AMENDED AND RESTATED SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
EXHIBIT
10.10
AMENDED
AND RESTATED
THIS
AMENDED AND RESTATED SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT is
made as of the 29th day of June, 2007,between Merchants and Manufacturers
Bancorporation, Inc., a Wisconsin corporation and its successor and assigns
(collectively, “Employer”) and Xxxx Xxxxxxxx, an adult resident of the State of
Wisconsin (the “Executive”).
RECITALS
WHEREAS,
Executive is a key employee of Employer, and
WHEREAS,
Executive possesses unique knowledge and skills that are integral to Employer’s
continued success,
WHEREAS,
Employer established this Agreement on January 1, 2004 for purposes of
promoting in Executive the strongest interest in the successful operation of
Employer and increased efficiency in Executive’s work and to provide Executive
with additional benefits upon retirement, death, disability or other termination
of employment; and
WHEREAS,
Employer and Executive now wish to amend and restate this Agreement to comply
with the requirements of Internal Revenue Code Section 409A.
AGREEMENT
NOW,
THEREFORE, in consideration of services to be performed after the date of this
Agreement but prior to Executive’s retirement or other Separation From Service
and in consideration of the foregoing Recitals and the agreements set forth
below, the parties hereto agree as follows:
1.
Definitions.
(a) Age–
“Age” shall mean the age of the person as of his/her last birthday.
(b) Beneficiary–
“Beneficiary” shall mean the individual, individuals, entity or entities that
Executive designates, in accordance with Section 2.6 below, as the recipient
of
any benefits that may be payable under this Agreement following Executive’s
death.
(c) Board
of Directors– “Board of Directors” shall refer to the complete Board of
Directors of the organization designated in each reference.
(d) Change
in Control– For purposes of this Agreement, a “Change in Control” shall be
deemed to have occurred if any “individual, entity or group” (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities representing 25% or more of the voting power of
the
securities of MMBC or any of MMBC’s affiliates or becomes the owner of all or
substantially all of the assets of MMBC or any of Employer’saffiliates or if the
shareholders of MMBC or an affiliate of MMBC approve a reorganization, merger
or
consolidation of MMBC or any affiliates of MMBC. “Change in Control”
shall not refer to or include any transaction involving only entities affiliated
directly or indirectly with MMBC. The Executive
Personnel/Compensation Committee of MMBC shall, in its sole discretion,
determine whether a particular event or a series of events are related to a
corporate reorganization, restructuring, refinancing or other similar occurrence
referenced in the last sentence.
(e) Disability–
“Disability” shall mean, if Executive is insured under a long-term disability
insurance policy the premiums for which are paid by Employer, the individual
is
determined to have suffered a total disability (or equivalent designation)
under
such policy. If Executive is not insured under such a disability
insurance policy, “Disability” shall mean Executive’s inability, as the result
of physical or mental incapacity, to substantially perform his duties for a
period of 180 consecutive days. If Executive and Employer cannot
agree as to the existence of a disability, the determination shall be made
by a
qualified independent physician acceptable to both parties, or alternatively,
by
a physician designated by the president of the medical society for the county
in
which Executive resides. The costs of any such medical examination
shall be borne by Employer.
(f) Discharge
for Cause– “Discharge for Cause” shall mean Executive’s Separation From
Service by Employer because of:
(1) A
failure by Executive to substantially perform his duties (other than failure
resulting from incapacity) after a written demand by the Board of Directors
of
the Employer, which demand identifies, with reasonable specificity, the manner
in which the Board of Directors of the Employer believes Executive has not
substantially performed, and Executive’s failure to cure within a reasonable
period of time after his receipt of this notice;
(2) A
criminal conviction of or plea of nolo contendere by Executive for any
act involving dishonesty, breach of trust or a violation of the banking laws
of
the State of Wisconsin or the United States;
(3) A
criminal conviction of or plea of nolo contendere by Executive for the
commission of any felony;
(4) A
breach of fiduciary duty by Executive involving personal profit;
(5) A
willful violation of any law, rule or order by Executive (other than traffic
violations or similar offenses); or
(6) Incompetence,
personal dishonesty or material breach of any provision of this Agreement or
any
willful misconduct by Executive.
