EXHIBIT 10.19
ENDORSEMENT SPLIT DOLLAR AGREEMENT WITH XXXXXXX X. XXXXXXX
THIS ENDORSEMENT SPLIT DOLLAR AGREEMENT (this Agreement) is entered into
as of this 1st day of January, 2004 by and between Citizens South Bank, a
federally chartered savings bank located in Gastonia, North Carolina (the Bank),
and Xxxxxxx X. Xxxxxxx, its Senior Vice President and Chief Credit Officer (the
Executive). This Agreement shall append the Split Dollar Policy Endorsement
entered into on even date herewith or as subsequently amended, by and between
the aforementioned parties.
WHEREAS, to encourage the Executive to remain an employee of the Bank,
the Bank entered into an Executive Supplemental Retirement Plan Executive
Agreement dated as of June 25, 2001 with the Executive, and an accompanying Life
Insurance Endorsement Method Split Dollar Plan Agreement, and
WHEREAS, having negotiated and agreed to miscellaneous changes in the
terms and conditions of the Executive Supplemental Retirement Plan Executive
Agreement and the accompanying Life Insurance Endorsement Method Split Dollar
Plan Agreement, the Bank and the Executive are entering into a Salary
Continuation Agreement dated as of the date hereof, superseding and replacing in
its entirety the Executive Supplemental Retirement Plan Executive Agreement, and
the Bank and the Executive intend that this Endorsement Split Dollar Agreement
shall be attached as Addendum A to the January 1, 2004 Salary Continuation
Agreement, superseding and replacing in its entirety the Life Insurance
Endorsement Method Split Dollar Plan Agreement, and that from and after the
Effective Date the Life Insurance Endorsement Method Split Dollar Plan Agreement
shall be of no further force or effect.
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
GENERAL DEFINITIONS
Capitalized terms not otherwise defined in this Agreement are used
herein as defined in the Salary Continuation Agreement dated as of the date of
this Agreement between the Bank and the Executive. The following terms shall
have the meanings specified:
1.1 Administrator means the administrator described in Article 7.
1.2 Executive's Interest means the benefit set forth in Section 2.2.
1.3 Insured means the Executive.
1.4 Insurer means each life insurance carrier in which there is a
Split Dollar Policy Endorsement attached to this Agreement.
1.5 Net Death Proceeds means the total death proceeds of the Policy
minus the cash surrender value.
1.6 Policy means the specific life insurance policy or policies
issued by the Insurer(s).
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1.7 Split Dollar Policy Endorsement means the form required by the
Administrator or the Insurer to indicate the Executive's interest, if any, in a
Policy on such Executive's life.
ARTICLE 2
POLICY OWNERSHIP/INTERESTS
2.1 Bank Ownership. The Bank is the sole owner of the Policy and
shall have the right to exercise all incidents of ownership. The Bank shall be
the beneficiary of the remaining death proceeds of the Policy after the
Executive Interest has been paid according to Section 2.2 below.
2.2 Executive's Interest. The Executive shall have the right to
designate the beneficiary of the Executive's Interest. If at the time of
Termination of Employment the Executive is entitled to benefits under the Salary
Continuation Agreement in effect at the time of Termination of Employment, or if
Termination of Employment occurs because of the Executive's death (except under
Section 5.2 of the Salary Continuation Agreement), then the beneficiary
designated in accordance with the Split Dollar Policy Endorsement shall be
entitled to an amount (the Executive's Interest) equal to the product of (a)
100% of the Net Death Proceeds multiplied by (b) the percentage in which the
Executive is vested under the Salary Continuation Agreement (which shall be
deemed to be 100% in any case in which benefits under the Salary Continuation
Agreement are determined without regard to vesting). Without limiting the
generality of the foregoing, the Executive shall be considered to be 100% vested
under the Salary Continuation Agreement if Termination of Employment occurs
because of Disability, or if benefits are payable under Section 2.4 of the
Salary Continuation Agreement because of Termination of Employment within 12
months after a Change in Control, or if the Executive has become 100% vested
under Section 1.17 of the Salary Continuation Agreement, or if the Executive
dies in active service to the Bank.
