EXHIBIT 10.1 c
THIS EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of this31st day of December, 2001, by and between Citizens Community Federal (hereinafter referredto as the “Bank”) and John D. Zettler (the “Employee”).
WHEREAS, the Employee is currently serving as Executive Vice President of the Bank; and
WHEREAS, the Board of Directors believes it is in the best interests of the Bank to enter intothis Agreement with the Employee in order to assure continuity of management of the Bank; and
WHEREAS, the Board of Directors has approved and authorized the execution of thisAgreement with the Employee to take effect as stated in Section 2 hereof;
NOW, THEREFORE, in consideration of the foregoing and of the respective covenants andagreements of the parties herein, it is AGREED as follows:
(a) The term “Commencement Date” means the date on which the Bank becomes afederal mutual savings bank.
(b) The term “Date of Termination” means the earlier of (1) the date upon which theBank gives notice to the Employee of the termination of the Employee’s employment with the Bankor (2) the date upon which the Employee ceases to serve as an employee of the Bank.
(c) The term “Involuntary Termination” means the Bank’s termination of theemployment of Employee without the Employee’s express written consent, and shall include amaterial diminution of or interference with the Employee’s duties, responsibilities and benefits asExecutive Vice President of the Bank, including (without limitation) any of the following actionsunless consented to in writing by the Employee: (1) a change in the principal workplace of theEmployee to a location outside of a 35 mile radius from the Bank’s headquarters office as of the datehereof; (2) a material demotion of the Employee; (3) a material reduction in the number or seniorityof other Bank personnel reporting to the Employee or a material reduction in the frequency withwhich, or in the nature of the matters with respect to which, such personnel are to report to theEmployee, other than as part of a Bank-wide reduction in staff; (4) a material adverse change in theEmployee’s salary, perquisites, benefits, contingent benefits or vacation, other than as part of anoverall program applied uniformly and with equitable effect to all members of the seniormanagement of the Bank; and (5) a material permanent increase in the required hours of work or theworkload of the Employee. The term “Involuntary Termination” does not include Termination forCause or termination of employment due to retirement, death, disability or suspension or temporaryor permanent prohibition from participation in the conduct of the Bank’s affairs under Section 8 ofthe Federal Deposit Insurance Act (“FDIA”).
(d) The terms “Termination for Cause” and “Terminated for Cause” mean terminationof the employment of the Employee because of the Employee’s personal dishonesty, incompetence,willful misconduct, breach of a fiduciary duty involving personal profit, intentional failure toperform stated duties, willful violation of any law, rule, or regulation (other than traffic violationsor similar offenses) or final cease-and-desist order, or material breach of any provision of thisAgreement. The Employee shall not be deemed to have been Terminated for Cause unless and untilthere shall have been delivered to the Employee a copy of a resolution, duly adopted by theaffirmative vote of not less than a majority of the entire membership of the Board of Directors at ameeting of the Board called and held for such purpose (after reasonable notice to the Employee andan opportunity for the Employee, together with the Employee’s counsel, to be heard before theBoard), stating that in the good faith opinion of the Board the Employee has engaged in conductdescribed in the preceding sentence and specifying the particulars thereof in detail.
2. Term; Termination of Prior Employment Agreement. The term of this Agreement shallbe a period of three years commencing on the Commencement Date, subject to earlier terminationas provided herein. Beginning on the first anniversary of the Commencement Date, and on eachanniversary thereafter, the term of this Agreement shall be extended for a period of one year inaddition to the then-remaining term, provided that (1) the Bank has not given notice to the Employeein writing at least 90 days prior to such anniversary that the term of this Agreement shall not beextended further; and (2) prior to such anniversary, the Board of Directors of the Bank explicitlyreviews and approves the extension. Reference herein to the term of this Agreement shall refer toboth such initial term and such extended terms. Upon this Agreement becoming effective, theEmployment Contract between Citizens Community Federal Credit Union and the Employee,entered into August 6, 1998 and subsequently extended, shall terminate automatically with noobligation thereunder to the Employee on the part of the Bank (or its predecessor) except for accruedbut unpaid salary and benefits.