For
purposes of this definition, no act, or failure to act, on Executive’s part
shall be deemed “willful” unless done, or omitted to be done, by Executive not
in good faith and without reasonable belief that the action or omission was
in
the best interest of Employer. A “Discharge for Cause” shall also be
deemed to occur immediately and without a right to cure if:
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(1) Executive
is suspended and/or temporarily prohibited from participating in the conduct
of
Employer’s or any of Employer’s affiliates’ affairs by a regulatory agency;
or
(2) Executive
is removed and/or permanently prohibited from participating in the conduct
of
Employer’s or any of Employer’s affiliates’ affairs by an order issued by a
regulatory agency.
(g) Early
Retirement Date– “Early Retirement Date” shall mean the first day of the
month following the month in which Executive reaches age 55.
(h) Executive
Personnel/Compensation Committee– “Executive Personnel/Compensation
Committee” shall mean the Executive Personnel/Compensation Committee of MMBC’s
Board of Directors. If no such committee exists, then the outside
directors of MMBC shall comprise the Executive Personnel/Compensation
Committee.
(i) Employer–
“Employer” shall mean Merchants and Manufacturers Bancorporation, Inc., a
Wisconsin corporation, and any successor in interest to Merchants and
Manufacturers Bancorporation, Inc..
(j) MMBC–
“MMBC” shall mean Merchants and Manufacturers Bancorporation, Inc., a Wisconsin
corporation, and any successor in interest to Merchants and Manufacturers
Bancorporation, Inc.]
(k) Normal
Retirement Date– “Normal Retirement Date” shall mean the first day of the
month following the month in which Executive reaches age 65.
(l) Reduced
Benefit Factor– The “Reduced Benefit Factor” shall be the percentage of the
benefit that the Executive could receive at a particular age, determined
according to the attached Schedule A. For example, at age 55, the
Reduced Benefit Factor would be 25%, such that Executive would receive 25%
of
the benefits calculated under Section 2.1 below.
(m) Separation
From Service– “Separation From Service” means the termination of the
Executive’s employment with the Employer for reasons other than
death. Whether a Separation From Service takes place is determined in
accordance with the requirements of Internal Revenue Code Section 409A based
on
the facts and circumstances surrounding the termination of the Executive’s
employment and whether the Employer and the Executive intended for the Executive
to provide significant services for the Employer following such
termination.
(n) Specified
Employee– “Specified Employee” shall have the same meaning as under Internal
Revenue Code Section 409A and the regulations thereunder.
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2.
Payment of Benefits.
2.1 Benefits
Upon Normal Retirement.
Upon
Executive’s Separation From Service on or after the Normal Retirement Date,
Employer shall pay to Executive (or to Executive’s Beneficiary or
Beneficiaries), as compensation for services rendered prior to such date, an
annual amount (payable in monthly installments) equal to fifty percent (50%)
of
the “base compensation” that Executive received from Employer during the
calendar year immediately preceding Executive’s Separation From Service.
Subject to the restriction in Section 2.8 below, payments
under this Section shall commence on the first day of the month coincident
with
or next following Executive’s date of Separation From Service and continue for a
period of 180 months thereafter.
2.2 Benefits
Upon Early Retirement.
Upon Executive’s Separation From Service on or after reaching the Early
Retirement Date but prior to the Normal Retirement Date, Employer shall pay
to
Executive (or to Executive’s Beneficiary or Beneficiaries), as compensation for
services rendered prior to such date an annual amount (payable in monthly
installments) calculated under Section 2.1 above, multiplied by the Reduced
Benefit Factor in Schedule A. Subject to the restriction in Section
2.8 below, such payments shall commence on the first day of the month coincident
with or next following the date of Separation From Service and shall continue
for a period of 180 months thereafter.
