EXHIBIT 10.10
FORM OF EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN
EXECUTIVE AGREEMENT
THIS AGREEMENT is made and entered into this __ day of ________, by and
between Chattahoochee National Bank, a bank organized and existing under the
laws of the State of Georgia (hereinafter referred to as the "Bank"), and
___________, an Executive of the Bank (hereinafter referred to as the
"Executive").
WHEREAS, the Executive is now in the employ of the Bank and has for many
years faithfully served the Bank. It is the consensus of the Board of Directors
(hereinafter referred to as the "Board") that the Executive's services have been
of exceptional merit, in excess of the compensation paid and an invaluable
contribution to the profits and position of the Bank in its field of activity.
The Board further believes that the Executive's experience, knowledge of
corporate affairs, reputation and industry contacts are of such value, and the
Executive's continued services so essential to the Bank's future growth and
profits, that it would suffer severe financial loss should the Executive
terminate their service;
ACCORDINGLY, the Board has adopted the Chattahoochee National Bank
Executive Supplemental Retirement Plan (hereinafter referred to as the
"Executive Plan") and it is the desire of the Bank and the Executive to enter
into this Agreement under which the Bank will agree to make certain payments to
the Executive upon the Executive's retirement and to the Executive's
beneficiary(ies) in the event of the Executive's death pursuant to the Executive
Plan;
FURTHERMORE, it is the intent of the parties hereto that this Executive
Plan be considered an unfunded arrangement maintained primarily to provide
supplemental retirement benefits for the Executive, and be considered a
non-qualified benefit plan for purposes of the Employee Retirement Security Act
of 1974, as amended ("ERISA"). The Executive is fully advised of the Bank's
financial status and has had substantial input in the design and operation of
this benefit plan; and
NOW THEREFORE, in consideration of services the Executive has performed in
the past and those to be performed in the future, and based upon the mutual
promises and covenants herein contained, the Bank and the Executive agree as
follows:
I. DEFINITIONS
A. Effective Date
The Effective Date of the Executive Plan shall be August 21, 2002.
B. Plan Year
Any reference to the "Plan Year" shall mean a calendar year from
January 1st to December 31st. In the year of implementation, the
term "Plan Year" shall mean the period from the Effective Date to
December 31st of the year of the Effective Date.
C. Retirement Date
Retirement Date shall mean retirement from service with the Bank
which becomes effective on the first day of the calendar month
following the month in which the Executive reaches age sixty-five
(65) or such later date as the Executive may actually retire.
D. Termination of Service
Termination of Service shall mean the Executive's voluntary
resignation from service by the Executive or the Bank's discharge of
the Executive without cause, prior to the Normal Retirement Age
(Subparagraph I [J]).
E. Pre-Retirement Account
A Pre-Retirement Account shall be established as a liability reserve
account on the books of the Bank for the benefit of the Executive.
Prior to the Executive's Termination of Service or Retirement Date,
whichever shall first occur, such liability reserve account shall be
increased each year by an amount equal to 14% of the annual earnings
for the year determined by the Index (described in Subparagraph I
(G) hereinafter), less the Cost of Funds Expense for that year
(described in Subparagraph I (H) hereinafter).
F. Index Retirement Benefit
The Index Retirement Benefit for each Executive in the Executive
Plan for each Plan Year shall be equal to the excess (if any) of the
Index (Subparagraph I [G]) for that Plan Year over the Cost of Funds
Expense (Subparagraph I [H]) for that Plan Year, divided by a factor
equal to 1.08 minus the marginal tax rate.
G. Index
The Index for any year shall be the aggregate annual after-tax
income from the life insurance contracts described in Exhibit "A",
attached hereto and fully incorporated herein by reference, on the
lives of the Participants (described in Subparagraph I [L]), as
defined by FASB Technical Bulletin 85-4. This Index shall be applied
as if such insurance contracts were purchased on the effective date
hereof.
If such contracts of life insurance are actually purchased by the
Bank then the actual policies as of the effective dates listed for
each policy on Exhibit "A" shall be used in calculations under this
Agreement. If such contracts of life insurance are not purchased or
are subsequently surrendered or lapsed, then the Bank shall receive
annual policy illustrations that assume the policies described in
Exhibit "A" were purchased from the named insurance company(ies) on
the effective dates listed for each policy on Exhibit "A".
