EXHIBIT 10.11
EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN
EXECUTIVE AGREEMENT
THIS AGREEMENT is made and entered into this 13th day of February, 2002, by
and between The East Carolina Bank, a bank organized and existing under the laws
of the State of North Carolina (hereinafter referred to as the "Bank"), and Xxxx
X. Xxxxx, an Executive of the Bank (hereinafter referred to as the "Executive").
WHEREAS, the Executive is now in the employ of the Bank and has for many
years faithfully served the Bank. It is the consensus of the Board of Directors
(hereinafter referred to as the "Board") that the Executive's services have been
of exceptional merit, in excess of the compensation paid and an invaluable
contribution to the profits and position of the Bank in its field of activity.
The Board further believes that the Executive's experience, knowledge of
corporate affairs, reputation and industry contacts are of such value, and the
Executive's continued services so essential to the Bank's future growth and
profits, that it would suffer severe financial loss should the Executive
terminate their services;
ACCORDINGLY, the Board has adopted The East Carolina Bank Executive
Supplemental Retirement Plan Executive Agreement (hereinafter referred to as the
"Executive Plan") and it is the desire of the Bank and the Executive to enter
into this Agreement under which the Bank will agree to make certain payments to
the Executive upon the Executive's retirement or to the Executive's
beneficiary(ies) in the event of the Executive's death pursuant to the Executive
Plan;
FURTHERMORE, it is the intent of the parties hereto that this Executive
Plan be considered an unfunded arrangement maintained primarily to provide
supplemental retirement benefits for the Executive, and be considered a
non-qualified benefit plan for purposes of the Employee Retirement Security Act
of 1974, as amended ("ERISA"). The Executive is fully advised of the Bank's
financial status and has had substantial input in the design and operation of
this benefit plan; and
NOW THEREFORE, in consideration of services the Executive has performed in
the past and those to be performed in the future, and based upon the mutual
promises and covenants herein contained, the Bank and the Executive agree as
follows:
I. DEFINITIONS
A. Effective Date:
The Effective Date of the Executive Plan shall be November 5, 2001.
B. Plan Year:
Any reference to the "Plan Year" shall mean a calendar year from
January 1st to December 31st. In the year of implementation, the term
"Plan Year" shall mean the period from the Effective Date to December
31st of the year of the Effective Date.
C. Retirement Date:
Retirement Date shall mean the first day of the calendar month
following the latter of (i) the date in which the Executive reaches
age sixty-five (65) or (ii) the date upon which the Executive actually
retires from service with the Bank after reaching age sixty-five (65).
D. Termination of Service:
Termination of Service shall mean the Executive's voluntary
resignation of service by the Executive or the Bank's discharge of the
Executive without cause, prior to the Early Retirement Date
(Subparagraph I [K]).
E. Index Retirement Benefit:
The Index Retirement Benefit for each Executive in the Executive Plan
for each Plan Year shall be equal to the excess (if any) of the Index
(Subparagraph I [F]) for that Plan Year over the Opportunity Cost
(Subparagraph I [G]) for that Plan Year, divided by a factor equal to
1.00 minus the marginal tax rate.
F. Index:
The Index for any Plan Year shall be the aggregate annual after-tax
income from the life insurance contract(s) described hereinafter as
defined by FASB Technical Bulletin 85-4. This Index shall be applied
as if such insurance contract(s) were purchased on the Effective Date
of the Executive Plan.
Insurance Company: Jefferson Pilot Life Insurance Company
Policy Form: ESP VI
Policy Name: Flexible Premium Adjustable Life
Insured's Age and Sex: 48, Male
Riders: None
Ratings: None
Option: Level
Face Amount: $180,000
Premiums Paid: $68,000
Number of Premium Payments: Single
Assumed Purchase Date: November 5, 2001
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Insurance Company: Mass Mutual Life Insurance Company
Policy Form: Flexible Premium Adjustable Life
Policy Name: Strategic Life Exec
Insured's Age and Sex: 49, Male
Riders: None
Ratings: None
Option: Level
Face Amount: $180,000
Premiums Paid: $68,000
Number of Premium Payments: Single
Assumed Purchase Date: November 5, 2001
If such contracts of life insurance are actually purchased by the
Bank, then the actual policies as of the dates they were actually
purchased shall be used in calculations under this Executive Plan. If
such contracts of life insurance are not purchased or are subsequently
surrendered or lapsed, then the Bank shall receive annual policy
illustrations that assume the above-described policies were purchased
or had not subsequently surrendered or lapsed. Said illustration shall
be received from the respective insurance companies and will indicate
the increase in policy values for purposes of calculating the amount
of the Index.
