FIRST SOUTH BANK
DIRECTOR'S RETIREMENT PLAN AGREEMENT
AS AMENDED AND RESTATED DECEMBER 14, 1995
____________________
2003 Amendment
____________________
WHEREAS, First South Bank (formerly known as "NewSouth Bank" and, prior
thereto, "Home Savings Bank, SSB") (the "Bank") has entered into a separate
Director's Retirement Plan Agreement (the "Agreement") with each of Directors X.
Xxxxxxx, Xx., F. Howdy, X. Xxxxxx, Xx., X. Xxxxxxxx, X. Xxxxx, Xx., M. T.
Xxxxxxxxx and X. Xxxx (the "Directors"); and
WHEREAS, each Agreement authorizes the Bank to amend the Agreement with the
written approval of the Director; and
WHEREAS, the Bank has determined that it is in the best interest of the
Bank and the Director to amend the Agreement.
NOW, THEREFORE, the Agreement with each Director is hereby amended by
adding the following paragraph at the end of Section 4 thereof:
Notwithstanding the foregoing provisions of this Section 4, in the
event that the Director ceases to serve as a director of the Bank on or
after his 55th birthday, and after having completed enough service to
become entitled to 100% of the monthly installment payments stated in
Section 1 of this Agreement, the Director shall be entitled to receive such
monthly installment payments. Such payment shall commence on a date to be
determined by the Bank, but in no event later than the first day of the
sixth calendar month following the calendar month in which the Director
ceases to serve as a director of the Bank
WHEREFORE, on this 18th day of December, 2003, the Bank and each Director
who is party to an Agreement hereby execute this 2003 Amendment to the
Agreement.
ATTEST FIRST SOUTH BANK
/s/ Xxxxxxx X. Xxxx By /s/ Xxxxxx X. Xxxxx, Xx.
------------------------- ----------------------------
Its Chairman of the Board
DIRECTOR
/s/ Xxxxxxx X. Xxxx /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------- -------------------------------
Witness Xxxxxx X. Xxxxxxx, Xx.
DIRECTOR
/s/ Xxxxxxx X. Xxxx /s/ Xxxxxxxxx X. Howdy
------------------------- -------------------------------
Witness Xxxxxxxxx X. Howdy
DIRECTOR
/s/ Xxxxxxx X. Xxxx /s/ Xxxxxxx X. Xxxxxx, Xx.
------------------------- -------------------------------
Witness Xxxxxxx X. Xxxxxx, Xx.
DIRECTOR
------------------------- -------------------------------
Witness Xxxxxxxx X. Xxxxxxxxx
DIRECTOR
/s/ Xxxxxxx X. Xxxx /s/ Xxxxxxxxx X. Xxxxxxxx
------------------------- -------------------------------
Witness Xxxxxxxxx X. Xxxxxxxx
DIRECTOR
/s/ Xxxxxxx X. Xxxx /s/ Xxxxxx X. Xxxxx, Xx.
------------------------- -------------------------------
Witness Xxxxxx X. Xxxxx, Xx.
DIRECTOR
/s/ Xxxxxxx X. Xxxx /s/ Xxxxxx X. Xxxx
------------------------- -------------------------------
Witness Xxxxxx X. Xxxx
EXHIBIT 10.8
AMENDED AND RESTATED
DIRECTOR'S RETIREMENT PLAN AGREEMENT
THIS AMENDED AND RESTATED DIRECTOR'S RETIREMENT PLAN AGREEMENT (this
"Agreement"), made and entered into this 1st day of January, 1994 and amended
and restated this the 14th day of December, 1995, by and between Home Savings
Bank, SSB, a mutual state savings bank organized and existing under the laws of
the State of North Carolina (the "Bank"), and Xxxxxx X. Xxxxxxx, Xx. (the
"Director").
W I T N E S S E T H:
WHEREAS, the Bank recognizes the valuable services heretofore performed for
it by the Director and wishes to encourage his further services and assist him
in providing for the contingencies of retirement and death;
WHEREAS, the parties hereto wish to provide the terms and conditions upon
which the Bank shall make certain payments to the Director or his designated
beneficiaries;
WHEREAS, the parties hereto intend that this Agreement be considered an
unfunded arrangement maintained to provide deferred compensation benefits for
the Director; and
WHEREAS, the parties hereto desire to amend the Agreement and to restate
the Agreement as amended.
NOW, THEREFORE, in consideration of the premises and of the mutual promises
herein contained, the parties hereto agree as follows:
Section 1. Retirement Benefits. The Bank agrees that, except as otherwise
--------- -------------------
specifically provided herein, upon the later to occur of the Director's 70th
birthday and January 1, 1999 (the "Qualifying Date"), the Bank will pay the
Director $2,000.00 per month for a continuous period of 120 months. Such
continuous monthly installment payments shall commence on a date to be
determined by the Bank, but in no event later than the first day of the sixth
calendar month following the calendar month in which the Qualifying Date shall
occur.
Section 2. Pre-Retirement Death Benefits. Should the Director die while
--------- -----------------------------
serving as a director of the Bank and prior to the Qualifying Date, the Bank
will pay $2,000.00 per month for a continuous period of 120 months to such
beneficiary or beneficiaries as are designated by the Director to the Bank in
writing (the "Beneficiaries"). The first such monthly installment payment shall
be made on a date to be determined by the Bank, but in no event later than the
first day of the sixth calendar month following the calendar month in which the
Director died. Notwithstanding the foregoing, if the Director dies as a result
of suicide on or before January 1, 1996, no benefits of whatever nature shall be
payable to the Beneficiaries under this Agreement. In the event of the death of
the last living Beneficiary before all the unpaid payments shall have been made,
the balance of any payments which remain unpaid at the time of such
Beneficiary's death shall be commuted on
the basis of six percent (6%) per annum compounded interest and shall be paid in
a single sum to the estate of the last Beneficiary to die. In the absence of any
such beneficiary designation, any amount remaining unpaid at the Director's
death shall be commuted on the basis of six percent (6%) per annum compounded
interest and shall be paid in a single sum to the Director's estate.
Section 3. Post-Retirement Death Benefits. In the event that the Director
--------- ------------------------------
should die after becoming entitled to receive monthly installment payments under
this Agreement but before all remaining installment payments have been made, the
Bank will pay all remaining installment payments to the Beneficiary or
Beneficiaries. In the event of the death of the last living Beneficiary before
all installment payments have been made, the balance of any payments which
remain unpaid at the time of such Beneficiary's death shall be commuted on the
basis of six percent (6%) per annum compounded interest and shall be paid in a
single sum to the estate of the last Beneficiary to die. In the absence of such
beneficiary designation, any payments remaining unpaid at the Director's death
shall be commuted on the basis of six percent (6%) per annum compounded interest
and shall be paid in a single sum to the Director's estate.
Section 4. Termination Benefits. Should the Director voluntarily resign
--------- --------------------
as a director prior to the Qualifying Date, he or his Beneficiaries, as
applicable, shall be entitled to receive, commencing on a date to be determined
by the Bank, but in no event later than the first day of the sixth calendar
month following the month in which the earlier of the Director's death or 70th
birthday shall occur, the percentage of the amount of the monthly installment
payment stated in Section 1 of this Agreement determined under the following
table:
PERCENTAGE OF MONTHLY INSTALLMENT
PAYMENT STATED IN SECTION 1 OF THIS
FULL NUMBER OF YEARS SERVED AS AGREEMENT TO WHICH DIRECTOR IS
DIRECTOR AFTER JANUARY 1, 1994 ENTITLED
------------------------------ -----------------------------------
1 20%
2 40%
3 60%
4 80%
5 100%
Section 5. Benefits Not Transferable. Neither the Director, his
--------- -------------------------
Beneficiaries nor any other person claiming any right or interest under this
Agreement through the Director or any Beneficiary shall have any right to
commute, assign, transfer or otherwise convey the right to receive any benefits
hereunder.
