Exhibit
10.1
Executive Change-in-Control
Severance Agreement for
Brian Spielmann
First Business Financial Services, Inc.
April 1, 2023
Contents
| Article 1.
Definitions |
1 |
| |
|
| Article 2.
Severance Benefits |
5 |
| |
|
| Article 3.
Nonsolicitation of Clients |
8 |
| |
|
| Article 4.
Confidentiality |
9 |
| |
|
| Article 5.
Protection of Leadership Pool |
12 |
| |
|
| Article 6.
Treatment of Excise Taxes |
13 |
| |
|
| Article 7.
Contractual Rights and Legal Remedies |
14 |
| |
|
| Article 8.
Successors |
15 |
| |
|
| Article 9.
Miscellaneous |
15 |
First Business Financial Services, Inc.
Executive Change-in-Control Severance Agreement
THIS EXECUTIVE
CHANGE-IN-CONTROL SEVERANCE AGREEMENT is made, entered into, and is effective this 1st day of April 2023 (hereinafter
referred to as the “Effective Date”), by and between First Business Financial Services, Inc. (the “Company”),
a Wisconsin corporation, and Brian Spielmann (the “Executive”).
WHEREAS, the Company
recognizes that circumstances may arise in which a Change in Control involving the Company occurs, through acquisition or otherwise,
thereby causing uncertainty of employment without regard to the Executive’s competence or past contributions. Such uncertainty
may result in the loss of the valuable services of the Executive to the detriment of the Company and its shareholders; and
WHEREAS, both the
Company and the Executive are desirous that any proposal for a Change in Control will be considered by the Executive objectively and
with reference only to the business interests of the Company and its shareholders; and
WHEREAS, the Executive
will be in a better position to consider the Company’s best interests if the Executive is afforded reasonable security, as provided
in this Agreement, against altered conditions of employment which could result from any such Change in Control.
NOW, THEREFORE,
in consideration of the foregoing and of the mutual covenants and agreements of the parties set forth in this Agreement, and of other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
Wherever 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:
| (a) | “Accrued Benefits”
mean the benefits as provided in Sections 2.3(a) and 2.3(b) herein. |
| (b) | “Affiliate” means
any entity of which at least 20% of the equity interest is held directly or indirectly by
the company, and includes Affiliates acquired after the effective date of this Agreement. |
| (c) | “Agreement” means
this Executive Change-in-Control Severance Agreement. |
| (d) | “Base Salary” means,
at any time, the then regular annual rate of pay which the Executive is receiving as annual
salary, excluding amounts: (i) received under short-term or long-term incentive or other
bonus plans, regardless of whether or not the amounts are deferred, or (ii) designated
by the Company as payment toward reimbursement of expenses. |
| (e) | “Board” or “Board
of Directors” means the Board of Directors of the Company. |
| (f) | “Cause” shall mean
the occurrence of any one or more of the following: |
| (i) | The Executive’s willful failure
to substantially perform his duties with the Company (other than any such failure resulting
from the Executive’s Disability), after the Company delivers a written demand for substantial
performance to the Executive (which specifically identifies the manner in which the Committee
believes that the Executive has not substantially performed his duties) and the Executive
fails to remedy the situation within fifteen (15) business days of such written notice from
the Company; |
| (ii) | Gross negligence in the performance
of the Executive’s duties to the Company, which results in material financial harm
to the Company; |
| (iii) | The Executive’s conviction
of, or plea of guilty or nolo contendere, to any felony or any other crime, the circumstances
of which relate to the Executive’s duties to the Company; |
| (iv) | The Executive’s willful engagement
in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise; |
| (v) | Willful violation of any provision
of the Company’s Code of Business Conduct & Ethics, as amended from time to
time; or |
| (vi) | Willful violation of any of the covenants
contained in Article 3 or 5, as applicable. |
| (g) | “Change in Control”
shall occur on 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: |
| (i) | change in the ownership of the Company,
which shall occur on the first date that any one person (as such term is defined in Section 3(a)(9) of
the Exchange Act and used in Sections 13(d) and 14(d) thereof) or more than one
person acting as a group (as defined below) becomes a beneficial owner of Voting Securities
that, together with the Voting Securities then held by such person or group, constitutes
more than 50% of the total fair market value or total voting power of the Voting Securities.
However, if any one person or more than one person acting as a group is considered to own
more than 50% of the total fair market value or total voting power of the Voting Securities,
the acquisition of additional Voting Securities by the same person or persons is not considered
to cause a Change in Control. The term “persons acting as a group” shall not
include any persons acting as a group solely because they purchase or own Voting Securities
at the same time, or as a result of the same public offering. However, persons will be considered
to be acting as a group if they are owners of an entity that enters into a merger, consolidation,
purchase or acquisition of stock, or similar business transaction with the Company. |
| (ii) | A change in the effective control
of the Company, which shall occur on the date that a majority of the members of the Board
is replaced during any 12-month period by directors whose appointment or election is not
endorsed by a majority of the members of the Board prior to the date of the appointment or
election. |
| (iii) | Any one person, or more than one
person acting as a group (as defined below), acquires (or has acquired during the twelve
month period ending on the date of the most recent acquisition by such person or persons)
assets from the Company that have a total gross fair market value equal to more than 50%
of the total gross fair market value of all the assets of the Company immediately prior to
such acquisition or acquisitions, other than an excluded transaction (as defined below). |
For
purposes of the definition of Change in Control:
| A. | “Fair market value” means,
as of any date, the officially-quoted closing selling price of the shares of common stock
of the Company on such date on the principal national securities exchange on which such shares
are listed or admitted to trading or, if there have been no sales with respect to shares
of the Company’s common stock on such date, or if the shares are not so listed or admitted
to trading, the fair market value shall be the value established by the Board or a committee
thereof in good faith. |
| B. | “Gross fair market value”
means the value of the assets of the Company, or the value of the assets being disposed of,
