SOUTH CAROLINA BANK AND TRUST, NATIONAL ASSOCIATION AMENDED AND RESTATED SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
Exhibit
10.10
SOUTH
CAROLINA BANK AND TRUST, NATIONAL ASSOCIATION
AMENDED
AND RESTATED SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
This
Amended & Restated Supplemental Executive Retirement Agreement (the
“Agreement”) is adopted this 1st day of November, 2006, by and between SOUTH
CAROLINA BANK AND TRUST, NATIONAL ASSOCIATION, a national commercial bank
located in Orangeburg, South Carolina (the “Bank”) and XXXXXXX X. XXXXXX (the
“Executive”).
This
Agreement amends and restates the prior Supplemental Executive Retirement
Agreement between the Bank and the Executive dated January 2, 2003 (the “Prior
Agreement”).
The
parties intend this Amended and Restated Agreement to be a material modification
of the Prior Agreement such that all amounts earned and vested prior to December
31, 2004 shall be subject to the provisions of Section 409A of the Code and
the
regulations promulgated thereunder.
The
purpose of this Agreement is to provide specified benefits to the Executive,
a
member of a
select
group of management or highly compensated employees who contribute materially
to
the continued growth, development, and future business success of the
Bank.
This
Agreement shall be unfunded for tax purposes and for purposes of Title I of
the
Employee Retirement Income Security Act of 1974 (“ERISA”), as amended from time
to time.
Article
1
Definitions
Whenever
used in this Agreement, the following words and phrases shall have the meanings
specified:
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1.1
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“Base
Benefit Amount”
means, with respect to the Employee, a maximum annual benefit of
Sixty
Five Thousand Dollars ($65,000).
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1.2
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“Beneficiary”
means each designated person, or the estate of the deceased Executive,
entitled to benefits, if any, upon the death of the Executive determined
pursuant to Article 4.
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1.3
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“Beneficiary
Designation Form”
means the form established from time to time by the Plan Administrator
that the Executive completes, signs, and returns to the Plan Administrator
to designate one or more
Beneficiaries.
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1.4
|
“Board”
means the Board of Directors of the Bank as from time to time
constituted.
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| 1.5 |
“Change
in Control”
means:
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|
(1)
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Any
“person” (as that term is used in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended), other than (A) a trustee
or
other fiduciary holding securities under an employee benefit plan
of the
Holding Company or (B) Employee or a group of persons including Employee,
is or becomes the beneficial owner (as that term is used in Section
13(d)
of the Securities Exchange Act of 1934), directly or indirectly,
of 50% or
more of the common voting stock of the Holding Company, the Bank
or their
successors;
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(2)
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There
shall be any consolidation or merger of the Holding Company or the
Bank in
which such entity is not the continuing or surviving corporation
or as a
result of which the holders of the voting capital stock of the Holding
Company or the Bank (as the case may be) immediately prior to the
consummation of the transaction do not own more than 50% of the voting
capital stock of the surviving corporation; or
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(3)
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There
occurs the sale of all or substantially all of the stock of the Bank
or of
the assets of the Holding Company or the
Bank.
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1.6
|
“Code”
means the Internal Revenue Code of 1986, as
amended.
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1.7
|
“Current
Benefit Level”
means an initial benefit amount of Forty Five Thousand Six Hundred
Sixty
Eight Dollars ($45,668) for the first Plan Year inflated at an annual
rate
of four percent (4%) until Normal Retirement Age with a maximum benefit
equal to the Base Benefit Amount.
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1.8
|
“Disability”
means Executive: (i) is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected
to
last for a continuous period of not less than twelve (12) months;
or (ii)
is, by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last
for a
continuous period of not less than twelve (12) months, receiving
income
replacement benefits for a period of not less than three (3) months
under
an accident and health plan covering employees of the Bank. Medical
determination of Disability may be made by either the Social Security
Administration or by the provider of an accident or health plan covering
employees of the Bank. Upon the request of the Plan Administrator,
the
Executive must submit proof to the Plan Administrator of the Social
Security Administration’s or the provider’s
determination.
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1.9
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“Early
Retirement”
means the Executive’s Early Termination after attaining Early Retirement
Age.
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1.10
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“Early
Retirement Age”
means the Executive attaining age sixty-two (62).
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1.11
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“Early
Termination”
means Separation from Service before Normal Retirement Age except
when such Separation from Service occurs: (i) following a Change
in
Control; or (ii) due to death,
Disability, or Termination for Cause.
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| 1.12 |
“Effective
Date”
means July 1, 2006.
