Exhibit 10.13
OTTAWA SAVINGS
BANK
SALARY CONTINUATION
AGREEMENT
This SALARY CONTINUATION
AGREEMENT (the “Agreement”) is adopted effective as
of April 1, 2007, by and between OTTAWA SAVINGS BANK ,
a federally-chartered savings bank located in Ottawa, Illinois (the
“Bank”) and PHILIP B. DEVERMANN (the
“Executive”).
The purpose of this Agreement is to
provide specified benefits to the Executive, a member of a select
group of management or highly compensated employees who contribute
materially to the continued growth, development, and future
business success of the Bank. This Agreement shall be unfunded for
tax purposes and for purposes of Title I of the Employee Retirement
Income Security Act of 1974 (“ERISA”), as amended from
time to time.
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, the
following words and phrases shall have the meanings
specified:
“Accrued
Benefit” means
the amount of liability that should be accrued by the Bank (i.e.,
determined without regard to whether such liability is actually
accrued) under Generally Accepted Accounting Principles
(“GAAP”), for the Bank’s obligation to the
Executive under this Agreement, by applying Accounting Principles
Board Opinion Number 12 (“APB 12”) as amended by
Statement of Financial Accounting Standards Number 106 (“FAS
106”).
“Beneficiary”
means each designated person, or the
estate of the deceased Executive, entitled to benefits, if any,
upon the death of the Executive as determined pursuant to Article
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.
“Board” means the Board of Directors of the
Bank.
“Change in
Control” means
any of the following events:
(a) Merger : The Company
merges into or consolidates with another entity, or merges another
corporation into the Company, and as a result, less than a majority
of the combined voting power of the resulting corporation
immediately after the merger or consolidation is held by persons
who were stockholders of the Company immediately before the merger
or consolidation;
(b) Acquisition of Significant
Share Ownership : There is filed, or is required to be filed, a
report on Schedule 13D or another form or schedule (other than
Schedule l3G) required under Sections l3(d) or 14(d) of the
Securities Exchange Act of 1934, as amended, if the schedule
discloses that the filing person or persons acting in concert has
or have become the beneficial owner of 25% or more of a class of
the Company’s voting securities, but this clause
(b) shall not apply to beneficial ownership of Company voting
shares held in a fiduciary capacity by an entity of which the
Company directly or indirectly beneficially owns 50% or more of its
outstanding voting securities;
(c) Change in
Board Composition : During any period of two consecutive years,
individuals who constitute the Company’s Board of Directors
at the beginning of the two-year period cease for any reason to
constitute at least a majority of the Company’s Board of
Directors; provided, however, that for purposes of this clause (c),
each director who is first elected by the board (or first nominated
by the board for election by the members) by a vote of at least
two-thirds ( 2 / 3 ) of the directors who were
directors at the beginning of the two-year period shall be deemed
to have also been a director at the beginning of such period;
or
(d) Sale of Assets : The
Company sells to a third party all or substantially all of its
assets.
Notwithstanding anything in this
Plan to the contrary, in no event shall the conversion of the Bank
to the full stock holding company form of organization constitute a
“Change in Control” for purposes of this
Plan.
“Code” means the Internal Revenue Code of 1986, as
amended.
“Company”
means Ottawa Savings Bancorp, Inc.,
the holding company for the Bank.
“Disability”
means the Executive’s
(a) inability 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; or
(b) receipt of disability benefits for a period of 3 months
under an accident and health plan of the employer by reason of the
participant’s 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.
“Effective
Date” means
April 1, 2007.
“Normal Retirement
Age” means the
Executive attaining age sixty-five (65).
“Normal Retirement
Date” means the
date of the Executive’s Separation from Service for any
reason other than Termination for Cause on or after attaining
Normal Retirement Age.
“Plan
Administrator” means the plan administrator described in
Article 6.
“Plan
Year” means
each twelve-month period commencing on January 1st and ending
on December 31st of each year. The initial Plan Year shall
commence on the Effective Date of this Agreement and end on the
following December 31st.
“Schedule
A” means the
schedule attached to this Agreement and made a part hereof.
