Exhibit 10.4
NORTH CAROLINA,
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
--------------------------------------
▇▇▇▇▇▇ COUNTY.
THIS AGREEMENT entered into this ______ day of. ___________
____, by and between ▇▇▇▇▇▇ FEDERAL SAVINGS & LOAN ASSOCIATION, a corporation
organized and existing under the laws of the United States of America, with its
principal office at Gastonia, North Carolina, (hereinafter referred to as the
"Association"), and _____________, hereinafter referred to as the "Executive").
WHEREAS, the Executive has performed his duties as President and Chief
Executive Officer of the Association in a capable and efficient manner,
resulting in substantial growth and progress to the Association; and
WHEREAS, the experience of the Executive is such that assurance of his
continued services is beneficial to the future growth and profits of the
Association; and
WHEREAS, the Association desires to encourage the Executive to remain
in the employ of the Association and realizes that if he were to leave the
Association it would suffer a substantial financial loss; and
WHEREAS, the Executive is willing to continue in the employ of the
Association and the Association is willing to pay to him or his designees
certain benefits in accordance with the provisions and conditions hereinafter
set forth:
NOW, THEREFORE, in consideration of the agreements between the
parties, the parties covenant and agree as follows:
1. PROMISE TO PAY. Notwithstanding any other agreements between the
parties, in consideration of the Executive's future employment, the Association
agrees to pay the Executive certain additional amounts, payments of which will
be deferred pursuant to and conditional upon the terms of this Agreement as
hereinafter set forth.
2. RETIREMENT DATE. The Association agrees that the Executive may
retire on his seventieth (70th) birthday, hereinafter called the Retirement
Date.
3. RETIREMENT BENEFIT. If the Executive is living on the Retirement
Date, regardless of whether or not he shall then be in the employ of
Association, he shall be entitled to receive commencing upon such date in equal
monthly installments over a period of one hundred eighty (180) months a total
benefit of Seventy Eighty Thousand, Seven Hundred Thirty Five and No/100
($78,735.00) Dollars (hereinafter the "Benefit"), which monthly installments
shall each be in the sum of Four Hundred Thirty Seven and 42/100 ($437.42)
Dollars each, and paid on the first
day of each month. Attached hereto as Exhibit "A" is a Forecast Cash Flow
Schedule setting forth the year in which the Executive shall attain the
Retirement Date and payments shall be due to commence. If the Executive retires
with the Association's approval prior to his Retirement Date, Executive shall
nonetheless be entitled to payment of the Benefit except that the payments shall
not commence until the Executive's Retirement Date and shall be payable from
such date in the same manner as above set forth; or in the event of his
subsequent death, as provided in Paragraphs 5 and 6 hereof. Payment of benefits
shall commence the first day of the month following the Executive's Retirement
Date.
4. DEATH PRIOR TO OR AFTER RETIREMENT DATE. If the Executive shall
die prior to or after his Retirement Date, his beneficiary or beneficiaries,
determined in accordance with Paragraph 5 hereof, shall be entitled to receive
the Benefit set forth in Paragraph 5 hereof, payable as provided in Paragraph 6
hereof. The Association shall have no obligation to pay Executive's beneficiary,
spouse or estate any benefit if Executive's death occurs:
(a) by suicide which occurs within two (2) years from the date
hereof;
(b) from injuries sustained in an attempted suicide (which attempted
suicide occurs within two (2) years from the date hereof) or
complication arising from such injuries; or
(c) from injuries sustained or complications arising from such
injuries
(i) while the Executive is under the influence of an impairing
substance as defined in N.C.G.S. Section 20-4.01(14a),
whether or not the Executive was legally entitled to use the
impairing substance; or
(ii) while the Executive is engaged in the commission of a
criminal act.
5. BENEFICIARY OF DEATH BENEFIT. In the event that the Executive
should die prior to receipt of any amount to which he is entitled hereunder, or
of all such amounts, any amounts remaining unpaid shall be paid to such
beneficiary or beneficiaries as the Executive may designate by filing with the
Association a notice in writing, but in the absence of any such designation,
such unpaid amounts shall be so paid to his surviving spouse, if any. If the
unpaid amounts are not fully paid out to the Executive, the Executive's
designated beneficiary
2
or beneficiaries or to his surviving spouse, then the balance remaining unpaid
shall be discounted and paid in a single lump sum to the Executive's estate. The
discount rate used to determine the lump sum present value of the remaining
monthly installments shall be a reasonable one determined by the Association and
binding on all persons having an interest in Executive's estate.
