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EXHIBIT 10.11(a)
BKMU 2000 10-K
SUPPLEMENTAL RETIREMENT AGREEMENT
THIS SUPPLEMENTAL RETIREMENT AGREEMENT ("Agreement") is made and
entered into as of the day of , 1994 (the "Effective Date"), by
and between First Northern Savings Bank, S.A., a Wisconsin chartered capital
stock savings and loan association (hereinafter referred to as "Employer"), and
(hereinafter referred to as "Executive").
WHEREAS, Executive has made a considerable and significant contribution
to the success and development of Employer; and
WHEREAS, Executive and Employer have agreed that it is in their mutual
best interest to enter into this Agreement to provide Executive with
supplemental retirement benefits to encourage Executive's continued employment.
NOW, THEREFORE, for good and valuable consideration which is hereby
acknowledged by Executive and Employer, the parties hereto hereby agree as
follows:
1. Definitions
1.1 Age. "Age" shall mean the age of the Executive as of the
Executive's most recent birthday.
1.2 Base Monthly Benefit. "Base Monthly Benefit" means $
per month.
1.3 Board. "Board" shall mean the Board of Directors of the
Employer.
1.4 Change in Control. A "Change in Control" shall mean the
occurrence of any of the following events:
(a) A change in directors, which shall be deemed to have
occurred if, during any period of two (2) consecutive years, the
individuals, who at the beginning of any such period constituted the
directors of Employer, cease for any reasons to constitute at least a
majority thereof.
(b) There is any Successor.
(c) The filing by Employer of a report or proxy statement with
the Office of Thrift Supervision ("OTS"), Federal Deposit Insurance
Corporation, the Securities and Exchange Commission or other
appropriate federal regulatory agency disclosing in response to Item 1
of Form 8-K or Item 5 of Part II of Form 10-Q, each promulgated
pursuant to the Securities Exchange Act of 1934, as amended ("Exchange
Act"), or Item 6(e) of Schedule 14A promulgated thereunder, or
comparable or successor Forms, Schedules or Items of the appropriate
federal regulatory agency, that a Change in Control of Employer has or
may have occurred pursuant to any contract or transaction; or
(d) The determination that any individual, group of persons,
partnership, corporation or other organization has acquired "control"
of Employer as defined in Section 574.4 of the Rules and Regulations
issued by the OTS under the Home Owners' Loan Act, as amended (the
"Regulations") or other comparable rule or regulation of the
appropriate federal regulatory agency; provided, however, that if such
individual, group of persons, partnership, corporation or other
organization, or any of them, shall be required to file an application
with the OTS (or other appropriate federal regulatory agency) as
required by Section 574.3 of the
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Regulations (or other comparable rule or regulation promulgated by the
appropriate federal regulatory agency) as a condition to their
acquisition of title of any of such voting securities, the acquisition
of such control for purposes of this paragraph (d), of such voting
securities shall not be deemed to have occurred until the OTS (or other
appropriate federal regulatory agency) shall have given its approval.
1.5 Committee. "Committee" shall mean the committee designated by the
Board and shall initially be the Compensation Committee of the Board.
1.6 Successor "Successor" shall mean any successor in interest,
including without limitation, any entity, individual or group of persons
acquiring directly or indirectly all or substantially all of the business or
assets of Employer whether by sale, merger, consolidation, reorganization or
otherwise.
1.7 Total and Permanent Disability. "Total and Permanent Disability"
means that Executive is unable to perform each of the material duties of his or
her employment under this Agreement, by reason of any disability, illness,
accident or condition, for a period of more than six consecutive months during
any twelve-month period, which is expected to continue for more than one year as
certified by a medical doctor of Executive's own choosing and concurred in by a
doctor of Employer's choosing. If there is any dispute as to whether Executive
is Totally and Permanently Disabled within the meaning of this Section 1.7, such
dispute shall be submitted to a licensed physician agreeable to the parties who
shall conduct an examination of Executive for the purpose of resolving such
dispute; provided, however, that if the parties cannot agree upon a physician
within sixty (60) days after written notice by either party to the other, a
physician designated by the then President of the Medical Society of Xxxxx
County, Wisconsin shall conduct such examination. Employee shall submit to such
examination and the determination of such physician as to whether Executive is
Totally and Permanently Disabled within the meaning of this Section 1.7 will be
binding and conclusive on the parties.
