Exhibit 10.1
South Carolina Bank & Trust Deferred Income Plan
(A Nonqualified Plan of Deferred Compensation)
Effective January 1, 2004
PREAMBLE
This Agreement is executed this 29th day of December, 2003 by South Carolina
Bank and Trust (hereinafter referred as the "Employer"), a South Carolina
corporation.
Witnesseth That:
Whereas:
The Employer wishes to retain the valuable services of its Directors and its
officers at the rank of Senior Vice President and higher (hereinafter referred
as the "Participants") by providing attractive retirement benefit programs to
such Participants; and
Whereas:
The Employer recognizes that it is in the best interest of both the Employer and
these Participants to provide attractive Employer-sponsored programs to allow
these Participants to build retirement income and wealth for other important
financial needs for themselves and their families and other dependents; and
Whereas:
Tax qualified retirement plans, with the current limitations on contributions
and benefits under the current tax code, may be inadequate or inappropriate. An
Employer-sponsored retirement income plan to provide these Participants with the
desired and necessary levels of retirement income is appropriate; and
Whereas:
These Participants may wish to defer portions of current compensation in excess
of amounts which might currently be deferred under other Employer-sponsored
retirement and welfare benefit plans in order to save for retirement and other
important financial needs; and
Whereas:
The Employer recognizes that a deferral vehicle is also appropriate to assist
Participants in managing their financial success under the Employer's
compensation scheme thus supporting its associated business goals; and
Whereas:
The Employer is willing to provide a non-qualified deferral plan for such
purposes and wishes to provide the terms and conditions for such plan;
Now, THEREFORE, the following Plan is adopted.
MASTER PLAN DOCUMENT
TABLE OF CONTENTS
I. Introduction & Effective Date 4
II. Definitions & Terms 4
III. Eligibility & Participation 9
IV. Elections & Contributions 9
V. Accounts & Account Crediting 10
VI. Vesting 11
VII. Distributions 11
VIII. Administration & Claims Procedure 14
IX. Amendment, Termination & Reorganization 16
X. General Provisions 17
XI. Signature Page 20
ARTICLE I INTRODUCTION & EFFECTIVE DATE
1.1 Name.
The name of this Plan is the South Carolina Bank and Trust Deferred Income Plan.
1.2 Effective Date.
The effective date of the Plan is January 1, 2004.
1.3 Purpose.
The purpose of the Plan is to offer Participants the voluntary opportunity to
defer current Compensation for retirement income and other significant future
financial needs for themselves, their families and other dependents, and to
provide the Employer, if appropriate, a vehicle to address limitations on its
contributions under any tax-qualified defined contribution plan. This Plan is
intended to be a nonqualified "top-hat" plan; that is, an unfunded plan of
deferred compensation maintained for certain employees of a select group of
management or highly compensated employees pursuant to Sections 201(2),
301(a)(3), and 401(a)(1) of ERISA, and an unfunded plan of deferred compensation
under the Code.
1.4 Interpretation.
Throughout the Plan, certain words and phrases have meanings, which are
specifically defined for purposes of the Plan. These words and phrases can be
identified in that the first letter of the word or words in the phrase is
capitalized. The definitions of these words and phrases are set forth in Article
II and elsewhere in the Plan document. Wherever appropriate, pronouns of any
gender shall be deemed synonymous, as shall singular and plural pronouns.
Headings of Articles and Sections are for convenience or reference only, and are
not to be considered in the construction or interpretation of the Plan. The Plan
shall be interpreted and administered to give effect to its purpose in Section
1.3 and to qualify as a nonqualified, unfunded plan of deferred compensation.
ARTICLE II DEFINITIONS & TERMS
2.1 Definition of Terms.
Certain words and phrases are defined when first used in later paragraphs of
this Agreement. Unless the context clearly indicates otherwise, the following
words and phrases when used in this Agreement shall have the following
respective meanings:
2.2 Account.
"Account" shall mean the interest of a Participant in the Plan as represented by
the hypothetical bookkeeping entries kept by the Employer for each Participant.
Each Participant's interest may be divided into one or more separate accounts or
sub-accounts which reflect, not only the Contributions into the Plan, but also
gains and losses, and income and expenses allocated thereto, as well as
distributions or any other withdrawals. The value of these accounts or
sub-accounts shall be determined as of the Valuation Date. The existence of an
account or bookkeeping entries for a Participant (or his Designated Beneficiary)
does not create, suggest or imply that a Participant, Designated Beneficiary, or
other person claiming through them under this Plan, has a beneficial interest in
any asset of the Employer.
2.3 Agreement.
"Agreement" shall mean this agreement, together with any and all amendments or
restatements thereto.
2.4 Balance.
"Balance" shall mean the total of Contributions credited to a Participant's
Account under Article V, as adjusted for distributions or other withdrawals,
investment gains and losses, and income and expenses in accordance with the
terms of this Plan and the standard bookkeeping rules established by the
Employer.
2.5 Board Committee.
"Board Committee" shall mean the Compensation Committee of the Employer's Board
of Directors, or such other Committee of the Board as may be delegated with the
duty of determining Participant eligibility under the Plan.
2.6 Board of Directors.
"Board of Directors" or "Board" shall mean the Board of Directors of the
Employer.
2.7 Change of Control.
"Change of Control" shall mean the occurrence of (and shall be deemed to have
occurred in and on the date of) any of the following circumstances:
A. any "person" or "group" within the meaning of Sections 13(d)(3) and
14(d)(2) of the Securities and Exchange Act of 1934 ("Act") becomes the
"beneficial owner" as defined in Rule 13d-3 under the Act of more than 20%
of the then outstanding securities of the Employer; or
B. any "person" or "group" within the meaning of Sections 13(d) and 14(d)(2)
of the Act acquires by proxy or otherwise the right to vote for the
election of directors, for any merger or consolidation of the Employer or
for any other matter or question with respect to more than 20% of the then
outstanding voting securities of the Employer; or
C. if during any period of twenty-four (24) consecutive months, Present
Directors and/or New Directors cease for any reason to constitute a
majority of the Board. For these purposes, "Present Directors" shall mean
individuals who at the beginning of such consecutive 24 month period were
members of the Board, and "New Directors" shall mean any director whose
election by the Employer's shareholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who were Present
Directors or New Directors; or
D. the shareholders of the Employer approve a plan of complete liquidation or
dissolution of the Employer; or
E. there shall be consummated:
1. a reorganization, merger, or consolidation of all or substantially all
of the assets (a "Business Combination"), unless, following such
Business Combination,
(a.) all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the outstanding common
stock of the Employer and the outstanding voting securities of the
Employer immediately prior to such Business Combination
beneficially owned, directly or indirectly, more than 50% of,
respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the
case may be, of the corporation resulting from the Business
Combination (including without limitation, a corporation, which as
a result of such transaction owns the Employer or all or
substantially all of the Employer's assets either directly or
through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business
Combination of the outstanding common stock of the Employer and
outstanding voting securities of the Employer, as the case may be,
(b.) no person [excluding any corporation resulting from
such Business Combination or any employee benefit plan (or related
trust) of the Employer or such corporation resulting from such
Business Combination] beneficially owns, directly or indirectly,
20% or more, respectively, of the then outstanding shares of
common stock of the corporation resulting from such Business
Combination or combined voting power of the then outstanding
securities of such corporation, except to the extent that such
ownership existed prior to the Business Combination, and
(c.) at least a majority of the members of the board of
directors of the corporation resulting from such Business
Combination were members of the Board at the time of the execution
of the initial agreement, or of the action of the Board providing
for such Business Combination; or
2. any sale, lease, exchange or transfer (in one transaction or a series
of related transactions) of all, or substantially all, of the assets of
the Employer. However, the divestiture of less than substantially all
of the assets of the Employer in one transaction or series of related
transactions, whether by sale, lease, exchange, spin-off, sale of the
stock or merger of a subsidiary or otherwise, shall not constitute a
Change of Control.