3. Employment. The Employee is employed as Executive Vice President of the Bank. Assuch, the Employee shall render administrative and management services as are customarilyperformed by persons situated in similar executive capacities, and shall have such other powers andduties of an officer of the Bank as the Board of Directors may prescribe from time to time. TheEmployee shall devote his full business time and attention to his employment under this Agreement.
(a) Salary. The Bank agrees to pay the Employee during the term of this Agreementthe salary established by the Board of Directors, which shall be $99,228 per year, the amount ofwhich shall increase by seven percent on each January 1 during the term of this Agreement;provided that the last increase pursuant to this sentence shall occur on January 1, 2005. TheEmployee’s salary shall be payable in regular increments in accordance with the Bank’s payrollpractices and subject to customary withholding. The amount of the Employee’s salary shall bereviewed annually by the Board of Directors during the term of this Agreement. Adjustments insalary or other compensation shall not limit or reduce any other obligation of the Bank under this
Agreement. The Employee’s salary in effect from time to time during the term of this Agreementshall not thereafter be reduced.
(b) Expenses. The Employee shall be entitled to receive prompt reimbursement forall reasonable expenses incurred by the Employee in performing services under this Agreement inaccordance with the policies and procedures applicable to the executive officers of the Bank,provided that the Employee accounts for such expenses as required under such policies andprocedures.
(a) Participation in Retirement and Employee Benefit Plans. The Employee shall beentitled to participate in all plans relating to pension, thrift, profit-sharing, group life insurance,medical and dental coverage, education, cash bonuses, and other retirement or employee benefits orcombinations thereof, in which the Bank’s full time employees generally participate.
(b) Club Membership. The Bank shall pay membership dues and related fees andexpenses for the Employee’s membership in an appropriate club or clubs approved by the Presidentand Chief Executive Officer of the Bank, to be used for ordinary and necessary business purposesof the Bank.
(c) Automobile. Consistent with past practice, the Bank shall provide theEmployee with the use of a Bank automobile.
6. Vacations; Leave. The Employee shall be entitled to annual paid vacation in accordancewith the policies established by the Bank’s Board of Directors, and to voluntary leave of absence,with or without pay, from time to time at such times and upon such conditions as the Board ofDirectors may determine in its discretion.
7. Termination of Employment.
(a) Involuntary Termination. The Board of Directors may terminate the Employee’semployment at any time, but, except in the case of Termination for Cause, termination ofemployment shall not prejudice the Employee’s right to compensation or other benefits under thisAgreement. In the event of Involuntary Termination, (1) the Bank shall pay to the Employee duringthe remaining term of this Agreement the Employee’s salary at the annual rate in effect at the Dateof Termination, payable in such manner and at such times as such salary would have been payableif he had continued to be employed under this Agreement, and (2) the Bank shall continue to provideto the Employee during the remaining term of this Agreement the same group health benefits andother group insurance and group retirement benefits, to the extent that the Bank can do so under theterms of applicable plans, as are maintained by the Bank for the benefit of its executive officers fromtime to time during the remaining term of this Agreement.
(b) Termination for Cause. In the event of Termination for Cause, the Bank shallpay the Employee the Employee’s salary through the Date of Termination, and the Bank shall haveno further obligation to the Employee under this Agreement.
(c) Voluntary Termination. The Employee’s employment may be voluntarilyterminated by the Employee at any time upon 90 days’ written notice to the Bank or such shorterperiod as may be agreed upon between the Employee and the Board of Directors of the Bank. In theevent of such voluntary termination, the Bank shall be obligated to continue to pay to the Employeethe Employee’s salary and benefits only through the Date of Termination, at the time such paymentsare due, and the Bank shall have no further obligation to the Employee under this Agreement.
