GREER STATE BANK SALARY CONTINUATION AGREEMENT WITH KENNETH M. HARPER NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR CONSTRUED TO BE AN EMPLOYMENT AGREEMENT EITHER EXPRESS OR IMPLIED.
Exhibit 10.11
GREER STATE BANK
BENEFICIARY DESIGNATION FORM
GREER STATE BANK
WITH ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR CONSTRUED TO BE AN
EMPLOYMENT AGREEMENT EITHER EXPRESS OR IMPLIED.
THIS SALARY CONTINUATION AGREEMENT (the “Agreement”) is adopted this 1st day of May, 2005, by and between GREER STATE BANK, a state-chartered commercial bank located in Greer, South Carolina (the “Company”), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (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 Company. 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. The Company will pay the benefits from its general assets.
The Company and the Executive agree as provided herein.
Article 1
Definitions
Whenever used in this Agreement, the following words and phrases shall have the meanings specified:
| 1.1 | “Accrual Balance” means the liability that should be accrued by the Company, under Generally Accepted Accounting Principles (“GAAP”), for the Company’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”) and the Discount Rate. Any one of a variety of amortization methods may be used to determine the Accrual Balance. However, once chosen by the Company at its sole discretion the method must be consistently applied. The Accrual Balance shall be reported by the Company to the Executive on Schedule A. |
| 1.2 | “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 4. |
| 1.3 | “Beneficiary Designation Form” means the form provided time to time by the Plan Administrator that the Executive completes, signs and returns to the Plan Administrator to designate one or more Beneficiaries. |
| 1.4 | “Board” or “Board of Directors” means the Board of Directors of the Company. |
| 1.5 | “Change in Control” means |
| (i) | the acquisition, directly or indirectly, (including beneficial ownership) by any “person” as this term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended within any twelve (12) consecutive month period of the Corporation’s or Company’s issued and outstanding common stock representing an aggregate of fifty percent (50%) or more of the Corporation’s or Company’s common stock; or |
| (ii) | consummation of merger, sale, acquisition, or liquidation of all, or substantially all, of the Corporation’s or the Company’s assets or outstanding stock; or |
| (iii) | the occurrence of any other event or circumstance which is not covered by 1.5(i) or 1.5(ii) above, which the Board determines affects the Corporation’s or Company’s control and, to implement the purposes of this Agreement, adopts a resolution that the event or circumstance constitutes a Change in Control for the purposes of this Agreement. |
| (iv) | Notwithstanding any other provisions in this Agreement, “Change in Control” shall not be construed to mean the formation of a bank holding company or other entity approved in advance by the Company’s Board of Directors or any changes in ownership of the Company’s assets or stock as the result of the formation of such an entity. |
| 1.6 | “Code” means the Internal Revenue Code of 1986, as amended. |
| 1.7 | “Corporation” means Greer Bancshares Incorporated. |
| 1.8 | “Disability” means sickness, accident, or injury which, in the judgment of a physician appointed and paid by the Company, prevents the Executive from performing all of the Executive’s customary duties for the Company. As a condition to any benefits, the Company may require the Executive to submit to such physical or mental evaluations and tests as the Company’s Board of Directors deems appropriate. |
| 1.9 | “Discount Rate” means the rate used by the Plan Administrator for determining the Accrual Balance. The initial Discount Rate is six and one-quarter percent (6.25%). However, the Plan Administrator, in its sole discretion, may adjust the Discount Rate to maintain the rate within reasonable standards according to GAAP. |
| 1.10 | “Early Termination” means the Executive’s Termination of Employment before Normal Retirement Age for reasons other than death, Disability, Termination for Cause, or following a Change of Control. |
| 1.11 | “Early Termination Date” means the month, day and year in which Early Termination occurs. |
| 1.12 | “Effective Date” means May 1, 2005. |
| 1.13 |
“Normal Retirement Age” means the Executive’s sixty-fifth (65th) birthday. |
| 1.14 | “Normal Retirement Date” means the later of the Normal Retirement Age or Termination of Employment. |
| 1.15 | “Plan Administrator” means the Company. |
| 1.16 | “Plan Year” means a twelve-month period commencing on November 1 and ending on October 31 of each year. The initial Plan Year shall commence on the Effective Date of this Agreement. |
| 1.17 | “Termination for Cause” has that meaning set forth in Article 5. |
