Exhibit 10.8
EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN
EXECUTIVE AGREEMENT
THIS AGREEMENT is made and entered into this 15th day of November, 2001,
by and between the Bank of Granite, a bank organized and existing under the laws
of the State of North Carolina (hereinafter referred to as the "Bank"), and
Xxxxx X. Xxxxxxx, an Executive of the Bank (hereinafter referred to as the
"Executive").
WHEREAS, the Executive is now in the employ of the Bank and has for many
years faithfully served the Bank. It is the consensus of the Board of Directors
(hereinafter referred to as the "Board") that the Executive's services have been
of exceptional merit, in excess of the compensation paid and an invaluable
contribution to the profits and position of the Bank in its field of activity.
The Board further believes that the Executive's experience, knowledge of
corporate affairs, reputation and industry contacts are of such value, and the
Executive's continued services so essential to the Bank's future growth and
profits, that it would suffer severe financial loss should the Executive
terminate their services;
ACCORDINGLY, the Board has adopted the Bank of Granite Executive
Supplemental Retirement Plan (hereinafter referred to as the "Executive Plan")
and it is the desire of the Bank and the Executive to enter into this Agreement
under which the Bank will agree to make certain payments to the Executive upon
the Executive's retirement or to the Executive's beneficiary(ies) in the event
of the Executive's death pursuant to the Executive Plan;
FURTHERMORE, it is the intent of the parties hereto that this Executive
Plan be considered an unfunded arrangement maintained primarily to provide
supplemental retirement benefits for the Executive, and be considered a
non-qualified benefit plan for purposes of the Employee Retirement Security Act
of 1974, as amended ("ERISA"). The Executive is fully advised of the Bank's
financial status; and
NOW THEREFORE, in consideration of services the Executive has performed in
the past and those to be performed in the future, and based upon the mutual
promises and covenants herein contained, the Bank and the Executive agree as
follows:
I. DEFINITIONS
A. Effective Date:
The Effective Date of the Executive Plan shall be August 9, 2001.
B. Plan Year:
Any reference to the "Plan Year" shall mean a calendar year from
January 1st to December 31st. In the year of implementation, the
term "Plan Year" shall mean the period from the Effective Date to
December 31st of the year of the Effective Date.
C. Retirement Date:
Retirement Date shall mean retirement from service with the Bank
that becomes effective on the first day of the calendar month
following the month in which the Executive reaches age sixty-five
(65) or such later date as the Executive may actually retire.
D. Early Retirement Date:
Early Retirement Date shall mean a retirement from service which is
effective prior to the Normal Retirement Age stated herein, provided
the Executive has attained age fifty (50) and has completed seven
(7) full years of service with the Bank from the date of first
service subsequent to the Executive attaining age eighteen (18).
E. Termination of Service:
Termination of Service shall mean the Executive's voluntary
resignation of service by the Executive or the Bank's discharge of
the Executive without cause, prior to the Early Retirement Date
(Subparagraph I [D]) or Normal Retirement Age (Subparagraph I [J]).
F. Index Retirement Benefit:
The Index Retirement Benefit for each Executive in the Executive
Plan for each Plan Year shall be equal to the excess (if any) of the
Index (Subparagraph I [G]) for that Plan Year over the Opportunity
Cost (Subparagraph I [H]) for that Plan Year, divided by a factor
equal to 1.10 minus the marginal tax rate.
G. Index:
The Index for any Plan Year shall be the aggregate annual after-tax
income from the life insurance contract(s) described hereinafter as
defined by FASB Technical Bulletin 85-4. This Index shall be applied
as if such insurance contract(s) were purchased on the Effective
Date of the Executive Plan.
