DEFERRED COMPENSATION AGREEMENT
Exhibit 10.36
Governing Instrument
436765019
436765019
THIS
AGREEMENT made and entered into as of this 1st day of January, 2006
by and between LIFE OF THE SOUTH CORPORATION, a Georgia corporation (the “Company”),
and XXXXXX X. XXXXXXXXXX (the “Employee”).
W I T N E S S E T H:
WHEREAS, the Company and Employee entered into an Employment Agreement, dated as of May 1,
2005 (“Employment Agreement”), providing for the crediting of certain deferred compensation amounts
to Employee each year during the Term of the Employment Agreement if the Company satisfies certain
financial targets; and
WHEREAS, THE Company and Employee desire to enter into this Agreement to evidence the
Company’s deferred compensation obligations under the Employment Agreement; and
WHEREAS, Employee is considered a highly compensated employee and a member of a select
management group of the Company;
NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein
set forth, the parties hereto covenant and agree as follows:
ARTICLE I
BENEFITS
1.1 Deferred Compensation Account. (a) The Company shall establish a deferred compensation
account (“Account”) in the Employee’s name on its records. Commencing for the fiscal year of the
Company ending December 31, 2005, on or before May 1 of each year during the Term of the Employment
Agreement for which the Company’s Annual Operating Income Targets are met for the preceding fiscal
year, the Company shall credit an amount to Employee’s Account equal to $15,000, and for every 1%
the actual Operating Income for such year exceeds the Annual Operating Income Target, the amount
credited to the Account shall be increased by $1,000, up to a maximum aggregate annual credit of
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$30,000. The value of the Account shall be determined on each Valuation Date (as hereinafter
defined) as if the Account were invested in the “Vanguard Index Trust — 500 Portfolio” (or a
similar index fund replacing such Index, “Vanguard Index Fund”), and as amounts are credited to the
Account, they will be treated as if they were invested as soon as practicable in the Vanguard Index
Fund (subject to any expenses or costs of such investment); provided that, the Company may provide
alternative investment options in which the Account is deemed to be invested and may permit the
Employee to elect periodically the investment option (or options) in which his Account is deemed to
be invested. When the Employee (or his beneficiary) becomes entitled to payment of benefits under
this Agreement, he shall be entitled to receive the balance credited to his Account as of the
immediately preceding Valuation Date (“Account Balance”). The initial adjustment of the Account
shall be made on January 1, 2007 for the change in the vanguard Index Fund (or other investment
options) from the date an amount is first credited to Employee during 2006. The Valuation Date(s)
shall be January 1st of each calendar year, and such other dates (if any) as may be designated by
the Company on which the Employee’s Account will be valued. The Employee’s interest in his Account
Balance shall at all times be 100% vested and nonforfeitable.
(b) At such time as Employee shall retire on or after his Normal Retirement Date (the “Normal
Retirement Date”) as provided in the Life of the South Corporation Profit Sharing Plan and Trust or
any retirement plan replacing or superseding same (the “Profit Sharing Plan”) , or, if he retires
or terminates prior to such Normal Retirement Date, then when he reaches the date which would have
been his Normal Retirement Date (the applicable date being hereinafter referred to as the “Payment
Commencement Date”), the Company shall pay the Employee his Account Balance in one hundred twenty
(120) substantially equal monthly installments; provided, that the Employee may elect at the time
he first becomes covered under this Agreement to receive his benefits in a lump sum on the Payment
Commencement Date by electing such payment in the manner established by the Employer, provided,
further, that Employee shall have one additional opportunity to change his payment election to
receive either 120 monthly installments or a lump sum, subject to the following conditions: (i)
the change election must be made at least 12 months prior to the initial payment date, (ii) the
payment date will be delayed for 5 years after retirement, (iii) the change election will not be
given effect for 12 months, and (iv) the change election will be
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irrevocable. The balance in the Employee’s Account shall continue to be treated as if it were
invested as specified in
(a) above until the amount has been fully distributed to him.
If the Employee terminates employment prior to his Payment
Commencement Date and dies prior to commencement of payments,
his designated beneficiary (as set forth on Schedule “A”) shall
receive the Account Balance that would otherwise have been
payable to the Employee, payable in a lump sum on the date that
would have been the Employee’s Payment Commencement Date.
(c) Unless a lump sum is elected, the amount due
Employee shall be paid in one hundred twenty (120) substantially
equal monthly installments. Such payments shall commence within
thirty-one (31) days after the Payment Commencement Date and
shall be paid monthly on the same date of each month thereafter
for a period of ten (10) years following the Payment
Commencement Date. If Employee dies after the Payment
Commencement Date but prior to the expiration of such 10-year
period, the remaining Account Balance which would otherwise have
been paid to Employee shall be paid in a lump sum to such
person(s) as Employee shall designate by written instrument on
Schedule “A” attached hereto.
