EXHIBIT 10.6
SOUTHERN COMMUNITY BANK
SALARY CONTINUATION AGREEMENT
THIS AGREEMENT is adopted this 26th day of February, 2003, by and between
SOUTHERN COMMUNITY BANK, a state-chartered commercial bank located in Orlando,
Florida (the "Company"), and XXXXXX XXXXXX (the "Executive").
INTRODUCTION
To encourage the Executive to remain an employee of the Company, the
Company is willing to provide salary continuation benefits to the Executive. The
Company will pay the benefits from its general assets.
AGREEMENT
The Company and the Executive agree as follows
ARTICLE 1
Definitions
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.1 "Change of Control" means the transfer of shares of the Company's
voting common stock such that one entity or one person acquires (or is deemed to
acquire when applying Section 318 of the Code) more than 50 percent of the
Company's outstanding voting common stock; provided, however, that the formation
by the Company of a bank holding company which acquires all or substantially all
of the shares of the Company's voting common stock shall not be deemed a Change
of Control for purposes of this Agreement.
1.2 "Code" means the Internal Revenue Code of 1986, as amended.
1.3 "Disability" means the Executive's suffering a sickness, accident or
injury which has been determined by the carrier of any individual or group
disability insurance policy covering the Executive, or by the Social Security
Administration, to be a disability rendering the Executive totally and
permanently disabled. The Executive must submit proof to the Company of the
carrier's or Social Security Administration's determination upon the request of
the Company.
1.4 "Early Termination" means the Termination of Employment before Normal
Retirement Age for reasons other than death, Disability, Termination for Cause
or following a Change of Control.
1.5 "Early Termination Date" means the month, day and year in which Early
Termination occurs.
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1.6 "Effective Date" means January 1, 2003.
1.7 "Normal Retirement Age" means the Executive's 65' birthday.
1.8 "Normal Retirement Date" means the later of the Normal Retirement Age
or Termination of Employment.
1.9 "Plan Year" means a twelve-month period commencing on March I" and
ending on the last day of February of the following year. The initial Plan Year
shall commence on the Effective Date of this Agreement.
1. 10 "Termination of Employment" means that the Executive ceases to be
employed by the Company for any reason, voluntary or involuntary, other than by
reason of a leave of absence approved by the Company.
1.11 "Benefit Amount" means $45,500 (Forty Five Thousand Five Hundred
Dollars). Commencing at the end of the first Plan Year, and each Plan Year
thereafter, the Benefit Amount shall be increased four percent (4%) from the
previous Plan Year.
1.12 "Cause" means: (i) fraud; (ii) embezzlement; (iii) conviction of the
Executive of any felony; (iv) dereliction of duties; or (v) a material breach
of, or the willful failure or refusal by the Executive to perform and discharge
the Executive's duties, responsibilities and obligations under this Agreement;
(vi) any act of moral turpitude or willful misconduct by the Executive intended
to result in personal enrichment of the Executive at the expense of the Company,
or any of its affiliates or which has a material adverse impact on the business
or reputation of the Company or any of its affiliates (such determination to be
made by the Board in its reasonable judgment); (vii) intentional material damage
to the property or business of the Company; (viii) gross negligence; or (ix) the
ineligibility of the Executive to perform his duties because of a ruling,
directive or other action by any agency of the United States or any state of the
United States having regulatory authority over the Company
ARTICLE 2
LIFETIME BENEFITS
2.1 Normal Retirement Benefit. Upon Termination of Employment on or after
the Normal Retirement Age for reasons other than death, the Company shall pay to
the Executive the benefit described in this Section 2.1 in lieu of any other
benefit under this Agreement.
2.1.1 Amount of Benefit. The annual benefit under this Section 2.1
the Benefit 2 Amount
2.1.2 Payment of Benefit. The Company shall pay the annual benefit
to the Executive in 12 equal monthly installments commencing with the
month following the Executive's Normal Retirement Date, paying the annual
benefit to the Executive for a period of fifteen years.
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2.2 Early Termination Benefit. Upon Early Termination, the Company shall
pay to the Executive the benefit described in this Section 2.2 in lieu of any
other benefit under this Agreement.
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is the
Early Termination Annual Benefit set forth in Schedule A for the Plan Year
ending immediately prior to the Early Termination Date, determined by
vesting the Executive in 10 percent of the Accrual Balance set forth in
Schedule A for the first Plan Year and an additional 10 percent of said
amount for each succeeding year thereafter until the Executive becomes 100
percent vested in the Accrual Balance. Any increase in the annual benefit
under Section 2.1.1 shall require the recalculation of this benefit on
Schedule A. This benefit is determined by calculating a fifteen-year fixed
annuity from the Accrual Balance, crediting interest on the unpaid balance
at an annual rate of seven and one-half percent, compounded monthly.
2.2.2 Payment of Benefit. The Company shall pay the annual benefit
to the Executive in 12 equal monthly installments commencing with the
month following the Normal Retirement Age, paying the annual benefit to
the Executive for a period of fifteen years.
