Crescent State Bank Second Amended Salary Continuation Agreement
EXHIBIT
10(x)
Crescent
State Bank
Second
Amended Salary Continuation Agreement
This Second
Amended Salary Continuation Agreement (this “Agreement”) is entered into
as of this 10 day of September, 2008 by and between Crescent State Bank, a North
Carolina-chartered commercial bank (the “Bank”), and Xxxxxxx X. Xxxxxxx, its
Chief Executive Officer (the “Executive”).
Whereas,
the Executive has contributed substantially to the Bank’s success and the Bank
desires that the Executive continue in its employ,
Whereas,
to encourage the Executive to remain an employee, the Bank is willing to provide
salary continuation benefits to the Executive payable from the Bank’s general
assets,
Whereas,
none of the conditions or events included in the definition of the term “golden
parachute payment” that is set forth in section 18(k)(4)(A)(ii) of the Federal
Deposit Insurance Act [12 U.S.C. 1828(k)(4)(A)(ii)] and in Federal Deposit
Insurance Corporation Rule 359.1(f)(1)(ii) [12 CFR 359.1(f)(1)(ii)] exists or,
to the best knowledge of the Bank, is contemplated insofar as the Bank is
concerned,
Whereas,
the parties hereto intend that this Agreement shall be considered an unfunded
arrangement maintained primarily to provide supplemental retirement benefits for
the Executive, and to be considered a non-qualified benefit plan for purposes of
the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”). The Executive is fully advised of the Bank’s financial
status, and
Whereas,
the Bank and the Executive intend that this Agreement shall amend and restate in
its entirety the October 24, 2007 Amended Salary Continuation Agreement between
the Bank and the Executive.
Now
Therefore, in consideration of these premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Executive and the Bank hereby agree as follows.
Article
1
Definitions
1.1 “Accrual Balance” means the
liability that should be accrued by the Bank under generally accepted accounting
principles (“GAAP”) for the Bank’s obligation to the Executive under this
Agreement, applying Accounting Principles Board Opinion No. 12, as amended by
Financial Accounting Standard No. 106, and the calculation method and discount
rate specified hereinafter. The Accrual Balance shall be calculated
such that when it is credited with interest each month the Accrual Balance at
Normal Retirement Age (or such later date as the Executive is entitled under
section 2.1 to receive the normal retirement benefits) equals the present value
of the normal retirement benefits. The discount rate means the rate
used by the Plan Administrator for determining the Accrual
Balance. The rate is based on the yield on a 20-year corporate bond
rated Aa by Moody’s, rounded to the nearest ¼%. In its sole
discretion the Plan Administrator may adjust the discount rate to maintain the
rate within reasonable standards according to GAAP.
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 according 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 in Control” shall mean
a change in control as defined in Internal Revenue Code section 409A and rules,
regulations, and guidance of general application thereunder issued by the
Department of the Treasury, including –
(a) Change in ownership: a change
in ownership of Crescent Financial Corporation, a North Carolina corporation of
which the bank is a wholly owned subsidiary, occurs on the date any one person
or group accumulates ownership of Crescent Financial Corporation stock
constituting more than 50% of the total fair market value or total voting power
of Crescent Financial Corporation stock,
(b) Change in effective control:
(x) any one person or
more than one person acting as a group acquires within a 12-month period
ownership of Crescent Financial Corporation stock possessing 30% or more of the
total voting power of Crescent Financial Corporation stock, or (y) a majority of Crescent
Financial Corporation’s board of directors is replaced during any 12-month
period by directors whose appointment or election is not endorsed in advance by
a majority of Crescent Financial Corporation’s board of directors,
or
(c) Change in ownership of a substantial
portion of assets: a change in the ownership of a substantial portion of
Crescent Financial Corporation’s assets occurs if in a 12-month period any one
person or more than one person acting as a group acquires from Crescent
Financial Corporation assets having a total gross fair market value equal to or
exceeding 40% of the total gross fair market value of all of Crescent Financial
Corporation’s assets immediately before the acquisition or
acquisitions. For this purpose, gross fair market value means the
value of Crescent Financial Corporation’s assets, or the value of the assets
being disposed of, determined without regard to any liabilities associated with
the assets.
1.5 “Code” means the Internal
Revenue Code of 1986, as amended, and rules, regulations, and guidance of
general application issued thereunder by the Department of the
Treasury.
1.6 “Disability” means, because of
a medically determinable physical or mental impairment that can be expected to
result in death or that can be expected to last for a continuous period of at
least 12 months, (x)
the Executive is unable to engage in any substantial gainful activity, or (y) the Executive is receiving
income replacement benefits for a period of at least three months under an
accident and health plan of the employer. Medical determination of
disability may be made either by the Social Security Administration or by the
provider of an accident or health plan covering employees of the
Bank. Upon request of the Plan Administrator, the Executive must
submit proof to the Plan Administrator of the Social Security Administration’s
or provider’s determination.
1.7 “Early Termination” means
Termination of Employment before Normal Retirement Age for reasons other than
death, Disability, or Termination with Cause.
1.8 “Effective Date” means October
1, 2003.
1.9 “Intentional,” for purposes of
this Agreement, no act or failure to act on the Executive’s part shall be deemed
to have been intentional if it was due primarily to an error in judgment or
negligence. An act or failure to act on the Executive’s part shall be
considered intentional if it is not in good faith and if it is without a
reasonable belief that the action or failure to act is in the Bank’s best
interests.
1.10 “Normal Retirement Age” means
the Executive’s 60th
birthday.
1.11 “Plan Administrator” or “Administrator” means the plan
administrator described in Article 8.
