SUPERVISORY AGREEMENT
Exhibit 10.19
This Supervisory Agreement (Agreement) is made this 22nd day of February, 2011
(Effective Date), by and through the Board of Directors (Board) of HMN Financial, Inc., Rochester,
Minnesota, OTS Docket No. H2309 (Holding Company) and the Office of Thrift Supervision (OTS),
acting by and through its Regional Director for the Central Region (Regional Director).
WHEREAS, the OTS, pursuant to 12 U.S.C. § 1818, has the statutory authority to enter into and
enforce supervisory agreements to ensure the establishment and maintenance of appropriate
safeguards in the operation of the entities it regulates; and
WHEREAS, the Holding Company is subject to examination, regulation and supervision by the OTS;
WHEREAS, based on issues identified and discussed in the August 9, 2010 Report of Examination
(2010 XXX) and previous OTS reports of examination of the Holding Company, the OTS finds that the
Holding Company has engaged in unsafe or unsound practices in conducting its consolidated
operations;
WHEREAS, in furtherance of their common goal to ensure that the Holding Company addresses the
unsafe or unsound practices identified and discussed in the 2010 XXX and previous OTS reports of
examination, the Holding Company and the OTS have mutually agreed to enter into this Agreement; and
WHEREAS, on February 10, 2011, the Holding Company’s Board, at a duly constituted meeting,
adopted a resolution (Board Resolution) that authorizes the Holding Company to enter into this
Agreement and directs compliance by the Holding Company and its directors, officers,
employees, and other institution-affiliated parties with each and every provision of this
Agreement.
NOW THEREFORE, in consideration of the above premises, it is agreed as follows:
Capital Plan.
1. By May 31, 2011, the Holding Company shall submit to the Regional Director a written plan for
enhancing the consolidated capital of the Holding Company (Capital Plan). The Capital Plan shall
cover the period beginning April 1, 2011 through December 31, 2012. At a minimum, the Capital Plan
shall include:
(a) establishment by the Board of a minimum tangible capital ratio of tangible equity
capital to total tangible assets commensurate with the Holding Company’s consolidated risk
profile;
(b) quarterly cash flow projections for the Holding Company on a stand alone basis through
calendar year-end December 31, 2012 that identify both the sources of funds and the expected
uses of funds;
(c) quarterly pro forma consolidated and unconsolidated Holding Company balance sheets and
income statements for the period covered by the Capital Plan demonstrating the Holding
Company’s ability to attain and maintain the Board established minimum tangible equity
capital ratio by June 30, 2011;
(d) detailed scenarios to stress-test the minimum tangible equity capital targets based on
continuing operating results, economic conditions and risk profile of the Holding Company’s
stand alone assets and liabilities; and
(e) detailed descriptions of all relevant assumptions and projections and the supporting
documentation for all relevant assumptions and projections.
2. Upon receipt of written notice of non-objection from the Regional Director to the Capital Plan,
the Holding Company shall implement and adhere to the Capital Plan. A copy of the Capital Plan
shall be provided to the Regional Director within seven (7) days after Board approval.
3. By January 31, 2012, and each January 31st thereafter, the Capital Plan shall be updated and
submitted to the Regional Director pursuant to Paragraph 1 above and shall incorporate the Holding
Company’s budget plan and cash flow projections for the next two (2) fiscal years taking into
account any revisions to the Holding Company’s cash flow and operating policies.
4. Within forty-five (45) days after the end of each quarter, after implementation of the Capital
Plan, the Board shall review written quarterly variance reports on the Holding Company’s compliance
with its Capital Plan (Variance Reports). The minutes of the Board meeting shall fully document
the Board’s review and discussion. The Variance Reports shall:
(a) identify variances in the Holding Company’s actual performance during the preceding
quarter as compared to the projections set forth in the Capital Plan;
(b) contain an analysis and explanation of identified variances; and
(c) discuss the specific measures taken or to be taken by the Holding Company to address
identified variances.
5. A copy of each Variance Report shall be provided to the Regional Director within seven (7) days
after review by the Board or a committee designated by the Board.
Dividends and other Capital Distributions.
