BCOW 8-K
1895 Bancorp of Wisconsin, Inc. /MD/ (BCOW)
8-K
2021-10-13
For: 2021-10-08
View Original
Added on
April 06, 2026
UNITED STATES
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): October 8, 2021
1895 BANCORP OF WISCONSIN, INC.
(Exact Name of Registrant as Specified in Charter)
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Maryland
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001-40609
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61-1993378
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(State or Other Jurisdiction
of Incorporation) |
(Commission File No.)
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(I.R.S. Employer
Identification No.) |
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7001 West Edgerton Avenue, Greenfield, Wisconsin
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53220
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrant's telephone number, including area code: (414) 421-8200
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading
Symbol(s)
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Name of each exchange on which registered
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Common Stock, par value $0.01 per share
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BCOW
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The NASDAQ Stock Market, LLC
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934
(§240.12b-2 of this chapter).
Emerging growth company [x]
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
(b) Effective October 22, 2021, Charles Mauer will retire as Senior Vice President and Chief Credit Officer of PyraMax Bank, FSB (“PyraMax Bank”), the wholly-owned subsidiary of the 1895 Bancorp of Wisconsin, Inc. (the “Company”). Mr. Mauer’s retirement is not the result of any dispute or disagreement with the Company or PyraMax Bank. On October 8, 2021, the Boards of Directors of the Company and PyraMax Bank accepted Mr. Mauer’s retirement as of October 22, 2021.
(c) In addition, at their meeting on October 8, 2021, the Boards of Directors of the Company and PyraMax Bank approved the appointment of Daniel Kempel to serve as Senior Vice President and Chief Credit Officer of PyraMax Bank, effective as of October 23, 2021. Mr. Kempel, age 41, has served as Senior Vice President, Manager Credit Administration of PyraMax Bank since July 2021. He has been employed with PyraMax Bank since June 2016 and has previously served as Senior Credit Analyst from June 2016 to December 2016 when he was promoted to Vice President, Manager Credit Administration.
PyraMax Bank will enter into an employment agreement with Mr. Kempel, on or about October 22, 2021 and effective as of October 23, 2021, pursuant to which Mr. Kempel will serve as Senior Vice President and Chief Credit Officer of the Bank. The form of employment agreement will have an initial term ending December 31, 2022. The term will renew annually for successive 18-month terms, subject to board approval, commencing January 8, 2022, through July 8, 2023, in order to be on the same renewal cycle as the other 18-month employment agreements currently maintained by PyraMax Bank for its senior vice presidents. Under the form of employment agreement Mr. Kempel’s initial base salary will be $128,000. Mr. Kempel’s performance will be reviewed from time to time by the Board of Directors or by a committee of the Board of Directors of PyraMax Bank, and his base salary may be increased at such time. Mr. Kempel will also be eligible to participate in the bonus programs and benefit plans that are made available to management employees.
The foregoing description of Mr. Kempel’s form of employment agreement is qualified in its entirety by reference to the copy of the form of employment agreement that is included as Exhibit 10.1 to this Current Report and is incorporated by reference into this Item 5.02.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
10.1 Form of Employment Agreement among PyraMax Bank, FSB, 1895 Bancorp of Wisconsin, Inc. and Daniel Kempel
SIGNATURES
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, hereunto duly authorized.
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1895 Bancorp of Wisconsin, INC. |
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DATE: October 13, 2021 |
By: /s/ Richard B. Hurd |
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Richard B. Hurd |
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Chief Executive Officer |
FORM OF EMPLOYMENT AGREEMENT
This Employment Agreement (this “Agreement”) is entered into and made effective as of October 23, 2021 (the “Effective Date”), by and between PyraMax Bank, FSB, a federally chartered savings bank (the “Bank”) and Daniel Kempel (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 chartered 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 has been promoted to fill the role of Senior Vice President and Chief Credit Officer of the Bank upon
the resignation and retirement of the existing Chief Credit Officer;
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 Senior Vice President and Chief Credit Officer of the Bank, and Executive accepts such employment,
subject to the terms and conditions set forth in this Agreement. Executive shall have such duties, responsibilities and powers as are set forth by the Board of Directors of the Bank, the Chief Executive Officer and/or the President of the Bank
provided that such duties are generally consistent with those as Senior Vice President and Chief Credit Officer.