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In either case, references to the life insurance contracts are
merely for purposes of calculating a benefit. The Bank has no
obligation to purchase such life insurance and, if purchased, the
Executive and his beneficiary(ies) shall have no ownership interest
in such policy and shall always have no greater interest in the
benefits under this Agreement than that of an unsecured general
creditor of the Bank.
H. Cost of Funds Expense
The Cost of Funds Expense for any Plan Year shall be calculated by
taking the sum of the amount of premiums for the life insurance
policies described in the definition of "Index" plus the amount of
any after-tax benefits paid to the Executive pursuant to the
Executive Plan (Paragraph II hereinafter) plus the amount of all
previous years' after-tax Cost of Funds Expense, and multiplying
that sum by the Average After-Tax Cost of Funds (Subparagraph I
[K]).
I. Change of Control
Change of Control means the cumulative transfer of more than fifty
percent (50%) of the voting stock of the Bank or Holding Company
from the Effective Date of this Executive Plan. For the purposes of
this Executive Plan, transfers made on account of deaths or gifts,
transfers between family members or transfers made to a qualified
retirement plan maintained by the Bank shall not be considered in
determining whether there has been a Change of Control.
J. Normal Retirement Age
Normal Retirement Age shall mean the date on which the Executive
attains age sixty-five (65).
K. Average After-Tax Cost of Funds
Average After-Tax Cost of Funds means, at any particular time, a
ratio, the numerator of which is the total annualized interest
expense as set forth on Schedule RI-income Statement of the Bank's
most recently filed Consolidated Report of Condition and Income (the
"Call Report") and the denominator of which is an amount equal to:
(i) the amount of deposits in domestic offices (sum of total of
columns A and C from Schedule RC-E of the Call Report), plus (ii)
the amount of Federal funds purchased and securities sold under
agreements to repurchase, as set forth on Schedule RC-Balance Sheet
of the Call Report, times the inverse of the Bank's combined
marginal income tax rate.
L. Number of Participants
The Number of Participants for any Plan Year shall be the number of
Participants (including those in retirement status) participating in
the Plan as of December 31st of the previous year. Participants are
those listed on the attached Exhibit B.
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M. Modification of Exhibits A and B
For all purposes of this Agreement, in the event of a new plan
participant, death of a participant, termination of service of a
participant who is not fully vested in the plan, retirement of a
participant, or some other event, said Exhibits A and B may be
modified as follows:
(i) Exhibit A By substituting the "Premiums Paid" for each
participant with the cash surrender value of each
participant's policy on the date(s) of the
aforestated event(s).
(ii) Exhibit B By adding or deleting a new or existing plan
participant.
II. INDEX BENEFITS
A. Retirement Benefits
Subject to Subparagraph II(D) hereinafter, an Executive who remains
in the employ of the Bank until the Normal Retirement Age
(Subparagraph I [J]) shall be entitled to receive the balance in the
Pre-Retirement Account in fifteen (15) equal annual installments
commencing thirty (30) days following the Executive's retirement. In
addition to these payments and commencing in conjunction therewith,
the Index Retirement Benefit (as defined in Subparagraph I [F]) for
each Plan Year subsequent to the Executive's retirement, and
including the remaining portion of the Plan Year following said
retirement, shall be paid to the Executive until the Executive's
death.
B. Termination of Service
Subject to Subparagraph II(D), should an Executive suffer a
Termination of Service, the Executive shall be entitled to receive
the percentage set forth below that corresponds to the number of
full years the Executive has been employed by the Bank from the date
of first service with the Bank (to a maximum of 100%), times the
balance in the Pre-Retirement Account payable to the Executive in
fifteen (15) equal annual installments commencing thirty (30) days
following the Executive's Normal Retirement Age (Subparagraph I
[J]). In addition to these payments and commencing in conjunction
therewith, the percentage set forth hereinafter that corresponds to
the number of full years of employment with the Bank from the date
of first employment with the Bank (to a maximum of 100%), times the
index Retirement Benefit for each Plan Year subsequent to the year
in which the Executive attains Normal Retirement Age, and including
the remaining portion of the Plan Year in which the Executive
attains Normal Retirement Age, shall be paid to the Executive until
the Executive's death.
