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EXHIBIT 10.4
AGREEMENT
THIS AGREEMENT made and entered into this 16th day of May, 1988, at
Milwaukee, Wisconsin, by and between MUTUAL SAVINGS AND LOAN ASSOCIATION OF
WISCONSIN, hereinafter referred to as the Association, and XXXXXXX X. XXXXXXX,
hereinafter referred to as Xxxxxxx.
WHEREAS, Xxxxxxx has served the Association as a valued employee and
officer for many years and is continuing to serve the Association; and
WHEREAS, Xxxxxxx and the Association entered into an Agreement dated
October 9, 1967 pursuant to which Xxxxxxx agreed to continue providing full-time
services to the Association in consideration for the Association's promise of
payment of monthly income after his termination of employment; and
WHEREAS, the payments to be made under the Agreement were based upon
payments which xxxx be made to the Association under an insurance contract,
Mutual of New York Policy 9332631 (the "Mutual Policy"), which it purchased at
the time it entered into the Agreement; and
WHEREAS, the Association, by assignment to Manufacturer's Life Insurance
Company, has surrendered the Mutual Policy and used its proceeds to acquire a
new policy from the Manufacturer's Life Insurance Company which policy was
issued on September 16, 1983 as Certificate No. 3,670,650-5 (the "Manufacturer's
Policy"); and
WHEREAS, Xxxxxxx and the Association desire to amend and restate the
original Agreement to reflect the benefits available to the Association under
the Manufacturer's Policy;
NOW, THEREFORE, in consideration of the mutual promises of the Association
and Xxxxxxx, as herein expressed, it is agreed as follows:
1. Xxxxxxx will continue in the full-time employ of the Association,
however, Xxxxxxx is not obligated by this Agreement to remain in (nor
is the Association obligated to retain him in) such employment for any
specified period of time.
2. Xxxxxxx will be paid for his services, in addition to his current
salary, deferred compensation after his retirement or death, in such
amounts and subject to such conditions as hereinafter expressed. The
amounts to be paid to Xxxxxxx hereunder (and in certain circumstances
to his beneficiaries hereunder) will be identical in amount to the
amounts payable to the Association under the Manufacturer's Policy.
All proceeds under the Manufacturer's Policy shall be payable to the
Association and all incidents of ownership in such policy are to be
solely vested in the Association, and it shall pay all premiums
currently due
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thereon. Neither Xxxxxxx nor his beneficiaries named herein nor any
legal representative, shall at any time, acquire any right, title or
interest in and to such policy, its proceeds or any other funds or
assets of the Association.
3. (a) Xxxxxxx may retire from the active full-time employment of the
Association as of the 1st day of any month and, commencing with the
date of actual retirement, the Association will pay him a life income
in monthly installments with 240 months certain. Such monthly amounts
shall be equal to the monthly amounts payable to the Association under
the Manufacturer's Policy if it were to exercise the settlement option
under the policy for monthly life income with a 240 month period
certain with payments to commence as of the date of Xxxxxxx'x
retirement.
(b) In the event that Xxxxxxx dies before expiration of 240 months
following retirement, the monthly payments for that 240 month period
described in paragraph 3(a) that may be remaining, in the same amounts
as would have been payable to Xxxxxxx, shall be then paid to his wife,
Xxxxx.
(c) In the event that Xxxxxxx dies prior to retirement, the
Association will pay his wife, Xxxxx, 240 monthly installments
beginning the 1st day of the month following his death equal to the
monthly amounts payable to the Association commencing at the same time
under the Manufacturer's Policy if the Association were to elect a 240
month certain payment option as the form of payment to be made to it
under the policy in the event of Xxxxxxx'x death prior to retirement.
(d) In the event that Xxxxx Xxxxxxx should die before receiving the
remainder of the 240 monthly installments described under whichever of
paragraph (b) or (c) above is applicable, the remaining monthly
payments shall then be paid in equal shares to the children of
Xxxxxxx, namely, Xxxxxxxx Xxxx and Xxxxxxx X. Xxxxxxx, Xx., or to the
survivor of them unless he or she has issue that survive him or her,
in which case his or her share shall vest in his or her surviving
issue, per stirpes.
4. (a) At the request of Xxxxxxx, the Board of Directors of the
Association may, in its absolute discretion, taking into account such
factors as the Board considers relevant, including tax consequences or
other business concerns relevant to the Association, in lieu of the
payment to be provided under paragraph 3(a), provide a different form
of payment to Xxxxxxx. The optional form of payment which the Board of
Directors may, in its discretion, determine to make available in lieu
of the form of payment described in paragraph 3(a) shall be selected
from options available to the Association under the Manufacturer's
Policy. The time and amount of payments payable to Xxxxxxx under this
paragraph 4(a) would be the same as the time and amount of payments
under the Manufacturer's Policy under
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the option actually selected by the Association at Xxxxxxx'x request
pursuant to this paragraph 4(a).