In either case, references to the life insurance contracts are merely
for purposes of calculating a benefit. The Bank has no obligation to
purchase such life insurance and, if purchased, the Executive and the
Executive's beneficiary(ies) shall have no ownership interest in such
policy and shall always have no greater interest in the benefits under
this Executive Plan than that of an unsecured creditor of the Bank.
G. Opportunity Cost:
The Opportunity Cost for any Plan Year shall be calculated by taking
the sum of the amount of premiums for the life insurance policies
described in the definition of "Index" plus the amount of any
after-tax benefits paid to the Executive pursuant to the Executive
Plan (Paragraph II hereinafter) plus the amount of all previous years'
after-tax Opportunity Cost, and multiplying that sum by the greater of
either one of the following: (i) the average after tax yield of a
one-year Treasury xxxx, or (ii) the Bank's average annualized
after-tax Cost of Funds Expense as determined by the Bank's third
quarter call report as filed with the appropriate regulatory agency.
H. Change of Control:
Change of Control shall mean the direct or indirect acquisition by
another person, firm or corporation, by merger, share exchange,
consolidation,
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purchase or otherwise, of all or substantially all of the assets or
stock of the Bank or its parent company.
I. Normal Retirement Age:
Normal Retirement Age shall mean the date on which the Executive
attains age sixty-five (65).
J. Benefit Accounting:
The Bank shall account for the benefit provided herein using the
regulatory accounting principles of the Bank's primary federal
regulator. The Bank shall establish an accrued liability retirement
account for the Executive into which appropriate reserves shall be
accrued.
K. Early Retirement Date:
Early Retirement Date shall mean a retirement from service which is
effective prior to the Normal Retirement Age stated herein, provided
the Executive has attained age fifty-nine and one-half (59 1/2).
II. INDEX BENEFITS
A. Retirement Benefits:
Subject to Subparagraph II (E) hereinafter, an Executive who remains
in the employ of the Bank until the Normal Retirement Age
(Subparagraph I [I]) shall be entitled to receive an annual benefit
amount equal to the amount set forth in Exhibit A-1. Said payments
shall be made quarterly and shall commence at the beginning of the
Bank's first quarter following the Executive's Retirement Date and
shall continue until the Executive attains age seventy-five (75). Upon
completion of the aforestated payments and commencing subsequent
thereto and subject to Subparagraph II (A) (i) hereinbelow, the Index
Retirement Benefit (Subparagraph I [E]) for each Plan Year subsequent
to the year in which the Executive attains age seventy-five (75), and
including the remaining portion of the Plan Year in which the
Executive attains age seventy-five (75), shall be paid to the
Executive until the Executive's death.
(i) The Index Retirement Benefit Adjustment:
The Index Retirement Benefit payment as set forth hereinabove for
the five (5) Plan Years subsequent to the Executive attaining age
seventy-five (75) shall be adjusted according to a number equal
to the aggregate of the Index Retirement Benefit (Subparagraph I
[E]) for each Plan Year from the Effective Date of this agreement
until the Plan Year subsequent to the Executive attaining age
seventy-
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five (75) over the aggregate of the benefit payments the
Executive actually received under the terms of this Executive
Plan through that date. For example, if the Executive retires at
age sixty-five (65) and the aggregate annual benefits received by
the Executive until the Plan Year the Executive attains age
seventy-five (75) were $900,000.00, and the aggregate Index
Retirement Benefits for each Plan Year from the Effective Date of
this agreement to the Plan Year the Executive's attains age
seventy-five (75) were $1,000,000.00 then the Executive's Index
Retirement Benefit in the first five (5) Plan Years said payment
is payable to the Executive would be increased by Twenty Thousand
and 00/100ths Dollars ($20,000.00) each year (i.e. $100,000.00 /
5). If said number is a deficit, then the Index Retirement
Benefit for the first Plan Year said payment is payable to the
Executive and each subsequent Plan Year's benefit (if necessary)
shall be reduced until the entire deficit has been recovered by
the Bank. For each year thereafter, the Index Retirement Benefit
payment shall be paid as set forth in Subparagraph I (E). For
example, if the Executive retires at age sixty-five (65) and the
aggregate annual benefits to be received by the Executive until
the Plan Year the Executive attains age seventy-five (75) were
$1,000,000.00, and the aggregate Index Retirement Benefits for
each Plan Year from the Effective Date of this agreement to the
Plan Year the Executive attains age seventy-five (75) were
$900,000.00 and the Executive's Index Retirement Benefit was
$90,000.00 in the first year, then the Executive would not
receive any Index Retirement Benefit in the first year, and the
second years' Index Retirement benefit would be reduced by
$10,000.00.