Section 6. Binding Upon Successors. This Agreement and the Bank's
--------- -----------------------
obligations hereunder shall be binding upon the Bank's successors and permitted
assigns. The Bank may not assign its rights or obligations under this Agreement
without the Director's prior written consent. In addition, the Bank shall not
enter into any agreement providing for the merger of the Bank with and into
another business entity or the sale of more than a majority of the Bank's assets
to another business
2
entity, person or group persons that does not specifically provide that such
successor by merger or purchaser(s) of assets shall assume and satisfy each and
every obligation of the Bank to the Director under this Agreement. In the case
of an asset sale, such assumption shall not relieve the Bank of its liability to
fulfill such obligations.
Except as otherwise provided in Sections 1, 2, 3 or 4, as applicable, in
the event that, on or before the occurrence of the Qualifying Date, the
Director's service as a director of the Bank is terminated for any reason
coincident with or within twenty-four (24) months following a merger of the Bank
with or into another business entity or of an asset sale as described above,
then the provisions of Section 1 shall be deemed applicable except that the
Qualifying Date shall be deemed to be the date that such merger or asset sale
shall be consummated.
Section 7. Benefits Payable Only From General Corporate Assets;
--------- ----------------------------------------------------
Unsecured General Creditors Status of Director.
----------------------------------------------
The payments to the Director or his Beneficiary or Beneficiaries hereunder
shall be made from assets which for all purposes shall continue to be a part of
the general, unrestricted assets of the Bank; no person shall have any interest
in any such assets by virtue of the provisions of this Agreement. The Bank's
obligations hereunder shall be an unfunded and unsecured promise to pay money in
the future. To the extent that any person acquires a right to receive payments
from the Bank under the provisions hereof, such right shall be no greater than
the right of any unsecured general creditor of the Bank; no such person shall
have nor require any legal or equitable right, interest or claim in or to any
property or assets of the Bank.
In the event that, in its discretion, the Bank purchases an insurance
policy or policies insuring the life of the Director (or any other property), in
order to allow the Bank to recover the cost of providing benefits, in whole or
in part, hereunder, neither the Director, nor any Beneficiary, shall have any
rights whatsoever therein or in the proceeds therefrom. The Bank shall be the
sole owner and beneficiary of such insurance policy and shall possess and may
exercise all incidents of ownership therein.
Section 8. Additional Benefits. The benefits and rights provided under
--------- -------------------
this Agreement are independent of those benefits and rights provided under other
agreements between the parties hereto, and shall not affect, reduce or diminish
the right of Director to participate in any current or future benefit plan or
other supplemental compensation arrangement.
Section 9. No Contract of Employment. Nothing contained herein shall be
--------- -------------------------
construed to be a contract of employment or as conferring upon the Director the
right to continue as a director of the Bank. It is expressly understood by the
parties hereto that this Agreement relates exclusively to supplemental
retirement payments for the Director, and is not intended to be an employment or
services agreement.
3
Section 10. Amendment. This Agreement may not be amended, altered or
---------- ---------
modified, except by a written instrument signed by the parties hereto or their
respective successors, and may not be otherwise terminated except as provided
herein.
Section 11. Governing Law. This Agreement, and the rights of the parties
---------- -------------
hereunder, shall be governed by and construed on accordance with the laws of the
State of North Carolina.
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Director's Retirement Plan Agreement as of the day and year first above written.
HOME SAVINGS BANK, SSB
Attest:
/s/ Xxxx Xxxxx By: /s/ Xxxxxx X. Xxxx
---------------------- -------------------------------
Xxxx Xxxxx Xxxxxx X. Xxxx
Secretary
[Corporate Seal] Title: President
DIRECTOR:
/s/ Xxxxxx X. Xxxxxxx, Xx. (Seal)
--------------------------------
Xxxxxx X. Xxxxxxx, Xx.
4
AMENDED AND RESTATED
DIRECTOR'S RETIREMENT PLAN AGREEMENT
THIS AMENDED AND RESTATED DIRECTOR'S RETIREMENT PLAN AGREEMENT (this
"Agreement"), made and entered into this 1st day of January, 1994 and amended
and restated this the 14th day of December, 1995, by and between Home Savings
Bank, SSB, a mutual state savings bank organized and existing under the laws of
the State of North Carolina (the "Bank"), and Xxxxxx X. Xxxxx, Xx. (the
"Director").
W I T N E S S E T H:
WHEREAS, the Bank recognizes the valuable services heretofore performed for
it by the Director and wishes to encourage his further services and assist him
in providing for the contingencies of retirement and death;
WHEREAS, the parties hereto wish to provide the terms and conditions upon
which the Bank shall make certain payments to the Director or his designated
beneficiaries;
WHEREAS, the parties hereto intend that this Agreement be considered an
unfunded arrangement maintained to provide deferred compensation benefits for
the Director; and
WHEREAS, the parties hereto desire to amend the Agreement and to restate
the Agreement as amended.
NOW, THEREFORE, in consideration of the premises and of the mutual promises
herein contained, the parties hereto agree as follows:
Section 1. Retirement Benefits. The Bank agrees that, except as otherwise
--------- -------------------
specifically provided herein, upon the later to occur of the Director's 70th
birthday and January 1, 1999 (the "Qualifying Date"), the Bank will pay the
Director $2,000.00 per month for a continuous period of 120 months. Such
continuous monthly installment payments shall commence on a date to be
determined by the Bank, but in no event later than the first day of the sixth
calendar month following the calendar month in which the Qualifying Date shall
occur.
Section 2. Pre-Retirement Death Benefits. Should the Director die while
--------- -----------------------------
serving as a director of the Bank and prior to the Qualifying Date, the Bank
will pay $2,000.00 per month for a continuous period of 120 months to such
beneficiary or beneficiaries as are designated by the Director to the Bank in
writing (the "Beneficiaries"). The first such monthly installment payment shall
be made on a date to be determined by the Bank, but in no event later than the
first day of the sixth calendar month following the calendar month in which the
Director died. Notwithstanding the foregoing, if the Director dies as a result
of suicide on or before January 1, 1996, no benefits of whatever nature shall be
payable to the Beneficiaries under this Agreement. In the event of the death of
the last living Beneficiary before all the unpaid payments shall have been made,
the balance of any payments which remain unpaid at the time of such
Beneficiary's death shall be commuted on
the basis of six percent (6%) per annum compounded interest and shall be paid in
a single sum to the estate of the last Beneficiary to die. In the absence of any
such beneficiary designation, any amount remaining unpaid at the Director's
death shall be commuted on the basis of six percent (6%) per annum compounded
interest and shall be paid in a single sum to the Director's estate.
Section 3. Post-Retirement Death Benefits. In the event that the Director
--------- ------------------------------
should die after becoming entitled to receive monthly installment payments under
this Agreement but before all remaining installment payments have been made, the
Bank will pay all remaining installment payments to the Beneficiary or
Beneficiaries. In the event of the death of the last living Beneficiary before
all installment payments have been made, the balance of any payments which
remain unpaid at the time of such Beneficiary's death shall be commuted on the
basis of six percent (6%) per annum compounded interest and shall be paid in a
single sum to the estate of the last Beneficiary to die. In the absence of such
beneficiary designation, any payments remaining unpaid at the Director's death
shall be commuted on the basis of six percent (6%) per annum compounded interest
and shall be paid in a single sum to the Director's estate.