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| 1.13 |
“Holding
Company”
means
SCBT
Financial
Corporation or such successor
corporation.
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1.14
|
“Net
Income”
means net income of the Holding Company, after taxes, determined
using
generally accepted accounting principles (GAAP) consistently applied
by
the certified public accountants retained by the Holding
Company.
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1.15
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“Normal
Retirement Age”
means the Executive attaining age sixty-five
(65).
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1.16
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“Normal
Retirement Date”
means the later of Normal Retirement Age or Separation from Service.
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1.17
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“Plan
Administrator”
means the plan administrator described in Article
6.
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1.18
|
“Performance
Ratio”
is
a fraction whereby the numerator is (a)
the Net Income of the Holding Company and the book value of the total
assets of the Holding Company determined as of the end of the Plan
Year
immediately preceding the occurrence of a distribution event as set
forth
in Article 2 or 3 and the denominator is (b) the Projected Net Income
and
Projected Total Assets as set forth in Exhibit A to this Agreement,
determined as of the end of the Plan Year immediately preceding such
distribution event. In
no event shall the Performance Ratio be greater than one
(1).
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|
1.19
|
“Plan
Year”
means each twelve-month period commencing on January 1 and ending
on
December 31 of each year. The initial Plan Year shall commence on
the
Effective Date of this Agreement and end on the following December
31.
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1.20
|
“Separation
from Service”
means the termination of the Executive’s
employment with
the Bank for reasons other than death. Whether
a Separation from Service takes place is determined based on the
facts and
circumstances surrounding the termination of the Executive’s employment
and whether the Bank and the Executive intended for the Executive
to
provide significant services for the Bank following such termination.
A
termination of employment will not be considered a Separation from
Service
if:
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|
(a)
|
the
Executive continues to provide services as an employee of the Bank
at an
annual rate that is twenty percent (20%) or more of the services
rendered,
on average, during the immediately preceding three full calendar
years of
employment (or, if employed less than three years, such lesser period)
and
the annual remuneration for such services is twenty percent (20%)
or more
of the average annual remuneration earned during the final three
full
calendar years of employment (or, if less, such lesser period),
or
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| (b) |
the
Executive continues to provide services to the Bank in a capacity
other
than as an employee of the Bank at an annual rate that is fifty percent
(50%) or more of the services rendered, on average, during the immediately
preceding three full calendar years of employment (or if employed
less
than three years, such lesser period) and the annual remuneration
for such
services is fifty percent (50%) or more of the average annual remuneration
earned during the final three full calendar years of employment (or
if
less, such lesser period).
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1.21
|
“Specified
Employee”
means a key employee (as defined in Section 416(i) of the Code without
regard to paragraph 5 thereof) of the Bank if any stock of the Bank
is
publicly traded on an established securities market or
otherwise.
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| 1.22 |
“Termination
for Cause”
means Separation from Service for (1)
the repeated failure of Employee to perform the responsibilities
and
duties for which he has been employed; (2) the commission of an act
by
Employee constituting dishonesty or fraud against the Holding Company
or
the Bank; (3) the conviction for or the entering of a guilty or no
contest
plea with respect to a felony; (4) habitual absenteeism, chronic
alcoholism or any other form of substance abuse; or (5) the commission
of
an act by Employee involving gross negligence or moral turpitude
that
brings the Holding Company or any of its affiliates into public disrepute
or disgrace or causes material harm to the customer relations, operations
or business prospects of the Holding Company or any of its
affiliates.
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Article
2
Distributions
During Lifetime
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2.1
|
Normal
Retirement Benefit.
Upon the Normal Retirement Date, the Bank shall distribute to the
Executive the benefit described in this Section 2.1 in lieu of any
other
benefit under this Article.
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2.1.1
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Amount
of Benefit.
The annual benefit under this Section 2.1 is equal
to (a) the Base Benefit Amount, multiplied by (b) the applicable
Performance Ratio.
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2.1.2
|
Distribution
of Benefit.
The Bank shall distribute the annual benefit to the Executive in
twelve
(12) equal monthly installments commencing on the first day of the
month
following the Normal Retirement Date. The annual benefit shall be
distributed to the Executive for twenty (20)
years.
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2.2
|
Early
Termination Benefit.
Upon Early Termination, the Bank shall distribute to the Executive
the
benefit described in this Section 2.2 in lieu of any other benefit
under
this Article.
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2.2.1
|
Amount
of Benefit.