(d) Death; Disability. In the event of the death of the Employee while employedunder this Agreement and prior to any termination of employment, the Employee’s estate, or suchperson as the Employee may have previously designated in writing, shall be entitled to receive fromthe Bank the salary of the Employee through the last day of the calendar month in which theEmployee died. If the Employee becomes disabled as defined in the Bank’s then current disabilityplan, if any, or if the Employee is otherwise unable to serve as Executive Vice President, theEmployee shall be entitled to receive group and other disability income benefits of the type, if any,then provided by the Bank for executive officers generally.
(e) Temporary Suspension or Prohibition. If the Employee is suspended and/ortemporarily prohibited from participating in the conduct of the Bank’s affairs by a notice servedunder Section 8(e)(3) or (g)(1) of the FDIA, 12 U.S.C. § 1818(e)(3) and (g)(1), the Bank’sobligations under this Agreement shall be suspended as of the date of service, unless stayed byappropriate proceedings. If the charges in the notice are dismissed, the Bank may in its discretion(i) pay the Employee all or part of the compensation withheld while its obligations under thisAgreement were suspended and (ii) reinstate in whole or in part any of its obligations which weresuspended.
(f) Permanent Suspension or Prohibition. If the Employee is removed and/orpermanently prohibited from participating in the conduct of the Bank’s affairs by an order issuedunder Section 8(e)(4) or (g)(1) of the FDIA, 12 U.S.C. § 1818(e)(4) and (g)(1), all obligations of theBank under this Agreement shall terminate as of the effective date of the order, but vested rights ofthe contracting parties shall not be affected.
(g) Default of the Bank. If the Bank is in default (as defined in Section 3(x)(1) ofthe FDIA), all obligations under this Agreement shall terminate as of the date of default, but thisprovision shall not affect any vested rights of the contracting parties.
(h) Termination by Regulators. All obligations under this Agreement shall beterminated, except to the extent determined that continuation of this Agreement is necessary for thecontinued operation of the Bank: (1) by the Director of the Office of Thrift Supervision (the”Director”) or his or her designee, at the time the Federal Deposit Insurance Corporation enters into
an agreement to provide assistance to or on behalf of the Bank under the authority contained inSection 13(c) of the FDIA; or (2) by the Director or his or her designee, at the time the Director orhis or her designee approves a supervisory merger to resolve problems related to operation of theBank or when the Bank is determined by the Director to be in an unsafe or unsound condition. Anyrights of the parties that have already vested, however, shall not be affected by any such action.
8. Certain Reduction of Payments by the Bank.
(a) Notwithstanding any other provision of this Agreement, if the value and amountsof benefits under this Agreement, together with any other amounts and the value of benefits receivedor to be received by the Employee in connection with a change in control would cause any amountto be nondeductible for federal income tax purposes pursuant to Section 280G of the Code, thenamounts and benefits under this Agreement shall be reduced (not less than zero) to the extentnecessary so as to maximize amounts and the value of benefits to the Employee without causing anyamount to become nondeductible pursuant to or by reason of such Section 280G. The Employeeshall determine the allocation of such reduction among payments and benefits to the Employee.
(b) Any payments made to the Employee pursuant to this Agreement, or otherwise,are subject to and conditioned upon their compliance with 12 U.S.C. 1828(k) and any regulationspromulgated thereunder.
9. Non-Disclosure and Non-Competition. The provisions of this Section 9 shall survivetermination of this Agreement.
(a) Non-Disclosure of Confidential Information. During the term of thisAgreement and thereafter, the Employee shall not disclose confidential information of the Bank toanyone except as permitted by the Bank or under compulsion of law.
(b) Non-Competition. In the event that the Employee terminates his employmentby the Bank during the term of this Agreement, or in the event that after termination, or theexpiration of the term, of this Agreement, the Employee voluntarily terminates his employment withthe Bank after the Bank has offered to continue to employ him with the same salary and benefits aswould have applied under this Agreement, then for a period of one year after he ceases to beemployed by the Bank, the Employee shall not, directly or indirectly, as a director, employee orconsultant, provide services to any bank, savings association or credit union, or other mortgage orconsumer lender with an office within Eau Claire or Chippewa Counties, Wisconsin.
