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FIRST BUSINESS FINANCIAL SERVICES, INC. | FIRST BUSINESS BANK. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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AGREEMENT
BY AND BETWEEN
FIRST BUSINESS BANK AND
COREY CHAMBAS
(AMENDED AND RESTATED JANUARY 1, 2005)
TABLE OF CONTENTS
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Article 1. |
DEFINITIONS |
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1.1 Definitions |
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Article 2. |
RETIREMENT BENEFIT |
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2.1 Normal Retirement Benefit |
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2.2 Early Retirement Benefit |
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2.3 Withholding of Taxes |
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2.4 Notice of Retirement |
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2.5 Consulting |
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Article 3. |
DEATH BENEFIT |
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3.1 Death Benefit |
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3.2 Alternative Death Benefit |
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3.3 Delayed Payment |
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3.4 Life Insurance |
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3.5 Withholding of Taxes |
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Article 4. |
DISABILITY |
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4.1 Treatment of Disability |
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4.2 Retirement Benefit |
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4.3 Inflation Protection |
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4.4 Death Benefits |
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4.5 Delayed Payment |
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Article 5. |
TERMINATION OF EMPLOYMENT BY THE COMPANY |
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5.1 Termination for Cause |
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5.2 Termination for Other Than Cause |
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Article 6. |
CHANGE IN CONTROL BENEFIT |
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6.1 Change in Control Benefit |
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6.2 Withholding of Taxes |
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Article 7. |
COVENANTS NOT TO COMPETE |
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7.1 Covenant Not to Compete |
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7.2 Solicitation |
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7.3 Covenant Not to Compete During Consulting Period |
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7.4 Trade Secrets Laws Not Limited |
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Article 8. |
TERM OF AGREEMENT |
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8.1 Term of Agreement |
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8.2 Survival of Obligation |
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Article 9. |
SUCCESSORS |
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9.1 Successors |
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9.2 Binding Effect |
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Article 10. |
MISCELLANEOUS |
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10.1 Employment Status |
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10.2 Beneficiaries |
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10.3 Entire Agreement |
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10.4 Gender and Number |
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10.5 Severability |
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10.6 Modification |
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10.7 Applicable Law |
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10.8 Full Time Employment |
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10.9 One Benefit Payable |
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10.10 Attorneys' Fees |
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AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT is made and entered into as of this 1st day of January, 2005, by and between First Business Bank, a Wisconsin corporation (the “Company”), and Corey Chambas, President and Chief Executive Officer of the Company (the “Executive”). The parties agree that the agreement between them dated September 1, 2004 is superseded by this Agreement and is no longer in effect.
WITNESSETH:
WHEREAS, it is desirable to amend and restate the Amended and Restated Agreement dated September 1, 2004, between the Company and the Executive to comply with requirements imposed by Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and to effect certain other changes; and
WHEREAS, the Company shall provide the Executive and/or his beneficiaries with the death and retirement benefits set forth in this Agreement, subject to the terms and conditions of this Agreement, and said benefits shall be in addition to the Executive’s regular compensation, bonus and employee benefits; and
WHEREAS, the Board of Directors of the Company has approved the Company entering into this Agreement with the Executive; and
WHEREAS, the Executive has discharged the duties as a senior executive in a very capable and skillful manner, resulting in substantial benefits to the Company; and
WHEREAS, the Company desires the Executive to remain in its service and to continue to use his knowledge and experience on behalf of the Company, and is willing to continue to offer the Executive an incentive to do so in the form of death and retirement benefits; and
WHEREAS, the Executive is willing to continue his efforts on behalf of the Company in exchange for such an incentive; and
WHEREAS, should the possibility of a Change in Control arise, the Board believes it imperative that the Company and the Board should be able to rely upon the Executive to continue in his position, and that the Company should be able to receive and rely upon his advice, if it requests it, as to the best interests of the Company and its shareholders without concern that he might be distracted by the personal uncertainties and risks created by the possibility of a Change in Control; and
WHEREAS, should the possibility of a Change in Control arise, in addition to the Executive’s regular duties, he may be called upon to assist in the assessment of such possible Change in Control, advise management and the Board as to whether such Change in Control would be in the best interests of the Company and its shareholders, and to take such other actions as the Board might determine to be appropriate.