The annual benefit under this Section 2.2 is equal to (a) the Current
Benefit Level, determined as of the end of the Plan Year immediately
preceding the Executive’s Early Termination, multiplied by (b) the
applicable
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Performance
Ratio multiplied by (c) the applicable Vesting Percentage. For purposes of
this
Section 2.2, the Vesting Percentage shall be determined as follows:
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Date
Ranges
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Vesting
Percentage
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Jul
1, 2006 - Dec 30, 2006
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30%
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Dec
31, 2006 - Dec 30, 2007
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40%
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Dec
31, 2007 - Dec 30, 2008
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50%
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Dec
31, 2008 - Dec 30, 2009
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60%
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Dec
31, 2009 - Dec 30, 2010
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70%
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Dec
31, 2010 - Dec 30, 2011
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80%
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Dec
31, 2011 - Dec 30, 2012
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90%
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Dec
31, 2012 or Later
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100%
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2.2.2
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Distribution
of Benefit.
The Bank shall distribute the benefit to the Executive in twelve
(12)
equal monthly installments commencing the first day of the month
following
Normal Retirement Age. The annual benefit shall be distributed to
the
Executive for twenty (20) years.
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2.3
|
Early
Retirement Benefit.
Upon Early Retirement, the Bank shall distribute to the Executive
the
benefit described in this Section 2.3 in lieu of any other benefit
under
this Article.
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2.3.1
|
Amount
of Benefit.
The annual benefit under this Section 2.3 is equal to (a) One Hundred
Percent (100%) of the Current Benefit Level, determined as of the
end of
the Plan Year immediately preceding the Executive’s Early Retirement,
multiplied by (b) the applicable Performance Ratio.
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2.3.2
|
Distribution
of Benefit.
The Bank shall distribute the benefit to the Executive in twelve
(12)
equal monthly installments commencing the first day of the month
following
Separation from Service. The annual benefit shall be distributed
to the
Executive for twenty (20) years.
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2.4
|
Disability
Benefit.
If
the Executive experiences a Disability which results in a Separation
from
Service prior to Normal Retirement Age, the Bank shall distribute
to the
Executive the benefit described in this Section 2.4 in lieu of any
other
benefit under this Article.
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2.4.1
|
Amount
of Benefit.
The annual benefit under this Section 2.4 is equal to (a) One Hundred
Percent (100%) of the Current Benefit Level, determined as of the
end of
the Plan Year immediately preceding the Executive’s Separation from
Service, multiplied by (b) the applicable Performance
Ratio.
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2.4.2
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Distribution
of Benefit.
The Bank shall distribute the benefit to the Executive in twelve
(12)
equal monthly installments commencing the first day of the month
following
Normal Retirement Age. The annual benefit shall be distributed to
the
Executive for twenty (20) years.
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2.5
|
Change
in Control Benefit.
Upon a Change in Control followed by a Separation from Service, the
Bank
shall distribute to the Executive the benefit described in this Section
2.5 in lieu of any other benefit under this Article.
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2.5.1
|
Amount
of Benefit.
The
benefit under this Section 2.5 is the Base Benefit
Amount.
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2.5.2
|
Distribution
of Benefit.
The
Bank shall distribute the benefit to the Executive in twelve (12)
equal
monthly installments commencing the first day of the month following
Normal Retirement Age. The annual benefit shall be distributed to
the
Executive for twenty (20) years.
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2.5.3
|
Establishment
of a Domestic Grantor Trust upon a Change in Control.
Upon a Change in Control, the Bank shall establish a domestic grantor
trust which shall be used exclusively for the funding of benefits
under
the South Carolina Bank and Trust, Supplemental Executive Retirement
Agreement and satisfying the claims of general creditors of the Bank
in
the event the Bank becomes insolvent.
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2.6
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Restriction
on Timing of Distribution.
Notwithstanding any provision of this Agreement to the contrary,
if the
Executive is considered a Specified Employee at Separation from Service
under such procedures as established by the Bank in accordance with
Section 409A of the Code, benefit distributions that are made upon
Separation from Service may not commence earlier than six (6) months
after
the date of such Separation from Service. Therefore, in the
event this Section 2.6 is applicable to the Executive, any distribution
which would otherwise be paid to the Executive within the first six
months
following the Separation from Service shall be accumulated and paid
to the
Executive in a lump sum on the first day of the seventh month following
the Separation from Service. All subsequent distributions shall be
paid in
the manner specified.
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2.7
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Distributions
Upon Income Inclusion Under Section 409A of the Code.