1.12 “Plan Year” means a
twelve-month period commencing on January 1 and ending on December 31 of each
year. The initial Plan Year shall commence on the Effective
Date.
1.13 “Separation from Service” shall
mean a separation from service as defined in Code section 409A, including
termination of the Executive’s service as an executive and independent
contractor to the Bank and any member of a controlled group, as defined in Code
section 414, for any reason other than because of a leave of absence approved by
the Bank or the Executive’s death. For purposes of this Agreement, if
there is a dispute about the employment status of the Executive or the date of
the Executive’s Separation from Service, the Bank shall have the sole and
absolute right to decide the dispute unless a Change in Control shall have
occurred.
1.14 “Termination with Cause” and
“Cause” shall have the
same meaning specified in any effective severance or employment agreement
existing on the date hereof or hereafter entered into between the Executive and
the Bank. If the Executive is not a party to a severance or
employment agreement containing a definition of termination with cause,
Termination with Cause means the Bank terminates the Executive’s employment for
any of the following reasons –
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(a) the
Executive’s gross negligence or gross neglect of duties or intentional and
material failure to perform stated duties after written notice thereof,
or
(b) disloyalty
or dishonesty by the Executive in the performance of the Executive’s duties, or
a breach of the Executive’s fiduciary duties for personal profit, in any case
whether in the Executive’s capacity as a director or officer, or
(c) intentional
wrongful damage by the Executive to the business or property of the Bank or its
affiliates, including without limitation the reputation of the Bank, which in
the judgement of the Bank causes material harm to the Bank or affiliates,
or
(d) a
willful violation by the Executive of any applicable law or significant policy
of the Bank or an affiliate that, in the Bank’s judgement, results in an adverse
effect on the Bank or the affiliate, regardless of whether the violation leads
to criminal prosecution or conviction. For purposes of this
Agreement, applicable laws include any statute, rule, regulatory order,
statement of policy, or final cease-and-desist order of any governmental agency
or body having regulatory authority over the Bank, or
(e) the
occurrence of any event that results in the Executive being excluded from
coverage, or having coverage limited for the Executive as compared to other
executives of the Bank, under the Bank’s blanket bond or other
fidelity or insurance policy covering its directors, officers, or employees,
or
(f) the
Executive is removed from office or permanently prohibited from participating in
the Bank’s affairs by an order issued under section 8(e)(4) or section 8(g)(1)
of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1),
or
(g) conviction
of the Executive for or plea of no contest to a felony or conviction of or plea
of no contest to a misdemeanor involving moral turpitude, or the actual
incarceration of the Executive for 45 consecutive days or more.
Article
2
Lifetime
Benefits
2.1 Normal Retirement
Benefit. Unless the Executive shall have received the benefit
under section 2.4 after a Change in Control, for Separation from Service on or
after the date the Executive attains Normal Retirement Age the Bank shall pay to
the Executive the benefit described in this section 2.1 instead of any other
benefit under this Agreement. However, if the Executive’s Separation
from Service is a Termination with Cause or if this Agreement terminates under
Article 5, no benefits shall be paid.
2.1.1 Amount of
benefit. The annual benefit under this section 2.1 is
$256,100. Beginning one year after payment of the benefit under this
section 2.1.1 commences, the amount of the annual benefit shall be increased
annually at a rate of 3% to offset inflation.
2.1.2 Payment of
benefit. Beginning with the seventh month after the month in
which the Executive’s Separation from Service occurs, the Bank shall pay the
annual benefit to the Executive in equal monthly installments on the first day
of each month. The annual benefit shall be paid to the Executive for
the Executive’s lifetime.
2.2 Early Termination
Benefit. Unless the Executive shall have received the benefit
under section 2.4 after a Change in Control, upon Early Termination the Bank
shall pay to the Executive the benefit described in this section 2.2 instead of
any other benefit under this Agreement. The Executive shall be
entitled to no benefit under this section 2.2 if Early Termination occurs after
a Change in Control. No benefits shall be payable under this
Agreement if the Executive’s Separation from Service is a Termination with Cause
or if this Agreement terminates under Article 5.
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2.2.1 Amount of
benefit. The annual benefit under this section 2.2 is
calculated as the amount that amortizes the Accrual Balance existing at the end
of the month immediately before the month in which Separation from Service
occurs, amortizing that Accrual Balance over the period beginning with the
Executive’s Normal Retirement Age and taking into account interest at the
discount rate or rates established by the Plan
Administrator. Beginning one year after payment of the Early
Termination benefit commences, the amount of the annual benefit under this
section 2.2.1 shall be increased annually at a rate of 3% to offset
inflation.
2.2.2 Payment of
benefit. Beginning with the later of (x) the seventh month after
the month in which the Executive’s Separation from Service occurs, or (y) the month immediately
after the month in which the Executive attains Normal Retirement Age, the Bank
shall pay the annual benefit to the Executive in equal monthly installments on
the first day of each month. The annual benefit shall be paid to the
Executive for the Executive’s lifetime.
2.3 Disability
Benefit. Unless the Executive shall have received the benefit
under section 2.4 after a Change in Control, if Separation from Service occurs
because of Disability before Normal Retirement Age the Bank shall pay to the
Executive the benefit described in this section 2.3 instead of any other benefit
under this Agreement.
2.3.1 Amount of
benefit. The annual benefit under this section 2.3 is
calculated as the amount that amortizes the Accrual Balance existing at the end
of the month immediately before the month in which Separation from Service
occurs, amortizing that Accrual Balance over the period beginning with the
Executive’s Normal Retirement Age and taking into account interest at the
discount rate or rates established by the Plan
Administrator. Beginning one year after payment of the Disability
benefit commences, the amount of the annual benefit under this section 2.3.1
shall be increased annually at a rate of 3% to offset inflation.
