Exhibit 10.1
THIS
SALARY CONTINUATION AGREEMENT (the “Agreement”) is adopted this ________ day of
_______________, 2____, by and between FIRST COMMUNITY BANK, NA, a South Carolina
corporation located in Lexington, South Carolina (the “Bank”) and
________________ (the “Executive”).
The
purpose of this Agreement is to provide specified benefits to Executive, a member of a
select group of management or highly compensated employees who contribute materially to
the continued growth, development, and future business success of the Bank. This Agreement
shall be unfunded for tax purposes and for purposes of Title I of the Employee Retirement
Income Security Act of 1974 (“ERISA”), as amended from time to time.
Article 1
Definitions
Whenever
used in this Agreement, the following words and phrases shall have the meanings specified:
| 1.1 |
“Accrual Balance” means the liability that should be accrued by the Bank,
under Generally Accepted Accounting Principles (“GAAP”), for the Bank’s
obligation to the Executive as specified in Section 2.1.1 of this Agreement, by applying
Accounting Principles Board Opinion Number 12 (“APB 12”) as amended by Statement
of Financial Accounting Standards Number 106 (“FAS 106”) and the Discount Rate.
Any one of a variety of amortization methods may be used to determine the Accrual Balance.
However, once chosen, the method must be consistently applied. The Accrual Balance shall
be reported annually by the Bank to the Executive. |
| 1.2 |
“Beneficiary” means each designated person, or the estate of the deceased
Executive, entitled to benefits, if any, upon the death of the Executive determined
pursuant to Article 4. |
| 1.3 |
“Beneficiary Designation Form” means the form established from time to
time by the Plan Administrator that the Executive completes, signs, and returns to the
Plan Administrator to designate one or more Beneficiaries. |
| 1.4 |
"Board" means the Board of Directors of the Bank as from time to time constituted. |
| 1.5 |
"Change in Control" has the meaning as described in Section 16(a)(i) of the Employment Agreement. |
| 1.6 |
"Code" means the Internal Revenue Code of 1986, as amended. |
| 1.7 |
"Disability" has the meaning as described in Section 4(a)(ii) of the Employment Agreement. |
| 1.8 |
“Discount Rate” means the rate used by the Plan Administrator for
determining the Accrual Balance. The initial Discount Rate is six and one-quarter percent
(6.25%). However, the Plan Administrator, in its discretion, may adjust the Discount Rate
to maintain the rate within reasonable standards according to GAAP and/or applicable bank
regulatory guidance. |
| 1.9 |
“Early Termination” means the Executive’s Separation from Service
Without Cause (as defined in Section 4(a)(v) of the Employment Agreement) before Normal
Retirement Age except when such Separation from Service occurs: (i) following a Change in
Control; or (ii) due to death, Disability, or Termination for Cause. |
| 1.10 |
“Effective Date” means July 1, 2006. |
| 1.11 |
"Employment Agreement" means the Employment Agreement between First Community Bank, NA, a wholly owned
subsidiary of First Community Corporation and the Executive dated _____________. |
| 1.12 |
"Normal Retirement Age" means the Executive attaining age _______ (___). |
| 1.13 |
"Normal Retirement Date" means the later of Normal Retirement Age or Separation from Service. |
| 1.14 |
"Plan Administrator" means the plan administrator described in Article 6. |
| 1.15 |
“Plan Year” means each twelve-month period commencing on July 1 and
ending on June 30 of each year. The initial Plan Year shall commence on the Effective Date
of this Plan and end on the following June 30. |
| 1.16 |
“Projected Accrual Balance” means the Accrual Balance at the
Executive’s Normal Retirement Age, calculated: (i) as if the Executive remains in the
continuous employ with the Bank until Normal Retirement Age; and (ii) applying the
Discount Rate then in effect as of the Executive’s date of death. |
| 1.17 |
“Separation from Service” means the termination of the Executive’s
employment with the Bank for reasons other than death. Whether a Separation from Service
takes place is determined based on the facts and circumstances surrounding the termination
of the Executive’s employment and whether the Bank and the Executive intended for the
Executive to provide significant services for the Bank following such termination. A
termination of employment will not be considered a Separation from Service if: |
| |
(a) |
the Executive continues to provide services as an employee of the Bank at an
annual rate that is twenty percent (20%) or more of the services rendered, on
average, during the immediately preceding three full calendar years of
employment (or, if employed less than three years, such lesser period) and the
annual remuneration for such services is twenty percent (20%) or more of the