| 1.18 | “Termination of Employment” means Executive ceasing to be employed by the Company for any reason whatsoever other than by reason of a leave of absence approved by the Board. |
| 1.19 | “Years of Service” means the twelve consecutive month period beginning on Executive’s date of hire and any twelve (12) month anniversary thereof, during the entirety of which time the Executive is an employee of the Company. Service with a subsidiary or other entity controlled by the Company before the time such entity became a subsidiary or under such control shall not be considered “credited service” unless the Plan Administrator specifically agrees to credit such service. In addition, the Plan Administrator in its discretion may also grant additional Years of Service in such circumstances where it deems such additional service appropriate. |
Article 2
Benefits During Lifetime
| 2.1 | Normal Retirement Benefit. Upon Termination of Employment on or after the Normal Retirement Age for reasons other than death, the Company shall pay to the Executive the benefit described in this Section 2.1 in lieu of any other benefit under this Agreement. |
| 2.1.1 | Amount of Benefit. The annual benefit under this Section 2.1 is Fifty Thousand Dollars ($50,000). |
| 2.1.2 | Payment of Benefit. The Company shall pay the annual benefit to the Executive in twelve (12) equal consecutive monthly installments commencing on the first day of the month following the Executive’s Normal Retirement Date. The annual benefit shall be paid to the Executive for fifteen (15) years. |
| 2.2 | Early Termination Benefit. Upon Early Termination, the Company shall pay to the Executive the benefit described in this Section 2.2 in lieu of any other benefit under this Agreement. |
| 2.2.1 | Amount of Benefit. The benefit under this Section 2.2 is the Early Termination Benefit set forth on Schedule A for the Plan Year during which the Early Termination Date occurs. This benefit is determined by vesting the Executive in ten percent (10%) of the Accrual Balance for the first Plan Year, and an additional ten percent (10%) of said amount for each succeeding Plan Year thereafter until the Executive becomes one hundred percent (100%) vested in the Accrual Balance. |
| 2.2.2 | Payment of Benefit. The Company shall pay the benefit to the Executive over fifteen (15) years in one hundred eighty (180) equal consecutive monthly installments commencing with the first day of the month following Normal Retirement Age. |
| 2.3 | Disability Benefit. Upon Termination of Employment due to Disability prior to Normal Retirement Age, the Company shall pay to the Executive the benefit described in this Section 2.3 in lieu of any other benefit under this Agreement. |
| 2.3.1 | Amount of Benefit. The benefit under this Section 2.3 is the Disability Benefit set forth on Schedule A for the Plan Year during which the Termination of Employment occurs. This benefit is determined by vesting the Executive in one hundred percent (100%) of the Accrual Balance. |
| 2.3.2 | Payment of Benefit. The Company shall pay the benefit to the Executive over fifteen (15) years in one hundred eighty (180) equal consecutive monthly installments commencing with the first day of the month following the Executive’s Termination of Employment. |
| 2.4 | Change of Control Benefit. Upon a Change of Control followed by the Executive’s Termination of Employment, the Company shall pay to the Executive the benefit described in this Section 2.4 in lieu of any other benefit under this Agreement. |
| 2.4.1 | Amount of Benefit. The benefit under this Section 2.4 is the Change of Control Benefit set forth on Schedule A for the Plan Year during which the Termination of Employment occurs. This benefit is determined by vesting the Executive in one hundred percent (100%) of the Normal Retirement Benefit described in Section 2.1. |
| 2.4.2 | Payment of Benefit. The Company shall pay the benefit to the Executive in a lump sum present value payment based on the Discount Rate within sixty (60) days following Termination of Employment. |
Article 3
Death Benefits
| 3.1 | Death During Active Service. If the Executive dies while employed by the Company, the Company shall pay to the Executive’s Beneficiary the benefit described in this Section 3.1. |
| This | benefit shall be paid in lieu of all other benefits under this Agreement. |
| 3.1.1 | Amount of Benefit. The benefit under this Section 3.1 is the Pre-Retirement Death Benefit set forth on Schedule A for the Plan Year during which death occurs. |
| 3.1.1.1 | For the first ten (10) Years of service, this benefit is upon one hundred percent (100%) of the Accrual Balance. |
| 3.1.1.2 | After the Executive has completed ten (10) Years of service, this benefit is based upon one hundred percent (100%) of the Normal Retirement Benefit described in Section 2.1. |
| 3.1.2 | Payment of Benefit. The Company shall pay the benefit to the Beneficiary over fifteen (15) years in one hundred eighty (180) equal consecutive monthly installments commencing within thirty (30) days following the date of the Executive’s death. |