Section 4. Termination Benefits. Should the Director voluntarily resign
--------- --------------------
as a director prior to the Qualifying Date, he or his Beneficiaries, as
applicable, shall be entitled to receive, commencing on a date to be determined
by the Bank, but in no event later than the first day of the sixth calendar
month following the month in which the earlier of the Director's death or 70th
birthday shall occur, the percentage of the amount of the monthly installment
payment stated in Section 1 of this Agreement determined under the following
table:
PERCENTAGE OF MONTHLY INSTALLMENT
PAYMENT STATED IN SECTION 1 OF THIS
FULL NUMBER OF YEARS SERVED AS AGREEMENT TO WHICH DIRECTOR IS
DIRECTOR AFTER JANUARY 1, 1994 ENTITLED
------------------------------ -----------------------------------
1 12.5%
2 25.0%
3 37.5%
4 50.0%
5 62.5%
6 75.0%
7 87.5%
8 100.0%
Section 5. Benefits Not Transferable. Neither the Director, his
--------- -------------------------
Beneficiaries nor any other person claiming any right or interest under this
Agreement through the Director or any Beneficiary shall have any right to
commute, assign, transfer or otherwise convey the right to receive any benefits
hereunder.
Section 6. Binding Upon Successors. This Agreement and the Bank's
--------- -----------------------
obligations hereunder shall be binding upon the Bank's successors and permitted
assigns. The Bank may not assign its rights or obligations under this Agreement
without the Director's prior written consent. In addition,
2
the Bank shall not enter into any agreement providing for the merger of the Bank
with and into another business entity or the sale of more than a majority of the
Bank's assets to another business entity, person or group persons that does not
specifically provide that such successor by merger or purchaser(s) of assets
shall assume and satisfy each and every obligation of the Bank to the Director
under this Agreement. In the case of an asset sale, such assumption shall not
relieve the Bank of its liability to fulfill such obligations.
Except as otherwise provided in Sections 1, 2, 3 or 4, as applicable, in
the event that, on or before the occurrence of the Qualifying Date, the
Director's service as a director of the Bank is terminated for any reason
coincident with or within twenty-four (24) months following a merger of the Bank
with or into another business entity or of an asset sale as described above,
then the provisions of Section 1 shall be deemed applicable except that the
Qualifying Date shall be deemed to be the date that such merger or asset sale
shall be consummated.
Section 7. Benefits Payable Only From General Corporate Assets;
--------- ----------------------------------------------------
Unsecured General Creditors Status of Director.
----------------------------------------------
The payments to the Director or his Beneficiary or Beneficiaries hereunder
shall be made from assets which for all purposes shall continue to be a part of
the general, unrestricted assets of the Bank; no person shall have any interest
in any such assets by virtue of the provisions of this Agreement. The Bank's
obligations hereunder shall be an unfunded and unsecured promise to pay money in
the future. To the extent that any person acquires a right to receive payments
from the Bank under the provisions hereof, such right shall be no greater than
the right of any unsecured general creditor of the Bank; no such person shall
have nor require any legal or equitable right, interest or claim in or to any
property or assets of the Bank.
In the event that, in its discretion, the Bank purchases an insurance
policy or policies insuring the life of the Director (or any other property), in
order to allow the Bank to recover the cost of providing benefits, in whole or
in part, hereunder, neither the Director, nor any Beneficiary, shall have any
rights whatsoever therein or in the proceeds therefrom. The Bank shall be the
sole owner and beneficiary of such insurance policy and shall possess and may
exercise all incidents of ownership therein.
Section 8. Additional Benefits. The benefits and rights provided under
--------- -------------------
this Agreement are independent of those benefits and rights provided under other
agreements between the parties hereto, and shall not affect, reduce or diminish
the right of Director to participate in any current or future benefit plan or
other supplemental compensation arrangement.
Section 9. No Contract of Employment. Nothing contained herein shall be
--------- -------------------------
construed to be a contract of employment or as conferring upon the Director the
right to continue as a director of the Bank. It is expressly understood by the
parties hereto that this Agreement relates exclusively to supplemental
retirement payments for the Director, and is not intended to be an employment or
services agreement.
3
Section 10. Amendment. This Agreement may not be amended, altered or
---------- ---------
modified, except by a written instrument signed by the parties hereto or their
respective successors, and may not be otherwise terminated except as provided
herein.
Section 11. Governing Law. This Agreement, and the rights of the parties
---------- -------------
hereunder, shall be governed by and construed on accordance with the laws of the
State of North Carolina.
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Director's Retirement Plan Agreement as of the day and year first above written.
HOME SAVINGS BANK, SSB
Attest:
/s/ Xxxx Xxxxx By: /s/ Xxxxxx X. Xxxx
--------------------- -----------------------------------
Xxxx Xxxxx Xxxxxx X. Xxxx
Secretary
[Corporate Seal] Title: President
DIRECTOR:
/s/ Xxxxxx X. Xxxxx, Xx.
----------------------------------- (Seal)
Xxxxxx X. Xxxxx, Xx.
4
AMENDED AND RESTATED
DIRECTOR'S RETIREMENT PLAN AGREEMENT
THIS AMENDED AND RESTATED DIRECTOR'S RETIREMENT PLAN AGREEMENT (this
"Agreement"), made and entered into this 1st day of January, 1994 and amended
and restated this the 14th day of December, 1995, by and between Home Savings
Bank, SSB, a mutual state savings bank organized and existing under the laws of
the State of North Carolina (the "Bank"), and Xxxxxxxxx X. Xxxxxxxx (the
"Director").
W I T N E S S E T H:
WHEREAS, the Bank recognizes the valuable services heretofore performed for
it by the Director and wishes to encourage his further services and assist him
in providing for the contingencies of retirement and death;
WHEREAS, the parties hereto wish to provide the terms and conditions upon
which the Bank shall make certain payments to the Director or his designated
beneficiaries;
WHEREAS, the parties hereto intend that this Agreement be considered an
unfunded arrangement maintained to provide deferred compensation benefits for
the Director; and
WHEREAS, the parties hereto desire to amend the Agreement and to restate
the Agreement as amended.
NOW, THEREFORE, in consideration of the premises and of the mutual promises
herein contained, the parties hereto agree as follows:
Section 1. Retirement Benefits. The Bank agrees that, except as otherwise
--------- -------------------
specifically provided herein, upon the later to occur of the Director's 70th
birthday and January 1, 1999 (the "Qualifying Date"), the Bank will pay the
Director $2,000.00 per month for a continuous period of 120 months. Such
continuous monthly installment payments shall commence on a date to be
determined by the Bank, but in no event later than the first day of the sixth
calendar month following the calendar month in which the Qualifying Date shall
occur.
Section 2. Pre-Retirement Death Benefits. Should the Director die while
--------- -----------------------------
serving as a director of the Bank and prior to the Qualifying Date, the Bank
will pay $2,000.00 per month for a continuous period of 120 months to such
beneficiary or beneficiaries as are designated by the Director to the Bank in
writing (the "Beneficiaries"). The first such monthly installment payment shall
be made on a date to be determined by the Bank, but in no event later than the
first day of the sixth calendar month following the calendar month in which the
Director died. Notwithstanding the foregoing, if the Director dies as a result
of suicide on or before January 1, 1996, no benefits of whatever nature shall be
payable to the Beneficiaries under this Agreement. In the event of the death of
the last living Beneficiary before all the unpaid payments shall have been made,
the balance of any payments which remain unpaid at the time of such
Beneficiary's death shall be commuted on
the basis of six percent (6%) per annum compounded interest and shall be paid in
a single sum to the estate of the last Beneficiary to die. In the absence of any
such beneficiary designation, any amount remaining unpaid at the Director's
death shall be commuted on the basis of six percent (6%) per annum compounded
interest and shall be paid in a single sum to the Director's estate.
