EXHIBIT (10)(k)
NONCOMPETE AGREEMENT
THIS NONCOMPETE
AGREEMENT (this “Agreement”) is dated as of
October 29, 2004 by and among ASSOCIATED BANC-CORP., a
Wisconsin corporation (“Associated”) and JACK C. RUSCH
(“Mr. Rusch”).
RECITALS
A. Mr. Rusch
owns shares of the issued and outstanding common stock of First
Federal Capital Corp., a Wisconsin corporation, the sole
shareholder of First Federal Capital Bank (collectively,
“First Federal”).
B. First
Federal engaged in the business of providing financial services
(the “Business”).
C. Associated
and First Federal are parties to that certain Agreement and Plan of
Merger dated as of the date hereof (the “Merger
Agreement”) pursuant to which First Federal will be merged
with and into Associated and Associated shall continue as the
surviving corporation.
D. Mr. Rusch
acknowledges that he has (1) been an executive level employee
of First Federal (2) had access to confidential information of
First Federal and (3) extensive experience and knowledge of
the Business that he could use to compete with Associated (as
successor to First Federal) after the Closing Date (as defined in
the Merger Agreement).
E. Associated
and Mr. Rusch acknowledge that their entry into this Agreement
is a condition to the consummation of the transactions contemplated
by the Merger Agreement. Mr. Rusch further acknowledges that
he has entered into a Consulting Agreement (attached hereto as
Exhibit A), the term of which runs concurrently with the
obligations contained herein, and that entry into this Agreement is
a condition of Associated entering into the Consulting Agreement.
Mr. Rusch acknowledges that during the term of the Consulting
Agreement, he owes Associated a common law duty of loyalty, in
addition to the obligations contained herein.
F. Associated
and Mr. Rusch deem it to be in the best interest of all
parties to limit the ability of Mr. Rusch to compete with
Associated after the date hereof as a result of the consummation of
the transactions contemplated by the Merger Agreement.
AGREEMENTS
In
consideration of the Recitals and mutual promises set forth below
and other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties agree as
follows:
1.
Consideration . Mr. Rusch shall receive $62,500 per
month over the term of this Agreement in exchange for agreeing to
the terms of this Agreement (the “Noncompete
Payments”). Mr. Rusch acknowledges and agrees that the
benefits and consideration he will receive as a result of the
consummation of the transactions contemplated by the Merger
Agreement constitute adequate and sufficient consideration for
their covenants contained in this Agreement. Mr. Rusch
acknowledges that Associated would not consummate the transactions
contemplated by the Merger Agreement if Mr. Rusch did not agree to
be bound by the provisions contained in this Agreement. In the
event of the death of Mr. Rusch, Associated shall continue to
pay to the estate of Mr. Rusch the Noncompete Payments through
the term of this Agreement. Associated may prepay such payments
without penalty.
2.
Noncompete Provisions .
(a)
Certain Definitions . For purposes of this Agreement,
“Territory” means the counties in which First Federal
or its subsidiaries currently has an office. For purposes of this
Agreement, “Customer of First Federal” means any
individual or entity to which First Federal provided products or
services at any time during the two year period prior to the
Closing Date or which First Federal actively solicited for the
purpose of providing products or services during the two year
period prior to the Closing Date.
(b)
Noncompete . During the period commencing on the Closing
Date (as defined in the Merger Agreement) and ending on the second
anniversary of the Closing Date, Mr. Rusch will not, directly
or indirectly, either individually or as an employee, officer,
principal, agent, partner, owner, trustee, beneficiary,
co-venturer, distributor, consultant or in any other capacity, (i)
within the Territory, participate in, become associated with,
provide assistance to, engage in, or have a financial or other
interest in any business, activity, enterprise or entity, which
competes with the Business or any other business of First Federal
(or Associated as successor to First Federal) that relates or is
complimentary or supplemental to the Business, (ii) within the
Territory, advertise, promote or otherwise endorse any second party
products and/or services which compete with the Business or any
other business of First Federal (or Associated as successor to
First Federal)or supplemental to the Business or
(iii) canvass, contact, solicit or do
business with any Customer of
First Federal for the purpose of providing products or services
similar to or competitive with those provided by First Federal (or
Associated as successor to First Federal).
(c)
Limitations . The ownership of less than a 5% interest in an
entity whose securities are traded in a recognized stock exchange
or traded in the over-the-counter market, even though that entity
is competitive with the Business, shall not be a breach of
paragraph 2(b) of this Agreement.
3.
Confidential Information and Trade Secrets .
(a)
Certain Definitio
