AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this “Agreement”) made effective as of January 8, 2022 (the “Effective Date”), by and between PyraMax Bank,
FSB, a federally chartered savings bank (the “Bank”) and Richard Hurd (the “Executive”). The Bank and Executive are sometimes collectively referred to herein as the “parties.” Any reference to the “Company” shall mean 1895 Bancorp of Wisconsin, Inc., the Maryland stock holding company of the Bank. The Company is a signatory to this Agreement for the purpose of guaranteeing the Bank’s performance hereunder.
WITNESSETH
WHEREAS,
Executive is currently employed as the Chief Executive Officer of the Bank;
WHEREAS, Executive has expressed
a desire to the Bank to reduce his day to day involvement in the operation of the Bank while continuing to serve as the Chief Executive Officer of the Bank and the Company in order to continue to provide leadership and direction to the Bank and the
Company;
WHEREAS, the Bank desires to
assure itself of the continued availability of the Executive’s services as provided in this Agreement; and
WHEREAS, the Executive is willing to serve the Bank on the terms and conditions hereinafter set forth.
NOW, THEREFORE,
in consideration of the mutual covenants herein contained, and upon the terms and conditions hereinafter provided, the parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the term of this Agreement Executive shall serve as a member of the board of directors of the Bank (the “Board”) and Chief Executive Officer of the Bank. Executive shall
be responsible for the overall management of the Bank, and shall be responsible for establishing the business objectives, policies and strategic plan of the Bank, in conjunction with the Board. Executive also shall be responsible for providing
leadership and direction to all departments or divisions of the Bank, and shall be the primary contact between the Board and the staff. As Chief Executive Officer, Executive shall directly report to the Board. Executive also shall be nominated as a
member of the Board, subject to election by members or shareholders of the Bank, as the case may be. Executive also agrees to serve, if elected,
as an officer and director of any affiliate of the Bank.
2. TERM
AND DUTIES.
(a) Three-Year Contract; Annual Renewal. The term of this
Agreement shall commence as of the Effective Date and shall continue thereafter for a period of three (3) years. Commencing on the first anniversary date of this Agreement (the “Anniversary Date”) and
continuing on each Anniversary Date thereafter, the term of this Agreement shall renew for an additional year such that the remaining term of this
Agreement is always three (3) years; provided, however, that in order for this Agreement to renew, the disinterested members of the Board of Directors of the Bank (the “Board”) must take the following actions within the time frames set forth below prior to each Anniversary Date: (i) at least thirty (30) days prior to the Anniversary Date, conduct or review a comprehensive performance
evaluation of Executive for purposes of determining whether to extend this Agreement; and (ii) affirmatively approve the renewal or non-renewal of this Agreement, which decision shall be included in the minutes of the Board’s meeting. If the
decision of such disinterested members of the Board is not to renew this Agreement, then the Board shall provide Executive with a written notice of non-renewal (“Non-Renewal Notice”) prior to any Anniversary Date, such that this Agreement shall terminate at the end of twenty-four (24) months following such Anniversary Date. Notwithstanding the foregoing, in the event that the Company or the
Bank has entered into an agreement to effect a transaction which would be considered a Change in Control as defined below, then the term of this Agreement shall be extended and shall terminate thirty-six (36) months following the date on which the
Change in Control occurs.
(b) Termination of Employment. Notwithstanding anything contained in this Agreement to
the contrary, either Executive or the Bank may terminate Executive’s employment with the Bank at any time during the term of this Agreement, subject to the terms and conditions of this Agreement.
(c) Continued Employment Following Expiration of Term. Nothing in this Agreement shall
mandate or prohibit a continuation of Executive’s employment following the expiration of the term of this Agreement, upon such terms and conditions as the Bank and Executive may mutually agree.
(d) Duties; Membership on Other Boards. During the term of this Agreement, the Executive
shall devote approximately twenty (20) hours per week, to the faithful performance of his duties hereunder, including activities and services related to the organization, operation and management of the Bank. During this period and for the time
specified he will devote his business time, attention, skill and efforts to the performance of his duties as the Chief Executive Officer; provided, however, that, Executive may serve, or continue to serve, on the boards of directors of, and hold
any other offices or positions in, business companies or business or civic organizations, which, in the Board’s judgment, will not present any conflict of interest with the Bank, or materially affect the performance of Executive’s duties pursuant
to this Agreement. Executive shall provide the Board of Directors annually for its approval a list of organizations for which the Executive acts as a director or officer.