2.3 Disability Benefit. If the Executive terminates employment due to
Disability prior to Normal Retirement Age, the Company shall pay to the
Executive the benefit described in this Section 2.3 in lieu of any other benefit
under this Agreement.
2.3.1 Amount of Benefit. The benefit under this Section 2 3 is the
Disability Annual Benefit set forth in Schedule A for the Plan Year ending
immediately prior to the date in which the Termination of Employment
occurs (except during the first Plan Year, the benefit is the amount set
forth for Plan Year 1), determined by vesting the Executive in 100 percent
of the Accrual Balance. Any increase in the annual benefit under Section
2.1.1 would require the recalculation of the Disability benefit on
Schedule A. This benefit is determined by calculating an fifteen-year
fixed annuity from the Accrual Balance crediting interest on the unpaid
balance at an annual rate of seven and one-half percent, compounded
monthly.
2.3.2 Payment of Benefit. The Company shall pay the annual benefit
to the Executive in 12 equal monthly installments commencing with the
month following the Normal Retirement Age, paying the annual benefit to
the Executive for a period of fifteen years.
2.4 Change of Control Benefit. Upon Termination of Employment following a
Change of Control, the Company shall pay to the Executive the benefit described
in this Section 2.4 in lieu of any other benefit under this Agreement.
2.4.1 Amount of Benefit. The benefit under this Section 2.4 is the
Change of Control Annual Benefit set forth in Schedule A for the Plan Year
ending immediately prior to the date in which Termination of Employment
occurs (except during the first
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Plan Year, the benefit is the amount set forth for Plan Year 1),
determined by vesting the Executive in the -Benefit Amount calculated as
if the Executive had remained in the employment of the Company until the
Normal Retirement Age.
2.4.2 Payment of Benefit. The Company shall pay the annual benefit
to the Executive in 12 equal monthly installments commencing with the
month following the Normal Retirement Age, paying the annual benefit to
the Executive for a period of fifteen years.
ARTICLE 3
DEATH BENEFITS
If the Executive dies prior to the expiration of this Agreement, the
Company shall pay to the Executive's beneficiary a benefit equal to the accrual
balance set forth on Schedule A for the Plan Year most recently completed prior
to the Executive's death, in a lump sum, within 60 days following the
Executive's death. This benefit shall be paid in lieu of the Lifetime Benefits
of Article 2.
ARTICLE 4
BENEFICIARIES
4.1 Beneficiary Designations. The Executive shall designate a beneficiary
by filing a written designation with the Company. The Executive may revoke or
modify the designation at any time by filing a new designation. However,
designations will only be effective if signed by the Executive and received by
the Company during the Executive's lifetime. 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. If the Executive dies without a valid
beneficiary designation, all payments shall be made to the Executive's estate.
4.2 Facility of Payment. If a benefit is payable to a minor, to a person
declared incompetent, or to a person incapable of handling the disposition of
his or her property, the Company may pay such benefit to the guardian, legal
representative or person having the care or custody of such minor, incompetent
person or incapable person. The Company may require proof of incompetence,
minority or guardianship as it may deem appropriate prior to distribution of the
benefit. Such distribution shall completely discharge the Company from all
liability with respect such benefit.
ARTICLE 5
GENERAL LIMITATIONS
5.1 Termination for Cause. Notwithstanding any provision of this Agreement
to the contrary, the Company shall not pay any benefit under this Agreement if
the Company terminates the Executive's employment for Cause.
5.2 Suicide or Misstatement. The Company shall not pay any benefit under
this
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Agreement if the Executive commits suicide within three years after the date of
this Agreement. In addition, the Company shall not pay any benefit under this
Agreement if the Executive has made any material misstatement of fact on an
employment application or resume provided to the Company, or on any application
for any benefits provided by the Company to the Executive.
5.3 Competition After Termination Of Employment. The Company shall not pay
any benefit, or shall cease paying benefits, under this Agreement if the
Executive, without the prior written consent of the Company, engages in, becomes
interested in, directly or indirectly, as a sole proprietor, as a partner in a
partnership, or as a substantial shareholder in a corporation, or becomes
associated with, in the capacity of employee, director, officer, principal,
agent, trustee or in any other capacity whatsoever, any other federally insured
depository institution headquartered or having a physical presence in any county
in the State of Florida in which the Company or its affiliates have a physical
presence or conduct business operations, which institution is, or may deemed to
be, competitive with any business carried on by the Company, within a period of
one (1) year following Termination of Employment. In the event the Company
determines that the Executive has violated the conditions of this Section 5.3
after receiving benefits under this Agreement, the Executive shall repay to the
Company an amount equal to the benefits paid hereunder, with interest. This
Section 5. 3 shall not be applicable in the case of Termination of Employment
following a Change in Control.
ARTICLE 6
CLAIMS AND REVIEW PROCEDURES
6.1 Claims Procedure. A Participant or beneficiary ("claimant") who has
not received benefits under the Agreement that he ox she believes should be paid
shall make a claim for such benefits as follows:
6.1.1 Initiation - Written Claim. The claimant initiates a claim by
submitting to the Company a written claim for the benefits.