(b) In the event of Xxxxxxx'x retirement and commencement of receipt
of payments under a payment option selected under paragraph 4(a)
above, the payment, if any, to Xxxxx Xxxxxxx upon his death depends
upon whether the payment option selected under paragraph 4(a) above
provides for a payment or payments following the death of Xxxxxxx. For
example, if Xxxxxxx were to request and the Board were to approve a
lump sum distribution under paragraph 4(a), then, upon Xxxxxxx'x
death, nothing would be payable to Xxxxx Xxxxxxx. In the event that
the payment option selected under paragraph 4(a) above does provide
for a continuing payment to Xxxxx Xxxxxxx, whether upon her death any
payments would continue to Xxxxxxxx Xxxx and/or Xxxxxxx X. Xxxxxxx,
Xx., or their issue as described in paragraph 3(d) would depend on
whether the payment option selected under paragraph 4(a) above
provides for continuing payments upon the death of Xxxxx Xxxxxxx. For
example, if the option requested by Xxxxxxx and approved by the Board
were a joint and survivor annuity form of payment based upon Xxxxxxx'x
life and the life of Xxxxx Xxxxxxx, following the death of both
Xxxxxxx and Xxxxx Xxxxxxx, nothing would be payable to Xxxxxxxx Xxxx
or Xxxxxxx X. Xxxxxxx, Xx. or their issue. The time and amount of
payments, if any, under this paragraph 4(b) would be the same as the
payments to the Association under the Manufacturer's Policy under the
settlement option selected under paragraph 4(a) above in the event of
the death of Xxxxxxx (and, following his death, the death of Xxxxx
Xxxxxxx).
(c) In the event of Xxxxxxx'x death prior to retirement and upon the
request of Xxxxx Xxxxxxx, the Board of Directors of the Association,
in its absolute discretion, taking into account such factors as it
deems relevant, including tax consequences and business concerns
relevant to the Association, may provide a different form of payment
to Xxxxx Xxxxxxx in lieu of the 240 monthly installment payments
described in paragraph 3(c) above. The form of such payments to be
provided shall be selected by the Board of Directors from one of the
other payment options available under the Manufacturer's Policy in the
circumstance of Xxxxxxx'x death prior to retirement. The time and
amount of payments under the paragraph 4(c) to Xxxxx Xxxxxxx would be
the same as the payments to the Association under the Manufacturer's
Policy under the settlement option selected by the Board at Xxxxx
Xxxxxxx'x request pursuant to this paragraph 4(c). In the event under
the option selected by Xxxxx Xxxxxxx continuing payments remain due
after her death, such payments shall be continued in equal shares to
Xxxxxxxx Xxxx and Xxxxxxx X. Xxxxxxx, Xx., or to the survivor of them
unless he or she has issue that survives him or her, in which case,
his or her share shall vest in his or her surviving issue, per
stirpes; the time and amount of payments to such persons would be the
same as the payments, if any, to the Association under the
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Manufacturer's Policy under the settlement option selected by the
Board pursuant to this paragraph 4(c) upon the death of Xxxxx Xxxxxxx.
5. In the event that both Xxxxxxx and Xxxxx Xxxxxxx die prior to
commencement of payments to either of them, the Association shall pay
a single lump sum to be divided in equal shares to Xxxxxxxx Xxxx and
Xxxxxxx X. Xxxxxxx, Xx. or to the survivor of them unless he or she
has issue that survive him or her, in which case, his or her share
shall vest in his or her surviving issue, per stirpes. The amount of
the payment to be so divided shall be equal to what the Association
would receive in a single lump sum under the Manufacturer's Policy as
a result of the death of both Xxxxxxx and Xxxxx Xxxxxxx prior to
commencement of payments to either of them.
6. Xxxxxxx, during such period as he receives payments from the
Association, shall not render services to or permit the use of his
name by any other savings and loan association or other business
engaged in a similar line of business as the Association or in
competition with it.
Xxxxxxx shall, during such period while receiving payments, be
reasonably available for consultation by the Association's management
and personnel which shall be in addition to any service, counsel and
advice he may render to the Association as a member of its Board of
Directors.
In the event that Xxxxxxx fails to comply with the provisions hereof
and this breach shall continue for a period of 30 days after notice in
writing to cease or desist from the competition restricted above or to
provide the consulting services as herein required, then the
Association may suspend in whole or in part, one or more of his
payments or discontinue them in their entirety, and the amount of any
and all payments thus suspended or discontinued shall be forfeited.
However, it shall not be considered a breach or violation of this
Agreement if Xxxxxxx'x failure to provide the consulting services, is
due to reasons of health, including physical or mental infirmity, or
if compliance with such condition would subject him to more than
nominal expenses or loss of income.
7. Nothing in this Agreement shall prevent Xxxxxxx from receiving any
monies that may be due him under any pension or other incentive plan
of the Association now in effect or which may be hereafter adopted,
nor any fees or reimbursement for his expenses that may be paid to him
while serving as a member of the Board of Directors of the
Association.
8. Neither Xxxxxxx nor his legal representative, wife or any other
beneficiary shall have any right to commute, sell, assign, transfer or
otherwise convey the right to receive any payments hereunder, which
payments and the right thereto are
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expressly declared to be non-assignable and non-transferable, and in
the event of any attempted assignment or transfer, the Association
shall have no further liability hereunder.
9. This Agreement amends, restates and replaces the prior Agreement made
between Xxxxxxx and the Association on October 9, 1967.
10. During the lifetime of Xxxxxxx, this Agreement may be amended or
revoked at any time or times, in whole or in party, by the mutual
written agreement of Xxxxxxx and the Association.
This Agreement shall be binding upon the parties hereto, their heirs, legal
representatives or successors
This Agreement executed in duplicate by Xxxxxxx and the Association on the
date first above written
MUTUAL SAVINGS AND LOAN
ASSOCIATION OF WISCONSIN
(Corporate Seal)
By: /s/ Xxxxxx X. Xxxxxx
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Title: Sr. Vice President/Finance
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Attest: /s/ Xxxxxxx Zyperman
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Title: Secretary
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/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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