3. COMPENSATION, BENEFITS AND REIMBURSEMENT.
(a) Base Salary. In consideration of Executive’s performance of the duties set
forth in Section 2, the Bank shall provide Executive the compensation specified in this Agreement. The Bank shall pay Executive a base salary of $140,000.00 per year (“Base Salary”). The Base Salary shall be payable biweekly, or with such other frequency as officers of the Bank are generally paid. During the term of this Agreement, the Base Salary shall be reviewed at least
annually by the Board or by a committee designated by the Board, and the Bank may increase,
but not decrease (except for a decrease that is generally applicable to all senior management employees) Executive’s Base Salary. Any increase in Base
Salary shall become “Base Salary” for purposes of this Agreement.
(b) B Bonus Compensation. Executive will be eligible for a discretionary bonus in the sole
discretion of the Board. Executive shall be entitled to equitable participation in incentive compensation and bonuses in any plan or arrangement of the Bank or the Company in which Executive is eligible to participate. Nothing paid to Executive
under any such plan or arrangement will be deemed to be in lieu of other compensation to which Executive is entitled under this Agreement.
(c) Employee Benefits. The Bank shall provide Executive with employee benefit plans, arrangements and perquisites substantially equivalent
to those in which Executive was participating or from which he was deriving benefit immediately prior to the commencement of the term of this Agreement, provided, however, that Executive will no longer participate in those plans, if any, for
which he is ineligible pursuant to the terms of such plans or arrangements based on his reduced hours of employment. For the avoidance of doubt, Executive will no longer be eligible for coverage under the Bank’s medical, dental and vision
plans or long-term care or life insurance plans. To the extent that the Executive continues to be eligible for a plan or arrangement, the Bank shall not, without Executive’s prior written consent, make any changes in such plans, arrangements
or perquisites that would adversely affect Executive’s rights or benefits thereunder, except as to any changes that are applicable to all participating employees. The Bank shall also pay the cost of Executive’s membership to a country club of
Executive’s choice, provided that the country club is in the State of Wisconsin. Without limiting the generality of the foregoing provisions of this Section 3(c), Executive will be entitled to participate in and receive benefits under any
employee benefit plans for which he is eligible as an employee working approximately 20 hours per week, including, but not limited to, retirement plans, supplemental retirement plans, pension plans, profit-sharing plans, and any other employee
benefit plan or arrangement made available by the Bank and/or the Company in the future to its senior executives, including any stock benefit plans, subject to and on a basis consistent with the terms, conditions and overall administration of
such plans and arrangements.
(d) Paid Time Off. Executive shall be entitled to three (3) weeks of paid time off each year during the term of this Agreement (measured on a fiscal or calendar year basis, in
accordance with the Bank’s usual practices) for vacation, personal and sick leave, as well as holidays and other paid absences in accordance with the Bank’s policies and procedures for senior executives. Any unused paid time off during an
annual period shall be treated in accordance with the Bank’s personnel policies as in effect from time to time.
(e) Expense Reimbursements. The Bank shall also pay or reimburse Executive for all reasonable travel, entertainment and other reasonable expenses incurred by Executive
during the course of performing his obligations under this Agreement, including, without limitation, fees for memberships in such clubs and organizations as Executive and the Board shall mutually agree are necessary and appropriate in
connection with the performance of his duties under this Agreement, upon presentation to the Bank of an itemized account of such expenses in such form as the Bank may reasonably require, provided that such payment or reimbursement shall
be
made as soon as practicable but in no event later than March 15 of the year following the year in which such right to such payment or reimbursement
occurred.