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Number of
Full Years of Vested Percentage
Date of Employment Employment (to a maximum of 100%)
------------------ ---------- ----------------------
December 30, 1998 1-13 3.85% per year
PLUS
14-18 10% per year
Notwithstanding anything hereinabove to the contrary, the Executive
shall be one hundred percent (100%) vested upon attaining age
fifty-five (55) while employed by the Bank.
C. Death
Should the Executive die while there is a balance in the Executive's
Pre Retirement Account (Subparagraph I [E]) said unpaid balance
shall be paid in a lump sum to the individual or individuals the
Executive may have designated in writing and filed with the Bank. In
the absence of any effective beneficiary designation, the unpaid
balance shall be paid as set forth herein to the duly qualified
executor or administrator of the Executive's estate. Said payment
due hereunder shall be made the first day of the second month
following the decease of the Executive.
D. Discharge for Cause
Should the Executive be Discharged for Cause at any time, all
benefits under this Executive Plan shall be forfeited. The term "for
cause" shall mean any of the following that result in an adverse
effect on the Bank: (i) gross negligence or gross neglect; (ii) the
commission of a felony or gross misdemeanor involving moral
turpitude, fraud, or dishonesty; (iii) the willful violation of any
law, rule, or regulation (other than a traffic violation or similar
offense); (iv) an intentional failure to perform stated duties; or
(v) a breach of fiduciary duty involving personal profit. If a
dispute arises as to discharge "for cause," such dispute shall be
resolved by arbitration as set forth in this Executive Plan.
E. Death Benefit
Except as set forth above, there is no death benefit provided under
this Agreement.
F. Disability Benefit
In the event the Executive becomes disabled prior to Termination of
Service, and the Executive's employment is terminated because of
such disability, he shall immediately begin receiving the benefits
in Subparagraph II(A) above. Such benefit shall begin without regard
to Executive's Normal Retirement Age and the Executive shall be one
hundred percent (100%) vested in the entire benefit
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amount. If there is a dispute regarding whether the Executive is
disabled, such dispute shall be resolved by a physician selected by
the Bank and such resolution shall be binding upon all parties to
this Agreement.
III. DEFERRAL BENEFITS
A. Deferral Election
Any Executive wishing to defer any portion or all of the Executive's
compensation may elect to defer up to twenty-five percent (25%) of
compensation each year for a maximum of five (5) years. At the end
of the five-year period, the Board shall have the option of
extending the deferral period for any amount of time it shall deem
to be appropriate. The Executive will make the election to defer by
filing with the Bank a written statement setting forth the amount of
the deferrals and the Executive's election of payment as set forth
in Subparagraph III (C) hereinafter. This statement must be filed
prior to having earned the deferred income.
B. Deferred Compensation Account
The Bank shall establish a Deferred Compensation Account in the name
of the Executive and credit that account with the deferrals. The
Bank shall also credit interest to the Deferred Compensation Account
balance on December 31st of each year. The interest rate credited
shall be one hundred and fifty percent (150%) of the yield of a one-
year Treasury ▇▇▇▇ as of the crediting date.
C. Retirement, Termination of Service or Death
Upon the Director's Retirement Date or Termination of Service
[Subparagraphs I[C] and [D] hereinabove), the balance of the
Executive's Deferred Compensation Account shall be payable as
elected by the Executive one (1) year prior to receiving said
benefit payable to the Executive thirty (30) days following said
event. If the Executive fails to make said payment election, then
the Executive shall be paid in ten (10) equal annual installments as
set forth herein. Should the Executive die while there is a balance
in the Executive's Deferred Compensation Account, such balance shall
be paid pursuant to Subparagraph II(C) hereinabove.
IV. RESTRICTIONS UPON FUNDING
The Bank shall have no obligation to set aside, earmark or entrust
any fund or money with which to pay its obligations under this
Executive Plan. The Executives, their beneficiary(ies), or any
successor in interest shall be and remain simply a general creditor
of the Bank in the same manner as any other creditor having a
general claim for matured and unpaid compensation.
