EXHIBIT 10.11
SECOND AMENDMENT TO THE
EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
FOR XXXXXXX X. XXXXX
Upon mutual consent and for valuable consideration hereby recognized, the
EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT FOR XXXXXXX X. XXXXX is
hereby amended to bring the plan into compliance with 26 USCS ss. 409A. The
language below is immediately effective for each listed subsection and
supercedes all previous versions of these sections and subsections.
AMENDED SECTIONS
SUBSECTION 1.6 OF THE EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT FOR
GREGORYJ. XXXXX SHALL BE AMENDED AS FOLLOWS:
1.6 "Change of Control" shall mean and include the following change of control
events with respect to the Mutual Holding Company, the Bank, or the Holding
Company;
Change in Control Events shall include a change in the ownership of the
corporation, a change in effective control of the corporation, or a change
in the ownership of a substantial portion of the assets of the corporation.
For this section "persons acting as a group" is defined as follows: Persons
will be considered to be acting as a group if they are owners of a
corporation that enters into a merger, consolidation, purchase or
acquisition of stock, or similar business transaction with the corporation.
Persons will not be considered lobe acting as a group solely because they
purchase or own stock of the same corporation at the same time, or as a
result of the same public offering. If a person, including an entity, owns
stock in both corporations that enter into a merger, consolidation,
purchase or acquisition of stock, or similar transaction, such shareholder
is considered to be acting as a group with other shareholders in a
corporation only with respect to the ownership in that corporation prior to
the transaction giving rise to the change and not with respect to the
ownership interest in the other corporation.
A. CHANGE IN OWNERSHIP OF THE CORPORATION
Change in the ownership occurs on the date that any one person, or more
than one person acting as a group (as defined above), acquires
ownership of stock of the corporation that, together with stock held by
such person or group, constitutes more than 50 percent of the total
fair market value or total voting power of the stock of such
corporation. However, if any one person or more than one person acting
as a group, is considered to own more than 50 percent of the total fair
market `value or total voting power of the stock of a corporation, the
acquisition of additional stock by the same person or persons is not
considered to cause a change in the ownership of the corporation or to
cause a change in the effective control of the corporation.
B. CHANGE IN THE EFFECTIVE CONTROL OF THE CORPORATION
Change in the effective control of the corporation. A change in the
effective control of a corporation occurs on the date that either --
(1) Any one person, or more than one person acting as a group (as
defined above), acquires (or has acquired during the 12- month period
ending on the date of the most recent acquisition by such person or
persons) ownership of stock of the corporation possessing 35 percent or
more of the total voting power of the stock of such corporation; or (2)
a majority of members of the corporation's board of directors is
replaced during any 12-month period by directors whose appointment or
election is not endorsed by a majority of the members of the
corporation's board of directors prior to the date of the appointment
or election.
C. CHANGE IN THE OWNERSHIP OF A SUBSTANTIAL PORTION OF THE CORPORATION'S
ASSETS
Change in the ownership of a substantial portion of a corporation's
assets occurs on the date that any one person, or more than one person
acting as a group (as defined above), acquires (or has acquired during
the 12-month period ending on the date of the most recent acquisition
by such person or persons) assets from the corporation that have a
total gross fair market value equal to or more than 40 percent of the
total gross fair market value of all of the assets of the corporation
immediately prior to such acquisition or acquisitions For this purpose,
gross fair market value means the value of the assets of the
corporation, or the value of the assets being disposed of, determined
without regard to any liabilities associated with such assets.
There is no Change in Control Event when there is a transfer to an
entity that is controlled by the shareholders of the transferring
corporation immediately after the transfer A transfer of assets by a
corporation is not treated as a change in the ownership of such assets
if the assets are transferred to:
(1) A shareholder of the corporation (immediately before the asset
transfer) in exchange for or with respect to its stock;
(2) An entity, 50 percent or more of the total value or voting power of
which is owned, directly or indirectly, by the corporation;
(3) A person, or more than one person acting as a group, that owns,
directly or indirectly, 50 percent or more of the total value or voting
power of all the outstanding stock of the corporation; or
(4) An entity, at least 50 percent of the total value or voting power
of which is owned, directly or indirectly, by a person described in
paragraph (iii).
