Exhibit 10.2
Form of Salary Continuation Agreement for the
Named Executive Officers
(and description of benefits for each Named Executive Officer)
Appalachian Community Bank
Salary Continuation Agreement
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APPALACHIAN COMMUNITY BANK
SALARY CONTINUATION AGREEMENT
THIS SALARY CONTINUATION AGREEMENT (the "Agreement") is adopted this first
day of August, 2004, by and between APPALACHIAN COMMUNITY BANK, a
state-chartered commercial bank located in Ellijay, Georgia (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, 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 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.
1.4 "Change of Control" means the transfer of shares of the Company's voting
common stock such that one entity or one person acquires (or is deemed to
acquire when applying Section 318 of the Code) more than 50 percent of the
Company's outstanding voting common stock.
1.5 "Code" means the Internal Revenue Code of 1986, as amended.
1.6 "Disability" means the Executive's suffering a sickness, accident or injury
which has been determined by the insurance carrier of any individual or
group disability insurance policy covering the Executive, or by the Social
Security Administration, to be a disability rendering the Executive totally
and permanently disabled. The Executive must submit proof to the Plan
Administrator of the insurance carrier's or Social Security
Administration's determination upon the request of the Plan Administrator.
1.7 "Discount Rate" means the rate used by the Plan Administrator for
determining the Accrual Balance. The initial Discount Rate is seven
percent. However, the Plan Administrator, in its sole discretion, may
adjust the Discount Rate to maintain the rate within reasonable standards
according to GAAP.
1.8 "Early Termination" means the Termination of Employment before Normal
Retirement Age for reasons other than death, Disability, Termination for
Cause or following a Change of Control.
1.9 "Early Termination Date" means the month, day and year in which Early
Termination occurs.
1.10 "Effective Date" means June 1, 2004.
1.11 "Normal Retirement Age" means the Executive's 62nd birthday.
1.12 "Normal Retirement Date" means the later of the Normal Retirement Age or
Termination of Employment.
1.13 "Plan Administrator" means the plan administrator described in Article 8.
1.14 "Plan Year" means each twelve-month period commencing on the Effective
Date.
1.15 "Termination for Cause" has that meaning set forth in Article 5.
1.16 "Termination of Employment" means that the Executive ceases to be employed
by the Company for any reason, voluntary or involuntary, other than by
reason of a leave of absence approved by the Company.
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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 Article.
2.1.1Amount of Benefit. The annual benefit under this Section 2.1 is one
_________________________________ ($_______). Commencing at the end of
the first Plan Year, and each Plan Year thereafter, the annual benefit
shall be increased three percent (3%) from the previous Plan Year to a
projected annual benefit of one hundred fifty dollars ($_______) at
Normal Retirement Age.
2.1.2Payment of Benefit. The Company shall pay the annual benefit to the
Executive in twelve (12) equal 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 Article.
2.2.1Amount 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 ___________ percent (___%) of the Accrual
Balance [for the first Plan year and _________ percent (___%) for each
succeeding Plan Year].
2.2.2Payment of Benefit. The Company shall pay the benefit to the
Executive in a lump sum within thirty (30) days following the Early
Termination Date.
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 Article.
2.3.1Amount of Benefit. The annual 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 current
Benefit Level.
2.3.2Payment of Benefit. The Company shall pay the annual benefit to the
Executive in twelve (12) equal monthly installments commencing with
the month following Normal Retirement Age. The annual benefit shall be
paid to the Executive for fifteen (15) years.
2.4 Change of Control Benefit. Upon a Change of Control followed by the
Executive's
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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 Article.
2.4.1Amount of Benefit. The annual benefit under this Section 2.4 is the
Change of Control Benefit set forth on Schedule A for the Plan Year
during which Termination of Employment occurs. This benefit is
determined by vesting the Executive in one hundred percent (100%) of
the projected Normal Retirement Benefit amount described in Section
2.1.1.
2.4.2Payment of Benefit. The Company shall pay the annual benefit to the
Executive in twelve (12) equal monthly installments commencing with
the month following Normal Retirement Age. The annual benefit shall be
paid to the Executive for fifteen (15) years.
Article 3
Death Benefits
3.1 Death During Active Service. If the Executive dies while in the active
service of the Company, the Company shall pay to the Beneficiary the
benefit described in this Section 3.1. This benefit shall be paid in lieu
of the benefits under Article 2.
3.1.1Amount of Benefit. The benefit under this Section 2.3 is the
Pre-Retirement Death Benefit set forth on Schedule A for the Plan Year
in which the Executive dies. This benefit is determined by vesting the
Executive's Beneficiary in ___________ percent (___%) of the Benefit
Level.
3.1.2Payment of Benefit. The Company shall pay the annual benefit to the
Beneficiary in twelve (12) equal monthly installments commencing with
the month following the Executive's death. The annual benefit shall be
paid to the Beneficiary for a period of fifteen (15) years.