as applicable, determined without regard to any liabilities associated with such assets. |
| C. | Persons will not be considered to be
acting “as a group” solely because they purchase assets of the Company at the
same time, or as a result of the same public offering. However, persons will be considered
to be acting as a group if they are owners of an entity that enters into a merger, consolidation,
purchase or acquisition of assets, or similar business transaction with the Company. |
| D. | The term “excluded transaction”
means any transaction in which assets are transferred to: (1) a shareholder of the Company
(determined immediately before the asset transfer) in exchange for or with respect to shares
of the common stock of the Company; (2) an entity, 50% or more of the total value or
voting power of which is owned, directly or indirectly, by the Company (determined after
the asset transfer); (3) a person, or more than one person acting as a group (as defined
herein), that owns directly or indirectly, 50% or more of the total value or voting power
of all the outstanding Voting Securities (determined after the asset transfer); or (4) an
entity at least 50% of the total value or voting power of which is owned, directly or indirectly,
by a person described in clause (3) (determined after the asset transfer). |
| (h) | “Code” means the
U.S. Internal Revenue Code of 1986, as amended from time to time. |
| (i) | “Committee” means
the Compensation Committee of the Board of Directors of the Company, or if no Compensation
Committee exists, then the full Board of Directors of the Company, or a committee of Board
members, as appointed by the full Board to administer this Agreement. |
| (j) | “Company” means
First Business Financial Services, Inc., a Wisconsin corporation. |
| (k) | “Disability” or
“Disabled” means that the Executive: |
| (i) | is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or can be expected to last for a continuous period of
not less than twelve (12) months, or |
| (ii) | is, by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can be expected
to last for a continuous period of not less than twelve (12) months, receiving income replacement
benefits for a period of not less than three (3) months under an accident and health
plan covering employees of the Company. |
| (l) | “Effective Date of Termination”
means the date on which a Qualifying Termination occurs, as provided in Section 2.2
herein, which triggers the payment of Accrued Benefits and Severance Benefits hereunder. |
| (m) | “Exchange Act” means
the Securities Exchange Act of 1934, as amended from time to time, or any successor act thereto. |
| (n) | “Good Reason” means,
without the Executive’s express written consent, the occurrence after a Change in Control
of the Company of any one or more of the following: |
| (i) | A material reduction by the Company
of the Executive’s Base Salary in effect on the Effective Date hereof, or as the same
shall be increased from time to time; |
| (ii) | A material reduction of the Executive’s
authorities, duties, or responsibilities as an executive and/or officer of the Company from
those in effect as of ninety (90) calendar days prior to the Change in Control; provided,
however, that any reduction in the foregoing resulting merely from the acquisition of the
Company and its existence as a subsidiary or division of another entity shall not be sufficient
to constitute Good Reason; |
| (iii) | The Company’s requiring the
Executive to be based at a location in excess of one hundred (100) miles from the location
of the Executive’s principal job location or office immediately prior to the Change
in Control; except for required travel on the Company’s business to an extent substantially
consistent with the Executive’s then present business travel obligations; or |
| (iv) | A material breach of this Agreement
by the Company. |
Notwithstanding the foregoing,
no event shall constitute Good Reason unless (i) the Executive provides the Company with a written notice that an event has occurred
that serves as cause for Good Reason within sixty (60) days after the date the Executive had knowledge, or should have had knowledge,
of the first occurrence of such circumstances, (ii) the Company fails to correct in all material respects the event(s) constituting
Good Reason within sixty (60) days (the “cure period”) of the Executive’s written notice to the Company describing
such event(s), and (iii) the Executive actually terminates employment within thirty (30) days following the expiration of the Company’s
cure period (in which cure does not occur).
| (o) | “Notice of Termination”
shall mean a written notice which 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 the Executive’s termination of employment with the Company
under the provision so indicated. |
| (p) | “Qualifying Termination”
means any of the events described in Section 2.2 herein, the occurrence of which triggers
the payment of Accrued Benefits and Severance Benefits hereunder. |
| (q) | “Severance Benefits”
mean the severance benefits as provided in Section 2.3(c) through 2.3(e) herein. |
| (r) | “Voting Securities”
means any securities that ordinarily possess the power to vote in the election of directors
without the happening of any precondition or contingency. |
| Article 2. |
Severance Benefits |
2.1 Right
to Accrued and Severance Benefits. Subject to Section 2.4 herein, the Executive shall be entitled to receive from the Company
the Accrued Benefits and Severance Benefits if during the term of this Agreement there has been a Change in Control and if, within twelve
(12) calendar months immediately thereafter, the Executive incurs a termination of employment with the Company for any reason specified
in Section 2.2 herein as being a Qualifying Termination.
2.2 Qualifying
Termination. Subject to Section 2.4 herein, the occurrence of any one or more of the following events (a “Qualifying Termination”)
within twelve (12) calendar months immediately following a Change in Control shall trigger the payment of the Accrued and Severance Benefits
to the Executive:
| (a) | The Executive’s termination of
employment with the Company due to the Company’s involuntary termination of the Executive’s
employment without Cause; or |
| (b) | The Executive’s termination of
employment with the Company due to his voluntary termination of employment for Good Reason. |
A Qualifying Termination
shall also include the Executive’s termination of employment with the Company due to an involuntary termination by the Company
within six (6) months prior to a Change in Control if such termination occurs at the request of any party involved in the Change-in-Control
transaction.
A Qualifying Termination
shall not include the Executive’s termination of employment with the Company due to a termination of the Executive’s employment
within twelve (12) calendar months after a Change in Control by reason of death, Disability, the Executive’s voluntary termination
without Good Reason, or the Company’s termination of the Executive’s employment for Cause.