F. Notwithstanding the foregoing, a Change of Control of the Corporation shall
not be deemed to occur pursuant to clause (A) or (B) above, solely because
[20%] or more of the then outstanding Common Stock or the then outstanding
voting securities of the Corporation is or becomes beneficially owned or is
directly or indirectly held or acquired by one or more benefit plans (or
related trusts) maintained by the Company; or pursuant to clause (E)(2)
above, if the Board determines that any sale, lease, exchange or other
transfer does not involve all or substantially all of the assets of the
Corporation or the Company.
2.8 Code.
"Code" shall mean the Internal Revenue Code of 1986 and the Regulations thereto,
as amended from time to time.
2.9 Committee.
"Committee" shall mean the person or persons described in Article VIII who are
charged with the day-to-day administration and operation of the Plan.
2.10 Compensation.
A. "Compensation" shall mean the base or regular cash salary payable to an
Employee by the Employer, also to include incentives or bonuses payable
to an Employee by the Employer, commissions payable to an Employee by
the Employer, and also to include retainer and fee amounts payable to a
member of the Board of Directors.
B. Notwithstanding the above, Compensation shall include any amount, which
is contributed into the Plan by the Employer pursuant to a Deferral
Election Form and shall be determined before giving effect to the
Participant Contribution and other compensation reduction amounts which
are not includible in the Participant's gross income under Sections
125, 401(k), 402(h) or 403(b) of the Internal Revenue Code of 1986, as
amended.
2.11 Contribution.
"Contribution" shall mean Participant Contributions pursuant to Article IV,
which represent each Participant's credits to his Account. A Contribution shall
be net of any and all taxes, which must be paid on it.
2.12 Deemed Earnings.
"Deemed Earnings" shall mean the gains and losses (realized and unrealized), and
income and expenses credited or debited to Contributions in a Participant's
Account as of any Valuation Date.
2.13 Deferral Crediting Rates.
"Deferral Crediting Rates" shall mean the hypothetical crediting rate options
made available to Plan Participants by the Employer for the purposes of
determining the proper crediting of gains and losses, and income and expenses to
each Participant's Account. Subject to procedures and requirements established
by the Committee. A Participant may reallocate his Account among such deemed
crediting rate options on a semi-annual basis.
2.14 Deferral Election Form.
"Deferral Election Form" or "Annual Deferral Election Form" shall mean that
written agreement of a Participant. The Deferral Election Form shall be in such
form or forms as may be prescribed by the Committee, filed annually with the
Employer, according to procedures and at such times as established by the
Committee. Among other information the Committee may require of the Participant
for proper administration of the Plan, such agreement shall establish the
Participant's election to defer Compensation for a Plan Year under the Plan; the
amount of the deferral into the Plan for the Plan Year; the Participant's
elections as to distribution of his Account, and the allocation of his Accounts
among the deemed Deferral Crediting Rate options provided under the Plan; and
the Designated Beneficiary. However, a Participant may reallocate his Account
among Deferral Crediting Rates on a semi-annual basis by giving notice, in such
form as the Committee may prescribe, at least ten (10) days prior to first day
of that semi-annual period.
2.15 Designated Beneficiary.
"Designated Beneficiary" or "Beneficiary" shall mean the person, persons or
trust specifically named to be a direct or contingent recipient of all or a
portion of a Participant's benefits under the Plan in the event of the
Participant's death prior to the distribution of his full Account Balance. Such
designation of a recipient or recipients may be made and amended, at the
Participant's discretion, on the Deferral Election Form and according to
procedures established by the Committee. No beneficiary designation or change of
Beneficiary shall become effective until received and acknowledged by the
Employer. In the event a Participant does not have a beneficiary properly
designated, the beneficiary under this Plan shall be the Participant's estate.
2.16 Director.
"Director" shall mean an individual serving as a director of the Employer's
Board of Directors.
2.17 Disability.
"Disability" shall mean a total and permanent physical and/or mental condition
that renders a Participant incapable of performing his duties with the Employer,
which results from disease, bodily injury, or mental disorder. Such condition
shall evidenced by the Participant's receipt of benefits under any of the
following: the Employer's long-term disability welfare benefit plan; under any
individual disability policies (whether or not paid for by the Employer); or by
the receipt of Social Security disability benefits, if the Employer has no
long-term disability plan, or the Participant is not covered by the Employer's
long-term disability plan, or the Participant is not covered under any
individual disability policies to provide evidence of disability.
2.18 Effective Date.
"Effective Date" shall mean the effective date of this Plan as defined in
Article I, Section 1.2.
2.19 Eligible Participant.
"Eligible Participant" shall mean a person who (for any Plan Year or portion
thereof) is: (1) an Employee of the Employer or a Director serving on the Board
of Directors; (2) subject to US income tax laws; (3) a member of a select group
of management or a highly compensated Employee of the Employer or the Board of
Directors; and (4) selected by the Committee to participate in the Plan.
2.20 Employee.
"Employee" shall mean a fulltime common law employee of the Employer.
2.21 Employer.
"Employer" shall mean South Carolina Bank and Trust, First National Corporation,
South Carolina Bank and Trust of the Piedmont, all of which are South Carolina
corporations, any corporate successors and assigns, unless otherwise provided
herein.
