Exhibit 10.8
EXECUTIVE SUPPLEMENTAL RETIREMENT
AGREEMENT
THIS Executive Supplemental Retirement Agreement (hereinafter referred to
as the "Executive Agreement") is made and entered into this 8th day of
June, 2004, by and between Gwinnett Banking Company, a bank organized
and existing under the laws of the State of Georgia (hereinafter referred to as
the "Bank"), and Xxxxxx X. Xxxxxx, an Executive of the Bank (hereinafter
referred to as the "Executive").
RECITALS
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 his service with the Bank.
In consideration of the valuable services rendered and to be rendered by
the Executive, the Board has deemed it advisable and in the best interest of the
Bank to provide supplemental retirement benefits and certain death benefits to
the Executive in accordance with the terms and provisions of this Executive
Agreement as an inducement to the Executive to continue in the employment of the
Bank and to provide the Executive with greater security and peace of mind.
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
As used in this Executive Agreement, including this Paragraph I, the
following definitions shall be applicable:
A. Effective Date:
The "Effective Date" of this Executive Agreement shall be April 2,
2004.
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
the "Plan Year" shall mean the period from the Effective Date to
December 31st of the year of the
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Effective Date.
C. Retirement Date:
"Retirement Date" shall mean retirement of the Executive from service
with the Bank which becomes effective on the first day of the calendar
month following the month in which the Executive reaches his Normal
Retirement Age [Subparagraph I (I)] or such later date as the
Executive may actually retire.
D. Pre-Retirement Account:
An unfunded, separate bookkeeping account (hereinafter referred to as
the "Pre-Retirement Account") established as a liability reserve
account on the books of the Bank for the benefit of the Executive.
Subject to Subparagraph I (D) (i) hereinbelow and except as otherwise
provided in this Executive Agreement, such liability reserve account
shall be increased or decreased each Plan Year until the Executive's
Retirement Date [Subparagraph I (C)] (or when applicable, Normal
Retirement Age) by the Index Retirement Benefit [Subparagraph I (E)].
(i) If the Executive voluntarily resigns from service with
the Bank within the twelve-month period next following
a Change of Control his Pre-Retirement Account shall
not be increased or decreased with respect to any Plan
Year that begins after the Plan Year in which such
resignation occurs. With respect to the Plan Year in
which such resignation occurs, his Pre-Retirement
Account shall be increased or decreased as of the date
of his resignation by the Index Retirement Benefit
determined as of such resignation date. The Opportunity
Cost component of the Index Retirement Benefit shall be
determined as of his resignation date. If the Executive
voluntarily resigns from service with the Bank after
the expiration of the one year period next following a
Change of Control, his Pre- Retirement Account shall
continue to be increased or decreased each Plan Year in
the manner set forth in the first paragraph of this
Subparagraph I (D).
An illustration of the calculation of the Pre-Retirement Account
liability balance as set forth herein is attached hereto and marked as
Exhibit "A". The numbers referred to in said Exhibit A are not actual
nor representative of any Pre-Retirement Account liability balance
that may be actually calculated per this Executive Agreement. Exhibit
A is attached hereto merely for illustrative purposes only and the
Bank does not make any promises or other representations regarding any
said amounts set forth therein.
E. Index Retirement Benefit:
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The "Index Retirement Benefit" for the Executive for each Plan Year
shall be equal to the excess (if any) of the Index [Subparagraph I
(F)] for that Plan Year over the Opportunity Cost [Subparagraph I (G)]
for that Plan Year, divided by a factor equal to 1.04 minus the Bank's
marginal tax rate for the Plan Year. The Bank's marginal tax rate
shall be determined annually by the Bank's certified public accounting
firm and shall be binding on the Bank and the Executive.
An illustration of the calculation of the Index Retirement Benefit as
set forth herein is attached hereto and marked as Exhibit "A". The
numbers referred to in said Exhibit A are not actual nor
representative of any Index Retirement Benefit that may be actually
calculated per this Executive Agreement. Exhibit A is attached hereto
merely for illustrative purposes only and the Bank does not make any
promises or other representations regarding any said amounts set forth
therein.