Schedule A may be updated as necessary upon a change in any of the
benefits under Articles 2 or 3.
“Separation from
Service” means
the Executive’s termination of employment with the Bank due
to the Executive’s death, Disability, retirement, or such
other termination of employment. The Executive will not be deemed
to have experienced a Separation from Service if he is on military
leave, sick leave, or other bona fide leave of absence, to the
extent such leave does not exceed a period of six (6) months
or such longer period of time as is protected by statute or
contract. Whether or not the Executive has experienced a Separation
from Service is dependent upon the facts and circumstances;
provided, however, that the Executive will not be deemed to have
experienced a Separation from Service if he continues to provide
significant services for the Bank. For purposes of the preceding
sentence, the Executive will be considered to provide
“significant services” if he provides continuing
services that average at least twenty percent (20%) of the
services he provided during the immediately preceding three
(3) full calendar years of employment.
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“Specified
Employee” means, if the stock of the Company is publicly
traded on an established securities market or otherwise, a key
employee (as defined in Section 4l6(i)(1)(A)(i), (ii) or
(iii) thereunder and disregarding Section 416(i)(5)), at
any time ending on the last day of the Plan Year in which the
Executive incurs a Separation from Service.
“Termination for
Cause” shall
mean the termination of the Executive’s employment by the
Bank due to the Executive’s (a) personal dishonesty;
(b) incompetence; (c) willful misconduct; (d) breach
of fiduciary duty involving personal profit; (e) intentional
failure to perform state duties; (f) willful violation of any
law, rule or regulation (other than traffic violations or similar
offenses); or (g) material breach by the Executive of any
provision of this Agreement.
ARTICLE 2
DISTRIBUTIONS DURING
LIFETIME
2.1 Normal Retirement
Benefit. Upon Separation from Service for any reason other than
Termination for Cause on or after Normal Retirement Age, or upon
Separation from Service due to Disability prior to Normal
Retirement Age, the Bank shall distribute to the Executive the
benefit described in this Section 2.1 in lieu of any other
benefit under this Article.
2.1.1 Amount of Benefit. The
annual benefit under this Section 2.1 is the amount set forth
in Schedule A, attached hereto. The annual benefit shall be payable
for a period of twenty (20) years following the
Executive’s Normal Retirement Date or Separation from Service
due to Disability prior to Normal Retirement Age. The annual
benefit amount shall be subject to a simple cost of living
adjustment (COLA) of three percent (3%) per year from the date
benefits commence until the complete distribution of all benefit
payments. If the Executive separates from service on a date
following his Normal Retirement Age, his annual benefit shall equal
the benefit list on Schedule A at his Normal Retirement Age
increased annually, using the discount rate specified in Code
Section 1274 (in-effect on the date of termination) with
annual payments subject to the 3% COLA.
2.1.2 Distribution of
Benefit. The Bank shall distribute the benefit under this
Section 2.1 to the Executive in two hundred and forty
(240) consecutive monthly installments, commencing on the
first day of the month following Separation from Service or, in the
event of Separation from Service due to Disability, commencing on
the first day of the month following the Executive’s
attainment of Normal Retirement Age. Alternatively, the Executive
may elect, subject to the requirements of Section 409A of the
Code and Section 2.6, to receive a lump sum payment that is
actuarially equivalent to the Normal Retirement benefit amount
described in Section 2.1.1 (calculated as of the date of
Separation from Service and using the discount rate specified in
Code Section 1274 in effect on the date of termination). Such
payment shall be made to the Executive within sixty (60) days
after his Separation from Service.
2.2 Early Retirement Benefit.
Upon Separation from Service for any reason other than Termination
for Cause or Disability prior to Normal Retirement Age, the Bank
shall distribute to the Executive the benefit described in this
Section 2.2 in lieu of any other benefit under this
Article.
2.2.1 Amount of Benefit. The
annual benefit under this Section 2.2 is the Accrued Benefit
as of the date of the Executive’s Separation from
Service.