10. No Mitigation. The Employee shall not be required to mitigate the amount of anysalary or other payment or benefit provided for in this Agreement by seeking other employment orotherwise, nor shall the amount of any payment or benefit provided for in this Agreement be reducedby any compensation earned by the Employee as the result of employment by another employer, byretirement benefits after the Date of Termination or otherwise.
11. Attorneys Fees. In the event the Bank exercises its right of Termination for Cause, butit is determined by a court of competent jurisdiction or by an arbitrator pursuant to Section 18 thatcause did not exist for such termination, or if in any event it is determined by any such court orarbitrator that the Bank has failed to make timely payment of any amounts owed to the Employeeunder this Agreement, the Employee shall be entitled to reimbursement for all reasonable costs,including attorneys’ fees, incurred in challenging such termination or collecting such amounts. Suchreimbursement shall be in addition to all rights to which the Employee is otherwise entitled underthis Agreement.
12. No Assignments.
(a) This Agreement is personal to each of the parties hereto, and neither party mayassign or delegate any of its rights or obligations hereunder without first obtaining the writtenconsent of the other party; provided, however, that the Bank shall require any successor or assign(whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantiallyall of the business and/or assets of the Bank, by an assumption agreement in form and substancesatisfactory to the Employee, to expressly assume and agree to perform this Agreement in the samemanner and to the same extent that the Bank would be required to perform it if no such successionor assignment had taken place. Failure of the Bank to obtain such an assumption agreement priorto the effectiveness of any such succession or assignment shall be a breach of this Agreement andshall entitle the Employee to compensation from the Bank in the same amount and on the same termsas the compensation pursuant to Section 7(a) hereof. For purposes of implementing the provisionsof this Section 12(a), the date on which any such succession becomes effective shall be deemed theDate of Termination.
(b) This Agreement and all rights of the Employee hereunder shall inure to thebenefit of and be enforceable by the Employee’s personal and legal representatives, executors,administrators, successors, heirs, distributees, devisees and legatees. If the Employee should diewhile any amounts would still be payable to the Employee hereunder if the Employee had continuedto live, all such amounts, unless otherwise provided herein, shall be paid in accordance with theterms of this Agreement to the Employee’s devisee, legatee or other designee or if there is no suchdesignee, to the Employee’s estate.
13. Notice. For the purposes of this Agreement, notices and all other communicationsprovided for in the Agreement shall be in writing and shall be deemed to have been duly given whenpersonally delivered or sent by certified mail, return receipt requested, postage prepaid, to the Bankat its home office, to the attention of the Board of Directors with a copy to the Secretary of the Bank,or, if to the Employee, to such home or other address as the Employee has most recently providedin writing to the Bank.
14. Amendments. No amendments or additions to this Agreement shall be binding unlessin writing and signed by both parties, except as herein otherwise provided.
15. Headings. The headings used in this Agreement are included solely for convenience andshall not affect, or be used in connection with, the interpretation of this Agreement.
16. Severability. The provisions of this Agreement shall be deemed severable and theinvalidity or unenforceability of any provision shall not affect the validity or enforceability of theother provisions hereof.
17. Governing Law. This Agreement shall be governed by the laws of the United States tothe extent applicable and otherwise by the laws of the State of Wisconsin.
18. Arbitration. Except with respect to a breach of alleged or threatened breach of Section9 of this Agreement by the Employee, any dispute or controversy arising under or in connection withthis Agreement shall be settled exclusively by arbitration in accordance with the rules of theAmerican Arbitration Association then in effect. Judgment may be entered on the arbitrator’s awardin any court having jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and yearfirst above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICHMAY BE ENFORCED BY THE PARTIES.
|CITIZENS COMMUNITY FEDERAL
/s/ James G. Cooley
By: James G. Cooley
/s/ John D. Zettler
John D. Zettler