The Bank reserves the absolute right, at its sole discretion, to
either fund the obligations undertaken by this Executive Plan or to
refrain from funding the same and to determine the extent, nature
and method of such funding. Should the Bank
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elect to fund this Executive Plan, in whole or in part, through the
purchase of life insurance, mutual funds, disability policies or
annuities, the Bank reserves the absolute right, in its sole
discretion, to terminate such funding at any time, in whole or in
part. At no time shall any Executive be deemed to have any lien nor
right, title or interest in or to any specific funding investment or
to any assets of the Bank.
If the Bank elects to invest in a life insurance, disability or
annuity policy upon the life of the Executive, then the Executive
shall assist the Bank by freely submitting to a physical exam and
supplying such additional information necessary to obtain such
insurance or annuities.
V. CHANGE OF CONTROL
Upon a Change of Control (Subparagraph I [I]) if the Executive
subsequently suffers a Termination of Service (Subparagraph I [D])
then the Executive shall receive the benefits promised in this
Executive Plan upon attaining Normal Retirement Age, as if the
Executive had been continuously employed by the Bank until the
Executive's Normal Retirement Age. The Executive will also remain
eligible for all promised death benefits in this Executive Plan. In
addition, no sale, merger, or consolidation of the Bank shall take
place unless the new or surviving entity expressly acknowledges the
obligations under this Executive Plan and agrees to abide by its
terms.
VI. MISCELLANEOUS
A. Alienability and Assignment Prohibition
Neither the Executive, nor the Executive's surviving spouse, nor any
other beneficiary(ies) under this Executive Plan shall have any
power or right to transfer, assign, anticipate, hypothecate,
mortgage, commute, modify or otherwise encumber in advance any of
the benefits payable hereunder nor shall any of said benefits be
subject to seizure for the payment of any debts, judgments, alimony
or separate maintenance owed by the Executive or the Executive's
beneficiary(ies), nor be transferable by operation of law in the
event of bankruptcy, insolvency or otherwise. In the event the
Executive or any beneficiary attempts assignment, commutation,
hypothecation, transfer or disposal of the benefits hereunder, the
Bank's liabilities shall forthwith cease and terminate.
B. Binding Obligation of the Bank and any Successor in Interest
The Bank shall not merge or consolidate into or with another bank or
sell substantially all of its assets to another bank, firm or person
until such bank, firm or person expressly agree, in writing, to
assume and discharge the duties and obligations of the Bank under
this Executive Plan. This Executive Plan shall be binding upon the
parties hereto, their successors, beneficiaries, heirs and personal
representatives.
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C. Amendment or Revocation
It is agreed by and between the parties hereto that, during the
lifetime of the Executive, this Executive Plan may be amended or
revoked at any time or times, in whole or in part, by the mutual
written consent of the Executive and the Bank.
D. Gender
Whenever in this Executive Plan words are used in the masculine or
neuter gender, they shall be read and construed as in the masculine,
feminine or neuter gender, whenever they should so apply.
E. Effect on Other Bank Benefit Plans
Nothing contained in this Executive Plan shall affect the right of
the Executive to participate in or be covered by any qualified or
non-qualified pension, profit-sharing, group, bonus or other
supplemental compensation or fringe benefit plan constituting a part
of the Bank's existing or future compensation structure.
F. Headings
Headings and subheadings in this Executive Plan are inserted for reference
and convenience only and shall not be deemed a part of this Executive
Plan.
G. Applicable Law
The validity and interpretation of this Agreement shall be governed
by the laws of the State of Georgia.
H. 12 U.S.C. 1828(k)
Any payments made to the Executive pursuant to this Executive Plan,
or otherwise, are subject to and conditioned upon their compliance
with 12 U.S.C. Section 1828(k) or any regulations promulgated
thereunder.
I. Partial Invalidity
If any term, provision, covenant, or condition of this Executive
Plan is determined by an arbitrator or a court, as the case may be,
to be invalid, void, or unenforceable, such determination shall not
render any other term, provision, covenant, or condition invalid,
void, or unenforceable, and the Executive Plan shall remain in full
force and effect notwithstanding such partial invalidity.
