Exhibit 10.9
PEOPLES STATE BANK
EXECUTIVE DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT is made by and between PEOPLES STATE BANK (the "Bank"), a
Wisconsin state banking association with its principal place of business in
Wausau, Wisconsin, and ______________________ (the "Executive") and provides as
follows:
INTRODUCTION
WHEREAS, the Bank desires to promote its growth and prosperity and the
growth and prosperity of its parent holding company, PSB Holdings, Inc. (the
"Holding Company"), through the attraction and retention of qualified personnel
for positions of substantial responsibility by providing key officers and
employees with the opportunity to defer compensation as an incentive and reward
for their contribution to the success of the Bank and the Holding Company.
AGREEMENT
The Executive and the Bank agree as follows:
ARTICLE
DEFINITIONS
1.1 Definitions. Whenever used in this Agreement, the following words
and phrases shall have the meanings specified:
1.1.1 "Base Salary" means the Executive's current base salary,
excluding any and all other compensation such as commissions, allowances,
or any other non-annual payment or incentive bonus of either cash,
deferred cash payments, or payments into or for any deferred compensation
plan, including Code section 401(k) plans, and premium payments for life
insurance under the terms of any other deferred compensation or benefit
agreement.
1.1.2 "Benefit Election Form" means the form attached hereto as
Exhibit C.
1.1.3 "Beneficiary" means each designated person, or the estate of
the deceased Executive, entitled to benefits, if any, upon the death of
the Executive determined pursuant to Article 5.
1.1.4 "Beneficiary Designation Form" means the form established
from time to time by the Plan Administrator that the Executive completes,
signs, and returns to the Plan Administrator to designate one or more
Beneficiaries, such form attached hereto as Exhibit A.
1.1.5 "Change of Control" means:
(a) a change in the ownership of the of the Bank or of the
Holding Company whereby a Person (defined below) acquires, directly
or indirectly, ownership of a number of shares of capital stock of
the Bank or of the Holding Company which, together with capital
stock held by such Person, constitutes more than fifty percent
(50%) of the total fair market value or of the combined voting
power of the Bank's or of the Holding Company's outstanding capital
stock; provided, however, that if a Person already owns more than
fifty percent (50%) of the total fair market value or of the
combined voting power of the Bank's or of the Holding Company's
outstanding capital stock, the acquisition of additional capital
stock by such Person is not considered a Change of Control of the
Bank or of the Holding Company; provided further, that an increase
in the percentage of stock owned by a Person as a result of a
transaction in which the Bank or the Holding Company acquires its
capital stock in exchange for property will be treated as an
acquisition of capital stock for purposes of this Section 1.1.5(a);
or
(b) a change in the effective control of the Bank or of the
Holding Company, whereby either:
(i) a Person acquires (or has acquired during the
preceding twelve (12) month period ending on the date of the
most recent acquisition by such Person), directly or
indirectly, ownership of a number of shares of capital stock
of the Bank or of the Holding Company which constitutes
thirty-five percent (35%) or more of the combined voting
power of the Bank's or of the Holding Company's outstanding
capital stock; provided, however, that if a Person already
owns thirty-five percent (35%) or more of the combined voting
power of the Bank's or of the Holding Company's outstanding
capital stock, the acquisition of additional capital stock by
such Person is not considered a Change of Control of the Bank
or of the Holding Company; or
(ii) a majority of the persons who were members of the
Board of Directors of the Holding Company as of the Effective
Date are, within a twelve (12) month period, replaced by
individuals whose appointment or election to the Holding
Company's Board of Directors is not endorsed by a majority of
the Holding Company's Board of Directors prior to the
appointment or election; or
(c) a change in the ownership of the assets of the Bank or
of the Holding Company, whereby a Person acquires (or has acquired
during a twelve (12) month period ending on the date of the most
recent acquisition by such Person) assets of the Bank or of the
Holding Company that have a total gross fair market value equal to
or more than forty percent (40%) of the total gross fair market
value of all of the assets of the Bank or of the Holding Company
immediately prior to such acquisition or
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acquisitions; provided, however, that there is no Change of Control
if assets are transferred to an entity that is controlled by the
shareholders of the Bank of the Holding Company immediately after
the transfer, nor is it a Change of Control if the Bank or Holding
Company transfers assets to:
(i) a shareholder of the Bank or of the Holding
Company (immediately before the asset transfer) in exchange
for or with respect to the shareholder's capital stock in the
Bank;
(ii) an entity, fifty percent (50%) or more of the
total value or voting power of which is owned, directly or
indirectly, by the Bank or the Holding Company;
(iii) a Person that owns, directly or indirectly, fifty
percent (50%) or more of the total value or voting power of
all the outstanding capital stock of the Bank or of the
Holding Company; or
(iv) an entity, at least fifty percent (50%) of the
total value or voting power of which is owned, directly or
indirectly, by a Person described in paragraph (iii) of this
Section 1.1.5(c).
