SALARY CONTINUATION AGREEMENT
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THIS SALARY CONTINUATION AGREEMENT (the "Agreement") is made and entered
into this 14th day of October, 1996, by and between FINANCIAL SERVICE
CORPORATION, a Georgia corporation with its principal executive offices in Xxxx
County, Georgia (the "Company") and E. XXXXX XXXXXX, a resident of Xxxxxx
County, Georgia ("Xxxxxx").
W I T N E S S E T H:
WHEREAS, Xxxxxx is the President and Chief Executive Officer and a valued
employee of the Company whose continued services are important to the Company's
business; and
WHEREAS, the Company desires to encourage Xxxxxx to continue to provide his
services to the Company by providing the death benefit contemplated by this
Agreement;
NOW, THEREFORE, FOR AND IN CONSIDERATION of the sum of Ten and No/100
Dollars ($10.00), the premises, the covenants hereinafter set forth and other
good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto, intending to be legally bound, do hereby agree
as follows:
ARTICLE I
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Payment of Benefit
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1.1 Amount of Benefit. The Company hereby agrees that upon Xxxxxx'x
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death the Company shall be obligated to pay to a beneficiary, as contemplated by
Sections 1.2 and 1.3 hereof, the following death benefit (the "Benefit"). The
aggregate amount of the Benefit shall be an amount equal to the product obtained
by multiplying (i) "Book Value" (hereinafter defined) by (ii) the number of
shares of "Xxxxxx Stock" (hereinafter defined). Except as specifically noted to
the contrary in Section 2.4 hereof, the aggregate amount of the Benefit shall be
paid over a period of seven (7) years commencing on the date of Xxxxxx'x death
and ending on the day immediately preceding the seventh anniversary of Xxxxxx'x
death. Except as specifically noted to the contrary in Section 2.4 hereof, the
amount of the Benefit that is payable in any one year of this seven (7) year
period shall be one-seventh of the aggregate amount of the Benefit and is
referred to herein as the "Annual Benefit". Except as specifically noted to the
contrary in Section 2.4 hereof, the Annual Benefit contemplated by this Section
1.1 shall be paid by the Company in equal installments at such times as are
consistent with the Company's standard payroll practices as then in effect. The
parties acknowledge and agree that, as of the date of this Agreement, the
Company's standard payroll practices would result in an amount equal to one
twenty-fourth (1/24th) (or pro rata portion thereof for any period that is less
than one full pay period) of the Annual Benefit payable hereunder being paid to
the appropriate beneficiary on the 15th and the 30th of each month.
For purposes of this Section 1.1, "Book Value" shall mean the book value
per share of Common Stock of the Company as reflected on the consolidated
financial statements of the Company prepared as of the last day of the month
immediately preceding the month in which Xxxxxx dies and determined in
accordance with generally accepted accounting principles consistently applied,
which statements shall be certified by the Company's principal financial officer
(who for purposes of this Agreement must be someone other than Xxxxxx) as
presenting fairly the financial condition of the Company.
For purposes of this Section 1.1, "Xxxxxx Stock" shall mean (i) the 248,098
shares of Company Common Stock beneficially owned by Xxxxxx on the date hereof
and (ii) any securities issued or issuable with respect to such shares of Common
Stock by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation, or other
reorganization or otherwise, but the shares referred to in the foregoing clauses
(i) and (ii) shall be "Xxxxxx Stock" only so long as they are beneficially owned
by Xxxxxx or, after Xxxxxx'x death, by Xxxxxx'x estate. Other than as provided
above, "Xxxxxx Stock" shall not include any shares of Common Stock acquired by
Xxxxxx after the date hereof (including any shares beneficially owned on the
date hereof, transferred to a third party (unless Xxxxxx retains beneficial
ownership), and subsequently reacquired by Xxxxxx). Xxxxxx shall be deemed to
"beneficially own" any shares of Common Stock which he owns of record, which are
held in trust for his benefit, or from which he otherwise derives a direct
pecuniary benefit. Xxxxxx also shall be deemed to "beneficially own" any shares
of Common Stock held in trust for the benefit of his spouse or children, or
other relatives that are his dependents, or any shares of Common Stock owned
beneficially and of record by such persons, in either case to the extent that
such shares were acquired from Xxxxxx, whether by gift or purchase. "Xxxxxx
Stock" shall not include any options, warrants, or other contractual rights to
acquire shares of Common Stock.
1.2 Beneficiary Designation. Xxxxxx shall file with the Company's Human
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Resources Department a written designation of the beneficiary who shall be
entitled to receive the amount of any Benefit payable upon his death under
Section 1.1 hereof. Xxxxxx may from time to time revoke or change his
beneficiary designation without the consent of any prior beneficiary by filing a
new designation with the Company's Human Resources Department. The last such
designation received by the Company's Human Resources Department shall be
controlling; provided, however, that no designation, or change or revocation
thereof, shall be effective unless received by the Company's Human Resources
Department prior to Xxxxxx'x death, and in no event shall it be effective prior
to such receipt by the Company's Human Resources Department in writing.