| 3.2 | Death During Payment of a Lifetime Benefit. If the Executive dies after any benefit payments have commenced under this Agreement but before receiving all such payments, the Company shall pay the remaining benefits to the Executive’s Beneficiary at the same time and in the same amounts they would have been paid to the Executive had the Executive survived. |
| 3.3 | Death After Termination of Employment But Prior to Commencement of Benefit Payments. If the Executive dies after Termination of Employment, but prior to commencement of benefit payments, the Company shall pay the same benefit payments to the Executive’s Beneficiary that the Executive was entitled to prior to death except that the benefit payments shall commence within thirty (30) days following the date of the Executive’s death. |
Article 4
Beneficiaries
| 4.1 | 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 Company 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 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. |
| 4.3 | 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. |
| 4.4 | 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 or its assignee. |
| 4.5 | 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. |
Article 5
General Limitations
| 5.1 | Termination for Cause. Notwithstanding any provision of this Agreement to the contrary, the Company shall not pay any benefit under this Agreement, and the Executive shall irrevocably forfeit all benefits under this Agreement, if the Company terminates the Executive’s employment for: |
| (a) | Gross negligence or gross neglect of duties prior to a Change in Control; |
| (b) | Conviction of a felony; or |
| (c) | Fraud, disloyalty, or willful violation of any law or material Company policy in connection with the Executive’s employment. |
| 5.2 | Forfeiture Provision. While Executive is employed by the Company and during the period of time the Executive is receiving any benefit payments pursuant to this Agreement, the Executive will not, for himself or on behalf of, or in conjunction with any other person or persons, company, partnership, limited liability company, proprietorship, trust company, bank, financial services institution, or other entity, directly or indirectly, own, manage, operate, control, be employed by, consult with, participate in, or be connected in any manner with the ownership, employment, management, operation, consulting or control of any financial services institution that competes with the Company within Greenville County, South Carolina, Spartanburg County, South Carolina, or any |
| other market served by the Company at the time payment of benefits commence. In the event of any actual breach by the Executive of the provisions of this Section 5.2, all payments under this Agreement payable to the Executive shall irrevocably forfeit and terminate and no further amount shall be due or payable to the Executive pursuant to this Agreement. The Executive specifically acknowledges that the restrictions set forth above are reasonable and bear a valid connection with the business operations of the Company, and specifically admits that Executive is capable of obtaining suitable employment not in competition with the Company. If any one of the restrictions contained herein shall for any reason be held to be excessively broad as to duration or geographical area, it shall be deemed amended by limiting and reducing it so as to be valid and enforceable to the extent compatible with applicable state law as it shall then appear. Executive acknowledges that the Company would not have entered into this Agreement without the provision Section 5.2 contained herein. This Section 5.2 shall not prohibit the Executive from owning stock in any publicly traded company provided the Executive’s stock ownership is five percent (5%) or less of the issued and outstanding stock of such publicly traded company and the Executive has no corporate responsibility other than the Executive’s rights as a stockholder. |
| 5.3 | Excess Parachute Payment. Notwithstanding anything in this Agreement to the contrary, in the event that the benefit payable to Executive pursuant to this Agreement should cause a “parachute payment”, as defined in Code Section 280G(b)(2) of the Code, then such benefit shall be reduced One Dollar ($1.00) at a time until the payment will not constitute a parachute payment. In the event the benefit Executive receives under this Agreement should be incorrectly calculated so that such amount constitutes a parachute payment, then Executive will promptly refund to Company the excess amount. Excess amount shall mean the amount in excess of Executive’s base amount, as defined in Code Section 280G(b)(3), multiplied by 2.999. |
| 5.4 | Suicide or Misstatement. The Company shall not pay any benefit under this Agreement if the Executive commits suicide within two years after the Effective Date. In addition, the Company 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 Company on the Executive’s life. |