Upon the inclusion of any portion of the amount accrued by the Bank
with
respect to the Bank’s obligations hereunder into the Executive’s income as
a result of the failure of this non-qualified deferred compensation
plan
to comply with the requirements of Section 409A of the Code, to the
extent
such tax liability can be covered by the vested amount the Bank has
accrued with respect to the Bank’s obligations hereunder, a distribution
shall be made as soon as is administratively practicable following
the
discovery of the plan failure.
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2.8
|
Change
in Form or Timing of Distributions.
For distribution of benefits under this Article 2, the Executive
and the
Bank may, subject to the terms of Section 8.1, amend the Agreement
to
delay the timing or change the form of distributions. Any such
amendment:
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(a)
|
may
not accelerate the time or schedule of any distribution, except as
provided
in Section 409A of the Code and the regulations
thereunder;
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(b)
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must,
for benefits distributable under Section 2.2, 2.4 and 2.5 be made
at least
twelve (12) months prior to the first scheduled
distribution;
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(c)
|
must,
for benefits distributable under Sections 2.1, 2.2, 2.3, 2.4 and
2.5,
delay the commencement of distributions for a minimum of five (5)
years
from the date the first distribution was originally scheduled to
be made;
and
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(d)
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must
take effect not less than twelve (12) months after the amendment
is
made.
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Article
3
Distribution
at Death
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3.1
|
Death
During Active Service.
If
the Executive dies while in the active service of the Bank, the Bank
shall
distribute to the Beneficiary the benefit described in this Section
3.1.
These benefits shall be distributed in lieu of the benefits under
Article
2.
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3.1.1
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Amount
of Benefit.
The benefits under this Section 3.1 are equal
to:
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(a)
|
the
Base Benefit Amount; plus
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(b)
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Two
Hundred Fifty Thousand Dollars
($250,000).
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3.1.2
|
Distribution
of Benefit.
The Bank shall distribute the benefits described in Section 3.1.1
as
follows:
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(a)
|
the
benefit described in Section 3.1.1(a) shall be distributed to the
Executive’s Beneficiary in
twelve (12) equal monthly installments for ten (10) years commencing
within thirty (30) days of receipt by the Bank of the Executive’s death
certificate; plus
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(b)
|
the
benefit described in Section 3.1.1(b) shall be distributed to the
Executive’s Beneficiary in a lump sum within thirty (30) days of receipt
by the Bank of the Executive’s death
certificate.
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3.2
|
Death
During Distribution of a Benefit.
If
the Executive dies after any benefit distributions have commenced
under
this Agreement but before receiving all such distributions, the Bank
shall
distribute to the Beneficiary the remaining benefits at the same
time and
in the same amounts
that
would have been distributed to the Executive had the Executive
survived.
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3.3
|
Death
After Separation from Service But Before Benefit Distributions
Commence. If
the Executive is entitled to benefit distributions under this Agreement,
but dies prior to the commencement of said benefit distributions,
the Bank
shall distribute to the Beneficiary the same benefits that the Executive
was entitled to prior to death except that the benefit distributions
shall
commence within thirty (30) days following receipt by the Bank of
the
Executive’s death certificate.
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Article
4
Beneficiaries
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4.1
|
Beneficiary.
The Executives shall have the right, at any time, to designate a
Beneficiary(ies) to receive any benefit distributions under this
Agreement
upon the death of the Executive. The Beneficiary designated under
this
Agreement may be the same as or different from the beneficiary designation
under any other plan of the Bank in which the Executive participates.
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4.2
|
Beneficiary
Designation: Change.
The
Executives shall designate a Beneficiary by completing and signing
the
Beneficiary Designation Form, and delivering it to the Plan Administrator
or its designated agent. The Executive's beneficiary designation
shall be
deemed automatically revoked if the Beneficiary predeceases the Executive
or if the Executive names a spouse as Beneficiary and the marriage
is
subsequently dissolved. The Executive shall have the right to change
a
Beneficiary by completing, signing and otherwise complying with the
terms
of the Beneficiary Designation Form and the Plan Administrator’s rules and
procedures, as in effect from time to time. Upon the acceptance by
the
Plan Administrator of a new Beneficiary Designation Form, all Beneficiary
designations previously filed shall be cancelled. The Plan Administrator
shall be entitled to rely on the last Beneficiary Designation Form
filed
by the Executive and accepted by the Plan Administrator prior to
the
Executive’s death.
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4.3
|
Acknowledgment.
No
designation or change in designation of a Beneficiary shall be effective
until received, accepted and acknowledged in writing by the Plan
Administrator or its designated
agent.