The Executive or the Executive's transferee shall also have the right to
elect and change settlement options that may be permitted for the Executive's
Interest.
2.3 Option to Purchase. Upon termination of this Agreement, the Bank
shall not sell, surrender or transfer ownership of the Policy without first
giving the Executive or the Executive's transferee the option to purchase the
Policy for a period of 60 days from written notice of such intention. The
purchase price shall be an amount equal to the cash surrender value of the
Policy.
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2.4 Comparable Coverage. The Bank may replace the Policy with a
comparable insurance policy to cover the benefit provided under this Agreement,
in which case the Bank and the Executive shall execute a new Split Dollar Policy
Endorsement for the comparable insurance policy.
2.5 Internal Revenue Code Section 1035 Exchanges. The Executive
recognizes and agrees that the Bank may after this Split Dollar Agreement is
adopted wish to exchange the Policy of life insurance on the Executive's life
for another contract of life insurance insuring the Executive's life. Provided
that the Policy is replaced (or intended to be replaced) with a comparable
policy of life insurance, the Executive agrees to provide medical information
and cooperate with medical insurance-related testing required by a prospective
insurer for implementing the Policy or, if necessary, for modifying or updating
to a comparable insurer.
ARTICLE 3
PREMIUMS
3.1 Premium Payment. The Bank shall pay any premiums due on the
Policy.
3.2 Economic Benefit. The Administrator shall annually determine the
economic benefit attributable to the Executive based on the amount of the
current term rate for the Executive's age multiplied by the aggregate death
benefit payable to the Executive's beneficiary. The current term rate is the
minimum amount required to be imputed under applicable Internal Revenue Service
authority.
3.3 Imputed Income. The Bank shall impute the economic benefit to
the Executive on an annual basis.
ARTICLE 4
ASSIGNMENT
The Executive may irrevocably assign without consideration all of the
Executive's Interest in this Agreement to any person, entity, or trust
established by the Executive or the Executive's spouse. If the Executive
transfers all of the Executive's Interest, then all of the Executive's Interest
in the Agreement shall be vested in the Executive's transferee, who shall be
substituted as a party hereunder and the Executive shall have no further
interest in this Agreement.
ARTICLE 5
INSURER
The Insurer shall be bound only by the terms of the Policy. Any payments
the Insurer makes or actions it takes in accordance with the Policy shall fully
discharge it from all claims, suits and demands of all entities or persons. The
Insurer shall not be bound by or be deemed to have notice of the provisions of
this Agreement.
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ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. Any person or entity who has not received
benefits under this Agreement that he or she believes should be paid (the
claimant) 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.
6.1.2 Timing of Administrator Response. The Administrator
shall respond to such claimant within 90 days after receiving the claim.
If the Administrator determines that special circumstances require
additional time for processing the claim, the 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 Administrator
expects to render its decision.
6.1.3 Notice of Decision. If the Administrator denies part or
all of the claim, the Administrator shall notify the claimant in writing
of such denial. The 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 this 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 Administrator denies part or all of the
claim, the claimant shall have the opportunity for a full and fair review by the
Administrator of the denial, as follows -
6.2.1 Initiation Written Request. To initiate the review,
within 60 days after receiving the Administrator's notice of denial the
claimant must file with the Administrator 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 Administrator 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
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.
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6.2.4 Timing of Administrator Response. The Administrator
shall respond in writing to such claimant within 60 days after receiving
the request for review. If the Administrator determines that special
circumstances require additional time for processing the claim, the
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 Administrator expects to render its decision.
6.2.5 Notice of Decision. The Administrator shall notify the
claimant in writing of its decision on review. The 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
ADMINISTRATION OF AGREEMENT
7.1 Administrator Duties. This Agreement shall be administered by an
Administrator, which shall consist of the board or such committee as the board
shall appoint. The Executive may be a member of the Administrator. The
Administrator shall also have the discretion and authority to (a) make, amend,
interpret, and enforce all appropriate rules and regulations for the
administration of this Agreement and (b) decide or resolve any and all
questions, including interpretations of this Agreement, as may arise in
connection with the Agreement.