2.22 ERISA.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
2.23 Hardship.
"Hardship" shall mean a severe and immediate financial need of a Participant
caused by: (a) the expenses incurred or required to address a disability,
incapacity, medical condition or emergency (as described in Section 213(d) of
the Code) of the Participant, his spouse or his dependents; (b) the costs of a
property or casualty loss; (c) the costs necessary to prevent the Participant's
eviction from his principal residence or foreclosure of a mortgage on a
Participant's principal residence; or (d) any other material reduction of a
Participant's family income or heavy need for family income growing out of
unforeseen circumstances as the Committee may determine to constitute a hardship
within the intent of this section, and the limitations in the Code.
2.24 Leave of Absence.
"Leave of Absence" shall mean a period of time, not to exceed twelve (12)
consecutive calendar months during which time a Participant shall not be an
active Employee of the Employer, or a member of the Board of Directors, but
shall be treated for purposes of this Plan as in continuous service with the
Employer or the Board. A Leave of Absence may be either paid or unpaid, but must
be agreed to in writing by both the Employer and the Participant. A Leave Of
Absence that continues beyond the twelve (12) consecutive months shall be
treated as a Termination of Service as of the first business day of the
thirteenth month for purposes of the Plan.
2.25 Participant.
"Participant" shall mean an Eligible Participant who participates in the Plan
under Article III; a former Eligible Participant who has participated in the
Plan and continues to be entitled to a benefit (in the form of an undistributed
Account Balance) under the Plan, and any former Eligible Participant who has
participated in the Plan under Article III and has not yet exceeded any Leave of
Absence.
2.26 Participant Contribution
"Participant Contribution" shall mean voluntary Participant deferral amounts,
which could have been received currently but for the election to defer and are
credited to his Account for later distribution, subject to the terms of the
Plan.
2.27 Plan.
"Plan" shall mean the South Carolina Bank and Trust Deferred Income Plan as set
forth herein and as it may be amended or restated from time to time.
2.28 Plan Year.
"Plan Year" shall mean the twelve (12) consecutive month period constituting a
calendar year, beginning on January 1 and ending on December 31. However, in any
partial year of the Plan that does not begin on January 1, "Plan Year" shall
also mean the remaining partial year ending on December 31.
2.29 Retirement.
"Retirement" shall mean a Participant's actual separation from service from the
Employer having attained age sixty-two (62). A Participant's separation from
service from the Employer before attained age 62 shall be treated as a
Termination of Service. Board and/or Employee employment transfers within and
among the Employer, as defined in Article II, Section 2.21, is not deemed a
Termination of Service.
2.30 Termination of Service.
"Termination of Service" shall mean a Participant's separation of service as
either a Board member or an Employee with the Employer, other than for
Retirement, death, Disability, or Leave of Absence. Board and/or Employee
employment transfers within and among the Employer, as defined in Article II,
Section 2.21, is not deemed a Termination of Service
2.31 Valuation Date.
"Valuation Date" shall mean the close of each business day, as established and
amended from time to time by guidelines and procedures of the Committee in its
sole and exclusive discretion.
ARTICLE III ELIGIBILITY & PARTICIPATION
3.1 Eligibility Requirements.
Only Eligible Participants of an Employer that has adopted this Plan may become
a Participant in this Plan. Moreover, a Participant shall not be permitted to
make new Participant Contributions to the Plan, if he ceases to be an Eligible
Participant because he is no longer a member of the Board of Directors, or a
select group of management or highly compensated employees, or otherwise ceases
to be an Eligible Participant. The Committee shall give notice of a
Participant's eligibility for a Plan Year in such form as it may determine most
appropriate. Current Participants remain eligible until notified otherwise.
3.2 Participation.
An Eligible Participant shall become a Participant in the Plan by the completion
and timely filing with and subsequent acceptance by, the Employer of the
Deferral Election Form, in such form and according to the terms and conditions
established by the Committee. A Participant (or any Designated Beneficiary who
becomes entitled) remains a Participant as to his Account until his Account
Balance is fully distributed under the terms of the Plan.
ARTICLE IV ELECTIONS & CONTRIBUTIONS
4.1 Participant Election to Defer Compensation.
A. Prior to January 1st of each Plan Year or an earlier date set by the
Committee, a Participant shall be entitled to elect to defer
Compensation under the Plan by the execution and timely filing, and
Employer's acceptance of, a Deferral Election Form in such form and
according to such procedures as the Committee may prescribe from time
to time. The initial Deferral Election Form must be filed prior to
January 1 of the first Plan Year if the first Plan Year is not a
partial Plan Year. If the first Plan Year is a partial Plan Year, the
Deferral Plan Form must be filed prior to a uniform date established by
the Committee applicable to all , and shall only apply to Compensation,
which has yet to be earned in all cases. Each such Deferral Election
Form shall be effective for the Plan Year to which the Deferral
Election Form pertains.
B. Under such Deferral Election Form, a Participant shall indicate the
amount of such Contribution; designate and allocate such Contribution
in or among the elective distribution Account option(s); and, allocate
such Accounts among the various deemed Deferral Crediting Rate options.
The Deferral Election Form shall also permit a Participant to annually
elect to receive a distribution of his entire Account in the event of a
Change of Control during the forthcoming Plan Year. The Deferral
Election Form may also request other information, such as a
Participant's Designated Beneficiary, as may be required or useful for
the administration of the Plan.
C. The most recent timely filed prior annual Deferral Election Form shall
continue to govern a Participant's deferral of Compensation for the
coming Plan Year, if a Participant fails to timely file an annual
Deferral Election Form terminating or amending his prior deferral
election.
4.2 New Participants and Partial Years.
The initial Deferral Election Form of a new Participant shall be filed with the
Employer on a date established by the Committee. Such first Deferral Election
Form shall be applicable to a Participant's Compensation beginning with the
first payroll in the month after such Form is filed and accepted by the
Employer.
4.3 Irrevocable Elections.
An election in a Deferral Election Form to defer Compensation for Plan Year,
once made by a Participant, shall be irrevocable. However, a Participant may
reallocate his Account among Deferral Crediting Rates on a semi-annual basis by
giving notice, in such form as the Committee may prescribe, at least ten (10)
days prior to first day of that semi-annual period. In addition, a Participant
may cease Contributions for a Plan Year as of the first day of any new payroll
period by giving notice, in such form as the Committee may prescribe, at least
ten (10) days prior to first day of that payroll period. The Committee, at its
sole and exclusive discretion, may reduce or eliminate Participant Contributions
at the written request of a Participant based upon a Hardship as defined in
Article VII.
4.4 Participant Elective Deferral Contributions.
Each Participant may annually elect to have his Compensation for the Plan Year
reduced by a whole percentage that is not less than five percent (5%) ($5,000
minimum), and up to one hundred percent (100%), and timely filing, and the
acceptance by the Employer of, his Deferral Election Form detailing such
deferral. The amount of this Contribution shall be deferred into the Plan and
credited to the Participant's Account as provided in Article V.