average annual remuneration earned during the final three full calendar years of |
| |
|
employment (or, if less, such lesser period), or |
| |
(b) |
the Executive continues to provide services to the Bank in a capacity other than
as an employee of the Bank at an annual rate that is fifty percent (50%) or more
of the services rendered, on average, during the immediately preceding three
full calendar years of employment (or if employed less than three years, such
lesser period) and the annual remuneration for such services is fifty percent
(50%) or more of the average annual remuneration earned during the final three
full calendar years of employment (or if less, such lesser period). |
| 1.18 |
“Specified Employee” means a key employee (as defined in Section 416(i)
of the Code without regard to paragraph 5 thereof) of the Bank if any stock of the Bank is
publicly traded on an established securities market or otherwise. |
| 1.19 |
"Termination for Cause" has the meaning as described in Section 4(a)(iii) of the Employment Agreement. |
Article 2
Distributions
During Lifetime
| 2.1 |
Normal Retirement Benefit. Upon the Normal Retirement Date, the Bank shall distribute to the Executive
the benefit described in this Section 2.1 in lieu of any other benefit under this Article. |
| |
2.1.1 |
Amount of Benefit. The annual benefit under this Section 2.1 is ________________ Dollars ($_____). |
| |
2.1.2 |
Distribution of Benefit. The Bank shall distribute the annual benefit to the
Executive in _____ (___) equal monthly installments commencing on the first day of the
month following the Normal Retirement Date. The annual benefit shall be distributed to the
Executive for _________ (___) years. |
| 2.2 |
Early Termination Benefit. Upon Early Termination, the Bank shall distribute to the Executive the
benefit described in this Section 2.2 in lieu of any other benefit under this Article. |
| |
2.2.1 |
Amount of Benefit. The benefit under this Section 2.2 is the vested Accrual Balance
determined as of the end of the end of the Plan Year preceding Separation from Service.
This benefit is determined by vesting the Executive in ___ percent (___%) of the Accrual
Balance at the end of the first Plan Year, and an additional _____ percent (____%) of said
amount at the end of each succeeding year thereafter until the Executive becomes one
hundred percent (100%) vested in the Accrual Balance. Interest will be applied to the
Accrual Balance at the Discount Rate, compounded monthly, from Separation
from Service to the Executive’s Normal Retirement Age. |
| |
2.2.2 |
Distribution of Benefit. The Bank shall distribute the benefit to the Executive in
one hundred eighty (180) equal monthly installments commencing on the first day of the
month following Normal Retirement Age. During the applicable installment
period, interest will be applied to the Accrual Balance at the Discount Rate,
compounded monthly. |
| 2.3 |
Disability Benefit. If Executive experiences a Disability which
results in a Separation from Service prior to Normal Retirement Age, the Bank shall
distribute to the Executive the benefit described in this Section 2.3 in lieu of any other
benefit under this Article. |
| |
2.3.1 |
Amount of Benefit. The benefit under this Section 2.3 is one hundred
percent (100%) of the Accrual Balance determined as of the end of the Plan Year preceding
Separation from Service. Interest will be applied to the Accrual Balance at
the Discount Rate, compounded monthly, from Separation from Service to the
Executive’s Normal Retirement Age. |
| |
2.3.2 |
Distribution of Benefit. The Bank shall distribute the benefit to the Executive in
one hundred eighty (180) equal monthly installments commencing on the first day of the
month following Normal Retirement Age. During the applicable installment
period, interest will be applied to the Accrual Balance at the Discount Rate,
compounded monthly. |
| 2.4 |
Change in Control Benefit. Upon a Change in Control, followed by a Separation from
Service, the Bank shall distribute to the Executive the benefit described in this Section
2.4 in lieu of any other benefit under this Article. |
| |
2.4.1 |
Amount of Benefit. The benefit under this Section 2.4 is one hundred
percent (100%) of the Normal Retirement Benefit amount described in Section 2.1.1. |
| |
2.4.2 |
Distribution of Benefit. The Bank shall distribute the annual benefit to the
Executive in twelve (12) equal monthly installments commencing on the first day of the
month following Normal Retirement Age. The annual benefit shall be distributed to the
Executive for fifteen (15) years. |
| 2.5 |
Restriction on Timing of Distribution. Notwithstanding any provision of this
Agreement to the contrary, if the Executive is considered a Specified Employee at
Separation from Service under such procedures as established by the Bank in accordance
with Section 409A of the Code, benefit distributions that are made upon Separation from