1.8 Years of Service. "Years of Service" means the number of completed
years of service with the Employer or any successor measured from Executive's
date of employment to Executive's termination of employment (rounding up for
fractional years of six months or more and rounding down for fractional years of
less than six months).
2. Supplemental Retirement Benefits
2.1 Eligibility for Benefits. The Employer shall pay Executive a
supplemental retirement benefit if Executive continues in employment with the
Employer until:
(a) such time as the sum of Executive's Age and Years of Service
total 80,
(b) a Change in Control,
(c) Executive's death, or
(d) Executive's Total and Permanent Disability.
Payments shall commence on the first day of the month next following the earlier
of Executive's attainment of age 65 or Executive's death. Payments shall
continue on the first day of each month thereafter until a total of 180 monthly
payments have been made to Executive or Executive's beneficiary. The
supplemental retirement benefit payable to Executive under this Section 2.1
shall be the Base Monthly Benefit; provided, however that if benefits commence
prior to Executive's attainment of age 65 because of Executive's death, the
monthly benefit payable shall be reduced to reflect the early commencement of
benefits using a 6% discount rate. The amount payable in such event shall be
equal to the amount which, if compounded monthly at a rate of 6% per year, would
be equal to the Base Monthly Benefit payable on the first day of the month
following Executive's attainment of age 65. For example, if Executive has a Base
Monthly Benefit of $2,000 and benefits commence under this Agreement on the
first day of the month following Executive's
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attainment of age 55 and continue for 180 months, the monthly benefit following
the adjustment will be $1,099.27. (See attachment for calculation.)
2.2 Acceleration of Benefits. If Executive becomes entitled to benefits
under Section 2.1, Executive may submit a request to the Committee to have his
or her supplemental retirement benefits commence earlier than the time otherwise
provided in Section 2.1 and/or to have his or her benefits paid over a period
shorter than 180 months. The Committee, in its absolute discretion, shall decide
whether to grant such request. In the event the Committee grants Executive's
request, the amount of Executive's monthly payment shall be adjusted to reflect
such acceleration using a 6% discount rate (compounded monthly). For example, if
Executive has a Base Monthly Benefit of $2,000 and the Committee consents to
Executive's request to have payments commence on the first day of the month
following Executive's attainment of age 55 and to continue for 60 months (5
years), the monthly benefit following the adjustment will be $2,518.42. (See
attachment for calculation.)
2.3 Other Termination; No Benefit. No benefits shall be payable under
this Agreement if Executive terminates employment with the Employer prior to:
(a) such time as the sum of Executive's Age and Years of Service total 80, (b) a
Change in Control, (c) Executive's death, and (d) Executive's Total and
Permanent Disability.
3. Designation of Beneficiary.
Executive shall have the right to designate a beneficiary or
beneficiaries to receive any benefit provided for herein. Such designation of
beneficiary shall be delivered in writing to Employer, and may be changed by
Executive at any time by written notice delivered to Employer. If no beneficiary
has been designated or if the designated beneficiary does not survive Executive,
the benefit shall be payable to Executive's estate. If the beneficiary or
beneficiaries who survive Executive die before receiving the full amount of any
benefits payable hereunder, such benefits shall be paid to the estate of the
last such beneficiary to die.