2.3 Description
of Accrued and Severance Benefits. In the event that the Executive becomes entitled to receive benefits, as provided in Sections
2.1 and 2.2 herein, the Company shall pay to the Executive and provide the Executive with the following:
| (a) | A lump-sum cash amount equal to the
Executive’s unpaid Base Salary, accrued vacation pay, unreimbursed business expenses,
and all other items earned by and owed to the Executive through and including the Effective
Date of Termination. Such payment shall constitute full satisfaction for these amounts owed
to the Executive. |
| (b) | A lump-sum cash amount payable to the
Executive under any annual bonus plan then in effect in respect of the most recently completed
fiscal year, to the extent not theretofore paid. |
| (c) | A cash amount equal to two (2) multiplied
by the Executive’s annual rate of Base Salary in effect upon the Effective Date of
Termination or, if greater, by the Executive’s annual rate of Base Salary in effect
immediately prior to the occurrence of the Change in Control. |
| (d) | A cash amount equal to the greater
of: (i) the Executive’s then-current target bonus opportunity established under
any annual bonus plan for the plan year in which the Qualifying Termination occurs; or (ii) the
Executive’s target bonus opportunity, if any, in effect prior to the occurrence of
the Change in Control. Such payment shall be adjusted on a pro rata basis based on the number
of days the Executive was actually employed during such plan year, |
| (e) | If as of the Effective Date of Termination
the Company continues to maintain a group health insurance plan that would allow for the
participation of the Executive without violating the terms of the group health insurance
plan (or any other related insurance policies) or violating any of the Code’s nondiscrimination
requirements applicable to the health insurance coverage, then the Company shall provide,
at the exact same cost to the Executive, and at the same coverage level as in effect as of
the Effective Date of Termination (subject to changes in coverage levels applicable to all
employees generally), a continuation of the Executive’s (and the Executive’s
eligible dependents’) health insurance coverage for eighteen (18) months from the Effective
Date of Termination. The applicable COBRA health insurance benefit continuation period shall
begin coincident with the beginning of this eighteen (18) month benefit continuation period. |
Notwithstanding the health
benefits provided above, if the Executive becomes covered under the health insurance coverage of a subsequent employer which does not
contain any exclusion or limitation with respect to any preexisting condition of the Executive or the Executive’s eligible dependents,
this health insurance benefit coverage by the Company shall be discontinued prior to the end of the eighteen (18) month continuation
period. For purposes of enforcing this offset provision, the Executive shall have a duty to inform the Company as to the terms and conditions
of any subsequent employment and the corresponding benefits earned from such employment. The Executive shall provide, or shall cause
to be provided, to the Company in writing correct, complete, and timely information concerning the same.
2.4 Release
Condition. The payment and provision of the Severance Benefits is contingent upon the Executive’s execution of a written complete
and permanent release in a form satisfactory to the Company (the “Release”), containing, among other things, a general release
of claims against the Company, which must be executed by the Executive (and any applicable revocation period must expire) in accordance
with the terms of the Release but in no event later than sixty (60) calendar days following the Effective Date of Termination.
2.5 Payment
of Accrued and Severance Benefits. The Accrued Benefits shall be paid in cash to the Executive in a single lump sum with the first
Company payroll following the Effective Date of Termination. The sum of the Severance Benefits described in Sections 2.3(c) and
2.3(d) herein shall be paid as follows: (i) the portion of such sum up to the maximum amount payable pursuant to Treasury Regulation
Section 1.409A-1(b)(9)(iii)(A) as of the Effective Date of Termination (the “Exempt Severance Pay Amount”), shall
be paid in equal installments over a period of twenty-four (24) months beginning as of the Effective Date of Termination and shall be
paid in accordance with the Company’s normal payroll practices, subject to applicable tax withholdings, commencing with the Company’s
first regularly scheduled payroll date that occurs at least five (5) business days after the Release becomes effective and irrevocable,
with any amounts otherwise payable prior to such date (but for any consideration/revocation requirements related to such Release) to
be made in a lump sum on such date; and (ii) payment of the difference between the sum of the Severance Benefits described in Sections
2.3(c) and 2.3(d) herein and the Exempt Severance Pay Amount shall be paid to the Executive in a lump sum after the Release
becomes effective and irrevocable, but in no case no later than the first March 15th following the calendar year which included
Effective Date of Termination.
Notwithstanding
the foregoing, if the Qualifying Termination is due to the Executive’s termination of employment with the Company due to an involuntary
termination by the Company within six (6) months prior to a Change in Control at the request of any party involved in the Change-in-Control
transaction, any amount due under this Section 2.5 that would become payable prior to the date of a Change in Control Control (assuming
the Change in Control had occurred simultaneous with the Qualifying Termination), if any, shall not be paid prior to the date of the
Change in Control and shall be payable in a lump sum on the first regularly scheduled payroll date that occurs after the date of the
Change in Control and is at least five (5) business days after the Release becomes effective and irrevocable.
2.6 Termination
Due to Death. Within twenty-four (24) months immediately following a Change in Control, if the Executive incurs a separation of service
with the Company by reason of his death, the Company shall pay the Executive’s estate all amounts described in Section 2.3(a) and
(b) herein through the date of death. All other benefits due the Executive shall be determined in accordance with the Company’s
retirement, survivor’s benefits, insurance, and other applicable programs then in effect.
2.7 Notice
of Termination. Any termination of employment of the Executive from the Company due to a termination of the Executive’s employment
by the Company for Cause or by the Executive for Good Reason shall be communicated by Notice of Termination to the other party.
| Article 3. |
Nonsolicitation of Clients |
In consideration of this Agreement,
the Executive agrees to the following:
| (a) | While Executive is employed by the
Company or any of its Affiliates, and for a period of twenty-four (24) months immediately
following the termination of the Executive’s employment for any reason, Executive will
not, except on behalf of or as otherwise directed by the Company, directly or indirectly
(through or by providing assistance to another person or entity), solicit Financial Services
(defined below) business from any client of the Company or any of its Affiliates who/which
was a client of the Company or any of its Affiliates and (i) with whom/which the Executive
had any contact or (ii) about whom/which the Executive had access to non-public confidential
or proprietary information, in the case of both (i) and (ii), above, during the period
of one year prior to the date the Executive ceased to be an employee of the Company or any
of its Affiliates. |
| (b) | While the Executive is employed by
the Company or any of its Affiliates, and for a period of twenty-four (24) months immediately
following the termination of the Executive’s employment for any reason, the Executive
will not, except on behalf of or as otherwise directed by the Company, conduct business relating
to Financial Services (defined below) with any client of the Company or any of its Affiliates
who/which was a client of the Company or any of its Affiliates and (i) with whom/which
the Executive had any contact or (ii) about whom/which the Executive had access to non-public
confidential or proprietary information, in the case of both (i) and (ii), above, during
the period of one year prior to the date the Executive ceased to be an employee of the Company
or any of its Affiliates. |
| (c) | While the Executive is employed by
the Company or any of its Affiliates, and for a period of twelve (12) months immediately
following the termination of the Executive’s employment for any reason, the Executive
will not, except on behalf of or as otherwise directed by the Company, directly or indirectly
(through or by providing assistance to another person or entity), solicit Financial Services
(defined below) business from any prospective client of the Company or any of its Affiliates
with whom/which the Company engaged in direct marketing efforts (as opposed to general solicitations
of business) and (i) with whom/which the Executive had any contact or (ii) about
whom/which the Executive had access to non-public confidential or proprietary information,
in the case of both (i) and (ii), above, during the period of one year prior to the
date the Executive ceased to be an employee of the Company or any of its Affiliates. |
| (d) | For clarification purposes, the restrictions
described in the above subparagraphs apply to clients whether they are persons or entities.