Service may not commence earlier than six (6) months after the date of
such Separation from Service. Therefore, in the event this Section 2.5 is
applicable to the Executive, any payment or series of payments to be made due to a
Separation from Service shall commence no earlier that the first day of the seventh month
following the Separation from Service. |
| 2.6 |
Distributions Upon Income Inclusion Under Section 409A of the Code. Upon the
inclusion of any portion of the Accrual Balance into the Executive’s income as a
result of the failure of this non-qualified deferred compensation plan to comply with the
requirements of |
| |
Section 409A of the Code, to the extent such tax liability can be covered by the
participant’s vested Accrual Balance, a distribution shall be made as soon as is
administratively practicable following the discovery of the plan failure. |
Article 3
Distribution
at Death
| 3.1 |
Death During Active Service. If the Executive dies while in the active service of
the Bank, the Bank shall distribute to the Beneficiary the benefit described in this
Section 3.1. This benefit shall be distributed in lieu of the benefits under Article 2. |
| |
3.1.1 |
Amount of Benefit. The benefit under this Section 3.1 is one hundred percent (100%) of the Projected
Accrual Balance. |
| |
3.1.2 |
Distribution of Benefit. The Bank shall distribute the benefit to the Beneficiary
in a lump sum within sixty (60) days following receipt by the Bank of the Executive’s
death certificate. |
| 3.2 |
Death During Distribution of a Benefit. If the Executive dies after any benefit
distributions have commenced under this Agreement but before receiving all such
distributions, the Bank shall distribute to the Beneficiary the remaining benefits at the
same time and in the same amounts they would have been distributed to the Executive had
the Executive survived. |
| 3.3 |
Death After Separation from Service But Before Benefit Distributions
Commence. If the Executive is entitled to benefit
distributions under this Agreement, but dies prior to the commencement of said benefit
distributions, the Bank shall distribute to the Beneficiary the same benefits that the
Executive was entitled to prior to death except that the benefit distributions shall
commence within thirty (30) days following receipt by the Bank of the Executive’s
death certificate. |
Article 4
Beneficiaries
| 4.1 |
Beneficiary. The Executive shall have the right, at any time, to designate a
Beneficiary(ies) to receive any benefit distributions under this Agreement upon the death
of the Executive. The Beneficiary designated under this Agreement may be the same as or
different from the beneficiary designation under any other 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 prior to the Executive’s death. |
| 4.3 |
Acknowledgment. No designation or change in designation of a Beneficiary shall be
effective until received, accepted and acknowledged in writing by the Plan Administrator
or its designated agent. |
| 4.4 |
No Beneficiary Designation. If the Executive dies without a valid beneficiary
designation, or if all designated Beneficiaries predecease the Executive, then the
Executive’s spouse shall be the designated Beneficiary. If the Executive has no
surviving spouse, the benefits shall be made to the personal representative of the
Executive’s estate. |
| 4.5 |
Facility of Distribution. If the Plan Administrator determines in its discretion
that a benefit is to be distributed to a minor, to a person declared incompetent, or to a
person incapable of handling the disposition of that person’s property, the Plan
Administrator may direct distribution of such benefit to the guardian, legal
representative or person having the care or custody of such minor, incompetent person or
incapable person. The Plan Administrator may require proof of incompetence, minority or
guardianship as it may deem appropriate prior to distribution of the benefit. Any
distribution of a benefit shall be a distribution for the account of the Executive and the
Executive’s Beneficiary, as the case may be, and shall be a complete discharge of any
liability under the Agreement for such distribution amount. |
Article 5
General Limitation
| 5.1 |
Termination for Cause. Notwithstanding any provision of this Agreement to the
contrary, the Bank shall not distribute any benefit under this Agreement if
Executive’s employment with the Bank is terminated due to a Termination for Cause. |
| 5.2 |
Suicide or Misstatement. No benefits shall be distributed if the Executive commits
suicide within two years after the Effective Date of this Agreement, or if an insurance
company which issued a life insurance policy covering the Executive and owned by the Bank
denies coverage: (i) for material misstatements of fact made by the Executive on an
application for such life insurance; or (ii) for any other reason. |
| 5.3 |