4. PAYMENTS
TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon
the occurrence of an Event of Termination (as herein defined) during the term of this Agreement, the provisions of this Section 4 shall apply; provided, however, that in the event such Event of Termination occurs within twenty-four (24) months
following a Change in Control (as defined in Section 5 hereof), Section 5 shall apply instead. As used in this Agreement, an “Event of Termination’’ shall mean and include any one or more of the following:
(i) the involuntary termination of Executive’s employment hereunder by the Bank for
any reason other than termination governed by Section 5 (in connection with or following a Change in Control), Section 6 (due to Disability or death), Section 7 (due to Retirement), or Section 8 (for Cause), provided that such termination
constitutes a “Separation from Service” within the meaning of Section 409A of the Internal Revenue Code (“Code”); or
(ii) Executive’s resignation from the Bank’s employ upon any of the following, unless
consented to by Executive:
(A) failure to appoint Executive to the position set forth in Section 1, or a material change in Executive’s function, duties, or
responsibilities, which change would cause Executive’s position to become one of lesser responsibility, importance, or scope from the position and responsibilities described in Section 1, to which Executive has not agreed in writing (and any such
material change shall be deemed a continuing breach of this Agreement by the Bank);
(B) a relocation of Executive’s principal place of employment to a location that is more than 35 miles from the location of the Bank’s principal
executive offices as of the date of this Agreement;
(C) a material reduction in the benefits and perquisites, including Base Salary, to Executive from those being provided as of the Effective Date
of this Agreement (except for any reduction that (x) arises under the terms of a third-party insurance carrier’s contract with the Bank or under the Bank’s tax-qualified plans, in either case based solely on Executive’s reduction in hours and/or
Base Salary as set forth in this Agreement or (y) is part of a reduction in pay or benefits that is generally applicable to officers or employees of the Bank);
(D) a liquidation or dissolution of the Bank; or
(E) a material breach of this Agreement by the Bank.
Upon the occurrence of any event described in clause (ii) above, Executive shall have the right to elect to terminate his employment under this Agreement
by resignation for “Good Reason” upon not less than thirty (30) days prior written notice given within a reasonable period of time (not to exceed ninety (90) days) after the event giving rise to the right to elect, which termination by Executive
shall be an Event of Termination. The Bank shall have thirty (30) days to cure the condition giving rise to the Event of Termination, provided that the Bank may elect to waive said thirty (30) day period. For the avoidance of doubt, the non-renewal
of this Agreement under Section 2(a) hereof, without the occurrence of an Event of Termination under this Section 4(a)(ii) prior to the end of the term of this Agreement, shall not be considered an event that would permit the Executive to resign for
Good Reason and receive a severance payment.
(b) Upon the occurrence of an Event
of Termination, the Bank shall pay Executive, or, in the event of his subsequent death, his beneficiary or beneficiaries, or his estate, as the case may be, as severance pay or liquidated damages, or both, the Base Salary and bonuses, if any,
that Executive would be entitled to for the remaining unexpired term of the Agreement. For purposes of determining the bonus(es) payable hereunder, the bonus(es) will be deemed to be equal to the average annual bonus paid over the prior three
years, and (ii) otherwise paid at such time as such bonus would have been paid absent an Event of Termination (i.e., if only two bonuses would otherwise be paid during the remaining term, then two bonuses will be included in the calculation).
Such payments shall be paid in a lump sum on or before the 30th day following the Executive’s Separation from Service (within the meaning of Section 409A of the Code), unless the payment is due in connection with a termination program
involving more than one employee, in which case the payment shall be due within no more than 60th day following Executive’s Separation from Service, and shall not be reduced in the event Executive obtains other employment following the
Event of Termination. Notwithstanding the foregoing, Executive shall not be entitled to any payments or benefits under this Section 4 unless and until (i) Executive executes a release of his claims against the Bank, the Company and any
affiliate, and their officers, directors, successors and assigns, releasing said persons from any and all claims, rights, demands, causes of action, suits, arbitrations or grievances relating to the employment relationship, including claims under
the Age Discrimination in Employment Act, but not including claims for benefits under tax-qualified plans or other benefit plans in which Executive is vested, claims for benefits required by applicable law or claims with respect to obligations
set forth in this Agreement that survive the termination of this Agreement (the “Release”), and (ii) the payments and benefits shall begin on
the 30th day following the date of the Executive’s Separation from Service, provided that before that date, the Executive has signed (and not revoked) the Release and the Release is irrevocable under the time period set forth under
applicable law.
