exv10wk



 






EXHIBIT (10)(k)




NONCOMPETE AGREEMENT




     THIS NONCOMPETE AGREEMENT (this “Agreement”) is dated as of October 29, 2004 by and among
ASSOCIATED BANC-CORP., a Wisconsin corporation (“Associated”) and JACK C. RUSCH (“Mr. Rusch”).



RECITALS




     A. Mr. Rusch owns shares of the issued and outstanding common stock of First Federal Capital
Corp., a Wisconsin corporation, the sole shareholder of First Federal Capital Bank (collectively,
“First Federal”).



     B. First Federal engaged in the business of providing financial services (the “Business”).



     C. Associated and First Federal are parties to that certain Agreement and Plan of Merger dated
as of the date hereof (the “Merger Agreement”) pursuant to which First Federal will be merged with
and into Associated and Associated shall continue as the surviving corporation.



     D. Mr. Rusch acknowledges that he has (1) been an executive level employee of First Federal
(2) had access to confidential information of First Federal and (3) extensive experience and
knowledge of the Business that he could use to compete with Associated (as successor to First
Federal) after the Closing Date (as defined in the Merger Agreement).



     E. Associated and Mr. Rusch acknowledge that their entry into this Agreement is a condition to
the consummation of the transactions contemplated by the Merger Agreement. Mr. Rusch further
acknowledges that he has entered into a Consulting Agreement (attached hereto as Exhibit A), the
term of which runs concurrently with the obligations contained herein, and that entry into this
Agreement is a condition of Associated entering into the Consulting Agreement. Mr. Rusch
acknowledges that during the term of the Consulting Agreement, he owes Associated a common law duty
of loyalty, in addition to the obligations contained herein.



     F. Associated and Mr. Rusch deem it to be in the best interest of all parties to limit the
ability of Mr. Rusch to compete with Associated after the date hereof as a result of the
consummation of the transactions contemplated by the Merger Agreement.



 









 





AGREEMENTS




     In consideration of the Recitals and mutual promises set forth below and other good and
valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties
agree as follows:



     1. Consideration. Mr. Rusch shall receive $62,500 per month over the term of this
Agreement in exchange for agreeing to the terms of this Agreement (the “Noncompete Payments”). Mr.
Rusch acknowledges and agrees that the benefits and consideration he will receive as a result of
the consummation of the transactions contemplated by the Merger Agreement constitute adequate and
sufficient consideration for their covenants contained in this Agreement. Mr. Rusch acknowledges
that Associated would not consummate the transactions contemplated by the Merger Agreement if Mr.
Rusch did not agree to be bound by the provisions contained in this Agreement. In the event of the
death of Mr. Rusch, Associated shall continue to pay to the estate of Mr. Rusch the Noncompete
Payments through the term of this Agreement. Associated may prepay such payments without penalty.



     2. Noncompete Provisions.



          (a) Certain Definitions. For purposes of this Agreement, “Territory” means the
counties in which First Federal or its subsidiaries currently has an office. For purposes of this
Agreement, “Customer of First Federal” means any individual or entity to which First Federal
provided products or services at any time during the two year period prior to the Closing Date or
which First Federal actively solicited for the purpose of providing products or services during the
two year period prior to the Closing Date.




          (b) Noncompete. During the period commencing on the Closing Date (as defined in the
Merger Agreement) and ending on the second anniversary of the Closing Date, Mr. Rusch will not,
directly or indirectly, either individually or as an employee, officer, principal, agent, partner,
owner, trustee, beneficiary, co-venturer, distributor, consultant or in any other capacity, (i)
within the Territory, participate in, become associated with, provide assistance to, engage in, or
have a financial or other interest in any business, activity, enterprise or entity, which competes
with the Business or any other business of First Federal (or Associated as successor to First
Federal) that relates or is complimentary or supplemental to the Business, (ii) within the
Territory, advertise, promote or otherwise endorse any second party products and/or services which
compete with the Business or any other business of First Federal (or Associated as successor to
First Federal)or supplemental to the Business or (iii) canvass, contact, solicit or do


 









 







business with any Customer of First Federal for the purpose of providing products or services
similar to or competitive with those provided by First Federal (or Associated as successor to First
Federal).




          (c) Limitations. The ownership of less than a 5% interest in an entity whose
securities are traded in a recognized stock exchange or traded in the over-the-counter market, even
though that entity is competitive with the Business, shall not be a breach of paragraph 2(b) of
this Agreement.




     3. Confidential Information and Trade Secrets.



          (a) Certain Definitions.




               (i) For purposes of this Agreement, “Confidential Information” means information, to the
extent it is not a trade secret, that is possessed by or developed for First Federal (or Associated
as successor to First Federal) and that relates to the business or technology, including but not
limited to, Inventions (as defined below), business plans and strategies, existing or proposed
bids, technical or engineering developments, existing or proposed research projects, financial or
business projections, investments, marketing plans and strategies, pricing and cost information,
negotiation strategies, training information and materials, employee compensation and other
employee information, customer or potential customer lists, customer accounts or customer account
history and information generated for customer engagements. Confidential Information also includes
information received by First Federal (or Associated as successor to First Federal) from others
which either has an obligation to treat as confidential, including all information obtained in
connection with customer engagements. Confidential Information shall not include information that
is generally known to the public as of the date of this Agreement.



               (ii) For purposes of this Agreement, “Inventions” means all inventions, original works of
authorship, developments, concepts, improvements, designs, discoveries, ideas, processes,
techniques, formula, trademarks, data and other intellectual property other than trade secrets
(whether or not protectible under intellectual property laws or similar laws), made solely by Mr.
Rusch (or jointly with others) while Mr. Rusch owned securities of First Federal that [a] relate to
First Federal’s business services or activities, [b] were developed or conceived in connection with
Mr. Rusch’s ownership of securities of First Federal or [c] were developed or conceived using First
Federal’s assets.



