Exhibit 10.12
SUPPLEMENTAL INCOME AGREEMENT
AGREEMENT entered into as of the 1st day of October, 1989, between Xxxxxxx
Savings and Loan, a domestic Corporation having its principal office in
Waynesville, North Carolina, (hereinafter referred to as the Company) and Xxxx
X. Xxxxxxx (hereinafter referred to as the Employee).
WITNESSETH:
WHEREAS, the Employee has been an Employee of the Company since 6-20-66, and,
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WHEREAS the value of the Employee is such that assurance of his continued
service is essential to the future growth and profits of the Company; and,
WHEREAS, the Company desires to retain the service of the Employee, and realizes
that if the Employee were to terminate his employment it would suffer a
substantial financial loss;
NOW THEREFORE, in consideration of the premises contained herein, the parties
hereto mutually agree as follows:
1. Remuneration: During the period of the Employee's employment with the
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Company, the Company will pay the Employee for services to be
rendered:
A. Cash amounts at rates and times mutually agreed upon; and,
B. Additional amounts, payment of which will be deferred
pursuant to the terms hereinafter set forth.
2. Retirement Benefit: Upon the attainment of the first day of the month
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following the Employee's 65th birthday, the Company will commence to
pay the Employee $770.09 monthly for a continuous period of fifteen
years. Such initial monthly income shall be increased 5% for each
additional full year of service of the employee, beginning after the
first year from the date of this agreement, except that there will be
no increases in benefits after the attainment of age 65. In the event
the employee should die after becoming entitled to receive said
monthly installments but before any or all of said installments have
been paid, the Company will pay or will continue to pay said
installments to such beneficiaries as the Employee has directed by
filing with the Company a notice in writing. In the event of the
death of the last named beneficiary before all the unpaid payments
have been made, the balance of any amount which remains unpaid at said
death shall be commuted on the basis of eight percent per annum
compounded interest and shall be paid in a single sum to the executor
or administrator of the estate of the last named beneficiary to die.
In the absence of such beneficiary designation, any amount remaining
unpaid at the Employee's death shall be commuted on the basis of eight
percent per annum
compound interest and shall be paid in a single sum to the executor or
administrator of the Employee's estate.
3. Death Benefit: Should the Employee die prior to the attainment of the
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first day of the month following his birthday, the Company (beginning
at a date to be determined by the Company but within six months from
the date of such death) will commence to pay $770.09 monthly for a
continuous period of fifteen years to such beneficiary or
beneficiaries as the Employee has directed by filing with the Company
a notice in writing. Such initial monthly income shall be increased
5% for each additional full year of service of the employee beginning
after the first year from the date of this agreement, except that
there will be no increases in benefits after the attainment of age 65.
Irrespective of the above, however, if the Employee dies as a result
of suicide within two years of the execution of this agreement, no
death benefit shall be payable. In the event of the death of the last
named beneficiary before any amount which remains unpaid at said death
shall be commuted on the basis of eight percent per annum compound
interest and shall be paid in a single sum to the executor or
administrator of the estate of the last named beneficiary to die. In
the absence of any such beneficiary designation, any amount remaining
unpaid at the Employee's death shall be commuted on the basis of eight
percent per annum compound interest and shall be paid in a single sum
to the executor or administrator of the Employee's estate.
4. Termination of Employment:
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If the Employee terminates his Employment for reasons other than death
or the attainment of his 65th birthday, he or his beneficiary, as
applicable, shall be entitled upon the attainment of his 65th
birthday, or his prior death, to the retirement benefits stated in
Section 2 of this Agreement multiplied by a fraction the numerator of
which is the number of full years of employment of the employee to his
termination date and the denominator of which is the number of full
years of employment of the employee to his age 65.
5. Forfeiture Provisions:
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A. During the period the retirement benefit is payable to the
Employee under Section 2 of this Agreement, the Employee shall not
engage in business activities in Xxxxxxx County, North Carolina, which
are in competition with the Company without first obtaining the
written consent of the Company.