B. Termination of Service:
Subject to Subparagraph II (D), should an Executive suffer a
Termination of Service the Executive shall be entitled to receive the
following percentage of the annual benefit set forth in Exhibit A-1.
Said payments shall be made quarterly and shall commence at the
beginning of the Bank's first quarter following the Executive's Normal
Retirement Age (Subparagraph I [I]) and shall continue until the
Executive attains age seventy-five (75). Upon completion of the
aforestated payments and commencing subsequent thereto and subject to
Subparagraph II (A) (i) hereinabove the following percentage of the
Index Retirement Benefit for each Plan Year subsequent to the year in
which the Executive attains seventy-five (75), and including the
remaining portion of the Plan Year in which the Executive attains age
seventy-five (75), shall be paid to the Executive until the
Executive's death.
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Date of Hire 10% for each full year of service
from the date of first service
to a maximum of 80%
PLUS
If Insured is at least 62
years of age on his or her 20%
date of termination For a maximum total of 100%
C. Death:
If the Executive dies while there is a balance in the Executive's
accrued liability retirement account, then the unpaid balance shall be
paid in a lump sum to the individual or individuals designated in
writing by the Executive and filed with the Bank. In the absence of or
a failure to designate a beneficiary, the unpaid balance shall be paid
in a lump sum to the personal representative of the Executive's
estate. If, upon death, the Executive shall have received the total
balance of the Executive's accrued liability retirement account, then
no further benefit shall be due hereunder. In any event, upon the
death of the Executive, the Executive's beneficiary shall not be
entitled to receive any Index Retirement Benefit.
D. Discharge for Cause:
All rights of Executive hereunder shall cease and terminate
immediately in the event of a termination of Executive's employment
with Bank "with cause." For purposes of this Agreement, "with cause"
shall have the same meaning that such term has in the employment
agreement between Bank and Executive. If no such employment agreement
exists at the time of termination, the term "with cause" shall be
deemed to mean, but is not limited to, personal dishonesty,
incompetence, willful material misconduct, breach of fiduciary duty,
failure to perform the obligations of the Executive as stated herein,
willful violation of any law, rule, or regulation (other than minor
traffic infractions), or, any material breach of any provision of this
agreement.
E. Disability Benefit:
In the event the Executive becomes disabled, as defined herein, prior
to any Termination of Service, and the Executive's employment with the
Bank is terminated because of such disability, the Executive, upon
submission of written documentation and verification of disability
satisfactory to the Bank, shall receive one hundred percent (100%) of
the benefit amount provided in Subparagraph II (A) above. Payment of
such benefit shall begin when the Executive reaches his or her Normal
Retirement Age. Subject to the Bank's obligations and Executive's
rights under Title I of the Americans with Disabilities Act and the
Family and
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Medical Leave Act, if applicable, and any other applicable federal or
state laws, disability shall be defined as the Executive not being
able to perform the duties of the Executive's own job and shall be as
further defined in the Bank's long term disability policy in effect at
the time of said disability. If no such policy exists at the time of
the disability, then disability shall be defined as a physical or
mental impairment of Executive which renders Executive incapable of
performing Executive's normal and regular essential employment duties
and which shall be medically determined to be of permanent duration as
the same is construed for purposes of disability benefits under the
federal Social Security laws and regulations. If there is a dispute
regarding whether the Executive is disabled, such dispute shall be
resolved by a physician selected by the Bank and such resolution shall
be binding upon all parties to this Agreement.