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4.4
|
No
Beneficiary Designation.
If
the Executive dies without a valid beneficiary designation, or if
all
designated Beneficiaries predecease the Executive, then the Executive’s
spouse shall be the designated Beneficiary. If the Executive has
no
surviving spouse, the benefits shall be made to the Executive's
estate.
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4.5
|
Facility
of Distribution.
If
the Plan Administrator determines in its discretion that a benefit
is to
be distributed to a minor, to a person declared incompetent, or to
a
person incapable of handling the disposition of that person’s property,
the Plan Administrator may direct distribution of such benefit to
the
guardian, legal representative or person having the care or custody
of
such minor, incompetent person or incapable person. The Plan Administrator
may require proof of incompetence, minority or guardianship as it
may deem
appropriate prior to distribution of the benefit. Any distribution
of a
benefit shall be a distribution for the account of the Executive
and the
Executive’s Beneficiary, as the case may be, and shall be a complete
discharge of any liability under the Agreement for such distribution
amount.
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Article
5
General
Limitations
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5.1
|
Termination
for Cause.
Notwithstanding any provision of this Agreement to the contrary,
the Bank
shall not distribute any benefit under this Agreement if the Executive’s
employment with the Bank is terminated due to a Termination for
Cause.
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|
5.2
|
Removal. Notwithstanding
any provision of this Agreement to the contrary, the Bank shall not
distribute any benefit under this Agreement if the Executive is subject
to
a final removal or prohibition order issued by an appropriate federal
banking agency pursuant to Section 8(e) of the Federal Deposit Insurance
Act.
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|
5.3
|
Forfeiture
Provision.
The
Executive’s benefits under this Agreement shall be forfeited upon the
Executive’s entering into “competition” with the Bank at any time during
the twelve (12) month period after his employment is terminated for
any
reason. For purposes of this section, “competition” shall mean the
Executive’s engaging in any manner, directly or indirectly, individually,
as a stockholder, partner, member, consultant, or agent of any company
or
other business organization or otherwise that engages in the development,
marketing, selling or maintenance of any line of business that the
Bank
actively conducts (the “Company Business”) in any county in which the
Holding Company, the Bank or an affiliated entity has an office or
facility (the “Noncompete Area”).
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|
Notwithstanding
the previous sentence, “competition” shall not include the Executive’s
ownership of no more than two percent (2%) of the debt or equity
securities of corporations listed on a registered securities exchange
that
directly or indirectly engage in the Company Business in the Noncompete
Area. In addition, the provisions of this Section 5.4 shall not apply
if
the Executive is terminated after a Change in
Control (as defined in Section 1.5) for reasons other than Cause.
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Article
6
Administration
of Agreement
|
6.1
|
Plan
Administrator Duties.
This Agreement shall be administered by a Plan Administrator which
shall
consist of the Board, or such committee or person(s) as the Board
shall
appoint. The Plan Administrator shall administer this Agreement according
to its express terms and shall also have the discretion and authority
to
(i) make, amend, interpret and enforce all appropriate rules and
regulations for the administra-tion of this Agreement and (ii) decide
or
resolve any and all ques-tions including interpretations of this
Agreement, as may arise in connection with the Agreement to the extent
the
exercise of such discretion and authority does not conflict with
Section
409A of the Code and regulations
thereunder.
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|
6.2
|
Agents.
In
the administration of this Agreement, the Plan Administrator may
employ
agents and delegate to them such administrative duties as it sees
fit,
(including acting through a duly appointed representative), and may
from
time to time consult with counsel who may be counsel to the
Bank.
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|
6.3
|
Binding
Effect of Decisions.
The decision or action of the Plan Administrator with respect to
any
question arising out of or in connection with the administration,
interpretation and application of the Agreement and the rules and
regulations promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Agreement.
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|
6.4
|
Indemnity
of Plan Administrator.
The Bank shall indemnify and hold harmless the members of the Plan
Administrator against any and all claims, losses, damages, expenses
or
liabilities arising from any action or failure to act with respect
to this
Agreement, except in the case of willful misconduct by the Plan
Administrator or any of its
members.
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|
6.5
|
Bank
Information.
To
enable the Plan Administrator to perform its functions, the Bank
shall
supply full and timely information to the Plan Administrator on all
matters relating to the date and circum-stances of the retirement,
Disability, death, or Separation from Service of the Executive, and
such
other pertinent information as the Plan Administrator may reasonably
require.
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|
6.6
|
Annual
Statement.