B. During the period the retirement payment is payable to the
Employee under Section 2 of the Agreement, the Employee shall be
available to render consulting services to the Company upon request by
an officer of the Company, but such requests shall not be made more
frequently than once each month. The Employee shall not be considered
to have breached this condition if he is unable to consult because of
his mental or physical disability.
C. Payment of the retirement benefit under this Agreement may be
terminated by the Company, if the Employee fails to comply with either
of the conditions set forth in paragraph (A) and (B) of this Section
5.
6. General Provisions:
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A. Except as otherwise provided by this Agreement, it is agreed that
neither the Employee, nor his beneficiary shall have any right to
commute, sell, assign, transfer or otherwise convey the right to
receive any payments hereunder, which payments and the right thereto
are expressly declared to be nonassignable and nontransferable.
B. The benefits payable under this Agreement shall be independent of,
and in addition to, any other employment agreements that may exist
from time to time between the parties hereto, concerning any other
compensation payable by the Company to the Employee whether as salary,
bonus, or otherwise. This Agreement shall not be deemed to constitute
a contract of employment between the parties hereto, nor shall any
provision hereof restrict the right of the Company to discharge the
Employee or restrict the right of the Employee to terminate his
employment.
C. The rights of the Employee under this Agreement and of any
beneficiary of the Employee shall be solely those of an unsecured
creditor of the Company. Any asset acquired by the Company in
connection with the liabilities assumed by it hereunder, shall not be
deemed to be held under any trust for the benefit of the Employee or
his beneficiaries or to be considered security for the performances of
the obligations of the Company but shall be, and remain, a general,
unpledged, unrestricted asset of the Company.
D. The Company hereby reserves the right to accelerate the payments
specified in Section 2, 3 and 4 above without the consent of the
employee, his estate, beneficiaries, or any other person claiming
through or under him.
E. The Company agrees that it will not merge or consolidate with any
other Company or organization, or permit its business activities to be
taken over by any other organization unless and until the succeeding
or continuing Company or other organization shall expressly assume the
rights and obligations of the Company herein set forth. The Company
further agrees that it will not cease its business activities or
terminate its existence, other than as heretofore set forth in this
Section, without having made adequate provision for the fulfilling of
its obligations hereunder.
F. This agreement shall be binding upon and inure to the benefit of
the parties, their respective legal representatives, and any
"Successor" of the Company, which shall be deemed substituted for the
Company under the terms of this Agreement. As used in this Agreement
the term "Successor" shall include any person, firm, Corporation or
other business entity which at anytime, whether by merger purchase or
otherwise, acquires all or substantially all of the Corporation's
assets or business.
G. This Agreement may be revoked or amended in whole or in part by a
writing signed by both of the parties hereto.
H. This Agreement shall be subject to and construed under the laws of
the State of North Carolina.
IN WITNESS THEREOF, the Said Company has caused this Agreement to be signed in
its Corporate name by its duly authorized officer, and impressed with its
corporate seal, attested by its secretary, and the said Employee has hereunto
set his hand and seal, all on the day and year first above written.
By: /s/ Xxxxx X. Xxxxxx
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ATTEST: /s/ Xxxx X. Xxxxxxx
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The Employee
/s/ Xxxxxxx Xxx Xxxxxxxx
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WITNESS: /s/ Xxxxxxx Xxx Xxxxxxxx
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BENEFICIARY DESIGNATION FORM
As Beneficiary to receive any death benefits payable on my behalf from Xxxxxxx
Savings and Loan, I designate the following:
NAME DATE OF BIRTH ADDRESS RELATIONSHIP
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PRIMARY:
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XxxxXxx Xxxxxxx 8/31/20 000 Xxxxx Xx. Xxxxxxxxxxx, X.X. Parent
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CONTINGENT, If Any
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Xxxxxxx X. Ruads Balaan Rd Sister
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(Note: If more than one primary beneficiary is named, the benefit will be paid
in equal shares to those living. Should the contingent beneficiaries be
eligible to receive the benefits, such benefits will be paid in equal shares to
such living contingent beneficiaries. If none of the designated beneficiaries
are living at such time as the death benefit is payable, such benefit will be
paid to the Executor or the Administrator of your Estate.)