2. TERM AND DUTIES.
(a) Eighteen-Month Contract with Annual Renewal. The term (“Term”) of this Agreement shall commence as of the Effective Date and shall continue, initially, through December 31, 2022. On January
8, 2022 (for these purposes, referred to herein as the “Anniversary Date”), the disinterested members of the Board of Directors of the Bank (the “Board”) will meet to
consider the renewal or nonrenewal of this Agreement. In connection with such consideration, the Compensation Committee of the Board, with input from the Bank’s President, shall conduct a comprehensive performance evaluation of Executive for
purposes of determining whether to extend this Agreement through July 8, 2023, which decision shall be included in the minutes of the Board’s meeting. If the decision is not to renew this Agreement, then the Board shall provide Executive with a
written notice of non-renewal (“Non-Renewal Notice”) that this Agreement shall terminate at the end of its then Term (i.e., December 31, 2022). Assuming the renewal of the Agreement on January 8, 2022, the
Agreement shall have a Term ending July 8, 2023. Thereafter, each following January 8th, commencing January 8, 2023, the Board shall again perform a comprehensive performance evaluation to determine whether to again extend the agreement
for twelve months beyond its’ then Term. 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, unless
Executive has previously been informed that this Agreement shall not be renewed) the term of this Agreement shall be extended and shall terminate eighteen (18) months following the date on which the Change in Control occurs.
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(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, except for periods of absence occasioned by illness, reasonable vacation periods, and reasonable leaves of absence approved by the Board, Executive shall devote
substantially all of his business time, attention, skill, and efforts to the faithful performance of his duties hereunder, including activities and services related to his position as Senior Vice President and Chief Credit 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.
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3.
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COMPENSATION, BENEFITS AND REIMBURSEMENT.
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(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 salary of $128,000.08 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 from time
to time 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 the “Base Salary” for purposes of this Agreement.
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(b) Bonus
Compensation.
(i) Annual
Bonus. Executive will be eligible for an annual performance-based bonus, based on the criteria determined by the Board. Additionally, 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, and 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. 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 including, but not limited to, retirement plans, supplemental retirement plans, pension plans, profit-sharing plans, health-and-accident insurance plans, medical coverage or 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 paid vacation time each year during the term of this Agreement (measured on a fiscal or calendar year basis, in accordance with the Bank’s usual practices), as well as sick leave, 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 eighteen (18) 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:
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(i)
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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
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(ii)
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Executive’s resignation from the Bank’s employ upon any of the following, unless consented to by Executive:
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(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 (except for any reduction that 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.
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(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 bonus(es) 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 two years, and (ii) otherwise paid at such time as such bonus would have been paid absent an Event of Termination (i.e., if only one bonus would otherwise be paid during the remaining term, then one bonus 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 the 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) Upon the occurrence of an Event of Termination, the Bank shall provide, at the Bank’s expense, for the remaining unexpired term of the Agreement, nontaxable medical and dental coverage and life insurance coverage
substantially comparable, as reasonably available, to the coverage maintained by the Bank for Executive and his dependents prior to the Event of Termination, except to the extent such coverage may be changed in its application to all Bank employees
and then such coverage provided to Executive and his dependents shall be commensurate with such changed coverage. Notwithstanding the foregoing, if applicable law prohibits (including, but not limited to, laws
prohibiting discriminating in favor of highly compensated employees), or, if participation by the Executive is not permitted under the terms of the applicable health or life insurance plans, or if providing such benefits would subject the Bank to
penalties, then the Bank shall pay the Executive a cash lump sum payment reasonably estimated to be equal to the value (or the remaining value) of such non-taxable medical and dental benefits, with such payment to be made by lump sum within ten
(10) business days of the Date of Termination, or if later, the date on which the Bank determines that such insurance coverage (or the remainder of such insurance coverage) cannot be provided for the foregoing reasons.
(d) 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.
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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:
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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;
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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
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Sale of Assets: The Company or the Bank sells to a third party all or substantially all of its assets.
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(c) Upon the
occurrence of a Change in Control followed within eighteen (18) 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 one and
one half 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.