F. 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 this Executive Agreement.
Insurance Company: Security Life of Denver Insurance Company
Policy Form: Flexible Premium Adjustable Life Insurance
Policy Name: Executive UL
Insured's Age and Sex: 60 / Male
Riders: None
Ratings: None
Option: Level Death Benefit
Face Amount: $1,280,459
Premiums Paid: $670,000
Number of Premium Payments: Single Premium Payment
Assumed Purchase Date: April 2, 2004
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
Agreement. If such contracts of life insurance are not purchased or
are subsequently surrendered or lapsed, then the Bank shall utilize
for purposes of this Executive Agreement annual policy illustrations
that assume the above-described policies were purchased or had not
subsequently surrendered or lapsed, which illustrations will be
obtained 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 the Index Retirement Benefit. The Bank has
no obligation to purchase such life insurance contracts and, if
purchased, the Executive and his
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beneficiary(ies) shall have no ownership interest in such policy(ies)
and shall always have no greater interest in the benefits under this
Executive Agreement than that of an unsecured creditor of the Bank.
An illustration of the calculation of the Index as set forth herein is
attached hereto and marked as Exhibit "A". The numbers referred to in
said Exhibit A are not actual nor representative of any Index that may
be actually calculated per this Executive Agreement. Exhibit A is
attached hereto merely for illustrative purposes only and the Bank
does not make any promises or other representations regarding any said
amounts set forth therein.
G. 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 this Executive
Agreement (Paragraph II hereinafter) plus the amount of all previous
years after-tax Opportunity Costs, and multiplying that sum by the
average annualized after-tax yield of a one-year Treasury Xxxx. The
"average annualized after-tax yield of a one-year Treasury Xxxx"
means; (i) the sum of each of the twelve after-tax yields of a
one-year Treasury Xxxx as published by the Federal Reserve as of the
first day of each month within the Plan Year divided by twelve; (ii)
multiplied by one minus the Bank's marginal tax rate for the Plan
Year.
An illustration of the calculation of the Opportunity Cost as set
forth herein is attached hereto and marked as Exhibit "A". The numbers
referred to in said Exhibit A are not actual nor representative of any
Opportunity Cost that may be actually calculated per this Executive
Agreement. Exhibit A is attached hereto merely for illustrative
purposes only and the Bank does not make any promises or other
representations regarding any said amounts set forth therein.
H. Change of Control:
"Change of Control" shall be deemed to have occurred upon the
cumulative transfer of more than twenty-five percent (25%) of the
voting stock of the Bank from and after the Effective Date of this
Executive Agreement. For purposes of this Executive Agreement,
transfers of the voting stock of the Bank 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.
I. Normal Retirement Age:
"Normal Retirement Age" shall mean the date on which the Executive
attains age sixty-five (65).
II. INDEX BENEFITS
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A. Retirement Benefits:
Subject to Subparagraph II (D) hereinafter, if the Executive remains
an employee of the Bank until his Normal Retirement Age he shall be
entitled to receive the balance in his Pre-Retirement Account in ten
(10) equal annual installments. The first installment shall commence
within the thirty (30) day period next following his Retirement Date.
The Executive shall have the option, said option to be exercised in
writing at least one (1) year prior to said retirement, to receive the
benefits provided herein in a lump sum or in five (5) equal annual
installments. If the Executive fails to exercise said option, then the
Executive shall receive the payments in ten (10) equal annual
installments as provided herein. In addition to these benefit payments
and commencing in conjunction therewith, the Index Retirement Benefit
[Subparagraph I (E)] for each Plan Year subsequent to the Executive's
retirement, and including the remaining portion of the Plan Year
following said retirement, shall be paid to the Executive in a lump
sum as of the beginning of each Plan Year until the Executive's death.
B. Termination of Service:
Subject to Subparagraph II (D), upon a Termination of Service, the
Executive shall be entitled to receive one hundred percent (100%) of
the Bank's accrued liability balance.
C. Death:
Should the Executive die while there is a balance in the Executive's
Pre-Retirement Account (regardless of whether the Executive is then in
service), the entire unpaid balance of the Executive's vested
Pre-Retirement Account shall be paid in a lump sum to the beneficiary
or beneficiary(ies) the Executive may have designated in writing and
filed with the Bank. In the absence of any effective designation of
beneficiary(ies), the unpaid vested balance shall be paid as set forth
herein to the duly qualified executor or administrator of the
Executive's estate. Said payment due hereunder shall be made the first
day of the second month following the month in which the death of the
Executive occurred. Except as provided in this Subparagraph II (C), no
death benefit is provided under the Executive Agreement.