3.2 Death During Payment of a Benefit. If the Executive dies after any benefit
payments have commenced under Article 2 of this Agreement but before
receiving all such payments, the Company shall pay the remaining benefits
to the 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 Before Payment of a Benefit
Commences. If the Executive is entitled to any benefit payments under
Article 2 of this Agreement, but dies prior to the commencement of said
benefit payments, the Company shall pay the same benefit payments to the
Beneficiary that the Executive was entitled to prior to death except that
the benefit payments shall commence on the first day of the month following
the date of the Executive's death.
Article 4
Beneficiaries
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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.
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.
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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 if
the Company's Board of Directors terminates the Executive's employment for:
(a) Gross negligence or gross neglect of duties to the Company;
(b) Commission of a felony or of a gross misdemeanor involving moral
turpitude;
(c) Fraud or willful violation of any law or significant Company policy
committed in connection with the Executive's employment and resulting
in a material adverse effect on the Company; or
(d) Issuance of an order for removal of the Executive by the Company's
banking regulators.
5.2 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. (1)
5.3 Competition After Termination of Employment. The Company shall not pay any
benefit under this Agreement if the Executive, without the prior written
consent of the Company and within 1 year from the Executive's Termination
of Employment, engages in, becomes interested in, directly or indirectly,
as a sole proprietor, as a partner in a partnership, or as a substantial
shareholder in a corporation, or becomes associated with, in the capacity
of employee, director, officer, principal, agent, trustee or in any other
capacity whatsoever, any enterprise conducted in the trading area (a 50
mile radius) of the business of the Company, which enterprise is, or may
deemed to be, competitive with any business carried on by the Company as of
the date of termination of the Executive's employment or retirement. This
section shall not apply following a Change of Control.
Article 6
Claims And Review Procedures
6.1 Claims Procedure. An Executive or Beneficiary ("claimant") who has not
received benefits under the Agreement that he or she believes should be
paid shall make a claim for such benefits as follows:
6.1.1Initiation - Written Claim. The claimant initiates a claim by
submitting to the Plan Administrator a written claim for the
benefits.
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6.1.2Timing of Plan Administrator Response. The Plan Administrator
shall respond to such claimant within 90 days after receiving the
claim. If the Plan Administrator determines that special
circumstances require additional time for processing the claim,
the Plan Administrator can extend the response period by an
additional 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 Plan Administrator
expects to render its decision.
6.1.3Notice of Decision. If the Plan Administrator denies part or all
of the claim, the Plan Administrator shall notify the claimant in
writing of such denial. The Plan Administrator shall write the
notification in a manner calculated to be understood by the
claimant. The notification shall set forth:
(a) The specific reasons for the denial;
(b) A reference to the specific provisions of the Agreement on
which the denial is based;
(c) A description of any additional information or material
necessary for the claimant to perfect the claim and an
explanation of why it is needed;
(d) An explanation of the Agreement's review procedures and the
time limits applicable to such procedures; and
(e) A statement of the claimant's right to bring a civil action
under ERISA Section 502(a) following an adverse benefit
determination on review.
6.2 Review Procedure. If the Plan Administrator denies part or all of the
claim, the claimant shall have the opportunity for a full and fair review
by the Plan Administrator of the denial, as follows:
6.2.1Initiation - Written Request. To initiate the review, the claimant,
within 60 days after receiving the Plan Administrator's notice of
denial, must file with the Plan Administrator a written request for
review.
6.2.2Additional Submissions - Information Access. The claimant shall then
have the opportunity to submit written comments, documents, records
and other information relating to the claim. The Plan Administrator
shall also provide the claimant, upon request and free of charge,
reasonable access to, and copies of, all documents, records and other
information relevant (as defined in applicable ERISA regulations) to
the claimant's claim for benefits.
6.2.3Considerations on Review. In considering the review, the Plan
Administrator shall take into account all materials and information
the claimant submits relating to the claim, without regard to whether
such information was submitted or considered in the initial benefit
determination.
6.2.4Timing of Plan Administrator Response. The Plan Administrator shall
respond in writing to such claimant within 60 days after receiving the
request for review. If
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the Plan Administrator determines that special circumstances require
additional time for processing the claim, the Plan Administrator can extend
the response period by an additional 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 Plan Administrator expects to
render its decision.
6.2.5Notice of Decision. The Plan Administrator shall notify the claimant
in writing of its decision on review. The Plan Administrator shall
write the notification in a manner calculated to be understood by the
claimant. The notification shall set forth:
(a) The specific reasons for the denial;
(b) A reference to the specific provisions of the Agreement on which
the denial is based;
(c) A statement that the claimant is entitled to receive, upon
request and free of charge, reasonable access to, and copies of,
all documents, records and other information relevant (as defined
in applicable ERISA regulations) to the claimant's claim for
benefits; and
(d) A statement of the claimant's right to bring a civil action under
ERISA Section 502(a).