7.2 Agents. In the administration of this Agreement, the
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.
7.3 Binding Effect of Decisions. The decision or action of the
Administrator with respect to any question arising out of or in connection with
the administration, interpretation, and application of this Agreement and the
rules and regulations promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Agreement.
7.4 Indemnity of Administrator. The Bank shall indemnify and hold
harmless the members of the 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
Administrator or any of its members.
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7.5 Information. To enable the Administrator to perform its
functions, the Bank shall supply full and timely information to the
Administrator on all matters relating to the date and circumstances of the
retirement, death, or Termination of Employment of the Executive and such other
pertinent information as the Administrator may reasonably require.
ARTICLE 8
MISCELLANEOUS
8.1 Binding Effect. This Agreement shall bind the Executive and the
Bank and their beneficiaries, survivors, executors, administrators, and
transferees, and any Policy beneficiary.
8.2 Amendment and Termination of Agreement. This Agreement may be
amended or terminated solely by a written agreement signed by the Bank and the
Executive. However, this Agreement will automatically terminate and the
Executive's Interest shall be forfeited if benefits under the Salary
Continuation Agreement are neither paid nor payable because of termination under
Article 5 of the Salary Continuation Agreement. This Agreement shall also
terminate upon the occurrence of any one of the following -
(a) surrender, lapse, or other termination of the Policy by the
Bank, or
(b) distribution of the death benefit proceeds in accordance with
Section 2.2 above.
8.3 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 if no
succession had occurred.
8.4 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 nor
interfere with the Executive's right to terminate employment at any time.
8.5 Applicable Law. This Agreement and all rights hereunder shall be
governed by and construed according to the laws of the State of North Carolina,
except to the extent preempted by the laws of the United States of America.
8.6 Entire Agreement. This Agreement and the Salary Continuation
Agreement constitute the entire agreement between the Bank and the Executive as
to the subject matter hereof. No rights are granted to the Executive by this
Agreement other than those specifically set forth herein. This Agreement
supersedes and replaces in its entirety the Life Insurance Endorsement Method
Split Dollar Plan Agreement, and from and after the Effective Date of this
Agreement the Life Insurance Endorsement Method Split Dollar Plan Agreement
shall be of no further force or effect.
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8.7 Severability. If for any reason 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 the provision
together with all other provisions of this Agreement shall continue in full
force and effect to the full extent consistent with law.
8.8 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.
8.9 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.
(a) If to the Bank, to:
Board of Directors
Citizens South Bank
000 Xxxxx Xxx Xxxx Xxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Corporate Secretary
(b) If to the Executive, to:
Xxxxxxx X. Xxxxxxx
Citizens South Bank
000 Xxxxx Xxx Xxxx Xxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
IN WITNESS WHEREOF, the Executive and a duly authorized representative
of the Bank have executed this Agreement as of the date first written above.
EXECUTIVE: BANK:
Citizens South Bank
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxx X. Xxxxx
----------------------------
Its: President
And By: /s/ Xxxx X. Xxxx, Xx.
----------------------------
Its: Executive Vice President and
Secretary
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AGREEMENT TO COOPERATE WITH INSURANCE UNDERWRITING INCIDENT TO INTERNAL
REVENUE CODE SECTION 1035 EXCHANGE
I acknowledge that I have read the Endorsement Split Dollar Agreement
and agree to be bound by its terms, particularly the covenant on my part set
forth in section 2.5 of the Endorsement Split Dollar Agreement to provide
medical information and cooperate with medical insurance-related testing
required by an insurer to issue a comparable insurance policy to cover the
benefit provided under this Endorsement Split Dollar Agreement.
/s/ Xxxx X. Xxxx, Xx. /s/ Xxxxxxx X. Xxxxxxx
--------------------- ----------------------------
Witness Executive
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SPLIT DOLLAR POLICY ENDORSEMENT
Insured: Xxxxxxx X. Xxxxxxx Insurer:
Policy No.