The term “Financial Services” as used herein shall mean products and/or services
offered by the Company during the one year prior to the date the Executive ceased to be an
employee of the Company or any of its Affiliates. |
| (e) | These covenants are effective immediately.
The parties intend that this Article 3 and each and all of its individual subparagraphs,
provisions, and clauses are severable from any other provision of this agreement, as provided
in Section 9.8, and are also severable from any other promise or duty owed by the Executive
to the Company or any Affiliate. |
| (f) | The Executive agrees that this covenant
is reasonably and properly necessary to protect the legitimate business interests of the
Company. The Executive acknowledges that damages for the violation of this covenant will
be inadequate and will not give full, sufficient relief to the Company, and that a breach
of this covenant will constitute irreparable harm to the Company. Therefore, the Executive
agrees that in the event of any violation of this covenant, the Company shall be entitled
to compensatory damages, and injunctive relief. |
| (g) | Executive will reimburse and indemnify
the Company for the actual costs incurred by the Company in enforcing this covenant, including,
but not limited to, attorney's fees reasonably incurred in enforcement activity. |
| Article 4. |
Confidentiality |
In consideration of this Agreement,
the Executive agrees to the following:
| (a) | While Executive is employed by the
Company or any of its Affiliates, the Executive has been, and will continue to be, provided
with Trade Secrets and/or Confidential Information. This information has been developed at
great expense to the Company and is necessary for the Company to conduct its business. |
| (b) | While Executive is employed by the
Company or any of its Affiliates, the Executive will not directly or indirectly use or disclose
any Trade Secret or Confidential Information, except in the interest and for the benefit
of the Company. |
| (c) | After the termination of the Executive’s
employment with the Company for any reason, the Executive will not directly or indirectly
use or disclose any Trade Secret. |
| (d) | For a period of twenty-four (24) months
following the termination of the Executive’s employment for any reason, the Executive
will not directly or indirectly use or disclose any Confidential Information. This confidentiality
provision is not intended in any way to modify or limit the Executive’s ongoing duty
to maintain the confidentiality of information as required under federal and state laws and
regulations. |
| (e) | At
all times, the Executive
shall not disparage the Company or otherwise make comments harmful to the Company’s
or any of its Affiliates’ reputation. |
| (f) | For purposes of this Agreement, the
term “Trade Secret” has that meaning set forth under applicable law. |
| (g) | For purposes of this Agreement, the
term “Confidential Information” means all non-Trade Secret information of, about
or related to the Company or any of its Affiliates or provided to the Company or any of its
Affiliates by its clients, vendors and suppliers that is not known generally to the public
or the Company’s or any of its Affiliates’ competitors. Confidential Information
includes, but is not limited to: (i) new products, product specifications, information
about products under development, research, development or business plans, financial information,
client lists, vendor or supplier lists, information about transactions with clients, pricing
information, information relating to costs, business records, and employment records and
policies (other than your own); (ii) information that is marked or otherwise designated
or treated as confidential or proprietary by the Company or any of its Affiliates; and (iii) information
received by the Company or any of its Affiliates from others which such entity has an obligation
to treat as confidential. |
| (h) | Notwithstanding the foregoing, the
terms “Confidential Information” and “Trade Secret” do not include,
and the obligations set forth in this Agreement do not apply to, any information that: (i) can
be demonstrated by the Executive to have been known by the Executive prior to the Executive’s
employment by the Company or any of its Affiliates; (ii) is or becomes generally available
to the public through no act or omission of the Executive; (iii) is obtained by the
Executive in good faith from a third party who discloses such information to the Executive
on a non-confidential basis without violating any obligation of confidentiality or secrecy
relating to the information disclosed; or (iv) is independently developed by the Executive
outside the scope of the Executive’s employment without the use of Confidential Information
or Trade Secrets. Nothing in this Agreement shall limit or supersede any common law, statutory
or other protections of trade secrets where such protections provide the Company with greater
rights or protections for a longer duration than provided in this Agreement. With respect
to the disclosure of a Trade Secret and in accordance with 18 U.S.C. § 1833, the Executive
shall not be held criminally or civilly liable under any federal or state trade secret law
for the disclosure of a Trade Secret that (i) is made in confidence to a federal, state,
or local government official, either directly or indirectly, or to an attorney, provided
that, the information is disclosed solely for the purpose of reporting or investigating a
suspected violation of law; or (ii) is made in a complaint or other document filed in
a lawsuit or other proceeding filed under seal so that it is not disclosed to the public.
The Executive is further notified that if the Executive files a lawsuit for retaliation by
the Company or any of its Affiliates for reporting a suspected violation of law, the Executive
may disclose the Company’s Trade Secrets to the Executive’s attorney and use
the Trade Secret information in the court proceeding, provided that the Executive files any
document containing the Trade Secret under seal so that it is not disclosed to the public,
and does not disclose the Trade Secret, except pursuant to court order. |
| (i) | These covenants are effective immediately.
