Exhibit 10.58
CENTURA BANKS, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
UNDER THE
CENTURA BANKS, INC. OMNIBUS SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
[Form for Bank Employee]
This AGREEMENT, made effective this 27th day of December, 1999, by and
among Centura Banks, Inc., a North Carolina corporation having its principal
place of business in Rocky Mount, North Carolina ("Centura"), Centura Bank (the
"Bank"), a subsidiary of Centura, and Xxxxxx X. Xxxxxxxxx ("Participant"), an
employee of the Bank.
W I T N E S S E T H :
WHEREAS, Participant is a valued employee of the Bank and as such, has
performed his duties in a capable and efficient manner, resulting in substantial
growth and progress to the Bank; and
WHEREAS, the Participant is expected to perform valuable services in the
future which shall be of special importance to the Bank and for which it would
be difficult for the Bank to find a suitable replacement; and
WHEREAS, Centura has established the Centura Banks, Inc. Omnibus
Supplemental Executive Retirement Plan (the "Omnibus SERP"), the terms of which
Omnibus SERP are incorporated herein by reference; and
WHEREAS, Centura's Compensation Committee has determined that the
Participant is eligible to participate in the Omnibus SERP, and now deems it
advisable to offer to Participant certain rights and benefits under the Omnibus
SERP and this Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties hereto hereby agree as follows:
1. RETIREMENT BENEFITS. Participant may elect Early Retirement at any
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time during the ninety (90) day period beginning on his 58/th/
birthday (the "Election Period"). Participant shall not be entitled
to Retirement benefits hereunder unless he elects Early Retirement and
actually retires during the Election Period.
Subject to the provisions of this Agreement and the Omnibus SERP, upon
Participant's Early Retirement during the Election Period, Participant
shall receive a monthly Retirement benefit equal to 40% of
Participant's Final Average Monthly Compensation, payable for a period
of one hundred and eighty (180) months. For purposes of this
Agreement, "Final Average Monthly Compensation" means 1/12/th/ of the
Annual Compensation payable to Participant as of his termination of
employment. "Annual Compensation" means Participant's total
compensation to be reported on his Form W-2, annualized on
the basis of rate of pay as of Participant's termination of
employment, including bonuses and salary reduction contributions to
deferred compensation or other plans maintained by Centura.
2. DEATH BENEFITS. If Participant dies at any time before electing Early
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Retirement under Section 1 and while actively employed as a full-time
officer of the Bank, Participant's beneficiary shall receive a monthly
death benefit equal to forty percent (40%) of Participant's Final
Average Monthly Compensation at the time of his death, payable for a
period of one hundred and eighty (180) months beginning on the first
day of the month coinciding with or next following Participant's date
of death. Participant's beneficiary will not be entitled to any death
benefits under the Omnibus SERP if Participant dies by committing
suicide within two years from the date of becoming a Participant under
the Omnibus SERP and this Agreement.
If Participant's beneficiary dies before the end of the death benefit
payment period specified hereunder, the remaining payments due under
this Section 2 shall be paid to the beneficiary's estate in a lump sum
payment equivalent in value to the remaining death benefit payments.
If Participant's beneficiary predeceases Participant and Participant
does not thereafter designate a new beneficiary, upon Participant's
death a lump sum equivalent in value to the death benefit payments
hereunder shall be paid to Participant's estate. The lump sum
equivalent shall be computed using the Discount Rate in effect at the
time of computation.
3. DISABILITY BENEFITS. If, prior to Participant's electing Early
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Retirement under Section 1 and after Participant has completed at
least ten (10) years of employment with the Bank, Participant's
employment with the Bank is terminated as a result of Disability,
Participant shall receive a monthly Disability benefit in an amount
equal to (a) minus (b) below:
(a) Forty percent (40%) of Participant's Final Average Monthly
Compensation, less
(b) The amount of any monthly disability benefit payable to the
Participant under any group or individual disability income
policy sponsored by the Bank or Centura.