4. No Trust Created.
Nothing contained in this Agreement, and no action taken pursuant to
the provisions of this Agreement, shall create or be construed to create a trust
of any kind, or a fiduciary relationship between the Employer and Executive, his
or her designated beneficiary or any other person. Any funds which may be
invested or assets which may be acquired by Employer relating to this Agreement
shall continue for all purposes to be a part of the general funds of Employer
and no person other than Employer shall by virtue of the provisions of this
Agreement have any interest in such funds or assets. To the extent that any
person acquires a right to receive payment from Employer under this Agreement,
such right shall be no greater than the right of any unsecured general creditor
of Employer.
5. Insurance Funding.
The Employer, in its discretion, may apply for and procure as owner and
for its own benefit, insurance on the life of the Executive in such amounts and
in such forms as the Employer may choose. The Executive shall have no interest
whatsoever in any such policy or policies, but the Executive shall, as a
condition precedent to the receipt of any benefits under this Agreement,
cooperate with the Employer in undergoing any medical examinations and providing
any information reasonably necessary in connection with such insurance policies.
6. Claims Procedure.
If the Executive or the Executive's beneficiary (hereinafter referred
to as a "Claimant") is denied all or a portion of an expected benefit under this
Agreement for any reason, he or she may file a claim with the Committee. The
Committee shall notify the Claimant within 60 days of allowance or denial of the
claim, unless the Claimant receives written notice from the Committee prior to
the end of the sixty (60) day period stating that special circumstances require
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an extension of the time for decision. Such notice shall be in writing, sent by
mail to Claimant's last known address and, if a denial of the claim, must
contain the following information:
a) the specific reasons for the denial;
b) specific reference to pertinent provisions of the Agreement on
which the denial is based; and
c) if applicable, a description of any additional information or
material necessary to perfect the claim, an explanation of why such
information or material is necessary, and an explanation of the claim
review procedure.
7. Review Procedures.
A Claimant is entitled to request a review of any denial of his or her
claim by the Committee. The request for review must be submitted in writing
within 60 days of the mailing of the notice of denial. Absent a request for
review within the 60-day period, the claim will be deemed to be conclusively
denied. The Claimant or his or her representatives shall be entitled to review
all pertinent documents, and to submit issues and comments orally and in
writing.
If the request for review by a Claimant concerns the interpretation and
application of the provisions of this Agreement and the Employer's obligations,
then the review shall be conducted by the entire Board. The Board shall afford
the Claimant a hearing and the opportunity to review all pertinent documents and
submit issues and comments orally and in writing and shall render a review
decision in writing, all within sixty (60) days after receipt of a request for a
review, provided that, in special circumstances (such as the necessity of
holding a hearing) the Board may extend the time for decision by not more than
sixty (60) days upon written notice to the Claimant. The Claimant shall receive
written notice of the Board's review decision, together with specific reasons
for the decision and reference to the pertinent provisions of this Agreement.
8. Successors and Binding Agreements.
(a) This Agreement shall be binding upon and inure to the benefit
of Employer and any Successor of or to Employer, but shall not
otherwise be assignable or delegatable by Employer.
(b) This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees and
legatees.
(c) Employer shall require any Successor to agree (by agreement in
form and substance satisfactory to Executive) within thirty (30) days
after becoming a Successor to perform this Agreement to the same extent
as the original parties would be required if no succession had
occurred.
(d) This Agreement is personal in nature and neither of the
parties shall, without the consent of the other, assign, transfer or
delegate this Agreement or any rights or obligations hereunder except
as expressly provided in this Section 8.
9. Termination or Suspension as Required by Law.
Notwithstanding anything in this Agreement to the contrary, the
following provisions shall limit the obligation of Employer hereunder, but only
to the extent required by the applicable regulations of the OTS (12 C.F.R.
563.39), or similar succeeding regulations:
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(a) In the event that Employer is in "default" (as defined in
section 3(x)(1) of the Federal Deposit Insurance Act, 12 U.S.C. ss.1813
(x)(1)), all obligations hereunder shall terminate as of the date of
said default.