6. Effective immediately, the Holding Company shall not declare, make, or pay any cash dividends on
either its common or preferred stock or other capital distributions or purchase, repurchase or
redeem or commit to purchase, repurchase, or redeem any Holding Company
equity stock without the prior written non-objection of the Regional Director. The Holding Company
shall submit its written request for non-objection to the Regional Director at least thirty (30)
days prior to the anticipated date of the proposed dividend, capital distribution, or stock
transaction.
Debt Restrictions.
7. Effective immediately, the Holding Company shall not, directly or indirectly, incur, issue,
renew, rollover, or pay interest or principal on any debt or commit to do so, increase any current
lines of credit, or guarantee the debt of any entity, without prior written notice to and written
non-objection from the Regional Director. The Holding Company’s written request for approval shall
be submitted to the Regional Director at least thirty (30) days prior to incurring, issuing,
renewing, rolling over or paying any interest or principal on any debt, increasing any current
lines of credit, or guaranteeing the debt of any entity. The Holding Company’s written requests
for Regional Director non-objection to engage in such debt transactions, at a minimum, shall:
(a) describe the purpose of the proposed debt; (b) set forth and analyze the terms of the proposed
debt and covenants; (c) analyze the Holding Company’s current cash flow resources available to
satisfy such debt repayment; and (d) set forth the anticipated source(s) of repayment of the
proposed debt. For purposes of this Paragraph, the term “debt” includes, but is not limited to,
loans, bonds, cumulative preferred stock, hybrid capital instruments such as subordinated debt or
trust preferred securities, and guarantees of debt. For purposes of this Paragraph, the term
“debt” does not include liabilities incurred in the ordinary course of business to acquire goods
and services and that are normally recorded as accounts payable or accruals under generally
accepted accounting principles.
Directorate and Management Changes.
8. Effective immediately, the Holding Company shall comply with the prior notification requirements
for changes in directors and Senior Executive Officers1 set forth in 12 C.F.R.
Part 563, Subpart H.
Golden Parachute Payments.
9. Effective immediately, the Holding Company shall not make any golden parachute
payment2 unless, with respect to such payment, the Holding Company has complied with the
requirements of 12 C.F.R. Part 359.
Employment Contracts and Compensation Arrangements.
10. Effective immediately, the Holding Company shall not enter into any new contractual arrangement
or renew, extend or revise any existing contractual arrangement related to compensation or benefits
with any director or Senior Executive Officer of the Holding Company, unless it first provides the
Regional Director with not less than thirty (30) days prior written notice of the proposed
transaction. The notice to the Regional Director shall include a copy of the proposed employment
contract or compensation arrangement, or a detailed, written description of the compensation
arrangement to be offered to such Senior Executive Officer or director, including all benefits and
perquisites. The Holding Company shall ensure that any contract, agreement or arrangement
submitted to OTS fully complies with the requirements of
12 C.F.R. Part 359, 12 C.F.R. §§ 563.39 and 563.161(b), and 12 C.F.R. Part 570-Appendix A.
Effective Date.
11. This Agreement is effective on the Effective Date as shown on the first page.
| 1 | The term “Senior Executive Officer” is defined at 12 C.F.R. § 563.555. | |
| 2 | The term “golden parachute payment” is defined at 12 C.F.R. § 359.1(f). |
Duration.
12. This Agreement shall remain in effect until terminated, modified or suspended, by written
notice of such action by the OTS, acting by and through its authorized representatives.
Time Calculations.
13. Calculation of time limitations for compliance with the terms of this Agreement run from the
Effective Date and shall be based on calendar days, unless otherwise noted.
Submissions and Notices.
14. All submissions to the OTS that are required by or contemplated by the Agreement shall be
submitted within the specified timeframes.
15. Except as otherwise provided herein, all submissions, requests, communications, consents or
other documents relating to this Agreement shall be in writing and sent by first class U.S. mail
(or by reputable overnight carrier, electronic facsimile transmission or hand delivery by
messenger) addressed as follows:
| (a) | To the OTS: |
Regional Director
Office of Thrift Supervision
Xxx Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Office of Thrift Supervision
Xxx Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
| (b) | To the Holding Company: |
Chairman of the Board
HMN Financial, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
HMN Financial, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
No Violations Authorized.
