section 280G(b)(3) of the Code
(such "base amount" to be derived from Executive's compensation paid by
the Company and the Bank).
(ii) During the term of this Agreement set forth in paragraph
1.1 (including any renewal term), the Executive, his dependents,
beneficiaries and estate shall continue to be covered under all employee
benefit plans of the Company and the Bank, including without limitation
the Company's and the Bank's pension and retirement plans, life insurance
and health insurance as if the Executive was still employed by the Bank
during such period under this Agreement; provided that coverage under the
medical and dental plans of the Company and the Bank shall be handled as
set forth in Section 2.5 above.
(iii) If and to the extent that benefits or services credit
for benefits under Section 2.6(a)(ii) above shall not be payable or
provided under any such plans to the Executive, his dependents,
beneficiaries and estate, by reason of his no longer being an employee of
the Bank as a result of termination of employment, the Company shall
itself, or shall cause the Bank to, pay or provide for payment of such
benefits and service credit for benefits to the Executive, his dependents,
beneficiaries and estate. Any such payment relating to retirement shall
commence on a date selected by the Executive which must be a date on which
payments under the Company or Bank's qualified pension plan or successor
plan may commence.
(b) (i) Anything in this Agreement to the contrary notwithstanding,
it is the intention of the Company, the Bank and the Executive that no
portion of any payment under this Agreement, or payments to or for the
benefit of the Executive under any other agreement or plan, be deemed an
"Excess Parachute Payment" as defined in Section 280G of the Code, or its
successors. It is agreed that the present value of any payment to or for
the benefit of the Executive in the nature of compensation, receipt of
which is contingent on the occurrence of a Change in Control, and to which
Section 280G of the Code applies (in the aggregate "Total Payments") shall
not exceed an amount equal to one dollar less than the maximum amount that
the Company and the Bank may pay without loss of deduction under Section
280(G)(a) of the Code. Present value for purposes of this Agreement shall
be calculated in accordance with Section 280G(d)(4) of the Code. Within
sixty days (60) following the earlier of (1) the giving of notice of
termination of employment or (2) the giving of notice by the Company to
the Executive of its belief that there is a payment or benefit due the
Executive, the Company, at the Company's expense, shall obtain the opinion
of the Company's public accounting firm (the "Accounting Firm"), which
opinion need not be unqualified, which sets forth: (a) the amount of the
Base Period Income of the Executive (as defined in Code Section 280G), (b)
the present value of Total Payments and (c) the amount and present value
of any Excess Parachute Payments. In the event that such opinion
determines that there would be an Excess Parachute Payment, the payment
hereunder shall be modified, reduced or eliminated as specified by the
Executive in writing delivered to the Company within thirty (30) days of
his receipt of such opinion or, if the Executive fails to so notify the
Company, then as the Company shall reasonably determine, so that under the
bases of calculation set forth in such opinion there will be no Excess
Parachute Payment. In the event that the provisions of Sections 280G and
4999 of the Code are repealed without succession, this Section shall be of
no further force or effect.
(ii) In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the
Change in Control, the Executive shall appoint another nationally
recognized public accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the
Accounting Firm under Section 2.6(b)). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any determination
by the Accounting Firm shall be binding upon the Company and the
Executive.
(c) For purposes of Section 2.6 of this Agreement, a "Change in
Control" shall be deemed to have occurred if:
(i) a third person, including a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934 (as in effect on the date
hereof), becomes the beneficial owner of shares of the Company having 20%
or more of the total number of votes that may be cast for the election of
directors of the Company, including for this purpose any shares
beneficially owned by such third person or group as of the date hereof; or
(ii) as the result of, or in connection with, any cash tender or
exchange offer, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing transactions (a
"Transaction"), the persons who were directors of the Company before the
Transaction shall cease to constitute a majority of the Board of Directors
of the Company or any successor to the Company. (In the event of any
reorganization involving the Company in a transaction initiated by the
Company in which the shareholders of the Company immediately prior to such
reorganization become the shareholders of a successor or ultimate parent
company of the Company resulting from such reorganization and the persons
who were directors of the Company immediately prior to such reorganization
constitute a majority of the Board of Directors of such successor or
ultimate parent, no "Change in Control" shall be deemed to have taken
place solely by reason of such reorganization, notwithstanding the fact
that the Company may have become the wholly-owned subsidiary of another
Company in such reorganization and the Board of Directors thereof may have
been reconstituted, and thereafter the term "Company" for purposes of this
paragraph shall refer to such successor or ultimate parent company.); or
(iii) a third person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934 (as in effect on
the date hereof), acquires control, as defined in 12 C.F.R. Section
574.4, or any successor regulation, of the Company which would require the
filing of an application for acquisition of control or notice of change in
control in a manner set forth in 12 C.F.R. Section 574.3, or any
successor regulation; or
(iv) The terms "termination" or "involuntarily terminated" in
this Agreement shall refer to the termination of the employment of
Executive by the Bank 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 Vice
President - Retail Lending and Secretary of the Company or the Bank 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, if
unreasonable or materially adverse to the Executive 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 the Company's headquarters
at 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, a material reduction in the number or
seniority of other Company or Bank personnel reporting to the Executive,
or a reduction in the frequency with which, or in the nature of the
matters with respect to which, such personnel are to report to the
Executive, other than as part of a Company-wide or Bank-wide reduction in
staff; 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 the Bank.