F. Death Benefit:
Except as set forth above, there is no death benefit provided under
this Agreement.
G. Early Retirement:
Subject to Subparagraph II (D), should the Executive elect Early
Retirement or be discharged without cause by the Bank subsequent to
the Early Retirement Date [Subparagraph I (K)], the Executive shall be
entitled to receive the annual benefit set forth in Exhibit A-2
reduced by the full number of years the Executive retires early prior
to Normal Retirement Age, times eighteen and eighteen one hundredths
percent (18.18%) (For example, if Executive retires at age 61, the
annual benefit set forth in Exhibit A-2 shall be reduced by 72.72%:
61-65 = 4 X 18.18% = 72.72%). Said payments shall be made quarterly
and shall commence at the beginning of the Bank's first quarter
following the Executive's early retirement and shall continue until
the Executive attains age seventy-five (75). Upon completion of the
aforestated payments and commencing subsequent thereto and subject to
Subparagraph II (A) (i) hereinabove, the vested percentage set forth
hereinabove of the Index Retirement Benefit for each Plan Year
subsequent to the year in which the Executive attains age seventy-five
(75), and including the remaining portion of the Plan Year in which
the Executive attains age seventy-five (75), shall be paid to the
Executive until the Executive's death.
III. RESTRICTIONS UPON FUNDING
The Bank shall have no obligation to set aside, earmark or entrust any fund
or money with which to pay its obligations under this Executive Plan. The
Executive, their beneficiary(ies), or any successor in interest shall be
and remain simply a general creditor of the Bank in the same manner as any
other creditor having a general claim for matured and unpaid compensation.
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The Bank reserves the absolute right, at its sole discretion, to either
fund the obligations undertaken by this Executive Plan or to refrain from
funding the same and to determine the extent, nature and method of such
funding. Should the Bank elect to fund this Executive Plan, in whole or in
part, through the purchase of life insurance, mutual funds, disability
policies or annuities, the Bank reserves the absolute right, in its sole
discretion, to terminate such funding at any time, in whole or in part. At
no time shall any Executive be deemed to have any lien nor right, title or
interest in or to any specific funding investment or to any assets of the
Bank.
If the Bank elects to invest in a life insurance, disability or annuity
policy upon the life of the Executive, then the Executive shall assist the
Bank by freely submitting to a physical exam and supplying such additional
information necessary to obtain such insurance or annuities.
IV. CHANGE OF CONTROL
Notwithstanding other terms of this Agreement, upon a Change of Control
(Subparagraph I [H]), if the Executive subsequently suffers a Termination
of Service (Subparagraph I [D]), then the Executive shall receive the
benefits promised in this Executive Plan upon attaining Normal Retirement
Age, as if the Executive had been continuously employed by the Bank until
the Executive's Normal Retirement Age. The Executive will also remain
eligible for all promised death benefits in this Executive Plan. In
addition, no sale, merger, or consolidation of the Bank shall take place
unless the new or surviving entity expressly acknowledges the obligations
under this Executive Plan and agrees to abide by its terms.
V. MISCELLANEOUS
A. Alienability and Assignment Prohibition:
Neither the Executive, nor the Executive's surviving spouse, nor any
other beneficiary(ies) under this Executive Plan shall have any power
or right to transfer, assign, anticipate, hypothecate, mortgage,
commute, modify or otherwise encumber in advance any of the benefits
payable hereunder nor shall any of said benefits be subject to seizure
for the payment of any debts, judgments, alimony or separate
maintenance owed by the Executive or the Executive's beneficiary(ies),
nor be transferable by operation of law in the event of bankruptcy,
insolvency or otherwise. In the event the Executive or any beneficiary
attempts assignment, commutation, hypothecation, transfer or disposal
of the benefits hereunder, the Bank's liabilities shall forthwith
cease and terminate.
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B. Binding Obligation of the Bank and any Successor in Interest:
The Bank shall not merge or consolidate into or with another bank or
sell substantially all of its assets to another bank, firm or person
until such bank, firm or person expressly agrees, in writing, to
assume and discharge the duties and obligations of the Bank under this
Executive Plan. This Executive Plan shall be binding upon the parties
hereto, their successors, beneficiaries, heirs and personal
representatives.
