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SUPPLEMENTAL DEFINED
COUNTY OF MECKLENBURG BENEFIT PLAN
THIS PLAN is made and entered into effective as of the 31st day of
December, 1999, by and between PARK MERIDIAN BANK, a state banking association
organized under the laws of North Carolina with its principal offices and place
of business in the State of North Carolina (hereinafter referred to as the
"Corporation"), and XXXXX XXXXXXXX, an individual residing in the State of North
Carolina (hereinafter referred to as "the Employee").
W I T N E S S E T H T H A T:
WHEREAS, the Employee is employed by the Corporation;
WHEREAS, the Employee has provided valuable services to the
Corporation;
WHEREAS, the Corporation recognizes the valuable services performed by
the Employee and the benefits that have inured to the Corporation as a result of
such service and wishes to encourage the Employee's continued employment and
service to the Corporation;
WHEREAS, the Employee wishes to be assured that the Employee or the
Employee's designated beneficiary will be entitled to a certain amount of
additional compensation for some definite period of time from and after the
Employee's retirement from active service with the Corporation, or other
termination of such employment whether by reason of disability, death or
otherwise; and
WHEREAS, the parties hereto wish to document the terms and conditions
upon which the Corporation agrees to pay such additional compensation to the
Employee or the Employee's designated beneficiary after the Employee's
retirement, disability, death or such other termination of employment.
NOW, THEREFORE, in consideration of the Employee's past services to the
Corporation and in consideration of the Employee remaining in its employ until
termination of such employment whether by reason of retirement, early
retirement, disability, death or otherwise, and other good and valuable
consideration, the adequacy and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definitions
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1.1 "Beneficiary" means with respect to the Employee, the person or persons
who are designated to receive payments under the Plan as provided
herein. Such Beneficiary shall be initially designated by the Employee
on the Beneficiary Designation form attached hereto as "Attachment A"
and incorporated herein by reference.
1.2 "Change in Control" means (i) the merger of the Corporation with any
other corporation or banking association as a result of which the
holders of the voting securities of the Corporation outstanding
immediately prior to such event would receive or retain less than fifty
percent (50%) of the outstanding voting securities of the resulting or
surviving entity of such merger; (ii) the acquisition of more than
twenty percent (20%) of the outstanding voting securities of the
Corporation (calculated on a fully diluted basis) by any person; or
(iii) the sale of more than fifty percent (50%) in value of the assets
of the Corporation. For purposes of this Section 1.2, a "person" shall
mean: (i) an individual or a corporation, partnership (limited or
general), trust, limited liability company, business trust, association
(mutual or stock, and including a mutual holding company), joint
venture, pool, syndicate, unincorporated organization or any other form
of entity; and (ii) any Affiliate of any individual or entity listed in
item (i). "Affiliate" shall mean any person who controls, is under
common control with, or is controlled by the person to whom reference
is being made; and for the purposes of the definition of Affiliate,
control shall be deemed to exist in a person who beneficially owns ten
percent (10%) or more of the outstanding equity interests (or options,
warrants or other rights to acquire such equity interests) of another
person.
1.3 "Corporation" means PARK MERIDIAN BANK, a state banking association
organized under the laws of North Carolina, or any successor thereto
and its subsidiaries.
1.4 "Death Benefit" means an amount equal to $8,315.00.
1.5 "Early Retirement" means the termination of the Employee's employment
with the Corporation prior to the Normal Retirement Date for any reason
other than on account of the Employee's death.
1.6 "Early Retirement Benefit" means an amount equal to the Employee's
Normal Retirement Benefit multiplied by the percentage in Column B of
the table below which corresponds to the number of years subsequent to
the Entry Date in which the Employee was employed full-time by the
Corporation ("years employed") in Column A of the table below. In
determining the number of years employed, (i) the first day of such
calculation shall be the Entry Date, and the last day shall be the
Employee's retirement or termination date, and (ii) for any partial
years, the increase in the Percentage
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of Normal Retirement Benefit in Column B shall be divided by four (4)
and the Percentage of Normal Retirement Benefit shall be increased by
one-fourth (1/4) of such increase in the Percentage of Normal
Retirement Benefit for such partial year for each partial quarter of
the partial year in which the Employee was employed full-time by the
Corporation.