D. Discharge for Cause:
Should the Executive be discharged for "Cause" at any time, all
benefits under this Executive Agreement shall be forfeited and no
payments shall be made to the Executive under this Executive
Agreement. The term for "cause" shall mean any of the following that
result in an adverse effect on the Bank: (i) gross negligence or gross
neglect of the Executive; or (ii) the commission by the Executive of a
felony or gross misdemeanor involving moral turpitude, fraud, or
dishonesty. If a dispute arises as to discharge for "cause", such
dispute shall be resolved by arbitration as set forth in Subparagraph
VI (B) of this Executive Agreement.
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E. 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, he shall begin receiving the balance in his
Pre-Retirement Account as soon as practical following his termination
in accordance with the payment provisions described in Subparagraph II
(A) above. Such benefit shall begin without regard to the Executive's
Normal Retirement Age and the Executive shall be one hundred percent
(100%) vested in his entire Pre-Retirement Account. In addition to
these benefit payments and commencing in conjunction therewith, the
Index Retirement Benefit [Subparagraph I (E)] for each Plan Year
subsequent to the Executive's termination of service as a result of
disability, and including the remaining portion of the Plan Year
following said termination, shall be paid to the Executive in a lump
sum as of the beginning of each Plan Year until the Executive's death.
Disability shall be as defined in the Bank's Long Term Disability
policy in effect at the time of the determination of said disability.
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
Agreement. The Executive, his beneficiary(ies), or any successor in
interest shall be and remain simply a general, unsecured creditor of
the Bank in the same manner as any other creditor having a general
claim for matured and unpaid compensation. The obligation of the Bank
to make payments under this Executive Agreement shall constitute a
general unsecured obligation of the Bank to the Executive.
The Bank reserves the absolute right, at its sole discretion, to
either fund the obligations undertaken by this Executive Agreement 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 Agreement, 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 the
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 as may be necessary to obtain
such insurance or annuities.
IV. CHANGE OF CONTROL
If the Executive is discharged by the Bank, without cause following a
Change of Control, then the Executive shall be entitled to receive the
benefits promised in this Executive Agreement upon attaining his
Normal Retirement Age, as if the
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Executive had been continuously employed by the Bank until the
Executive's Normal Retirement Age. If the Executive voluntarily
resigns from service with the Bank on or after the expiration of the
twelve (12) month period next following said Change of Control, then
the Executive shall receive one hundred percent (100%) of the benefits
promised in this Executive Agreement as set forth in Subparagraph II
(A) upon attaining his 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 Agreement. See Subparagraph
I (D) (i) for certain consequences that apply if the Executive
voluntarily resigns from service with the Bank within the twelve-month
period next following a Change of Control.
V. MISCELLANEOUS
A. Alienability and Assignment Prohibition:
Neither the Executive, nor the Executive's surviving spouse, nor any
other beneficiary(ies) under this Executive Agreement 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 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 shall not merge or consolidate into or with another bank,
firm, or person, 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 Agreement. This Executive Agreement 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 Agreement may be amended or
revoked at any time or times, in whole or in part, but only by the
mutual written consent of the Executive and the Bank. Any amendment or
revocation that is not in writing and not agreed to by both parties
hereto shall be null and void.
D. Gender:
Whenever in this Executive Agreement words are used in the masculine
or neuter gender, they shall be read and construed as in the
masculine, feminine or neuter
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gender, whenever they should so apply.
Nothing contained in this Executive Agreement 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.
E. Effect on Other Bank Benefit Plans:
Nothing contained in this Executive Agreement 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 Agreement are inserted for
reference and convenience only and shall not be deemed a part of this
Executive Agreement.
G. Applicable Law:
The validity and interpretation of this Agreement shall be governed by
the laws of the State of Georgia.
H. 12 U.S.C. Section 1828(k):
Any payments made to the Executive pursuant to this Executive
Agreement, or otherwise, are subject to and conditioned upon their
compliance with 12 U.S.C. Section 1828(k) or any regulations
promulgated thereunder.
I. Partial Invalidity:
If any term, provision, covenant, or condition of this Executive
Agreement 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 Agreement shall remain in
full force and effect notwithstanding such partial invalidity.
J. Employment:
No provision of this Executive Agreement 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 Bank to
discharge the Executive with or without cause. In a similar fashion,
no provision shall limit the Executive's rights to voluntarily sever
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the Executive's employment at any time.