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2.2.2 Distribution of
Benefit. The Bank shall distribute the Accrued Benefit under
this Section 2.2 to the Executive in a lump sum payment. Such
payment shall be made to the Executive within sixty (60) days
after his Separation from Service.
2.3 Change in Control
Benefit. Upon the Executive’s Separation from Service
(other than Termination for Cause) following a Change in Control,
the Executive shall be entitled to the benefit described in this
Section 2.3 in lieu of any other benefit under this
Article.
2.3.1 Amount of Benefit. The
benefit under this Section 2.3 is the Normal Retirement
Benefit amount described in Section 2.1.1.
2.3.2 Distribution of
Benefit. The Bank shall distribute the benefit to the Executive
in two hundred and forty (240) consecutive equal monthly
installments commencing the first day of the month following the
Executive’s attainment of Normal Retirement Age.
Alternatively, the Executive may elect, subject to the requirements
of Section 409A of the Code and Section 2.6, to receive a
lump sum payment that is actuarially equivalent to the Normal
Retirement benefit amount described in Section 2.1.1
(calculated as of the date of Separation from Service and using the
discount rate specified in Code Section 1274 in effect on the
date of termination). Such payment shall be made to the Executive
within sixty (60) days after his Separation from
Service.
2.4 Restriction on Timing of
Distributions. Notwithstanding any provision of this Agreement
to the contrary, if the Executive is considered a Specified
Employee at Separation from Service as determined by the Bank in
accordance with Section 409A of the Code, benefit
distributions made upon 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 2.4 is
applicable to the Executive, any distribution which would otherwise
be paid to the Executive within the first six months following
Separation from Service shall be accumulated and paid to the
Executive in a lump sum (together with interest thereon at the
then-prevailing prime rate) on the first day of the seventh month
following the Separation from Service. All subsequent distributions
shall be paid in the manner specified under this Article 2 of the
Plan with respect to the applicable benefit.
2.5 Distributions Upon Income
Inclusion Under Section 409A of the Code. Upon the
inclusion of any amount into the Executive’s income as a
result of the failure of this Agreement to comply with the
requirements of Section 409A of the Code, to the extent such
tax liability can be covered by the amount which the Bank has
accrued with respect to the obligations described in this Article
2, a distribution shall be made as soon as is administratively
practicable following the discovery of the compliance
failure.
2.6 Change in Form or Timing of
Distributions. For distributions of benefits under this Article
2, the Executive and the Bank may, subject to the terms of
Section 8.1, amend the Agreement to delay the timing or change
the form of distributions. Any such amendment:
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(a)
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may not
accelerate the time or schedule of any distribution, except as
provided in Section 409A of the Code and the Regulations
thereunder;
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(b)
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must be made at
least twelve (12) months prior to the first scheduled
distribution;
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(c)
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must delay the
commencement of distributions for a minimum of five (5) years
from the date the first distribution was originally scheduled to be
made; and
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(d)
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must take
effect not less than twelve (12) months after the amendment is
made.
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ARTICLE 3
DISTRIBUTION AT
DEATH
3.1 Death While in Service.
If the Executive dies while employed by the Bank, the
Executive’s Beneficiary shall be entitled to a death benefit
equal to the Accrued Benefit under this Agreement. The Bank shall
distribute the Accrued Benefit to the Executive’s Beneficiary
in a lump sum within sixty (60) days following the date of the
Bank’s receipt of the Executive’s death certificate.
The Accrued Benefit shall be distributed in lieu of the benefits
described under Article 2.
3.2 Death During Distribution
Period. If the-Executive dies after Separation from Service
while entitled to or receiving benefit distributions under this
Agreement, the Bank shall distribute to the Beneficiary the
Executive’s remaining benefit in a lump sum within sixty
(60) days following the date of the Bank’s receipt of
the Executive’s death certificate. The lump sum benefit shall
be distributed in lieu of the benefits described under Article
2.
ARTICLE 4
BENEFICIARIES
4.1 Beneficiary. The
Executive shall have the right, at any time, to designate a
Beneficiary to receive any benefit distributions 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 plan of the Bank
in which the Executive participates.
4.2 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
a