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Insurance Company: Jefferson Pilot Life Insurance Company
Policy Form: Flexible Premium Adjustable Life
Policy Name: ESP VI
Insured's Age and Sex: 46, Male
Riders: None
Ratings: None
Option: Level
Face Amount: $281,000
Premiums Paid: $100,250
Number of Premium Payments: Single
Assumed Purchase Date: August 9, 2001
Insurance Company: Mass Mutual Life Insurance Company
Policy Form: Adjustable Life
Policy Name: Strategic Life Executive
Insured's Age and Sex: 47, Male
Riders: None
Ratings: None
Option: Level
Face Amount: $294,735
Premiums Paid: $100,250
Number of Premium Payments: Single
Assumed Purchase Date: August 9, 2001
If such contracts of life insurance are actually purchased by the
Bank, then the actual policies as of the dates they were actually
purchased shall be used in calculations under this Executive Plan.
If such contracts of life insurance are not purchased or are
subsequently surrendered or lapsed, then the Bank shall receive
annual policy illustrations that assume the above-described policies
were purchased or had not subsequently surrendered or lapsed. Said
illustration shall be received from the respective insurance
companies and will indicate the increase in policy values for
purposes of calculating the amount of the Index.
In either case, references to the life insurance contracts are
merely for purposes of calculating a benefit. The Bank has no
obligation to purchase such life insurance and, if purchased, the
Executive and the Executive's beneficiary(ies) shall have no
ownership interest in such policy and shall always have no greater
interest in the benefits under this Executive Plan than that of an
unsecured creditor of the Bank.
H. Opportunity Cost:
The Opportunity Cost for any Plan Year shall be calculated by taking
the sum of the amount of premiums for the life insurance policies
described in the definition of "Index" plus the amount of any
after-tax benefits paid to the Executive pursuant to the Executive
Plan (Paragraph II hereinafter)
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plus the amount of all previous years' after-tax Opportunity Cost,
and multiplying that sum by the average after tax yield of a
one-year Treasury xxxx.
I. Change of Control:
Change of Control means the cumulative transfer of more than fifty
percent (50%) of the voting stock of the Bank or its owners from the
Effective Date of this Executive Plan. For the purposes of this
Executive Plan, transfers on account of deaths or gifts, transfers
between family members or transfers to a qualified retirement plan
maintained by the Bank shall not be considered in determining
whether there has been a Change of Control.
J. Normal Retirement Age:
Normal Retirement Age shall mean the date on which the Executive
attains age sixty-five (65).
K. Benefit Accounting:
The Bank shall account for the benefit provided herein using the
regulatory accounting principles of the Bank's primary federal
regulator. The Bank shall establish an accrued liability retirement
account for the Executive into which appropriate reserves shall be
accrued.
II. INDEX BENEFITS
A. Retirement Benefits:
Subject to Subparagraph II (E) hereinafter, an Executive who remains
in the employ of the Bank until the Normal Retirement Age
(Subparagraph I [J]) shall be entitled to receive an annual benefit
amount equal to the amount set forth in Exhibit A-1. Said payments
shall be made annually and shall commence thirty (30) days following
the Executive's retirement and shall continue each Plan Year until
the Executive attains age seventy-five (75). Upon completion of the
aforestated payments and commencing subsequent thereto and subject
to Subparagraph II (A) (i) hereinbelow, the Index Retirement Benefit
(Subparagraph I [F]) for each Plan Year subsequent to the year in
which the Executive attains age seventy-five (75), and including the
remaining portion of the Plan Year in which the Executive attains
age seventy-five (75) shall be paid to the Executive until the
Executive's death.