1.3 Lack of Beneficiary Designation. If no beneficiary designation is in
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effect at the time of Xxxxxx'x death, the amount
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of any Benefit payable under this Agreement shall be paid to Xxxxxx'x Estate.
1.4 Tax Treatment of Death Benefits. The amount of any Benefit payable
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under this Agreement is intended to constitute an employee death benefit
qualifying for the maximum exclusion provided by Section 101(b) of the Internal
Revenue Code of 1986, as amended (the "Code"). The amount of any Benefit payable
under this Agreement in excess of the maximum exclusion provided by Section
101(b) is understood by the parties hereto to represent compensation for past
services performed by Xxxxxx and to be taxable to the beneficiary as income in
respect of a decedent under Section 691 of the Code.
ARTICLE II
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Limitations and Exclusions
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2.1 Nonassignability. The right of Xxxxxx or his designated beneficiaries
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to the payment of the Benefit provided under this Agreement shall not be
commuted, sold, assigned, transferred, pledged, encumbered, or otherwise
conveyed, nor shall any interest of Xxxxxx or his designated beneficiaries be
subject to any claim of any creditor of Xxxxxx or any beneficiary or subject to
any judicial process involving Xxxxxx or any beneficiary.
2.2 Application for Insurance. In the event that the Company should elect
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to apply for insurance on the life of Xxxxxx, it may apply to an insurance
company selected by the Company (the "Insurer") for a life insurance policy or
policies on the life of Xxxxxx. Xxxxxx hereby agrees to do everything reasonably
necessary to cause the policy or policies to be issued, as requested by the
Company or the Insurer.
2.3 Ownership of Insurance. In the event that the Company should elect
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to apply for insurance on the life of Xxxxxx, the Company will be the sole owner
and beneficiary of the policy or policies on Xxxxxx'x life acquired pursuant to
the terms of this Agreement and only the Company may exercise all rights and
incidents of ownership with respect to the policy or policies. Xxxxxx shall have
no incidents of ownership or rights with respect to such policy or policies.
2.4 Payment of Insurance Proceeds. For purposes of this Section 2.4, the
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term "Stock Purchase Agreement" means that certain Stock Purchase Agreement,
dated October 2, 1991, by and between the Company and Xxxxxx, as said Stock
Purchase Agreement may be amended from time to time, including (but not limited
to) the amendment contemplated by that certain First Amendment to Stock Purchase
Agreement dated October 14, 1996 by and between the Company and Xxxxxx, which
Stock Purchase Agreement, as so amended, is incorporated herein by this
reference.
In the event that the Company should elect to maintain insurance on the
life of Xxxxxx for the purpose of using the
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proceeds thereof to pay all or part of (i) the "Purchase Price (excluding the
Purchase Price Adjustment)" (as said terms are defined in the Stock Purchase
Agreement) pursuant to the Stock Purchase Agreement and/or (ii) the Benefit
hereunder, the proceeds of any such insurance shall be applied, and the Benefit
shall be paid, as hereinafter described. The parties hereto acknowledge and
agree that the insurance policies listed on Exhibit "A" attached hereto and
incorporated herein by this reference are not for the purpose of paying all or
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part of (i) the "Purchase Price (excluding the Purchase Price Adjustment)"
pursuant to the Stock Purchase Agreement or (ii) the Benefit hereunder. The
parties hereto hereby acknowledge and agree further that the Company may add
policies to, or delete policies from, said Exhibit "A" at any time in its
discretion. Any such changes to Exhibit "A" shall be communicated to Xxxxxx by
the Company by transmitting a copy of the revised Exhibit "A" to Xxxxxx in
accordance with Section 4.8 hereof.
Proceeds from insurance described in the immediately preceding paragraph
shall be used first to pay the "Purchase Price (excluding the Purchase Price
Adjustment)" pursuant to the Stock Purchase Agreement. Any proceeds from such
insurance that are in excess of those required to pay the "Purchase Price
(excluding the Purchase Price Adjustment)" pursuant to the Stock Purchase
Agreement are referred to herein as the "Remaining Proceeds".
To the extent that the Remaining Proceeds exceed the aggregate amount of
the Benefit, (i) an amount equal to one-half of the aggregate amount of the
Benefit shall be paid to the beneficiary contemplated by Sections 1.2 and 1.3
hereof within sixty (60) days following the Company's receipt of such life
insurance proceeds and (ii) the remaining one-half of the aggregate amount of
the Benefit shall be paid to the beneficiary contemplated by Sections 1.2 and
1.3 hereof in six (6) equal annual installments, each of which payments shall be
due on the anniversary of Xxxxxx'x death, commencing on the first anniversary of
Xxxxxx'x death and ending on the sixth anniversary of Xxxxxx'x death.