2.3 Benefits
Upon Disability.
Upon Executive’s Separation From Service prior to the Normal Retirement Date due
to Disability, no separate provision is made for a disability benefit under
this
Agreement. However, any such Executive shall be considered,
notwithstanding such Separation From Service, to continue to be an Executive
in
this Agreement, and in the event of such Executive’s death while disabled and
for so long as the disability continues prior to reaching the Early Retirement
Date, such Executive’s beneficiary shall receive the survivor’s benefits
described in Section 2.5(a). In the event Executive lives to the
Early Retirement Date, Executive (or Executive’s Beneficiary or Beneficiaries)
shall be entitled to receive the early retirement benefit described in Section
2.2, such payments commencing on the first day of the month coincident with
or
next following the Early Retirement Date.
2.4 Other
Separations From Service.
(a) Voluntary
Separation From Service Prior to the Early Retirement Date or Discharge for
Cause at any Time. Upon Executive’s voluntary Separation From
Service prior to reaching the Early Retirement Date, for reasons other than
death or Disability, or upon Executive’s Discharge for Cause at any time,
Employer shall not be obligated to pay any benefit to Executive (or to
Executive’s Beneficiary or Beneficiaries) pursuant to this Agreement, and
Executive (and Executive’s Beneficiary or Beneficiaries) shall have no further
right to receive any benefit hereunder.
(b) Involuntary
Separation From Service Prior to the Early Retirement Date Other Than Because
of
Death, Disability or Discharge for Cause. Upon Executive’s
involuntary Separation From Service prior to reaching the Early Retirement
Date,
for reasons other than Death, Disability, or Discharge for Cause, Employer
shall
not be obligated to pay any benefit to Executive (or to Executive’s Beneficiary
or Beneficiaries) pursuant to this Agreement, and Executive (and Executive’s
Beneficiary or Beneficiaries) shall have no further right to receive any benefit
hereunder.
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(c) Separation
From Service At or After A Change in Control. If Executive has a
Separation From Service as a result of a Change in Control, Executive (or
Executive’s Beneficiary or Beneficiaries) shall have a fully vested right to
receive a lump sum payment equal to the greater of: (i) the
present value of the normal retirement benefit described in Section 2.1 above,
calculated as if the payments would begin on Executive’s Normal Retirement Date
and using a discount rate equal to 120% of the long-term applicable rate
published by the IRS for the month in which the Change in Control occurs or
(ii) three (3) times his or her highest annual compensation from Employer
(determined on a calendar-year basis from the year prior to the Change in
Control through the date of the Separation From Service). Subject to
the restriction in Section 2.8 below, the lump sum payment shall be made to
Executive within thirty (30) days after the Executive’s date of Separation From
Service. For purposes of this Section 2.4(c), Executive’s Separation
From Service shall be deemed to have resulted from a Change in Control
if: Employer terminates Executive’s employment for any reason other
than death, Disability or Discharge for Cause, at any time: (a)
within ninety (90) days before a Change in Control; or (b) at any time within
twelve (12) months after a Change in Control. Executive’s Separation
From Service shall also be deemed to have resulted from a Change in Control
if,
within ninety (90) days before or within twelve (12) months after a Change
in
Control, Executive has a voluntary Separation From Service after Employer has
significantly lessened Executive’s title, duties, responsibilities or
compensation or otherwise changed Executive’s employment status without
Executive’s prior written consent.