The parties intend that this Article 4 and each and all of its individual subparagraphs,
provisions, and clauses are severable from any other provision of this agreement, as provided
in Section 9.8, and are also severable from any other promise or duty owed by the Executive
to the Company or any of its Affiliates. |
| (j) | The Executive agrees that each of these
covenants are reasonably and properly necessary to protect the legitimate business interests
of the Company and its Affiliates. The Executive acknowledges that damages for the violation
of any of these covenants will be inadequate and will not give full, sufficient relief to
the Company and its Affiliates, and that a breach of any of these covenants will constitute
irreparable harm to the Company or its Affiliates. Therefore, the Executive agrees that in
the event of any violation of any of these covenants, the Company or any of its Affiliates
shall be entitled to compensatory damages and injunctive relief. |
| (k) | The Executive will reimburse and indemnify
the Company or any of its Affiliates for the actual costs incurred by the Company or its
Affiliates in enforcing any of these covenants, including, but not limited to, attorney’s
fees reasonably incurred in enforcement activity. |
| (l) | Notwithstanding anything herein to
the contrary, in accordance with Rule 21F-17 under the Securities Exchange Act of 1934
and the rules promulgated thereunder, the Company shall not impede the Executive’s
ability to communicate with the Securities and Exchange Commission or other governmental
agencies regarding possible federal securities law violations (i) without the Company’s
approval and (ii) without having to forfeit or forego any resulting whistleblower awards,
and the Company shall not enforce any provision of any policy to the extent such provision
would be deemed to require the Company’s prior approval of such communication or forfeiture
of any award, except to the extent otherwise permitted by Rule 21F-17. |
| Article 5. |
Protection of Leadership Pool |
In consideration
of this Agreement, the Executive and the Company agree to the following:
| (a) | The Executive is a top-level employee
of the Company or an Affiliate, has special skills or knowledge important to the Company
or its Affiliates, and/or has skills that are difficult for the Company or its Affiliates
to replace. |
| (b) | The Executive’s colleagues who
are employed by the Company or any of its Affiliates in a position of officer or manager,
or above (collectively, the “Leadership Pool”) are likewise top-level employees
of the Company or an Affiliate, have special skills or knowledge important to the Company
or its Affiliates, and/or have skills that are difficult for the Company or its Affiliates
to replace. |
| (c) | If the Executive or any member of the
Leadership Pool ceases to be so employed, the Company or its Affiliates will have a business
necessity to replace the skills lost. |
| (d) | It takes time after an employee of
the caliber of the Executive and/or the Leadership Pool leaves the employ of the Company
or any of its Affiliates to replace the skills lost; 180 days is a reasonable measure of
the time needed to replace such skills. |
| (e) | A primary and necessary source of replacement
of the skills of the Executive and/or a member of the Leadership Pool are the other members
of the Leadership Pool. |
| (f) | The parties recognize that employees
of the Company or any of its Affiliates (not otherwise bound by contract) are not in any
way restricted from competing with the Company or any of its Affiliates, and are not obligated
to accept, nor even to consider, proposals by the Company or any of its Affiliates that they
replace the Executive or a member of the Leadership Pool in the event the Executive or a
member of the Leadership Pool leaves the Company or any of its Affiliates. |
| (g) | Because of the Executive’s present
position, the Executive is in a position to assist and influence those members of the Leadership
Pool with whom the Executive has or had a working relationship during the immediately preceding
twenty-four (24) months, or about whom/which the Executive has acquired or possessed specialized
knowledge (in either case, a “Restricted Person”) in choosing whether to remain
with the Company or its Affiliates and consider or accept other positions with the Company
or its Affiliates rather than choosing to seek other opportunities outside the Company or
any of its Affiliates. Any suggestion by the Executive that a Restricted Person should seek
another employment opportunity outside the Company or any of its Affiliates, and any offer
of another employment opportunity by another employer to a Restricted Person with the assistance
of the Executive, would be such assistance and influence, in derogation of the Executive’s
duty to the Company or its Affiliates as a managerial and supervisory employee. |
| (h) | The monetary value of the loss to the
Company and its Affiliates in case the Executive in fact assists or influences a Restricted
Person to leave the Company or any of its Affiliates for a competitor would be impossible
to precisely measure. Injunctive relief for a breach of subsection (i) would also be
ineffective. |
| (i) | The parties agree that a fair estimate
of the monetary value of the loss to the Company and its Affiliates in case the Executive
assists or influences another employee to leave the Company or any of its Affiliates for
a competitor would be half of the Executive’s current base salary as of the last day
the Executive worked for the Company or any of its Affiliates, for a period of 180 days. |
| (j) | In consideration of this Agreement,
the Executive agrees that the Executive will not, directly or through another, during the
Executive’s employment and for a period of twenty-four (24) months thereafter, assist
or influence any Restricted Person to take a position outside the Company or any of its Affiliates
which is reasonably likely to pose a competitive threat to the Company or any of its Affiliates. |
| (k) | In the event of a breach by the Executive
of subsection (j), the stipulated damages for such breach are agreed to be one-half of the
Executive’s daily rate of base pay as of the time they leave the Company or any of
its Affiliates times 180. This provision for stipulated damages is intended to be and is
severable from the substantive obligation in subsection (j), and from the other provisions
of this Agreement. |
| (l) | Subsections (j) and (k) are
solely for the purposes stated in subsections (a) through (k) and are not for the
purpose of limiting the ability of the Executive to compete with the Company or any of its
Affiliates. |
| (m) | The Executive and the Company intend
that the promise by the Executive in subsection (j) is separate and separable from any
other obligation of the Executive, and for a different purpose, and with a different remedy
from the promise of the Executive not to disclose Confidential Information or Trade Secrets
or solicit or conduct business with certain clients of the Company or its Affiliates, under
Articles 3 and 4. |
| (n) | This section is effective immediately.
The Executive will reimburse and indemnify the Company or its Affiliates for the actual costs
incurred by the Company or its Affiliates in enforcing these covenants, including, but not
limited to, attorney’s fees reasonably incurred in enforcement activity. |
| Article 6. |
Treatment of Excise Taxes |
Notwithstanding
anything to the contrary contained in this Agreement, if, after taking into account all amounts or benefits otherwise to be paid or payable,
any amount or benefit to be paid or provided under this Agreement would be an “Excess Parachute Payment” within the meaning
of Section 280G of the Code or any successor provision thereto but for the application of this sentence, then the payments and benefits
to be so paid or provided under this Agreement will be reduced to the minimum extent necessary (but in no event to less than zero) so
that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing
reduction will be made only if and to the extent that such reduction would result in an increase in the aggregate payments and benefits
to be provided, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code,
or any successor provision thereto, any tax imposed by any comparable provision of state law and any applicable federal, state, and local
income taxes). The determination of whether any reduction in such payments or benefits to be provided under this Agreement is required
pursuant to the preceding sentence will be made, at the expense of the Company, if requested by the Executive or the Company, by the
Company’s independent accountants.