Section 3. Post-Retirement Death Benefits. In the event that the Director
--------- ------------------------------
should die after becoming entitled to receive monthly installment payments under
this Agreement but before all remaining installment payments have been made, the
Bank will pay all remaining installment payments to the Beneficiary or
Beneficiaries. In the event of the death of the last living Beneficiary before
all installment payments have been made, the balance of any payments which
remain unpaid at the time of such Beneficiary's death shall be commuted on the
basis of six percent (6%) per annum compounded interest and shall be paid in a
single sum to the estate of the last Beneficiary to die. In the absence of such
beneficiary designation, any payments remaining unpaid at the Director's death
shall be commuted on the basis of six percent (6%) per annum compounded interest
and shall be paid in a single sum to the Director's estate.
Section 4. Termination Benefits. Should the Director voluntarily resign
--------- --------------------
as a director prior to the Qualifying Date, he or his Beneficiaries, as
applicable, shall be entitled to receive, commencing on a date to be determined
by the Bank, but in no event later than the first day of the sixth calendar
month following the month in which the earlier of the Director's death or 70th
birthday shall occur, the percentage of the amount of the monthly installment
payment stated in Section 1 of this Agreement determined under the following
table:
PERCENTAGE OF MONTHLY INSTALLMENT
PAYMENT STATED IN SECTION 1 OF THIS
FULL NUMBER OF YEARS SERVED AS AGREEMENT TO WHICH DIRECTOR IS
DIRECTOR AFTER JANUARY 1, 1994 ENTITLED
------------------------------ -----------------------------------
1 10%
2 20%
3 30%
4 40%
5 50%
6 60%
7 70%
8 80%
9 90%
10 100%
Section 5. Benefits Not Transferable. Neither the Director, his
--------- -------------------------
Beneficiaries nor any other person claiming any right or interest under this
Agreement through the Director or any Beneficiary shall have any right to
commute, assign, transfer or otherwise convey the right to receive any benefits
hereunder.
2
Section 6. Binding Upon Successors. This Agreement and the Bank's
--------- -----------------------
obligations hereunder shall be binding upon the Bank's successors and permitted
assigns. The Bank may not assign its rights or obligations under this Agreement
without the Director's prior written consent. In addition, the Bank shall not
enter into any agreement providing for the merger of the Bank with and into
another business entity or the sale of more than a majority of the Bank's assets
to another business entity, person or group persons that does not specifically
provide that such successor by merger or purchaser(s) of assets shall assume and
satisfy each and every obligation of the Bank to the Director under this
Agreement. In the case of an asset sale, such assumption shall not relieve the
Bank of its liability to fulfill such obligations.
Except as otherwise provided in Sections 1, 2, 3 or 4, as applicable, in
the event that, on or before the occurrence of the Qualifying Date, the
Director's service as a director of the Bank is terminated for any reason
coincident with or within twenty-four (24) months following a merger of the Bank
with or into another business entity or of an asset sale as described above,
then the provisions of Section 1 shall be deemed applicable except that the
Qualifying Date shall be deemed to be the date that such merger or asset sale
shall be consummated.
Section 7. Benefits Payable Only From General Corporate Assets;
--------- ----------------------------------------------------
Unsecured General Creditors Status of Director.
----------------------------------------------
The payments to the Director or his Beneficiary or Beneficiaries hereunder
shall be made from assets which for all purposes shall continue to be a part of
the general, unrestricted assets of the Bank; no person shall have any interest
in any such assets by virtue of the provisions of this Agreement. The Bank's
obligations hereunder shall be an unfunded and unsecured promise to pay money in
the future. To the extent that any person acquires a right to receive payments
from the Bank under the provisions hereof, such right shall be no greater than
the right of any unsecured general creditor of the Bank; no such person shall
have nor require any legal or equitable right, interest or claim in or to any
property or assets of the Bank.
In the event that, in its discretion, the Bank purchases an insurance
policy or policies insuring the life of the Director (or any other property), in
order to allow the Bank to recover the cost of providing benefits, in whole or
in part, hereunder, neither the Director, nor any Beneficiary, shall have any
rights whatsoever therein or in the proceeds therefrom. The Bank shall be the
sole owner and beneficiary of such insurance policy and shall possess and may
exercise all incidents of ownership therein.
Section 8. Additional Benefits. The benefits and rights provided under
--------- -------------------
this Agreement are independent of those benefits and rights provided under other
agreements between the parties hereto, and shall not affect, reduce or diminish
the right of Director to participate in any current or future benefit plan or
other supplemental compensation arrangement.
Section 9. No Contract of Employment. Nothing contained herein shall be
--------- -------------------------
construed to be a contract of employment or as conferring upon the Director the
right to continue as a director of the
3
Bank. It is expressly understood by the parties hereto that this Agreement
relates exclusively to supplemental retirement payments for the Director, and is
not intended to be an employment or services agreement.
Section 10. Amendment. This Agreement may not be amended, altered or
---------- ---------
modified, except by a written instrument signed by the parties hereto or their
respective successors, and may not be otherwise terminated except as provided
herein.
Section 11. Governing Law. This Agreement, and the rights of the parties
---------- -------------
hereunder, shall be governed by and construed on accordance with the laws of the
State of North Carolina.
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Director's Retirement Plan Agreement as of the day and year first above written.
HOME SAVINGS BANK, SSB
Attest:
/s/ Xxxx Xxxxx By: /s/ Xxxxxx X. Xxxx
-------------------------- ------------------------------------
Xxxx Xxxxx Xxxxxx X. Xxxx
Secretary
[Corporate Seal] Title: President
DIRECTOR:
/s/ Xxxxxxxxx X. Xxxxxxxx
----------------------------------- (Seal)
Xxxxxxxxx X. Xxxxxxxx
4
AMENDED AND RESTATED
DIRECTOR'S RETIREMENT PLAN AGREEMENT
THIS AMENDED AND RESTATED DIRECTOR'S RETIREMENT PLAN AGREEMENT (this
"Agreement"), made and entered into this 1st day of January, 1994 and amended
and restated this the 14th day of December, 1995, by and between Home Savings
Bank, SSB, a mutual state savings bank organized and existing under the laws of
the State of North Carolina (the "Bank"), and Xxxxxxxxx X. Howdy (the
"Director").
W I T N E S S E T H:
WHEREAS, the Bank recognizes the valuable services heretofore performed for
it by the Director and wishes to encourage his further services and assist him
in providing for the contingencies of retirement and death;
WHEREAS, the parties hereto wish to provide the terms and conditions upon
which the Bank shall make certain payments to the Director or his designated
beneficiaries;
WHEREAS, the parties hereto intend that this Agreement be considered an
unfunded arrangement maintained to provide deferred compensation benefits for
the Director; and
WHEREAS, the parties hereto desire to amend the Agreement and to restate
the Agreement as amended.
NOW, THEREFORE, in consideration of the premises and of the mutual promises
herein contained, the parties hereto agree as follows:
Section 1. Retirement Benefits. The Bank agrees that, except as otherwise
--------- -------------------
specifically provided herein, upon the later to occur of the Director's 70th
birthday and January 1, 1999 (the "Qualifying Date"), the Bank will pay the
Director $2,000.00 per month for a continuous period of 120 months. Such
continuous monthly installment payments shall commence on a date to be
determined by the Bank, but in no event later than the first day of the sixth
calendar month following the calendar month in which the Qualifying Date shall
occur.