2.3.2 Payment of
benefit. Beginning with the later of (x) the seventh month after
the month in which the Executive’s Separation from Service occurs, or (y) the month immediately
after the month in which the Executive attains Normal Retirement Age, the Bank
shall pay the annual benefit to the Executive in equal monthly installments on
the first day of each month. The annual benefit shall be paid to the
Executive for the Executive’s lifetime.
2.4 Change-in-Control
Benefit. If a Change in Control occurs before Separation from
Service, the Bank shall pay to the Executive the benefit described in this
section 2.4 instead of any other benefit under this Agreement.
2.4.1 Amount of
benefit. The benefit under this section 2.4 is the greater of
(x) $1,899,551 or
(y) the Accrual Balance
when the Change in Control occurs, in either case without reduction for the time
value of money or other discount.
2.4.2 Payment of
benefit. The Bank shall pay the benefit under this section 2.4
to the Executive in a single lump sum within three days after the Change in
Control. If the Executive receives the benefit under this section 2.4
because of the occurrence of a Change in Control, the Executive shall not be
entitled to claim additional benefits under section 2.4 if an additional Change
in Control occurs thereafter.
2.5 Change-in-Control Payout of Normal
Retirement Benefit, Early Termination Benefit, or Disability Benefit Being Paid
to the Executive at the Time of a Change in Control. If a
Change in Control occurs while the Executive is receiving the Normal Retirement
Age benefit under section 2.1 or is receiving or is entitled at Normal
Retirement Age to receive the Early Termination benefit under section 2.2 or the
Disability benefit under section 2.3, the Bank shall pay the remaining salary
continuation benefits to the Executive in a single lump sum on the later of
(x) the date of the
Change in Control or (y) the first day of the
seventh month after the month in which the Executive’s Separation from Service
occurs. The lump-sum payment due to the Executive as a result of a
Change in Control shall be an amount equal to the Accrual Balance amount
corresponding to the particular benefit when the Change in Control
occurs.
2.6 Contradiction Between the Agreement
and Schedule A. If there is a contradiction between this
Agreement and Schedule A attached hereto concerning the amount of a particular
benefit due the Executive under sections 2.1, 2.2, 2.3, or 2.4 hereof, the
amount of the benefit determined under this Agreement shall
control.
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2.7 Savings Clause Relating to Compliance
with Code Section 409A. Despite any contrary provision of this
Agreement, if when the Executive’s employment terminates the Executive is a
specified employee, as defined in Code section 409A, and if any payments under
Article 2 of this Agreement will result in additional tax or interest to the
Executive because of section 409A, the Executive shall not be entitled to the
payments under Article 2 until the earliest of (x) the date that is at least
six months after termination of the Executive’s employment for reasons other
than the Executive’s death, (y) the date of the
Executive’s death, or (z) any earlier date that does
not result in additional tax or interest to the Executive under section
409A. If any provision of this Agreement would subject the Executive
to additional tax or interest under section 409A, the Bank shall reform the
provision. However, the Bank shall maintain to the maximum extent
practicable the original intent of the applicable provision without subjecting
the Executive to additional tax or interest, and the Bank shall not be required
to incur any additional compensation expense as a result of the reformed
provision.
2.8 One Benefit
Only. Despite anything to the contrary in this Agreement, the
Executive and Beneficiary are entitled to one benefit only under this Agreement,
which shall be determined by the first event to occur that is dealt with by this
Agreement. Except as provided in section 2.5 or Article 3, subsequent
occurrence of events dealt with by this Agreement shall not entitle the
Executive or Beneficiary to other or additional benefits under this
Agreement.
Article
3
Death
Benefits
3.1 Death Before Separation from
Service. Except as provided in section 5.2, if the Executive
dies before Separation from Service, at the Executive’s death the Executive’s
Beneficiary shall be entitled to (x) an amount in cash equal to
the Accrual Balance existing at the Executive’s death, unless the
Change-in-Control benefit shall have been paid to the Executive under section
2.4 or unless a Change-in-Control payout shall have occurred under section 2.5,
and (y) the benefit
described in the October 1, 2003 Endorsement Split Dollar Agreement attached to
this Agreement as Addendum A. No benefit shall be paid under clause
(x) if the
Change-in-Control benefit shall have been paid to the Executive under section
2.4 or if a Change-in-Control payout shall have occurred under section
2.5. If a benefit is payable to the Executive’s Beneficiary under
clause (x), the benefit
shall be paid in a single lump sum 90 days after the Executive’s
death. However, no benefits under this Agreement or under the
Endorsement Split Dollar Agreement shall be paid or payable to the Executive or
the Executive’s Beneficiary if this Agreement is terminated under Article
5.
3.2 Death after Separation from
Service. If the Executive dies after Separation from Service
and if Separation from Service was not a Termination for Cause, at the
Executive’s death the Executive’s Beneficiary shall be entitled to (x) an amount in cash equal to
the Accrual Balance existing at the Executive’s death, unless the
Change-in-Control benefit shall have been paid to the Executive under section
2.4 or unless a Change-in-Control payout shall have occurred under section 2.5,
and (y) the benefit
described in the October 1, 2003 Endorsement Split Dollar Agreement attached to
this Agreement as Addendum A. No benefit shall be paid under clause
(x) if the
Change-in-Control benefit shall have been paid to the Executive under section
2.4 or if a Change-in-Control payout shall have occurred under section
2.5. If a benefit is payable to the Executive’s Beneficiary under
clause (x), the benefit
shall be paid in a single lump sum 90 days after the Executive’s
death. However, no benefits under this Agreement or under the
Endorsement Split Dollar Agreement shall be paid or payable to the Executive or
the Executive’s Beneficiary if this Agreement is terminated under Article
5.