Name of Spouse if not given above:_____________________________________________
/s/ Xxxxxxx Xxx Xxxxxxxx /s/ Xxxx X. Xxxxxxx
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Witness Signature of Employee
1-26-90
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Date
Note: The original should be retained by the Company and one copy by the
Employee.
ERISA CLAIMS PROCEDURE
CLAIMS PROCEDURE. In accord with the Employee Retirement Income Security Act
of 1974, the following claims procedure is hereby adopted by the Company as the
claims procedure for this unfunded nonqualified deferred compensation plan; and,
for the purpose of implementing such claims procedure (but not for any other
purpose) Xxxxxxx Savings and Loan is hereby designated as the named fiduciary
and plan administrator of this plan:
a. Filing of a Claim for Benefits. A participant or beneficiary of the
plan shall make a claim for the benefits provided by delivering a
written request to the plan administrator.
b. Notification to Claimant of Decision. If a claim is wholly or
partially denied, notice of the decision, meeting the requirements of
paragraph c following shall be furnished to the claimant within a
reasonable period of time after receipt of the claim by the plan
administrator.
c. Content of Notice. The plan administrator shall provide to every
claimant who is denied a claim for benefits written notice setting
forth in a manner calculated to be understood by the claimant, the
following:
(1) The specific reason or reasons for the denial;
(2) Specific reference to pertinent plan provision on which the
denial is based.
(3) A description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why any such material or information is
necessary; and,
(4) An explanation of the plan's claim review procedure, as set
forth in paragraphs d and e following.
d. Review Procedure. The purpose of the review procedure, set forth in
this paragraph and in paragraph e following, is to provide a procedure
by which a claimant under the plan may have a reasonable opportunity
to appeal a denial of a claim to the named fiduciary for a full and
fair review. To accomplish that purpose, the claimant or his duly
authorized representative:
(1) May request a review upon written application to the plan
administrator;
(2) May review pertinent plan documents; and
(3) May submit issues and comments in writing.
A claimant (or his duly authorized representative) shall request a
review by filing a written application for review with the plan
administrator at any time within sixty (60) days after receipt by the
claimant of written notice of the denial of his claim.
e. Decision on Review. The decision on review of a denied claim shall be
made in the following manner:
(1) The decision on review shall be made by the plan
administrator, who may in his discretion hold a hearing on
the denied claim. The plan administrator shall make his
decision promptly, and not later than sixty (60) days after
receipt of the request for review, unless special
circumstances (such as the need to hold a hearing) require
an
extension of time for processing, in which case a decision
shall be rendered as soon as possible, but not later than
one hundred twenty (120) days after receipt of the request
for review.
(2) The decision on review shall be in writing and shall include
specific reasons for the decisions, written in a manner
calculated to be understood by the claimant, and specific
references to the pertinent plan provisions on which the
decision is based.
AMENDMENT TO SUPPLEMENTAL INCOME AGREEMENT
AMENDMENT entered into as of the 7th day of October, 1994 between Xxxxxxx
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Savings Bank, SSB (formerly Xxxxxxx Savings and Loan Association), a domestic
Corporation having its principal office in Waynesville, North Carolina
(hereinafter referred to as the Company) and Xxxx X. Xxxxxxx (hereinafter
referred to as the Employee).