C. Amendment or Revocation:
It is agreed by and between the parties hereto that, during the
lifetime of the Executive, this Executive Plan may be amended or
revoked at any time or times, in whole or in part, by the mutual
written consent of the Executive and the Bank.
D. Gender:
Whenever in this Executive Plan words are used in the masculine or
neuter gender, they shall be read and construed as in the masculine,
feminine or neuter gender, whenever they should so apply.
E. Effect on Other Bank Benefit Plans:
Nothing contained in this Executive Plan shall affect the right of the
Executive to participate in or be covered by any qualified or
non-qualified pension, profit-sharing, group, bonus or other
supplemental compensation or fringe benefit plan constituting a part
of the Bank's existing or future compensation structure.
F. Headings:
Headings and subheadings in this Executive Plan are inserted for
reference and convenience only and shall not be deemed a part of this
Executive Plan.
G. Applicable Law:
The validity and interpretation of this Agreement shall be governed by
the laws of the State of North Carolina.
H. 12 U.S.C.(S) 1828(k):
Any payments made to the Executive pursuant to this Executive Plan, or
otherwise, are subject to and conditioned upon their compliance with
12 U.S.C. (S) 1828(k) or any regulations promulgated thereunder.
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I. Partial Invalidity:
If any term, provision, covenant, or condition of this Executive Plan
is determined by an arbitrator or a court, as the case may be, to be
invalid, void, or unenforceable, such determination shall not render
any other term, provision, covenant, or condition invalid, void, or
unenforceable, and the Executive Plan shall remain in full force and
effect notwithstanding such partial invalidity.
J. Employment:
No provision of this Executive Plan shall be deemed to restrict or
limit any existing employment agreement by and between the Bank and
the Executive, nor shall any conditions herein create specific
employment rights to the Executive nor limit the right of the Employer
to discharge the Executive with or without cause. In a similar
fashion, no provision shall limit the Executive's rights to
voluntarily sever the Executive's employment at any time.
K. Notices:
All notices required or permitted to be given pursuant to this
Agreement shall be in writing, unless otherwise specified, and shall
be delivered personally, deposited in the United States mail,
registered or certified and postage prepaid with return receipt
requested, or deposited with a reputable overnight courier which
provides a day and time stamped receipt, addressed to Executive, Bank
or Trustee, as applicable, at the address set forth herein or to such
other address as hereafter may be furnished to the other parties in
writing pursuant to this paragraph. All notices so given shall be
deemed effective and received upon the earlier of (i) actual receipt,
(ii) receipt and refusal; or (iii) five (5) days from (1) the postmark
date, if deposited with the United States Postal Service, or (2) the
date of deposit, if deposited with an overnight courier, unless
otherwise provided herein.
Bank: The Xxxx Xxxxxxxx Xxxx
Xxx. 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Trustee: Xxxxxx X. Xxxxxxxx
Eastern Bank & Trust Co.
0 Xxxxx Xxxxx, XX00
Xxxxxx, XX 00000-0000
Executive: Xxxx X. Xxxxx
-----------------------
-----------------------
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VI. ERISA PROVISION
A. Named Fiduciary and Plan Administrator:
The "Named Fiduciary and Plan Administrator" of this Executive Plan
shall be The East Carolina Bank, until its resignation or removal by
the Board. As Named Fiduciary and Plan Administrator, the Bank shall
be responsible for the management, control and administration of the
Executive Plan. The Named Fiduciary may delegate to others certain
aspects of the management and operation responsibilities of the
Executive Plan including the employment of advisors and the delegation
of ministerial duties to qualified individuals.
B. Claims Procedure and Arbitration:
In the event a dispute arises over benefits under this Executive Plan
and benefits are not paid to the Executive (or to the Executive's
beneficiary(ies) in the case of the Executive's death) and such
claimants feel they are entitled to receive such benefits, then a
written claim must be made to the Named Fiduciary and Plan
Administrator named above within sixty (60) days from the date
payments are refused. The Named Fiduciary and Plan Administrator shall
review the written claim and if the claim is denied, in whole or in
part, they shall provide in writing within sixty (60) days of receipt
of such claim the specific reasons for such denial, reference to the
provisions of this Executive Plan upon which the denial is based and
any additional material or information necessary to perfect the claim.