6. INSTALLMENT PAYMENT OF DEATH BENEFIT. Whenever the Executive's
beneficiary or beneficiaries (other than his estate) or his spouse shall become
entitled to receive any amount hereunder, the amount shall be paid to such
beneficiary, beneficiaries or spouse in monthly installments as follows:
(a) In the event that no monthly installment payments have
theretofore commenced to the Executive, over a period of one
hundred eighty (180) months commencing with the date the
Executive would otherwise have attained his Retirement Date, as
described above, or
(b) In the event payment of monthly installments shall have
theretofore commenced to the Executive, for the balance of the
period during which such payments were to be made to the
Executive had he survived.
7. NON-ASSIGNABLE RIGHTS. Except as otherwise provided by this
Agreement, it is agreed that neither the Executive nor his spouse, nor any other
beneficiary, shall have any right to commute, sell, assign, transfer or
otherwise convey the right to receive any payments hereunder, which payments and
the right thereto are expressly declared to be non-assignable and
non-transferable.
8. INDEPENDENCE OF AGREEMENT. The benefits payable under this
Agreement shall be independent of, and in addition to, any other employment
agreement that may exist from time to time between the parties hereto, or any
other compensation payable by the Association to the Executive, whether as
salary, bonus or otherwise. This Agreement shall not affect any other such
agreement.
9. NON-SECURED PROMISE. The rights of the Executive under this
Agreement and of any beneficiary of the Executive shall be solely those of an
unsecured creditor of the Association. The Association shall be under no
obligation whatsoever to procure or obtain any insurance policy or any other
asset to fund or provide security for the satisfaction of the liabilities
arising under this Agreement, and any decision to do so shall be solely in the
discretion of the Association. Any insurance policy or any other asset acquired
or held by the Association in connection with the liabilities assumed by it
hereunder, shall not, except as
3
otherwise expressly provided, be deemed to be held under any trust for the
benefit of the Executive or his beneficiaries or his spouse or estate or to be
security for the performance of the obligations of the Association, but shall
be, and remain, a general, unpledged, unrestricted asset of the Association.
If the Association procures a life insurance policy upon Executive's
life to fund in whole or in part the Association's obligations hereunder (or
under agreements with any other employee) and the Executive fails to answer
truthfully and completely any question or request for information by an
insurance company in connection with the issuance of the policy, and the
liability of the insurer under such policy is unrestricted to any degree as a
result of such failure, then the association shall be relieved of its
obligations hereunder.
10. CHANGE OF BUSINESS FORM. The Association agrees that it will not
merge or consolidate with any other association, corporation or organization, or
permit its business activities to be taken over by any other organization,
unless and until the succeeding or continuing association, corporation or other
organization shall expressly assume the rights and obligations of the
Association herein set forth or the Association makes adequate provision for the
fulfilling of its obligations hereunder. The Association further agrees that it
will not cease its business activities or terminate its existence, other than as
heretofore set forth in this Paragraph 10, without having made adequate
provisions for the fulfilling of its obligations hereunder.
11. EMPLOYMENT RIGHTS. This Agreement shall not be deemed to create a
contract of employment between the Association and the Executive and shall
create no right in the Executive to continue in the Association's employ for any
specific period of time or to create any other rights in the Executive or
obligations on the part of the Association, except as are set forth in this
Agreement. Nor shall this Agreement restrict the right of the Association to
terminate the Executive with or without cause, or restrict the right of the
Executive to terminate his employment.
12. TERMINATION FOR CAUSE AND FORFEITURE OF PAYMENTS.
(a) Termination for Cause. All payments under this Agreement shall
immediately and forever terminate and the right to receive said payments shall
be forever forfeited if in the opinion and discretion of the members of the
Board of Directors (excluding the Director subject of this Agreement):
(i) Executive's employment is terminated by the Association for cause
prior to his Retirement Date; or
4
(ii) After Executive's Retirement or termination, this Agreement is
terminated by the Association as a result of Executive's having
committed an act of embezzlement or larceny of money or other
property from the Association that would constitute a felony; or
(iii) Executive shall materially and willfully breach any provision of
this Agreement or any other agreement between Executive and the
Association.
For purpose of this Agreement, "cause" means:
(i) A material and willful breach of any of Executive's obligations
under this Agreement or of Executive's fiduciary duties to the
Association; or
(ii) In connection with the discharge of Executive's duties with the
Association, one or more material acts of fraud or dishonesty or
gross abuse of authority; or
(iii) Executive's commission of any willful act involving moral
turpitude that materially and adversely affects the name and good
will of the Association or the Association's relationship with
its employees or customers; or
(iv) Executive's habitual and intemperate use of an impairing
substance as defined in N.C.G.S. Section 20-4.0l(14a) to the
extent that the same materially interferes with Executive's
ability to competently, diligently and substantially perform the
duties of his employment; or
(v) Executive's failure to fully, faithfully and promptly perform his
job duties.