(c) For purposes of this
Agreement, a “Separation from Service” shall have occurred if the Bank and Executive reasonably anticipate that either no further services will be performed by the Executive after the date of the Event of Termination (whether as an employee
or as an independent contractor) or the level of further services performed will not exceed 49% of the average level of bona fide services in the thirty-six (36) months immediately preceding the Event of Termination. For all purposes
hereunder, the definition of Separation from Service shall be interpreted consistent with Treasury Regulation Section 1.409A-1(h)(ii). If Executive
is a Specified Employee, as defined in Code Section 409A and any payment to be made under sub-paragraph (b) or (c) of this Section 4 shall be determined to
be subject to Code Section 409A, then if required by Code Section 409A, such payment or a portion of such payment (to the minimum extent possible) shall be delayed and shall be paid on the first day of the seventh month following Executive’s
Separation from Service.
5. CHANGE IN CONTROL.
(a) Any
payments made to Executive pursuant to this Section 5 are in lieu of any payments that may otherwise be owed to Executive pursuant to this Agreement under Section 4, such that Executive shall either receive payments pursuant to Section 4 or
pursuant to Section 5, but not pursuant to both Sections.
(b) For
purposes of this Agreement, the term “Change in Control” shall mean:
|
(1) |
Merger: The Company or the Bank merges into or consolidates with another
entity, or merges another Bank or corporation into the Bank or the Company, and as a result, less than a majority of the combined voting power of the resulting corporation immediately after the merger or consolidation is held by persons who
were stockholders of the Company or the Bank immediately before the merger or consolidation;
|
|
(2) |
Acquisition of Significant Share Ownership: A person or persons acting in
concert has or have become the beneficial owner of 25% or more of a class of the Company’s or the Bank’s voting securities; provided, however, this clause (2) shall not apply to beneficial ownership of the Company’s or the Bank’s voting
shares held in a fiduciary capacity by an entity of which the Company directly or indirectly beneficially owns 50% or more of its outstanding voting securities;
|
|
(3) |
Change in Board Composition: During any period of two consecutive years,
individuals who constitute the Company’s or the Bank’s Board of Directors at the beginning of the two-year period cease for any reason to constitute at least a majority of the Company’s or the Bank’s Board of Directors; provided, however,
that for purposes of this clause (c), each director who is first elected by the board (or first nominated by the board for election by the stockholders or corporators) by a vote of at least two-thirds (2/3) of the directors who were directors
at the beginning of the two-year period shall be deemed to have also been a director at the beginning of such period; or
|
|
(4) |
Sale of Assets: The Company or the Bank sells to a third party all or
substantially all of its assets.
|
(c) Upon the occurrence of a Change in Control followed within twenty-four (24) months by an Event of Termination (as defined in Section 4 hereof), Executive shall receive as
severance pay or liquidated damages, or both, a lump sum cash payment equal to three (3) times
the sum of (i) Executive’s highest annual rate of Base Salary paid to Executive at any time under this Agreement, plus (ii) the highest bonus paid to
Executive with respect to the three completed fiscal years prior to the Change in Control. Such payment shall be paid in a lump sum within ten (10) days of the Executive’s Separation from Service (within the meaning of Section 409A of the Code) and
shall not be reduced in the event Executive obtains other employment following the Event of Termination.
6. TERMINATION
FOR DISABILITY OR DEATH.
(a) Termination of Executive’s employment based on “Disability” shall be construed to comply with Section 409A of the Internal Revenue Code and shall be deemed to have occurred if:
(i) Executive is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death, or last for a continuous period of not less than 12 months, and as
a result, Executive is receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Bank or the Company; or (ii) Executive is determined to be totally disabled by the
Social Security Administration. The provisions of Sections 6(b) shall apply upon the termination of the Executive’s employment based on Disability. Upon the determination that Executive has suffered a Disability, disability payments to which
Executive is entitled as a employee of the Bank, if any, shall commence within thirty (30) days.
(b) The Bank shall cause to be continued term life insurance coverage and long term care coverage substantially comparable, as reasonably available, to the coverage maintained by
the Bank for Executive and Executive’s wife prior to the termination of his employment based on Disability (in accordance with the customary co-pay percentages and assuming Executive’s reimbursement of the costs of his wife’s coverage), except to
the extent such coverage may be changed in its application to all Bank employees or not available on an individual basis to an employee terminated based on Disability. This coverage shall cease upon the earlier of (i) Executive’s employment by
another employer on a full-time or part-time basis; or (iii) twelve (12) months following the date of termination of Executive’s employment based on Disability. If participation by the Executive is not permitted under the terms of an applicable
plan (i.e., such as a group life insurance plan), the Bank shall provide Executive with reimbursement (payable on a monthly basis) of premiums paid by the Executive to obtain similar benefits for the period specified above; provided, however, that
the reimbursement shall not exceed the cost of the monthly premiums for active employees.