K. Exhibit A:
An illustration of the calculation of certain components of the Index
Retirement Benefit set forth in this Executive Agreement is attached
hereto and marked as Exhibit "A". The numbers referred to in said
Exhibit A are not actual nor representative of any amounts that may be
actually calculated per this Executive Agreement. Exhibit A is
attached hereto merely for illustrative purposes only and the Bank
does not make any promises or other representations regarding any said
amounts set forth therein.
L. Notices:
The Executive and each beneficiary of the Executive shall be
responsible for furnishing the Bank with his current address for the
mailing of notices, reports, and benefit payments. Any notice required
or permitted to be given to the Executive or beneficiary shall be
deemed given if directed to such address and mailed by regular United
States mail, first class, postage prepaid. If any check mailed to such
address is returned as undeliverable to the addressee, mailing of
checks will be suspended until the Executive or beneficiary furnishes
the proper address.
M. Lost Distributees:
A benefit shall be deemed forfeited if the Bank is unable after a
reasonable period of time to locate the Executive or beneficiary to
whom payment is due; provided, however that such benefit shall be
reinstated if a valid claim is made by or on behalf of the Executive
or beneficiary for the forfeited benefit.
N. Reliance on Data:
The Bank shall have the right to rely on any data provided by the
Executive or by any beneficiary. Representations of such data shall be
binding upon any party seeking to claim a benefit through the
Executive, and the Bank shall have no obligation to inquire into the
accuracy of any representation made at any time by the Executive or
beneficiary.
O. Receipt and Release for Payments:
Any payment made to or with respect to the Executive or beneficiary
under this Executive Agreement, or pursuant to a disclaimer by a
beneficiary, shall, to the extent thereof, be in full satisfaction of
all claims hereunder against the Bank. The recipient of any payment
from this Executive Agreement may be required by the Bank, as a
condition precedent to such payment, to execute a receipt and release
with respect thereto in such form as shall be acceptable to the Bank.
P. Withholding Taxes:
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The Bank may satisfy all federal, state, and local withholding tax
requirements prior to making any benefit payment under this Executive
Agreement to the Executive or beneficiary. Payments made under this
Executive Agreement shall be net of any amounts sufficient to satisfy
all federal, state, and local withholding tax requirements.
VI. ADMINISTRATION AND CLAIMS PROCEDURE
A. Administration by the Bank:
The Bank shall be responsible for the management, control and
administration of this Executive Agreement. The Bank may delegate to
others certain aspects of the management and operation
responsibilities of this Executive Agreement 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
Agreement and benefits are not paid to the Executive (or to the
Executive's beneficiary(ies) in the case of the Executive's death)
(individually and collectively the "claimant") and such claimant feels
he is are entitled to receive such benefits, then a written claim must
be made to the Bank within sixty (60) days from the date payments are
refused. The Bank shall review the written claim and if the claim is
denied, in whole or in part, the Bank shall provide in writing within
sixty (60) days of receipt of such claim its specific reasons for such
denial, reference to the provisions of this Executive Agreement 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 the claimants if a
further review of the claim denial is desired. A claim shall be deemed
denied if the Bank fails to take any action within the aforesaid
sixty-day period.
If a claimant desires a second review, the claimant shall notify the
Bank in writing within sixty (60) days of the first claim denial. The
claimant may review this Executive Agreement or any documents relating
thereto and submit any written issues and comments the claimant may
feel appropriate. In its sole discretion, the Bank 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 Executive Agreement upon which the decision
is based.
If the claimant continues to dispute the benefit denial based upon
completed performance of this Executive Agreement or the meaning and
effect of the terms and conditions thereof, then the claimant may
submit the dispute to an Arbitrator for final arbitration. The
Arbitrator shall he selected by mutual agreement of the Bank and the
claimant. The Arbitrator shall operate under any generally recognized
set of arbitration rules. The parties hereto agree that they and their
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heirs, personal representatives, successors, and assigns shall be
bound by the decision of such Arbitrator with respect to any
controversy properly submitted to it.
If 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.
IN WITNESS WHEREOF, the parties hereto acknowledge that each has
carefully read this Executive Agreement and executed the original thereof on the
_____ day of _______________, 2004, and that, upon execution, each has received
a conforming copy.
GWINNETT BANKING COMPANY
Lawrenceville, Georgia
/s/ XXXX X. XXXXX By: /s/ XXXX.T XXXXXXX III EVP
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Witness Title
/s/ XXXXXXX XXXXXX /s/ XXXXXX X. XXXXXX
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Witness Xxxxxx X. Xxxxxx
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