Section 2. Pre-Retirement Death Benefits. Should the Director die while
--------- -----------------------------
serving as a director of the Bank and prior to the Qualifying Date, the Bank
will pay $2,000.00 per month for a continuous period of 120 months to such
beneficiary or beneficiaries as are designated by the Director to the Bank in
writing (the "Beneficiaries"). The first such monthly installment payment shall
be made on a date to be determined by the Bank, but in no event later than the
first day of the sixth calendar month following the calendar month in which the
Director died. Notwithstanding the foregoing, if the Director dies as a result
of suicide on or before January 1, 1996, no benefits of whatever nature shall be
payable to the Beneficiaries under this Agreement. In the event of the death of
the last living Beneficiary before all the unpaid payments shall have been made,
the balance of any payments which remain unpaid at the time of such
Beneficiary's death shall be commuted on
the basis of six percent (6%) per annum compounded interest and shall be paid in
a single sum to the estate of the last Beneficiary to die. In the absence of any
such beneficiary designation, any amount remaining unpaid at the Director's
death shall be commuted on the basis of six percent (6%) per annum compounded
interest and shall be paid in a single sum to the Director's estate.
Section 3. Post-Retirement Death Benefits. In the event that the Director
--------- ------------------------------
should die after becoming entitled to receive monthly installment payments under
this Agreement but before all remaining installment payments have been made, the
Bank will pay all remaining installment payments to the Beneficiary or
Beneficiaries. In the event of the death of the last living Beneficiary before
all installment payments have been made, the balance of any payments which
remain unpaid at the time of such Beneficiary's death shall be commuted on the
basis of six percent (6%) per annum compounded interest and shall be paid in a
single sum to the estate of the last Beneficiary to die. In the absence of such
beneficiary designation, any payments remaining unpaid at the Director's death
shall be commuted on the basis of six percent (6%) per annum compounded interest
and shall be paid in a single sum to the Director's estate.
Section 4. Termination Benefits. Should the Director voluntarily resign
--------- --------------------
as a director prior to the Qualifying Date, he or his Beneficiaries, as
applicable, shall be entitled to receive, commencing on a date to be determined
by the Bank, but in no event later than the first day of the sixth calendar
month following the month in which the earlier of the Director's death or 70th
birthday shall occur, the percentage of the amount of the monthly installment
payment stated in Section 1 of this Agreement determined under the following
table:
PERCENTAGE OF MONTHLY INSTALLMENT
PAYMENT STATED IN SECTION 1 OF THIS
FULL NUMBER OF YEARS SERVED AS AGREEMENT TO WHICH DIRECTOR IS
DIRECTOR AFTER JANUARY 1, 1994 ENTITLED
------------------------------ -----------------------------------
1 12.5%
2 25.0%
3 37.5%
4 50.0%
5 62.5%
6 75.0%
7 87.5%
8 100.0%
Section 5. Benefits Not Transferable. Neither the Director, his
--------- -------------------------
Beneficiaries nor any other person claiming any right or interest under this
Agreement through the Director or any Beneficiary shall have any right to
commute, assign, transfer or otherwise convey the right to receive any benefits
hereunder.
Section 6. Binding Upon Successors. This Agreement and the Bank's
--------- -----------------------
obligations hereunder shall be binding upon the Bank's successors and permitted
assigns. The Bank may not assign its rights or obligations under this Agreement
without the Director's prior written consent. In addition,
2
the Bank shall not enter into any agreement providing for the merger of the Bank
with and into another business entity or the sale of more than a majority of the
Bank's assets to another business entity, person or group persons that does not
specifically provide that such successor by merger or purchaser(s) of assets
shall assume and satisfy each and every obligation of the Bank to the Director
under this Agreement. In the case of an asset sale, such assumption shall not
relieve the Bank of its liability to fulfill such obligations.
Except as otherwise provided in Sections 1, 2, 3 or 4, as applicable, in
the event that, on or before the occurrence of the Qualifying Date, the
Director's service as a director of the Bank is terminated for any reason
coincident with or within twenty-four (24) months following a merger of the Bank
with or into another business entity or of an asset sale as described above,
then the provisions of Section 1 shall be deemed applicable except that the
Qualifying Date shall be deemed to be the date that such merger or asset sale
shall be consummated.
Section 7. Benefits Payable Only From General Corporate Assets;
--------- ----------------------------------------------------
Unsecured General Creditors Status of Director.
----------------------------------------------
The payments to the Director or his Beneficiary or Beneficiaries hereunder
shall be made from assets which for all purposes shall continue to be a part of
the general, unrestricted assets of the Bank; no person shall have any interest
in any such assets by virtue of the provisions of this Agreement. The Bank's
obligations hereunder shall be an unfunded and unsecured promise to pay money in
the future. To the extent that any person acquires a right to receive payments
from the Bank under the provisions hereof, such right shall be no greater than
the right of any unsecured general creditor of the Bank; no such person shall
have nor require any legal or equitable right, interest or claim in or to any
property or assets of the Bank.
In the event that, in its discretion, the Bank purchases an insurance
policy or policies insuring the life of the Director (or any other property), in
order to allow the Bank to recover the cost of providing benefits, in whole or
in part, hereunder, neither the Director, nor any Beneficiary, shall have any
rights whatsoever therein or in the proceeds therefrom. The Bank shall be the
sole owner and beneficiary of such insurance policy and shall possess and may
exercise all incidents of ownership therein.
Section 8. Additional Benefits. The benefits and rights provided under
--------- -------------------
this Agreement are independent of those benefits and rights provided under other
agreements between the parties hereto, and shall not affect, reduce or diminish
the right of Director to participate in any current or future benefit plan or
other supplemental compensation arrangement.
Section 9. No Contract of Employment. Nothing contained herein shall be
--------- -------------------------
construed to be a contract of employment or as conferring upon the Director the
right to continue as a director of the Bank. It is expressly understood by the
parties hereto that this Agreement relates exclusively to supplemental
retirement payments for the Director, and is not intended to be an employment or
services agreement.
3
Section 10. Amendment. This Agreement may not be amended, altered or
---------- ---------
modified, except by a written instrument signed by the parties hereto or their
respective successors, and may not be otherwise terminated except as provided
herein.
Section 11. Governing Law. This Agreement, and the rights of the parties
---------- -------------
hereunder, shall be governed by and construed on accordance with the laws of the
State of North Carolina.
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Director's Retirement Plan Agreement as of the day and year first above written.
HOME SAVINGS BANK, SSB
Attest:
/s/ Xxxx Xxxxx By: /s/ Xxxxxx X. Xxxx
--------------------- --------------------------------
Xxxx Xxxxx Xxxxxx X. Xxxx
Secretary
[Corporate Seal] Title: President
DIRECTOR:
/s/ Xxxxxxxxx X. Howdy
----------------------------- (Seal)
Xxxxxxxxx X. Howdy
4
AMENDED AND RESTATED
DIRECTOR'S RETIREMENT PLAN AGREEMENT
THIS AMENDED AND RESTATED DIRECTOR'S RETIREMENT PLAN AGREEMENT (this
"Agreement"), made and entered into this 1st day of January, 1994 and amended
and restated this the 14th day of December, 1995, by and between Home Savings
Bank, SSB, a mutual state savings bank organized and existing under the laws of
the State of North Carolina (the "Bank"), and Xxxxxxx X. Xxxxxx (the
"Director").