Removal. Notwithstanding any provision of this Agreement to the contrary,
the Bank shall not distribute any benefit under this Agreement if the Executive is subject
to a final removal or prohibition order issued by an appropriate federal banking agency
pursuant to Section 8(e) of the Federal Deposit Insurance Act. |
| 5.4 |
Forfeiture Provision. The Executive shall forfeit any non-distributed benefits
under this Agreement if the Executive violates Section 9(c) of the Employment Agreement. |
| |
5.4.1 |
Change in Control. The forfeiture provision detailed in Section 5.4 hereof shall
not be enforceable following a Change in Control. |
Article 6
Administration
of Agreement
| 6.1 |
Plan Administrator Duties. This Agreement shall be administered by a Plan
Administrator which shall consist of the Board, or such committee or person(s) as the
Board shall appoint. The Plan Administrator shall administer this Agreement according to
its express terms and shall also have the discretion and authority to (i) make, amend,
interpret and enforce all appropriate rules and regulations for the administration of this
Agreement and (ii) decide or resolve any and all questions including interpretations of
this Agreement, as may arise in connection with the Agreement to the extent the exercise
of such discretion and authority does not conflict with Section 409A of the Code and
regulations thereunder. |
| 6.2 |
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. |
| 6.3 |
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. |
| 6.4 |
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. |
| 6.5 |
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. |
| 6.6 |
Annual Statement. The Plan Administrator shall provide to the Executive, within one
hundred twenty (120) days after the end of each Plan Year, a statement setting forth the
benefits to be distributed under this Agreement. |
Article 7
Claims And
Review Procedures
| 7.1 |
For all claims other than disability benefits: |
| |
7.1.1 |
Claims Procedure. Any individual (“Claimant”) who has not received
benefits under this Agreement that he or she believes should be paid shall make a claim
for such benefits as follows: |
| |
7.1.1.1 |
Initiation – Written Claim. The Claimant initiates a claim by submitting to
the Bank a written claim for the benefits. |
| |
7.1.1.2 |
Timing of Bank Response. The Bank shall respond to such Claimant
within 90 days after receiving the claim. If the Bank determines that special
circumstances require additional time for processing the claim, the Bank 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 Bank expects
to render its decision. |
| |
7.1.1.3 |
Notice of Decision. If the Bank denies part or all of the claim, the Bank shall
notify the Claimant in writing of such denial. The Bank 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 this 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. |
| |
7.1.2 |
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: |
| |
7.1.2.1 |
Initiation – Written Request. To initiate the review, the Claimant, within 60
days after receiving the Bank’s notice of denial, must file with the Bank a written
request for review. |
| |
7.1.2.2 |
Additional Submissions – Information Access. The Claimant shall then have the
opportunity to submit written comments, documents, records and other information relating
to the claim. The Bank shall also provide the Claimant, upon request and free of charge,
reasonable access to, and copies of, all documents, records and other information relevant
(as defined in applicable ERISA regulations) to the Claimant’s claim for benefits. |
| |
7.1.2.3 |
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 such information was submitted or considered in the initial benefit
determination. |
| |
7.1.2.4 |
Timing of Bank Response. The Bank shall respond in writing to such 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 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 Bank expects
to render its decision. |
| |
7.1.2.5 |
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: |
| |
(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 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). |
| 7.2 |
For disability claims: |
| |
7.2.1 |
Claims Procedures. Any individual (“Claimant”) who has not
received benefits under this Agreement that he or she believes should be paid shall make a
claim for such benefits as follows: |
| |
7.2.1.1 |
Initiation – Written Claim. The Claimant initiates a claim by
submitting to the Bank a written claim for the benefits. |
| |
7.2.1.2 |
Timing of Bank Response. The Bank shall notify the Claimant in writing or
electronically of any adverse determination as set out in this Section. |
| |
7.2.1.3 |
Notice of Decision. If the Bank denies part or all of the claim, the Bank shall
notify the Claimant in writing of such denial. The Bank 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, |
| |