For purposes of this subsection, a person's status is determined
immediately after the transfer of the assets., For example, a transfer
to a corporation in which the transferor corporation has no ownership
interest before the transaction, but which is a majority- owned
subsidiary of the transferor corporation after the transaction is not
treated as a change in the ownership of the assets of the transferor
corporation.
SUBSECTION 1.13 OF THE EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT FOR
XXXXXXX X. XXXXX SHALL HE AMENDED AS FOLLOWS:
1.13 "Payout Period" means the time frame during which certain benefits
payable hereunder shall be distributed Payments shall be made in
monthly installments and continue for a period of One Hundred and
Eighty (180) months or for the live of the Executive whichever is
longer. In the event of distributions made at the Benefit Age specified
in the plan, distributions made at disability, distributions made at
death, or distributions made due to a change in control; payments will
commence on the first day of the month following the occurrence of the
event which triggers distribution.
In the event of a key employee's separation from service, for reasons
other than those stated above in this subsection, payments will
commence on the first day of the month following a six (6) month period
after separation from service, as required by 26 USCS ss. 409A For
purposes of the Survivor's Benefit payable hereunder, the Payout Period
shall be One Hundred and Eighty (180) months.
SUBSECTION 1.14 OF THE EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT FOR
XXXXXXX X. XXXXX SHALL BE AMENDED AS FOLLOWS:
1.14 "Permanently and Totally Disabled" means the Executive is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period of
not less than 12 months as determined by a duly licensed independent
physician selected by the Bank.
SUBSECTION 3.1 OF THE EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT FOR
XXXXXXX X. XXXXX SHALL BE AMENDED AS FOLLOWS:
3.1 Normal Retirement Benefit At the Normal Retirement Date as designated
in subsection 1.12, the Bank shall commence payments of the
Supplemental Retirement Income Benefit to Executive Such payments shall
commence the first day of the month next following the Normal
Retirement Date and shall be payable in monthly installments throughout
the Payout Period.
SUBSECTION 3.3 OF THE EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT FOR
XXXXXXX X. XXXXX SHALL BE AMENDED AS FOLLOWS:
3.3 Voluntary or Involuntary Termination of Employment If the Executive's
employment with the Bank is voluntarily or involuntarily terminated
prior to Normal Retirement Age, for any reason other than for Cause,
the Executive's death, disability, or following a Change in Control,
the Executive (or his Beneficiary) shall be entitled to his Accrued
Benefit as of the date of such termination, annuitized using the
Interest Factor. Such benefit will commence on the first day of the
month following a six (6) month period after separation from service,
as required by 26 USCS ss. 409A, and shall be payable in monthly
installments throughout the Payout Period.
SUBSECTION 3.6 OF THE EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT FOR
XXXXXXX X. XXXXX SHALL BE AMENDED AS FOLLOWS:
3.6 Changing the Elected Benefit Age Any change in the elected benefit age
must be made in compliance with 26 USCS ss. 409A. Moving the benefit
age forward can only be accomplished within the allowed exceptions to
the acceleration of benefits requirements of ss. 409A. The benefit age
can be moved back if: the new election benefit date is at east five (5)
years from the date payment would otherwise have been made; the new
elected benefit date does not take effect until at least twelve (12)
months after the date the election is made, and the change in the
election benefit date is not made less than twelve (12) months prior to
the date of the first scheduled payment.
SUBSECTION 3.7 OF THE EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT FOR
XXXXXXX X. XXXXX SHALL BE AMENDED AS FOLLOWS:
3.7 Separation from Service In the event of the key employee's separation
from service, no distributions shall be made sooner than six (6) months
after the date of separation of service. This six month delay does not
apply to distributions made at the Benefit Age specified in the plan,
distributions made at disability, distributions made at death, or
distributions made due to a change in control.
All other provisions of the EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
FOR XXXXXXX X. XXXXX which are not specifically modified by this Amendment are
hereby incorporated and shall remain in full force and effect.
c/s/ Xxxxxxx X. Xxxxx Date 1-4-06 Executive Signature and Date
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Xxxxxxx X. Xxxxx Title President & CEO Executive Printed Name/Title
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/s/ Xxxxxx X. Xxxxxxxxxx Date 1-4-06 Bank Officer Signature and Date
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Xxxxxx X. Xxxxxxxxxx Title Sr. VP / CFO Bank Printed Name/Title
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