6.1.2 Timing of Company Response. The Company shall respond to such
claimant within 90 days after receiving the claim. If the Company
determines that special circumstances require additional time for
processing the claim, the Company 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 Company expects to render its decision.
6.1.3 Notice of Decision. If the Company denies part or all of the
claim, the Company shall notify the claimant in writing of such denial.
The Company shall write the notification in a manner calculated to be
understood by the claimant. The notification shall set forth:
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of the Agreement on
which
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the denial is based,
(c) A description of any additional information or material
necessary for the claimant to perfect the claim and an explanation
of why it is needed,
(d) An explanation of the Agreement's review procedures and
the time limits applicable to such procedures, and.
(e) A statement of the claimant's right to bring a civil
action under ERISA Section 502(a) following an adverse benefit
determination on review.
6.2 Review Procedure. If the Company denies part or all of the claim, the
claimant shall have the opportunity for a full and fair review by the Company
of the denial, as follows:
6.2.1 Initiation - Written Request. To initiate the review, the
claimant, within 60 days after receiving the Company's notice of denial,
must file with the Company a written request for review.
6.2.2 Additional Submissions - Information Access. The claimant
shall then have the opportunity to submit written comments, documents,
records and other information relating to the claim. The Company 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.
6.2.3 Considerations on Review. In considering the review, the
Company 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.
6.2.4 Timing of Company Response. The Company shall respond in
writing to such claimant within 60 days after receiving the request for
review. If the Company determines that special circumstances require
additional time for processing the claim, the Company 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 Company expects to render its
decision.
6.2.5 Notice of Decision. The Company shall notify the claimant in
writing of its decision on review. The Company shall write the
notification in a manner calculated to be understood by the claimant. The
notification shall set forth:
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of the Agreement on
which the denial is based,
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(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(x).
ARTICLE 7
AMENDMENTS AND TERMINATION
This Agreement may be amended or terminated only by a written agreement
signed by the Company and the Executive.
ARTICLE 8
MISCELLANEOUS
8.1 Binding Effect. This Agreement shall bind the Executive and the
Company, and their beneficiaries, survivors, executors, successors,
administrators and transferees.
8.2 No Guarantee of Employment. This Agreement is not an employment policy
or contract. It does not give the Executive the right to remain an employee of
the Company, nor does it interfere with the Company's right to discharge the
Executive. It also does not require the Executive to remain an employee nor
interfere with the Executive's right to terminate employment at any time.
8.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
8.4 Reorganization. The Company shall not merge or consolidate into or
with another company, or reorganize, or sell substantially all of its assets to
another company, firm, or person unless such succeeding or continuing company,
firm, or person agrees to assume and discharge the obligations of the Company
under this Agreement. Upon the occurrence of such event, the term "Company" as
used in this Agreement shall be deemed to refer to the successor or survivor
company.
8.5 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
8.6 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the State of Florida, except to the extent preempted by
the laws of the United States of America.
8.7 Unfunded Arrangement. The Executive and beneficiary are general
unsecured creditors of the Company for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Company to pay such
benefits. The rights to benefits are not
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subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment, or garnishment by creditors. Any insurance on
the Executive's life is a general asset of the Company to which the Executive
and beneficiary have no preferred or secured claim.
8.8 Entire Agreement. This Agreement constitutes the entire agreement
between the Company 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.
8.9 Administration and Record-keeping Authority. Except as otherwise
specifically provided herein, the Company shall have the sole responsibility for
and the sole control of the operation, administration, and record-keeping of
this Agreement and shall have the power and authority to take all action and to
make all decisions and interpretations that may be necessary or appropriate in
order to administer and operate the Agreement, including, without limiting the
generality of the foregoing, the power, duty, and responsibility to:
(i) Resolve and determine all disputes or questions arising under
the Agreement, including the power to determine the rights of
the Participant and beneficiaries and their respective
benefits, and to remedy any ambiguities, inconsistencies, or
omissions in the Agreement;
(ii) Adopt such rules of procedure and regulations as in its
opinion may be necessary for the proper and efficient
administration of the Agreement and as are consistent with the
Agreement;
(iii) Implement the Agreement in accordance with its terms;
(iv) Establish and revise the method of accounting for the
Agreement; and
(v) Maintain a record of benefit payments.
8.10 Named Fiduciary. The Company shall be the named fiduciary and plan
administrator under this Agreement. It may delegate to others certain aspects of
the management and operational responsibilities including the employment of
advisors and the delegation of ministerial duties to qualified individuals.
IN WITNESS WHEREOF, the Executive and the Company have signed this
Agreement.
EXECUTIVE: COMPANY:
Southern Community Bank
By: /s/ Xxxxxx X. Xxxxxx
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/s/ Xxxxxx Xxxxxx Title: Director
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Xxxxxx Xxxxxx
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