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(i) The Index Retirement Benefit Adjustment:
The Index Retirement Benefit payment as set forth
hereinabove for the first Plan Year subsequent to the
Executive attaining age seventy-five (75) shall be
adjusted according to a number equal to the aggregate of
the Index Retirement Benefit (Subparagraph I [F]) for
each Plan Year from the Effective Date of this agreement
until the Plan Year the Executive attains age
seventy-five (75) over the aggregate of the benefit
payments the Executive actually received under the terms
of this Executive Plan through that date. For example,
if the Executive retires at age sixty-five (65) and the
aggregate annual benefits received by the Executive
until the Plan Year the Executive attains age
seventy-five (75) were $900,000.00, and the aggregate
Index Retirement Benefits for each Plan Year from the
Effective Date of this agreement to the Plan Year the
Executive's attains age seventy-five (75) were
$1,000,000.00 then the Executive's Index Retirement
Benefit in the first Plan Year said payment is payable
to the Executive would be increased by $100,000.00. If
said number is a deficit, then the Index Retirement
Benefit for the first Plan Year said payment is payable
to the Executive and each subsequent Plan Year's benefit
(if necessary) shall be reduced until the entire deficit
has been recovered by the Bank. For each year
thereafter, the Index Retirement Benefit payment shall
be paid as set forth in Subparagraph I (E). For example,
if the Executive retires at age sixty-five (65) and the
aggregate annual benefits to be received by the
Executive until the Plan Year the Executive attains age
seventy-five (75) were $1,000,000.00, and the aggregate
Index Retirement Benefits for each Plan Year from the
Effective Date of this agreement to the Plan Year the
Executive attains age seventy-five (75) were $900,000.00
and the Executive's Index Retirement Benefit was
$90,000.00 in the first year, then the Executive would
not receive any Index Retirement Benefit in the first
year, and the second years' Index Retirement benefit
would be reduced by $10,000.00.
B. Early Retirement:
Subject to Subparagraph II (E), should the Executive elect Early
Retirement or be discharged without cause by the Bank subsequent to
the Early Retirement Date [Subparagraph I (D)], the Executive shall
be entitled to receive the annual benefit set forth in Exhibit A-2
reduced by the full number of years the Executive retires early
prior to Normal Retirement Age, times six and sixty seven one
hundredths percent (6.67%) (For example, if Executive retires at age
61, the annual benefit set forth in Exhibit A-2 shall be reduced by
26.68%: 61-65 = 4 X 6.67%=26.68%.) Said payments shall be made
annually and shall commence thirty (30) days following the
Executive's early retirement and shall continue until the Plan
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Year in which the Executive attains age seventy-five (75). Upon
completion of the aforestated payments and commencing subsequent
thereto and subject to Subparagraph II (A) (i) hereinabove, the
vested percentage set forth hereinabove of the Index Retirement
Benefit for each Plan Year subsequent to the year in which the
Executive attains age seventy-five (75), and including the remaining
portion of the Plan Year in which the Executive attains age
seventy-five (75), shall be paid to the Executive until the
Executive's death.
C. Termination of Service:
Subject to Subparagraph II (E), should an Executive suffer a
Termination of Service subsequent to three (3) full years of service
with the Bank from the Executive attaining age eighteen (18), the
Executive shall be entitled to receive the percentage set forth
hereinbelow that corresponds to the number of full years the
Executive has served the Bank subsequent to the Executive attaining
age eighteen (18), times the annual benefit set forth in Exhibit
A-1. Said payments shall commence thirty (30) days following the
Executive's Normal Retirement Age (Subparagraph I [J]) and shall
continue until the Executive attains age seventy-five (75). Upon
completion of the aforestated payments and commencing subsequent
thereto and subject to Subparagraph II (A) (i) hereinabove the Index
Retirement Benefit for each Plan Year subsequent to the year in
which the Executive attains seventy-five (75), and including the
remaining portion of the Plan Year in which the Executive attains
age seventy-five (75), shall be paid to the Executive until the
Executive's death.
Years of Vesting Percentage
Service (to a maximum of 100%)
------- ----------------------
0-2 0%
3 20%
4 40%
5 60%
6 80%
7 or more 100%
D. Death:
If the Executive dies while there is a balance in the Executive's
accrued liability retirement account, then the unpaid balance shall
be paid in a lump sum to the individual or individuals designated in
writing by the Executive and filed with the Bank. In the absence of
or a failure to designate a beneficiary, the unpaid balance shall be
paid in a lump sum to the personal representative of the Executive's
estate. If, upon death, the Executive shall have received the total
balance of the Executive's accrued liability retirement account,
then no further benefit shall be due hereunder.