ARTICLE V ACCOUNTS & ACCOUNT CREDITING
5.1 Establishment of a Participant's Account.
A. Bookkeeping Account. The Committee shall cause a deemed bookkeeping
Account and appropriate sub-accounts, based upon the primary elective
distribution option(s) to be established and maintained in the name of
each Participant, according to his annual Deferral Election Form for
the Plan Year. This Account shall reflect the amount of Participant
Contributions and Deemed Earnings credited to each Participant under
this Plan.
B. Bookkeeping Activity. Participant Contributions shall be credited to a
Participant's Account on the business day they would otherwise have
been made available as cash to the Participant. Participant
Contributions shall be credited net of any and all Federal, state and
local income or payroll taxes applicable thereto. Deemed Earnings on
such Contributions shall be credited or debited to each Participant's
Account, as well as any distributions, any other withdrawals under this
Plan, as of the Valuation Date. Accounts shall continue on each
Valuation Date until the Participant's Account is fully distributed
under the terms of the Plan.
5.2 Deemed Deferral Crediting Rate Options.
The Committee shall establish a portfolio of two or more deemed Deferral
Crediting Rate options, among which a Participant may allocate amounts credited
to his Account, which are subject to Participant direction under this Plan. The
Employer reserves the right, in its sole and exclusive discretion, to
substitute, eliminate and otherwise change this portfolio of deemed Deferral
Crediting Rate Options. The Employer may also otherwise establish rules and
procedures through the Committee for the selection and offering of these deemed
Deferral Crediting Rate options.
5.3 Allocation Of Deferral Among Deferral Crediting Rates.
A. Each Participant shall elect the manner in which his Account is divided
among the Deferral Crediting Rate options by giving allocation
instructions in a Deferral Election Form supplied by and filed with the
Committee; or by such other procedure, including electronic
communications, as the Committee may prescribe. A Participant's
election shall specify the percentage of his Account (in any whole
percentage) to be invested in any Deferral Crediting Rate option. Such
election shall remain in effect until a new election is made. A
Participant may subsequently change the allocation of future
contributions to the Plan or reallocate his Account balance by
submitting an election form, supplied by and filed with the Committee;
or by such other procedure, including electronic communication, as the
Committee may prescribe. A Participant may not change his allocation
directions more than once in each semi-annual period unless otherwise
authorized by the Committee, nor may a Participant change the
allocation of Contributions not yet credited to his Account until the
date such Contributions are, in fact, credited to his Account.
B. Contributions credited to a Participant's Account shall be deemed to be
invested in accordance with the most recent effective deemed Deferral
Crediting Rate instructions. As of the effective date of any new deemed
Deferral Crediting Rate instructions, all or a portion of the
Participant's Account Balance shall be reallocated among the designated
deemed Deferral Crediting Rate options and according to the percentages
specified in the new deemed Deferral Crediting Rate instructions, until
and unless subsequent deemed Deferral Crediting Rate instructions shall
be filed and become effective. If the Committee receives a deemed
Deferral Crediting Rate instruction, which is unclear, incomplete or
improper, the deemed Deferral Crediting Rate instruction then in effect
shall remain in effect until the instruction is clarified, completed or
otherwise made acceptable to the Committee. If the deficient deemed
Deferral Crediting Rate instruction is the initial instruction, the
Participant will be deemed to have filed no deemed Deferral Crediting
Rate instruction on Contributions and shall receive no Deemed Earnings
(but will be subject to any administrative expenses) until an
acceptable deemed Deferral Crediting Rate instruction is received and
accepted by the Committee. The Employer also retains the right to
override any Participant's deemed Deferral Crediting Rate option
instruction, at its sole discretion, in order to preserve favorable
income tax treatment for the Participants.
5.4 Valuation and Risk of Decrease in Value.
The Participant's Account will be valued on the Valuation Date at fair market
value. On such date, Deemed Earnings will be allocated to each Participant's
Account. Each Participant and Designated Beneficiary assumes the risk in
connection with any decrease in the fair market value of his Account.
5.5 Limited Function of Committee.
By deferring compensation pursuant to the Plan, each Participant hereby agrees
that the Employer and Committee are in no way responsible for or guarantor of
the investment results of the Participant's Account. The Committee shall have no
duty to review, or to advise the Participant on, the investment of the
Participant's Account; and in fact, shall not review or advise the Participant
thereon. Furthermore, the Committee shall have no power to direct the investment
of the Participant's Account other than promptly to carry out the Participant's
deemed investment instructions when properly completed and transmitted to the
Committee and accepted according to its rules and procedures.
ARTICLE VI VESTING
6.1 Vesting of Participant Contributions and Deemed Earnings.
Participants shall be fully vested at all times in Participant Contributions
credited to their Accounts and in amounts credited, which represent Deemed
Earnings upon those Participant Contributions. Such vested Participant Accounts
shall be payable according to Article VII of this Agreement.
ARTICLE VII DISTRIBUTIONS
7.1 Distributions.
A Participant's Account shall be distributed only in accordance with the
provisions of this Article VII.
7.2 Automatic Distributions.
A. Participant's Death. If the Participant dies while employed by the
Employer or while serving in the capacity of a Director, his Account
shall be valued as of his date of death and be distributed in lump sum
to his Designated Beneficiary as soon as administratively feasible
following the Participant's death, and no later than 30 days following
the Participant's date of death.
B. Participant's Disability. If a Participant becomes disabled while
employed by the Employer or while serving in the capacity of a
Director, his Account shall be valued as of his date of disability and
be distributed in lump sum to him as soon as administratively feasible,
but no later than 30 days following the Participant's date of
Disability.
C. Termination of Service. If a Participant separates from services as
either a Director or an Employee with the Employer, whether voluntarily
or involuntarily, for any reason other than Retirement, death, or
Disability, his Account shall be valued as of his official date of
separation and distributed in lump sum to him as soon as
administratively feasible, but no later than 30 days following the
Participant's date of Termination of Service with the Employer. Board
and/or Employee employment transfers within and among the Employer, as
defined in Article II, Section 2.21, is not deemed a Termination of
Service.
7.3 Elective Distributions.
A Participant shall become entitled to receive a distribution from his Account
at such time or times and by such method of payment as elected and specified in
the Participant's applicable annual Deferral Election Form, and/or as may be
mandated by the provisions of this Article VII based upon the following
distribution options:
A. Retirement Distribution. Upon a Participant's Retirement from the
Employer, his Account shall be distributed according to the method of
payment elected in his applicable Deferral Election Form. If the
Participant dies while receiving Retirement installment payments, his
Designated Beneficiary shall continue to receive the remaining
installments. If subsequently, the Designated Beneficiary dies, any
remaining installments will be paid to the Designated Beneficiaries
estate.