J. Employment
No provision of this Executive Plan shall be deemed to restrict or
limit any existing employment agreement by and between the Bank and
the Executive, nor
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shall any conditions herein create specific employment rights to the
Executive nor limit the right of the Employer to discharge the
Executive with or without cause. In a similar fashion, no provision
shall limit the Executive's rights to voluntarily sever the
Executive's employment at any time.
VII. ERISA PROVISION
A. Named Fiduciary and Plan Administrator
The "Named Fiduciary and Plan Administrator" of this Executive Plan
shall be Chattahoochee National Bank until its resignation or
removal by the Board. As Named Fiduciary and Plan Administrator, the
Bank shall be responsible for the management, control and
administration of the Executive Plan. The Named Fiduciary may
delegate to others certain aspects of the management and operation
responsibilities of the Executive Plan including the employment of
advisors and the delegation of ministerial duties to qualified
individuals.
B. Claims Procedure and Arbitration
In the event a dispute arises over benefits under this Executive
Plan and benefits are not paid to the Executive (or to the
Executive's beneficiary(ies) in the case of the Executive's death)
and such claimants feel they are entitled to receive such benefits,
then a written claim must be made to the Named Fiduciary and Plan
Administrator named above within sixty (60) days from the date
payments are refused. The Named Fiduciary and Plan Administrator
shall review the written claim and if the claim is denied, in whole
or in part, it shall provide in writing within sixty (60) days of
receipt of such claim the specific reasons for such denial,
reference to the provisions of this Executive Plan upon which the
denial is based and any additional material or information necessary
to perfect the claim. Such written notice shall further indicate the
additional steps to be taken by claimants if a further review of the
claim denial is desired. A claim shall be deemed denied if the Named
Fiduciary and Plan Administrator fail to take any action within the
aforesaid sixty-day period.
If claimants desire a second review they shall notify the Named
Fiduciary and Plan Administrator in writing within sixty (60) days
of the first claim denial. Claimants may review this Executive Plan
or any documents relating thereto and submit any written issues and
comments it may feel appropriate. In their sole discretion, the
Named Fiduciary and Plan Administrator shall then review the second
claim and provide a written decision within sixty (60) days of
receipt of such claim. This decision shall likewise state the
specific reasons for the decision and shall include reference to
specific provisions of the Plan Agreement upon which the decision is
based.
If claimants continue to dispute the benefit denial based upon
completed performance of this Executive Plan or the meaning and
effect of the terms and conditions thereof, then claimants may
submit the dispute to an arbitrator for final
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arbitration. The arbitrator shall be selected by mutual agreement of
the Bank and the claimants. The arbitrator shall operate under any
generally recognized set of arbitration rules. The parties hereto
agree that they and their heirs, personal representatives,
successors and assigns shall be bound by the decision of such
arbitrator with respect to any controversy properly submitted to it
for determination.
Where a dispute arises as to the Bank's discharge of the Executive
for "for cause," such dispute shall likewise be submitted to
arbitration as above described and the parties hereto agree to be
bound by the decision thereunder.
VIII. TERMINATION OR MODIFICATION OF AGREEMENT BY REASON OF CHANGES IN THE
LAW, RULES OR REGULATIONS
The Bank is entering into this Agreement upon the assumption that certain
existing tax laws, rules and regulations will continue in effect in their
current form. If any said assumptions should change and said change has a
detrimental effect on this Executive Plan, then the Bank reserves the
right to terminate or modify this Agreement accordingly. Provided,
however, that the Executive shall be entitled to receive at least his/her
Executive's Deferred Compensation Account including interest earned. Upon
a Change of Control (Subparagraph I [I]) this paragraph shall become null
and void effective immediately upon said Change of Control.
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IN WITNESS WHEREOF, the parties hereto acknowledge that each has carefully read
this Agreement and executed the original thereof on the first day set forth
hereinbelow, and that, upon execution, each has received a conforming copy.
CHATTAHOOCHEE NATIONAL BANK
Alpharetta, Georgia
By:
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Witness Title
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Witness
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