(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, |
| |
(f) |
[See §2560.503-1(g)(v)] Any internal rule, guideline, protocol, or other
similar criterion relied upon in making the adverse determination, or a
statement that such a rule, guideline, protocol, or other similar criterion was
relied upon in making the adverse determination and that the Claimant can
request and receive free of charge a copy of such rule, guideline, protocol or
other criterion from the Bank, and |
| |
(g) |
If the adverse benefit determination is based on a medical necessity or
experimental treatment or similar exclusion or limit, either an explanation of
the scientific or clinical judgment for the determination, applying the terms of
this Agreement to the Claimant’s medical circumstances, or a statement that
such explanation will be provided free of charge upon request. |
| |
7.2.1.4 |
Timing of Notice of Denial/Extensions. The Bank shall notify the
Claimant of denial of benefits in writing or electronically not later than 45 days after
receipt of the claim by the Bank. The Bank may elect to extend notification by two 30-day
periods subject to the following requirements: |
| |
(a) |
For the first 30-day extension, the Bank shall notify the Claimant (1) of the
necessity of the extension and the factors beyond the Bank’s control
requiring an extension; (2) prior to the end of the initial 45-day period; and
(3) of the date by which the Bank expects to render a decision. |
| |
(b) |
If the Bank determines that a second 30-day extension is necessary based on
factors beyond the Bank’s control, the Bank shall follow the same procedure
in (a) above, with the exception that the |
| |
|
notification must be provided to the Claimant before the end of the first 30-day extension period. |
| |
(c) |
For any extension provided under this section, the Notice of Extension shall specifically
explain the standards upon which entitlement to a benefit is based, the unresolved issues
that prevent a decision on the claim, and the additional information needed to resolve
those issues. The Claimant shall be afforded 45 days within which to provide the specified
information. |
| |
7.2.2 |
Review Procedures – Denial of Benefits. 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: |
| |
7.2.2.1 |
Initiation of Appeal. Within 180 days following notice of denial of
benefits, the Claimant shall initiate an appeal by submitting a written notice of appeal
to the Bank. |
| |
7.2.2.2 |
Submissions on Appeal – Information Access. The Claimant shall
be allowed to provide written comments, documents, records, and other information relating
to the claim for benefits. The Bank shall provide to the Claimant, upon request and free
of charge, reasonable access to, and copies of, all documents, records, and other
information relevant (as defined in applicable ERISA regulations) to the Claimant’s
claim for benefits. |
| |
7.2.2.3 |
Additional Bank Responsibilities on Appeal. On appeal, the Bank shall: |
| |
(a) |
[See §2560.503-1(h)(3)(i)-(v)] 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; |
| |
(b) |
Provide for a review that does not afford deference to the initial adverse
benefit determination and that is conducted by an appropriate named fiduciary of
the Bank who is neither the individual who made the adverse benefit
determination that is the subject of the appeal, nor the subordinate of such
individual; |
| |
(c) |
In deciding an appeal of any adverse benefit determination that is based in
whole or in part on a medical judgment, including determinations with regard to
whether a particular treatment, drug, or other item is experimental,
investigational, or not medically necessary or appropriate, consult with a
health care professional who has appropriate training and experience in the
field of medicine involved in the medical judgment; |
| |
(d) |
Identify medical or vocational experts whose advise was obtained on behalf of
the Bank in connection with a Claimant’s adverse benefit determination,
without regard to whether the advice was relied upon in making the benefit
determination; and |
| |
(e) |
Ensure that the health care professional engaged for purposes of a consultation
under subsection (c) above shall be an individual who was neither an
individual who was consulted in connection with the adverse benefit
determination that is the subject of the appeal, nor the subordinate of any such
individual. |
| |
7.2.2.4 |
Timing of Notification of Benefit Denial – Appeal Denial. The
Bank shall notify the Claimant not later than 45 days after receipt of the Claimant’s
request for review by the Bank, unless the Bank determines that special circumstances
require an extension of time for processing the claim. If the Bank determines that an
extension is required, written notice of such shall be furnished to the Claimant prior to
the termination of the initial 45-day period, and such extension shall not exceed 45 days.