B. Short-Term Distributions. If a Participant shall so elect in his annual
Deferral Election Form, a Participant can receive a distribution from
his Account, as soon as three (3) years after the end of the deferral
Plan Year, all of his annual deferral amount, plus amounts
credited/debited based on the performance of Participant elected
Deferral Crediting Rate(s). The election is made on an annual basis,
pursuant to the Participant's current Plan Year contributions, is
irrevocable and payable according to the method of payment elected in
the Participant's applicable annual Deferral Election Form. If the
Participant dies while receiving Short-Term installment payments, his
Designated Beneficiary shall continue to receive the remaining
installments. If subsequently, the Designated Beneficiary dies; any
remaining installments will be paid to the Designated Beneficiary
estate.
C. Change of Control Distribution. If a Participant shall so elect in his
annual Deferral Election Form, a Participant's elective distribution
election(s) shall be overridden and his entire Account shall be
distributed to him in the method of payment specified by the provisions
of this Article VII, if a Change of Control should occur during the
Plan Year.
7.4 Method of Payment.
A. Cash Distributions. All distributions from Accounts under the Plan
shall be made in cash in American currency.
B. Timing and Method of Distribution.
(1) Retirement Distribution. At the election of a Participant in the
applicable Deferral Election Form, a Participant may receive a
Retirement distribution in a lump sum or in payments of up to 40
quarterly installments (10 years) or 60 quarterly installments (15
years) with the first installment to begin within ten (10) days of the
first business day on or after January 1 in the calendar year following
the Participant's date of Retirement and to be paid thereafter within
ten (10) days of the first business day on or after January 1, April 1,
July 1, and October 1 of each calendar year until the Account has been
fully distributed.
(2) Short-Term Distributions. At the election of a Participant in the
applicable Deferral Election Form, a Short-Term Distribution may be
selected for payment as soon as three (3) years after the end of the
deferral Plan Year. Distribution will be either in the form of a
lump-sum, occurring no later than thirty (30) days following the
distribution date elected on the Deferral Election Form, or in
quarterly installment payments beginning with the first business day on
or after the commencement date as selected by the Participant in the
annual Deferral Election Form and for a duration as selected by the
Participant in the annual Deferral Election Form and to be paid
thereafter within ten (10) days of the first business day on or after
January 1, April 1, July 1, and October 1, of each calendar year until
the Short-Term Distribution amount has been fully distributed. A
Participant's Account shall be valued as of such distribution date
elected on the Deferral Election Form.
(3) Change of Control Distribution. If so elected by the Participant in his
Annual Distribution Election Form, a distribution of all of a
Participant's Account shall be made to him in a lump sum within thirty
(30) days of the effective date of a Change of Control, overriding any
prior Participant election(s) for distribution. A Participant's Account
shall be valued as of such effective date of the Change of Control. If
no such election was made by the Participant in his Annual Distribution
Election Form, his distribution election(s) will not be overridden.
C. Installment Payments. In any distribution in which a Participant has
elected or will receive distribution in periodic installments, the
amount of each periodic installment shall be determined by applying a
formula to the Account in which the numerator is the number one and the
denominator is the number of remaining installments to be paid. For
example, if a Participant elects 40 quarterly installments of a
Retirement distribution, the first payment will be 1/40 of the Account,
the second will be 1/39, the third will be 1/38; the fourth will be
1/37 and so on until the Account is entirely distributed. In the
calendar year prior to a Participant's Retirement, but no less than
ninety-one (91) days prior to a Participant's date of Retirement, a
Participant may make a written request for an acceleration of the
distribution of his Account by requesting a reduction of the number of
installments originally requested in his Deferral Election Form,
including a reduction to a lump sum distribution. The Committee, in its
sole discretion, may approve or disallow such Participant request.
D. Failure to Designate a Method of Payment. In any situation in which the
Committee is unable to determine the method of payment because of
incomplete, unclear, or uncertain instructions in a Participant's
Deferral Election Form, the Participant will be deemed to have elected
a lump sum distribution.
7.5 In-Service Distributions.
A. Hardship Distributions. A Participant may request that all or a portion
of his Account be distributed at any time prior to separation from
service from the Employer or the Board by submitting a written request
to the Committee, provided that the Participant has incurred a
Hardship, and the distribution is necessary to alleviate such Hardship.
The Committee shall deem a distribution to be necessary to xxxxx a
Hardship if:
(1) the distribution is not in excess of the amount of the
Participant's Hardship; and (2) the Hardship may not be
relieved through reimbursement by insurance or otherwise, by
liquidation of the Participant's assets (to the extent that
such liquidation would not itself cause severe financial
hardship) or by a cessation of Participant Contributions under
the Plan. Upon a satisfactory showing of a Hardship, the
Committee may direct distributions from the Participant's
Account of a lump sum amount equal to alleviate the Hardship
(plus the income tax on such amount). Such distribution shall
be made as soon as administratively practicable. The Balance
not distributed from the Participant's Account shall remain in
the Plan.
B. Loans Not Permitted. A Participant may not request nor receive a loan
of his Account from the Employer. This prohibition is a requirement
under the Code for this Plan to avoid current income taxation of
Participant Contributions.
7.6 Distributions of Small Accounts.
If a Participant takes Retirement under the Plan, and the value of the
Participant's Account Balance (combining all Contributions and all Deemed
Earnings) is not greater than $5,000 on the date of Retirement, the Committee,
in its sole and exclusive discretion, may make a distribution in lump sum of the
value of the entire Account Balance. If the value of a Participant's Account
Balance is zero upon the Valuation Date of any distribution, the Participant
shall be deemed to have received a distribution of such Account Balance and his
participation in the Plan terminates.
7.7 Distribution Payments.
The Employer shall make all distribution payments to a Participant or Designated
Beneficiary directly, unless the Employer may determine to create a Trust for
its own administrative convenience. In such case, the Employer may direct the
Trustee to make such distribution payments to a Participant or Designated
Beneficiary. The payment of any benefits from any Trust by a Trustee shall not
be a representation to a Participant of any actual or implied beneficial
property or ownership interest in any assets in such Trust. A Participant or
Designated Beneficiary, or any other person claiming or receiving such
distribution payment remains a general unsecured creditor of the Employer as to
such payments.