The Plan Administrator shall provide to the Executive, within one
hundred
twenty (120) days after the end of each Plan Year, a statement setting
forth the benefits to be distributed under this
Agreement.
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Article
7
Claims
And Review Procedures
|
7.1
|
Claims
Procedure.
An
Executive or Beneficiary (“claimant”) who has not received benefits under
the Agreement that he or she believes should be distributed shall
make a
claim for such benefits as follows:
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|
7.1.1
|
Initiation
- Written Claim.
The claimant initiates a claim by submitting to the Plan Administrator
a
written claim for the benefits. If such a claim relates to the contents
of
a notice received by the claimant, the claim must be made within
sixty
(60) days after such notice was received by the claimant. All other
claims must be made within one hundred eighty (180) days of the date
on which the event that caused the claim to arise occurred. The claim
must
state with particularity the determination desired by the
claimant.
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|
7.1.2
|
Timing
of Plan Administrator Response.
The
Plan Administrator shall respond to such claimant within 90 days
after
receiving the claim. If the Plan Administrator determines that special
circumstances require additional time for processing the claim, the
Plan
Administrator can extend the response period by an additional 90
days by
notifying the claimant in writing, prior to the end of the initial
90-day
period, that an additional period is required. The notice of extension
must set forth the special circumstances and the date by which the
Plan
Administrator expects to render its
decision.
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|
7.1.3
|
Notice
of Decision.
If
the Plan Administrator denies part or all of the claim, the Plan
Administrator shall notify the claimant in writing of such denial.
The
Plan Administrator shall write the notification in a manner calculated
to
be understood by the claimant. The notification shall set
forth:
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|
(a)
|
The
specific reasons for the denial;
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|
(b)
|
A
reference to the specific provisions of the Agreement on which the
denial
is based;
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|
(c)
|
A
description of any additional information or material necessary for
the
claimant to perfect the claim and an explanation of why it is
needed;
|
|
(d)
|
An
explanation of the Agreement’s review procedures and the time limits
applicable to such procedures; and
|
|
(e)
|
A
statement of the claimant’s right to bring a civil action under ERISA
Section 502(a) following an adverse benefit determination on
review.
|
|
7.2
|
Review
Procedure.
If
the Plan Administrator denies part or all of the claim, the claimant
shall
have the opportunity for a full and fair review by the Plan Administrator
of the denial, as follows:
|
|
7.2.1
|
Initiation
- Written Request.
To
initiate the review, the claimant, within 60 days after receiving
the Plan
Administrator’s notice of denial, must file with the Plan Administrator a
written request for review.
|
|
7.2.2
|
Additional
Submissions - Information Access.
The claimant shall then have the opportunity to submit written comments,
documents, records and other information relating to the claim. The
Plan
Administrator shall also provide the claimant, upon request and free
of
charge, reasonable access to, and copies of, all documents, records
and
other information relevant (as defined in applicable ERISA regulations)
to
the claimant’s claim for benefits.
|
|
7.2.3
|
Considerations
on Review.
In
considering the review, the Plan Administrator shall take into account
all
materials and information the claimant submits relating to the claim,
without regard to whether such information was submitted or considered
in
the initial benefit determination.
|
|
7.2.4
|
Timing
of Plan Administrator Response.
The Plan Administrator shall respond in writing to such claimant
within 60
days after receiving the request for review. If the Plan Administrator
determines that special circumstances require additional time for
processing the claim, the Plan Administrator can extend the response
period by an additional 60 days by notifying the claimant in writing,
prior to the end of the initial 60-day period, which an additional
period
is required. The notice of extension must set forth the special
circumstances and the date by which the Plan Administrator expects
to
render its decision.
|
|
7.2.5
|
Notice
of Decision.
The Plan Administrator shall notify the claimant in writing of its
decision on review. The Plan Administrator shall write the notification
in
a manner calculated to be understood by the claimant. The notification
shall set forth:
|
|
(a)
|
The
specific reasons for the denial;
|
|
(b)
|
A
reference to the specific provisions of the Agreement on which the
denial
is based;
|
|
(c)
|
A
statement that the claimant is entitled to receive, upon request
and free
of charge, reasonable access to, and copies of, all documents, records
and
other information relevant (as defined in applicable ERISA regulations)
to
the claimant’s claim for benefits;
and
|
|
(d)
|
A
statement of the claimant’s right to bring a civil action under ERISA
Section 502(a).
|
Article
8
Amendments
and Termination
|
8.1
|
Amendments.