W I T N E S S E T H:
WHEREAS, the Bank recognizes the valuable services heretofore performed for
it by the Director and wishes to encourage his further services and assist him
in providing for the contingencies of retirement and death;
WHEREAS, the parties hereto wish to provide the terms and conditions upon
which the Bank shall make certain payments to the Director or his designated
beneficiaries;
WHEREAS, the parties hereto intend that this Agreement be considered an
unfunded arrangement maintained to provide deferred compensation benefits for
the Director; and
WHEREAS, the parties hereto desire to amend the Agreement and to restate
the Agreement as amended.
NOW, THEREFORE, in consideration of the premises and of the mutual promises
herein contained, the parties hereto agree as follows:
Section 1. Retirement Benefits. The Bank agrees that, except as otherwise
--------- -------------------
specifically provided herein, upon the later to occur of the Director's 70th
birthday and January 1, 1999 (the "Qualifying Date"), the Bank will pay the
Director $2,000.00 per month for a continuous period of 120 months. Such
continuous monthly installment payments shall commence on a date to be
determined by the Bank, but in no event later than the first day of the sixth
calendar month following the calendar month in which the Qualifying Date shall
occur.
Section 2. Pre-Retirement Death Benefits. Should the Director die while
--------- -----------------------------
serving as a director of the Bank and prior to the Qualifying Date, the Bank
will pay $2,000.00 per month for a continuous period of 120 months to such
beneficiary or beneficiaries as are designated by the Director to the Bank in
writing (the "Beneficiaries"). The first such monthly installment payment shall
be made on a date to be determined by the Bank, but in no event later than the
first day of the sixth calendar month following the calendar month in which the
Director died. Notwithstanding the foregoing, if the Director dies as a result
of suicide on or before January 1, 1996, no benefits of whatever nature shall be
payable to the Beneficiaries under this Agreement. In the event of the death of
the last living Beneficiary before all the unpaid payments shall have been made,
the balance of any payments which remain unpaid at the time of such
Beneficiary's death shall be commuted on
the basis of six percent (6%) per annum compounded interest and shall be paid in
a single sum to the estate of the last Beneficiary to die. In the absence of any
such beneficiary designation, any amount remaining unpaid at the Director's
death shall be commuted on the basis of six percent (6%) per annum compounded
interest and shall be paid in a single sum to the Director's estate.
Section 3. Post-Retirement Death Benefits. In the event that the Director
--------- ------------------------------
should die after becoming entitled to receive monthly installment payments under
this Agreement but before all remaining installment payments have been made, the
Bank will pay all remaining installment payments to the Beneficiary or
Beneficiaries. In the event of the death of the last living Beneficiary before
all installment payments have been made, the balance of any payments which
remain unpaid at the time of such Beneficiary's death shall be commuted on the
basis of six percent (6%) per annum compounded interest and shall be paid in a
single sum to the estate of the last Beneficiary to die. In the absence of such
beneficiary designation, any payments remaining unpaid at the Director's death
shall be commuted on the basis of six percent (6%) per annum compounded interest
and shall be paid in a single sum to the Director's estate.
Section 4. Termination Benefits. Should the Director voluntarily resign
--------- --------------------
as a director prior to the Qualifying Date, he or his Beneficiaries, as
applicable, shall be entitled to receive, commencing on a date to be determined
by the Bank, but in no event later than the first day of the sixth calendar
month following the month in which the earlier of the Director's death or 70th
birthday shall occur, the percentage of the amount of the monthly installment
payment stated in Section 1 of this Agreement determined under the following
table:
PERCENTAGE OF MONTHLY INSTALLMENT
PAYMENT STATED IN SECTION 1 OF THIS
FULL NUMBER OF YEARS SERVED AS AGREEMENT TO WHICH DIRECTOR IS
DIRECTOR AFTER JANUARY 1, 1994 ENTITLED
--------------------------------- -----------------------------------
1 10%
2 20%
3 30%
4 40%
5 50%
6 60%
7 70%
8 80%
9 90%
10 100%
Section 5. Benefits Not Transferable. Neither the Director, his
--------- -------------------------
Beneficiaries nor any other person claiming any right or interest under this
Agreement through the Director or any Beneficiary shall have any right to
commute, assign, transfer or otherwise convey the right to receive any benefits
hereunder.
2
Section 6. Binding Upon Successors. This Agreement and the Bank's
--------- -----------------------
obligations hereunder shall be binding upon the Bank's successors and permitted
assigns. The Bank may not assign its rights or obligations under this Agreement
without the Director's prior written consent. In addition, the Bank shall not
enter into any agreement providing for the merger of the Bank with and into
another business entity or the sale of more than a majority of the Bank's assets
to another business entity, person or group persons that does not specifically
provide that such successor by merger or purchaser(s) of assets shall assume and
satisfy each and every obligation of the Bank to the Director under this
Agreement. In the case of an asset sale, such assumption shall not relieve the
Bank of its liability to fulfill such obligations.
Except as otherwise provided in Sections 1, 2, 3 or 4, as applicable, in
the event that, on or before the occurrence of the Qualifying Date, the
Director's service as a director of the Bank is terminated for any reason
coincident with or within twenty-four (24) months following a merger of the Bank
with or into another business entity or of an asset sale as described above,
then the provisions of Section 1 shall be deemed applicable except that the
Qualifying Date shall be deemed to be the date that such merger or asset sale
shall be consummated.
Section 7. Benefits Payable Only From General Corporate Assets;
--------- ----------------------------------------------------
Unsecured General Creditors Status of Director.
----------------------------------------------
The payments to the Director or his Beneficiary or Beneficiaries hereunder
shall be made from assets which for all purposes shall continue to be a part of
the general, unrestricted assets of the Bank; no person shall have any interest
in any such assets by virtue of the provisions of this Agreement. The Bank's
obligations hereunder shall be an unfunded and unsecured promise to pay money in
the future. To the extent that any person acquires a right to receive payments
from the Bank under the provisions hereof, such right shall be no greater than
the right of any unsecured general creditor of the Bank; no such person shall
have nor require any legal or equitable right, interest or claim in or to any
property or assets of the Bank.
In the event that, in its discretion, the Bank purchases an insurance
policy or policies insuring the life of the Director (or any other property), in
order to allow the Bank to recover the cost of providing benefits, in whole or
in part, hereunder, neither the Director, nor any Beneficiary, shall have any
rights whatsoever therein or in the proceeds therefrom. The Bank shall be the
sole owner and beneficiary of such insurance policy and shall possess and may
exercise all incidents of ownership therein.
Section 8. Additional Benefits. The benefits and rights provided under
--------- -------------------
this Agreement are independent of those benefits and rights provided under other
agreements between the parties hereto, and shall not affect, reduce or diminish
the right of Director to participate in any current or future benefit plan or
other supplemental compensation arrangement.
Section 9. No Contract of Employment. Nothing contained herein shall be
--------- -------------------------
construed to be a contract of employment or as conferring upon the Director the
right to continue as a director of the
3
Bank. It is expressly understood by the parties hereto that this Agreement
relates exclusively to supplemental retirement payments for the Director, and is
not intended to be an employment or services agreement.
Section 10. Amendment. This Agreement may not be amended, altered or
---------- ---------
modified, except by a written instrument signed by the parties hereto or their
respective successors, and may not be otherwise terminated except as provided
herein.
Section 11. Governing Law. This Agreement, and the rights of the parties
---------- -------------
hereunder, shall be governed by and construed on accordance with the laws of the
State of North Carolina.
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Director's Retirement Plan Agreement as of the day and year first above written.