ARTICLE VIII ADMINISTRATION & CLAIMS PROCEDURE
8.1 Duties of the Employer.
The Employer shall have overall responsibility for the establishment, amendment,
termination, administration, and operation of the Plan. The Employer shall
discharge this responsibility by the appointment and removal (with or without
cause) of the members of the Committee, to which is delegated overall
responsibility for administering, managing and operating the Plan.
8.2 The Committee.
The Committee shall consist of one (1) to five (5) members who shall be
appointed by, and may be removed by, the Employer, and one of whom (who must be
an officer of the Employer) shall be designated by the Employer as Chairman of
the Committee. In the absence of such appointment, the Employer shall serve as
the Committee. The Committee shall consist of officers or other Employees of the
Employer, or any other persons who shall serve at the request of the Employer.
Any member of the Committee may resign by delivering a written resignation to
the Employer and to the Committee, and this resignation shall become effective
upon the date specified therein. The members of the Committee shall serve at the
will of the Employer, and the Employer may from time to time remove any
Committee member with or without cause and appoint their successors. In the
event of a vacancy in membership, the remaining members shall constitute the
Committee with full order to act.
8.3 Committee's Powers and Duties to Enforce Plan.
The Committee shall be the "Administrator" and "Named Fiduciary" only to the
extent required by ERISA for top-hat plans, and shall have the complete control
and authority to enforce the Plan on behalf of any and all persons having or
claiming any interest in the Plan in accordance with its terms. The Committee,
in its sole and absolute discretion, shall interpret the Plan and shall
determine all questions arising in the administration and application of the
Plan. Any such interpretation by the Committee shall be final, conclusive and
binding on all persons.
8.4 Organization of the Committee.
The Committee shall act by a majority of its members at the time in office.
Committee action may be taken either by a vote at a meeting or by written
consent without a meeting. The Committee may authorize any one or more of its
members to execute any document or documents on behalf of the Committee. The
Committee shall notify the Employer, in writing, of such authorization and the
name or names of its member or members so designated in such cases. The Employer
thereafter shall accept and rely on any documents executed by said member of the
Committee or members as representing action by the Committee until the Committee
shall file with the Employer a written revocation of such designation. The
Committee may adopt such by-laws and regulations, as it deems desirable for the
proper conduct of the Plan and to change or amend these by-laws and regulations
from time to time. With the permission of the Employer, the Committee may employ
and appropriately compensate accountants, legal counsel, benefit specialists,
actuaries, plan administrators and record keepers and any other persons as it
deems necessary or desirable in connection with the administration and
maintenance of the Plan. Such professionals and advisors shall not be considered
members of the Committee for any purpose.
8.5 Limitation of Liability.
A. No member of the Board of Directors, the Company and no officer or
Employee of the Company shall be liable to any Employee, Participant,
Designated Beneficiary or any other person for any action taken or act
of omission in connection with the administration or operation of this
Plan unless attributable to his own fraud or willful misconduct. Nor
shall the Employer be liable to any Employee, Participant, Designated
Beneficiary or any other person for any such action taken or act of
omission unless attributable to fraud, gross negligence or willful
misconduct on the part of a Director, officer or Employee of the
Employer. Moreover, each Participant, Designated Beneficiary, and any
other person claiming a right to payment under the Plan shall only be
entitled to look to the Employer for payment, and shall not have the
right, claim or demand against the Committee (or any member thereof),
any Director, Officer or Employee of the Employer.
B. To the fullest extent permitted by the law and subject to the
Employer's Certificate of Incorporation and By-laws, the Employer shall
indemnify the Committee, each of its members, and the Employer's
officers and Directors (and any Employee involved in carrying out the
functions of the Employer under the Plan) for part or all expenses,
costs, or liabilities arising out of the performance of duties required
by the terms of the Plan agreement, except for those expenses, costs,
or liabilities arising out of a member's fraud, willful misconduct or
gross negligence.
8.6 Committee Reliance on Records and Reports.
The Committee shall be entitled to rely upon certificates, reports, and opinions
provided by an accountant, tax or pension advisor, actuary or legal counsel
employed by the Employer or Committee. The Committee shall keep a record of all
its proceedings and acts, and shall keep all such books of account, records, and
other data as may be necessary for the proper administration of the Plan. The
regularly kept records of the Committee and the Employer shall be conclusive
evidence of the service of a Participant, Compensation, age, marital status,
status as an Employee, and all other matters contained therein and relevant to
this Plan. The Committee, in any of its dealings with Participants hereunder,
may conclusively rely on any Deferral Election Form, written statement,
representation, or documents made or provided by such Participants.
8.7 Costs of the Plan.
All the costs and expenses for maintaining the administration and operation of
the Plan shall be borne by the Employer unless the Employer shall give notice
(that Plan Participants bear this expense, in whole or in part) to: (a) Eligible
Participants at the time they become a Participant by completion and filing of a
Deferral Election Form; or (b) to existing Participants during annual
re-enrollment. Such notice shall detail the administrative expense to be
assessed a Plan Participant, how that expense will be assessed and allocated to
the Participant Accounts, and any other important information concerning the
imposition of this administrative expense. This administration charge, if any,
shall operate as a reduction to the bookkeeping Account of a Participant or his
designated Beneficiary, and in the absence of specification otherwise shall
reduce the Account, and be charged annually during the month of January.
8.8 Claims Procedure.
A. Claim. Benefits shall be paid in accordance with the terms of this
Plan. A Participant, Designated Beneficiary or any person who believes
that he is being denied a benefit to which he is entitled under the
Plan (hereinafter referred to as a "Claimant") may file a written
request for such benefit with the Employer, setting forth his claim.
The request must be addressed to the Committee care of Secretary of the
Employer at its then principal place of business.
B. Claim Decision. Upon the receipt of a claim, the Committee shall advise
the Claimant that a reply will be forthcoming within ninety (90) days
and shall, in fact, deliver such reply within such period. However, the
Committee may extend the reply period for an additional ninety (90)
days for reasonable cause. Any claim not granted or denied within such
time period shall be deemed to have been denied. If the claim is denied
in whole or in part, the Committee shall adopt a written opinion, using
language calculated to be understood by the Claimant, setting forth:
(1) The specific reason or reasons for such denial;
(2) The specific reference to pertinent provisions of this
Agreement on which such denial is based;
(3) A description of any additional material or information
necessary for the Claimant to perfect his claim and an
explanation why such material or such information is
necessary;
(4) Appropriate information as to the steps to be taken if the
Claimant wishes to submit the claim for review; and
(5) The time limits for requesting a review under Subsection C and
for review under Subsection D hereof.