This Agreement may be amended only by a written agreement signed
by the
Bank and the Executive. However, the Bank may unilaterally amend
this
Agreement to conform with written directives to the Bank from its
auditors
or banking regulators or to comply with legislative or tax law, including
without limitation Section 409A of the Code and any and all regulations
and guidance promulgated
thereunder.
|
|
8.2
|
Plan
Termination Generally.
The Bank may unilaterally terminate this Agreement at any time. The
benefit shall be the amount accrued by the Bank with respect to the
Bank’s
obligations hereunder. Except as provided in Section 8.3, the termination
of this Agreement shall not cause a distribution of benefits under
this
Agreement. Rather, upon such termination benefit distributions will
be
made at the earliest distribution event permitted under Article 2
or
Article 3.
|
|
8.3
|
Plan
Terminations Under Section 409A.
Notwithstanding anything to the contrary in Section 8.2, if the Bank
terminates this Agreement in the following
circumstances:
|
|
(a)
|
Within
thirty (30) days before, or twelve (12) months after a change in
the
ownership or effective control of the Bank, or in the ownership of
a
substantial portion of the assets of the Bank as described in Section
409A(2)(A)(v) of the Code, provided that all distributions are made
no
later than twelve (12) months following such termination of the Agreement
and further provided that all the Bank's arrangements which are
substantially similar to the Agreement are terminated so the
Executive and all participants in the similar arrangements are
required to receive all amounts of compensation deferred under the
terminated arrangements within twelve (12) months of the termination
of
the arrangements;
|
| (b) |
Upon
the Bank’s dissolution or with the approval of a bankruptcy court provided
that the amounts deferred under the Agreement are included in the
Executive's gross income in the latest of (i) the calendar year in
which
the Agreement terminates; (ii) the calendar year in which the amount
is no
longer subject to a substantial risk of forfeiture; or (iii) the
first
calendar year in which the distribution is administratively practical;
or
|
| (c) |
Upon
the Bank’s termination of this and all other non-account balance plans (as
referenced in Section 409A of the Code or the regulations thereunder),
provided that all distributions are made no earlier than twelve (12)
months and no later than twenty-four (24) months following such
termination, and the Bank does not adopt any new non-account balance
plans
for a minimum of five (5) years following the date of such termination;
|
the
Bank
may distribute the vested amount accrued by the Bank with respect to the Bank’s
obligations hereunder, to the Executive in a lump sum subject to the above
terms.
Article
9
Miscellaneous
|
9.1
|
Binding
Effect.
This Agreement shall bind the Executive and the Bank, and their
beneficiaries, survivors, executors, administrators and
transferees.
|
|
9.2
|
No
Guarantee of Employment.
This Agreement is not a contract for employment. It does not give
the
Executive the right to remain as an employee of the Bank, nor does
it
interfere with the Bank's right to discharge the Executive. It also
does
not require the Executive to remain an employee nor interfere with
the
Executive's right to terminate employment at any
time.
|
|
9.3
|
Non-Transferability.
Benefits under this Agreement cannot be sold, transferred, assigned,
pledged, attached or encumbered in any
manner.
|
|
9.4
|
Tax
Withholding and Reporting.
The Bank shall withhold any taxes that are required to be withheld,
including but not limited to taxes owed under Section 409A of the
Code and
regulations thereunder, from the benefits provided under this Agreement.
The Executive acknowledges that the Bank’s sole liability regarding taxes
is to forward any amounts withheld to the appropriate taxing
authority(ies). Further, the Bank shall satisfy all applicable reporting
requirements, including those under Section 409A of the Code and
regulations thereunder.
|
|
9.5
|
Applicable
Law.
The Agreement and all rights hereunder shall be governed by the laws
of
the State of South Carolina, except to the extent preempted by the
laws of
the United States of America.
|
|
9.6
|
Unfunded
Arrangement.
The Executive and the Beneficiary are general unsecured creditors
of the
Bank for the distribution of benefits under this Agreement. The benefits
represent the mere promise by the Bank to distribute such benefits.
The
rights to benefits are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment,
or garnishment by creditors. Any insurance on the Executive's life
or
other informal funding asset is a general asset of the Bank to which
the
Executive and Beneficiary have no preferred or secured
claim.
|
|
9.7
|
Reorganization. The
Bank shall not merge or consolidate into or with another bank, or
reorganize, or sell substantially all of its assets to another bank,
firm,
or person unless such succeeding or continuing bank, firm, or person
agrees to assume and discharge the obligations of the Bank under
this
Agreement. Upon the occurrence of such event, the term “Bank” as used in
this Agreement shall be deemed to refer to the successor or survivor
bank.
|
|
9.8
|
Entire
Agreement. This
Agreement constitutes the entire agreement between the Bank and the
Executive as to the subject matter hereof. No rights are granted
to the
Executive by virtue of this Agreement other than those specifically
set
forth herein.
|
|
9.9
|
Interpretation.