Article 6
Claims and Review Procedures
| 6.1 | For all claims other than Disability benefits: |
| 6.1.1 | Claims Procedure. Any individual (“Claimant”) who has not received benefits under this Agreement that he or she believes should be paid shall make a claim for such benefits as follows: |
| 6.1.1.1 | Initiation – Written Claim. The Claimant initiates a claim by submitting to the Company a written claim for the benefits. |
| 6.1.1.2 | Timing of Company Response. The Company shall respond to such Claimant within 90 days after receiving the claim. If the Company determines that special circumstances require additional time for processing the claim, the Company can extend the response period by an additional 90 days by notifying the Claimant in writing, prior to the end of the initial 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 Company expects to render its decision. |
| 6.1.1.3 | Notice of Decision. If the Company denies part or all of the claim, the Company shall notify the Claimant in writing of such denial. The Company 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 this 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 this 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. |
| 6.1.2 | Review Procedure. If the Company denies part or all of the claim, the Claimant shall have the opportunity for a full and fair review by the Company of the denial, as follows: |
| 6.1.2.1 | Initiation – Written Request. To initiate the review, the Claimant, within 60 days after receiving the Company’s notice of denial, must file with the Company a written request for review. |
| 6.1.2.2 | 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 Company 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. |
| 6.1.2.3 | Considerations on Review. In considering the review, the Company 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. |
| 6.1.2.4 | Timing of Company Response. The Company shall respond in writing to such Claimant within 60 days after receiving the request for review. If the Company determines that special circumstances require additional time for processing the claim, the Company can extend the response period by an additional 60 days by notifying the Claimant in writing, prior to the end of the initial 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 Company expects to render its decision. |
| 6.1.2.5 | Notice of Decision. The Company shall notify the Claimant in writing of its decision on review. The Company 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 this 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 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). |
| 6.2 | For Disability claims: |
| 6.2.1 | Claims Procedures. Any individual (“Claimant”) who has not received benefits under this Agreement that he or she believes should be paid shall make a claim for such benefits as follows: |
| 6.2.1.1 | Initiation – Written Claim. The Claimant initiates a claim by submitting to the Company a written claim for the benefits. |
| 6.2.1.2 | Timing of Company Response. The Company shall notify the Claimant in writing or electronically of any adverse determination as set out in this Section. |
| 6.2.1.3 | Notice of Decision. If the Company denies part or all of the claim, the Company shall notify the Claimant in writing of such denial. The Company 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 this 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, |
| (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, |
| (f) | [See §2560.503-1(g)(v)] Any internal rule, guideline, protocol, or other similar criterion relied upon in making the adverse determination, or a statement that such a rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination and that the Claimant can request and receive free of charge a copy of such rule, guideline, protocol or other criterion from the Company, and |
| (g) | If the adverse benefit determination is based on a medical necessity or experimental treatment or similar exclusion or limit, either an explanation of the scientific or clinical judgment for the determination, applying the terms of this Agreement to the Claimant’s medical circumstances, or a statement that such explanation will be provided free of charge upon request. |
| 6.2.1.4 | Timing of Notice of Denial/Extensions. The Company shall notify the Claimant of denial of benefits in writing or electronically not later than 45 days after receipt of the claim by the Company. The Company may elect to extend notification by two 30-day periods subject to the following requirements: |
| (a) | For the first 30-day extension, the Company shall notify the Claimant (1) of the necessity of the extension and the factors beyond the Company’s control requiring an extension; (2) prior to the end of the initial 45-day period; and (3) of the date by which the Company expects to render a decision. |