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In any event, upon the death of the Executive, the Executive's
beneficiary shall not be entitled to receive any Index Retirement
Benefit.
E. Termination of Service and Discharge for Cause:
The Bank may elect to terminate the Officer "for cause" immediately
upon written notice to the Officer. For purposes of this Agreement,
"for cause" shall mean (a) any dishonest, illegal or other act of
moral turpitude (such as theft, fraud or embezzlement) by the
Officer which is materially detrimental to the interest and
well-being of the Bank, (b) the conviction of a felony, (c) the
unreasonable failure or refusal of the Officer to perform to the
best of the Officer's ability on a reasonable basis the Officer's
duties hereunder, or (d) any violation by the Officer of any state
or federal law, rule or regulation relating to banking, financial
institutions or securities laws, the violation of which would be
materially detrimental to the interest and well-being of the Bank.
Should the Executive suffer a Termination of Service prior to three
(3) full years of service subsequent to the Executive attaining age
eighteen (18) or upon the termination of the Officer "for cause",
this Agreement and all of the Bank's obligations hereunder shall
terminate immediately, except for obligations which have accrued
prior thereto as provided in Subparagraphs II (D) and (F) in the
case of the Officer's death or disability.
F. Disability Benefit:
In the event the Executive becomes disabled prior to any Termination
of Service, and the Executive's employment is terminated because of
such disability, the Executive, upon submission to the Bank of
written documentation and verification of disability, shall be
entitled to one hundred percent (100%) of the benefits in
Subparagraph II (A) above. Such benefit shall begin at the
Executive's Normal Retirement Age as set forth in said Subparagraph
II (A). Disability shall be defined as the Executive not being able
to perform the duties of the Executive's own job and shall be as
further defined in the Bank's long term disability policy in effect
at the time of said disability. If no such policy exists at the time
of disability, then disability shall be as defined in the long term
disability policy last in effect. If there is a dispute regarding
whether the Executive is disabled, such dispute shall be resolved by
a physician selected by the Bank and such resolution shall be
binding upon all parties to this Agreement.
G. Death Benefit:
Except as set forth above, there is no death benefit provided under
this Agreement.
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III. RESTRICTIONS UPON FUNDING
The Bank shall have no obligation to set aside, earmark or entrust any
fund or money with which to pay its obligations under this Executive Plan.
The Executive, their beneficiary(ies), or any successor in interest shall
be and remain simply a general creditor of the Bank in the same manner as
any other creditor having a general claim for matured and unpaid
compensation.
The Bank reserves the absolute right, at its sole discretion, to either
fund the obligations undertaken by this Executive Plan or to refrain from
funding the same and to determine the extent, nature and method of such
funding. Should the Bank elect to fund this Executive Plan, in whole or in
part, through the purchase of life insurance, mutual funds, disability
policies or annuities, the Bank reserves the absolute right, in its sole
discretion, to terminate such funding at any time, in whole or in part. At
no time shall any Executive be deemed to have any lien nor right, title or
interest in or to any specific funding investment or to any assets of the
Bank.
If the Bank elects to invest in a life insurance, disability or annuity
policy upon the life of the Executive, then the Executive shall assist the
Bank by freely submitting to a physical exam and supplying such additional
information necessary to obtain such insurance or annuities.
IV. CHANGE OF CONTROL
Upon a Change of Control (Subparagraph I [I]), if the Executive
subsequently suffers a Termination of Service (Subparagraph I [E]), then
the Executive shall receive the benefits promised in this Executive Plan
upon attaining Normal Retirement Age, as if the Executive had been
continuously employed by the Bank until the Executive's Normal Retirement
Age. The Executive will also remain eligible for all promised death
benefits in this Executive Plan. In addition, no sale, merger, or
consolidation of the Bank or its owners shall take place unless the new or
surviving entity expressly acknowledges the obligations under this
Executive Plan and agrees to abide by its terms.