Such written notice shall further indicate the additional steps to be
taken by claimants if a further review of the claim denial is desired.
A claim shall be deemed denied if the Named Fiduciary and Plan
Administrator fail to take any action within the aforesaid sixty-day
period.
If claimants desire a second review they shall notify the Named
Fiduciary and Plan Administrator in writing within sixty (60) days of
the first claim denial. Claimants may review this Executive Plan or
any documents relating thereto and submit any written issues and
comments it may feel appropriate. In their sole discretion, the Named
Fiduciary and Plan Administrator shall then review the second claim
and provide a written decision within sixty (60) days of receipt of
such claim. This decision shall likewise state the specific reasons
for the decision and shall include reference to specific provisions of
the Plan Agreement upon which the decision is based.
If claimants continue to dispute the benefit denial based upon
completed performance of this Executive Plan or the meaning and effect
of the terms and conditions thereof, then claimants may submit the
dispute to an arbitrator for final arbitration. The arbitrator shall
be selected by mutual agreement of the Bank and the claimants. The
arbitrator shall operate
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under any generally recognized set of arbitration rules. The parties
hereto agree that they and their heirs, personal representatives,
successors and assigns shall be bound by the decision of such
arbitrator with respect to any controversy properly submitted to it
for determination.
Where a dispute arises as to the Bank's discharge of the Executive
"for cause," such dispute shall likewise be submitted to arbitration
as above described and the parties hereto agree to be bound by the
decision thereunder.
VII. TERMINATION OR MODIFICATION OF AGREEMENT BY REASON OF CHANGES IN THE LAW,
RULES OR REGULATIONS
The Bank is entering into this Agreement upon the assumption that certain
existing tax laws, rules and regulations will continue in effect in their
current form. If any said assumptions should change and said change has a
detrimental effect on this Executive Plan as determined by the Bank in its
sole discretion, then the Bank reserves the right to terminate or modify
this Agreement accordingly. Upon a Change of Control (Subparagraph I [H]),
this paragraph shall become null and void effective immediately upon said
Change of Control.
IN WITNESS WHEREOF, the parties hereto acknowledge that each has carefully read
this Agreement and executed the original thereof on the first day set forth
hereinabove, and that upon execution, each has received a conforming copy.
THE EAST CAROLINA BANK
Engelhard, North Carolina
By: /s/ X. Xxxxxx White
------------------------------------- -----------------------------------
Witness Title: Executive Vice President
/s/ Xxxx X. Xxxxx
------------------------------------- --------------------------------------
Witness Xxxx X. Xxxxx
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BENEFICIARY DESIGNATION FORM
FOR THE EXECUTIVE SUPPLEMENTAL
RETIREMENT PLAN AGREEMENT
PRIMARY DESIGNATION:
Name Address Relationship
---- ------- ------------
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SECONDARY (CONTINGENT) DESIGNATION:
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All sums payable under the Executive Supplemental Retirement Plan Executive
Agreement by reason of my death shall be paid to the Primary Beneficiary, if he
or she survives me, and if no Primary Beneficiary shall survive me, then to the
Secondary (Contingent) Beneficiary.
--------------------------------- --------------------------------------
Xxxx X. Xxxxx Date
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EXHIBIT "A-1"
End of Benefit
Year Age: Amount
--------- -------
Xxxxx 65 $22,694
66 $22,652
67 $22,615
68 $22,687
69 $23,204
70 $23,233
71 $23,199
72 $23,208
73 $23,344
74 $23,383
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EXHIBIT "A-2"
Plan Years Subsequent to
Early Retirement Date as
Defined in Subparagraph I(K) Benefit
of the Agreement Amount
---------------------------- -------
Xxxxx 1 $22,694
2 $22,652
3 $22,615
4 $22,687
5 $23,204
6 $23,233
7 $23,199
8 $23,208
9 $23,344
10 $23,383*
* This benefit amount shall remain constant for any remaining Plan Years that
the Executive may be entitled to receive a fixed benefit amount pursuant to
Subparagraph II (G) of the Agreement; the Executive's age: 75
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