| (b) | If the Company determines that a second 30-day extension is necessary based on factors beyond the Company’s control, the Company shall follow the same procedure in (a) above, with the exception that the notification must be provided to the Claimant before the end of the first 30-day extension period. |
| (c) | For any extension provided under this section, the Notice of Extension shall specifically explain the standards upon which entitlement to a benefit is based, the unresolved issues that prevent a decision on the claim, and the additional information needed to resolve those issues. The Claimant shall be afforded 45 days within which to provide the specified information. |
| 6.2.2 | Review Procedures – Denial of Benefits. If the Company denies part or all of the claim, the Claimant shall have the opportunity for a full and fair review by the Company of the denial, as follows: |
| 6.2.2.1 | Initiation of Appeal. Within 180 days following notice of denial of benefits, the Claimant shall initiate an appeal by submitting a written notice of appeal to Company. |
| 6.2.2.2 | Submissions on Appeal – Information Access. The Claimant shall be allowed to provide written comments, documents, records, and other information relating to the claim for benefits. The Company shall provide to 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. |
| 6.2.2.3 | Additional Company Responsibilities on Appeal. On appeal, the Company shall: |
| (a) | [See §2560.503-1(h)(3)(i)-(v)] 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; |
| (b) | Provide for a review that does not afford deference to the initial adverse benefit determination and that is conducted by an appropriate named fiduciary of the Company who is neither the individual who made the adverse benefit determination that is the subject of the appeal, nor the subordinate of such individual; |
| (c) | In deciding an appeal of any adverse benefit determination that is based in whole or in part on a medical judgment, including determinations with regard to whether a particular treatment, drug, or other item is experimental, investigational, or not medically necessary or appropriate, consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment; |
| (d) | Identify medical or vocational experts whose advice was obtained on behalf of the Company in connection with a Claimant’s adverse benefit determination, without regard to whether the advice was relied upon in making the benefit determination; and |
| (e) | Ensure that the health care professional engaged for purposes of a consultation under subsection (c) above shall be an individual who was neither an individual who was consulted in connection with the adverse benefit determination that is the subject of the appeal, nor the subordinate of any such individual. |
| 6.2.2.4 | Timing of Notification of Benefit Denial – Appeal Denial. The Company shall notify the Claimant not later than 45 days after receipt of |
| the Claimant’s request for review by the Company, unless the Company determines that special circumstances require an extension of time for processing the claim. If the Company determines that an extension is required, written notice of such shall be furnished to the Claimant prior to the termination of the initial 45-day period, and such extension shall not exceed 45 days. The Company shall indicate the special circumstances requiring an extension of time and the date by which the Company expects to render the determination on review. |
| 6.2.2.5 | Content of Notification of Benefit Denial. The Company shall provide the Claimant with a notice calculated to be understood by the Claimant, which shall contain: |
| (a) | The specific reason or reasons for the adverse determination; |
| (b) | Reference to the specific plan provisions on which the benefit determination 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 relevant information (as defined in applicable ERISA regulations); |
| (d) | A statement of the Claimant’s right to bring an action under ERISA Section 502(a); |
| (e) | [See §2560.503-1(j)(5)] Any internal rule, guideline, protocol, or other similar criterion relied upon in making the adverse determination, or a statement that such a rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination and that the Claimant can request and receive free of charge a copy of such rule, guideline, protocol or other criterion from the Company; |
| (f) | If the adverse benefit determination is based on a medical necessity or experimental treatment or similar exclusion or limit, either an explanation of the scientific or clinical judgment for the determination, applying the terms of this Agreement to the Claimant’s medical circumstances, or a statement that such explanation will be provided free of charge upon request; and |
| (g) | The following statement: “You and your Company may have other voluntary alternative dispute resolution options such as mediation. One way to find out what may be available is to contact your local U.S. Department of Labor Office and your state insurance regulatory agency.” |