COLUMN A COLUMN B
Years Employed Percentage of Normal
Subsequent to Entry Date Retirement Benefit
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Less than 1 8.72
1 20.40
2 31.18
3 41.14
4 50.35
5 58.86
6 66.22
7 73.02
8 79.30
9 85.11
10 90.48
11 95.42
12 100
In the event of a Change in Control between the Entry Date and the five
(5) year anniversary of the Entry Date, for purposes of determining the
Employee's Early Retirement Benefit, (i) if the Early Retirement Date occurs
prior to the five (5) year anniversary of the Entry Date, the number of years
subsequent to the Entry Date in which the Employee was employed full-time by the
Corporation shall be deemed to be five (5), regardless of the actual number of
years employed, and (ii) if the Early Retirement Date occurs after the five (5)
year anniversary of the Entry Date, on the five (5) year anniversary of the
Entry Date the number of years subsequent to the Entry Date in which the
Employee was employed full-time by the Corporation shall be deemed to be
thirteen (13), regardless of the actual number of years employed. In the event
of Change in Control after the five (5) year anniversary of the Entry Date, for
purposes of determining the Employee's Early Retirement Benefit, the number of
years subsequent to the Entry Date in which the Employee was employed full-time
by the Corporation shall be deemed to be thirteen (13), regardless of the actual
number of years employed.
In the event the Employee's Amended and Restated Employment and Stock
Option Agreement entered into between the Employee and the Corporation on
January 1, 1998 is not renewed for any reason at the end of its five (5) year
term, for purposes of determining the Employee's Early Retirement Benefit, the
number of
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years subsequent to the Entry Date in which the Employee was employed full time
by the Corporation shall be deemed to be five (5), regardless of the actual
number of years employed.
1.7 "Early Retirement Date" means the first day of the month following the
month during which the Employee attains Early Retirement.
1.8 "Entry Date" means the effective date of this Plan.
1.9 "Employee" means XXXXX XXXXXXXX.
1.10 "Fiscal Year" shall mean the twelve month period beginning on January 1
of each year.
1.11 "Normal Retirement Age" means age sixty-two (62).
1.12 "Normal Retirement Benefit" means an amount equal to $8,315.00.
1.13 "Normal Retirement Date" means the later of the first day of the month
following the month during which the Employee attains his Normal
Retirement Age or the first day of the month following the Employee's
retirement after attaining of his Normal Retirement Age.
1.14 "Plan" means the Supplemental Defined Benefit Plan of the Corporation
and its successors as described herein as the same may hereafter from
time to time be amended.
2. PAYMENT OF BENEFITS
2.1 Normal Retirement. If the Employee is actively and continuously
employed by the Corporation on a full-time basis from his Entry Date
until he attains his Normal Retirement Age, then the Corporation will
make a series of payments to the Employee, each such payment to be
equal to the Employee's Normal Retirement Benefit. The first such
payment shall be made on the Normal Retirement Date and the remaining
payments shall be made on the first day of each succeeding month until
One-Hundred Twenty (120) payments have been made. If the Employee dies
before all of the payments due to him have been made, the remaining
payments shall be made to the Beneficiary. If the Beneficiary dies
before receiving all the payments due to the Beneficiary, then the
remaining payments shall be made to the personal representative of the
Beneficiary's estate.
2.2 Early Retirement. In the event of the Employee's Early Retirement, the
Corporation will make a series of payments to the Employee, each such
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payment to be equal to the Employee's Early Retirement Benefit. The
first such payment shall be made on the Employee's Early Retirement
Date and the remaining payments shall be made on the first day of each
succeeding month until One-Hundred Twenty (120) payments have been
made. If the Employee dies before receiving all of the payments due to
him, then the remaining payments shall be made to the Beneficiary. If
the Beneficiary dies before receiving all the payments due to the
Beneficiary, then the remaining payments shall be made to the personal
representative of the Beneficiary's estate.
2.3 If the Employee's employment with the Corporation is terminated on
account of his death before his Normal Retirement Date, then the
Corporation will make a series of payments to such Employee's
Beneficiary, each such payment to be equal to the Employee's Death
Benefit. The first such payment shall be made on the first day of the
month following the Employee's death and the remaining payments shall
be made on the first day of each succeeding month until One-Hundred
Twenty (120) payments have been made. If the Employee's Beneficiary
dies before all of the payments due to the Beneficiary have been made,
then any remaining payments shall be made to the personal
representative of the Beneficiary's estate.
2.4 If, at the death of the Employee, there is no properly designated
living Beneficiary, or, if the Beneficiary is an entity and such entity
is not then in existence, then any payments due under this Plan shall
be made to the Employee's estate.