(d) Upon
the occurrence of a Change in Control followed within eighteen (18) months by an Event of Termination (as defined in Section 4 hereof), the Bank (or its successor) shall provide at the Bank’s (or its successor’s) expense, nontaxable medical and
dental coverage and life insurance coverage substantially comparable, as reasonably available, to the coverage maintained by the Bank for Executive and his dependents prior to his termination, except to the extent such coverage may be changed in
its application to all Bank employees and then the coverage provided to Executive and his dependents shall be commensurate with such changed coverage. Such coverage shall cease eighteen (18) months following the termination of Executive’s
employment. Notwithstanding the foregoing, if applicable law prohibits (including, but not limited to, laws prohibiting discriminating in favor of highly compensated employees), or, if participation by the Executive is not permitted under the
terms of the applicable health or life insurance plans, or if providing such benefits would subject the Bank to penalties, then the Bank shall pay the Executive a cash lump sum payment reasonably estimated to be equal to the value (or the remaining
value) of such non-taxable medical and dental benefits, with such payment to be made by lump sum within ten (10) business days of the Date of Termination, or if later, the date on which the Bank determines that such insurance coverage (or the
remainder of such insurance coverage) cannot be provided for the foregoing reasons.
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TERMINATION FOR DISABILITY OR DEATH.
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(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 hereunder shall commence within thirty (30) days.
(b) To the extent
permitted by applicable law, the Bank shall cause to be continued life insurance coverage and non-taxable medical and dental coverage substantially comparable, as reasonably available, to the coverage maintained by the Bank for Executive and
Executive’s dependents prior to the termination of his employment based on Disability (in accordance with its customary co-pay percentages), 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) the date Executive returns to the full-time employment of the Bank; (ii) Executive’s full-time employment by another employer;
or (iii) twelve (12) months after the date of termination of Executive’s employment based on Disability. Nothing herein shall be construed to prevent Executive from continuing such
coverage for the remainder of the applicable COBRA period at his own expense. If participation by the Executive is not permitted under the terms of an applicable plan (i.e., such as the 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.
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(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. In addition, the Bank shall continue to provide for twelve (12)
months after Executive’s death non-taxable medical, dental and other insurance benefits substantially comparable to the coverage maintained by the Bank for Executive’s dependents prior to his death (in accordance with the customary co-pay
percentages). Nothing herein shall be construed to prevent Executive’s eligible dependents from continuing such coverage for the remainder of any applicable COBRA period at their own expense.
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TERMINATION UPON RETIREMENT.
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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) after Executive reaches age 65 or 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 plan.
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TERMINATION FOR CAUSE.
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(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:
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(1)
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personal dishonesty in performing Executive’s duties on behalf of the Bank;
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(2)
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incompetence in performing Executive’s duties on behalf of the Bank;
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(3)
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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;
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(4)
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breach of fiduciary duty involving personal profit;
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(5)
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material breach of the Bank’s Code of Ethics;
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(6)
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intentional failure to perform stated duties under this Agreement after written notice thereof from the Board;
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(7)
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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
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(8)
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material breach by Executive of any provision of this Agreement.
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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 9 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.
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9. NOTICE.
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(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 19. 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).
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(b) Any other
purported termination by the Bank or by Executive shall be communicated by a “Notice of Termination” (as defined in Section 9(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 19. 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 this 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 9 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.
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10.
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POST-TERMINATION OBLIGATIONS.
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(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;
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(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 10. 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 10, 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.
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11. SOURCE OF PAYMENT.
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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.
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12.
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EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
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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, 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.
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13. NO ATTACHMENT; BINDING ON SUCCESSORS.
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(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.
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14. MODIFICATION AND WAIVER.
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(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.
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15. REQUIRED PROVISIONS.
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(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.
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16. SEVERABILITY.
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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.
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17. HEADINGS FOR REFERENCE ONLY.
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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.
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18. GOVERNING LAW.
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This Agreement shall be governed by the laws of the State of Wisconsin except to the extent superseded by federal law.
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19. ARBITRATION.
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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.
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20. INDEMNIFICATION.
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(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.
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21. NOTICE.
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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:
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To the Bank:
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Chairman of the Board
PyraMax Bank, FSB
7001 W. Edgerton Ave.
Greenfield, WI 53220
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To Executive:
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Daniel Kempel
At the most recent address appearing in
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[Signature Page Follows]
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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.
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PYRAMAX BANK, FSB
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By:
Richard B. Hurd
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Chief Executive Officer
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1895 BANCORP OF WISCONSIN, INC.
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By:
Richard B. Hurd
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Chief Executive Officer
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EXECUTIVE
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Daniel Kempel
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