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 the Bank to continue
employing Executive, but only to the extent required by the applicable
regulations of the OTS (12 C.F.R. Section 563.39), or similar succeeding
regulations:
(a) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served
under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(3) and (g)(1)) the Bank'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, the Bank may in its discretion (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.
(b) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12
U.S.C. Section 1818(e)(4) or (g)(1)) all obligations of the Bank under
this Agreement shall terminate as of the effective date of the order.
(c) If the Bank is in default (as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act), the obligation to 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 the Bank 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 the Bank or when the Bank 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 the Bank without cause entitling
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. Section 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. Section 563.39(b), the latter shall prevail.
ARTICLE III
LEGAL FEES AND EXPENSES
The Company shall pay, or shall cause the Bank to pay, all legal fees
and expenses which the Executive may incur as a result of the Company or
the Bank 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
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 the Company, the Bank and their
subsidiaries, as well as similar information regarding OSB Financial and
its subsidiaries, and that the disclosure to, or the use of such
information by, and business in competition with the Company, the Bank or
their subsidiaries shall result in substantial and undeterminable harm to
the Company, the Bank and their subsidiaries. In order to protect the
Company, the Bank and their subsidiaries against such harm and from unfair
competition, Executive agrees with the Company and the Bank that while
employed by the Bank and at any time thereafter, Executive will not
disclose, communicate or divulge to anyone, or use in any manner adverse
to the Company, the Bank or their subsidiaries any information concerning
customers, methods of business, financial information or other
confidential information of the Company, the Bank, their subsidiaries or
similar information regarding OSB Financial 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 Executive).
ARTICLE V
GENERAL PROVISIONS
5.1 Inquiries Regarding Proposed Activities.
In the event Executive shall inquire in writing of the Company
whether any proposed action on the part of Executive would be considered
by the Company or the Bank 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 Executive its position with respect
thereof and in the event such writing shall not be given to 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 the Bank to any
other business entity that is directly or indirectly controlled by the
Company or the Bank. This Agreement may not be assigned by the Company or
the Bank except in connection with a merger involving the Company or the
Bank or a sale of substantially all of the assets of the Company or the
Bank, and the respective obligations of the Company and the Bank provided
for in this Agreement shall be the binding legal obligations of any
successor to the Company or the Bank by purchase, merger, consolidation,
or otherwise. 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 the Bank shall be directed
to the attention of the Board of Directors of the Company and/or the Bank,
as the case may be, with a copy to the Secretary of the Company and/or the
Bank, 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
FCB FINANCIAL CORP.
/s/ James J. Rothenbach
James J. Rothenbach
President and Chief Executive Officer
Address: 420 South Koeller Street
Oshkosh, Wisconsin 54901
FOX CITIES BANK, F.S.B.
/s/ James J. Rothenbach
James J. Rothenbach
President and Chief Executive Officer
Address: 420 South Koeller Street
Oshkosh, Wisconsin 54901
EXECUTIVE
/s/ Harold L. Hermansen
Harold L. Hermansen
Address: 2208 North Nicholas
Appleton, Wisconsin 54914
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
Board of Directors and
Shareholders
OSB Financial Corp.
We consent to the incorporation by reference in this Current Report of FCB
Financial Corp. on Form 8-K of our report dated January 14, 1997, with
respect to the consolidated financial statements of OSB Financial Corp.
included in the Joint Proxy Statement/Prospectus dated March 12, 1997, of
FCB Financial Corp. and OSB Financial Corp.
/s/ Wipfli Ullrich Bertelson LLP
Wipfli Ullrich Bertelson LLP
May 9, 1997
Green Bay, Wisconsin