V. MISCELLANEOUS
A. Alienability and Assignment Prohibition:
Neither the Executive, nor the Executive's surviving spouse, nor any
other beneficiary(ies) under this Executive Plan shall have any
power or right to transfer, assign, anticipate, hypothecate,
mortgage, commute, modify or otherwise encumber in advance any of
the benefits payable hereunder nor shall any of said benefits be
subject to seizure for the payment of any debts, judgments, alimony
or separate maintenance owed by the Executive or the Executive's
beneficiary(ies), nor be transferable by operation of law
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in the event of bankruptcy, insolvency or otherwise. In the event
the Executive or any beneficiary attempts assignment, commutation,
hypothecation, transfer or disposal of the benefits hereunder, the
Bank's liabilities shall forthwith cease and terminate.
B. Binding Obligation of the Bank and any Successor in Interest:
The Bank or its owners shall not merge or consolidate into or with
another bank or sell substantially all of its assets to another
bank, firm or person until such bank, firm or person expressly
agrees, in writing, to assume and discharge the duties and
obligations of the Bank under this Executive Plan. This Executive
Plan shall be binding upon the parties hereto, their successors,
beneficiaries, heirs and personal representatives.
C. Amendment or Revocation:
It is agreed by and between the parties hereto that, during the
lifetime of the Executive, this Executive Plan may be amended or
revoked at any time or times, in whole or in part, by the mutual
written consent of the Executive and the Bank.
D. Gender:
Whenever in this Executive Plan words are used in the masculine or
neuter gender, they shall be read and construed as in the masculine,
feminine or neuter gender, whenever they should so apply.
E. Effect on Other Bank Benefit Plans:
Nothing contained in this Executive Plan shall affect the right of
the Executive to participate in or be covered by any qualified or
non-qualified pension, profit-sharing, group, bonus or other
supplemental compensation or fringe benefit plan constituting a part
of the Bank's existing or future compensation structure.
F. Headings:
Headings and subheadings in this Executive Plan are inserted for
reference and convenience only and shall not be deemed a part of
this Executive Plan.
G. Applicable Law:
The validity and interpretation of this Agreement shall be governed
by the laws of the State of North Carolina.
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H. 12 X.X.X.xx. 1828 (k):
Any payments made to the Executive pursuant to this Executive Plan,
or otherwise, are subject to and conditioned upon their compliance
with 12 U.S.C. ss. 1828(k) or any regulations promulgated
thereunder.
I. Partial Invalidity:
If any term, provision, covenant, or condition of this Executive
Plan is determined by an arbitrator or a court, as the case may be,
to be invalid, void, or unenforceable, such determination shall not
render any other term, provision, covenant, or condition invalid,
void, or unenforceable, and the Executive Plan shall remain in full
force and effect notwithstanding such partial invalidity.
J. Employment:
No provision of this Executive Plan shall be deemed to restrict or
limit any existing employment agreement by and between the Bank and
the Executive, nor shall any conditions herein create specific
employment rights to the Executive nor limit the right of the
Employer to discharge the Executive with or without cause. In a
similar fashion, no provision shall limit the Executive's rights to
voluntarily sever the Executive's employment at any time.
VI. ERISA PROVISION
A. Named Fiduciary and Plan Administrator:
The "Named Fiduciary and Plan Administrator" of this Executive Plan
shall be Bank of Granite, until its resignation or removal by the
Board. As Named Fiduciary and Plan Administrator, the Bank shall be
responsible for the management, control and administration of the
Executive Plan. The Named Fiduciary may delegate to others certain
aspects of the management and operation responsibilities of the
Executive Plan including the employment of advisors and the
delegation of ministerial duties to qualified individuals.