C. Request for Review. Within sixty (60) days after the receipt by the
Claimant of the written opinion described above, the Claimant may
request in writing that the Secretary of the Employer review the
determination of the Committee. Such request must be addressed to the
Secretary of the Employer, at its then principal place of business. The
Claimant or his duly authorized representative may, but need not,
review the pertinent documents and submit issues and comments in
writing for consideration by the Employer. If the Claimant does not
request a review of the Committee's determination by the Secretary of
the Employer within such sixty (60) day period, he shall be barred and
estopped from challenging the Committee's determination.
D. Review of Decision. Within sixty (60) days after the Secretary's
receipt of a request for review, he will review the Committee's
determination. After considering all materials presented by the
Claimant, the Secretary will render a written opinion, written in a
manner calculated to be understood by the Claimant, setting forth the
specific reasons for the decision and containing specific references to
the pertinent provisions of this Agreement on which the decision is
based. If special circumstances require that the sixty (60) day time
period be extended, the Secretary will so notify the Claimant and will
render the decision as soon as possible, but no later than one hundred
twenty (120) days after receipt of the request for review. Any claim
not granted or denied within such time period shall be deemed to have
been denied.
8.9 Litigation.
It shall only be necessary to join the Employer as a party in any action or
judicial proceeding affecting the Plan. No Participant or Designated Beneficiary
or any other person claiming under the Plan shall be entitled to service of
process or notice of such action or proceeding, except as may be expressly
required by law. Any final judgment in such action or proceeding shall be
binding on all Participants, Designated Beneficiaries or persons claiming under
the Plan.
ARTICLE IX AMENDMENT, TERMINATION & REORGANIZATION
9.1 Amendment.
The Employer by action of its Board of Directors, or duly authorized Committee
thereof, in accordance with its by-laws, reserves the right to amend the Plan,
by resolution of the Employer, to the extent permitted under the Code and ERISA.
However, no amendment to the Plan shall be effective to the extent that it has
the effect of decreasing a Participant's (or Designated Beneficiary's) accrued
benefit prior to the date of the amendment. For purposes of this paragraph, a
Plan amendment which has the effect of decreasing a Participant's Account
Balance, eliminating a distribution option, or eliminating a deemed crediting
fund without substituting a similar fund, with respect to benefits attributable
to service before the amendment shall be treated as reducing an accrued benefit.
9.2 Amendment Required By Law.
Notwithstanding Section 9.1, the Plan may be amended at any time, if in the
opinion of the Employer, such amendment is necessary to ensure the Plan is
treated as a nonqualified plan of deferred compensation under the Code and
ERISA, or to bring it into conformance with SEC requirements for such plans.
This includes the right to amend this Plan, so that any Trust, if applicable,
created in conjunction with this Plan, will be treated as a grantor Trust under
Sections 671 through 679 of the Code, and to otherwise conform the Plan
provisions and such Trust, if applicable, to the requirements of any applicable
law.
9.3 Termination.
The Employer intends to continue the Plan indefinitely. However, the Employer by
action of its Board of Directors or a duly authorized committee thereof, in
accordance with its by-laws, reserves the right to terminate the Plan at any
time. However, no such termination shall deprive any participant or Designated
Beneficiary of a right accrued under the Plan prior to the date of termination.
9.4 Consolidation/Merger.
The Employer shall not enter into any consolidation or merger without the
guarantee and assurance of the successor or surviving company or companies to
the obligations contained under the Plan. Should such consolidation or merger
occur, the term "Employer" as defined and used in this Agreement shall refer to
the successor or surviving company. Should the consolidation or merger during a
Plan Year constitute a Change of Control as defined in this Agreement and a
Participant has elected a distribution under Section VII of this Agreement, a
Participant or Designated Beneficiary shall receive distribution of the entire
Balance in their Account in a lump sum within 30 days of the Change of Control.
ARTICLE X GENERAL PROVISIONS
10.1 Applicable Law.
Except insofar as the law has been superseded by Federal law, South Carolina law
shall govern the construction, validity and administration of this Plan as
created by this Agreement. The parties to this Agreement intend that this Plan
shall be a nonqualified unfunded plan of deferred compensation without plan
assets and any ambiguities in its construction shall be resolved in favor of an
interpretation which will effect this intention.
10.2 Benefits Not Transferable or Assignable.
A. Benefits under the Plan shall not be subject to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or charge
and any attempt to anticipate, alienate, sell, transfer, assign,
pledge, encumber or charge such benefits shall be void, nor shall any
such benefits be in any way liable for or subject to the debts,
contracts, liabilities, engagements or torts of any person entitled to
them. However, a Participant may name a recipient for any benefits
payable or which would become payable to a Participant upon his death.
This Section shall also apply to the creation, assignment or
recognition of a right to any benefit payable with respect to a
Participant pursuant to a domestic relations order, including a
qualified domestic relations order under Section 414(p) of the Code. In
addition, the following actions shall not be treated or construed as an
assignment or alienation: (a) Plan Contribution or distribution tax
withholding; (b) recovery of distribution overpayments to a Participant
or Designated Beneficiary; (c) direct deposit of a distribution to a
Participant's or Designated Beneficiary's banking institution account;
or (d) transfer of Participant rights from one Plan to another Plan, if
applicable.
B. The Employer may bring an action for a declaratory judgment if a
Participant's, Designated Beneficiary's or any Beneficiary's benefits
hereunder are attached by an order from any court. The Employer may
seek such declaratory judgment in any court of competent jurisdiction
to:
(1) determine the proper recipient or recipients of the benefits
to be paid under the Plan;
(2) protect the operation and consequences of the Plan for the
Employer and all Participants; and
(3) request any other equitable relief the Employer in its sole
and exclusive judgment may feel appropriate.
Benefits which may become payable during the pendency of such an action
shall, at the sole discretion of the Employer, either be:
(1) paid into the court as they become payable or
(2) held in the Participant's or Designated Beneficiary's Account
subject to the court's final distribution order.
10.3 Not an Employment Contract.
The Plan is not and shall not be deemed to constitute a contract between the
Employer and any Employee, or to be a consideration for, or an inducement to, or
a condition of, the employment of any Employee. Nothing contained in the Plan
shall give or be deemed to give an Employee the right to remain in the
employment of the Employer or to interfere with the right to be retained in the
employ of the Employer, any legal or equitable right against the Employer, or to
interfere with the right of the Employer to discharge any Employee at any time.
It is expressly understood by the parties hereto that this Agreement relates to
the payment of deferred compensation for the Employee's services, generally
payable after separation from employment with the Employer, and is not intended
to be an employment contract.
10.4 Notices.
A. Any notices required or permitted hereunder shall be in writing and
shall be deemed to be sufficiently given at the time when delivered
personally or when mailed by certified or registered first class mail,
postage prepaid, addressed to either party hereto as follows:
X.X. Xxx 0000 Xxxxxxxxxx, XX 00000
If to the Employee:
At his last known address, as indicated by the records of the Employer,
or to such changed address as such parties may have fixed by notice.