(b) If Executive is suspended and/or temporarily prohibited from
participating in the conduct of Employer's affairs by a notice served
under section 8(e)(3) or section 8(g)(1) of the Federal Deposit
Insurance Act (12 U.S.C. xx.xx. 1818(e)(3) and (g)(1)), Employer's
obligations under this Agreement shall be suspended as of the date of
service of such notice, unless such suspension is stayed by appropriate
proceedings. If the charges in the notice are dismissed, Employer may
in its discretion (i) pay Executive all or part of the compensation
withheld while its obligations hereunder were suspended, and (ii)
reinstate (in whole or in part) any of its obligations which were
suspended.
(c) If Executive is removed and/or permanently prohibited from
participating in the conduct of Employer's affairs by an order issued
under section 8(e)(4) or section 8(g)(1) of the Federal Deposit
Insurance Act (12 U.S.C. xx.xx. 1818 (e)(4) or (g)(1)), all obligations
of Employer hereunder shall terminate as of the effective date of the
order.
(d) All obligations under this Agreement shall be terminated,
except to the extent determined that continuation of this Agreement is
necessary for the continued operation of Employer, (i) by the Director
of OTS, or his or her designee, at the time the FDIC or the Resolution
Trust Corporation ("RTC") enters into an agreement to provide
assistance to or on behalf of Employer under the authority contained in
section 13(c) of the Federal Deposit Insurance Act; or (ii) by the
Director of OTS or, his or her designee, at the time the Director, or
his or her designee, approves a supervisory merger to resolve problems
related to the operation of Employer or when Employer is determined by
the Director of OTS to be in an unsafe or unsound condition.
Any rights of the Executive which have vested, including those which
vest upon termination of this Agreement, shall not be affected by termination
under this section.
10. Limitations on Termination Compensation.
(a) In the event that the benefits payable to the Executive under
this Agreement or any other payments or benefits received or to be
received by the Executive from the Employer (whether payable pursuant
to the terms of any plan, agreement or arrangement with the Employer)
or any corporation ("Affiliate") affiliated with the Employer within
the meaning of Section 1504 of the Internal Revenue Code of 1986, as
amended (the "Code"), in the opinion of tax counsel selected by the
Employer's independent auditors and acceptable to the Executive,
constitute "parachute payments" within the meaning of Section
280G(b)(2) of the Code, and the present value of such "parachute
payments" equals or exceeds three (3) times the average of the annual
compensation payable to the Executive by the Employer (or an Affiliate)
and includible in the Executive's gross income for federal income tax
purposes for the five (5) calendar years preceding the year in which a
change in ownership or control of the Employer occurred ("Base
Amount"), such benefits under this Agreement shall be reduced to an
amount the present value of which (when combined with the present value
of any other payments or benefits otherwise received or to be received
by the Executive from the Employer (or an Affiliate) that are deemed
"parachute payments") is equal to 2.99 times the Base Amount,
notwithstanding any other provision to the contrary in this Agreement.
The benefits under this Agreement shall not be reduced if (A) the
Executive shall have effectively waived his or her receipt or enjoyment
of any such payment or benefit which triggered the applicability of
this section, or (B) in the opinion of tax counsel, the benefits under
this Agreement (in their full amount or as partially reduced, as the
case may be) plus all other payments or benefits which constitute
"parachute payments" within the meaning of Section 280G(b)(2) of the
Code are reasonable compensation for services actually rendered, within
the meaning of Section 280G(b)(4) of the Code, and such payments are
deductible by the Employer. The Base Amount shall include every type
and form of compensation includible in the Executive's gross income in
respect of his or her employment by
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the Employer (or an Affiliate), except to the extent otherwise provided
in temporary or final regulations promulgated under Section 280G(b) of
the Code. For purposes of this Section, a "change in ownership or
control" shall have the meaning set forth in Section 280G(b) of the
Code and any temporary or final regulations promulgated thereunder. The
present value of any non-cash benefit or any deferred cash payment
shall be determined by the Employer's independent auditors in
accordance with the principles of Sections 280G(b)(3) and (4) of the
Code.