For purposes of this Section 1.1.5, a "Person" shall mean an
individual, a corporation, or a group of persons acting in concert;
provided, however, that persons will not be acting as a group solely
because they purchase or own stock of a corporation at the same time or
as a result of the same public offering. Persons will be considered
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 that corporation. If a Person owns stock in
both corporations that enter into a merger, consolidation, purchase or
acquisition of stock, or similar transaction, such Person is considered
to be acting in a group with other shareholders of a corporation prior to
the transaction giving rise to the Change of Control, and not with
respect to the ownership interest in the other corporation. For purposes
of this Section 1.1.5, "gross fair market value" means the value of the
assets of the Bank or of the Holding Company, or the value of the assets
being disposed of, determined without regard to any liabilities
associated with such assets.
1.1.5.1 "Permitted Transfer" means that a Shareholder may make
the following transfers and such transfers shall be deemed not to be
a Change of Control under Section 1.1.5:
(i) To any trust, company, or partnership created
solely for the benefit of any Shareholder or any spouse of or
any lineal descendent of any Shareholder;
(ii) To any individual or entity by bona fide gift;
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(iii) To any spouse or former spouse of any Shareholder
pursuant to the terms of a decree of divorce;
(iv) To any officer or employee of the Bank pursuant
to any incentive stock option plan established by the
Shareholder;
(v) To any family member of any Shareholder;
(vi) After receipt of any necessary regulatory
approvals, to any company or partnership, including but not
limited to, a family limited partnership, a majority of the
stock or interests of which company or partnership are owned
by any of the Shareholder;
(vii) To any existing Shareholder as of the effective
date of this Agreement; or
(viii)To any trust established and intended to qualify
under section 401(a) of the Code.
1.1.6 "Change of Control Benefit" means the benefit described in
Section 4.6.
1.1.7 "Code" means the Internal Revenue Code of 1986, as amended.
1.1.8 "Death Benefit" means the benefit described in Article 5.
1.1.9 "Death Benefit Election Form" means the form attached hereto
as Exhibit D.
1.1.10 "Deferral" means the amount of Base Salary that the
Executive elects to contribute to the Deferral Account, as set forth on
The Deferral Election Form.
1.1.11 "Deferral Account" means the bookkeeping account established
pursuant to Article 3 of this Agreement.
1.1.12" Deferral Election Form" means the form attached hereto as
Exhibit B.
1.1.13" Disability" means (i) the inability of the Executive 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
more than twelve (12) months, or (ii) the receipt of income replacement
benefits for a period of more than three (3) months under a Bank-
sponsored accident and health plan covering the Executive due to a
medically determinable physical or mental impairment which is expected to
result in death or is expected to last for a continuous period of more
than twelve (12) months.
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1.1.14" Disability Benefit" means the benefit described in Section
4.5.
1.1.15" Effective Date" means February 7, 2005.
1.1.16" Early Retirement Age" means age fifty-five (55) with
fifteen (15) full Service Years and five (5) full Participation Years.
1.1.17" Early Retirement Date" means the month, day and year that
Termination of Employment occurs following the date the Executive has
attained Early Retirement Age.
1.1.18" Interest" has the meaning set forth in Section 3.1.3.
1.1.19" Matching Deferral" means the amount matching contribution
that the Bank will contribute to the Executive's Deferral Account,
determined in accordance with Section 3.1.2.
1.1.20" Normal Retirement Date" means age sixty-five (65).
1.1.21" Participation Year" means the number of full Plan Years in
which the Executive has been covered by and eligible for the benefits
provided by this Agreement. Participation Years do not include periods
prior to the Effective Date of this Agreement. Credit for a
Participation Year will be credited as of the January 1st next following
the end of the Participation Year.
1.1.22" Plan Year" means the twelve (12) consecutive months
beginning on January 1st of each year and ending on December 31st of each
year. The initial Plan Year shall commence on the Effective Date.
1.1.23" Return on Equity" or "ROE" means the Bank's Return on
Equity as reported on the immediately preceding Report and Condition of
Income prepared for the Bank by the FFIEC.
1.1.24" Service Year " means a full twelve (12) month period
commencing on January 1st and ending on December 31st during which the
Executive performs services for the Bank as an employee. Service Years
include periods prior to the Effective Date of this Agreement and
includes service at any predecessor entity or service at an entity
acquired by the Bank and/or Holding Company. Credit for a Service Year
will be credited as of the January 1st next following the end of the
Participation Year.
1.1.25" Shareholder" means the existing owners of all issued and
outstanding stock of the Bank or Holding Company as of the Effective Date
of this Agreement.
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1.1.26" Specified Employee" means a "key employee," as that term is
defined in section 416(i) of the Code.
1.1.27" Termination for Cause" has the meaning set forth in Section
7.1.
1.1.28" Termination of Employment" means that the Executive ceases
to be employed by the Bank for any reason, voluntary or involuntary,
other than by reason of a leave of absence approved by the Bank.
ARTICLE
ELECTIONS
2.1 Initial Election. The Executive's initial Deferral Election Form,
Benefit Election Form, and Death Benefit Election Form must be executed and
returned to the Bank within thirty (30) days of the Effective Date of this
Agreement, and shall apply to Base Salary earned with respect to services
performed after the Effective Date.
2.2 Subsequent Elections.
2.2.1 Deferral Elections. Deferral Election Forms with respect to
Base Salary earned for services performed in a following Plan Year must
be executed and returned to the Bank no later than December 31st of the
current Plan Year, provided, however, that in the event the Executive
fails to provide a subsequent Deferral Election Form to the Bank by
December 31st of the current Plan Year, the Bank may rely on the most
recent Deferral Election Form provided by the Executive to determine the
amount, if any, of the Executive's Deferral for the following Plan Year.