Article
4
Beneficiaries
4.1 Beneficiary
Designations. The Executive shall have the right to designate
at any time a Beneficiary to receive any benefits payable under this Agreement
at the Executive’s death. The Beneficiary designated under this
Agreement may be the same as or different from the beneficiary designation under
any other benefit plan of the Bank in which the Executive
participates.
4.2 Beneficiary Designation:
Change. The Executive shall designate a Beneficiary by
completing and signing the Beneficiary Designation Form and delivering it to the
Plan Administrator or its designated 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 before the
Executive’s death.
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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 a benefit is payable to a minor, to a person
declared incapacitated, or to a person incapable of handling the disposition of
his or her property, the Bank may pay the benefit to the guardian, legal
representative, or person having the care or custody of the minor, incapacitated
person, or incapable person. The Bank may require proof of
incapacity, minority, or guardianship as it may deem appropriate before
distribution of the benefit. Distribution shall completely discharge
the Bank from all liability for the benefit.
Article
5
General
Limitations
5.1 Termination with
Cause. Despite any contrary provision of this Agreement, the
Bank shall not pay any benefit under this Agreement and this Agreement shall
terminate if Separation from Service is a Termination with
Cause. Likewise, the Beneficiary shall be entitled to no benefits
under the Endorsement Split Dollar Agreement attached to this Agreement as
Addendum A and the Endorsement Split Dollar Agreement also shall terminate if
Separation from Service is a Termination with Cause.
5.2 Misstatement. The
Bank shall not pay any benefit under this Agreement and the Beneficiary shall be
entitled to no benefits under the Endorsement Split Dollar Agreement attached as
Addendum A if the Executive makes any material misstatement of fact on any
application or resume provided to the Bank or on any application for benefits
provided by the Bank.
5.3 Removal. If the
Executive is removed from office or permanently prohibited from participating in
the Bank’s affairs by an order issued under section 8(e)(4) or (g)(1) of the
Federal Deposit Insurance Act, 12 U.S.C. 1818(e)(4) or (g)(1), all obligations
of the Bank under this Agreement shall terminate as of the effective date of the
order and the Endorsement Split Dollar Agreement also shall terminate as of the
effective date of the order.
5.4 Default. Despite
any contrary provision of this Agreement, if the Bank is in “default” or “in
danger of default,” as those terms are defined in section 3(x) of the Federal
Deposit Insurance Act, 12 U.S.C. 1813(x), all obligations under this Agreement
shall terminate.
5.5 FDIC Open-Bank
Assistance. All obligations under this Agreement shall
terminate, except to the extent determined that continuation of the contract is
necessary for the continued operation of the Bank, when the Federal Deposit
Insurance Corporation enters into an agreement to provide assistance to or on
behalf of the Bank under the authority contained in Federal Deposit Insurance
Act section 13(c). 12 U.S.C. 1823(c). Rights of the
parties that have already vested shall not be affected by such action,
however.
Article
6
Claims
and Review Procedures
6.1 Claims Procedure. A
person 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 –
6.1.1 Initiation – written
claim. The claimant initiates a claim by submitting to the
Administrator a written claim for the benefits. If the claim relates
to the contents of a notice received by the claimant, the claim must be made
within 60 days after the notice was received by the claimant. All
other claims must be made within 180 days after the date of the event that
caused the claim to arise. The claim must state with particularity
the determination desired by the claimant.
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6.1.2 Timing of Bank
response. The Bank shall respond to the claimant within 90
days after receiving the claim. If the Bank determines that special
circumstances require additional time for processing the claim, the Bank may
extend the response period by an additional 90 days by notifying the claimant in
writing before the end of the initial 90-day period that an additional period is
required. The notice of extension must state the special
circumstances and the date by which the Bank expects to render its
decision.
6.1.3 Notice of
decision. If the Bank denies part or all of the claim, the
Bank shall notify the claimant in writing of the denial. The Bank
shall write the notification in a manner calculated to be understood by the
claimant. The notification shall set forth –
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6.1.3.1
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the
specific reasons for the
denial,
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6.1.3.2
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a
reference to the specific provisions of the Agreement on which the denial
is based,
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6.1.3.3
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a
description of any additional information or material necessary for the
claimant to perfect the claim and an explanation of why it is
needed,
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6.1.3.4
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an
explanation of the Agreement’s review procedures and the time limits
applicable to such procedures,
and
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6.1.3.5
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a
statement of the claimant’s right to bring a civil action under ERISA
section 502(a) following an adverse benefit determination on
review.
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6.2 Review
Procedure. If the Bank denies part or all of the claim, the
claimant shall have the opportunity for a full and fair review by the Bank of
the denial, as follows –
6.2.1 Initiation – written
request. To initiate the review, within 60 days after
receiving the Bank’s notice of denial the claimant must file with the Bank a
written request for review.
6.2.2 Additional submissions – information
access. The claimant shall then have the opportunity to submit
written comments, documents, records, and other information relating to the
claim. Upon request and free of charge, the Bank shall also provide
the claimant 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.
6.2.3 Considerations on
review. In considering the review, the Bank shall take into
account all materials and information the claimant submits relating to the
claim, without regard to whether the information was submitted or considered in
the initial benefit determination.