(b) The Executive shall have the right to request that the
Employer obtain a ruling from the Internal Revenue Service ("Service")
as to whether any or all payments or benefits determined by such tax
counsel are, in the view of the Service, "parachute payments" under
Section 280G. If a ruling is sought pursuant to the Executive's
request, no benefits payable under this Agreement shall be made to the
Executive until after fifteen (15) days from the date of such ruling.
For purposes of this section, the Executive and the Employer agree to
be bound by the Service's ruling as to whether payments constitute
"parachute payments" under Section 280G. If the Service declines, for
any reason, to provide the ruling requested, the tax counsel's opinion
provided in (a) above with respect to what payments or benefits
constitute "parachute payments" shall control, and the period during
which the benefits under this Agreement may be deferred shall be
extended to a date fifteen (15) days from the date of the Service's
notice indicating that no ruling would be forthcoming.
(c) In the event that Section 280G, or any successor statute, is
repealed, this section shall cease to be effective on the effective
date of such repeal. The parties to this Agreement recognize that final
regulations under Section 280G of the Code may affect the amounts that
may be paid under this Agreement and agree that, upon issuance of such
final regulations, this Agreement may be modified as in good faith
deemed necessary in light of the provisions of such regulations to
achieve the purposes of this Agreement, and that consent to such
modifications shall not be unreasonably withheld.
(d) Any payments made to the Executive pursuant to this Agreement,
or otherwise, are subject to and conditioned upon their compliance with
section 18(k) of the Federal Deposit Insurance Act (12 USC ss. 1828(k))
and any regulations promulgated thereunder.
11. Legal Fees And Expenses.
It is the intent of Employer that Executive not be required to incur
the expenses associated with the enforcement of his or her rights under this
Agreement by litigation, arbitration or other legal action because the cost and
expense thereof would substantially detract from the benefits intended to be
extended to Executive hereunder. Accordingly, if it should appear to Executive
that Employer has failed to comply with any of its obligations under this
Agreement or in the event that Employer or any other person takes any action to
declare this Agreement void or unenforceable, or institutes any litigation,
arbitration or other legal action designed to deny, or to recover from
Executive, the benefits intended to be provided to Executive hereunder, Employer
irrevocably authorizes Executive from time to time to retain counsel of his or
her choice, at the expense of Employer as hereafter provided, to represent
Executive in connection with the initiation or defense of any litigation,
arbitration or other legal action, whether by or against Employer or any
director, officer, shareholder or other person affiliated with Employer, in any
jurisdiction. Notwithstanding any existing or prior attorney-client relationship
between Employer and such counsel, Employer irrevocably consents to Executive's
entering into an attorney-client relationship with such counsel, and in that
connection Employer and Executive agree that a confidential relationship shall
exist between Executive and such counsel. Employer shall pay and be solely
responsible for reasonable and necessary attorneys' and related fees and
expenses incurred by Executive as a result of Employer's failure to perform this
Agreement or any provision thereof or as a result of Employer or any person
contesting the validity or enforceability of this Agreement or any provision
thereof as aforesaid, but only if Executive obtains a final legal judgment or
settlement in his or her favor. All fees and expenses due hereunder shall be
paid upon presentation by Executive to Employer of a statement or statements
prepared by such counsel and containing such information and detail as may be
requested by Employer.
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12. Entire Agreement.
This Agreement supersedes any other agreements, oral or written,
between the parties with respect to the payment of supplemental retirement
benefits by Employer to Executive, and contains all of the agreements and
understandings between the parties with respect to such supplemental retirement
benefits. Any waiver or modification of any term of this Agreement shall be
effective only if it is signed in writing by both parties.