(c) In the event of Executive’s death during the term of this Agreement, his estate, legal representatives or named beneficiaries (as directed by Executive in writing) shall be paid
Executive’s Base Salary at the rate in effect at the time of Executive’s death in accordance with the regular payroll practices of the Bank for a period of six (6) months from the date of Executive’s death. Such payments are in addition to any
life insurance benefits that Executive’s beneficiaries may be entitled to receive under any employee benefit plan maintained by the Bank for the benefit of Executive, including, but not limited to, the Bank’s tax-qualified retirement plans.
7. TERMINATION UPON RETIREMENT.
Termination of Executive’s employment based on “Retirement” shall mean termination of Executive’s employment at any time (other than a
termination pursuant to Section 5) in accordance with any retirement policy established by the Board with Executive’s consent as it applies to him. Upon termination of Executive based on Retirement, no amounts or benefits shall be due Executive
under this Agreement, and Executive shall be entitled to all benefits under any retirement plan of the Bank and other plans to which Executive is a party, subject to the terms of such plans.
8. TERMINATION FOR CAUSE.
(a) The Bank may terminate Executive’s employment at any time, but any termination other than termination for “Cause,” as defined herein, shall not prejudice Executive’s right to
compensation or other benefits under this Agreement. Executive shall have no right to receive compensation or other benefits for any period after termination for “Cause.” The term “Cause” as used herein, shall exist when there has been a good
faith determination by the Board that there shall have occurred one or more of the following events with respect to the Executive:
|
(1)
|
personal dishonesty in performing Executive’s duties on behalf of the Bank;
|
|
(2)
|
incompetence in performing Executive’s duties on behalf of the Bank;
|
|
(3)
|
willful misconduct that in the judgment of the Board will likely cause economic damage to the Bank or injury to the business reputation of the
Bank;
|
|
(4)
|
breach of fiduciary duty involving personal profit;
|
|
(5)
|
material breach of the Bank’s Code of Ethics;
|
|
(6)
|
intentional failure to perform stated duties under this Agreement after written notice thereof from the Board;
|
|
(7)
|
willful violation of any law, rule or regulation (other than traffic violations or similar offenses) that reflect adversely on the reputation of
the Bank, any felony conviction, any violation of law involving moral turpitude, or any violation of a final cease-and-desist order; or
|
|
(8)
|
material breach by Executive of any provision of this Agreement.
|
Notwithstanding the foregoing, Cause shall not be deemed to exist unless there shall have been delivered to the Executive a copy of a resolution duly
adopted by the affirmative vote of not less than a majority of the entire membership of the Board at a meeting of the Board called and held
for the purpose (after reasonable notice to the Executive and an opportunity for the Executive to be heard before the Board), finding that in the good
faith opinion of the Board the Executive was guilty of conduct described above and specifying the particulars thereof. Prior to holding a meeting at which the Board is to make a final determination whether Cause exists, if the Board determines in
good faith at a meeting of the Board, by not less than a majority of its entire membership, that there is probable cause for it to find that the Executive was guilty of conduct constituting Cause as described above, the Board may suspend the
Executive from his duties hereunder for a reasonable period of time not to exceed fourteen (14) days pending a further meeting at which the Executive shall be given the opportunity to be heard before the Board. Upon a finding of Cause, the Board
shall deliver to the Executive a Notice of Termination, as more fully described in Section 10 below.
(b) For purposes of this Section 8, no act or failure to act, on the part of Executive, shall be considered “willful” unless it is done, or omitted to be done, by Executive in bad
faith or without reasonable belief that Executive’s action or omission was in the best interests of the Bank. Any act, or failure to act, based upon the direction of the Board or based upon the advice of counsel for the Bank shall be conclusively
presumed to be done, or omitted to be done, by Executive in good faith and in the best interests of the Bank.
9. RESIGNATION FROM BOARDS OF DIRECTORS
In the event of Executive’s termination of employment due to an Event of Termination or for Cause, Executive’s service as a director of
the Bank, the Company, and any affiliate of the Bank or the Company shall immediately terminate. This Section 9 shall constitute a resignation notice for such purposes.