6.2.4 Timing of Bank
response. The Bank shall respond in writing to the claimant
within 60 days after receiving the request for review. If the Bank
determines that special circumstances require additional time for processing the
claim, the Bank may extend the response period by an additional 60 days by
notifying the claimant in writing before the end of the initial 60-day period
that an additional period is required. The notice of extension must
state the special circumstances and the date by which the Bank expects to render
its decision.
6.2.5 Notice of
decision. The Bank shall notify the claimant in writing of its
decision on review. The Bank shall write the notification in a manner
calculated to be understood by the claimant. The notification shall
set forth –
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6.2.5.1
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the
specific reason for the
denial,
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6.2.5.2
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a
reference to the specific provisions of the Agreement on which the denial
is based,
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6.2.5.3
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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
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6.2.5.4
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a
statement of the claimant’s right to bring a civil action under ERISA
section 502(a).
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Article
7
Miscellaneous
7.1 Amendments and
Termination. Subject to section 7.15 of this Agreement, this
Agreement may be amended solely by a written agreement signed by the Bank and by
the Executive, and except for termination occurring under Article 5 this
Agreement may be terminated solely by a written agreement signed by the Bank and
by the Executive.
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7.2 Binding
Effect. This Agreement shall bind the Executive, the Bank and
their beneficiaries, survivors, executors, successors, administrators, and
transferees.
7.3 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 Bank nor does it interfere with the Bank’s right to discharge
the Executive. It also does not require the Executive to remain an
employee or interfere with the Executive’s right to terminate employment at any
time.
7.4 Non-Transferability. Benefits
under this Agreement may not be sold, transferred, assigned, pledged, attached,
or encumbered.
7.5 Successors; Binding
Agreement. By an assumption agreement in form and substance
satisfactory to the Executive, the Bank shall require any successor (whether
direct or indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all of the business or assets of the Bank to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that
the Bank would be required to perform this Agreement had no succession
occurred.
7.6 Tax
Withholding. The Bank shall withhold any taxes that are
required to be withheld from the benefits provided under this
Agreement.
7.7 Applicable
Law. This Agreement and all rights hereunder shall be governed
by the laws of the State of North Carolina, except to the extent preempted by
the laws of the United States of America.
7.8 Unfunded
Arrangement. The Executive and Beneficiary are general
unsecured creditors of the Bank for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Bank to pay
benefits. Rights to benefits are not subject 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 Bank to which the Executive and Beneficiary have no
preferred or secured claim.
7.9 Entire
Agreement. This Agreement and the October 1, 2003 Endorsement
Split Dollar Agreement attached as Addendum A constitute the entire agreement
between the Bank and the Executive concerning the subject matter. No
rights are granted to the Executive under this Agreement other than those
specifically set forth. This Agreement amends and restates in its
entirety the October 24, 2007 Amended Salary Continuation
Agreement.
7.10 Severability. If
any provision of this Agreement is held invalid, such invalidity shall not
affect any other provision of this Agreement not held invalid, and each such
other provision shall continue in full force and effect to the full extent
consistent with law. If any provision of this Agreement is held
invalid in part, such invalidity shall not affect the remainder of the provision
not held invalid, and the remainder of such provision together with all other
provisions of this Agreement shall continue in full force and effect to the full
extent consistent with law.
7.11 Headings. Caption
headings and subheadings herein are included solely for convenience of reference
and shall not affect the meaning or interpretation of any provision of this
Agreement.
7.12 Notices. All
notices, requests, demands, and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand or
mailed, certified or registered mail, return receipt requested, with postage
prepaid, to the following addresses or to such other address as either party may
designate by like notice. If to the Bank, notice shall be given to
the board of directors, Crescent State Bank, 1005 High House Road, P.O. Box
5809, Xxxx, Xxxxx Xxxxxxxx 00000, or to such other or additional
person or persons as the Bank shall designate to the Executive in
writing. If to the Executive, notice shall be given to the Executive
at the Executive’s address appearing on the Bank’s records or to such other or
additional person or persons as the Executive shall designate to the Bank in
writing.
8
7.13 Payment of Legal
Fees. The Bank is aware that after a Change in Control
management of the Bank could cause or attempt to cause the Bank to refuse to
comply with its obligations under this Agreement, or could institute or cause or
attempt to cause the Bank to institute litigation seeking to have this Agreement
declared unenforceable, or could take or attempt to take other action to deny
Executive the benefits intended under this Agreement. In these
circumstances the purpose of this Agreement would be frustrated. The
Bank desires that the Executive not be required to incur expenses associated
with the enforcement of rights under this Agreement, whether by litigation or
other legal action, because the cost and expense thereof would substantially
detract from the benefits intended to be granted to the Executive
hereunder. The Bank desires that the Executive not be forced to
negotiate settlement of rights under this Agreement under threat of incurring
expenses. Accordingly, if after a Change in Control occurs it appears
to the Executive that (x) the Bank has failed to
comply with any of its obligations under this Agreement, or (y) the Bank or any other
person has taken any action to declare this Agreement void or unenforceable, or
instituted any litigation or other legal action designed to deny, diminish, or
to recover from the Executive the benefits intended to be provided to the
Executive hereunder, the Bank irrevocably authorizes the Executive from time to
time to retain counsel of the Executive’s choice, at the Bank’s expense as
provided in this section 7.13, to represent the Executive in the initiation or
defense of any litigation or other legal action, whether by or against the Bank
or any director, officer, stockholder, or other person affiliated with the Bank,
in any jurisdiction. Despite any existing or previous attorney-client
relationship between the Bank and any counsel chosen by the Executive under this
section 7.13, the Bank irrevocably consents to the Executive entering into an
attorney-client relationship with that counsel and the Bank and the Executive
agree that a confidential relationship shall exist between the Executive and
that counsel. The fees and expenses of counsel selected from time to
time by the Executive as provided in this section shall be paid or reimbursed to
the Executive by the Bank on a regular, periodic basis upon presentation by the
Executive of a statement or statements prepared by counsel in accordance with
counsel’s customary practices, up to a maximum aggregate amount of $250,000,
whether suit be brought or not and regardless of whether incurred in trial,
bankruptcy, or appellate proceedings. The Bank’s obligation to pay
the Executive’s legal fees provided by this section 7.13 operates separately
from and in addition to any legal fee reimbursement obligation the Bank may have
with the Executive under any separate employment, severance, or other agreement
between the Executive and the Bank. Despite anything in this
Agreement to the contrary however, the Bank shall not be required to pay or
reimburse the Executive’s legal expenses if doing so would violate section 18(k)
of the Federal Deposit Insurance Act [12 U.S.C. 1828(k)] and Rule 359.3 of the
Federal Deposit Insurance Corporation [12 CFR 359.3].