13. Withholding of Taxes.
Employer may withhold from any amounts payable under this Agreement all
federal, state, city or other taxes as shall be required pursuant to any law or
government regulation or ruling. Executive agrees that in the event employment
taxes become payable on the benefits provided hereunder prior to the time
benefits are paid, the Employer may withhold such taxes from any other amounts
due to Executive.
14. Notices.
Any notice to be given hereunder by either party to the other may be
made by personal delivery in writing or by mail, registered or certified,
postage prepaid with return receipt requested. Mailed notices shall be addressed
to the parties at the addresses appearing below, but each party may change his
or her or its address by written notice in accordance with this paragraph.
Notices delivered personally shall be deemed communicated as of actual receipt;
mailed notices shall be deemed communicated five (5) days after the date of
mailing.
If to Employer, addressed to:
First Northern Savings Bank, S.A.
000 Xxxxx Xxxxxx Xxxxxx
X.X. Xxx 00000
Xxxxx Xxx, XX 00000-0000
Attention: Corporate Secretary
If to Executive, addressed to:
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15. Governing Law.
This Agreement shall be construed in accordance with and governed by
the laws of the State of Wisconsin and, to the extent applicable, of the United
States.
16. Incapacity.
If Employer shall reasonably and in good faith find that any person to
whom any payment is payable under this Agreement is unable to care for his or
her affairs because of illness or accident, or is a minor, any payment due
(unless a prior claim therefor shall have been made by a duly appointed
guardian, committee, or other legal representative) may be paid to the spouse, a
child, a parent, or a brother or sister, or to any person reasonably and in good
faith deemed by Employer to have incurred expense for such person otherwise
entitled to payment in such manner and proportions as Employer may determine in
its sole discretion. Any such payment shall be a complete discharge of the
liabilities of Employer to make such payment to Executive.
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17. Waivers.
The waiver by any party of any breach, default, misrepresentation or
breach of warranty or covenant in this Agreement, whether intentional or not,
shall be in writing and shall not be deemed to extend to any prior or subsequent
breach, default, misrepresentation or breach of warranty or covenant herein and
shall not affect in any way any rights arising by virtue of any such prior or
subsequent occurrence.
18. Severability.
In case any one or more of the provisions contained in this Agreement
should be invalid, illegal, or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained in this
Agreement shall not in any way be affected or impaired thereby.
19. Remedies Cumulative.
Remedies under this Agreement of any party hereto are in addition to
any remedy or remedies to which such party is entitled or may become entitled at
law or in equity.
20. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
21. Headings.
The headings in this Agreement are for convenience of reference only,
and under no circumstances should they be construed as being a substantive part
of this Agreement nor shall they limit or otherwise affect the meaning thereof.
22. Additional Documents.
Each of the parties hereto, without further consideration, agrees to
execute and deliver such additional documents and to take such other actions
reasonably necessary to more effectively consummate the purposes of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Supplemental
Retirement Agreement as of the day and year first above written.
FIRST NORTHERN SAVINGS BANK, S.A.
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By: Xxxxxxx X. Xxxxxxxx,
President and CEO
Attest:
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Xxxxx X. Xxxx, Secretary
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Executive
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BENEFICIARY DESIGNATION
Pursuant to Section 3 of this Agreement, I direct that in the event of
my death any benefits which remain payable shall be paid or payable to the
following individual or trust, or to the following individuals or trusts in
equal shares:
Beneficiary
Name(s) Relationship Address S.S. No.
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--------------------- ------------ -------------------------- ------------
--------------------- ------------ -------------------------- ------------
--------------------- ------------ -------------------------- ------------
--------------------- ------------ -------------------------- ------------
If I have designated more than one individual or trust as Beneficiary
above, and if one or more but not all fail to survive me, then the share(s) of
those designated who do not survive me shall be paid or payable [check one]:
[ ] to their respective heirs then living, by right of representation.
[ ] to those designated individuals who do survive me, in equal shares.
[ ] not applicable.
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Executive
Date:
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