2.2.2 Benefit Election and Death Benefit Election. The Executive
(and the Executive's Beneficiary, if applicable) shall be permitted to
change the Executive's initial Benefit Election Form and Death Benefit
Election Form by filing a newly completed Benefit Election Form or Death
Benefit Election Form; provided, however, that subsequent elections are
subject to and must comply with the requirements under Code section 409A
and guidance issued thereunder, to the extent applicable, regarding
distribution elections and subsequent distribution elections.
2.3 Deferral Election Form Modifications. The Executive may modify a
Deferral Election Form and the amount of Deferrals to be made during a Plan
Year by providing the Bank an new Deferral Election Form; provided, however,
that the Executive may only elect to decrease or discontinue such Deferrals,
and may not, during a Plan Year, elect to increase such Deferrals. Any such
modification to the amount of Deferral shall not be effective until the second
pay period following notification by the Executive to the Bank by the
Executive's completion of a new Deferral Election Form.
ARTICLE 3
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DEFERRAL ACCOUNT
3.1 Establishing and Crediting. The Bank shall establish a Deferral
Account on its books for the Executive, and shall credit to the Deferral
Account the following amounts:
3.1.1 Deferrals. That amount of Base Salary deferred by the
Executive as set forth in the signed Deferral Election Form completed by
the Executive and submitted to the Bank in accordance with Article 2.
The Bank shall credit the Deferrals as of the time such amounts would
have otherwise been paid to the Executive as Base Salary in accordance
with the Bank's or the Holding Company's regular payroll schedule and
policy. Notwithstanding the above, in any given Plan Year the total
amount deferred by the Executive shall not exceed an amount equaling
twenty percent (20%) of Base Salary.
3.1.2 Matching Deferrals. In addition to the Executive's Deferrals
as described in Section 3.1.1, each Plan Year the Bank shall make a
Matching Deferral contribution in an amount equal to twenty percent (20%)
of the Executive's Deferrals, up to a maximum of three percent (3%) of
the Executive's Base Salary. The Bank shall credit the Matching
Deferrals at the time the Deferrals are credited to the Deferral Account
in accordance with Section 3.1.1.
3.1.2.1 Vesting of Matching Deferrals. For each full
Participation Year (determined as of the Executive's Termination of
Employment for any reason), the Executive's shall vest in twenty
percent (20%) of the Matching Deferrals contributed to his Deferral
Account (and any Interest thereon) during that Participation Year
at the end of such Participation Year, and shall continue to vest
an additional twenty percent (20%) in such Matching Deferrals over
the next four (4) year period, such that Matching Deferrals
contributed for a given Participation Year shall be fully vested
upon completion of the five full Participation Years, including the
Participation Year in which the Matching Deferral was contributed
to the Deferral Account. For example, at the completion of five (5)
Participation Years, the Executive shall be fully vested in
Matching Deferrals contributed in the first Participation Year,
eighty percent (80%) vested in Matching Deferrals contributed in
the second Participation Year, sixty percent (60%) vested in
Matching Deferrals contributed in the third Participation Year, and
so on.
3.1.2.2 Full Vesting of Matching Deferrals.Notwithstanding
the preceding Section 3.1.2.1, the Executive shall be one hundred
percent (100%) vested in all Matching Deferrals upon the
Executive's death, Disability, or attainment of Early Retirement
Age or Normal Retirement Age.
3.1.3 Interest. Until any payment commences under Article 4 or
Article 5 of this Agreement, the Bank shall accrue Interest on the
Deferral Account at an annual rate equal to the fifty percent (50%) of
the annual Return on Equity of the Bank for the Plan Year, subject to a
minimum of zero percent (0%) and a maximum of ten percent (10%). The
Bank shall
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credit annual Interest in arrears at the end of each Plan Year
on only the Deferrals and Matching Deferrals credited during the Plan
Year to the Deferral Account. In addition, as of the first day of a Plan
Year, the Bank will credit compound Interest to the Deferral Account
based on the Deferral Account balance as of the last day of the preceding
Plan Year. Interest credited under this Section 3.1.3 shall continue
until payment commences using the ROE for the prior Plan Year. In the
event of a part-year interest payment due the Executive's entitlement to
and commencement of benefits under this Agreement, the interest rate
shall be applied to the Deferral Account balance using monthly
compounding for the period prior to the first payment of any benefits
under this Agreement.
3.2 Statement of Account. The Bank shall provide to the Executive,
within one hundred twenty (120) days after the last day of each Plan Year, a
statement setting forth the Deferral Account balance.
3.3 Accounting Device Only. The Deferral Account is solely a device
for measuring amounts to be paid under this Agreement. The Deferral Account is
not a trust fund of any kind. The Executive is a general unsecured creditor of
the Bank for the payment of benefits. The benefits represent the Bank's
promise to pay such benefits. The Executive's rights are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by the Executive's creditors.
ARTICLE 4
BENEFITS DURING LIFETIME
4.1 Normal Retirement Benefit. Upon the Executive's Normal Retirement
Date, the Bank shall pay to the Executive the benefit described in this Section
4.1 in lieu of any other benefit under this Agreement.