In the event Disability benefit payments terminate pursuant to
subsections (a), (b) or (c) of Section 6.3 of the Omnibus SERP and
before Participant has received one hundred and eighty (180) monthly
payments under this Section 3, the remaining payments shall be
recharacterized as Retirement or death benefits and shall be paid to
Participant (or his beneficiary) or estate in accordance with Section
1 or 2 of this Agreement, as the case may be) provided that the amount
of each payment to Participant shall continue to be governed by this
Section 3, and provided further that the amount of any payment
recharacterized as a death benefit shall be equal to the last payment
made to Participant before his death.
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4. EXCESS BENEFITS. The Excess Benefit provisions of Article VII of the
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Omnibus SERP
_____ Apply to Participant.
X Do not apply to Participant.
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5. DESIGNATION OF BENEFICIARIES. The Participant shall designate his or
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her beneficiary(ies) on the Beneficiary Designation Form attached
hereto and made a part hereof.
6. CHANGE IN CONTROL. Upon a change in control, as defined in Section8.
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3 of the Omnibus SERP, the Participant's rights and accrued benefits
under the Omnibus SERP and this Agreement shall be fully vested.
Accordingly:
(a) for purposes of Section 1 of this Agreement, if Participant is no
longer employed by Bank as of his 58/th/ birthday, he shall
nevertheless be entitled to elect during the Election Period to
begin receiving his Retirement Benefit. Participant's Final
Average Monthly Compensation shall be determined by reference to
his Annual Compensation as of his actual termination of
employment;
(b) for purposes of Section 2 of this Agreement, the requirement that
Participant be actively employed as a full-time officer of Bank
shall be disregarded. Participant's Final Average Monthly
Compensation shall be determined by reference to his Annual
Compensation as of his actual termination of employment; and
(c) for purposes of Section 3 of this Agreement, Participant shall be
deemed to have completed ten (10) years of employment with Bank.
If Participant is no longer employed by Bank at the time of his
Disability, he shall nevertheless be entitled to Disability
Benefits under Section 3. Participant's Final Average Monthly
Compensation shall be determined by reference to his Annual
Compensation as of his actual termination of employment.
7. TERMINATION OF EMPLOYMENT AND FORFEITURE. Prior to the occurrence of
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a change in control, as defined in Section 8.3 of the Omnibus SERP,
Centura and the Bank may terminate the Participant's employment for
"cause" as defined in paragraph 8.5 of the Omnibus SERP and upon such
termination, Participant shall forfeit all rights and benefits under
this Agreement except those benefits provided pursuant to Section 4
above and Article VII of the Omnibus SERP. Notwithstanding the
foregoing, the Participant's rights and benefits hereunder shall not
be subject to forfeiture at any time after the occurrence of an event
entitling the Participant to begin receiving benefits pursuant to
Sections 1, 2 or 3 hereunder.
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8. PLAN TERMINATION. In the event of the termination of the Plan,
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pursuant to Section 14.6 of the Plan, prior to the Participant's
death, Retirement or Disability under Sections 1, 2 or 3 hereof, the
Participant shall become fully vested in his Retirement Benefits under
Section 1 of this Agreement, and shall become entitled to payment in a
single sum of the actuarial equivalent of his Retirement Benefits
under Section 1 and his Excess Benefits under Section 4, determined
using the Discount Rate and payable as soon as administratively
possible after the termination of the Plan. In the event of the
termination of the Plan, pursuant to Section 14.6 of the Plan, after
benefit payments have commenced hereunder, the Participant (or his
beneficiaries) shall become entitled to payment in a single sum of the
actuarial equivalent of the remaining payments due hereunder,
determined using the Discount Rate and payable as soon as
administratively possible after the termination of the Plan.
9. GENERAL PROVISIONS. (a) This Agreement, together with the Omnibus
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SERP, the terms of which are incorporated herein by reference, set
forth all of the promises, agreements, conditions, understandings,
warranties, and representations between the parties with respect to
the benefits described hereunder, and there are no promises,
agreements, conditions, understandings, warranties, or
representations, oral or written, express or implied with respect to
the benefits hereunder other than as set forth in the Omnibus SERP and
this Agreement. Any modifications or any waivers of any provision
contained in this Agreement shall not be valid unless made in writing
and signed by the person or persons sought to be bound by such waiver
or modification.