HOME SAVINGS BANK, SSB
Attest:
/s/ Xxxx Xxxxx By: /s/ Xxxxxx X. Xxxx
------------------------- ---------------------------
Xxxx Xxxxx Xxxxxx X. Xxxx
Secretary
[Corporate Seal] Title: President
DIRECTOR:
/s/ Xxxxxxx X. Xxxxxx, Xx. (Seal)
------------------------------
Xxxxxxx X. Xxxxxx, Xx.
4
AMENDED AND RESTATED
DIRECTOR'S RETIREMENT PLAN AGREEMENT
THIS AMENDED AND RESTATED DIRECTOR'S RETIREMENT PLAN AGREEMENT (this
"Agreement"), made and entered into this 1st day of January, 1994 and amended
and restated this the 14th day of December, 1995, by and between Home Savings
Bank, SSB, a mutual state savings bank organized and existing under the laws of
the State of North Carolina (the "Bank"), and Xxxxxx X. Xxxx (the "Director").
W I T N E S S E T H:
WHEREAS, the Bank recognizes the valuable services heretofore performed for
it by the Director and wishes to encourage his further services and assist him
in providing for the contingencies of retirement and death;
WHEREAS, the parties hereto wish to provide the terms and conditions upon
which the Bank shall make certain payments to the Director or his designated
beneficiaries;
WHEREAS, the parties hereto intend that this Agreement be considered an
unfunded arrangement maintained to provide deferred compensation benefits for
the Director; and
WHEREAS, the parties hereto desire to amend the Agreement and to restate
the Agreement as amended.
NOW, THEREFORE, in consideration of the premises and of the mutual promises
herein contained, the parties hereto agree as follows:
Section 1. Retirement Benefits. The Bank agrees that, except as otherwise
--------- -------------------
specifically provided herein, upon the later to occur of the Director's 70th
birthday and January 1, 1999 (the "Qualifying Date"), the Bank will pay the
Director $2,000.00 per month for a continuous period of 120 months. Such
continuous monthly installment payments shall commence on a date to be
determined by the Bank, but in no event later than the first day of the sixth
calendar month following the calendar month in which the Qualifying Date shall
occur.
Section 2. Pre-Retirement Death Benefits. Should the Director die while
--------- -----------------------------
serving as a director of the Bank and prior to the Qualifying Date, the Bank
will pay $2,000.00 per month for a continuous period of 120 months to such
beneficiary or beneficiaries as are designated by the Director to the Bank in
writing (the "Beneficiaries"). The first such monthly installment payment shall
be made on a date to be determined by the Bank, but in no event later than the
first day of the sixth calendar month following the calendar month in which the
Director died. Notwithstanding the foregoing, if the Director dies as a result
of suicide on or before January 1, 1996, no benefits of whatever nature shall be
payable to the Beneficiaries under this Agreement. In the event of the death of
the last living Beneficiary before all the unpaid payments shall have been made,
the balance of any payments which remain unpaid at the time of such
Beneficiary's death shall be commuted on
the basis of six percent (6%) per annum compounded interest and shall be paid in
a single sum to the estate of the last Beneficiary to die. In the absence of any
such beneficiary designation, any amount remaining unpaid at the Director's
death shall be commuted on the basis of six percent (6%) per annum compounded
interest and shall be paid in a single sum to the Director's estate.
Section 3. Post-Retirement Death Benefits. In the event that the Director
--------- ------------------------------
should die after becoming entitled to receive monthly installment payments under
this Agreement but before all remaining installment payments have been made, the
Bank will pay all remaining installment payments to the Beneficiary or
Beneficiaries. In the event of the death of the last living Beneficiary before
all installment payments have been made, the balance of any payments which
remain unpaid at the time of such Beneficiary's death shall be commuted on the
basis of six percent (6%) per annum compounded interest and shall be paid in a
single sum to the estate of the last Beneficiary to die. In the absence of such
beneficiary designation, any payments remaining unpaid at the Director's death
shall be commuted on the basis of six percent (6%) per annum compounded interest
and shall be paid in a single sum to the Director's estate.
Section 4. Termination Benefits. Should the Director voluntarily resign
--------- --------------------
as a director prior to the Qualifying Date, he or his Beneficiaries, as
applicable, shall be entitled to receive, commencing on a date to be determined
by the Bank, but in no event later than the first day of the sixth calendar
month following the month in which the earlier of the Director's death or 70th
birthday shall occur, the percentage of the amount of the monthly installment
payment stated in Section 1 of this Agreement determined under the following
table:
PERCENTAGE OF MONTHLY INSTALLMENT
PAYMENT STATED IN SECTION 1 OF THIS
FULL NUMBER OF YEARS SERVED AS AGREEMENT TO WHICH DIRECTOR IS
DIRECTOR AFTER JANUARY 1, 1994 ENTITLED
----------------------------------- --------------------------------------
1 10%
2 20%
3 30%
4 40%
5 50%
6 60%
7 70%
8 80%
9 90%
10 100%
Section 5. Benefits Not Transferable. Neither the Director, his
--------- -------------------------
Beneficiaries nor any other person claiming any right or interest under this
Agreement through the Director or any Beneficiary shall have any right to
commute, assign, transfer or otherwise convey the right to receive any benefits
hereunder.
2
Section 6. Binding Upon Successors. This Agreement and the Bank's
--------- -----------------------
obligations hereunder shall be binding upon the Bank's successors and permitted
assigns. The Bank may not assign its rights or obligations under this Agreement
without the Director's prior written consent. In addition, the Bank shall not
enter into any agreement providing for the merger of the Bank with and into
another business entity or the sale of more than a majority of the Bank's assets
to another business entity, person or group persons that does not specifically
provide that such successor by merger or purchaser(s) of assets shall assume and
satisfy each and every obligation of the Bank to the Director under this
Agreement. In the case of an asset sale, such assumption shall not relieve the
Bank of its liability to fulfill such obligations.
Except as otherwise provided in Sections 1, 2, 3 or 4, as applicable, in
the event that, on or before the occurrence of the Qualifying Date, the
Director's service as a director of the Bank is terminated for any reason
coincident with or within twenty-four (24) months following a merger of the Bank
with or into another business entity or of an asset sale as described above,
then the provisions of Section 1 shall be deemed applicable except that the
Qualifying Date shall be deemed to be the date that such merger or asset sale
shall be consummated.
Section 7. Benefits Payable Only From General Corporate Assets;
--------- ----------------------------------------------------
Unsecured General Creditors Status of Director.
----------------------------------------------
The payments to the Director or his Beneficiary or Beneficiaries hereunder
shall be made from assets which for all purposes shall continue to be a part of
the general, unrestricted assets of the Bank; no person shall have any interest
in any such assets by virtue of the provisions of this Agreement. The Bank's
obligations hereunder shall be an unfunded and unsecured promise to pay money in
the future. To the extent that any person acquires a right to receive payments
from the Bank under the provisions hereof, such right shall be no greater than
the right of any unsecured general creditor of the Bank; no such person shall
have nor require any legal or equitable right, interest or claim in or to any
property or assets of the Bank.
In the event that, in its discretion, the Bank purchases an insurance
policy or policies insuring the life of the Director (or any other property), in
order to allow the Bank to recover the cost of providing benefits, in whole or
in part, hereunder, neither the Director, nor any Beneficiary, shall have any
rights whatsoever therein or in the proceeds therefrom. The Bank shall be the
sole owner and beneficiary of such insurance policy and shall possess and may
exercise all incidents of ownership therein.
Section 8. Additional Benefits. The benefits and rights provided under
--------- -------------------
this Agreement are independent of those benefits and rights provided under other
agreements between the parties hereto, and shall not affect, reduce or diminish
the right of Director to participate in any current or future benefit plan or
other supplemental compensation arrangement.