4.1.1 Amount of Benefit. The benefit under this Section 4.1 is one
hundred percent (100%) of the Deferral Account balance, determined as of
the Executive's Normal Retirement Date.
4.1.2 Payment of Benefit. The Bank shall pay the benefit
determined under Section 4.1.1 to the Executive in the form elected by
the Executive on the Benefit Election Form, commencing on the last day of
the month following the Executive's Normal Retirement Date; provided,
however, that if the Executive is a Specified Employee, payment of the
Executive's benefit shall not commence until the last day of the sixth
(6th) month following the Executive's Normal Retirement Date.
4.2 Early Retirement Benefit.Upon the Executive's Early Retirement
Date, the Bank shall pay to the Executive the benefit described in this Section
4.2 in lieu of any other benefit under this Agreement.
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4.2.1 Amount of Benefit. The benefit under this Section 4.2 is one
hundred percent (100%) of the Deferral Account balance, determined as of
the Executive's Early Retirement Date.
4.2.3 Payment of Benefit. The Bank shall pay the benefit
determined under Section 4.2.1 to the Executive in the form elected by
the Executive on the Benefit Election Form, commencing on the last day of
the month following the Executive's Early Retirement Date; provided,
however, that if the Executive is a Specified Employee, payment of the
Executive's benefit shall not commence until the last day of the sixth
(6th) month following the Executive's Early Retirement Date.
4.3 Voluntary Termination Benefit. Upon the Executive's Voluntary
Termination Date, the Bank shall pay to the Executive the benefit described in
this Section 4.3 in lieu of any other benefit under this Agreement.
4.3.1 Amount of Benefit. The benefit under this Section 4.3 is as
follows: (i) one hundred percent of the Deferral Account with respect to
Deferrals earning attributable to the Deferrals, plus (ii) the vested
portion of the Deferral Account with respect to Matching Deferrals and
earnings attributable to the Matching Deferrals, such vested portion
determined in accordance with the schedule set forth in Section 3.1.2.1
of this Agreement, each as determined as of the Executive's Voluntary
Termination Date.
4.3.2 Payment of Benefit. The Bank shall pay the benefit
determined under Section 4.3.1 to the Executive in a single lump-sum
payment within sixty (60) days after the Executive's Voluntary
Termination Date; provided, however, that if the Executive is a Specified
Employee, payment of the Executive's benefit shall not commence until the
last day of the sixth (6th) month following the Executive's Voluntary
Termination Date.
4.4 Involuntary Termination Benefit. Upon the Executive's Involuntary
Termination Date, the Bank shall pay to the Executive the benefit described in
this Section 4.4 in lieu of any other benefit under this Article.
4.4.1 Amount of Benefit. The benefit under this Section 4.4 is one
hundred percent (100%) of the Deferral Account balance determined as of
last day of the preceding Plan Year, plus any Deferrals and Matching
Deferrals during the current Plan Year, with Interest credited thereto
based upon the prior Plan Year's ROE fur the current Plan Year; provided,
however, that if the Executive's Involuntary Termination is due to
Termination For Cause, the benefit under this Section 4.4 is one hundred
percent (100%) of the Executive's Deferrals, without regard to Interest,
determined as of the Executive's Involuntary Termination Date.
4.4.2 Payment of Benefit. The Bank shall pay the benefit
determined under Section 4.4.1 to the Executive in a single lump-sum
payment within sixty (60) days after the Executive's Involuntary
Termination Date; provided, however, that if the Executive is a
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Specified Employee, payment of the Executive's benefit shall not commence
until the last day of the sixth (6th) month following the Executive's
Involuntary Termination Date.
4.5 Disability Benefit. Upon the Executive's Termination of Employment
due to Disability prior to Normal Retirement Age, the Bank shall pay to the
Executive the benefit described in this Section 4.5 in lieu of any other
benefit under this Agreement.
4.5.1 Amount of Benefit. The benefit under this Section 4.5.1 is
one hundred percent (100%) of the Deferral Account, determined as of the
date of the Executive's Termination of Employment due to Disability.
4.5.2 Payment of Benefit. The Bank shall pay the benefit
determined under Section 4.5.1 to the Executive in the form elected by
the Executive on the Benefit Election Form, commencing on the last day of
the month following the Executive's certification of Disability.
4.6. Change of Control Benefit. Upon a Change of Control, the
Executive shall become entitled to the applicable benefit described in this
Section 4.6 in lieu of any other benefit under this Agreement.
4.6.1 Amount of Benefit. The benefit under Section 4.6 is one
hundred percent (100%) of the Deferral Account, as determined on the date
of the Executive's death.
4.6.2 Payment of Benefit. The Bank shall pay the benefit
determined under Section 4.6.1 to the Executive in lump-sum payment
within sixty (60) days of the Change of Control.
ARTICLE 5
DEATH BENEFITS
5.1 Death During Active Service. If the Executive dies while in the
active service of the Bank, the Bank shall pay to the Executive's beneficiary
the benefit described in this Section 5.1 in lieu of the benefits under this
Agreement.
5.1.1 Amount of Benefit. The benefit under Section 5.1 is one
hundred percent (100%) of the Deferral Account, as determined on the date
of the Executive's death.
5.1.2 Payment of Benefit. The Bank shall pay the benefit
determined under Section 5.1.1 to the Beneficiary in the form elected by
the Executive on the Death Benefit Election Form, commencing on the last
day of the month following the death.