(b) All benefits hereunder shall be payable from the general assets of the
Bank. All costs or expenses in connection with the administration of this
Agreement shall be borne by the Bank.
(c) The provisions of this Agreement are severable and if any one or more
of the provisions are determined to be illegal or otherwise unenforceable,
in whole or in part, the remaining provisions, and any partially
unenforceable provision to the extent enforceable in any jurisdiction,
shall nevertheless be binding and enforceable.
(d) The waiver by Centura of a breach by the Participant of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by the Participant.
(e) The terms and provisions of this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their successors and
assigns, including, without limitation, Participant's beneficiary, the
estate of Participant, as well as the executors, administrators, and
trustees of such estate.
(f) Participant acknowledges that he has received, read, and is familiar
with the Omnibus SERP, which contains certain additional provisions
governing the benefits granted hereunder.
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(g) The provisions of this Agreement shall be construed in accordance with
the laws of the State of North Carolina to the extent not pre-empted by the
laws of the United States of America, including ERISA.
(h) Capitalized terms used in this Agreement and not otherwise defined
herein shall have the meaning set forth in the Omnibus SERP.
(i) For purposes of this Agreement, the term "Discount Rate" means the
interest rate used from time to time for determining single sum
distributions under the Qualified Plan for the month in which a
determination is being made.
(j) This Agreement and all benefits provided hereunder shall expire on the
91st day after Participant's 58/th/ birthday unless Participant has elected
Early Retirement within the Election Period or Participant's benefits have
otherwise commenced under Sections 2 or 3.
(k) Any amounts withdrawn from the cash surrender values of insurance
policies by the owner thereof, and any amounts paid to the owner or the
owner's beneficiary by reason of the Participant's death, pursuant to and
in accordance with the Split Dollar Agreement between Centura Banks, Inc.
and its Subsidiaries and the Participant, and dated as of ___________,
____, as the same may hereafter be amended from time to time (the "Split
Dollar Agreement"), shall offset and reduce, dollar for dollar, amounts
payable hereunder including amounts payable under paragraph 4, above.
Participant acknowledges that any policies obtained under the above-
referenced Split Dollar Agreement do not fund any of the benefits to which
he or his beneficiary may become entitled under this Agreement and that any
such policy shall not be held or deemed to be held under any trust for the
benefit of the Participant, or his beneficiary, or to be collateral
security for the performance of the obligations of Centura or the Bank, but
shall be and remain subject to the claims of the general creditors of
Centura and/or the Bank.
(l) To the extent benefits upon the Participant's death are payable under
this Agreement, in a form other than a single lump sum payment, the offset
and reduction required by paragraph 9(k) above shall be based on the lump
sum actuarial equivalent of any remaining installment or annuity payments
due hereunder, determined using the Discount Rate. The owner's death
benefits paid to the owner or the owner's beneficiary under the terms of
the Split Dollar Agreement shall offset and reduce the amount of each
remaining installment or annuity payment due hereunder, in direct
proportion to the offset and reduction to the lump sum actuarial
equivalent.
(m) In accordance with Section 3.3 of the Omnibus SERP, the Committee
shall have the exclusive right to interpret, construe and administer the
Omnibus SERP and this Agreement. The Committee's authority and
responsibility shall include, and shall not be limited to, the calculation
of any offsets provided under the terms of Sections 1, 2, 3 or 4 hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
CENTURA BANKS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Vice Chairman
ATTEST:
/s/ Xxxx X. Xxxxxxx
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Secretary
(Corporate Seal)
CENTURA BANK
By: /s/ Xxxxx X. Xxxxxxxx
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Vice Chairman
ATTEST:
/s/ Xxxx X. Xxxxxxx
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Secretary
(Corporate Seal)
PARTICIPANT
/s/ Xxxxxx X. Xxxxxxxxx (SEAL)
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