(b) Approved Voluntary Termination. In the event Executive
voluntarily terminates his employment with the Association prior to reaching
seventy (70) years of age and said termination is expressly approved by the
Association, Executive shall receive payments commencing with his Retirement
Date in the amount and in accordance with a payment schedule set forth in
Paragraph 3 hereof.
13. LEAVES OF ABSENCE. The Association may, in its sole discretion,
permit the Executive to take a leave of absence for a period not to exceed one
year. During such leave, the Executive will still be considered to be in
continuous employment of the Association for purposes of this Agreement.
5
14. AMENDMENT AND REVOCATION OF AGREEMENT. This Agreement may be
revoked or amended in whole or in part by a writing signed by both of the
parties hereto.
15. CLAIMS PROVISION. The following provisions are part of this
Agreement and are intended to meet the requirements of the Employee Retirement
Income Security Act of 1974:
(a) The "Named Fiduciary": The Pension Funding Policy Committee, or
the person or persons designated by the Board of Directors of the
Association.
(b) The funding policy under this Agreement shall be unfunded and all
payments hereunder shall be made from the general fund of the
Association.
(c) Direct payment by the Association is the basis of payment of
benefits under this Agreement, with those benefits in turn being
based on the amounts as provided in this Agreement.
(d) For claims procedure purposes, the Named Fiduciary shall be the
"Claims Manager".
(i) If for any reason a claim for benefits under this Agreement
is denied by the Association, the Claims Manager shall
deliver to the claimant a written explanation setting forth
the specific reasons for the denial, pertinent references to
the Agreement section on which the denial is based, such
other date as may be pertinent and information on the
procedures to be followed by the claimant in obtaining a
review of its claim, all written in a manner calculated to
be understood by the claimant. For this purpose:
(A) The claimant's claim shall be deemed filed when
presented orally or in writing to the Claims Manager.
(B) The Claims Manager's explanation shall be in writing
delivered to the claimant within ninety (90) days of
the date the claim is filed.
(ii) The claimant shall have sixty (60) days following his
receipt of the denial of the claim to file with the Claims
Manager a written request for review of the denial. For such
review, the claimant or its representative may submit
pertinent documents and written issues and comments.
6
(iii) The Claims Manager shall decide the issue on review and
furnish the claimant with a copy of the decision within
sixty (60) days of receipt of the claimant's request for
review of his claim. The decision on review shall be in
writing and shall include specific reasons for the decision
written in a manner calculated to be understood by the
claimant, as well as specific references to the pertinent
Agreement provisions on which the decision is based. If a
copy of the decision is not so furnished to the claimant
within such sixty (60) days, the claim shall be deemed
denied on review.
16. STATE LAW. This Agreement shall be construed under the laws of
the State of North Carolina.
17. WHOLE AGREEMENT. This writing contains the whole Agreement, with
no other understandings or provisions other than what is contained herein.
18. BINDING EFFECT. This Agreement is solely between the Association
and the Executive. The Executive and his beneficiaries and payees will have
recourse only against the Association for enforcement, and this Agreement will
be binding upon the beneficiaries, heirs, assigns, and personal representatives
of the Executive and upon the successors and assigns of the Association.
19. PRIOR AGREEMENTS. This Agreement supersedes all prior
non-qualified deferred compensation agreements between the Association and the
Executive, and from and after the execution hereof, all such prior
non-qualified deferred compensation agreements shall be null and void and of no
further effect. Except however, there is expressly excluded from this paragraph
that certain policy issued by Provident Life and Accident Insurance Company as
evidenced by certificate dated May 1, 1986 and purchased with premiums paid by
deferred directors' fees.
IN WITNESS WHEREOF, the Association has caused this Agreement to be
signed in its corporate name by its ___________ President, attested by its
Assistant Secretary and impressed with its corporate seal, by authority of its
---------
Board of Directors duly given and the Executive has hereunto set his hand and
seal as of the day and year first above written, in duplicate originals, one of
which is retained by each party hereto.
7
▇▇▇▇▇▇ FEDERAL SAVINGS AND LOAN ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
--------------------------------------
Executive Vice-President
Attest:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
(Assistant) Secretary
(Corporate Seal)
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (SEAL)
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Executive
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, ▇▇.
-------------------------
Witness
8