(a) Any purported
termination by the Bank for Cause shall be communicated by Notice of Termination to Executive. If, within thirty (30) days after any Notice of Termination for Cause is given, Executive notifies the Bank that a dispute exists concerning the
termination, the parties shall promptly proceed to arbitration, as provided in Section 20. Notwithstanding the pendency of any such dispute, the Bank shall discontinue paying Executive’s compensation until the dispute is finally resolved in
accordance with this Agreement. If it is determined that Executive is entitled to compensation and benefits under Section 4 or 5, the payment of such compensation and benefits by the Bank shall commence immediately following the date of resolution
by arbitration, with interest due Executive on the cash amount that would have been paid pending arbitration (at the prime rate as published in The
Wall Street Journal from time to time).
(b) Any other
purported termination by the Bank or by Executive shall be communicated by a “Notice of Termination” (as defined in Section 10(c)) to the other party. If, within thirty (30) days after any Notice of Termination is given, the party receiving such
Notice of Termination notifies the other party that a dispute exists concerning the termination, the parties shall promptly proceed to arbitration as provided in Section 20. Notwithstanding the pendency of any such dispute, the Bank shall continue
to pay Executive his Base Salary, and other compensation and benefits in effect when the notice giving rise to the dispute was given
(except as to termination of Executive for Cause); provided, however, that such payments and benefits shall not continue beyond the remaining unexpired
term of the Agreement. In the event the voluntary termination by Executive of his employment is disputed by the Bank, and if it is determined in arbitration that Executive is not entitled to termination benefits pursuant to this Agreement, he shall
return all cash payments made to him pending resolution by arbitration, with interest thereon at the prime rate as published in The Wall Street Journal
from time to time, if it is determined in arbitration that Executive’s voluntary termination of employment was not taken in good faith and not in the reasonable belief that grounds existed for his voluntary termination. If it is determined that
Executive is entitled to receive severance benefits under this Agreement, then any continuation of Base Salary and other compensation and benefits made to Executive under this Section 10 shall offset the amount of any severance benefits that are due
to Executive under this Agreement.
(c) For purposes of this Agreement, a “Notice of Termination” shall mean a written notice that shall indicate the specific termination provision in this Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated.
11. POST-TERMINATION OBLIGATIONS.
(a) One-Year Non-Solicitation. Executive hereby covenants and agrees
that, for a period of one year following his termination of employment with the Bank, he shall not, without the written consent of the Bank, either directly or indirectly solicit, offer employment to, or take any other action intended (or that a
reasonable person acting in like circumstances would expect) to have the effect of causing any officer or employee of the Bank or the Company, or any of their respective subsidiaries or affiliates, to terminate his or her employment and accept
employment or become affiliated with, or provide services for compensation in any capacity whatsoever to, any business whatsoever that competes with the business of the Bank or the Company, or any of their direct or indirect subsidiaries or
affiliates or has headquarters or offices within 35 miles of the locations in which the Bank or the Company has business operations or has filed an application for regulatory approval to establish an office;
(b) One-Year Non-Competition. Executive hereby covenants and agrees
that, for a period of one year following his termination of employment with the Bank, he shall not, without the written consent of the Bank, either directly or indirectly become an officer, employee, consultant, director, independent contractor,
agent, sole proprietor, joint venturer, greater than 5% equity owner or stockholder, partner or trustee of any savings association, savings and loan association,
savings and loan holding company, credit union, bank or bank holding company, insurance company or agency, any mortgage or loan broker or any other financial services entity or business that competes with the business of the Bank or its affiliates
or has headquarters or offices within 35 miles of Greenfield, Wisconsin Notwithstanding the foregoing, this non-competition restriction shall not apply if Executive’s employment is terminated following a Change in Control (as defined in this
Agreement).
(c) As used in this Agreement, “Confidential Information” means information belonging to the Bank which is of value to the Bank in the course of conducting its business and the
disclosure of which could result in a competitive or other disadvantage to the Bank.