3. RIGHTS AND DUTIES OF EMPLOYEES
3.1 The Employee or any other person shall not have any interest in any
fund or in any specific asset or assets of the Corporation by reason of
this Plan, or for any other reason, or have any right to receive any
distributions under the Plan except as and to the extent expressly
provided under the Plan. The Employee is a general creditor of the
Corporation.
3.2 The Employee shall receive an updated copy of the Plan and shall
receive copies of any amendments to the Plan within ten (10) days after
their adoption.
3.3 No right of the Employee or any Beneficiary to receive payment
hereunder shall be subject to alienation, transfer, sale, assignment,
pledge, attachment, garnishment or encumbrance of any kind. Any attempt
to alienate, sell, transfer, assign, pledge or otherwise encumber any
such payments whether presently or hereafter payable shall be void. No
payment under this Plan shall be subject to debts or liabilities of the
Employee or Beneficiary.
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3.4 Every person receiving or claiming payments under the Plan shall be
presumed to be mentally competent until the date on which the
Corporation receives a written notice in a form and manner acceptable
to the Corporation that such person is incompetent and that a guardian,
conservator or other person legally vested with the interest of his or
her estate has been appointed. If a guardian or conservator of the
estate of any person receiving or claiming payments under the Plan is
appointed, payments under this Plan may be made to such guardian or
conservator provided that the proper proof of appointment and
continuing qualification is furnished in a form and manner acceptable
to the Corporation. Any payments so made shall be a discharge of any
liability of the Corporation for such payments.
3.5 Each person entitled to receive a payment under this Plan, whether the
Employee, Beneficiary, a guardian or otherwise, shall provide the
Corporation with such information it may from time to time deem
necessary or in its best interest in administering the Plan. Any such
person shall also furnish the Corporation with such documents,
evidence, data or other information as the Corporation may from time to
time deem necessary or advisable.
4. DUTIES OF THE PLAN ADMINISTRATOR
4.1 The Plan shall be administered by the Plan Administrator.
4.2 The Plan Administrator may from time to time establish rules and
regulations for the administration of the Plan and adopt standard forms
for such matters as elections, beneficiary designations and
applications for benefits, provided such rules and forms are not
inconsistent with the provisions of the Plan.
4.3 All determinations of the Plan Administrator shall be binding on all
parties. In construing or applying the provisions of the Plan, the
Corporation shall have the right to rely upon a written opinion of
legal counsel, which may be independent legal counsel or legal counsel
regularly employed by the Corporation, whether or not any question or
dispute has arisen as to any distribution from the Plan.
4.4 The Plan Administrator shall be responsible for maintaining books and
records for the Plan.
5. AMENDMENT OR TERMINATION
5.1 This Plan may be amended, modified, terminated or discontinued at any
time, and from time to time only by the mutual written agreement of the
Corporation and the Employee.
6. NOT A CONTRACT OF EMPLOYMENT
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6.1 This Plan is not a contract of employment between the Employee and the
Corporation. No provision of this Plan restricts the right of the
Corporation to discharge the Employee, or restricts the right of the
Employee to terminate the Employee's employment.
7. CLAIMS PROCEDURE
7.1 If a benefit under this Plan is not paid to the Employee or Beneficiary
and such person believes that he or she is entitled to receive it, a
claim shall be made in writing to the Plan Administrator within sixty
(60) days from the date payment was to be made. Such claim shall be
reviewed by the Plan Administrator and the Corporation. If the claim is
denied, in full or in part, the Plan Administrator shall provide
written notice within ninety (90) days setting forth the specific
reasons for denial. The notice shall include specific reference to the
provisions of this Plan upon which the denial is based and any
additional material or information necessary to perfect the claim, if
any. Such written notice shall also indicate the steps to be taken if a
review of the denial is desired.
If the claim is denied and a review is desired, the claimant shall
notify the Plan Administrator in writing within sixty (60) days. A
claim shall be treated as denied if the Plan Administrator does not
take action in the aforesaid ninety (90) day period. In requesting
review, the claimant may review this Plan or any documents relating to
it and submit any written issues and comments he or she may feel
appropriate. In his or her sole discretion, the Plan Administrator
shall then review the claim and provide a written decision within sixty
(60) days. This decision likewise shall state the specific provisions
of this Plan on which the decision is based.
The Secretary of the Corporation is hereby designated as the named
fiduciary and Plan Administrator of this Plan.
8. Construction and Expense
8.1 Whenever the context so requires, words in the masculine include the
feminine and words in the feminine include the masculine and the
definition of any terms in the singular may include the plural.
8.2 All expenses of administering the Plan shall be paid by the Corporation
unless the Plan provides to the contrary.