5.2 Death During Benefit Period. If the Executive dies after benefit
payments have commenced under this Agreement, but before receiving all such
payments, the Bank shall pay the remaining benefits to the Executive's
Beneficiary at the same time, in the same method, and in the same amounts they
would have been paid to the Executive had the Executive survived.
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ARTICLE 6
BENEFICIARIES
6.1 Beneficiary Designation. The Executive shall have the right, at
any time, to designate a Beneficiary(ies) to receive any benefits payable under
this Agreement upon the death of the Executive. The Beneficiary designated
under this Agreement may be the same as or different from the beneficiary
designation under any other benefit plan of the Bank in which the Executive
participates.
6.2 Beneficiary Designation: Change. The Executive shall designate a
Beneficiary by completing and signing the Beneficiary Designation Form, and
delivering it to the Plan Administrator or its designated agent. The
Executive's Beneficiary designation shall be deemed automatically revoked if
the Beneficiary predeceases the Executive or if the Executive names a spouse as
Beneficiary and the marriage is subsequently dissolved. The Executive shall
have the right to change a Beneficiary by completing, signing and otherwise
complying with the terms of the Beneficiary Designation Form and the Plan
Administrator's rules and procedures, as in effect from time to time. Upon the
acceptance by the Plan Administrator of a new Beneficiary Designation Form, all
Beneficiary designations previously filed shall be cancelled. The Plan
Administrator shall be entitled to rely on the last Beneficiary Designation
Form filed by the Executive and accepted by the Plan Administrator prior to the
Executive's death.
6.3 Acknowledgment. No designation or change in designation of a
Beneficiary shall be effective until received, accepted and acknowledged in
writing by the Plan Administrator or its designated agent.
6.4 No Beneficiary Designation. If the Executive dies without a valid
beneficiary designation, or if all designated Beneficiaries predecease the
Executive, then the Executive's spouse shall be the designated Beneficiary. If
the Executive has no surviving spouse, the benefits shall be made to the
personal representative of the Executive's estate.
6.5 Facility of Payment. If the Plan Administrator determines in its
discretion that a benefit is to be paid to a minor, to a person declared
incompetent, or to a person incapable of handling the disposition of that
person's property, the Plan Administrator may direct payment of such benefit to
the guardian, legal representative, or person having the care or custody of
such minor, incompetent person, or incapable person. The Plan Administrator
may require proof of incompetence, minority, or guardianship as it may deem
appropriate prior to distribution of the benefit. Any payment of a benefit
shall be a payment for the account of the Executive and the Executive's
Beneficiary, as the case may be, and shall be a complete discharge of any
liability under the Agreement for such payment amount.
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ARTICLE 7
GENERAL LIMITATIONS
7.1 Termination for Cause. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not pay any benefit under this
Agreement if the Board terminates the Executive's employment for:
(a) Conviction of, or a plea of nolo contendere by, Executive to
a felony or to fraud, embezzlement or misappropriation of funds;
(b) The commission of a fraudulent act or omission, breach of
trust or fiduciary duty with regard to the Company, that has had a
material adverse effect on the Company;
(c) Material violation by Executive of any applicable federal
banking law or regulation that has had a material adverse effect on the
Company; or
(d) The willful failure by Executive, without communication to
the Board of Directors before such act, to adhere to the Company's
written policies, which causes a material monetary injury or other
material harm to the Company.
Notwithstanding the foregoing, the Executive shall not be deemed to have
been terminated by reason of violating Sections 7.1(b), (c), or (d) until
Executive is notified in writing by the Bank (or its successor entity) of a
determination of a violation of Sections 7.1(b), (c), or (d), specifying the
particulars thereof in reasonably sufficient detail, and giving the Executive a
reasonable opportunity (of not less than ten (10) days), together with his
counsel, to explain to the Bank why there has been no violation of Sections
7.1(b), (c), or (d), followed by a finding by the Bank (i) that in the good
faith opinion of the Bank (or its successor entity) the Executive had committed
an act described in Sections 7.1(b), (c), or (d) above, (ii) specifying the
particulars thereof in detail, and (iii) determining that such violation has
not been corrected, or is not capable of correction. Nothing herein shall
limit the right of the Executive or his Beneficiary to contest the validity or
propriety of any such determination.
7.2 Suicide or Misstatement. The Bank shall not pay any benefit under
this Agreement if the Executive commits suicide within two (2) years after the
Effective Date. In addition, the Bank shall not pay any benefit under this
Agreement if the Executive has made any material misstatement of fact on any
application for life insurance owned by the Bank on the Executive's life that
results in the Bank being unable to collect the total death proceeds from such
policies.
7.3 Excess Parachute Payment. Notwithstanding any provision of this
Agreement to the contrary, the Bank shall not be required to pay any benefit
under this Agreement if, upon the advice of counsel, the Bank determines that
the payment of such benefit would be prohibited by 12 C.F.R. Part 359 or any
successor regulations regarding employee compensation promulgated by any
regulatory agency having jurisdiction over the Bank or its affiliates, or to
the extent any benefit would be a non-deductible excess parachute payment under
Section 280G of the Code, or create an
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excise tax under the excess parachute rules of Sections 280G and 4999 of the
Code. To the extent possible, the Bank shall reduce the benefit paid under
this Agreement to the maximum benefit that would be permissible, deductible,
and would not result in any such excise tax.