Confidential Information includes, without limitation, financial information, reports, and forecasts; inventions, improvements and other intellectual
property; trade secrets; know-how; designs, processes or formulae; software; market or sales information or plans; customer lists; and business plans, prospects and opportunities (such as possible acquisitions or dispositions of businesses or
facilities) which have been discussed or considered by the management of the Bank. Confidential Information includes information developed by the Executive in the course of the Executive’s employment by the Bank, as well as other information to which
the Executive may have access in connection with the Executive’s employment. Confidential Information also includes the confidential information of others with which the Bank has a business relationship. Notwithstanding the foregoing, Confidential
Information does not include information in the public domain. The Executive understands and agrees that the Executive’s employment creates a relationship of confidence and trust between the Executive and the Bank with respect to all Confidential
Information. At all times, both during the Executive’s employment with the Bank and after its termination, the Executive will keep in confidence and trust all such Confidential Information, and will not use or disclose any such Confidential
Information without the written consent of the Bank, except as may be necessary in the ordinary course of performing the Executive’s duties to the Bank.
(d) Executive shall, upon reasonable notice, furnish such information and assistance to the Bank as may reasonably be required by the Bank, in connection with any litigation in
which it or any of its subsidiaries or affiliates is, or may become, a party; provided, however, that Executive shall not be required to provide information or assistance with respect to any litigation between the Executive and the Bank or any of
its subsidiaries or affiliates.
(e) All payments and benefits to Executive under this Agreement shall be subject to Executive’s compliance with this Section 11. The parties hereto, recognizing that irreparable
injury will result to the Bank, its business and property in the event of Executive’s breach of this Section 11, agree that, in the event of any such breach by Executive, the Bank will be entitled, in addition to any other remedies and damages
available, to an injunction to restrain the violation hereof by Executive and all persons acting for or with Executive. Executive represents and admits that Executive’s experience and capabilities are such that Executive can obtain employment in a
business engaged in other lines and/or of a different nature than the Bank, and that the enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. Nothing herein will be construed as prohibiting the Bank or
the Company from pursuing any other remedies available to them for such breach or threatened breach, including the recovery of damages from Executive.
All payments provided in this Agreement shall be timely paid in cash or check from the general funds of the Bank. The Company may accede
to this Agreement but only for the purposed of guaranteeing payment and provision of all amounts and benefits due hereunder to Executive.
13. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS
PLANS.
This Agreement contains the entire understanding between the parties hereto and supersedes any prior employment agreement between the
Bank or any predecessor of the Bank and Executive, including that Employment Agreement among the Bank, the Company and the Executive dated January 8, 2019, except that this Agreement shall not affect or operate to reduce any benefit or compensation
inuring to Executive of a kind elsewhere provided. No provision of this Agreement shall be interpreted to mean that Executive is subject to receiving fewer benefits than those available to him without reference to this Agreement.
14. NO ATTACHMENT; BINDING ON SUCCESSORS.
(a) Except as required
by law, no right to receive payments under this Agreement shall be subject to anticipation, commutation, alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation, or to execution, attachment, levy, or similar process or
assignment by operation of law, and any attempt, voluntary or involuntary, to effect any such action shall be null, void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit
of, Executive and the Bank and their respective successors and assigns.
15. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been waived, nor shall there be any estoppel against the enforcement of any provision of this Agreement, except by written instrument of the party
charged with such waiver or estoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future as to any act other than that specifically waived.
(a) The Bank may terminate Executive’s employment at any time, but any termination by the Board other than termination for Cause shall not prejudice Executive’s right to
compensation or other benefits under this Agreement. Executive shall have no right to receive compensation or other benefits for any period after termination for Cause.
(b) If Executive is suspended from office and/or temporarily prohibited from participating in the conduct of the Bank’s affairs by a notice served under Section 8(e)(3) [12 USC
§1818(e)(3)] or 8(g)(1) [12 USC §1818(g)(1)] of the Federal Deposit Insurance Act, the Bank’s obligations under this contract shall be suspended as of the date of service, unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Bank may in its discretion (i) pay Executive all or part of the compensation withheld while its contract
obligations were suspended and (ii) reinstate (in whole or in part) any of its obligations which were suspended.
(c) If 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) [12 USC §1818(e)(4)] or
8(g)(1) [12 USC §1818(g)(1)] of the Federal Deposit Insurance Act, all obligations of the Bank under this Agreement shall terminate as of the effective date of the order, but vested rights of the contracting parties shall not be affected.