Section 9. No Contract of Employment. Nothing contained herein shall be
--------- -------------------------
construed to be a contract of employment or as conferring upon the Director the
right to continue as a director of the
3
Bank. It is expressly understood by the parties hereto that this Agreement
relates exclusively to supplemental retirement payments for the Director, and is
not intended to be an employment or services agreement.
Section 10. Amendment. This Agreement may not be amended, altered or
---------- ---------
modified, except by a written instrument signed by the parties hereto or their
respective successors, and may not be otherwise terminated except as provided
herein.
Section 11. Governing Law. This Agreement, and the rights of the parties
---------- -------------
hereunder, shall be governed by and construed on accordance with the laws of the
State of North Carolina.
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Director's Retirement Plan Agreement as of the day and year first above written.
HOME SAVINGS BANK, SSB
Attest:
/s/ Xxxx Xxxxx By: /s/ Xxxxxxx X. Xxxx
------------------------------ --------------------------------
Xxxx Xxxxx Xxxxxxx X. Xxxx
Secretary
[Corporate Seal] Title: Executive Vice President
DIRECTOR:
/s/ Xxxxxx X. Xxxx
--------------------------------- (Seal)
Xxxxxx X. Xxxx
4
HOME SAVINGS BANK, SSB
DIRECTOR'S RETIREMENT PLAN AGREEMENT
AS AMENDED AND RESTATED DECEMBER 14, 1995
--------------------
1996 Amendment
--------------------
WHEREAS, Home Savings Bank, SSB (the "Bank") has entered into a
Director's Retirement Plan Agreement (the "Agreement"), originally effective
January 1, 1994 and as amended and restated effective December 14, 1995, with
Directors X. Xxxxxxx, Xx., F. Howdy, X. Xxxxxx, Xx., X. Xxxxxxxx, X. Xxxxx, Xx.,
X. Xxxx, and X. Xxxx (the "Directors"); and
WHEREAS, the Bank has authorized an amendment to the Agreement with
each Director in order to address issues arising from the Bank's upcoming
conversion from mutual to stock form;
NOW, THEREFORE, pursuant to Section 10 of each Agreement, the
Agreement with each Director is hereby amended as follows, effective immediately
on execution hereof:
1. The second paragraph of Section 6 is amended by replacing the
words "merger of the Bank with or into another business entity or of an asset
sale as described above" with the words "Change in Control as defined in Section
7 hereof."
2. Section 7 of the Agreement shall be amended by adding the
following paragraphs immediately at the end thereof:
Notwithstanding any other provision of this Agreement that may be
contrary or inconsistent herewith, not later than ten business days
after a Change in Control (as defined in the last paragraph of this
Section 8), the Bank shall (i) deposit in a grantor trust (the
"Trust") that is designed in accordance with Revenue Procedure 92-64
and has a trustee independent of the Bank, the Company and any
successor to their interest, an amount equal to the present value of
all benefits that may become payable under this Agreement, unless the
Director has previously provided a written release of any claims under
this Agreement, and (ii) provide the trustee of the Trust with a
written direction to hold said amount and any investment return
thereon in a segregated account for the benefit of the Director, and
to follow the procedures set forth in the next paragraph as to the
payment of such amounts from the Trust.
At any time or from time to time following the Change in Control,
the Director may provide the trustee of the Trust with a written
schedule directing that the trustee pay to the Director amounts
designated in the schedule as being payable pursuant to this
Agreement. Within three business days after receiving said notice,
the trustee of the Trust shall send a copy of the notice to the Bank
via overnight and registered mail (return receipt requested). On the
fifth business day after mailing said notice to the Bank, the trustee
of the Trust shall pay the Director the amount designated therein in
immediately available funds, unless prior thereto the Bank provides
the trustee with a written notice directing the trustee to withhold
such payment. In the latter event, the trustee shall submit the
dispute to non-appealable binding arbitration for a determination of
the amount payable to the Director pursuant to this Agreement, and the
costs of such arbitration (including any attorneys' fees incurred by
the Director) shall be paid by the Bank. The trustee shall choose the
arbitrator to settle the dispute, and such arbitrator shall be bound
by the rules of the American Arbitration Association in making his
determination. The parties and the trustee shall be bound by the
results of the arbitration and, within three days of the determination
by the arbitrator, the trustee shall pay from the Trust the amounts
required to be paid to the Director and/or the Bank, and in no event
shall the trustee be liable to either party for making the payments as
determined by the arbitrator.
Upon receiving the Director's release of all claims under this
Agreement, the trustee of the Trust shall pay to the Bank or its
successor in interest the entire balance remaining in the segregated
account maintained for the benefit of the Director. The Director
shall thereafter have no further interest in the Trust pursuant to
this Agreement.
For purposes of this Agreement, "Change in Control" shall mean
any one of the following events: (i) the acquisition of ownership,
holding, or power to vote more than 25% of the voting stock of the
Bank or NewSouth Bancorp, Inc. (the "Company"), (ii) the acquisition
of the ability to control the election of a majority of the Bank's or
the Company's directors, (iii) the acquisition of a controlling
influence over the management or policies of the Bank or of the
Company by any person or by persons acting as a "group" (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934), or
(iv) during any period of two consecutive years, individuals (the
"Continuing Directors") who at the beginning of such period constitute
the Board of Directors of the Bank or of the Company (the "Existing
Board") cease for any reason to constitute at least two-thirds
thereof, provided that any individual whose election or nomination for
election as a member of the Existing Board was approved by a vote of
at least two-thirds of the Continuing Directors then in office shall
be considered a Continuing Director. Notwithstanding the foregoing,
the Company's ownership
of the Bank shall not of itself constitute a Change in Control for
purposes of the Agreement. For purposes of this paragraph only, the
term "person" refers to an individual or a corporation, partnership,
trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization or any other form of
entity not specifically listed herein.
3. Nothing contained herein shall be held to alter, vary or affect any of
the terms, provisions, or conditions of the Agreement entered into thereunder,
other than as stated above.
WHEREFORE, on this 23rd day of October, 1996, the Bank and each Director
who is party to an Agreement hereby execute this 1996 Amendment to the Plan.
HOME SAVINGS BANK, SSB
By /s/ Xxxxxxxxx X. Howdy
--------------------------
Its Chairman of the Board
October 23, 1996
------------------------------- Attest: Xxxxxxx X. Xxxx
Date ------------------------------------ (Seal)
DIRECTORS
Xxxxxx X. Ipoch /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------------- -------------------------------------------
Witness: X. Xxxxxxx, Xx.
Xxxxxx X. Ipoch /s/ Xxxxxxxxx X. Howdy
----------------------------------- -------------------------------------------
Witness: F. Howdy
Xxxxxx X. Ipoch /s/ Xxxxxxx X. Xxxxxx, Xx.
----------------------------------- ---------------------------------------------
Witness: X. Xxxxxx, Xx.
Xxxxxx X. Ipoch /s/ Xxxxxxxxx X. Xxxxxxxx
----------------------------------- -------------------------------------------
Witness: X. Xxxxxxxx
Xxxxxx X. Ipoch /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------------- --------------------------------------------
Witness: X. Xxxxx, Xx.
Xxxxxx X. Ipoch /s/ Xxxxxx X. Xxxx
----------------------------------- --------------------------------------------
Witness: X. Xxxx
Xxxxxx X. Ipoch /s/ Xxxxxx X. Xxxx
------------------------------------ -------------------------------------------
Witness: X. Xxxx