7.14 Internal Revenue Code Section 280G
Gross Up. (a) Additional payment to account for
Excise Taxes. If the Executive’s benefits under this Agreement
or under any other plan or agreement of or with the Bank or its affiliates
(together, the “Total Benefits”) are subject to the Excise Tax as set forth in
Code sections 280G and 4999 (the “Excise Tax”), the Bank shall pay to the
Executive the following additional amounts, consisting of (x) a payment equal to the
Excise Tax payable by the Executive on the Total Benefits under Code section
4999 (the “Excise Tax Payment”), and (y) a payment equal to the
amount necessary to provide the Excise Tax Payment net of all income, payroll
and excise taxes. Together, the additional amounts described in
clauses (x) and (y) are referred to in this
Agreement as the “Gross-Up Payment Amount.”
Calculating the Excise
Tax. For purposes of determining whether any of the Total
Benefits will be subject to the Excise Tax and for purposes of determining the
amount of the Excise Tax,
|
1)
|
Determination of “parachute
payments” subject to the Excise Tax: any other payments or benefits
received or to be received by the Executive in connection with a Change in
Control or the Executive’s Separation from Service (whether under the
terms of this Agreement or any other agreement or any other benefit plan
or arrangement with the Bank, any person whose actions result in a Change
in Control, or any person affiliated with the Bank or such person) shall
be treated as “parachute payments” within the meaning of Code section
280G(b)(2) and all “excess parachute payments” within the meaning of
section 280G(b)(1) shall be treated as subject to the Excise Tax, unless
in the opinion of the certified public accounting firm that is retained by
the Bank as of the date immediately before the Change in Control (the
“Accounting Firm”) such other payments or benefits do not constitute (in
whole or in part) parachute payments, or such excess parachute payments
represent (in whole or in part) reasonable compensation for services
actually rendered within the meaning of Code section 280G(b)(4) in excess
of the base amount (as defined in Code section 280G(b)(3)), or are
otherwise not subject to the Excise
Tax,
|
9
|
2)
|
Calculation of benefits
subject to the Excise Tax: the amount of the Total
Benefits that shall be treated as subject to the Excise Tax shall be equal
to the lesser of (x) the total amount of
the Total Benefits reduced by the amount of such Total Benefits that in
the opinion of the Accounting Firm are not parachute payments, or (y) the amount of excess
parachute payments within the meaning of section 280G(b)(1) (after
applying clause (1), above), and
|
|
3)
|
Value of noncash benefits and
deferred payments: the value of any noncash benefits or
any deferred payment or benefit shall be determined by the Accounting Firm
in accordance with the principles of Code sections 280G(d)(3) and
(4).
|
Assumed Marginal Income Tax
Rate. For purposes of determining the amount of the Gross-Up Payment
Amount, the Executive shall be deemed to pay federal income taxes at the highest
marginal rate of federal income taxation in the calendar years in which the
Gross-Up Payment Amount is to be made and state and local income taxes at the
highest marginal rate of taxation in the state and locality of the Executive’s
residence on the date of Separation from Service, net of the reduction in
federal income taxes that can be obtained from deduction of state and local
taxes (calculated by assuming that any reduction under Code section 68 in the
amount of itemized deductions allowable to the Executive applies first to reduce
the amount of state and local income taxes that would otherwise be deductible by
the Executive, and applicable federal FICA and Medicare withholding
taxes).
Return of Reduced Excise Tax
Payment or Payment of Additional Excise Tax. If the Excise Tax
is later determined to be less than the amount initially determined under this
Agreement, the Executive shall repay to the Bank – when the amount of the
reduction in Excise Tax is finally determined – the portion of the Gross-Up
Payment Amount attributable to the reduction (plus that portion of the Gross-Up
Payment Amount attributable to the Excise Tax, federal, state and local income
taxes and FICA and Medicare withholding taxes imposed on the Gross-Up Payment
Amount being repaid by the Executive to the extent that the repayment results in
a reduction in Excise Tax, FICA, and Medicare withholding taxes and/or a
federal, state, or local income tax deduction).
If the Excise Tax is later determined
to be more than the amount initially determined under this Agreement (due, for
example, to a payment whose existence or amount cannot be determined at the time
of the Gross-Up Payment Amount), the Bank shall make an additional Gross-Up
Payment Amount to the Executive for that excess (plus any interest, penalties,
or additions payable by the Executive for the excess) when the amount of the
excess is finally determined.