The Bank shall indicate the special circumstances requiring an extension of time and the
date by which the Bank expects to render the determination on review. |
| |
7.2.2.5 |
Content of Notification of Benefit Denial. The Bank shall provide the
Claimant with a notice calculated to be understood by the Claimant, which shall contain: |
| |
(a) |
The specific reason or reasons for the adverse determination; |
| |
(b) |
Reference to the specific plan provisions on which the benefit determination 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
relevant information (as defined in applicable ERISA regulations); |
| |
(d) |
A statement of the Claimant’s right to bring an action under ERISA Section
502(a); |
| |
(e) |
[See §2560.503-1(j)(5)] Any internal rule, guideline, protocol, or other
similar criterion relied upon in making the adverse determination, or a
statement that such a rule, guideline, protocol, or other similar criterion was
relied upon in making the adverse determination and that the Claimant can
request and receive free of charge a copy of such rule, guideline, protocol or
other criterion from the Bank; |
| |
(f) |
If the adverse benefit determination is based on a medical necessity or
experimental treatment or similar exclusion or limit, either an explanation of
the scientific or clinical judgment for the determination, applying the terms of
this Agreement to the Claimant’s medical circumstances, or a statement that
such explanation will be provided free of charge upon request; and |
| |
(g) |
The following statement: “You and your Bank may have other voluntary
alternative dispute resolution options such as mediation. One way to find out
what may be available is to contact your local U.S. Department of Labor Office
and your state insurance regulatory agency.” |
Article 8
Amendments
and Termination
| 8.1 |
Amendments. This Agreement may be amended only by a written agreement signed by the
Bank and the Executive. However, the Bank may unilaterally amend this Agreement to conform
with written directives to the Bank from its auditors or banking regulators or to comply
with legislative or tax law, including without limitation Section 409A of the Code and any
and all regulations and guidance promulgated thereunder. |
| 8.2 |
Plan Termination Generally. The Bank may unilaterally terminate this Agreement at
any time. The benefit shall be the Accrual Balance as of the date the Agreement is
terminated. Except as provided in Section 8.3, the termination of this Agreement shall not
cause a distribution of benefits under this Agreement. Rather, upon such termination
benefit distributions will be made at the earliest distribution event permitted under
Article 2 or Article 3. |
| 8.3 |
Plan Terminations Under Section 409A. Notwithstanding anything to the contrary in
Section 8.2, the Bank may make distributions in the following circumstances, in accordance
with Section 409A of the Code or the regulations thereunder: |
| |
(a) |
Within thirty (30) days before, or twelve (12) months after a change in control
as defined in Section 409A of the Code and the regulations thereunder, provided
that all distributions are made no later than twelve (12) months following such
termination of the Agreement and provided that all the
Bank’s arrangements which are substantially similar to the Agreement
are terminated so the Executive and all participants in the
similar arrangements are required to receive all amounts of compensation
deferred under the terminated arrangements within twelve (12) months of the
termination of the arrangements; |
| |
(b) |
Upon the Bank’s dissolution or with the approval of a bankruptcy court
provided that the amounts deferred under the Agreement are included in the
Executive’s gross income in the latest of: (i) the calendar year in which
the Agreement terminates; (ii) the calendar year in which the amount is no
longer subject to a substantial risk of forfeiture; or (iii) the first calendar
year in which the payment is administratively practical; or |
| |
(c) |
Upon the Bank’s termination of this and all other non-account balance plans
(as referenced in Section 409A of the Code or the regulations thereunder),
provided that all distributions are made no earlier than twelve (12) months and
no later than twenty-four (24) months following such termination, and the Bank
does not adopt any new non-account balance plans for a minimum of five (5) years
following the date of such termination; |
| |
the Bank may distribute the Accrual Balance, determined as of the date of the termination of
the Agreement to the Executive, in a lump sum subject to the above terms. |
Article 9
Miscellaneous
| 9.1 |
Binding Effect. This Agreement shall bind the Executive and the Bank, and their beneficiaries,
survivors, executors, administrators and transferees. |
| 9.2 |
No Guarantee of Employment. This Agreement is not a contract for employment. It
does not give the Executive the right to remain as 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. |
| 9.3 |
Non-Transferability. Benefits under this Agreement cannot be sold, transferred,
assigned, pledged, attached or encumbered in any manner. |
| 9.4 |
Tax Withholding and Reporting. The Bank shall withhold any taxes that are required
to be withheld, including but not limited to taxes owed under Section 409A of the Code and
regulations thereunder, from the benefits provided under this Agreement. Executive
acknowledges that the Bank’s sole liability regarding taxes is to forward any amounts
withheld to the appropriate taxing authority(ies). Further, the Bank shall satisfy all
applicable reporting requirements, including those under Section 409A of the Code and
regulations thereunder. |