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NOW, THEREFORE, to assure the Company that it will have the continued dedication of the Executive and the availability of his advice and counsel notwithstanding the possibility, threat, or occurrence of a Change in Control, and to induce the Executive to remain in the employ of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Executive agree as follows.
ARTICLE 1. DEFINITIONS
1.1 Definitions. Whenever used in this Agreement, the following terms shall have the meanings set forth below, and, when the meaning is intended, the initial letter of the word is capitalized:
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(a) “Agreement” means this document. |
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(b) “Beneficiary” means the persons or entities designated by the Executive pursuant to Section 10.2 herein. |
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(c) “Board” means the Board of Directors of the Company or any committee formed by or appointed by the Board to administer this Agreement. |
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(d) “Cause” shall be determined by the Board, in the exercise of good faith and reasonable judgment, and shall mean any of the following: |
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(1) The willful, intentional, and continued failure by the Executive to substantially perform the Executive’s duties to the best of the Executive’s ability after a written demand for performance is delivered by the Board to the Executive that identifies the failure to perform such duties if such failure is not remedied within ninety (90) calendar days after receipt of the written demand by the Executive. |
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(2) The occurrence of the Executive’s conviction for committing an act of fraud, embezzlement, theft, or other act constituting a felony substantially related to the circumstances of the Executive’s duties; or material breach by the Executive of the banking laws of Wisconsin or the United States or any regulation issued by a state or federal regulatory authority having jurisdiction over the banking affairs of the Company, or any of its subsidiary, parent, or affiliated organizations; or an act which disqualifies the Executive from serving as an officer or director of a bank under Wisconsin or Federal banking laws. |
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(e) “Change in Control” |
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(1) A “Change in Control” shall be deemed to have occurred as of the first day that any one or more of the following conditions shall have been satisfied including, but not limited to, signing of documents by all parties and approval by all regulatory agencies, if required: |
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(i) Any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934 (the “Exchange Act”) and used in Sections 13(d) and 14(d) thereof), including a group (as defined in Section 13(d)), becomes the Beneficial Owner (as such term is defined pursuant to rules promulgated under the Exchange Act), directly or indirectly, of securities of the Company representing at least fifty percent (50%) of the combined voting power of the Company’s then outstanding securities; |
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(ii) During any twelve (12) consecutive months, individuals who, at the beginning of the twelve- (12-) month period constitute the Board, cease for any reason to constitute a majority of the Board; provided, however, a “Change in Control” shall not occur pursuant to this provision, if a new director is approved by a vote of at least a majority of the directors serving on the Board and these directors either were directors at the beginning of the twelve- (12-) month period or whose election or nomination for election was so approved; or |
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(iii) The shareholders of the Company approve: (A) a plan of complete liquidation of the Company; or (B) an agreement for the sale or disposition of all or substantially all the Company’s assets; or (C) a merger, consolidation, or reorganization of the Company with or involving any other corporation, other than a merger, consolidation, or reorganization that would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), at least fifty percent (50%) of the combined voting power of the voting securities of the Company (or such surviving entity) outstanding immediately after or within one (1) year following such merger, consolidation, or reorganization. |
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(2) However, notwithstanding the foregoing, in no event shall a Change in Control be deemed to have occurred, with respect to the Executive, if the Executive is part of a purchasing group which consummates the Change-in-Control transaction. The Executive shall be deemed “part of a purchasing group” for purposes of the preceding sentence if the Executive is an equity participant in the purchasing company or group (except for passive ownership of less than three (3%) percent of the stock of the purchasing company or ownership of equity participation in the purchasing company or group which is otherwise not significant, as determined prior to the Change in Control by a majority of the non-employee continuing members of the Board). |
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(3) For purposes of the definition of “Change in Control” under this Section 1.1(e), “Company” means First Business Financial Services, Inc. or First Business Bank. |
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(f) “Code” means the Internal Revenue Code of 1986, as amended from time to time. |
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