Article 7
Amendments and Termination
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Executive. Provided, however, if the Company's
Board of Directors determines 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 amend or terminate this Agreement.
Upon such amendment or termination the Company shall pay benefits to the
Executive as if Early Termination occurred on the date of such amendment or
termination, regardless of whether Early Termination actually occurs.
Additionally, the Company may also amend this Agreement to conform with written
directives to the Company from its banking regulators.
Article 8
Administration of Agreement
8.1 Plan Administrator Duties. This Agreement shall be administered by a Plan
Administrator which shall consist of the Board, or such committee or
person(s) as the Board shall appoint. The Executive may be a member of the
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.
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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 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.
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, executors, successors, administrators
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
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forward any amounts withheld to the appropriate taxing authority(ies).
9.5 Applicable Law. The Agreement and all rights hereunder shall be governed by
the laws of the State of Georgia, 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.
9.7 Reorganization. The Company 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,
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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.
IN WITNESS WHEREOF, the Executive and a duly authorized representative
of the Company have signed this Agreement.
EXECUTIVE: COMPANY:
Appalachian Community Bank
__________________________________ By ___________________________________
[Name of Executive]
Title _________________________________
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I designate the following as beneficiary of benefits under the Agreement
payable following my death:
Primary: _________________________________________________________________
_____________________________________________________________________________
Contingent: _________________________________________________________________
_____________________________________________________________________________
Note: To name a trust as beneficiary, please provide the name of the
trustee(s) and the exact name and date of the trust agreement.
I understand that I may change these beneficiary designations by delivering
a new written designation to the Plan Administrator. I further understand that
the designations will be automatically revoked if the beneficiary predeceases
me, or, if I have named my spouse as beneficiary and our marriage is
subsequently dissolved.
1.02 Name:
1.03 Signature: Date:
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SPOUSAL CONSENT (Required if Spouse not named beneficiary):
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I consent to the beneficiary designation above, and acknowledge that if I
am named beneficiary and our marriage is subsequently dissolved, the designation
will be automatically revoked.
1.04 Spouse Name: _______________________________
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Signature: _______________________________ Date: _______
Received by the Plan Administrator this ________ day of ________________, 20___.
(1) By: _________________________________
Title: _________________________________
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Executive Name Plan Anniversary Date 06/01
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Normal Retirement Age 62 Normal Retirement Date
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------------- ----------- ---------------- -------------- ------------------- ------------------- ----------------- ------------
Discount Plan Year Accrual Balance Benefit Level Early Termination Disability Benefit Change of Control Pre-retirement
Rate Ending Benefit Benefit Death Death
Benefit Benefit
------------- ------------ ---------------- -------------- ------------------- ------------------- ----------------- --------------
------------- ------------ ---------------- -------------- ------------------- ------------------- ----------------- --------------
7% May 2005 $ $ $ $ $ $
------------- ------------ ---------------- ------------- ------------------ ------------------- ---------------- --------------
Appalachian Community Bank
Summary of Salary Continuation Agreement Benefits
(Amounts As of Plan Year Ending May 2005)
Projected Pre-
Named Executive Normal Normal Annual Early Change of Retirement Annual
Officers of Appalachian Accrual Retirement Retirement Benefit at Termination Control Death Disability
Community Bank Balance Date Benefit Retirement Benefit Benefit Benefit Benefit
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. $16,938 9/29/2019 $ 48,140(1) $ 75,000 $ 16,938(2) $ 75,000(3) $ 16,938(4) $ 48,140(5)
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ 2,491 1/6/2036 29,999(1) 75,000 1,877(6) 75,000(3) 2,491(4) 29,999(5)
May, ▇▇▇▇ ▇. 7,459 5/3/2026 40,316(1) 75,000 5,619(6) 75,000(3) 7,459(4) 40,316(5)
▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 41,949 4/3/2018 102,143(7) 150,000 41,949(2) 150,000(3} 102,143(8) 102,103(5)
Notes:
(1) Annual benefit increased 3% from the previous plan year up to $75,000.
(2) Benefit determined by vesting the Executive in 100% of the Accrual Balance
(3) Benefit determined by vesting the Executive in 100% of the Projected Normal
Retirement Benefit
(4) Benefit determined by vesting the Executive in 100% of the Accrual Balance
(5) Benefit determined by vesting the Executive in 100% of the current Benefit
Level
(6) Benefit determined by vesting the Executive in 75.33% of the Accrual Balance
for the first plan year and an additional 12.34% of said amount for each
succeeding year thereafter until the Executive becomes 100% vested in the
Accrual Balance
(7) Annual benefit increased 3% from the previous plan year up to $150,000
(8) Benefit determined by vesting the Executive in 100% of the Benefit Level