The fact that the
Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Article 6 will not
of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment
or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Article 6, the Executive
will be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Article 6. The Company
will provide the Executive all information reasonably requested by the Executive to permit the Executive to make such designation. In
the event that the Executive fails to make such designation within ten (10) business days of the Effective Date of Termination,
the Company may effect such reduction in any manner it deems appropriate.
| Article 7. |
Contractual Rights and Legal Remedies |
7.1 Payment
Obligations Absolute. As long as both parties abide by the Agreement, the Company’s obligation to make the payments and the
arrangements provided for herein shall be absolute and unconditional, and shall not be affected by any circumstances, including, without
limitation, any offset, counterclaim, recoupment, defense, or other right which the Company may have against the Executive or anyone
else. All amounts payable by the Company hereunder shall be paid without notice or demand, unless Executive breaches the Agreement. If
such a breach occurs, all benefit payments will immediately cease, and will no longer be payable.
The Executive shall
not be obligated to seek other employment in mitigation of the amounts payable or arrangements made under any provision of this Agreement,
and the obtaining of any such other employment shall in no event effect any reduction of the Company’s obligations to make the
payments and arrangements required to be made under this Agreement.
7.2 Contractual
Rights to Benefits. This Agreement establishes and vests in the Executive a contractual right to the benefits to which they are entitled
hereunder. However, nothing herein contained shall require or be deemed to require the Company to segregate, earmark, or otherwise set
aside any funds or other assets, in trust or otherwise, to provide for any payments to be made or required hereunder.
7.3 Post
Change in Control Obligations. For a period of twenty-four (24) months following a Change in Control, the Company (or any successor
thereto) shall continue in effect, or continue the Executive’s participation in a similar manner in, any of the Company’s
short- and long-term incentive compensation plans, or employee benefit or retirement plans, policies, practices, or other compensation
arrangements in which the Executive participates prior to the Change in Control of the Company, unless (i) such failure to continue
the plan, policy, practice, or arrangement pertains to all plan participants generally, or (ii) the Executive’s participation
is increased or substituted for participation in more beneficial short- and long-term incentive compensation plans, or employee benefit
or retirement plans, policies, practices, or other compensation arrangements.
8.1 Successors
to the Company. The Company shall use reasonable efforts to require any successor (whether direct or indirect, by purchase, merger,
reorganization, consolidation, acquisition of property or stock, liquidation, or otherwise) of all or a significant portion of the assets
or stock of the Company by agreement, in form and substance satisfactory to the Executive, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.
Regardless of whether such agreement is executed, this Agreement shall be binding upon any successor if in accordance with the operation
of law and, if so, such successor shall be deemed the “Company” for purposes of this Agreement.
8.2 Assignment
by the Executive. This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and legatees. If the Executive dies while any amount would still
be payable to them hereunder had they continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the Executive’s devisee, legatee, or other designee, or if there is no such designee, to the
Executive’s estate.
9.1 Cooperation.
The Executive shall cooperate with the Company and its attorneys in connection
with any and all lawsuits, claims, investigations, or similar proceedings that have been or could be asserted at any time arising out
of or related in any way to the Executive’s employment by the Company or any entity related to the Company (within the meaning
of Code Section 414(b), (c) or (m)).
9.2 Employment
Status. This Agreement is not, and nothing herein shall be deemed to create, an employment contract between the Executive and the
Company or any entity related to the Company (within the meaning of Code Section 414(b), (c) or (m)). The Executive acknowledges
that the rights of the Company remain wholly intact to change or reduce at any time and from time to time his compensation, title, responsibilities,
location, and all other aspects of the employment relationship, or to discharge them prior to a Change in Control (subject to such discharge
possibly being considered a Qualifying Termination pursuant to Section 2.2).
9.3 Entire
Agreement. This Agreement contains the entire understanding of the Company and the Executive with respect to the subject matter hereof.
In addition, the payments provided for under this Agreement in the event of the Executive’s Qualifying Termination with the Company
for any reason shall be in lieu of any severance benefits payable under any severance plan, program, or policy of the Company to which
the Executive might otherwise be entitled.
9.4 Notices.
All notices, requests, demands, and other communications hereunder shall be sufficient if in writing and shall be deemed to have been
duly given if delivered by hand or if sent by registered or certified mail to the Executive at the last address filed in writing with
the Company or, in the case of the Company, at its principal offices.
9.5 Conflicting
Agreements. This Agreement completely supersedes any and all prior change-in-control agreements or understandings, oral or written,
entered into by and between the Company and the Executive, with respect to the subject matter hereof, and all amendments thereto, in
their entirety, provided; however, the foregoing provisions of Article 3 (Nonsolicitation of Clients), Article 4 (Confidentiality)
and Article 5 (Protection of Leadership Pool) shall not be construed to supersede or mollify any obligations of the Executive to
the Company with respect to any restrictive covenant, non-compete or confidentiality agreement otherwise binding on the Executive, which
shall remain in full force and effect to the extent provided in any such agreement(s), and in the event that a provision of such agreement
shall conflict with any provision of this Agreement, the Executive acknowledges and agrees that the provision which is most protective
of the Company’s confidential or proprietary interests shall control. Further, the Executive hereby represents and warrants to
the Company that Executive’s entering into this Agreement, and the obligations and duties undertaken by Executive hereunder, will
not conflict with, constitute a breach of, or otherwise violate the terms of, any other employment or other agreement to which Executive
is a party, except to the extent any such conflict, breach, or violation under any such agreement has been disclosed to the Board in
writing in advance of the signing of this Agreement.
9.6 Includable
Compensation. Severance Benefits provided hereunder shall not be considered “includable compensation” for purposes of
determining the Executive’s benefits under any other plan or program of the Company unless otherwise provided by such other plan
or program.
9.7 Tax
Withholding. The Company shall withhold from any amounts payable under this Agreement all federal, state, city, or other taxes as
legally required to be withheld.
9.8 Severability.
In the event any provision of this Agreement shall be held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Agreement, and the Agreement shall be construed and enforced as if the illegal or invalid provision
had not been included. Further, the captions of this Agreement are not part of the provisions hereof and shall have no force and effect.