Article 7
Amendments and Termination
This Agreement may be amended or terminated by a written agreement signed by the Company and the Executive. Additionally, the Company may also unilaterally amend this Agreement to conform with written directives to the Company from its banking
regulators or to otherwise comply with federal and state laws and regulations. If the Company unilaterally amends the agreement, the Company shall provide a copy of the amendment to the Executive. If the Board determines in good faith that the Executive is no longer a member of a select group of management or highly compensated employees, as that phrase applies to ERISA, for reasons other than death, Disability or retirement the Company may terminate this Agreement and pay benefits to the Executive as follows:
| 7.1.1 | Termination of Agreement Prior to a Change in Control. Upon termination of this Agreement prior to a Change in Control, the Company shall distribute to the Executive the Early Termination benefits described in Section 2.2 as if Early Termination occurred on the date of such termination, regardless of whether Early Termination actually occurs. Such amount shall be distributed to the Executive or his or her Beneficiary in a lump sum within sixty (60) days following Termination of Employment. |
| 7.1.2 | Termination of Agreement Following a Change in Control. Upon termination of this Agreement following a Change in Control, the Company shall distribute to the Executive the Change in Control benefits described in Section 2.4. Such amount shall be distributed to the Executive or his or her Beneficiary in a lump sum within sixty (60) days following Termination of Employment. |
Article 8
Administration of Agreement
| 8.1 | Plan Administrator Duties. This Agreement shall be administered by a Plan Administrator. The Plan Administrator shall also have the discretion and authority to (i) make, amend, interpret and enforce all appropriate rules and regulations for the administration of this Agreement and (ii) decide or resolve any and all questions including interpretations of this Agreement, as may arise in connection with the Agreement. |
| 8.2 | Agents. In the administration of this Agreement, the Plan Administrator may employ agents and delegate to them such administrative duties as it sees fit, (including acting through a duly appointed representative), and may from time to time consult with counsel who may be counsel to the Company. |
| 8.3 | Binding Effect of Decisions. The decision or action of the Plan Administrator with respect to any question arising out of or in connection with the administration, interpretation and application of the Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in the Agreement. No Executive or Beneficiary shall be deemed to have any right, vested or nonvested, regarding the continued use of any previously adopted assumptions, including but not limited to the Discount Rate. |
| 8.4 | Indemnity of Plan Administrator. The Company shall indemnify and hold harmless the members of the Plan Administrator and the Board against any and all claims, losses, damages, expenses or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Plan Administrator or any of its members or the Board. |
| 8.5 | Company Information. To enable the Plan Administrator to perform its functions, the Company shall supply full and timely information to the Plan Administrator on all matters relating to the date and circumstances of the retirement, Disability, death, or Termination of Employment of the Executive, and such other pertinent information as the Plan Administrator may reasonably require. |
| 8.6 | Annual Statement. The Plan Administrator shall provide to the Executive, within 120 days after the end of each Plan Year, a statement setting forth the benefits payable under this Agreement. |
Article 9
Miscellaneous
| 9.1 | Binding Effect. This Agreement shall bind the Executive and the Company, and their beneficiaries, survivors, successors, personal representatives, and transferees. |
| 9.2 | 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 Company, nor does it interfere with the Company’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. |
| 9.3 | Non-Transferability. Benefits under this Agreement cannot be sold, transferred, assigned, pledged, attached or encumbered in any manner. |
| 9.4 | Tax Withholding. The Company shall withhold any taxes that, in its reasonable judgment, are required to be withheld from the benefits provided under this Agreement. The Executive acknowledges that the Company’s sole liability regarding taxes is to forward any amounts withheld to the appropriate taxing authority(ies). |
| 9.5 | Governing Law. The Agreement and all rights hereunder shall be governed by the laws of the State of South Carolina, except to the extent preempted by the laws of the United States of America. |