(d) Transition
Services. If the Executive’s employment does not terminate as a
result of a Change in Control, as provided in Subsection 2.4 (c) above, but
Executive continues to work for Employer and/or for a successor employer for
at
least twelve (12) months following a Change in Control (the “Transition
Period”), then upon Executive’s Separation From Service for any reason other
than a Discharge for Cause, no benefits shall be payable under Section 2.1
above, but Executive shall have a nonforfeitable right to receive benefits
under
this Agreement equal to the greater of: (i) the present value of the normal
retirement benefit described in Section 2.1 above, calculated as if the payments
would begin beginning on Executive’s Normal Retirement Date and using a discount
rate equal to 120% of the rate provided for in Section 1274(d)(1)(B) of the
Code
for the month in which the Executive’s Separation From Service occurs or
(ii) three (3) times his or her highest annual compensation from Employer
(determined on a calendar-year basis from the year prior to the Change in
Control through the date of the Change in Control) (such greater amount
hereinafter referred to as the “Transition Benefit”). Subject to the
restriction set forth in Section 2.8 below, where the Separation From Service
occurs within the two-year period following the date of the Change of Control,
the payment of Transition Benefit shall be made to Executive within thirty
(30)
days after the Executive’s date of Separation From Service. Where the
Separation From Service occurs more than two years following the date of the
Change of Control, the amount of the Transition Benefit shall be credited to
a
bookkeeping account (the “Account”) and shall be paid to the Executive in 180
monthly installments payable on the declining balance method, commencing on
the
first date of the month coincident with or next following the date of Separation
From Service (subject to the restriction set forth in Section 2.8 below) and
continuing on the first day of each month thereafter until the balance of the
Account has been paid to the Executive. On December 31 of each year
in which the Executive maintains a balance in the Account, the Account shall
be
credited with interest on the average weighted balance of the Account for the
year at 100% of the annual short-term rate provided for in Section 1274(d)(1)(B)
of the Code for the month of June of such year. Each monthly
installment that is paid to the Executive will reduce the balance in the
Executive’s Account. By way of illustration, if the average weighted
balance in the Executive’s Account for 2015 is $200,000 and the ending balance
on December 31, 2015 was $188,00, if the annual short-term rate provided for
in
Section 1274(d)(1)(B) for June 2015 is 5% and the Executivewere entitled to
120
remaining monthly installments, each monthly installment payment for 2016 would
be $1,650 (($188,000 +$10,000)/120).
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2.5 Survivorship
Benefits.
(a) Prior
to Commencement of Normal or Early Retirement Benefits. If
Executive dies while in the service of Employer or after a Separation From
Service due to Disability and while disabled or after a Separation From Service
on or after the Early Retirement Date, but prior to commencement of any benefit
payment under this Agreement, Employer shall pay to Executive’s Beneficiary or
Beneficiaries a survivor’s benefit of 180 equal monthly installments equal to
Executive’s fixed normal retirement benefit as described in Section 2.1 (and
expressed as a monthly benefit), commencing on the first day of the month after
Executive’s death and continuing on the first day of each month thereafter until
all such payments are completed. (In the event that there are
multiple Beneficiaries, their combined benefit shall be equal to this
amount.) In the event a Beneficiary dies before receiving all the
survivor’s benefit payments, the remaining payments shall be paid to the legal
representatives of the Beneficiary’s estate. Payment of the
survivor’s benefit shall relieve Employer of the obligation to pay any other
benefit, which Executive would have otherwise received under the terms of this
Agreement.
(b) After
Commencement of Benefits. If Executive dies after any benefit
payments have commenced, but prior to receiving all of the scheduled minimum
number of monthly payments, Employer shall pay the remaining monthly payments
to
Executive’s Beneficiary or Beneficiaries. (In the event that there
are multiple Beneficiaries, their combined benefit shall be equal to this
amount.) In the event a Beneficiary dies before receiving all the
remaining payments, the then-remaining payments shall be paid to the legal
representatives of the Beneficiary’s estate.
2.6 Recipients
of Payments: Designation of Beneficiary. All payments
to be made by Employer shall be made to Executive, if living. In the
event of Executive’s death prior to the receipt of all benefit payments, all
subsequent payments to be made under this Agreement shall be to Executive’s
Beneficiary or Beneficiaries. Executive shall designate a Beneficiary
by filing a written notice of such designation with Employer in such form as
Employer may prescribe. Executive may revoke or modify said
designation at any time by a further written designation. Executive’s
beneficiary designation shall be deemed automatically revoked in the event
of
the death of the Beneficiary or, if the Beneficiary is Executive’s spouse, in
the event of dissolution of marriage. If no designation shall be in
effect at the time any benefits payable under this Agreement shall become due,
the Beneficiary shall be the spouse, or if no spouse is then living, the legal
representative of Executive’s estate. All designations under this
section must be made on the Beneficiary Designation form attached on Schedule
B.