(b) Responsibilities of the Accounting
Firm and the Bank. Determinations Shall Be Made
by the Accounting Firm. Subject to the provisions of section
7.14(a), all determinations required to be made under this section 7.14(b) –
including whether and when a Gross-Up Payment Amount is required, the amount of
the Gross-Up Payment Amount and the assumptions to be used to arrive at the
determination (collectively, the “Determination”) – shall be made by the
Accounting Firm, which shall provide detailed supporting calculations both to
the Bank and the Executive within 15 business days after receipt of notice from
the Bank or the Executive that there has been a Gross-Up Payment Amount, or such
earlier time as is requested by the Bank.
Fees and Expenses of the
Accounting Firm and Agreement with the Accounting Firm. All
fees and expenses of the Accounting Firm shall be borne solely by the
Bank. The Bank shall enter into any agreement requested by the
Accounting Firm in connection with the performance of its services
hereunder.
Accounting Firm’s
Opinion. If the Accounting Firm determines that no Excise Tax
is payable by the Executive, the Accounting Firm shall furnish the Executive
with a written opinion to that effect and to the effect that failure to report
Excise Tax, if any, on the Executive’s applicable federal income tax return will
not result in the imposition of a negligence or similar penalty.
10
Accounting Firm’s
Determination Is Binding; Underpayment and Overpayment. The
Determination by the Accounting Firm shall be binding on the Bank and the
Executive. Because of the uncertainty when the Determination is made
whether any of the Total Benefits will be subject to the Excise Tax, it is
possible that a Gross-Up Payment Amount that should have been made will not have
been made by the Bank (“Underpayment”), or that a Gross-Up Payment Amount will
be made that should not have been made by the
Bank (“Overpayment”). If after a Determination by the
Accounting Firm the Executive is required to make a payment of additional Excise
Tax, the Accounting Firm shall determine the amount of the
Underpayment. The Underpayment (together with interest at the rate
provided in Code section 1274(d)(2)(B) shall be paid promptly by the Bank to or
for the benefit of the Executive. If the Gross-Up Payment Amount
exceeds the amount necessary to reimburse the Executive for the Excise Tax
according to section 7.14(a), the Accounting Firm shall determine the amount of
the Overpayment. The Overpayment (together with interest at the rate
provided in Code section 1274(d)(2)(B)) shall be paid promptly by the Executive
to or for the benefit of the Bank. Provided that the Executive’s
expenses are reimbursed by the Bank, the Executive shall cooperate with any
reasonable requests by the Bank in any contests or disputes with the Internal
Revenue Service relating to the Excise Tax.
Accounting Firm Conflict of
Interest. If the Accounting Firm is serving as accountant or
auditor for the individual, entity, or group effecting the Change in Control,
the Executive may appoint another nationally recognized public accounting firm
to make the Determinations required hereunder (in which case the term
“Accounting Firm” as used in this Agreement shall be deemed to refer to the
accounting firm appointed by the Executive).
7.15 Termination or Modification of
Agreement Because of Changes in Law, Rules or Regulations. The
Bank is entering into this Agreement on the assumption that certain existing tax
laws, rules, and regulations will continue in effect in their current
form. If that assumption materially changes and the change has a
material detrimental effect on this Agreement, then the Bank reserves the right
to terminate or modify this Agreement accordingly, subject to the written
consent of the Executive, which shall not be unreasonably
withheld. This section 7.15 shall become null and void effective
immediately if a Change in Control occurs.
7.16 Automatic Review
Procedure. On the third year anniversary of the Effective Date
and every third year thereafter the Bank will automatically review this
Agreement for reasonableness of benefits with the intent that the Executive’s
target benefit shall be 75% of compensation less the Bank-provided
benefits. For purposes of this Agreement, Bank-provided benefits
include but are not limited to (x) the Bank 401(k) match and
(y) the Bank portion of
Social Security benefits. As used in this section 7.16, the term
compensation means the base annual salary of the Executive projected at the
Executive’s Normal Retirement Age. Base Annual Salary means
compensation of the type that would, according to the Securities and Exchange
Commission’s Regulation S-K Item 402(c) (17 CFR 229.402(c)), be required to be
reported as salary in that rule’s Summary Compensation Table. The
term Base Annual Salary specifically excludes director fees and other director
compensation, bonus, option grants, and any other compensation that would be
reported in separate columns in the Summary Compensation Table, but it includes
salary deferred at the election of the Executive.
Article
8
Administration
of Agreement
8.1 Plan Administrator
Duties. This Agreement shall be administered by a Plan
Administrator consisting of the board or such committee or person(s) as the
board shall appoint. The Executive may not be a member of the Plan
Administrator. The Plan Administrator shall have the discretion and
authority to (x) make,
amend, interpret, and enforce all appropriate rules and regulations for the
administration of this Agreement and (y) decide or resolve any and
all questions that may arise, including interpretations of this
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 Bank.
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 and calculation method described in section
1.1.
8.4 Indemnity of Plan
Administrator. The Bank 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.
11
8.5 Bank
Information. To enable the Plan Administrator to perform its
functions, the Bank 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 Separation from Service of the Executive and
such other pertinent information as the Plan Administrator may reasonably
require.
In Witness
Whereof, the Executive and a duly authorized officer of the Bank have
executed this Second Amended Salary Continuation Agreement as of the date first
written above.
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Executive:
|
Bank | ||
| Crescent State Bank | |||
|
/s/ Xxxxxxx X. Xxxxxxx
|
By:
|
|
|
|
Xxxxxxx
X. Xxxxxxx
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|||
|
Its:
|
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||
|
And By:
|
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||
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Its:
|
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||
12
Beneficiary
Designation
Crescent
State Bank
Second
Amended Salary Continuation Agreement
I, Xxxxxxx X. Xxxxxxx, designate the
following as beneficiary of any death benefits under this Second Amended Salary
Continuation Agreement –
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 filing a new written designation with the
Bank. 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.
|
|
Signature:
|
/s/ Xxxxxxx X.