(d) If the Bank is in default as defined in Section 3(x)(1) [12 USC §1813(x)(1)] of the Federal Deposit Insurance Act, all obligations of the Bank under this Agreement shall
terminate as of the date of default, but this paragraph shall not affect any vested rights of the contracting parties.
(e) All obligations under this Agreement shall be terminated, except to the extent determined that continuation of the contract is necessary for the continued operation of the Bank,
(i) by either the Office of the Comptroller of the Currency or the Board of Governors of the Federal Reserve System (collectively, the “Regulator”)
or his or her designee, at the time the FDIC enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in Section 13(c) [12 USC §1823(c)] of the Federal Deposit Insurance Act; or (ii) by the Regulator
or his or her designee at the time the Regulator or his or her designee approves a supervisory merger to resolve problems related to operation of the Bank or when the Bank is determined by the Regulator to be in an unsafe or unsound condition. Any
rights of the parties that have already vested, however, shall not be affected by such action.
(f) Notwithstanding anything herein contained to the contrary, any payments to Executive by the Bank or the Company, whether pursuant to this Agreement or otherwise, are subject to
and conditioned upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and the regulations promulgated thereunder in 12 C.F.R. Part 359.
If, for any reason, any provision of this Agreement, or any part of any provision, is held invalid, such invalidity shall not affect any
other provision of this Agreement or any part of such provision not held so invalid, and each such other provision and part thereof shall to the full extent consistent with law continue in full force and effect.
18. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
This Agreement shall be governed by the laws of the State of Wisconsin except to the extent superseded by federal law.
Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by binding arbitration, as an
alternative to civil litigation and without any trial by jury to resolve such claims, conducted by a panel of three arbitrators sitting in a location selected by Executive within fifty (50) miles from the main office of the Bank, in accordance with
the rules of the American Arbitration Bank’s National Rules for the Resolution of Employment Disputes (“National Rules”) then in effect. One
arbitrator shall be selected by Executive, one arbitrator shall be selected by the Bank and the third arbitrator shall be selected by the arbitrators selected by the parties. If the arbitrators are unable to agree within fifteen (15) days upon a
third arbitrator, the arbitrator shall be appointed for them from a panel of arbitrators selected in accordance with the National Rules. Judgment may be entered on the arbitrator’s award in any court having jurisdiction.
21. INDEMNIFICATION.
(a) Executive shall be provided with coverage under a standard directors’ and officers’ liability insurance policy, and shall be indemnified for the term of this Agreement and for
a period of six years thereafter to the fullest extent permitted under applicable law against all expenses and liabilities reasonably incurred by him in connection with or arising out of any action, suit or proceeding in which he may be
involved by reason of his having been a director or officer of the Bank or any affiliate (whether or not he continues to be a director or officer at the time of incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgments, court costs and attorneys’ fees and the cost of reasonable settlements (such settlements must be approved by the Board), provided, however, Executive shall not be indemnified or reimbursed for legal
expenses or liabilities incurred in connection with an action, suit or proceeding arising from any illegal or fraudulent act committed by Executive. Any such indemnification shall be made consistent with Section 18(k) of the Federal Deposit
Insurance Act, 12 U.S.C. §1828(k), and the regulations issued thereunder in 12 C.F.R. Part 359.
(b) Any indemnification by the Bank shall be subject to compliance with any applicable regulations of the Federal
Deposit Insurance Corporation.
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 delivered or mailed by certified or registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below:
|
To the Bank:
|
Chairman of the Board
PyraMax Bank, FSB
7001 W. Edgerton Ave.
Greenfield, WI 53220
|
|
To Executive:
|
Richard Hurd
At the address last appearing on
the personnel records of the Bank
|
| |
|
IN WITNESS WHEREOF,
the Bank and the Company have caused this Agreement to be executed by their duly authorized representatives, and Executive has signed this Agreement, on the date first above written.
| |
PYRAMAX BANK, FSB
|
| |
|
| |
|
| |
|
| |
By: /s/ Darrell Francis
Chairman of the Board
|
| |
|
| |
1895 BANCORP OF WISCONSIN, INC.
|
| |
|
| |
|
| |
By: /s/ Darrell Francis
Chairman of the Board
|
| |
|
| |
|
| |
|
| |
EXECUTIVE
|
| |
|
| |
|
| |
/s/ Richard B. Hurd
Richard B. Hurd
|