2.7 Potential
Tax Consequences. If the payment of any of the compensation or
benefits contemplated under this Agreement (when added to any other payments
or
benefits provided to the Executive) will result in the payment of an “excess
parachute payment,” as that term is defined in Section 280(G) of the Internal
Revenue Code of 1986, as amended (the “Code”), then in such event, the Employer
shall pay the Employee an additional amount for each calendar year in which
an
excess parachute payment is received by the Executive (the “Gross-up
Payment”). The Gross-up Payment is intended to cover the Executive’s
liability for any parachute tax under Code Section 4999 on such excess parachute
payment, as well as federal and state income taxes and parachute tax on the
additional amount, and shall be computed using such reasonable calculation
methods as adopted by the Board of Directors of the Employer at such
time. The Gross-up Payment shall be made to the Executive no later
than the calendar year following the year in which the Executive remits the
required parachute or other taxes to the federal or state tax
authorities.
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2.8 Restriction
on Timing of Distribution. Notwithstanding any provision of this
Agreement to the contrary, if the Executive is considered a Specified Employee
at the time of his or her Separation From Service, under such procedures as
established by the Employer, in accordance with Section 409A of the Code,
benefit distributions that are made upon such Separation From Service may not
commence earlier than six (6) months after the date of such Separation From
Service. Therefore, in the event this Section 2.8 is applicable to
the Executive, any distributions which would otherwise be paid to the Executive
within the first six months following the date of the Executive’s Separation
From Service shall be accumulated and paid to the Executive in a lump sum on
the
first day of the seventh month following the Separation From
Service. All subsequent distributions shall be paid in the manner
specified.
3.
Successors; Binding
Agreement.
(a) Employer
will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to substantially all of the business and/or assets
of Employer (“Successor Organization”) to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that Employer would
have been required to perform if no such succession had taken
place. If such succession is the result of a Change in Control, such
assumption shall specifically preserve to Executive (and Executive’s Beneficiary
or Beneficiaries), for the then remaining term of this Agreement, the same
rights and remedies (recognizing them as being available and applicable as
the
result of the Change in Control effectuating said succession) provided under
this Agreement upon a Change in Control.
(b) No
right or interest to or in any payments or benefits under this Agreement shall
be assignable or transferable in any respect by Executive, nor shall any such
payment, right or interest be subject to seizure, attachment or creditor’s
process for payment of any debts, judgments, or obligations of
Executive.
(c) Any
rights and obligations of Employer under this Agreement may be assigned or
transferred by Employer to any of its affiliates prior to a change in control
as
defined in this Agreement.
4.
Administration and Interpretation of this
Agreement.
Interpretation by the Employer and/or the Executive Personnel/Compensation
Committee shall be final and binding upon Executive (and Executive’s Beneficiary
or Beneficiaries). The Employer and/or the Executive
Personnel/Compensation Committee may adopt rules and regulations relating to
this Agreement as it may deem necessary or advisable for the administration
thereof.
5.
Claims Procedure.
If Executive (or Executive’s Beneficiary or Beneficiaries) (each hereinafter
referred to individually 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 Executive Personnel/Compensation
Committee. The Executive Personnel/Compensation Committee shall
notify the Claimant within 60 days of allowance or denial of the claim, unless
the Claimant receives written notice from the Executive
Personnel/Compensation Committee prior to the end of the sixty (60) day period
stating that special circumstances require an extension of the time for
decision. The notice of the Executive
Personnel/Compensation Committee’s decision 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:
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(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 claims review procedure.
6. Review
Procedure.