ARTICLE 8
CLAIMS AND REVIEW PROCEDURES
8.1 Claims Procedure. An Executive or Beneficiary ("claimant") who has
not received benefits under the Agreement that he or she believes should be
paid shall make a claim for such benefits as follows:
8.1.1 Initiation - Written Claim. The claimant initiates a claim
by submitting to the Plan Administrator a written claim for the benefits.
8.1.2 Timing of Plan Administrator Response. The Plan
Administrator shall respond to such claimant within ninety (90) days
after receiving the claim. If the Plan Administrator determines that
special circumstances require additional time for processing the claim,
the Plan Administrator can extend the response period by an additional
ninety (90) days by notifying the claimant in writing, prior to the end
of the initial ninety (90) day period, that an additional period is
required. The notice of extension must set forth the special
circumstances and the date by which the Plan Administrator expects to
render its decision. If there is an extension, a decision on the claim
shall be made as soon as possible, but not later than one hundred eighty
(180) days after receipt by the Plan Administrator of your initial claim
for benefits.
8.1.3 Notice of Decision. If the Plan Administrator denies part or
all of the claim, the Plan Administrator shall notify the claimant in
writing of such denial. The Plan Administrator shall write the
notification in a manner calculated to be understood by the claimant.
The notification shall set forth:
(a) The specific reasons for the denial;
(b) A reference to the specific provisions of the Agreement
on which the denial is based;
(c) A description of any additional information or material
necessary for the claimant to perfect the claim and an explanation
of why it is needed;
(d) An explanation of the Agreement's review procedures and
the time limits applicable to such procedures; and
(e) A statement of the claimant's right to bring a civil
action under ERISA Section 502(a) following an adverse benefit
determination on review.
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8.2 Review Procedure. If the Plan Administrator denies part or all of
the claim, the claimant shall have the opportunity for a full and fair review
by the Plan Administrator of the denial, as follows:
8.2.1 Initiation - Written Request. To initiate the claim denial
review, the claimant, within sixty (60) days after receiving the Plan
Administrator's notice of denial, must file with the Plan Administrator a
written request for review.
8.2.2 Additional Submissions - Information Access. The claimant
shall then have the opportunity to submit written comments, documents,
records, and other information relating to the claim. The Plan
Administrator shall also provide the claimant, upon request and free of
charge, reasonable access to, and copies of, all documents, records and
other information relevant (as defined in applicable ERISA regulations)
to the claimant's claim for benefits.
8.2.3 Considerations on Review. In considering the review, the
Plan Administrator shall take into account all materials and information
the claimant submits relating to the claim, without regard to whether
such information was submitted or considered in the initial benefit
determination.
8.2.4 Timing of Plan Administrator Response. The Plan
Administrator shall respond in writing to such claimant within sixty (60)
days after receiving the request for review. If the Plan Administrator
determines that special circumstances require additional time for
processing the claim, the Plan Administrator can extend the response
period by an additional sixty (60) days by notifying the claimant in
writing, prior to the end of the initial sixty (60) day period, that an
additional period is required. The notice of extension must set forth the
special circumstances and the date by which the Plan Administrator
expects to render its decision. This extension may only be made where
there are special circumstances which are communicated to you in writing
within the initial sixty (60) day period. If there is an extension, a
decision on your appeal shall be made as soon as possible, but not later
than one hundred twenty (120) days after receipt by the Plan
Administrator of your initial claim for review.
8.2.5 Notice of Decision. The Plan Administrator shall notify the
claimant in writing of its decision on review. The Plan Administrator
shall write the notification in a manner calculated to be understood by
the claimant. The notification shall set forth:
(a) The specific reasons for the denial;
(b) A reference to the specific provisions of the Agreement
on which the denial is based;
(c) A statement that the claimant is entitled to receive,
upon request and free of charge, reasonable access to, and copies
of, all documents, records, and other
14
information relevant (as defined in applicable ERISA regulations)
to the claimant's claim for benefits; and
(d) A statement of the claimant's right to bring a civil
action under ERISA Section 502(a).
ARTICLE 9
AMENDMENTS AND TERMINATION
9.1 Amendments. This Agreement may be amended at any time by a written
agreement to amend signed by the Bank and the Executive; provided, however,
that no such amendment shall reduce any benefits to which the Executive is
entitled under this Agreement.
9.2 Termination. Subject to Section 9.3, the Bank may terminate this
Agreement at any time prior to the Executive's Termination of Employment by
written notice to the Executive; provided, however, that if the Bank terminates
this Agreement, the Executive shall become one hundred percent (100%) vested in
the Deferral Account balance, determined at the time the Agreement is
terminated. Following termination of the Agreement, the Deferral Account
balance will be paid to the Executive in accordance with the terms of this
Agreement.
9.3 Termination of the Agreement During Benefit Period. The Bank may
not terminate this Agreement at any time after benefit payments have commenced
under this Agreement but before all such payments have been made, unless the
Bank and the Executive execute a written agreement allowing such termination.