Xxxxxxx
|
|
| Xxxxxxx X. Xxxxxxx |
|
|
Date:
_______________, 200__
|
Accepted by the Bank this ___ day of
_______________, 200__
|
|
|
|
Print
Name:
|
|
|
Title:
|
|
13
Schedule
A
Crescent
State Bank
Second
Amended Salary Continuation Agreement
Xxxxxxx
X. Xxxxxxx
|
Plan
Year
|
Plan Year
ending
December
31,
|
Age
at
Plan
Year
end
|
Accrual
Balance @
6.25% (1)
|
Early
Termination
annual
benefit
payable at
Normal
Retirement
Age (2)
|
Disability
annual
benefit
payable at
Normal
Retirement
Age (2)
|
Change-in-
Control
benefit
payable in a
lump sum
(3)
|
||||||||||||||||
|
6
|
2008
|
47
|
$ | 386,060 | $ | 54,621 | $ | 54,621 | $ | 1,899,551 | ||||||||||||
|
7
|
2009
|
48
|
$ | 579,387 | $ | 77,020 | $ | 77,020 | $ | 1,899,551 | ||||||||||||
|
8
|
2010
|
49
|
$ | 785,149 | $ | 98,065 | $ | 98,065 | $ | 1,899,551 | ||||||||||||
|
9
|
2011
|
50
|
$ | 1,004,147 | $ | 117,838 | $ | 117,838 | $ | 1,899,551 | ||||||||||||
|
10
|
2012
|
51
|
$ | 1,237,230 | $ | 136,417 | $ | 136,417 | $ | 1,899,551 | ||||||||||||
|
11
|
2013
|
52
|
$ | 1,485,306 | $ | 153,872 | $ | 153,872 | $ | 1,899,551 | ||||||||||||
|
12
|
2014
|
53
|
$ | 1,749,339 | $ | 170,273 | $ | 170,273 | $ | 1,899,551 | ||||||||||||
|
13
|
2015
|
54
|
$ | 2,030,355 | $ | 185,682 | $ | 185,682 | $ | 2,030,355 | ||||||||||||
|
14
|
2016
|
55
|
$ | 2,329,446 | $ | 200,160 | $ | 200,160 | $ | 2,329,446 | ||||||||||||
|
15
|
2017
|
56
|
$ | 2,647,775 | $ | 213,763 | $ | 213,763 | $ | 2,647,775 | ||||||||||||
|
16
|
2018
|
57
|
$ | 2,986,580 | $ | 226,544 | $ | 226,544 | $ | 2,986,580 | ||||||||||||
|
17
|
2019
|
58
|
$ | 3,347,177 | $ | 238,553 | $ | 238,553 | $ | 3,347,177 | ||||||||||||
|
18
|
2020
|
59
|
$ | 3,730,969 | $ | 249,836 | $ | 249,836 | $ | 3,730,969 | ||||||||||||
|
July
2021
|
60
|
$ | 3,966,148 |
(4)
|
$ | 256,100 | $ | 256,100 | ||||||||||||||
(1) Calculations
are approximations. Benefit calculations are based on prior year-end
accrual balances for illustrative purposes. The accrual balance
reflects payment at the beginning of each month during
retirement. For purposes of this illustration, the accrual balance
figures do not take account of the six-month delay under Internal Revenue Code
section 409A and section 2.1 of the Second Amended Salary Continuation Agreement
between the Normal Retirement Date and the date when benefits under section 2.1
commence.
(2) The
Early Termination and Disability benefits are calculated as the annual amount
that fully amortizes the Accrual Balance existing at the end of the month
immediately before the month in which Separation from Service occurs, amortizing
that Accrual Balance over the period beginning with the Executive’s Normal
Retirement Age and taking into account interest at the discount rate or rates
established by the Plan Administrator. Using a standard discount rate
(6.25%), Early Termination and Disability benefits are shown for illustrative
purposes only. The Early Termination and Disability benefits shown
assume the Executive’s Separation from Service occurs more than six months
before the Executive’s Normal Retirement Age and that the Early Termination
benefit and the Disability benefit therefore become payable beginning in the
month after the Executive attains the Normal Retirement Age. Under
sections 2.2.1 and 2.3.1 of the Second Amended Salary Continuation Agreement,
the Early Termination and Disability benefit amounts increase annually by 3% to
offset inflation, beginning one year after payment of the Early Termination or
Disability benefit commences.
14
(3) The
change-in-control benefit under section 2.4 of the Second Amended Salary
Continuation Agreement is the greater of (x) $1,899,551 or (y) the accrual balance when
the Change in Control occurs, in either case without reduction for the time
value of money or other discount.
(4) Projected
retirement occurs on July 31, 2021, with the first monthly normal retirement
benefit payment on the first day of the seventh month after retirement, or
February 1, 2022. For purposes of this illustration, the accrual
balance figure as of July 2021 does not take account of the six-month delay
under Internal Revenue Code section 409A and section 2.1 of the Second Amended
Salary Continuation Agreement between the Normal Retirement Date and the date
when benefits under section 2.1 commence.
If there is a contradiction between the
terms of the Agreement and Schedule A concerning the amount of a particular
benefit due the Executive under sections 2.1, 2.2, 2.3, or 2.4 of the Agreement,
the amount of the benefit determined under the Agreement shall
control.
15