(a) A
Claimant is entitled to request a review of any denial of Claimant’s claim by
the Executive Personnel/Compensation Committee. The request for
review must be submitted in writing within 60 days of mailing of notice of
the
denial. Absent a request for review within the 60-day period, the
claim will be deemed to be conclusively denied. The Claimant or
Claimant’s representative shall be entitled to review all pertinent documents,
and to submit issues and comments orally and in writing.
(b) If
the request for review by a Claimant concerns the interpretation and application
of the provisions of the Agreement and Employer’s obligations, then the review
shall be conducted by a separate committee consisting of three persons
designated or appointed by the Executive Personnel/Compensation
Committee. The separate committee 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
committee 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 separate committee’s review decision, together with specific
reasons for the decision and reference to the pertinent provisions of this
Agreement.
(c) Executive
(and Executive’s Beneficiary or Beneficiaries) shall not be entitled to pursue
any court or other relief under this Agreement unless Executive (or Executive’s
Beneficiary or Beneficiaries) has first exhausted all of the remedies provided
in Sections 6(a) and 6(b) above.
7. Life
Insurance and Funding.
Employer in its discretion may apply for and procure as owner and for its own
benefit, insurance on the life of Executive, in such amounts and in such forms
as Employer may choose. The Executive shall have no interest
whatsoever in any such policy or policies, but at the request of Employer,
Executive shall submit to medical examinations and supply such information
and
execute such documents as may be required by the insurance company or companies
to whom Employer has applied for insurance.
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The rights of Executive (or Executive’s Beneficiary or Beneficiaries), or
estate, to benefits under this Agreement shall be solely those of an unsecured
creditor of Employer. Any insurance policy or other assets acquired
by or held by Employer in connection with the liabilities assumed by it pursuant
to this Agreement shall not be deemed to be held under any trust for the benefit
of Executive, Executive’s Beneficiary or Beneficiaries, or Executive’s estate,
or to be security for this performance of the obligations of Employer but shall
be, and remain, a general, unpledged, and unrestricted asset of
Employer.
If Employer elects to protect against its liabilities under this Agreement
by
purchasing any insurance or other similar product on the life of Executive
or on
any pool or group of similarly situated individuals, then Executive acknowledges
that Employer shall have no obligation to provide any benefits under this
Agreement if Executive makes any material misstatement, fails to disclose any
material information or otherwise acts in any way (e.g., commits suicide) which
allows the underlying insurer to reduce or eliminate its payments under that
policy or reduce or avoid making payments to Employer under that insurance
policy. Under such circumstances, Employer may reduce or eliminate
any or all benefits under this Agreement to reflect the actual benefit that
Employer receives under such policy.
8.
Employment Not Guaranteed by Agreement.
Neither this Agreement nor any action taken hereunder shall be construed as
giving Executive the right to be retained as an executive employee or as an
employee of Employer for any period. To the extent that Employer and
Executive enter into (or previously have entered into an employment agreement),
the terms of that agreement shall run concurrently with this Agreement, but
each
separate agreement shall be considered applied on its own and separate from
the
other agreement.
9.
Taxes.
Employer shall deduct from all payments made hereunder all applicable federal
or
state taxes required by law to be withheld from such payments, and all benefit
amounts payable hereunder are stated before any such deductions.
10. Amendment
and Termination.
The Board of Directors of Employer may, at any time, amend or terminate this
Agreement, provided that the Employer’s Board may not reduce or modify any
benefit in pay status to Executive or to any Beneficiary hereunder or any
benefit that would become payable hereunder if Executive were to have died
or
were to have been involuntarily terminated under Section 2.4(b) hereof on the
day prior to such action by the Board, without the prior written consent of
Executive (or Executive’s Beneficiary or Beneficiaries).