(d) In the event of a Change in Control of the
Company, as defined in the Employee’s Employment Agreement and either (i) the Employee is
terminated by the Company without Cause (as defined in the Employment Agreement) or (ii) the
Employee terminates employment for Good Reason (as defined in the Employment Agreement), within
twelve (12) months of such Change in Control, then the Employee shall be entitled to receive an
immediate lump sum payment of his Account Balance (but no further credits shall be made to his
Account after such payment). If, after a Change in Control, the Employee terminates employment
voluntarily without. Good Reason or if his employment is terminated by the Company for Cause, then
his Account Balance shall be payable in accordance with subsection
(b) above.
1.2 Death Benefit. If Employee dies while employed by the Company, the Company shall make
the remainder (if any) of the annual contributions to the Account required under Section 1.1(a)
above for the prior fiscal year and pay his Account Balance in a lump sum as soon as practical
after his death to such person(s) as Employee shall designate by written instrument in the form of
Schedule “A” attached hereto. Employee shall have the right to change the designated recipient(s)
of this
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payment by delivering to the Company prior to his death an amended and updated designation in
the form of Schedule “A.” In the event Employee shall fail, for purposes of Sections 1.1 or 1.2, to
designate a recipient prior to his death in the manner described above, or if all such designations
previously received by the Company have been revoked by Employee under a written revocation
delivered to the Company prior to Employee’s death, the payment shall be made to Employee’s
surviving spouse, or if Employee dies without a spouse surviving him, then to the duly qualified
executor or administrator of Employee’s estate. Any person other than Employee who is to receive
or who receives benefits under this Agreement is herein referred to
as a “designated recipient (s).”
1.3 Conditions to Payment of Benefits.
Notwithstanding anything herein to the contrary, all benefits payable under this Article I to
Employee or his designated recipient(s) shall not be payable and shall be forfeited in the event
and at the time Employee fails to meet or comply with the following conditions: Employee must
render such reasonable business consulting and advisory services as the Board of Directors of Life
of the South Corporation may call upon him to provide, and as his health may permit, from time to
time during the period from his Payment Commencement Date to the expiration of the 10-year period
during which benefits are payable hereunder or his death, whichever first occurs. In this regard,
it is understood that (i) such consulting and advisory services shall not require Employee to be
active in the day-to-day activities of the Company, (ii) Employee shall perform such services as an
independent contractor, and (iii) Employee shall be reimbursed for all ordinary and necessary
business expenses incurred in performing such services. Notwithstanding the foregoing, in no event
will Employee be required to perform any consulting services under this Section 1.3 for any
corporation or other entity which is a successor of Life of the South Corporation or which is
controlled by any such successor.
1.4 Conformance with Section 409A.
This Agreement shall be operated in accordance with the requirements of Section 409A. Any
action that may be taken (and, to the extent possible, any action actually taken) by the
Administrator or the Company shall not be taken (or shall be void and without effect), if such
action violates the requirements of Section 409A. Any provision in this Agreement
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that is determined to violate the requirements of Section 409A shall be void and without effect.
In addition, any provision that is required to appear in this Agreement in accordance with Section
409A that is not expressly set forth shall be deemed to be set forth herein, and the Agreement
shall be administered in all respects as if such provision were expressly set forth.
ARTICLE II
UNFUNDED OBLIGATIONS
The Company’s obligations under this Agreement shall be unfunded and unsecured promises
to pay the benefits provided for hereunder. The Company agrees to establish a “rabbi trust” to
assist in meeting its obligations to Employee hereunder. The Company intends to fund such trust by
directing the Trustee to purchase shares of the Vanguard Index Fund (or a similar index fund), or
any alternative investment options established by the Company.
The rights of Employee, any designated recipient of Employee or any other person claiming
through Employee under this Agreement, shall be solely those of an unsecured general creditor of
the Company. Employee, any designated recipient of Employee or any other person claiming through
Employee, shall only have the right to receive from the Company those payments which are specified
under this Agreement. Employee agrees that he, his designated recipient(s) or any other person
claiming through him shall have no rights or interests whatsoever in any asset of the Company.
ARTICLE III
INDEPENDENCE OF BENEFITS
The benefits payable under this Agreement shall be independent of, and in addition to,
any other benefits or compensation payable by the Company to Employee, whether as salary, bonus or
otherwise. This Agreement does not involve a reduction in salary or a foregoing of an increase in
future salary by Employee and does not in any way affect or reduce the existing and future
compensation and other benefits of Employee.
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ARTICLE IV
EMPLOYMENT RIGHTS
This Agreement shall not be deemed to constitute a contract of employment
between the Company and Employee and shall not create any rights in Employee to
continue in the Company’s employ for any specific period of time or any other rights in
Employee or obligations on the part of the Company, except as are expressly set forth
herein. No provision of this Agreement shall restrict the right of the Company to
discharge Employee, with or without cause, or restrict the right of Employee to
terminate his employment with the Company.
ARTICLE V
NONALIENATION OF BENEFITS
No right or benefit under this Agreement shall be subject to anticipation,
alienation, sale, assignment, pledge, encumbrance or charge, and any attempt to
anticipate, alienate, sell, assign, pledge, encumber or charge the same shall be void.