B. Claims Procedure and Arbitration:
In the event a dispute arises over benefits under this Executive
Plan and benefits are not paid to the Executive (or to the
Executive's beneficiary(ies) in the case of the Executive's death)
and such claimants feel they are entitled to receive such benefits,
then a written claim must be made to the Named Fiduciary and Plan
Administrator named above within sixty (60) days from the date
payments are refused. The Named Fiduciary
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and Plan Administrator shall review the written claim and if the
claim is denied, in whole or in part, they shall provide in writing
within sixty (60) days of receipt of such claim the specific reasons
for such denial, reference to the provisions of this Executive Plan
upon which the denial is based and any additional material or
information necessary to perfect the claim. Such written notice
shall further indicate the additional steps to be taken by claimants
if a further review of the claim denial is desired. A claim shall be
deemed denied if the Named Fiduciary and Plan Administrator fail to
take any action within the aforesaid sixty-day period.
If claimants desire a second review they shall notify the Named
Fiduciary and Plan Administrator in writing within sixty (60) days
of the first claim denial. Claimants may review this Executive Plan
or any documents relating thereto and submit any written issues and
comments it may feel appropriate. In their sole discretion, the
Named Fiduciary and Plan Administrator shall then review the second
claim and provide a written decision within sixty (60) days of
receipt of such claim. This decision shall likewise state the
specific reasons for the decision and shall include reference to
specific provisions of the Plan Agreement upon which the decision is
based.
If claimants continue to dispute the benefit denial based upon
completed performance of this Executive Plan or the meaning and
effect of the terms and conditions thereof, then claimants may
submit the dispute to an arbitrator for final arbitration. The
arbitrator shall be selected by mutual agreement of the Bank and the
claimants. The arbitrator shall operate under any generally
recognized set of arbitration rules. The parties hereto agree that
they and their heirs, personal representatives, successors and
assigns shall be bound by the decision of such arbitrator with
respect to any controversy properly submitted to it for
determination.
Where a dispute arises as to the Bank's discharge of the Executive
"for cause," such dispute shall likewise be submitted to arbitration
as above described and the parties hereto agree to be bound by the
decision thereunder.
VII. TERMINATION OR MODIFICATION OF AGREEMENT BY REASON OF CHANGES IN THE LAW,
RULES OR REGULATIONS
The Bank is entering into this Agreement upon the assumption that certain
existing tax laws, rules and regulations will continue in effect in their
current form. If any said assumptions should change and said change has a
detrimental effect on this Executive Plan, then the Bank reserves the
right to terminate or modify this Agreement accordingly. Upon a Change of
Control (Subparagraph I [I]), this paragraph shall become null and void
effective immediately upon said Change of Control.
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IN WITNESS WHEREOF, the parties hereto acknowledge that each has carefully read
this Agreement and executed the original thereof on the first day set forth
hereinabove, and that upon execution, each has received a conforming copy.
BANK OF GRANITE
Granite Falls, North Carolina
/s/ Xxxxxx Xxxxxx-Xxxxxx By: /s/ Xxx X Xxxxxxxx Xx. V.P.
------------------------------------ ------------------------------------
Witness Title
/s/ Xxxxxx Xxxxxx-Xxxxxx /s/ Xxxxx X. Xxxxxxx
------------------------------------ ------------------------------------
Witness Xxxxx X. Xxxxxxx
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BENEFICIARY DESIGNATION FORM
FOR THE EXECUTIVE SUPPLEMENTAL
RETIREMENT PLAN AGREEMENT
PRIMARY DESIGNATION:
Name Address Relationship
---- ------- ------------
Xxxxx Xxxxxx Xxxxxxx 000 00xx Xxx Xx XX, Xxxxxxx, XX Spouse
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SECONDARY (CONTINGENT) DESIGNATION:
Ashley Xxxxx Xxxxxxx (50%) Daughter
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Xxxxxxx Xxxxx Xxxxxxx (50%) Daughter
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All sums payable under the Executive Supplemental Retirement Plan Executive
Agreement by reason of my death shall be paid to the Primary Beneficiary, if he
or she survives me, and if no Primary Beneficiary shall survive me, then to the
Secondary (Contingent) Beneficiary.
/s/ Xxxxx X. Xxxxxxx November 15, 2001
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Xxxxx X. Xxxxxxx Date
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