Notwithstanding
any other provisions of this Agreement to the contrary, the Company shall have no obligation to make any payment to the Executive hereunder
to the extent, but only to the extent, that such payment is prohibited by the terms of any final order of a federal or state court or
regulatory agency of competent jurisdiction; provided, however, that such an order shall not affect, impair, or invalidate any provision
of this Agreement not expressly subject to such order
9.9 Future
Employers. While Executive is employed by the Company or any of its Affiliates and for a period of twenty-four (24) months immediately
following the termination of the Executive’s employment for any reason, Executive will inform each new or prospective employer,
prior to accepting employment, of the existence of this Agreement, including the prohibitions contained in Articles 3, 4 and 5, and provide
that employer with a copy of Articles 2, 4 and 5. Executive authorizes the Company to forward a copy of the prohibitions against competition
as contained in Articles 3, 4 and 5 to any actual or prospective new employer.
9.10 Modification.
No provision of this Agreement may be modified, waived, or discharged unless such modification, waiver, or discharge is agreed to in
writing and signed by the Executive and on behalf of the Company, as applicable, or by the respective parties’ legal representatives
or successors.
9.11 Gender
and Number. Except where otherwise indicated by the context, any masculine term used herein shall include the feminine; the plural
shall include the singular and the singular shall include the plural.
| |
9.12 |
Governing Law; Waiver of Jury Trial. |
| (a) | This Agreement
and all actions taken in connection herewith and therewith shall be governed by and construed
in accordance with the laws of the State of Wisconsin without reference to principles of
conflict of laws, except as superseded by applicable federal law; and any court action commenced
to enforce this Agreement shall have as its sole and exclusive venue the County of Waukesha,
Wisconsin. |
| (b) | Except
to the extent prohibited by state law, AS A CONDITION OF ENTERING INTO THIS AGREEMENT, THE
COMPANY AND THE EMPLOYEE IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION,
PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING
ANY EXHIBITS, SCHEDULES, AND APPENDICES ATTACHED TO THIS AGREEMENT. EMPLOYEE HEREBY CERTIFIES
AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE OF THE COMPANY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT THE COMPANY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT
OF A LEGAL ACTION, (ii) THEY HAVE CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) THEY
MAKE THIS WAIVER KNOWINGLY AND VOLUNTARILY, AND (iv) THEY HAVE DECIDED TO EXECUTE THIS
AGREEMENT IN CONSIDERATION OF, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION. |
9.13 Section 409A.
This Agreement shall be interpreted in a manner so that any amount or benefit payable hereunder shall be paid or provided in a manner
that is exempt from the requirements of Code Section 409A. For purposes of Code Section 409A, each installment payment provided
under this Agreement shall be treated as a separate payment. With regard to any provision herein that provides for reimbursement of costs
and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits
shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or
in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be
provided, in any other taxable year, and (iii) such payments shall be made on or before the last day of the taxable year following
the taxable year in which the expense was incurred.
IN WITNESS WHEREOF,
the Company has executed this Agreement on this 1st day of April 2023.
| Executive: |
|
| |
|
| /s/
Brian Spielmann |
|
| Brian
Spielmann |
|
| |
|
| First
Business Financial Services, Inc. |
|
| By: |
|
| |
|
| /s/
Corey Chambas |
|
| Corey
Chambas |
|
| CEO |
|
Exhibit 10.2
March 31, 2023
Dear Ed,
This letter including a Non-Disclosure and Confidentiality
Agreement and an Information Security Agreement which are attached as Exhibits A and B and incorporated herein by reference (this “Agreement”)
sets forth the terms and conditions effective as of April 1, 2023 whereby you (“You”, “Your”) agree to provide
certain services to First Business Bank and/or its subsidiaries and affiliates (the “Company”), (You and the Company
collectively referred to as the “Parties”).
1.
Services.
(a) The
Company hereby engages You, and You hereby accept such engagement, as an independent contractor to provide certain services to the Company
on the terms and conditions set forth in this Agreement.
(b) You
shall provide services on matters relating to the Company’s Bank Consulting business line, as directed by Dave Seiler or other designee
of the Company from time to time (the “Services”). The deliverables (“Services”) include the following:
| · | 75% business development – |
| ○ | Build pipeline of new clients |
| ○ | Collaborate with President of FBCS to set sales goals and targets |
| ○ | Assist with design and enhancement of marketing materials |
| ○ | Attend and participate in conferences and events |
| ○ | Meet with new and existing clients |
| • | 25% existing client support – |
| ○ | Assist with setting asset / liability strategies |
| ○ | Assist with preparation and review of client presentations |
| ○ | Assist with client minutes and documentation |
| ○ | Assist with policy preparation, compliance, and validation review |
| ○ | Other tasks and activities assigned |
(c) You
and Dave Seiler or their designee shall mutually agree to the time(s) and location(s) at which the Services shall be performed.
2. Term.
The term of this Agreement shall commence on April 1, 2023 (the “Effective Date”) and shall terminate
on March 31, 2024. This Agreement may be extended based on the Company’s and business line’s needs by an agreement in
writing signed by both Parties to this Agreement. Either Party may terminate this Agreement at any time and immediately upon giving 30
calendar days written notice of termination to the other Party.
3. Fees
and Expenses.
(a) Except
as otherwise noted in this section, as compensation for the Services the Company shall pay You $6,250 per month, in arrears and on the
last day of each month. The compensation is based on You working an average of 20 hours per week; however, the Parties agree and understand
the hours worked will vary from week to week.
(b) The
Company will reimburse You for out-of-pocket expenses relating to travel, conference fees, office supplies and other related expenses
which have been approved in advance by Dave Seiler or their designee and incurred in connection with the performance of the Services.
4. Relationship
of the Parties.
(a) You
are an independent contractor of the Company, and this Agreement shall not be construed to create any association, partnership, joint
venture, employment, or agency relationship between You and the Company for any purpose. You shall have no authority (and shall not hold
yourself out as having authority) to bind the Company and You shall not make any agreements or representations on the Company’s
behalf without the Company’s prior written consent.
(b) The
Company will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes,
making any insurance contributions, including for unemployment or disability, or obtaining workers’ compensation insurance on your
behalf. You shall be responsible for, and shall indemnify the Company against, all such taxes or contributions, including penalties and
interest.
(c) You
are responsible for maintaining your own insurance coverage including but not limited to property, auto and liability insurance.