B. Any communication, benefit payment, statement of notice addressed to a
Participant or Designated Beneficiary at the last post office address
as shown on the Employer's records shall be binding on the Participant
or Designated Beneficiary for all purposes of the Plan. The Employer
shall not be obligated to search for any Participant or Designated
Beneficiary beyond sending a registered letter to such last known
address.
10.5 Severability.
The Plan as contained in the provisions of this Agreement constitutes the entire
Agreement between the parties. If any provision or provisions of the Plan shall
for any reason be invalid or unenforceable, the remaining provisions of the Plan
shall be carried into effect, unless the effect thereof would be to materially
alter or defeat the purposes of the Plan. All terms of the plan and all
discretion granted hereunder shall be uniformly and consistently applied to all
the Employees, Participants and Designated Beneficiaries.
10.6 Participant is General Creditor with No Rights to Assets.
A. The payments to the Participant or his Designated Beneficiary or any
other beneficiary hereunder shall be made from assets which shall
continue, for all purposes, to be a part of the general, unrestricted
assets of the Employer, no person shall have any interest in any such
assets b y virtue of the provisions of this Agreement. The Employer's
obligation hereunder shall be an unfunded and unsecured promise to pay
money in the future. To the extent that any person acquires a right to
receive payments from the Employer under the provisions hereof, such
right shall be no greater than the right of any unsecured general
creditor of the Employer; no such person shall have nor require any
legal or equitable right, or claim in or to any property or assets of
the Employer. The Employer shall not be obligated under any
circumstances to fund obligations under this Agreement.
B. The Employer at its sole discretion and exclusive option, may acquire
and/or set-aside assets or funds, such as the use of a Trust, to
support its financial obligations under this Plan. No such acquisition
or set-aside shall impair or derogate from the Employer's direct
obligation to a Participant or Designated Beneficiary under this Plan.
However, no Participant or Designated Beneficiary shall be entitled to
receive duplicate payments of any Accounts provided under the Plan
because of the existence of such assets or funds.
C. In the event that, in its discretion, the Employer purchases an
asset(s) or insurance policy or policies insuring the life of the
Participant to allow the Employer to recover the cost of providing
benefits, in whole or in part hereunder, neither the Participant,
Designated Beneficiary nor any other beneficiary shall have any rights
whatsoever therein in such assets or in the proceeds therefrom. The
Employer shall be the sole owner and beneficiary of any such assets or
insurance policy and shall possess and may exercise all incidents of
ownership therein. No such asset or policy, policies or other property
shall be held in any Trust for the Participant or any other person nor
as collateral security for any obligation of the Employer hereunder.
Nor shall an Participant's participation in the acquisition of such
assets or policy or policies be a representation to the Participant,
Designated Beneficiary or any other beneficiary of any beneficial
interest or ownership in such assets, policy or policies. A Participant
may be required to submit to medical examinations, supply such
information and to execute such documents as may be required by an
insurance carrier or carriers (to whom the Employer may apply from time
to time) as a precondition to participate in the Plan.
10.7 No Trust Relationship Created.
Nothing contained in this Agreement shall be deemed to create a trust of any
kind or create any fiduciary relationship between the Employer and the
Participant, Designated Beneficiary, other beneficiaries of the Participant, or
any other person claiming through the Participant. Funds allocated hereunder
shall continue for all purposes to be part of the general assets and funds of
the Employer and no person other than the Employer shall, by virtue of the
provisions of this Plan, have any beneficial interest in such assets and funds.
The creation of a grantor Trust (so called "Rabbi Trust") under the Code (owned
by and for the benefit of the Employer) to hold such assets or funds for the
administrative convenience of the Employer shall not give nor be a
representation to a Participant, Designated Beneficiary, or any other person, of
a property or beneficial ownership interest in such Trust assets or funds even
though the incidental advantages or benefits of the Trust to Plan Participants
may be communicated to them.
10.8 Limitations on Liability of the Employer.
Neither the establishment of the Plan nor any modification hereof nor the
creation of any Account under the Plan nor the payment of any benefits under the
Plan shall be construed as giving to any Participant or any other person any
legal or equitable right against the Employer or any Director, officer or
Employee thereof except as provided by law or by any Plan provision.
10.9 Agreement Between Employer and Participant Only.
This Agreement is solely between the Employer and Participant. The Participant,
Designated Beneficiary, estate or any other person claiming through the
Participant, shall only have recourse against the Employer for enforcement of
this Agreement. This Agreement shall be binding upon and inure to the benefit of
the Employer and its successors and assigns, and the Participant, successors,
heirs, executors, administrators and beneficiaries.
10.10 Independence of Benefits.
The benefits payable under this Agreement are for services already rendered and
shall be independent of, and in addition to, any other benefits or compensation,
whether by salary, bonus, fees or otherwise, payable to the Participant under
any compensation and/or benefit arrangements or plans, incentive cash
compensations and stock plans and other retirement or welfare benefit plans,
that now exist or may hereafter exist from time to time.
10.11 Unclaimed Property.
Except as may be required by law, the Employer may take any of the following
actions if it gives notice to a Participant or Designated Beneficiary of an
entitlement to benefits under the Plan, and the Participant or Designated
Beneficiary fails to claim such benefit or fails to provide their location to
the Employer within three (3) calendar years of such notice:
(1) Direct distribution of such benefits, in such proportions as the
Employer may determine, to one or more or all, of a Participant's next
of kin, if their location is known to the Employer;
(2) Deem this benefit to be a forfeiture and paid to the Employer if the
location of a Participant's next of kin is not known. However, the
Employer shall pay the benefit, unadjusted for gains or losses from the
date of such forfeiture, to a Participant or Designated Beneficiary who
subsequently makes proper claim to the benefit.
The Employer shall not be liable to any person for payment pursuant to
applicable state unclaimed property laws.
10.12 Required Tax Withholding and Reporting.
The Employer shall withhold and report Federal, state and local income and
payroll tax amounts on all Contributions to and distributions and withdrawals
from a Participant's Account as may be required by law from time to time.
ARTICLE XI SIGNATURE PAGE
IN WITNESS WHEREOF, the Employer has caused this Plan to be executed and its
seal to be affixed hereto, this 29th day of December 2003.
ATTEST:
South Carolina Bank and Trust
By: By:
----------------------------------- -------------------------------
Print name:
-----------------------
Print name: (Signature)
Title:
---------------------------
WITNESSED BY:
Print Name:
----------------------------- ----------------------------------
(Signature)
SEAL