To the extent that the Remaining Proceeds do not exceed the aggregate
amount of the Benefit, (i) an amount equal to one-half of such Remaining
Proceeds shall be paid to the beneficiary contemplated by Sections 1.2 and 1.3
hereof within sixty (60) days following the Company's receipt of such life
insurance proceeds, and (ii) an amount equal to the aggregate amount of the
Benefit minus the payment made under the foregoing clause (i) shall be paid to
the beneficiary contemplated by Sections 1.2 and 1.3 hereof in six (6) equal
annual installments, each of which payments shall be due on the anniversary of
Xxxxxx'x death commencing on the first anniversary of Xxxxxx'x death and ending
on the sixth anniversary of Xxxxxx'x death.
Notwithstanding anything in this Section 2.4 to the contrary, the Company
shall be under no obligation to segregate the Remaining Proceeds from its other
funds and the Company shall be entitled to the use of the Remaining Proceeds for
any purpose, in its sole discretion.
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ARTICLE III
Term of Agreement; Termination and Renewal
The initial term of this Agreement (the "Initial Term") shall expire on
January 31, 1998. If notice of non-renewal is not given to Xxxxxx in accordance
with this Article III, this Agreement shall automatically renew for successive
one-year terms commencing on February 1st and ending on January 31st. Each
successive one-year term is referred to herein as a "Renewal Term".
The Company may terminate this Agreement effective as of January 31 of the
Initial Term or any Renewal Term by giving notice to Xxxxxx, in accordance with
Section 4.8 hereof, that this Agreement will not renew at the end of the Initial
Term or Renewal Term then in effect. In order to be effective, such notice must
be given to Xxxxxx no less than thirty (30) days prior to the end of the Initial
Term or Renewal Term then in effect.
ARTICLE IV
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Miscellaneous
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4.1 No Right to Employment. Nothing contained in this Agreement shall give
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Xxxxxx the right to be retained in the employment of the Company (including any
of its subsidiaries or affiliated entities) or affect the right of any such
employer to dismiss Xxxxxx.
4.2 Binding Effect. This Agreement shall be binding upon and inure to the
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benefit of the Company, its successors and assigns, and Xxxxxx, his designated
beneficiaries, heirs, executors, administrators, and legal representatives.
4.3 Governing Law. This Agreement shall be construed in accordance with
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with and governed by the laws of the State of Georgia.
4.4 Paragraph Headings. The paragraph headings contained in this Agreement
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are for convenience only and shall in no manner be construed as a part of this
Agreement.
4.5 Entire Agreement. This Agreement constitutes the sole and entire
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agreement with respect to the matters contained herein and any representation,
inducement, promise, or agreement, whether oral or written, which is not
embodied herein shall be of no force or effect.
4.6 Counterparts. For the convenience of the parties hereto, any number
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of counterparts may be executed, and each such executed counterpart shall be
deemed to be an original instrument.
4.7 Gender. Where the context so requires, the masculine gender shall be
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construed to include the feminine, the singular
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shall be construed to include the plural, and the plural the singular.
4.8 Notices. Any notice or other communication required or provided for
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under this Agreement shall be in writing and shall be deemed to have been given
when delivered by hand or when deposited in the United States mail, certified or
registered mail, return receipt requested, postage prepaid, properly addressed
to the party to whom such notice or other communication is intended to be given.
The proper address of the Company shall be:
Financial Service Corporation
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx
The proper address of Xxxxxx shall be:
0000 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Either party hereto may change his or its address upon advance written notice to
the other party hereto.
4.9 Severability. If any term, covenant, or condition of this Agreement
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or the application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of this Agreement or the application
of such terms, covenants, and conditions to persons or circumstances other than
those as to which it has been held invalid or unenforceable, shall not be
affected thereby and each term, covenant, or condition of this Agreement shall
be valid and be enforced to the fullest extent permitted by law.
4.10 Unfunded Plan. This Agreement is intended to implement an
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unfunded deferred compensation plan maintained by the Company primarily for the
purpose of providing deferred compensation for a select group of management
employees.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer and its seal to be hereunto affixed, and Xxxxxx has
hereunto set his hand and seal, all being done in multiple originals with one
original being delivered to each party on the day and year first above written.
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(CORPORATE SEAL) FINANCIAL SERVICE CORPORATION
Attest:
/s/ Xxxxxx X. Xxxxx By: /s/Xxxxxx X. Xxxxxxxx
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Title: Xxxxxx X. Xxxxx Title: Xxxxxx X. Xxxxxxxx
Vice President Senior Vice President
Signed, sealed and delivered
in the presence of:
/s/ Xxxxx X. Xxxxx
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Unofficial Witness
/s/ Xxxxxxx Xxxxxx /s/E. Xxxxx Xxxxxx (SEAL)
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Notary Public E. Xxxxx Xxxxxx
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Exhibit "A"
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Insurance Policies
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1. Prudential Insurance Company of America;
Policy No. #79622023
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Policy Amount: $1,300,000
2. First Colony Life Insurance Company;
Policy No. #2609892
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Policy Amount: $3,500,000