Pursuant to the terms of the Citizens South Bank Endorsement Split
Dollar Agreement dated as of January 1, 2004, the undersigned Owner requests
that the above-referenced policy issued by the Insurer provides for the
following beneficiary designation and limited contract ownership rights to the
Insured:
1. Upon the death of the Insured, proceeds shall be paid in one sum
to the Owner, its successors or assigns, to the extent of its interest in the
policy. It is hereby provided that the Insurer may rely solely upon a statement
from the Owner as to the amount of proceeds it is entitled to receive under this
paragraph.
2. Any proceeds at the death of the Insured in excess of the amount
paid under the provisions of the preceding paragraph shall be paid in one sum
to:
--------------------------------------------------------------------------------
PRIMARY BENEFICIARY, RELATIONSHIP/SOCIAL SECURITY NUMBER
--------------------------------------------------------------------------------
CONTINGENT BENEFICIARY, RELATIONSHIP/SOCIAL SECURITY NUMBER
The exclusive right to change the beneficiary for the proceeds payable under
this paragraph, to elect any optional method of settlement for the proceeds paid
under this paragraph which are available under the terms of the policy and to
assign all rights and interests granted under this paragraph are hereby granted
to the Insured. The sole signature of the Insured shall be sufficient to
exercise said rights. The Owner retains all contract rights not granted to the
Insured under this paragraph.
3. It is agreed by the undersigned that this designation and
limited assignment of rights shall be subject in all respects to the contractual
terms of the policy.
4. Any payment directed by the Owner under this endorsement shall
be a full discharge of the Insurer, and such discharge shall be binding on all
parties claiming any interest under the policy.
The undersigned for the Owner is signing in a representative capacity
and warrants that he or she has the authority to bind the entity on whose behalf
this document is being executed.
Signed at Gastonia, North Carolina, this 17th day of May, 2004.
INSURED: OWNER:
Citizens South Bank
/s/ Xxxxxxx X. Xxxxxxx By: Xxx X. Xxxxx
-------------------------------
Its: President
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SPLIT DOLLAR POLICY ENDORSEMENT
Insured: Xxxxxxx X. Xxxxxxx Insurer:
Policy No.
Pursuant to the terms of the Citizens South Bank Endorsement Split
Dollar Agreement dated as of January 1, 2004, the undersigned Owner requests
that the above-referenced policy issued by the Insurer provide for the following
beneficiary designation and limited contract ownership rights to the Insured:
1. Upon the death of the Insured, proceeds shall be paid in one sum
to the Owner, its successors or assigns, to the extent of its interest in the
policy. It is hereby provided that the Insurer may rely solely upon a statement
from the Owner as to the amount of proceeds it is entitled to receive under this
paragraph.
2. Any proceeds at the death of the Insured in excess of the amount
paid under the provisions of the preceding paragraph shall be paid in one sum
to:
--------------------------------------------------------------------------------
PRIMARY BENEFICIARY, RELATIONSHIP/SOCIAL SECURITY NUMBER
--------------------------------------------------------------------------------
CONTINGENT BENEFICIARY, RELATIONSHIP/SOCIAL SECURITY NUMBER
The exclusive right to change the beneficiary for the proceeds payable under
this paragraph, to elect any optional method of settlement for the proceeds paid
under this paragraph which are available under the terms of the policy and to
assign all rights and interests granted under this paragraph are hereby granted
to the Insured. The sole signature of the Insured shall be sufficient to
exercise said rights. The Owner retains all contract rights not granted to the
Insured under this paragraph.
3. It is agreed by the undersigned that this designation and
limited assignment of rights shall be subject in all respects to the contractual
terms of the policy.
4. Any payment directed by the Owner under this endorsement shall
be a full discharge of the Insurer, and such discharge shall be binding on all
parties claiming any interest under the policy.
The undersigned for the Owner is signing in a representative capacity
and warrants that he or she has the authority to bind the entity on whose behalf
this document is being executed.
Signed at Gastonia, North Carolina, this 17th day of May, 2004.
INSURED: OWNER:
Citizens South Bank
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxx X. Xxxxx
-------------------------------
Its: President
279