16. Nothing in this Agreement shall be construed as allowing the Holding Company, its
Board, officers or employees to violate any law, rule, or regulation.
OTS Authority Not Affected.
17. Nothing in this Agreement shall inhibit, estop, bar or otherwise prevent the OTS from taking
any other action affecting the Holding Company if at any time the OTS deems it appropriate to do so
to fulfill the responsibilities placed upon the OTS by law.
Other Governmental Actions Not Affected.
18. The Holding Company acknowledges and agrees that its execution of the Agreement is solely for
the purpose of resolving the matters addressed herein, consistent with Paragraph 17 above, and does
not otherwise release, discharge, compromise, settle, dismiss, resolve, or in any way affect any
actions, charges against, or liability of the Holding Company that arise pursuant to this action or
otherwise, and that may be or have been brought by any governmental entity other than the OTS.
Miscellaneous.
19. The laws of the United States of America shall govern the construction and validity of this
Agreement.
20. If any provision of this Agreement is ruled to be invalid, illegal, or unenforceable by the
decision of any Court of competent jurisdiction, the validity, legality, and enforceability of the
remaining provisions hereof shall not in any way be affected or impaired thereby, unless the
Regional Director in his or her sole discretion determines otherwise.
21. All references to the OTS in this Agreement shall also mean any of the OTS’s predecessors,
successors, and assigns.
22. The section and paragraph headings in this Agreement are for convenience only and shall not
affect the interpretation of this Agreement.
23. The terms of this Agreement represent the final agreement of the parties with respect to the
subject matters thereof, and constitute the sole agreement of the parties with respect to such
subject matters.
Enforceability of Agreement.
24. This Agreement is a “written agreement” entered into with an agency within the meaning and for
the purposes of 12 U.S.C. § 1818.
Signature of Directors/Board Resolution.
25. Each Director signing this Agreement attests that he or she voted in favor of a Board
Resolution authorizing the consent of the Holding Company to the issuance and execution of the
Agreement. This Agreement may be executed in counterparts by the directors after approval of
execution of the Agreement at a duly called board meeting. A copy of the Board Resolution
authorizing execution of this Agreement shall be delivered to the Regional Director along with the
executed original(s) of this Agreement.
[Remainder of the Page Intentionally Left Blank]
HMN Financial, Inc.
Supervisory Agreement
Page 8 of 9
Supervisory Agreement
Page 8 of 9
WHEREFORE, the OTS, acting by and through its Regional Director, and the Board of the Holding
Company, hereby execute this Agreement.
| HMN FINANCIAL, INC. | Accepted by: | |||||||
| Office of Thrift Supervision | ||||||||
Rochester, Minnesota |
||||||||
/s/ Xxxxxxx X. Xxxxxxx
|
By: | /s/ Xxxxxx X. XxXxx
|
||||||
| Regional Director, Central Region | ||||||||
/s/ Xxxxx X. XxXxxx
|
||||||||
| /s/ Xxxxxxx X. Xxxxxxx | ||||
| Xxxxxxx X. Xxxxxxx, Director | ||||
| /s/ Xxxxx X. Xxxxx | ||||
| Xxxxx X. Xxxxx, Director | ||||
| /s/ Xxxxx X. Xxxxxxx | ||||
| Xxxxx X. Xxxxxxx, Director | ||||
| /s/ Xxxxxxx X. Xxxxxxxx | ||||
| Xxxxxxx X. Xxxxxxxx, Director | ||||
| /s/ Xxxxxxx X. XxXxxxxx | ||||
| Xxxxxxx X. XxXxxxxx, Director | ||||
| /s/ Xxxxxx X. Xxxxxxxxx | ||||
| Xxxxxx X. Xxxxxxxxx, Director | ||||
| /s/ Xxxx X. Xxxxx | ||||
| Xxxx X. Xxxxx, Director | ||||
HMN Financial, Inc.
Supervisory Agreement
Page 9 of 9
Supervisory Agreement
Page 9 of 9