5. Assignment.
You shall not assign any rights, or delegate or subcontract any obligations, under this Agreement without the Company’s prior written
consent. Any assignment in violation of the foregoing shall be deemed null and void.
6. Compliance
and Conditions. You shall comply with all federal, state, and local laws, rules, ordinances, and regulations as well as the Company’s
policies including but not limited to its site and security regulations.
7. Indemnification.
You agree to indemnify, defend and hold harmless the Company together with its directors, officers and employees from any and all liabilities,
damages, losses, expenses, including reasonable attorney’s fees and legal costs in any way related to or arising directly or indirectly
from (i) Your negligent acts or omissions or willful misconduct, (ii) a determination by a court or agency that You are not
an independent contractor, (iii) Your failure to comply with all local, State and Federal laws and regulations. This indemnification
obligation shall survive the expiration or termination of this Agreement.
8. Confidentiality
and Non-Public Personal Information. This Agreement is subject to the terms of the attached Non-Disclosure and Confidentiality
Agreement (Exhibit A) and Information Security Agreement (Exhibit B). To the extent You have a need for access to certain confidential
information including but not limited to nonpublic personal information (“Confidential Information”) in order to perform the
Services, You agree that such access will be limited exclusively to that information which is necessary to complete such work, under no
circumstances will any such information be shared with any other third party and You will at all times comply with all state and federal
privacy and confidentiality laws and regulations;
(a) You
shall not directly or indirectly use, disclose, copy or make lists of Confidential Information for the benefit of anyone other than the
Company, either during or after performance of Your Service to the Company under this Agreement, except to the extent such disclosure
is authorized in writing by the Company or required by law or any competent administrative agency or judicial authority. If You receive
a subpoena or other court order or are otherwise required by law to provide information to a governmental authority or other person concerning
the activities of the Company or any of its affiliates, or Your activities in connection with the business of the Company or any of its
affiliates, You shall immediately notify the Company of such subpoena, court order or other requirement and deliver forthwith to the Company
a copy thereof and any attachments and non-privileged correspondence related thereto. You shall take reasonable precautions to protect
against the inadvertent disclosure of Confidential Information. You shall abide by the Company’s reasonable policies, as in effect
from time to time, respecting avoidance of interests conflicting with those of the Company and its affiliates.
(b) You
shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is
made (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and (2) solely
for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed
in a lawsuit or other proceeding, if such filing is made under seal. Accordingly, You have the right to disclose in confidence trade secrets
to federal, state, and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation
of law. You have the right to disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made
under seal and protected from public disclosure. Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or
create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b). Nothing in this Agreement
shall be construed to authorize, or limit liability for, an act that is otherwise prohibited by law, such as the unlawful access of material
by unauthorized means.
(c) Nothing
contained in this Section 8 shall limit Your ability to file a charge or complaint with any governmental, administrative,
or judicial agency (each, an “Agency”) pursuant to any applicable whistleblower statute or program (each, a “Whistleblower
Program”). You acknowledge that this Section 8 does not limit (i) Your ability to communicate, in connection
with a charge or complaint pursuant to any Whistleblower Program with any Agency or otherwise participate in any investigation or proceeding
that may be conducted by such Agency, including providing documents or other information, without notice to the Company, or (ii) Your
right to receive an award for information provided to such Agency pursuant to any Whistleblower Program.
9. Insider
Trading Policy. During the term of this Agreement, You shall be subject to the requirements and restrictions set forth in the
Company’s Insider Trading Policy (the “Policy”) as a “Covered Individual” pursuant to the terms of
the Policy. Additionally, following Your retirement, You will be subject to the rules and regulations promulgated under Section 16
of the Securities Exchange Act of 1934, as amended, in the same manner as all retired Company executive officers are subject.
10. Non-disparagement.
You agree that You will not make, or direct any other person or entity to make, any statements, or otherwise take, or direct any other
person or entity to take, any action intended, or which might reasonably be expected to impair the good will, business reputation or good
name of the Company. Nothing contained in this paragraph shall preclude You from providing truthful testimony pursuant to subpoena or
other legal process.
11. Miscellaneous.
(a) This
Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties
to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements,
representations, and warranties, both written and oral, with respect to such subject matter.
(b) This
Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto, and any of the terms
thereof may be waived, only by a written document signed by each party to this Agreement or, in the case of waiver, by the party or parties
waiving compliance.
(c) This
Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort,
or statute are governed by, and construed in accordance with, the laws of the United States and the State of Wisconsin, without giving
effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application
of the laws of any jurisdiction other than those of the State of Wisconsin. Any litigation arising out of or relating to this Agreement,
or brought to enforce its terms, shall be brought in the United States District Court for the Western District of Wisconsin, if in federal
court, or in the Dane County Circuit Court, if in state court, and Recipient waives any objections to personal jurisdiction and/or venue
for the purpose of such action.
(d) Notices
and electronic execution. All notices and other communications given pursuant to this Agreement shall be in writing and effective when
received. A signature transmitted by electronic means shall be considered an original signature.
(e) Company
Policies. You agree to comply with Company policies including but not limited to the Company’s Code of Ethics, IT Policy, Insider
Trading Policy, those portions of the Company Handbook which are applicable to an independent contractor position and other polices which
may be presented to You from time to time.
(f) Company
Property. You acknowledge that you may have possession and/or use of certain property belonging to the Company, including without limitation,
a Company owned laptop, iPad, iPhone, hardware, software and related devices and applications (“Property”). You shall use
your best efforts to safekeep and prevent unauthorized access to such Property. Immediately upon termination of this Agreement you shall
return to the Company, and shall certify in writing upon request of Company, all Company Property, documents, and all Confidential Information
that are in Your possession or under Your control.
If this letter accurately sets forth our understanding,
kindly execute the enclosed copy of this letter and return it to me.
| |
Sincerely, |
| |
|
| |
First
Business Bank |
| |
|
| |
/s/
Dave Seiler |
| |
By:
Dave Seiler |
| |
Title:
President & Chief Operating Officer |
| |
|
| |
Date: |
March 31, 2023 |
| ACCEPTED
AND AGREED: |
|
| |
|
| /s/
Edward Sloane |
|
| Edward
Sloane |
|
| |
|
| Date: |
March 31,
2023 |
|