9.4 Termination on Change of Control.Notwithstanding previous
paragraphs in this Article 9, the Bank may terminate this Agreement in its
entirety upon a Change of Control by the payment of one of the following: (1)
the vested Accrual Balance to any Executive who has a benefit due under Section
4.6.1; or (2) the payment of the present value, using the Discount Rate, of any
remaining benefits payable to any Executive who has retired or is Disabled and
is still receiving benefit payments, or to any Beneficiary of a deceased
Executive who is still receiving benefit payments.
ARTICLE 10
MISCELLANEOUS
10.1 Binding Effect. This Agreement shall bind the Executive and the
Bank, and their beneficiaries, survivors, executors, administrators, and
permitted transferees.
10.2 No Guarantee of Employment. This Agreement is not an employment
policy or contract. It does not give the Executive the right to remain an
employee of the Bank, nor does it interfere with the Bank's right to discharge
the Executive. It also does not require the Executive to remain an employee
nor interfere with the Executive's right to terminate employment at any time.
15
10.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner, except in
accordance with Article 5 with respect to designation of beneficiaries.
10.4 Tax Withholding. The Bank shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
10.5 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of Wisconsin, except to the extent preempted by the laws
of the United States of America.
10.6 Unfunded Arrangement. The Executive and beneficiary are general
unsecured creditors of the Bank for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Bank to pay such
benefits. The rights to benefits are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance by
the Executive or attachment or garnishment by the Executive's creditors. Any
insurance on the Executive's life is a general asset of the Bank to which the
Executive and beneficiary have no preferred or secured claim.
10.7 Severability. Without limitation of any other section contained
herein, in case any one or more provisions contained in this Agreement shall
for any reason be held to be invalid, illegal or unenforceable in any other
respect, such invalidity, illegality or unenforceability shall not affect the
other provisions of this Agreement. In the event any one or more of the
provisions found in the Agreement shall be held to be invalid, illegal or
unenforceable by any governmental regulatory agency or court of competent
jurisdiction, this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been a part of this Agreement and such
provision shall be deemed substituted by such other provisions as will most
nearly accomplish the intent of the parties to the extent permitted by
applicable law.
10.8 Recovery of Estate Taxes. If the Executive's gross estate for
federal estate tax purposes includes any amount determined by reference to and
on account of this Agreement, and if the Executive's beneficiary is other than
the Executive's estate, the Executive's estate shall be entitled to recover
from the beneficiary receiving such benefit under the terms of this Agreement,
an amount by which the total estate tax due by the Executive's estate exceeds
the total estate tax which would have been due and payable if the value of the
benefit created by this Agreement would not have been included in the
Executive's gross estate. If there is more than one person receiving such
benefit, the right of recovery shall be against each such person in a pro-rata
amount according to their respective interests in the total amount of benefit
created by this Agreement
10.9 Entire Agreement. This Agreement constitutes the entire agreement
between the Bank and the Executive as to the subject matter hereof. No rights
are granted to the Executive by virtue of this Agreement other than those
specifically set forth herein.
10.10 Administration. The Bank shall have powers which are necessary to
administer this Agreement, including but not limited to:
16
(a) Interpreting the provisions of the Agreement;
(b) Establishing and revising the method of accounting for the
Agreement;
(c) Maintaining a record of benefit payments; and
(d) Establishing rules and prescribing any forms necessary or
desirable to administer the Agreement.
10.11 Named Fiduciary. For purposes of the Employee Retirement Income
Security Act of 1974, if applicable, the Bank shall be the named fiduciary and
plan administrator under this Agreement. The named fiduciary may delegate to
others certain aspects of the management and operation responsibilities of the
plan including the employment of advisors and the delegation of ministerial
duties to qualified individuals.
10.12 Full Obligation. Notwithstanding any provision to the contrary,
when the Bank has paid either the lifetime benefits or death benefits as
appropriate under any section of the Agreement, the Bank has completed its
obligation to the Executive.
********
17
IN WITNESS WHEREOF, a duly authorized officer of the Bank and the
Executive has signed this Agreement on the dates indicated below, to be
effective as of the Effective Date.
BANK: EXECUTIVE:
By: _______________________________ ________________________________
Its: _______________________________ Date: ________________________
Date: __________________________
18
EXHIBIT A
PEOPLES STATE BANK
EXECUTIVE DEFERRED COMPENSATION AGREEMENT
BENEFICIARY DESIGNATION FORM
I designate the following as beneficiary of benefits under the Supplemental
Retirement Agreement with the Peoples State Bank and payable following my
death:
Primary: _________________________________________________________________
_____________________________________________________________________________
Contingent: _________________________________________________________________
_____________________________________________________________________________
Note: To name a trust as beneficiary, please provide the name of the
trustee(s) and the exact name and date of the trust agreement.
I understand that I may change these beneficiary designations by delivering a
new written designation to the Plan Administrator. I further understand that
the designations will be automatically revoked if the beneficiary predeceases
me, or, if I have named my spouse as beneficiary and our marriage is
subsequently dissolved.
Name: _______________________________
Signature: _______________________________Date: _______
SPOUSAL CONSENT (REQUIRED IF SPOUSE NOT NAMED BENEFICIARY):
I consent to the beneficiary designation above, and acknowledge that if I am
named beneficiary and our marriage is subsequently dissolved, the designation
will be automatically revoked.
Spouse Name:_______________________________
Signature: _______________________________Date: _______
Received by the Plan Administrator this ________ day of _____ --____, 20___.