| 9.5 |
Applicable Law. The Agreement and all rights hereunder shall be governed by the
laws of the State of South Carolina, except to the extent preempted by the laws of the
United States of America. |
| 9.6 |
Unfunded Arrangement. The Executive and the Beneficiary are general unsecured
creditors of the Bank for the distribution of benefits under this Agreement. The benefits
represent the mere promise by the Bank to distribute such benefits. The rights to benefits
are not subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment, or garnishment by creditors. Any insurance on the
Executive’s life or other informal funding asset is a general asset of the Bank to
which the Executive and Beneficiary have no preferred or secured claim. |
| 9.7 |
Reorganization. The Bank shall not merge or consolidate into or with another
bank, or reorganize, or sell substantially all of its assets to another bank, firm, or
person unless such succeeding or continuing bank, firm, or person agrees to assume and
discharge the obligations of the Bank under this Agreement. Upon the occurrence of such
event, the term “Bank” as used in this Agreement shall be deemed to refer to the
successor or survivor bank. |
| 9.8 |
Entire Agreement. This Agreement constitutes the entire agreement between
the Bank and the Executive as to the subject matter hereof. No rights are granted to the
Executive by virtue of this Agreement other than those specifically set forth herein. |
| 9.9 |
Interpretation. Wherever the fulfillment of the intent and purpose of this
Agreement requires, and the context will permit, the use of the masculine gender includes
the feminine and use of the singular includes the plural. |
| 9.10 |
Alternative Action. In the event it shall become impossible for the Bank or the
Plan Administrator to perform any act required by this Agreement, the Bank or Plan
Administrator may in its discretion perform such alternative act as most nearly carries
out the intent and purpose of this Agreement and is in the best interests of the Bank. |
| 9.11 |
Headings. Article and section headings are for convenient reference only and shall not control or
affect the meaning or construction of any of its provisions. |
| 9.12 |
Validity. In case any provision of this Agreement shall be illegal or invalid for
any reason, said illegality or invalidity shall not affect the remaining parts hereof, but
this Agreement shall be construed and enforced as if such illegal and invalid provision
has never been inserted herein. |
| 9.13 |
Notice. Any notice or filing required or permitted to be given to the Bank or Plan
Administrator under this Agreement shall be sufficient if in writing and hand-delivered,
or sent by registered or certified mail, to the address below: |
First Community Bank, NA
0000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
|
Such notice shall be deemed given as of the date of delivery or, if delivery is made by mail,
as of the date shown on the postmark on the receipt for registration or certification. |
| |
Any
notice or filing required or permitted to be given to the Executive under this Agreement
shall be sufficient if in writing and hand-delivered, or sent by mail, to the last known
address of the Executive . |
| 9.14 |
Compliance with Section 409A. This Agreement shall at all times be administered and
the provisions of this Agreement shall be interpreted consistent with the requirements of
Section 409A of the Code and any and all regulations thereunder, including such
regulations as may be promulgated after the Effective Date of this Agreement. |
| 9.15 |
Rescissions. Any modification to the terms of this Agreement that would
inadvertently result in an additional tax liability on the part of the Executive, shall
have no effect to the extent the change in the terms of the plan is rescinded by the
earlier of a date before the right is exercised (if the change grants a discretionary
right) and the last day of the calendar year during which such change occurred. |
IN
WITNESS WHEREOF, the Executive and a duly authorized representative of the Bank have
signed this Agreement.
| Executive: |
|
FIRST COMMUNITY BANK, NA: |
|
|
|
| __________________________________ |
|
|
|
|
|
By ___________________________________ |
|
|
| | |
| | |
| | |
| | |
| | |
Title _________________________________ | | |
FIRST COMMUNITY BANK, NA
Salary Continuation
Agreement
BENEFICIARY DESIGNATION FORM
{ } New Designation
( }
Change in Designation
I, ______________, designate the
following as Beneficiary under the Agreement:
Primary:
________________________________
____%
________________________________
____%
Contingent:
________________________________
____%
________________________________
____%
Notes:
| |
• |
Please PRINT CLEARLY or TYPE the names of the beneficiaries. |
| |
• |
To name a trust as Beneficiary, please provide the name of the trustee(s) and the
exact name and date of the trust agreement. |
| |
• |
To name your estate as Beneficiary, please write “Estate of [your
name]". |
| |
• |
Be aware that none of the contingent beneficiaries will receive anything unless ALL of
the primary beneficiaries predecease you. |
I understand that I may change these
beneficiary designations by delivering a new written designation to the Plan
Administrator, which shall be effective only upon receipt and acknowledgment by the Plan
Administrator prior to my death. 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.
Name:
_______________________________
Signature:
_______________________________ Date: _______
Received by the Plan Administrator this ________ day of ___________________, 2___
By:
_________________________________
Title:
_________________________________