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8.3 The Plan shall be construed, administered and governed in all respects
under the laws of the State of North Carolina.
9. Covenant Not to Compete
9.1 In consideration of the Corporation's promises to pay the benefits
hereunder, the Employee agrees that for the period specified in Section
9.2 below he will not, directly or indirectly, Compete with the
Corporation.
9.2 The restriction set forth in Section 9.1 will apply until the latter of
(i) December 31, 2002, and (ii) the second anniversary of the
termination of the Employee's employment with the Corporation.
9.3 For purposes of Section 9.1, the following terms shall have the
meanings set forth below:
(1) The term "Compete" shall mean:
(1) securing deposits for any Financial Institution from
any Person residing in the Territory;
(2) assisting (other than through the performance of
ministerial or clerical duties) any Financial
Institution in making loans to any Person residing in
the Territory;
(3) inducing or attempting to induce any Person who was a
Customer of the Corporation at the date of the
Employee's termination of employment to change such
Customer's depository and/or loan relationship from
the Corporation to another Financial Institution;
(4) inducing or attempting to induce any employee of the
Corporation to leave the employ of the Corporation
for the purpose of joining a Financial Institution;
or
(5) organizing, or assisting in the organization of, a
new Financial Institution to have a "full service"
banking office in the Territory.
(2) The words "directly or indirectly" as they modify the word
Compete shall mean:
(1) acting as a consultant, officer, director,
independent contractor, or employee of any Financial
Institution in Competition (as
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defined in paragraph (A) above) with the Corporation
in the Territory; or
(2) communicating to such Financial Institution the names
or addresses or any financial information concerning
any Person who was a Customer of the Corporation at
the date of the Employee's termination of Employment.
(3) The term "Customer" shall mean any Person with whom the
Corporation had a depository and/or loan relationship at the
date of the Employee's termination of employment.
(4) The term "Financial Institution" shall mean any federally
insured depository institution or any Person engaged in the
business of making loans of any type, soliciting deposits, or
providing any other service or product that is provided by the
Corporation or one of its affiliated corporations.
(5) The term "Person" shall mean any individual or individuals,
corporation, partnership, fiduciary or association.
(6) The term "Territory" shall mean Mecklenburg County, North
Carolina.
9.4 In the event that any provision of this Article 9 or any word, phrase,
clause, sentence or other portion thereof (including, without
limitation, the geographical and temporal restrictions contained
herein) should be held to be unenforceable or invalid for any reason,
such provision or portion thereof shall be modified or deleted in such
a manner as to make the provisions hereof, as modified, legal and
enforceable to the fullest extent permitted under applicable law.
9.5 In the event of any alleged breach by Employee of the restrictions set
forth in Section 9.1, the Corporation will give Employee written notice
of such breach, and Employee will have 30 days after receipt of such
notice to cease the activity alleged to be a violation of the
restrictions. If the Employee fails to cease such activity, the
Corporation may declare the Employee to be in breach of Section 9.1 and
may terminate its obligations to pay benefits to the Employee hereunder
provided, however, the Corporation shall not be permitted to terminate
its obligations which would, in any manner, have the effect of reducing
the Employee's Normal Retirement Benefit below the amount of his Early
Retirement Benefit completed as of the date of the expiration of the 30
day period specified above. The termination of such obligations shall
be the Corporation's sole remedy for such breach.
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IN WITNESS WHEREOF, the parties hereto have executed this Plan
effective as of the day and year first above written.
"Corporation"
PARK MERIDIAN BANK,
a North Carolina banking association
Attest: By: /s/ Xxxxx X. Xxxxxx (SEAL)
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Xxxxx X. Xxxxxx, Chairman of
Board of Directors
/s/ Xxxxx Xxxxxxx, III
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Assistant Secretary
[CORPORATE SEAL]
By executing this Plan I hereby accept the invitation to participate in the
Plan. I acknowledge that I have read the Plan, understand its terms, understand
that benefits will be paid pursuant to the Plan only under the specific
circumstances described herein, understand that I am a general creditor of the
Corporation and that I have no interest in specific assets owned by the
Corporation.
"the Employee"
/s/ Xxxxx Xxxxxxxx (SEAL)
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Xxxxx Xxxxxxxx
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ATTACHMENT A
BENEFICIARY DESIGNATION
For purposes of the Plan, I hereby designate the following Beneficiary:
Aleanne X. Xxxxxxxx
/s/ Xxxxx Xxxxxxxx (SEAL)
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Xxxxx Xxxxxxxx, Employee
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