By: _________________________________
Title:_________________________________
EXHIBIT B
PEOPLES STATE BANK
DEFERRED COMPENSATION AGREEMENT
DEFERRAL ELECTION FORM
I, the undersigned, hereby elect, by completing (if necessary) and
initialing the following, to defer the percentage of my Base Salary as set
forth below:
_______ I elect to defer ___________ percent (____ %) (not to exceed
twenty percent (20%)) of my Base Salary.
_______ I do not elect to defer any portion of my Base Salary.
I understand that I should complete this Deferral Election Form and
provide the executed form to the Bank no later than December 31st of each Plan
Year, such election to apply to Base Salary earned by me during the following
Plan Year. I also understand that in the event I fail to provide a completed
Exhibit A to the Bank by such date, the Bank may rely on the most recently
completed Deferral Election Form previously provided by me to the Bank to
determine that amount, if any, of my Base Salary I elect to defer for a Plan
Year.
I further understand that I modify my Deferrals during a Plan Year by
providing the Bank a new Deferral Election Form, provided that I may only
modify my Deferrals by electing to decrease the amount of Deferrals or to
discontinue Deferrals completely. Any such modification to my Deferrals shall
become effective the second pay period following my notification to the Bank.
Dated this _____ day of ______________, 20__
EXECUTIVE:
By: ____________________________________
Printed Name:
_______________________________
EXHIBIT C
PEOPLES STATE BANK
DEFERRED COMPENSATION AGREEMENT
BENEFIT ELECTION FORM
The Executive, by initialing in ink either OPTION 1 OR OPTION 2 below,
hereby elects to receive the benefits described in Sections 4.1, 4.2, or 4.5 of
the Agreement in the following manner:
OPTION 1 (LUMP SUM)
_________ a.The Bank shall pay the amount set forth in Sections 4.1, 4.2, or
4.5 of the Agreement in a single lump sum payment. Such payment
shall be made within sixty (60) days following the date of the
event giving rise to the payment under Sections 4.1, 4.2 or 4.5 of
the Agreement occurs.
OPTION 2 (UP TO A 15-YEAR ANNUITY COMMENCING AT DEATH)
_________ b.The Bank shall pay the benefit amount set forth in Sections 4.1,
4.2, or 4.5 of the Agreement in _______ (____) equal monthly
installments (not to exceed one hundred eighty (180) monthly
installments) commencing on the last day of the month following the
month in which the event giving rise to the payment under Sections
4.1, 4.2, or 4.5 of the Agreement occurs. The Bank shall credit
interest at an annual rate of seven and one-half percent (7.5%),
compounded monthly, on the remaining balance of the benefit amount
set forth in the Agreement during the applicable installment period
until fully paid.
The Executive and Bank acknowledge and agree that the Executive may change
the elections set forth above prior to the date payment is to begin by filing a
new Benefit Election Form; provided, however, that subsequent elections are
subject to and must comply with requirements under Code section 409A and the
guidance issued thereunder applicable to distribution elections and subsequent
distribution elections.
The Executive and the Bank further acknowledge and agree that the Bank, in
the absence of a valid election by the Executive under this Benefit Election
Form, the Bank shall pay any benefit under Sections 4.1, 4.2, or 4.5 of the
Agreement in accordance with OPTION 1 above.
EXECUTIVE:
By: _____________________________________
Printed Name: _____________________________
EXHIBIT D
PEOPLES STATE BANK
EXECUTIVE DEFERRED COMPENSATION AGREEMENT
DEATH BENEFIT PAYMENT ELECTION
The Executive, by initialing in ink either OPTION 1 OR OPTION 2 below,
hereby elects the following payment method for the Death Benefits described in
Subsection 5.1 of the Agreement in the following manner:
OPTION 1 (LUMP SUM PAYMENT AT DEATH)
__________ a.The Bank shall pay the amount set forth in Section 5.1 of the
Agreement in a single lump sum. The Bank shall pay this benefit to
the Executive's designated beneficiary within sixty (60) days of
the Executive's death.
OPTION 2 (UP TO A 15-YEAR ANNUITY COMMENCING AT DEATH)
__________ b.The Bank shall pay the benefit amount set forth Section 5.1 of the
Agreement to the Executive's designated beneficiary in ______
(___) equal monthly installments (not to exceed one hundred eighty
(180) monthly installments) commencing on the last day of the month
following the month of the Executive's death. The Bank shall
credit interest at an annual rate of seven and one-half percent
(7.5%), compounded monthly, on the remaining balance of the benefit
amount set forth in the Agreement during the applicable installment
period until fully paid.
The Executive and Bank acknowledge and agree that the Executive (or the
Beneficiary upon the Executive's death) may change the elections set forth
above prior to the date payment is to begin by filing a new Death Benefit
Election Form; provided, however, that subsequent elections are subject to and
must comply with requirements under Code section 409A and the guidance issued
thereunder, to the extent applicable, regarding distribution elections and
subsequent distribution elections.
The Executive and the Bank further acknowledge and agree that the Bank, in
the absence of a valid election by the Executive under this Death Benefit
Election Form, the Bank shall pay any benefit under Sections 5.1 of the
Agreement in accordance with OPTION 1 above.
EXECUTIVE:
By: _______________________________________
Printed Name:
________________________________