Notwithstanding
the preceding
provisions, Employer may not reduce, eliminate or change benefits that Executive
has accrued under this Agreement at any time within ninety (90) days before
a
Change in Control or at anytime following a Change in
Control. Employer is entering into this Agreement upon the assumption
that certain existing tax laws will continue in effect in substantially their
current form. In the event of any changes in Federal law relating to
and allowing the tax-free accumulation of earning within a life insurance policy
or any other law which would result in a material adverse impact upon Employer’s
ability to perform its obligations under this Agreement, Employer shall have
an
option to terminate or modify this Agreement subject to the protection afforded
Executive in this Section 10.
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11. Applicable
Law.
This Agreement shall be construed according to the laws of the State of
Wisconsin. Any proceeding arising out of or relating to this
Agreement may only be brought in the State of Wisconsin, County of Waukesha
or,
if it has or can acquire jurisdiction, in the United States District Court
for
the Eastern District of Wisconsin. Each of the parties to this
Agreement irrevocably submits to the exclusive jurisdiction of each of the
preceding courts in any such proceeding, waives any objection it may now or
hereafter have to venue or to convenience of forum, agrees that all claims
in
respect to the proceeding shall be heard and determined only in such court
and
agrees to not bring any proceeding arising out of or related to this Agreement
in any other court.
12. Form
of Communication.
Any application, claim, notice or other communication required or permitted
to
be made by Executive to Employer shall be made in writing and in such form,
as
Employer shall prescribe. Such communication shall be effective upon
mailing, if sent by first class mail, postage pre-paid, and addressed to
Employer’s main office.
13. Captions.
The captions at the head of a section or a paragraph of this Agreement are
designed for convenience of reference only and are not to be resorted to for
the
purpose of interpreting any provision of this Agreement.
14. Severability.
The invalidity of any portion of this Agreement shall not invalidate the
remainder thereof, and said remainder shall continue in full force and
effect.
15. Waiver.
No provision of this Agreement shall be deemed to have been waived unless such
waiver is in writing signed by the waiving party. No failure by any
party to insist upon the strict performance of any provision of this Agreement,
or to exercise any right or remedy consequent upon a breach thereof, shall
constitute a waiver of any such breach, of such provision or of any other
provision. No waiver of any provision of this Agreement shall be
deemed a waiver of any other provision of this Agreement or a waiver of such
provision with respect to any subsequent breach, unless expressly provided
in
writing.
16. Neutral
Construction.
The language used in this Agreement shall be deemed to be the language chosen
by
both of the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against either party.
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17. Final
Agreement.
This Agreement constitutes the entire agreement of the parties relating to
the
subject matter hereof. There are no promises, terms, conditions,
obligations, or warranties other than those contained in this
Agreement. This Agreement shall supercede all prior communications,
representations, or agreements, verbal or written, among the parties relating
to
the subject matter hereof.
18. Binding
Effect.
This Agreement shall be binding upon and shall inure to the benefit of Employer
and Executive, and each of their successors, heirs, personal representatives
and
permitted assigns. No sale of substantially all of Employer’s assets
shall be made without the buyer expressly assuming the obligation of this
Agreement. Any subsequent benefits that Employee or any Beneficiary
receives under this Agreement shall be reduced by the liquidated damages paid
under the preceding clause.
19. Compliance
with Section 409A.
This
Agreement shall at all times be
administered and the provisions of this Agreement shall be interpreted
consistent with the requirements of Section 409A of the Code and any and all
regulations thereunder, including such regulations as may be promulgated after
the effective date of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the
date first set forth above.
By:
/s/ Xxxxxxx X.
Xxxxx
Chairman
of the Board
/s/
Xxxx
Xxxxxxxx
Executive
11
SCHEDULE
A
Early
Retirement Benefit, as a Percentage of Executive’s Normal Retirement
Benefit
|
Age
|
Reduced
Benefit Factor
|
|
55
|
25%
|
|
56
|
30%
|
|
57
|
35%
|
|
58
|
40%
|
|
59
|
45%
|
|
60
|
50%
|
|
61
|
60%
|
|
62
|
70%
|
|
63
|
80%
|
|
64
|
90%
|
12