Wherever the fulfillment of the intent and purpose of this Agreement
requires, and the context will permit, the use of the masculine gender
includes the feminine and use of the singular includes the
plural.
|
|
9.10
|
Alternative
Action.
In
the event it shall become impossible for the Bank or the Plan
Administrator to perform any act required by this Agreement, the
Bank or
Plan Administrator may in its discretion perform such alternative
act as
most nearly carries out the intent and purpose of this Agreement
and is in
the best interests of the Bank, provided that such alternative acts
do not
violate Section 409A of the Code.
|
|
9.11
|
Headings.
Article and section headings are for convenient reference only and
shall
not control or affect the meaning or construction of any of its
provisions.
|
|
9.12
|
Validity.
In
case any provision of this Agreement shall be illegal or invalid
for any
reason, said illegality or invalidity shall not affect the remaining
parts
hereof, but this Agreement shall be construed and enforced as if
such
illegal and invalid provision has never been inserted
herein.
|
|
9.13
|
Notice.
Any notice or filing required or permitted to be given to the Bank
or Plan
Administrator under this Agreement shall be sufficient if in writing
and
hand-delivered, or sent by registered or certified mail, to the address
below:
|
|
South
Carolina Bank and Trust,
National
Association
|
|
Attn:
CEO
000
Xxxxxxx Xxxxxx
|
|
Xxxxxxxx,
XX 00000
|
Such
notice shall be deemed given as of the date of delivery or, if delivery is
made
by mail, as of the date shown on the postmark on the receipt for registration
or
certification.
Any
notice
or filing required or permitted to be given to the Executive under this
Agreement shall be sufficient if in writing and hand-delivered, or sent by
mail,
to the last known address of the Executive.
|
9.14
|
Compliance
with Section 409A.
This Agreement shall at all times be administered and the provisions
of
this Agreement shall be interpreted consistent with the requirements
of
Section 409A of the Code and any and all regulations thereunder,
including
such regulations as may be promulgated after the Effective Date of
this
Agreement.
|
| 9.15 |
Assignment.
This Agreement can be assigned in the Bank's sole discretion by the
Bank
to the Holding Company or any other subsidiary of the Holding
Company. In any such event, all references herein to the term "Bank"
shall mean the entity to which this Agreement is
assigned.
|
IN
WITNESS
WHEREOF, the Executive and a duly authorized representative of the Bank have
signed this Agreement.
|
Executive:
|
BANK:
|
|
|
South
Carolina Bank and Trust,
|
||
|
National
Association
|
||
|
/s/
Xxxxxxx X. Xxxxxx
|
By
/s/
Xxxxxx X. Xxxx, Xx.
|
|
|
Xxxxxxx
X. Xxxxxx
|
||
|
Title
Chief
Executive
Officer
|
EXHIBIT
A
As
of
December 31, 2002, the Net Income of the Holding Company is $13,834,000 and
the
book value of total assets of the Holding Company is $1,144,948,000. Assuming
Net Income grows at 6% and that the book value of total assets of the Holding
Company grows at 7%, Projected Net Income and Projected Total Assets are as
follows:
|
Date
|
Projected
Net
Income
|
Projected
Total
Assets
|
|
Dec
31, 2003
|
14,664,040
|
1,225,094,360
|
|
Dec
31, 2004
|
15,543,882
|
1,310,850,965
|
|
Dec
31, 2005
|
16,476,515
|
1,402,610,533
|
|
Dec
31, 2006
|
17,465,106
|
1,500,793,270
|
|
Dec
31, 2007
|
18,513,013
|
1,605,848,799
|
|
Dec
31, 2008
|
19,623,793
|
1,718,258,215
|
|
Dec
31, 2009
|
20,801,221
|
1,838,536,290
|
|
Dec
31, 2010
|
22,049,294
|
1,967,233,830
|
|
Dec
31, 2011
|
23,372,252
|
2,104,940,198
|
|
Dec
31, 2012
|
24,774,587
|
2,252,286,012
|
|
Dec
31, 2013
|
26,261,062
|
2,409,946,033
|
|
Dec
31, 2014
|
27,836,726
|
2,578,642,255
|