WITNESSETH:
WHEREAS the Employee entered into a Supplemental Income Agreement as of the
1/st/ day of October 1989 between Xxxxxxx Savings and Loan Association of
Waynesville, North Carolina and Xxxx X. Xxxxxxx; and
WHEREAS Sections 2 of said agreement set forth certain monthly benefits to be
paid upon the attainment of the Employee's 65/th/ Birthday and Section 3 of said
agreement set forth certain monthly benefits to be paid (beginning at a date to
be determined by the Company but within six months from the employee's death)
should the Employee die prior to the attainment of the first day of the month
following his 65/th/ birthday; and
WHEREAS the amount of the monthly benefit stated was incorrect in that it
erroneously reflected the maximum benefit that would be provided if the Employee
continued his employment to age 65 and received the yearly 5% benefit increases
when it should have reflected the initial monthly benefit before any increases
due to future years of employment; and
WHEREAS Section 5.G of said agreement provide that said agreement may be amended
in whole or in part by a writing signed by both of the parties thereto; and
WHEREAS, it is in the desire of both parties to the agreement to correct this
unintentional error by deleting the incorrect benefit amount of $770.09 monthly
stipulated in Sections 2 and 3 and replacing it with the correct benefit amount
of $336.00 monthly;
BE IT THEREFORE RESOLVED that the Supplemental Income Agreement be and is hereby
amended by deleting the incorrect benefit amount of $770.09 monthly stipulated
in Sections 2 and 3 and replacing it with the correct benefit amount of $336.00
monthly.
All other provisions of the agreement shall remain in full force and effect.
ATTEST: Xxxxxxx Savings Bank, SSB
(formerly Xxxxxxx Savings and Loan Association)
/s/ Xxxxxxx Xxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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President (Seal)
WITNESS:
/s/ Xxxx X. Xxxxxxxxx /s/ Xxxx X. Xxxxxxx
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Employee (Seal)
XXXXXXX SAVINGS BANK, INC., SSB
SUPPLEMENTAL INCOME AGREEMENT
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1998 Amendment
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WHEREAS, Xxxxxxx Savings Bank, Inc., SSB (the "Bank") entered into a
Supplemental Income Agreement (the "SIA") dated October 1, 1989, with Xxxx X.
Xxxxxxx (the "Employee"); and
WHEREAS, the Bank's Board of Directors and the Employee have determined
that it is in their respective best interests to amend the SIA in the manner set
forth herein.
NOW, THEREFORE, the SIA shall be amended as follows, pursuant to Section 6.
G thereof:
1. Section 6 of the SIA shall be amended by adding the following new
paragraph I at the end thereof:
I. Notwithstanding the provisions of paragraphs 2, 3, and 4 hereof,
any benefits that are or become payable after the closing date of a
Change in Control (as defined in the Bank's Retirement Plan for Non-
Employee Directors) shall be paid in the manner selected by the
Employee in a duly executed election in the form attached hereto as
Exhibit "A"; provided that such an election will be honored and given
effect only if it is properly made and delivered to the Bank more than
90 days before said closing date. Present value determinations, as
well as interest accruals on present value sums that are paid in
installments over a fixed period of years, shall be calculated at a
rate equal to 120% of the applicable federal rate, compounded
semiannually, as determined under Section 1274(d) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder.
The Employee may specify, on the election form attached as
Exhibit "A", the manner of payment to his beneficiary, and may at any
time or from time to time change the identity or manner of payment to
his beneficiary.
2. Nothing contained herein shall be held to alter, vary, or affect any
of the terms, provisions, or conditions of the SIA other than stated above.
Supplement Income Agreement
1998 Amendment
Page 2
WHEREFORE, the undersigned hereby approve this 1998 Amendment to the SIA.
Date of Execution: 21 April, 1998
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ATTEST: XXXXXXX SAVINGS BANK, INC., SSB
/s/ Xxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxx
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Its Chairman of the Board
WITNESS: EMPLOYEE
/s/ Xxxxx X. Xxxxxx /s/ Xxxx X. Xxxxxxx
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