| 9.6 | Unfunded Arrangement. The Executive and Beneficiary are general unsecured creditors of the Company for the payment of benefits under this Agreement. The benefits represent the mere promise by the Company to pay such benefits. The rights to benefits are not subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors. Any insurance on the Executive’s life is a general asset of the Company to which the Executive and Beneficiary have no preferred or secured claim; provided, however, that the Company is under no obligation to purchase any life insurance on the Executive by executing this Agreement. |
| 9.7 | Reorganization. The Company or Corporation shall not merge or consolidate into or with another company, or reorganize, or sell substantially all of its assets to another company, firm, or person unless such succeeding or continuing company, firm, or person agrees to assume and discharge the obligations of the Company under this Agreement. Upon the occurrence of such event, the term “Company” as used in this Agreement shall be deemed to refer to the successor or survivor company. |
| 9.8 | Entire Agreement. This Agreement constitutes the entire agreement between the Company 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. |
| 9.9 | Interpretation. Wherever the fulfillment of the intent and purpose of this Agreement requires, and the context will permit, the use of the masculine gender includes the feminine and use of the singular includes the plural. |
| 9.10 | Alternative Action. In the event it shall become impossible for the Company or the Plan Administrator to perform any act required by this Agreement, the Company or Plan Administrator may in its discretion perform such alternative act as most nearly carries out the intent and purpose of this Agreement and is in the best interests of the Company. |
| 9.11 | Headings. Article and section headings are for convenient reference only and shall not control or affect the meaning or construction of any of its provisions. |
| 9.12 | Validity. In case any provision of this Agreement shall be illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts hereof, but this Agreement shall be construed and enforced as if such illegal and invalid provision has never been inserted herein. |
| 9.13 | Notice. Any notice or filing required or permitted to be given to the Company or Plan Administrator under this Agreement shall be sufficient if in writing and hand-delivered, or sent by registered or certified mail, to the address below: |
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▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Such notice shall be deemed given as of the date of delivery or, if delivery is made by mail, as of the date shown on the postmark on the receipt for registration or certification. Any notice or filing required or permitted to be given to the Executive under this Agreement shall be sufficient if in writing and hand-delivered, or sent by mail, to the last known address of the Executive.
| 9.14 | Named Fiduciary. The Company shall be the named fiduciary and Plan Administrator under this Agreement. It may delegate to others certain aspects of the management and operational responsibilities including the employment of advisors and the delegation of ministerial duties to qualified individuals. |
IN WITNESS WHEREOF, the Executive and a duly authorized representative of the Company have signed this Agreement.
| EXECUTIVE: | COMPANY: | |||||||
| GREER STATE BANK | ||||||||
| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 8/12/05 | By | /s/ R. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | Title | CEO, 8/12/05 | ||||||
| Salary Continuation Plan |
Plan Year Reporting |
Schedule A
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Birth Date: 6/1/1964 Plan Anniversary Date: 11/1/2005 Normal Retirement: 6/1/2029. Age 65 Normal Retirement Payment: Monthly for 15 years |
Early Termination Benefit Annual Benefit Payable in Monthly Installments at Normal Retirement Date for 15 Years |
Disability Benefit Annual Benefit Payable in Monthly Installments at Normal Retirement Date for 15 Years |
Change of Control Benefit Lump Sum Payable at Termination |
Pre-Retirement Death Benefit Annual Benefit Payable in Monthly Installments | ||||||||||||||||||||
| Period Ending |
Discount Rate (1) |
Benefit Level (2) |
Accrual Balance (3) |
Vesting (4) |
Based On (5) |
Vesting (6) |
Based On (7) |
Vesting (8) |
Based On (9) |
Based On Accrual (10) | ||||||||||||||
| Oct 2005 1 |
6.25 | % | 50,000 | 4,405 | 10 | % | 197 | 100 | % | 1,971 | 100 | % | 111,718 | 451 | ||||||||||
| 1 |
The first line reflects 6 months of data, May 2005 to October 2005. |
| • | IF THERE IS A CONFLICT IN ANY TERMS OR PROVISIONS BETWEEN THIS SCHEDULE A AND THE AGREEMENT, THE TERMS AND PROVISIONS OF THE AGREEMENT SHALL PREVAIL. IF A TRIGGERING EVENT OCCURS, REFER TO THE AGREEMENT TO DETERMINE THE ACTUAL BENEFIT AMOUNT BASED ON THE DATE OF THE EVENT. |
Salary Continuation Plan for Greer State Bank - Greer. SC
450636 27699 209747 v5.36.52 07/07/2005:08 SCP-E.F NB
17