          (b) Nondisclosure. Mr. Rusch agrees that until the first to occur of (i) such time as
the Confidential Information becomes generally available to the public through no fault of Mr.
Rusch, or any other person under a duty of


 









 







confidentiality to First Federal or Associated, (ii) such time as the Confidential Information
no longer provides a benefit to Associated, or (iii) the second anniversary of the Closing Date,
Mr. Rusch will not, directly or indirectly, use or disclose, or cause to be used or disclosed, in
any geographic area in which such use or disclosure could harm Associated’s existing or potential
business interests, any Confidential Information.




          (c) Trade Secrets. Notwithstanding the foregoing paragraph, the parties agree that
nothing in this Agreement shall be construed to limit or negate any statutory or common law of
torts or trade secrets, where such law provides Associated with broader protection than that
provided in this Agreement. Following the Closing Date, Mr. Rusch shall take all steps that are
reasonably necessary to prevent unauthorized misappropriation or disclosure of First Federal’s (or
Associated as successor to First Federal) trade secrets and shall not use or disclose such trade
secrets as long as they remain trade secrets.




     4. Acknowledgements Regarding Confidential Information and Trade Secrets. Mr. Rusch
agrees and acknowledges that the Confidential Information has been established, maintained and
protected by First Federal (and Associated as successor to First Federal) at great expense, is
valuable to each party, and will provide such parties with a substantial competitive advantage in
conducting the Business. Mr. Rusch acknowledges and agrees that the Confidential Information and
all of First Federal’s (and Associated as successor to First Federal) trade secrets are part of the
assets of First Federal being transferred to Associated pursuant to the Merger Agreement. To the
extent Mr. Rusch has not already done so, Mr. Rusch hereby assigns to First Federal (and Associated
as successor to First Federal) all of Mr. Rusch’s right, title and interest in and to any and all
Inventions and trade secrets, whether or not patentable or registrable under copyright or similar
laws, which Mr. Rusch may solely or jointly have conceived, developed or reduced to practice, or
caused to be conceived, developed or reduced to practice, during Mr. Rusch’s ownership of
securities of First Federal. Mr. Rusch agrees to take such additional actions and execute such
additional documents as may be necessary or appropriate to effectuate the foregoing assignments.
Mr. Rusch further acknowledges that all original works of authorship which were made by Mr. Rusch
(solely or jointly with others) on behalf of or at the request of First Federal while Mr. Rusch
owned securities of First Federal and which are protectible by copyright are “works made for hire,”
as that term is defined in the United States Copyright Act.



     5. Relations with Suppliers and Vendors. During the period commencing on the Closing
Date and ending on the second anniversary of the Closing Date, Mr. Rusch will not, directly or
indirectly, cause, request, or advise



 









 







any supplier or vendor of First Federal (or Associated as successor to First Federal) to curtail or
cancel its business with Associated.



     6. Relations with Employees. During the period commencing on the Closing Date and
ending on the second anniversary of the Closing Date, Mr. Rusch will not, directly or indirectly,
induce or attempt to induce any employee, officer, director, sales or other representative,
consultant, independent contractor or other agent of First Federal (or Associated as successor to
First Federal) who had a relationship with First Federal prior to the Closing Date to terminate
his, her or its relationship with Associated or breach his, her or its agreements with Associated.
Nothing in this Agreement shall otherwise prohibit Mr. Rusch’s future employer from hiring such
individuals without Mr. Rusch’s involvement.



     7. Specific Performance. Mr. Rusch acknowledges and agrees that irreparable injury to
Associated may result in the event that Mr. Rusch breaches any covenant in this Agreement, and that
the remedy at law for the breach of any such covenant will be inadequate. If Mr. Rusch engages in
any act in violation of any provision of paragraph 2(b), 3(b), 3(c), 5 or 6, Mr. Rusch agrees that
Associated shall be entitled, in addition to such other remedies and damages that may be available
to it by law or under this Agreement, to injunctive relief to enforce such provisions without the
necessity of posting a bond.



     8. Miscellaneous.



          (a) All provisions in this Agreement, including subparagraphs, are severable, and the
unenforceability of any provision shall not affect the enforceability of any other provision. The
parties agree that each covenant contained in paragraphs 2(b), 3(b), 3(c), 5 and 6 is separate and
independent.




          (b) Associated may assign this Agreement to a successor entity without notification to, or the
consent of Mr. Rusch. This Agreement shall be binding upon Mr. Rusch, and shall inure to the
benefit of Associated, its successors and assigns. Mr. Rusch shall not assign the Agreement
without prior consent from Associated.




          (c) The failure by Associated to enforce any right or remedy available to it under this
Agreement shall not be construed to be a waiver of such right or remedy with respect to any other
prior, concurrent or subsequent breach or failure. No waiver of rights under this Agreement shall
be effective unless made in writing.




 









 








          (d) This Agreement shall be governed by and construed in accordance with the laws of the State
of Wisconsin.




          (e) This Agreement was jointly drafted by the parties hereto and no rules of strict
construction shall be applied against any party.




Dated as of the date first written above.



	 	 	 	 	 
	 	 	ASSOCIATED
BANC-CORP.:


	 	 	

	 
	 	 	 	 
	

	 	BY  
	/s/ Brian R. Bodager
	

	 	 	 	 
	

	 	 	Its    	 
	 
	 	 	 	 
	 	 	JACK C. RUSCH:
	 
	 	 	 	 
	 	 	/s/ Jack C. Rusch