No right or benefit hereunder shall in any manner be liable for or subject to the
debts, contracts, liabilities or torts of Employee or his designated
recipient(s). If
Employee or any such recipient shall become bankrupt or attempt to anticipate,
alienate, sell, assign, pledge, encumber or charge any right or benefit hereunder, then
such right or benefit shall, in the discretion of the Board of Directors of the
Company, cease and terminate, and in such event, the Company may hold or apply same or
any part thereof for the benefit of Employee or his designated recipient (s) , his
spouse, children or other dependents, or any of them, in such manner and in such
proportion as the Board of Directors of the Company may deem proper under the then
existing circumstances.
ARTICLE VI
AGREEMENT BINDING ON SUCCESSORS
This Agreement is solely between the Company and Employee, and Employee and
his designated recipient(s) shall have recourse only against the Company and its
successors and assigns for enforcement hereof. This Agreement will be binding upon
Employee’s designated recipient(s), heirs and personal
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representatives and upon the successors and assigns of the Company.
ARTICLE VII
ADMINISTRATOR AND CLAIMS PROCEDURE
7.1 Named Administrator. The Administrator under
this Agreement is the Company. The business address and
telephone number of the Administrator under this Agreement are:
000 X. Xxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, ATTN: Xxx Xxxxx;
telephone number: (000) 000-0000.
7.2 Claims Procedure. Benefits shall be paid in
accordance with the provisions of this Agreement. The
Administrator shall make all determinations as to the right of
Employee or any other person to a benefit under this Agreement,
and any requests for such a benefit must be made in writing
mailed or delivered to the Administrator. If such a request is
wholly or partially denied, notice of the decision shall be
mailed to the claiming person no later than 90 days after the
receipt of the request by the Administrator. The claim review
procedure is available upon written request by the claimant to
the Administrator within 60 days after receipt by the claimant
of written notice of the denial of the claim and includes the
right to examine pertinent documents and submit issues and
comments in writing to the Administrator, The decision on
review will be in writing and will be made within 60 days after
receipt of the request for review, unless circumstances warrant
an extension of time not to exceed an additional 60 days . The
Administrator shall have the exclusive discretionary authority
to make all determinations relating to the Employee’s rights to
benefits hereunder.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Any and all notices or any other communication provided for herein shall be
given in writing personally or by registered or certified mail, postage prepaid, which
shall be addressed in the case of the Company to the Administrator at the address
specified in Section 8.1 hereof, and in the case of Employee or his designated
recipient(s), to the business or residence address of such person last known to the
Company (if mailed, the second business day after the date of mailing shall
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constitute the date such notice or other communication is given).
8.2 This Agreement contains the entire agreement
between the parties hereto relating to the matters provided
herein, and no agreement not expressly contained herein shall be
of any force or effect. This Agreement shall not be modified or
amended in any manner except by an instrument in writing
executed by the parties. This Agreement shall be governed,
construed and enforced in accordance with applicable Federal law
and, where such law is not applicable, by Georgia law. Its
provisions are severable, and the validity of one or more of the
provisions herein shall not have any effect upon the validity or
enforceability of any other provision.
8.3 For purposes of this Agreement, Employee shall be
considered as being employed by the Company if he is employed by
any corporation controlled by the Company (such as a subsidiary
or a subsidiary of a subsidiary) or a corporation which is a
successor of the Company.
8.4 If all or any part of any payment to Employee (or
his beneficiaries) becomes liable for the payment of any income,
estate, inheritance or other tax which the Company shall be
required to pay or withhold, the Company shall have the full
power and authority to withhold and pay such tax out of any
amounts due hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed the day and year first above written.
| Attest: | LIFE OF THE SOUTH CORPORATION | |||||||
/s/ [Illegible]
|
By: | /s/ [Illegible]
|
||||||
[Illegible] Secretary (CORPORATE SEAL) |
Title: | President
|
||||||
| /s/ Xxxxxx X. Xxxxxxxxxx | (L.S.) | |||||||
| XXXXXX | X. XXXXXXXXXX | |||||||
 |
||||||||
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SCHEDULE “A”
Designation of
Death Benefit Recipient
Death Benefit Recipient
I, Xxxxxx X. Xxxxxxxxxx, request that the Company show on its records that I have
designated [Illegible] as the primary designated recipient(s), and [Illegible] and [Illegible] as the
secondary designated recipient(s) of the Death Benefit payable under Sections 1.1 and 1.2 of my Deferred Compensation Agreement with
the Company dated , 2006, and pay such Death Benefit to the above
designated recipient(s) as provided under the terms of such Agreement.
The above secondary designated recipient(s), if any, shall receive the above-described
payments only if none of my primary designated recipient(s) is living at the time such payments are
to commence.
You are instructed to retain the above designated recipient(s) on your records until such time
as you receive a new “Designation of Death Benefit Recipient” form from me which changes this
Designation. If I have previously filed a Designation of this kind, it is hereby revoked and this
Designation shall take its place
| /s/ [Illegible] | ||
| (Employee’s Signature) | ||
| 7/26/2006 | ||
| (Date) |
Received By Company:
[Illegible]
|
August 2, 2006
|
